December 18, 2015

The Constitution's Article V, Not the 10th Amendment, Gives State Legislatures Their Power in the Amendment Process

Some advocates of a convention for proposing amendments are endangering the Article V movement by claiming the states can use the Tenth Amendment to control the convention process. They are doing so even though the judiciary, including the U.S. Supre...

November 18, 2015

The Silver Lining in the Mistakes at the Assembly of State Legislatures

The Assembly of State Legislatures (ASL) has adjourned from its latest meeting, still without having produced a set of rules for an Article V amendments convention. I have been an enthusiastic supporter of ASL. I have to acknowledge, however,...

November 16, 2015

The Silver Lining in the Mistakes at the Assembly of State Legislatures

The Assembly of State Legislatures (ASL) has adjourned from its latest meeting, still without having produced a set of rules for an Article V amendments convention. I have been an enthusiastic supporter of ASL. I have to acknowledge, however,...

November 12, 2015

Researching the Constitution's original force

When lawyers and judges interpret legal documents, they usually try to ascertain the understanding of the parties to the document – or, more precisely, something they call the “intent” behind the document.  The Founding Era phr...

October 31, 2015

Voting Rules at a Convention of the States

In a recent post, I examined suggestions that a convention of the states for proposing amendments adopt a supermajority rule for proposing any amendment. Most commonly suggested is that the convention replace the traditional “majority of states...

October 26, 2015

Planning for a Convention of the States for Proposing Constitutional Amendments

Advocates of a federal balanced budget amendment are closing in on the 34 states necessary to require Congress to call a convention for proposing amendments. Other groups, such as the Convention of States project, are working assiduously to...

October 9, 2015

What Did The Founders Mean by 'Due Process of Law?'

The Fifth and Fourteenth Amendments to the Constitution each have a Due Process Clause. The Fifth Amendment Due Process Clause prohibited the federal government from depriving any person of “life, liberty, or property without due process of law...

September 26, 2015

How a Famous English Convention Clarifies the Role of a Convention of States

In the Anglo-American constitutional tradition, a “convention” can mean a contract, but the word is more often applied to an assembly, other than a legislature, convened to address ad hoc political problems. The “Convention for prop...

September 12, 2015

Arguing the Constitutional Case Against Birthright Citizenship for Children of Illegals

In two prior postings (here and here), I listed flaws in the constitutional arguments of opponents of birthright citizenship for children of aliens living here illegally. For children to be American citizens by virtue of the Fourtee...

September 4, 2015

Birthright Citizenship Opponents Should Not Rely on 14th Amendment Congressional Debates

Opponents of birthright citizenship often cite fragments of the congressional debate over the Fourteen Amendment’s Citizenship Clause to argue that the amendment’s drafters intended to exclude the children of visiting foreigners. Howev...

August 31, 2015

An Objective Guide to Birthright Citizenship

This is a guide to the constitutional issue of whether a child is a citizen if born in the United States to alien parents here illegally.  If you are simply looking for arguments to bolster your political views, look elsewhere.  If you are ...

August 22, 2015

Term limits for the Supreme Court?

Term limits are among the reforms being proposed by advocates of curbing federal government abuses through the Constitution’s Article V amendment process. The idea of congressional term limits has been around for some time.  But more re...

June 30, 2015

The Most Radical Decision Ever?

A complete commentary on the same-sex marriage case would take far more than a single short article. Accordingly, I offer only some discrete thoughts: • A big expansion of federal power. Many libertarians believe the courts should use th...

June 23, 2015

A liberal Supreme Court majority grants businesses Bill of Rights protection

Some on the left now argue that only individuals – not businesses or business associations such as corporations – should enjoy First Amendment rights.  To be sure, their argument contradicts decisions made, not just by the current ce...

April 27, 2015

Obamacare's constitutionality and the Origination Clause: New evidence

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....

March 20, 2015

Where Chief Justice Burger Likely Got His Anti-Amendment Convention Views

Opponents of the Constitution’s Article V convention method of proposing amendments tout three letters written in the 1980s by former Chief Justice Warren Burger. In those letters, Burger took a very hard line against any convention of states t...

March 16, 2015

Why the Senators' Letter to Iran was Both Necessary and Appropriate

Suppose you are in a general partnership with Smith. Smith handles day-to-day management, subject to your approval. But recently, he’s been acting somewhat high-handedly. Without consulting you, Smith is busy negotiating a contract with Macr...

March 3, 2015

Campaign Finance Disclosure Requirements Violate the First Amendment

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 cor...

December 15, 2014

The Greatest Constitutional Document of All

It is said that no second heir to the British throne has been named John because of the reputation of the first. King John (1199-1216) could be charming and efficient, but he was ruthless and utterly untrustworthy, and several times he drove his s...

December 1, 2014

Principles for Drafting a Balanced Budget Amendment

The Article V Handbook, which I authored for the American Legislative Exchange Council, emphasizes that citizens pressing for constitutional amendments should avoid fringe or unpopular proposals. The Handbook distills four guiding principles for sele...

August 18, 2014

Failure to Call Amendments Conventions Helps Explain Modern Federal Overreaching

If president after president failed to veto bills, would it surprise you if congressional power grew at the expense of the presidency? If the Senate never blocked the president’s appointments, would it surprise you if presidential power expande...

August 5, 2014

Did Obamacare Violate the Constitution's Origination Clause? No. . . and Yes

Two years ago, the Supreme Court declared ObamaCare’s penalty for failure to purchase conforming insurance to be a “tax.” Several plaintiffs subsequently sued in federal court arguing that the penalty is invalid for violating the Co...

July 14, 2014

Contraceptive Coverage: A 'Compelling Government Interest'?

The Hobby Lobby case is being hai​led 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 o...

March 7, 2014

The Lamp of Experience: Constitutional Amendments Work

Opponents of a Convention of States long argued that there was an unacceptable risk a convention might do too much.  It now appears they were mistaken. So they increasingly argue that amendments cannot do enough.  The “too much...

January 4, 2014

Lessons for Federalism from Colorado's Pot Legalization

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 bans t...

August 29, 2013

The Myth of a Runaway Amendments Convention

The Founders bequeathed Americans a method to bypass the federal government and amend the Constitution, empowering two thirds of the states to call an Amendments Convention. In the wake of Mark Levin's bestselling book, The Liberty Amendments, propos...