The Supreme Court Uses Magna Carta to Curb Federal Property Grabs
This article was first published at CNSNews. The Fifth Amendment provides that “private property” shall not “be taken for public use, without just compensation.” When I wrote my book, The Original Constitution, I had to address the question of whether the Fifth Amendment phrase “private property” referred only to real estate or whether it included […]
The Underselling of Magna Carta
This article first appeared at CNSNews. The exhibition on Magna Carta at the British Library in London is certainly worth seeing. The document was sealed on June 15, 1215, which means that (allowing for intervening changes in the calendar) its 800th anniversary arrives on June 25th of this year. The exhibition includes an array of […]
The Necessary and Proper Clause Grants Congress No Power
In a recent post, I pointed out that, despite superficial appearances, the Constitution’s Necessary and Proper Clause—clarifying that Congress has authority to make laws “necessary and proper” to carrying out its other enumerated powers—actually grants Congress no power. The Necessary and Proper Clause is representative of one of four related kinds of provisions found in […]
Evidence on the Powers the Constitution Leaves Exclusively to the States
This column also appears at CNSNews. The Constitution enumerates the powers of the federal government. But has anyone listed the exclusive powers of states—the realm the federal government may not invade without violating the Constitution? When discussing state authority, the Founders usually pointed out only that the federal government’s powers were, as Madison said, “few […]
New Origination Clause Article Now Published
The Harvard Journal of Law and Public Policy has now published my article on the Origination Clause. That’s the article documenting the research that found—contrary to all expectations—that the taxes in Obamacare were validly adopted. But it also found that the regulations and appropriations in Obamacare were invalidly adopted. You can read a summary of […]
Obamacare’s Constitutionality and the Origination Clause: New Evidence
This article originally appeared at the American Thinker. One of the constitutional disputes triggered by the Affordable Care Act, Obamacare, is whether by substituting new material for the original House-passed bill (H.R. 3590), the Senate exceeded its constitutional power to amend the original measure. This, in turn, has provoked a debate over whether the Founders […]
The Principles of the Common Law
Although the Constitution is not, strictly speaking, a common law document, it was written against the backdrop of common law. The term “common law” has various meanings, but the meaning I’m using here is the system of case law we inherited from England, including the bodies of jurisprudence known as admiralty and equity. That system […]
How Liberal Propagandists Fooled Conservatives into Opposing an Amendments Convention
This article originally appeared at CNS News. Some conservative groups have become known for uncompromising opposition to the Constitution’s convention method of proposing constitutional amendments. They may think they are protecting the republic. But it turns out that they are mostly carrying water for the liberal establishment. New research shows that nearly all the arguments […]
Yet Another Multi-State Convention Uncovered
For many years, opponents of a convention for proposing amendments argued that the law governing such a convention was unknowable because the only precedent for such a gathering was the Constitutional Convention of 1787. This was always an ignorant claim, since even high schoolers learn that Annapolis, Maryland hosted a “convention of states” the previous […]
New Study Shows Campaign Disclosure Rules Violate First Amendment
This article was first published at the American Thinker website. Many commentators and politicians have attacked the Supreme Court’s 2010 case of Citizens United v. Federal Election Commission for holding that citizens do not surrender their First Amendment rights when they organize under state corporation law. The Vermont state legislature has even adopted an application […]
What Is Tonnage?
Article I, Section 10, Clause 3 (I-10-3) of the Constitution forbids states from imposing any “Duty of Tonnage” without the consent of Congress. During the Founding Era, tonnage was a levy imposed on the cargo capacity of ships entering or leaving harbors. As the Constitution’s words indicate, it was a species in a larger class […]
Is Obama Violating the “Take Care” Clause?
The Constitution requires the President to “take Care that the Laws be faithfully executed.” This “take Care” language came from 18th century commissions and formal instructions by which higher officials delineated what lower officials were to do. The premier examples were royal instructions to colonial governors, but the Continental and Confederation Congresses used the same […]
