A Correction They Didn’t Print: The Denver Post and Judge Bork

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…

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Why States Must Shun the Obamacare Medicaid Expansion

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…

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Election: Glass Partly Full

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.

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What now?

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 failedspectacularly.

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.

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America Transformed

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.

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Obama’s “American Jobs Act” Ploy Convinces Some, Anyway

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…

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Supreme Court has chance to end state university ethnic discrimination

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.

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Ignorance + Depravity = Slavery + Ruin

“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.

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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 actions…

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Montana Supreme Court’s “History” Turns Out To Be Weak

The Montana Supreme Court won praise for its recitation of history in its recent corporate finance case, Western Tradition Partnership v. Attorney General (later called American Tradition Partnership v. Bulloch).

But that was before anyone bothered to check the court’s version of history.

Earlier this year, five of the seven state justices held that Montana’s “unique” history of corporate electoral corruption and domination gave Montana government the “compelling governmental interest” needed to abridge First Amendment rights—a compelling interest not present in other states. The justices therefore refused to apply the U.S. Supreme Court’sCitizens United decision, which normally protects the right of associations to campaign independently for and against candidates. Instead, the Montana court upheld a state statute censoring corporate campaign speech.

In June, the U.S. Supreme Court reversed on legal grounds.

But neither the U.S. Supreme Court nor anyone else seem to have questioned the Montana tribunal’s historical claims. A large portion of my professional work is as a legal historian. Earlier this year, I undertook an extensive library fact-check of the court’s claims. I summarized some (although not all) of my conclusions in a published paper. What I learned was that, in the phrase of one writer who reviewed my findings, the Montana Supreme Court had been guilty of promulgating “junk history.”

Here’s a quick summary of my principal findings—some previously unpublished:

First, while claiming that incidents of corporate campaign corruption were once widespread in Montana, the court cited only two events, both over 100 years old. Both turn out to be irrelevant to the claim that Montana has a unique history of corporate electoral corruption. One was the alleged bribery of a pair of district court judges, which had absolutely nothing to do with campaigns or elections. The incident was never proved, and it’s not even clear that corporate money was involved.

The other was a candidate’s bribery of state legislators in a 1899 (!) U.S. Senate election. The U.S. Senate committee report on the incident described only bribery by individuals, not by corporations. The episode did not involve independent expenditures and was not unique to Montana, since similar episodes throughout the country soon led to adoption of the Seventeenth Amendment.

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