Author Archive | Rob Natelson

In a December post, I pointed out that House Speaker John Boehner should not be conceding the initiative on revenue measures to the Senate and President. Doing so not only made no political sense, but it was contrary to the Constitution’s mandate that revenue bills originate in the House.

Mr. Boehner now agrees that he erred.

In my post I wrote,

“Boehner’s job is not to make pre-emptive concessions to the President. It is not to negotiate for presidential permission to pass a budget. His job is to lead the House to adopt a budget in line with the views of those who elected them and the interests of the country. The initial decision to lower, raise, or maintain tax rates should be made in the House. Any negotiations should take place only after the House adopts a budget, and that budget should serve as the starting point. Not the demands of the President.”

Today the Wall Street Journal has an interview with Boehner entitled, “The Education of John Boehner.” It contains the following passage:

“In hindsight, what does he think was his biggest strategic mistake? “What I should have done the day after the election was to come out and say: The House has done its work. The House passed a bill that replaced the sequester with real spending cuts. The House passed a plan extending all of the current tax rates. We passed a budget. We call upon the Senate to do their work.”

A Denver Post article on the passing of Judge Robert Bork (Dec. 20) says, “He advocated a view of judging known as ’strict constructionism’ or ‘originalism.’”Actually, the writer was confused. Those two terms have very different meanings.

An originalist believes the Constitution, like other legal documents, should be construed as understood by the people who adopted it. This is also called “intent-based construction” or (to use Chief Justice John Marshall’s term) “fair construction.” It was the usual way of applying the Constitution until ” progressives” began to dominate the Supreme Court during the New Deal.

Strict construction (not “strict constructionism”), on the other hand, is systematically applying narrower interpretations in cases of ambiguity.

Suppose my wife gives me a grocery list that includes “vegetables.” I know she means to include tomatoes, and if I’m originalist I’ll buy some. But the list is technically ambiguous, because tomatoes are sometimes considered vegetables and sometimes fruits. So if I’m a strict constructionist I’ll resolve the issue by disregarding her intent and not buying them—which shows how deviating from originalism can get you in trouble.

Judge Bork had some interest in originalism, but tended to be a strict constructionist as to constitutional rights and a broad constructionist as to government power. Some of the controversy he generated came from his departures from originalism rather than from adherence to it.

During the Obamacare case before the Supreme Court, the Independence Institute argued that the law’s provisions forcing the states to expand Medicaid were unconstitutional. Neither the Constitution nor case law, we pointed out, permits the federal government to use federal spending programs to coerce the states.

Seven of the nine justices agreed with us, essentially adopting the arguments advanced in our brief.

As a result, the states may consider freely whether or not to accept additional federal funds for the Medicaid expansion. Accepting federal funds might seem to bring the states short-term fiscal benefits. But the fiscal risks of doing so are very great—perhaps eventual bankruptcy.

Dr. Linda Gorman, an economist, is director of the Independence Institute’s Health Care Policy Center. In this article, she explains in detail why state acceptance of the Obamacare Medicaid expansion would be a serious mistake.

Isn’t it interesting—when Republicans win big, lefty spinmeisters talk compromise and bipartisanship. When Democrats win, even if they win small, lefty spinmeisters just want to crush everyone else.

So, not surprisingly, one of these sublapidarians is now arguing that the size of Obama’s win is a mandate for the “progressive” agenda. Beyond absurd.

The results were bad, but they were not that bad. Keep in mind that:

* Any sitting President gets several million votes from the exposure due to incumbancy—votes that have little to do with policy.

* Despite the celebrated demographic changes, Obama really won by the skin of his teeth—around a 2 percent margin, maybe less. Continue Reading →

The November 6 election outcome has many friends of the Constitution dispirited. As so often before, they hoped that by defeating federal candidates contemptuous of constitutional limits and replacing them with others, they could help restore our Constitution.

Obviously, that decades-long strategy has failed—spectacularly.

They also have long hoped that by appointing the right people to the U.S. Supreme Court, they could win case decisions restoring constitutional limits. But after 40 years, that campaign has produced only indifferent results. Actually, worse than indifferent:  When, through the 2010 Obamacare law, federal politicians overreached further than they ever had before—by imposing a mandate ordering almost everyone in the country to buy a commercial product—the Court didn’t even hold the much-weakened line. Rather, the Court upheld the mandate. Continue Reading →

originally published at the Electric City Weblog

The claims were that this was a tipping point election, and those claims were not hyperbole. Barack Obama has, as promised, “transformed” America.

