New Flyer Explains How the States Can Use the Constitutional Amendment Process to Curb the Feds (Article V)
by Rob Natelson The Founders built various checks and balances into the Constitution. One of the most important was the power of state legislatures to propose constitutional amendments to curb an abusive federal government. The Founders placed the procedure in the Constitution’s Article V. The Founders would be astonished—and chagrined—to learn the process has never […]
The Myth of the “Conservative Supreme Court”
Is the current U.S. Supreme Court conservative? No, it is not. And certainly not if you define “conservative” as interpreting the Constitution according to the understanding of the makers. The claim that the Court has a conservative majority is certainly widespread. Googling the phrase “conservative supreme court” turned up over 38 million hits. The more […]
Can the President Raise the Debt Limit Unilaterally? Hell no! — Part II
The claim—partly silly, partly dangerous—that President Obama may raise the debt limit unilaterally without the approval of Congress is again being raised. I addressed it previously here. Now it has been further debunked in a Wall Street Journal op-ed authored by David B. Rivkin and Lee A. Casey. Under the Constitution, only Congress may incur […]
A Response to Professor Seidman
Should we acknowledge that the U.S. Constitution is filled with “archaic, idiosyncratic and downright evil provisions,” and “extricat[e] ourselves from constitutional bondage” by cashiering the document? “As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken,” argues Louis Michael Seidman, tasked with […]
Did the Founders’ Constitution Permit Federal Tort Reform?
NOTE: The photo shows the author at the sundial in James Madison’s garden at Montpelier, VA. On behalf of the national Chamber of Commerce, super-lawyer Paul Clement has authored a new paper arguing that federal tort reform is constitutional. The paper begins with a section purporting to show that the Framers’ Commerce Clause was broad […]
“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 […]
