Hey, if Elizabeth Warren is Indian, then maybe I am, too!

I confess to a several personal emotions in reaction to the Elizabeth Warren case.

Elizabeth Warren, if you recall, is the Harvard Law Professor now running for U.S. Senate in Massachusetts who identified herself to her employers and in law school directories as Native American. But it turns out that she has at most 1/32 Indian ancestry, and even that much can’t be verified.

First emotion: “I get it!”

Anyone who has been a law professor (as I was for 25 years) can understand the incentives for this kind of prevarication. Most law professors want to move up the professorial/professional ladder, and it’s a lot easier to do so these days if you can claim minority affiliation. It is very tough for white law professors to jump to higher-ranked schools (particularly males).


New History of Founding Era Conventions

Very few people know that the Constitutional Convention of 1787 only the last of nearly 20 other conventions in which American colonies, and later states, met to deliberate on specified problems.

In these gatherings, states met as semi-sovereigns; these were essentially diplomatic meetings. The rule for decision was “one state, one vote.”

Those conventions were the model for the “convention for proposing amendments” in Article V of the Constitution.

I have just finished a paper that appears to be the first historical account of the entire series of inter-colonial and interstate conventions. It is called Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments.” I have posted it on the website of the Social Science Research Network where you can read and download it if you are so inclined.


The fatuous “uniqueness” argument for the constitutionality of Obamacare

Obamacare’s supporters argue that the individual mandate is justified because the health care market is unique—it’s something that everyone uses, and a great deal of cost-shifting now occurs in health care. The argument is fatuous for two reasons. First, the cost-shifting is, for the most part, created by Congress itself—through, for example, mandates on hospitals…


The Government as Public Trust: One Roman Emperor Showed It Is Feasible

EDITOR’S NOTE: Misrepresenting Budgets is Fraud. Unless you’re in Elected Office. Then it Gets you Re-Elected

“A public office is a public trust”—common saying, but do we really believe it?

The American Founders did.  Most of them agreed that public officials should be held at least to the standards imposed on private trustees and other fiduciaries—maybe even higher standards, since government officials can do more damage than private fiduciaries. (A fiduciary—from Latin words meaning “confidence” and “faith”— is someone entrusted with the property or affairs of another.) The Founders often referred to public officials as the “trustees,” “agents,” “guardians,” or “servants” of the public. (In those days the legal term “servant” referred to an employee in a job not involving a lot of discretion.)

But in modern America public officials are not held to anywhere near the legal standards imposed on private trustees and other fiduciaries. The corporate corruption some on the Left justifiably complain about pales by comparison to common political behavior.


Why an Amendments Convention is not a “Constitutional Convention”

Sometimes a convention for proposing amendments to the U.S. Constitution is referred to as a “constitutional convention.” That title is both wrong and fatally misleading.

The correct name—given by the Constitution itself—is convention for proposing amendments. Other accurate names are amendments convention, Article V convention, or convention of the states. In the Founding Era and during the early Republic, the last name was most frequently used.

Article V of the Constitution permits either Congress or a “Convention for proposing Amendments” to propose amendments for state ratification or rejection. The convention for proposing amendments was based partly on similar provisions in state constitutions. It also was based partly on the practice of colonies and states sending delegations (“committees”) of delegates (“commissioners”) to work out answers to common problems.


Independence Institute submits brief to protect states from Obamacare bullying

II is submitting not merely one, but two separate brief to the U.S. Supreme Court opposing Obamacare. One will show why the mandate that individuals buy government-approved insurance is unconstitutional. The other shows that Obamacare’s Medicaid mandates inposed on states also are unconstitutional.

Both briefs are based on a powerful blend of the Constitution’s original meaning and modern Supreme Court jurisprudence.

I’ll post on the individual mandate brief later. The Medicaid brief, to be filed in just a few days, addresses a part of Obamacare overshadowed by the individual mandate—but just as damaging to our federal republic, and just as clearly unconstitutional.

Obamacare requires all states to greatly expand government health care within their states or lose ALL Medicaid funding—or at least a portion thereof to be set by the unguided discretion of the bureaucrats in the Department of Health and Human Services. Since federal Medicaid funds are a huge portion of all states’ budgets, the effect is to subordinate state fiscal policy to the whim of federal officials. This is clearly unconstitutional.

Here is what the brief demonstrates: