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Rob Natelson
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December 18, 2015
The Constitution's Article V, Not the 10th Amendment, Gives State Legislatures Their Power in the Amendment ProcessSome advocates of a convention for proposing amendments are endangering the Article V movement by claiming the states can use the Tenth Amendment to control the convention process. They are doing so even though the judiciary, including the U.S. Supre...
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November 18, 2015
The Silver Lining in the Mistakes at the Assembly of State LegislaturesThe Assembly of State Legislatures (ASL) has adjourned from its latest meeting, still without having produced a set of rules for an Article V amendments convention. I have been an enthusiastic supporter of ASL. I have to acknowledge, however,...
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November 16, 2015
The Silver Lining in the Mistakes at the Assembly of State LegislaturesThe Assembly of State Legislatures (ASL) has adjourned from its latest meeting, still without having produced a set of rules for an Article V amendments convention. I have been an enthusiastic supporter of ASL. I have to acknowledge, however,...
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November 12, 2015
Researching the Constitution's original forceWhen lawyers and judges interpret legal documents, they usually try to ascertain the understanding of the parties to the document – or, more precisely, something they call the “intent” behind the document. The Founding Era phr...
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October 31, 2015
Voting Rules at a Convention of the StatesIn a recent post, I examined suggestions that a convention of the states for proposing amendments adopt a supermajority rule for proposing any amendment. Most commonly suggested is that the convention replace the traditional “majority of states...
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October 26, 2015
Planning for a Convention of the States for Proposing Constitutional AmendmentsAdvocates of a federal balanced budget amendment are closing in on the 34 states necessary to require Congress to call a convention for proposing amendments. Other groups, such as the Convention of States project, are working assiduously to...
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October 9, 2015
What Did The Founders Mean by 'Due Process of Law?'The Fifth and Fourteenth Amendments to the Constitution each have a Due Process Clause. The Fifth Amendment Due Process Clause prohibited the federal government from depriving any person of “life, liberty, or property without due process of law...
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September 26, 2015
How a Famous English Convention Clarifies the Role of a Convention of StatesIn the Anglo-American constitutional tradition, a “convention” can mean a contract, but the word is more often applied to an assembly, other than a legislature, convened to address ad hoc political problems. The “Convention for prop...
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September 12, 2015
Arguing the Constitutional Case Against Birthright Citizenship for Children of IllegalsIn two prior postings (here and here), I listed flaws in the constitutional arguments of opponents of birthright citizenship for children of aliens living here illegally. For children to be American citizens by virtue of the Fourtee...
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September 4, 2015
Birthright Citizenship Opponents Should Not Rely on 14th Amendment Congressional DebatesOpponents of birthright citizenship often cite fragments of the congressional debate over the Fourteen Amendment’s Citizenship Clause to argue that the amendment’s drafters intended to exclude the children of visiting foreigners. Howev...
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August 31, 2015
An Objective Guide to Birthright CitizenshipThis is a guide to the constitutional issue of whether a child is a citizen if born in the United States to alien parents here illegally. If you are simply looking for arguments to bolster your political views, look elsewhere. If you are ...
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August 22, 2015
Term limits for the Supreme Court?Term limits are among the reforms being proposed by advocates of curbing federal government abuses through the Constitution’s Article V amendment process. The idea of congressional term limits has been around for some time. But more re...
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June 30, 2015
The Most Radical Decision Ever?A complete commentary on the same-sex marriage case would take far more than a single short article. Accordingly, I offer only some discrete thoughts: • A big expansion of federal power. Many libertarians believe the courts should use th...
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June 23, 2015
A liberal Supreme Court majority grants businesses Bill of Rights protectionSome on the left now argue that only individuals – not businesses or business associations such as corporations – should enjoy First Amendment rights. To be sure, their argument contradicts decisions made, not just by the current ce...
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April 27, 2015
Obamacare's constitutionality and the Origination Clause: New evidenceOne of the constitutional disputes triggered by the Affordable Care Act (Obamacare) is whether by substituting new material for the original House-passed bill (H.R. 3590), the Senate exceeded its constitutional power to amend the original measure....
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March 20, 2015
Where Chief Justice Burger Likely Got His Anti-Amendment Convention ViewsOpponents of the Constitution’s Article V convention method of proposing amendments tout three letters written in the 1980s by former Chief Justice Warren Burger. In those letters, Burger took a very hard line against any convention of states t...
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March 16, 2015
Why the Senators' Letter to Iran was Both Necessary and AppropriateSuppose you are in a general partnership with Smith. Smith handles day-to-day management, subject to your approval. But recently, he’s been acting somewhat high-handedly. Without consulting you, Smith is busy negotiating a contract with Macr...
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March 3, 2015
Campaign Finance Disclosure Requirements Violate the First AmendmentMany commentators and politicians have attacked the Supreme Court’s 2010 case of Citizens United v. Federal Election Commission for holding that citizens do not surrender their First Amendment rights when they organize under state cor...
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December 15, 2014
The Greatest Constitutional Document of AllIt is said that no second heir to the British throne has been named John because of the reputation of the first. King John (1199-1216) could be charming and efficient, but he was ruthless and utterly untrustworthy, and several times he drove his s...
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December 1, 2014
Principles for Drafting a Balanced Budget AmendmentThe Article V Handbook, which I authored for the American Legislative Exchange Council, emphasizes that citizens pressing for constitutional amendments should avoid fringe or unpopular proposals. The Handbook distills four guiding principles for sele...
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August 18, 2014
Failure to Call Amendments Conventions Helps Explain Modern Federal OverreachingIf president after president failed to veto bills, would it surprise you if congressional power grew at the expense of the presidency? If the Senate never blocked the president’s appointments, would it surprise you if presidential power expande...
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August 5, 2014
Did Obamacare Violate the Constitution's Origination Clause? No. . . and YesTwo years ago, the Supreme Court declared ObamaCare’s penalty for failure to purchase conforming insurance to be a “tax.” Several plaintiffs subsequently sued in federal court arguing that the penalty is invalid for violating the Co...
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July 14, 2014
Contraceptive Coverage: A 'Compelling Government Interest'?The Hobby Lobby case is being hailed by freedom advocates as a great victory. On balance it certainly it is a victory for those who value personal freedom. But it also contains land mines that may one day prove destructive to freedom. One o...
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March 7, 2014
The Lamp of Experience: Constitutional Amendments WorkOpponents of a Convention of States long argued that there was an unacceptable risk a convention might do too much. It now appears they were mistaken. So they increasingly argue that amendments cannot do enough. The “too much...
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January 4, 2014
Lessons for Federalism from Colorado's Pot LegalizationIt's ironic that one of the few states' rights battles won in recent times was Colorado's decision to legalize marijuana in the teeth of federal laws to the contrary. Pot really isn't legal in Colorado, of course. The federal government still bans t...
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August 29, 2013
The Myth of a Runaway Amendments ConventionThe Founders bequeathed Americans a method to bypass the federal government and amend the Constitution, empowering two thirds of the states to call an Amendments Convention. In the wake of Mark Levin's bestselling book, The Liberty Amendments, propos...