“Progressive” Misrepresentations of the Public Trust Doctrine
While hosting a Montana radio talk show in the late 1990s, I interviewed a prominent left-wing environmental activist. He was promoting an anti-mining ballot measure. During the interview, he read from a 16th-century book that (he said) had shown that mining had all sorts of evil effects. But something about the quote did not ring […]
New Article: Government's Obligation To Be Impartial
The Constitution was adopted amid a belief that government is a public trust.* Does the Constitution require federal and state governments to adhere to formal duties of public trust—that is, to fiduciary duties? In some places, at least, it clearly does: The Equal Protection Clause of the Fourteenth Amendment imposes on the states what is […]
New Article: Government’s Obligation To Be Impartial
The Constitution was adopted amid a belief that government is a public trust.* Does the Constitution require federal and state governments to adhere to formal duties of public trust—that is, to fiduciary duties? In some places, at least, it clearly does: The Equal Protection Clause of the Fourteenth Amendment imposes on the states what is […]
How Much Authority Does Congress Have Under the Treaty Power? The Question the Supreme Court Dodged in Bond v. U.S.
In its recent decision in Bond v. United States, the Supreme Court avoided deciding whether Congress, in executing a treaty, could exceed the enumerated powers to which the Constitution otherwise restricts it. For example, if a treaty requires a signatories to make it a crime to use a particular chemical, may Congress pass a law […]
The Dark Side of Hobby Lobby: Contraceptive Coverage as a ‘Compelling Government Interest’
Note: This item originally appeared at the website of The American Thinker. The Hobby Lobby case is being hailed by freedom advocates as a great victory. On balance it certainly it is a victory for those who value personal freedom. But it also contains land mines that may one day prove destructive to freedom. One […]
More evidence that “progressivism” increasingly is totalitarianism
Early this year in The American Thinker and in this column I discussed state marijuana legalization and federalism. I cautioned against advocates of freedom and federalism forming alliances with the “progressive” left on those issues in which the left claimed to favor free choice. I pointed out that that for that bunch”free choice” is nearly […]
Book Review: James Madison: A Life Reconsidered, by Lynn Cheney (Viking, 2014)
After some truly painful reading experiences, I’ve become skeptical of history books written by celebrities. Lynn Cheney is the wife of former Vice President Dick Cheney and thus our former Second Lady. She certainly counts as a celebrity. I was, therefore, skeptical of her new biography, James Madison: A Life Reconsidered. But she won me […]
Problems in the Recess Appointments Case (Even though Rob was cited again)
(This article originally appeared in The American Thinker.) I applaud the result of the recess appointments case and I am happy to have been cited again in a Supreme Court opinion (this time by Justice Scalia). But in several respects the case exemplifies what is wrong with constitutional jurisprudence today. In National Labor Relations Board […]
Conservatives need to support trial by jury, too
Although I’ve often criticized the constitutional tone-deafness of “progressives,” conservatives can sometimes exhibit such tendencies as well. Over at The Seventh Amendment Advocate, Andy Cochran points out why trial by jury in civil cases—as guaranteed by the Seventh Amendment—is important, and how some conservatives disregard it. The problem arises because when constituency politics often trumps […]
Momentum for an Amendments Convention Accelerates Even More
Well over a hundred state lawmakers from 33 states met this past week to plan for an Article V “Convention for Proposing Amendments.” Most attendees had been appointed officially as delegates by the leaders of their respective state legislatures. The highly successful meeting dealt with such issues as convention rules and procedures, how to involve […]
Momentum for Amendments Convention Accelerates
It increasingly looks like a “convention for proposing amendments” is really going to happen. The last 18 months have witnessed a flood of new state legislative applications for such a convention. New Hampshire re-booted the process in 2012 with an application for a convention limited to considering a balanced budget amendment. Late last year, the […]
The Results Are In: The Obamacare “Penalty” Didn’t Violate the Origination Clause, but Obamacare’s Regulations Did
Is the penalty for not buying insurance in the Affordable Care Act (ACA—Obamacare) unconstitutional as a “tax” that originated in the Senate? Under the Constitution’s Origination Clause, the answer appears to be “no”—the Senate’s decision to add the penalty to the underlying bill was not a violation of that Clause. But under the same provision, […]
