• Federalism as Another Separation of Powers [No. 86]
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    Federalism as Another Separation of Powers [No. 86]

    What is federalism? The answer is that federalism, in my view, is another form of the separation of powers. But whereas the separation of powers separates legislative, executive and judicial power at the national level, what federalism does is it separates power between the national government in the United States the state governments in the United States. And it is the case that it was the state governments, or at least popular conventions in nine of the 13 states that created the federal Constitution and therefore the federal government, but the federal government under the US Constitution is a government of limited and enumerated legislative powers. And there are significant…

  • Modern Cases that Violate Original Meaning [No. 86]
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    Modern Cases that Violate Original Meaning [No. 86]

    I think that there are some decisions of the Supreme Court that simply cannot be right in light of the text of the Constitution understood in its original public meaning. One notorious example of this is the Blaisdell case from the New Deal era in which the court upheld state laws which prevented the collection of debts. Well, this is exactly what the contracts clause of the Constitution was written to prevent. If the courts are not going to enforce the collection of the debts, then people are not going to be able to borrow. And so I think it was actually making the, made the Depression worse rather than…

  • Should We Change the Size of Congress? [Article I Initiative]
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    Should We Change the Size of Congress? [Article I Initiative]

    The Constitution requires that the United States conduct a census every 10 years. That is, we add up the number of inhabitants in each state and then we use that as a basis for reapportionment. The House of Representatives is based on the total number of inhabitants in each state. And we divide them up, larger states get more representatives and smaller states get fewer representatives. So every 10 years we update the total from the census and then we reapportion the house to make sure that each state gets the number of representatives that it ought to have based upon its population. Today a typical congressional district is about…

  • Can the Constitution Adapt to Future Circumstances? [No. 86]
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    Can the Constitution Adapt to Future Circumstances? [No. 86]

    Even though the Constitution should be interpreted as other laws are interpreted with their original public meaning, this does not mean that the Constitution can’t adapt to future circumstances. In fact, the Framers did at least three things in the Constitution that allowed it to be flexible and adaptable into the future. First the Framers wrote a lot of the constitutional provisions in broad terms. They said Congress shall make no law abridging the freedom of speech. They didn’t say Congress shall make no law abridging the freedom to write with quill and parchment thus the First Amendment applies to the Internet. The Fourth Amendment protects against unreasonable searches and…

  • Can the Supreme Court Change the Constitution Using Judicial Review? [No. 86]
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    Can the Supreme Court Change the Constitution Using Judicial Review? [No. 86]

    One of the things that is very striking about Article 3 of the US Constitution and which differentiates the US Constitution from most modern constitutions like the constitution of Germany or Italy or Brazil or South Korea is that Article 3 of the Constitution does not contain a judicial review clause. There is no specific clause empowering the courts to exercise the power of judicial review. In fact, no such clause appears anywhere in the Constitution. The way in which the Supreme Court correctly, in my opinion, concluded that there was a power of judicial review in Marbury versus Madison was by building on the argument that Alexander Hamilton made…

  • John Marshall Defines Non-Delegation Doctrine [No. 86]
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    John Marshall Defines Non-Delegation Doctrine [No. 86]

    The Supreme Court first addressed the Non-Delegation Doctrine back in 1825, in an opinion by Chief Justice John Marshall. It was addressed in passing, because they didn’t need to deal with the issue in the case, but Marshall made some observations about that doctrine that still have a lot of relevance today. He noted the big problem is figuring out where the lines are drawn among the Legislative, Executive, and Judicial powers. In that particular case, Congress had given the Federal Courts power to promulgate their own rules of procedure, for how to execute judgements and things like that. The question was whether that was something that needed to be…

  • How Do the Legislative and Executive Powers Balance Each Other? [No. 86]
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    How Do the Legislative and Executive Powers Balance Each Other? [No. 86]

    The framers set up a system not only of separation of powers and not only of a democratized mixed regime, but they also very importantly set up a system of checks and balances where each of the three branches can check and balance the others and what they do. So, for example, Congress has the power of the purse, and the President may be the most powerful man in the world, probably is the most powerful man in the world, but the President literally cannot buy a light bulb for a lamp in the oval office without an appropriation being passed by Congress. So, that’s a check and balance that…

  • Why Should We be Bound by the Constitution? [No. 86]
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    Why Should We be Bound by the Constitution? [No. 86]

    We are not bound by the Constitution of our Founders merely because the Founders themselves wrote it. We are only bound by the Constitution if here and now we the people recognize that that Constitution is our law and more importantly should continue to be our law. And to answer that question, should we be bound by the Constitution? Should the Constitution be our law? We have to understand what a Constitution for a free society was intended to accomplish and whether our Constitution does in fact accomplish those objectives. A Constitution for a free society has to principally do one thing, it has to balance the two competing objectives…

  • Hamilton v. Jefferson: The Central Bank Debate [POLICYbrief]
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    Hamilton v. Jefferson: The Central Bank Debate [POLICYbrief]

    One of the core problems that Hamilton realized having lived through the Revolutionary War with George Washington on the battlefield was the inability of the Continental Congress to raise the requisite amount of funds to help feed and fund the army in battle, and he never wanted to go back to that. And so, Washington as well realized that and so they wanted a central government that will at least be able to have taxing power and the power to do those very things. The Constitutional Convention debated whether or not there should be a national bank, a bank run by the government, and they rejected the idea. But Hamilton…

  • Roe v. Wade: The Power of a Law Review
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    Roe v. Wade: The Power of a Law Review

    There were plenty of articles leading up to Roe versus Wade proposing ways to make abortion a constitutional right. There was a law professor named Roy Lucas at the University of Alabama Law School. He published an article in the, uh, North Carolina Law Review that advocated and sought judicial intervention with respect to the abortion statutes. There were a group of legal scholars and a group of lawyers who were absolutely persuaded that the process of reaching a sufficient consensus that you could enact legislation was too slow. It was too important. We needed to move forward, and the best way to do that is through the courts. Roy…