Fifty years ago—even 20 years ago—these election results would have been unthinkable. A largely failed President, hampered by deeply unpopular legislation and a stagnant economy, wins re-election against a highly qualified opponent with unblemished character and a distinguished record. An advocate of late term abortion, free contraceptives, and homosexual marriage who is (with some justification) accused of attacking religious freedom, prevails over the opposition of Catholics, Mormons, and Evangelicals united. The architect of impending national bankruptcy beats a celebrated problem-solver.

His winning issues? Spending even more. . . the inherent wickedness of his opponent’s (“sterling” admits Bill Clinton) business career. . . and federally-subsidized sex. Under pressure, Obama won by moving not to the center but further left.

The America that re-elected President Obama is clearly very different from the America that became history’s greatest nation. That was a nation marked by faith, hard work, courage, and independence. But it is clear that we have now been transformed. Continue Reading →

The Obama administration’s “American Jobs Act”—a token measure forgotten by all but a few—is back in the news.

Just over a year ago, I reported on the constitutional defects of President Obama’s “American Jobs Act” (AJA), a bill clearly designed to force Republicans to vote against it, thereby giving the President political “cover” on his poor handling of the economy.

Apparently, the trick has worked. In an editorial endorsing the President for re-election, the Denver Post sought to defect criticism of Obama’s economic performance by blaming Republicans for rejecting the AJA.

Of course Republicans had to reject it. The AJA was less about jobs than about imposing even more regulations on the economy and providing opportunities for trial lawyers, a key part of the Democratic constituency.

And, as I mentioned in my post last year, key parts of the bill were unconstitutional, and the courts would have voided them even if (by some miracle) it had passed.

In Congress, some bills are introduced in hopes that their passage will solve real problems. Other bills are introduced merely to box in political opponents.

Citizens and journalists need to understand the difference.

By granting certiorari in Fisher v. University of Texas, the Supreme Court has a chance to correct one of the most obnoxious aspects of modern jurisprudence. By that I mean permission given to state universities—in Grutter v. Bollinger(2003)—to use public resources to play racial and ethnic politics.

I worked full time in public higher education for 23 years and part-time for eight years before that. The experience made it clear that (whatever some well-meaning people might believe) university “diversity” policies are not mostly about education, but about indulging ideology and playing ethnic politics.

University “diversity” policies vary in their details. But in their now-prevalent form, they are carefully gerrymandered to skew benefits toward particular groups with left-of-center voting patterns and away from groups without such patterns. For example, the three groups benefited in the Grutter case were African-Americans, Native Americans, and Hispanics—which all just happen to be (surprise!) core constituencies of the National Democratic Party.

Several factors led me to conclude that the correlation between benefits and voting patterns was not merely accidental. They are:

* Those who promote these policies generally have a group-politics-based ideological bent. As a rule, you don’t see the most serious scholars or most rigorous teachers eager to serve on the “diversity” committees.

* There is no effort to address the inconvenient fact some studies show that greater ethnic “diversity” impedes, rather than assists, student achievement (because a class of students with common background has a common vocabulary and cultural platform).

* Groups with histories of discrimination but without the “correct” voting patterns are excluded from benefits. Asian Americans and eastern Europeans are examples.

* The purported benefits of “diversity” don’t induce universities to assure ideological diversity. Continue Reading →

“But still the people themselves must be the chief support of liberty. While the great body of the freeholders are acquainted with the duties which they owe to their God, to themselves, and to men, they will remain free. But if ignorance and depravity should prevail, they will inevitably lead to slavery and ruin.”

— Oliver Ellsworth (at the Connecticut ratifying convention, 1788)

Few Americans today know of Oliver Ellsworth. This is one product of the “ignorance” against which he warned us.

Ellsworth was one of our greatest Founders. He was Connecticut’s most respected lawyer and judge. He was a key delegate to the Constitutional Convention, and served on the committee that produced the critical first draft. (He may have been the delegate most directly responsible for the Constitution’s scheme of enumerated powers.)

After the convention, Ellsworth helped secure his own state’s ratification. He was influential nationally in the ratification debate as the author of the widely-republished “Landholder” essays. Continue Reading →

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 actions apply for a convention for proposing amendments under the Constitution’s Article V.

Madison’s correspondence during 1788 and 1789 sometimes is cited as proving he was opposed to such conventions. My article examines the correspondence, and shows how it is being misunderstood.

The article is called James Madison and the Constitution’s “Convention for Proposing Amendments.” You can read it by clicking here.