Hey, if Elizabeth Warren is Indian, then maybe I am, too!
I confess to a several personal emotions in reaction to the Elizabeth Warren case. Elizabeth Warren, if you recall, is the Harvard Law Professor now running for U.S. Senate in Massachusetts who identified herself to her employers and in law school directories as Native American. But it turns out that she has at most 1/32 […]
New History of Founding Era Conventions
Very few people know that the Constitutional Convention of 1787 only the last of nearly 20 other conventions in which American colonies, and later states, met to deliberate on specified problems. In these gatherings, states met as semi-sovereigns; these were essentially diplomatic meetings. The rule for decision was “one state, one vote.” Those conventions were […]
Did the Founders expect the Courts to Declare Laws Unconstitutional?
Every so often I’m asked whether the Founders anticipated judicial review. In other words, whether the Founders expected the courts to void laws they found unconstitutional. The clear answer is “yes.” During the colonial era, each colony was governed by its charter, which was a kind of constitution for the colony. Colonial laws in violation […]
"How could a former con law professor be so ignorant?"
Quite a few people have asked me how President Obama, as a “former constitutional law professor,” could prove so ignorant about the Constitution. This former con law professor suggests two reasons: * Obama was not a “professor” in the sense that most people use the term—that is someone who becomes an expert in the subject […]
House Rules Committee: “Violate Your Oath No Matter How You Vote!”
It’s a stunning betrayal of all those hardworking, pro-Constitution Americans who gave U.S. House Republicans their majority. Republicans controlling the House Rules Committee have added sweeping new mandates on the states to a bill repealing part of Obamacare. The result is revised H.R. 5. Just on good government grounds, those two very different items do […]
Why an Amendments Convention is not a “Constitutional Convention”
Sometimes a convention for proposing amendments to the U.S. Constitution is referred to as a “constitutional convention.” That title is both wrong and fatally misleading. The correct name—given by the Constitution itself—is convention for proposing amendments. Other accurate names are amendments convention, Article V convention, or convention of the states. In the Founding Era and […]
The Great Forgetting
The meaning of some of the Constitution’s 18th century terminology was lost during the 19th century, leading to widespread misunderstanding.
Contraceptives and Catholic hospitals: The primary issue is Obamacare, not the First Amendment
Does the mandate forcing Catholic hospitals to offer abortifacients and contraception violate the First Amendment? The surprising answer is: Probably not. True, there are serious moral and political issues inherent in requiring religious institutions to offer “treatments” they find theologically offensive. But, despite the claims of many Catholic and conservative commentators, the U.S. Department of […]
Some Questions for “Progressives” Carping about the Citizens United Campaign Finance Case
The Supreme Court’s decision in Citizens United v. FEC has generated a great deal of uninformed, and sometimes hypocritical, whining. In Citizens United, the Supreme Court held that people organized in the corporate form have the same First Amendment rights they enjoy when they organize in other ways. Some opponents of the decision are even […]
The Little-Known—but Seminal—York Town Convention of 1777
The U.S. Constitution authorizes a “convention for proposing amendments” to offer amendments for ratification (or rejection) by the states. The mechanism has never been used (all amendments have come from Congress), and many people have been curious about how it is supposed to work. But that’s because they are unaware of the long series of […]
More Constitutional Baby Babble—this time at Vanity Fair
Vanity Fair’s sophisticated approach to rescuing a drowning man is this: Lecture him about how we all need plenty of water. The tony mag’s new attack on the Tea Party is entitled “Debt and Dumb.” But the attack shows the authors and editors at VF to be the ones either deaf or dumb: Either deaf […]
Congress, Butt Out! The Constitution Reserves Malpractice Reform for the States
In their zeal to adopt a federal malpractice reform bill to dictate procedures to state courts, many Republicans in Congress are doing precisely what they rightly accuse Democrats of doing: blithely disregarding the Constitution’s clear limits on federal power. Their proposals, once encapsulated in H.R. 5 and then slipped into the Senate Republican “jobs bill,” […]
