“Necessary and Proper” = “Necessaria et Opportuna”
To justify the huge growth of federal regulations over the last few decades, lawyers and judges frequently cite the Constitution’s Necessary and Proper Clause (I-8-18). But is that provision really broad enough to authorize what they claim it authorizes? This little essay focuses on the meaning of the word “necessary.” Early legal documents—used by English […]
Federal “Campaign Finance” Laws are Mostly Unconstitutional
In a recent posting, I wrote: [I]t is dubious whether the Constitution even gives Congress power to regulate the source and amount of campaign contributions and expenditures. The background and meaning of the Constitution’s “Time, Places and Manner Clause”—which Congress uses to justify such laws—strongly suggests not. The Time, Places and Manner Clause is Article […]
The Supreme Court’s Citizens United Corporate Campaign case Should Be Controversial—But Not for the Reason You Think
If you have any doubt about the ability of the political Left to set the agenda in this country, look at the controversy over the Supreme Court’s 2010 Citizens United corporate campaign finance case. What most people have heard about the case is that it “allowed corporations to spend unlimited amounts in federal elections,” a […]
Constitutional Arcana: The Forgotten Navigation Convention of 1786
In an earlier post, I reported that the Constitutional Convention of 1787 was far from unique: that during the lifetime of Benjamin Franklin (1706-1790) nearly 20 inter-colonial and interstate conventions met. Some were attended by as few as three colonies or states; others by as many as 12. These multi-governmental conventions were held in Philadelphia […]
Obamacare Decision Suggests U.S. Malpractice Bill Unconstitutional
Little-noticed amid the commentary on the Supreme Court’s health care decision is the decision’s blow to congressional efforts to federalize medical malpractice law—a potential element of the Republican plan to “replace Obamacare.” Medical malpractice cases, like most areas of civil justice, traditionally are judged by state courts under state law rather than by the national […]
New Article: James Madison, Federal Overreaching, and Amendments Conventions
The writings of James Madison still offer useful guidance for states seeking to restrain federal overreaching. Akron Law Review has just published my short article discussing the evolution of Madison’s thought on the subject—from Federalist No. 46, through the Virginia Resolution of 1798 and subsequent writings, to his final recommendation that states unhappy with federal […]
A Colonial Pamphlet Helps Show Why the Constitution’s Necessary and Proper Clause Granted No Power
Learn more: Hear a podcast on this subject. As I have noted before (for example, here and here) pamphlets written in support of the colonial cause during the years 1763-1774 help us greatly in understanding the language of the Constitution. Unfortunately, most constitutional writers regularly overlook those pamphlets—one reason mistakes of constitutional interpretation are so […]
New “how to” paper on proposing constitutional amendments by convention
The Independence Institute has published my new Issue Paper, Amending the Constitution by Convention: Practical Guidance for Citizens and Policymakers. It explains the basic rules and makes recommendations for those seeking constitutional reform in a way that avoids congressional obstruction. This work is an updated version of my earlier version, published last year by Arizona’s […]
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 […]
The Constitution’s officers
Proceeding on the very reasonable theory that the Founders knew what they were doing . . . Seth Barrett Tillman has spent considerable effort reconstructing the meanings of different office/officer phrases.
"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 […]
