Is the Obamacare Mandate Unconstitutional Because It Originated in the Senate?
The Patient Protection and Affordable Care Act (PPACA or “Obamacare”) imposes a sliding-scale financial penalty on people who do not buy health insurance conforming to federal standards. In NFIB v. Sebelius, the Supreme Court upheld the penalty as a constitutional “tax.” But that may not be the last word on its constitutionality. A lawsuit brought […]
A New Triumph for the Right to Keep and Bear Arms (and for II's Dave Kopel)
A federal court of appeals has just vindicated the Second Amendment right to keep and bear arms in a big way. And II’s own Dave Kopel was largely responsible. California denied citizens the right to carry firearms outside their homes, unless they obtained a concealed weapons permit. But to get such a permit, citizens had […]
Rob’s Harvard Article on “Recess Appointments” Is Published—and Goes to the Supreme Court
Last May, I reported that litigation over President Obama’s “recess appointments” was going to the Supreme Court. In fact, oral argument was held a few weeks ago. The Harvard Journal of Law and Public Policy has just published my article on the original meaning of the Recess Appointments Clause. It reports that the Constitution uses […]
Struggling With Nullification
Does a state have the right to nullify federal statutes the state considers unconstitutional? This depends largely on how you define “nullification.” It also depends on what you mean by “right” and what kind of document you understand the Constitution to be. In other words, it depends on your premises. Unfortunately, people often discuss—and debate, […]
Obaminable Nullification & Division Among Constitutionalists
“Progressives” often attack as indefensible proposals by some conservatives that states nullify federal laws those states deem unconstitutional. But “progressive” politicians now are engaged in a nullification campaign far more audacious and lawless than anything suggested by conservatives. The latest example is the decision by Virginia’s new attorney general, Mark Herring, to join the attack […]
The Framers’ Bloopers
The Constitution’s Framers were very great men, but they were not gods. They made mistakes. By “mistakes,” I’m not talking about matters of political judgment, such as how much to accommodate slavery. I mean drafting errors of the forehead-slapping kind. Consider first a matter of style: The Constitution in its final form was drafted by […]
Lessons For Federalism from Colorado’s Pot “Legalization”
(An earlier version of this post appeared on the website of The American Thinker.) It’s ironic that one of the few “states’ rights” battles won in recent times was Colorado’s decision to legalize marijuana in the teeth of federal laws to the contrary. Pot really isn’t legal in Colorado, of course. The federal government still […]
A Summary of How States Push Back Against Washington
The Cato Institute has published a new paper by Professor John Dinan that summarizes all the credible ways in which the states can and do push back against Washington, D.C. The only omission to this excellent summary is the states’ amendment powers under the Constitution’s Article V. (Although the states have never forced Congress to […]
How the Contracts Clause was gutted—and how SCOTUS’ early efforts to correct this have been ignored
The Constitution lists several things states may not do. Article I, Section 10 provides that “No State shall . . . pass any . . . law impairing the Obligation of Contracts.” This clause was inserted to curb state “debtor relief” laws that the Framers believed were immoral and rendered bad economic conditions worse. Founding-Era […]
The Meaning of the Commerce Power and Congress’s and the Courts’ Use (And Abuse) Of It
Are you interested in the true meaning of, and limits on, the Constitution’s much-abused Commerce Power? In a speech at the University of Utah in Salt Lake City on November 19, 2013, I outlined the intended scope of the power, how I reached my conclusions, and how the Supreme Court has stretched the Commerce Power […]
Politicos Pigging Out on the Cash You Pay for Gas
The Framers drafted the Constitution to grant Congress some powers to construct infrastructure. For example, the Commerce Clause, as originally understood, grants authority to construct facilities for navigation such as dockyards and ports—including, presumably, airports. Authority to maintain the military enables Congress to fund military facilities. Article I, Section 1, Clause 8 empowers Congress to […]
A Question: Where Did the Story Get Started that Most of the Founders were Deists?
It is a common claim that most of the Founders were deists. (A deist is a person who believes that there is a Creator but that He is not actively involved in the world—the “great watchmaker” hypothesis.) As many authors have shown, the claim is false: Tom Paine aside, almost all the leading Founders professed […]
