Congress had authority to build the interstate highway system. But the construction of other roads and of ground transportation facilities was reserved to the states. The debates over the Constitution’s ratification amply confirm these conclusions.Details
Not raising the debt limit is simply running a balanced budget.
Yes, that’s right: The President and Congress may have to balance the federal budget in the next few days! Horrors!
Let’s get some clarity here. When the federal government hits the debt limit it does NOT mean that it can’t borrow or that it can’t pay existing debts. It just means it cannot continue to run a deficit. Spending becomes limited by revenue, and existing debt may be replaced by new debt. The government just can’t add MORE debt.Details
Freedom and popular government in Britain and America became possible because over the course of many years the English House of Commons, and later the American colonial legislatures, were willing to exert the power of the purse to discipline an overreaching executive.
In Britain, the House of Commons—Parliament’s lower chamber—sometimes defunded the executive in order to curb it. The House was willing do this despite threats from the Crown and “bad press” from the English establishment. In America, the colonial assemblies were willing to defund the king’s governors to check their power.
Freedom likely would have been impossible without the constancy of the “people’s houses,” led by great parliamentary leaders like Edward Coke in England and Patrick Henry in America.Details
The Constitution’s Suspension Clause (Art. I, Section 9, cl. 2) limits when the writ of habeas corpus can be suspended. But the Constitution doesn’t seem to grant the federal government power to suspend the writ in the first place. Why not? And why limit a power never given?
In an Aug. 17 Wall Street Journal piece, constitutional law professor Nicholas Quinn Rosenkrantz infers that Congress has the sole suspension authority from the structure of the constitutional text. He writes:
“Since the Suspension Clause appears in Article I of the Constitution, which is predominately about the powers of Congress, there is a strong argument that only Congress can suspend the habeas writ.”
He concludes that when President Abraham Lincoln suspended the writ, he probably intruded on Congress’s prerogative, and thereby exceeded his constitutional authority. (Professor Rosenkrantz also gives Lincoln credit for trying to cure the constitutional defect.)Details
Conduct surrounding the George Zimmerman case provides additional cause for concern, including prejudicial comments by President Obama and rioting subsequent to acquittal.
Adherence to the rule of law is critical to survival of a free society. This, in turn, requires adherence to five basic standards:Details
NOTE: This is the first of several short commentaries on recent Supreme Court decisions.
The Supreme Court recently ruled that portions of Arizona’s immigration law violate federal statutes. In his dissent, Justice Thomas relied heavily on my own research.
The Independence Institute did not participate in that case. So how did it happen that I was cited? In 2010 the University of Pennsylvania Journal of Constitutional Law published my article on the original meaning of a constitutional provision relevant to the decision. The provision is Article I, Section 4—which the Court called the “Elections Clause,” but is more accurately entitled the “Times, Places and Manner Clause.” The Clause provides that the states may regulate the “Times, Places and Manner of holding Elections for Senators and Representatives,” but that Congress may override most of these regulations.
In the article, I discuss exactly what the Founders meant by the phrase “Times, Places and Manner of holding Elections,” and how Congress’s power over its own elections should be interpreted.
The recent case involved whether Arizona’s requirement that voters show proof of citizenship when registering to vote violated federal law. The Court had to decide how widely to read a federal statute and how widely to read Congress’s authority under the Times, Places and Manner Clause.Details
Much of my scholarly research is designed to set the historical record straight—essentially myth-busting.
For reasons I’ll explain another time, most legal writers are terrible historians. They tend to cherry-pick history to promote a case, and when there aren’t enough historical facts, they sometimes make them up.
My efforts to correct the record are best known in the realm of constitutional law, but my first big project of the kind was actually about condominiums.
In the 1960s, ‘70s, and ‘80s, legal writers were uncritically repeating the story that the ancient Romans invented condominiums, or at least used them widely. This story made no sense at all: Ancient writers don’t mention condominiums, and Roman law actually prohibited schemes whereby one person owned airspace above another person. (The word “condominium,” meaning “co-ownership,” is Latin, but it is of relatively modern, not Roman, coinage.)Details
I recently visited the new Ralph Carr Colorado Judicial Center—the huge and incredibly expensive building complex that now houses the Colorado Supreme Court and Court of Appeals. But even after spending $258 million, they couldn’t get one sign right. An exhibit there has the worthy purpose of educating the public about the rule of law.…Details
Veteran Denver Post (and former Rocky Mountain News) columnist Vincent Carroll writes here about the overweaning ambition of those who support the anti-TABOR lawsuit. That lawsuit claims that because Colorado’s Taxpayer Bill of Rights (TABOR) imposes fiscal limits on the power of the state legislature—that is, restricts lawmakers’ power to tax, spend, and borrow— it violates the U.S. Constitution’s guarantee to each state of a “republican form of government.”
Mr. Carroll thereby indirectly supports a point made earlier in this blog, and supported by an II study: Because almost every state restricts the legislature’s financial powers in some way, the theory of the anti-TABOR lawsuit would threaten clauses in the constitutions of almost every state.Details