My “Amicus Brief” in Bond v. United States

In sum, there are at least two ways the Court in Bond can accommodate federalism without undermining national foreign policy. It can construe ambiguous treaties not to reach purely local conduct. And it can require Congress to make a plausible showing that federal regulation of local conduct is needed to prevent material breach of treaty obligations. Either approach would allow Bond to win the case without undermining national treaty power.

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ObamaCare’s Original Sin

Originally published at American Thinker

Democrats tell us that ObamaCare is “the law of the land,” and that the Supreme Court declared it constitutional, and that we should get used to it — it’s here to stay. Actually, the Court found ObamaCare unconstitutional on two counts, but let it pass anyway.

The problem for defenders of ObamaCare is that its court challenges just keep coming. One place to check up on them is the website Health Care Lawsuits. In September, American Enterprise Institute ran an article by Chris Conover headlined “Will the Courts Derail Obamacare?” The article covers several of the ongoing court challenges to ObamaCare, including the status of each case. (The article also ran at Forbes.)

On October 5, National Review ran a terrific article by former federal prosecutor Andrew McCarthy that addresses a specific legal challenge: 

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Linda Greenhouse: A Tree Grows in Canada (and Are Women “Persons”?)

In The New York Times, Linda Greenhouse has an anti-originalist column A Tree Grows in Canada – with some interesting Canadian history.  As she explains, the British North America Act (effectively Canada’s original constitution) provided for “qualified persons” to be appointed to the Senate.  When a woman, Judge Emily Murphy, sought appointment, she was rejected because (it was said) women did not qualify as “persons.”  As Greenhouse continues the story:

Judge Murphy and four other Alberta women, who were to become known as the Famous Five, formally petitioned the federal government, which then put a question to the Supreme Court of Canada: “Does the word ‘Persons’ in Section 24 of the British North America Act include female persons?”

The Supreme Court said no, on grounds that would warm the heart of some current members of the United States Supreme Court. Whether it would be desirable for women to be eligible for senatorial appointment was beside the point, Chief Justice Frank Anglin wrote in his opinion. What mattered was what the drafters of the 1867 statute intended, and the words they wrote had to “bear today the same construction which the courts would, if then required to pass upon them, have given to them when they were first enacted.”

Based on this, Greenhouse doesn’t understand originalism, and neither did Chief Justice Anglin (about whom I otherwise know nothing).  The decision is silly, and no modern originalist would follow it, nor would it warm anyone’s heart on the current Court.  It’s possible (even likely) that the drafters of the Act only had only men in mind as Senators.  But they did not write “men,” as they easily could have.  (Voting laws of the time typically referred to “male” citizens, for example).  They wrote “persons.”  In 1867, I cannot imagine that in any ordinary legal language, in Britain or Canada, “persons” meant “only male persons.”  A word in a statute should be given its ordinary public meaning, regardless of subjective intentions harbored by its drafters.

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Originalism and the Supreme Court’s 2013 Term

At the National Constitution Center’s “Constitution Daily” blog, Doug Kendall and Tom Donnelly (Constitutional Accountability Center): Big Battles Brewing over the Constitution’s Original Meaning.  From the introduction: For decades, debates over the Constitution divided along familiar lines. Progressives professed faith in a “living Constitution,” while conservatives claimed fidelity to originalism. In recent terms, however, this dynamic…

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Marco Simons on Originalism and Daimler v. Bauman

At Concurring Opinions, Marco Simons (EarthRights International) has this post on the Daimler v. Bauman case (argued at the Supreme Court 10/15):  Is There a Constitutional Right to Corporate Separateness?  Mr. Simons and I have been on opposite sides of some cases in the past, but I think there is something to his originalist argument here: The Ninth Circuit…

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