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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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).

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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.

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“How could a former con law professor be so ignorant?”

Quite a few people have asked me how President Obama, as a “former constitutional law professor,” could prove so ignorant about the Constitution. This former con law professor suggests two reasons: * Obama was not a “professor” in the sense that most people use the term—that is someone who becomes an expert in the subject…

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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…

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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.

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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.

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II files unique Supreme Court brief in Obamacare case

We have just filed an amicus curiae (”friend of the court”) brief with the Supreme Court arguing that (1) under current Supreme Court rulings, Obamacare’s individual mandate, if it can be justified at all, must be justified under the Constitution’s Necessary and Proper Clause, and (2) scholarly research into the meaning of the Necessary and Proper Clause…

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