There have been some on-line discussions recently of whether a federal mandate that individuals obtain health insurance would violate the U.S. Constitution. This issue is distinct from the issue of whether other sorts of government health programs – such as single-payer – would be constitutional.

The recent election results in Virginia and New Jersey – representing in part a strong repudiation of the threats to freedom over the past year – have energized many pro-liberty activists. It is imperative that we keep the pressure on. 

But we can be sure the other side will try to trick us into damaging statements in order to discredit us, or lure us into time-wasting strategies.  So here are a few things to remember: 

*          Let’s keep our eye on the ball. The ultimate goal of most in the pro-freedom and “Tea Party” movements is to restore constitutional limits to the federal government. Our Constitution – not any peripheral or personal causes – is what we are working for.

 *          Swarm, swarm, swarm.  The focus for the short-term has to be to continue to “swarm” our elected representatives, get in their faces, and tell them over and over that more deficit spending or tax increases are simply unacceptable. So also is any major expansion of government control, particularly a takeover of heath care.

 *          Restoring limits on the feds.  The focus long-term has to be one or more constitutional amendments to put the federal government’s house back in order and protect future generations from the kinds of assaults on our freedom we have faced over the last year. When a system breaks down, sometimes you have to patch up to set it right — just as our fathers and grandfathers adopted the 22^nd Amendment to re-establish the two-term presidential tradition that Franklin Roosevelt had disregarded.  That’s our situation now.

 *          2010 elections. The focus medium-term is now the 2010 elections – not just for Congress, but particularly on the state level. This is because constitutional amendments to curb Congress’s powers are probably not going to come from Congress. The states will have to use the Constitution’s state-proposal procedure.

 *          Don’t let the bad guys marginalize you. Talk of actions such as secession suggest that we are the ones willing to destroy our constitutional system – when in fact the opposition has that dubious distinction.

 *          Work smart.  The other side has a lot of people who work full-time in politics or who work for the government, which sometimes amounts to nearly the same thing.  That’s in addition to Soros money.  So we have to carefully husband our resources – devote your time and energy only to things that make sense in view of our goals. 

*          Don’t waste your time on impossible causes.  Here are a few causes that are certain time-wasters: (1) impeaching Obama (impossible while the Dems control Congress, even assuming there are grounds to do so), (2) recalling U.S. Senators or Congressmen before their terms are up (there is no recall procedure authorized by the Constitution or federal law), and (3) secession movements (which, besides conceding the Constitution to the other side, overlooks the fact that they have the nuclear weapons). 

*          Again, keep your eyes on the ball – restore the Constitution. That means letters to the editor, candidate identification, working in the political party of your choice, fundraising, keeping in touch with others in the pro-freedom movement, and educating yourself by reading websites like The Cauldron and listening to great commentators like Jon Caldara. 

Rob Natelson is a constitutional law professor at the University of Montana, and runner-up in the 2000 “open primary” for Governor of Montana. His opinions are his own, and should not be attributed to any other person or institution.

     There is an on-going debate about the extent to the First Amendment bars congressional campaign finance limits. That debate is important, but it doesn’t address a more fundamental question: What empowers Congress to regulate congressional campaign finance at all?

         Remember that the Constitution gives Congress only the powers the Constitution lists. All other powers are reserved to the states and people by the Ninth and Tenth amendments.

         Regulation of campaign finance is said to be part of Congress’s power to govern the “Manner” of congressional elections under the Time, Manner, and Place Clause (Article I, Section 4, Clause 1).  That provision says the states shall prescribe “the Manner of holding Elections for Senators and Representatives,” but that Congress may (with one restriction) “make or alter such Regulations.”

         This past summer, I investigated to find out what the Founders meant by the “Manner of holding Elections.” I found a lot of evidence, most of it unexamined by prior researchers. Interestingly, almost all the evidence suggests Congress was not given power to regulate campaign finance. That was a power reserved to the states and the people. Continue Reading »

There is abundant evidence that government “stimulus” programs hurt the economy more than they help.  The auto industry is getting a taste of that right now.  The “Cash for Clunkers” program accelerated sales for a while, but since then car sales have crashed.

But that describes only the damage to the auto business.  Think about all the goods that weren’t bought or the investments that weren’t made because the government diverted all that cash into a one-time spending spree.

Now two economists have put a price tag on the damage.  A new study by Burton A. Abrams and George R. Parsons, both of the University of Delaware, found that the economic damage from the program exceeded the benefit by $2000 per car!

So instead of helping the economy, the “Cash for Clunkers” program made the situation even worse.

“The words ‘green’ and ‘sustainable’ are everywhere,” writes reporter Betsy Cohen in a Montana daily paper. “Used casually and broadly, they seem to have become attached to nearly every facet of daily life. . . ”

Although the story details how businesses are using “green” and “sustainable” in their marketing, it doesn’t take much investigation to learn that most of the talk along that line is fueled by government agencies (such as the university I work at) and by people who benefit from government.

Of course, the words “green” and “sustainable” actions are proffered alternatives to what is supposed to be a global environmental crisis — a crisis requiring massive expansion of national governments and international regulations.

But one of the most prominent recurring themes in American history is the federal government’s resort to crises – whether real, exaggerated, or wholly imaginary – to expand its power. This is true even when the crisis, if any, was created by government itself.

The Civil War was used to justify suspending the writ of habeas corpus in states where no fighting was taking place. World War I and the “Red scare” supposedly justified throwing dissenters in jail. The Great Depression was an excuse for a vast expansion of federal control over the economy, even though the Depression was largely the federal government’s own fault. World War II was used as a reason to expand that federal control further, and to herd tens of thousands of innocent American citizens of Japanese ancestry into concentration camps. Continue Reading »

The anti-free speech aspects of federal campaign finance reform laws have been getting a lot of attention lately. As those laws come before the Supreme Court, their “progressive” advocates have been urging the Court to be “restrained” rather than “activist,” and uphold those laws.

There is a delicious irony here.

When “progressives” took over the Supreme Court in the twentieth century, they largely re-wrote the Constitution.  Continue Reading »

There has been some blog attention (see, e.g., here) recently to a pair of U.S. District Court rulings that the federal Fish and Wildlife Service did not meet legal standards when it limited permission to possess eagle feathers for religious purposes to members of recognized Indian tribes only. (U.S. v. Wilgus & U.S. v. Hardman).

There has been less attention to the constitutionality of the government eagle-feather restrictions.

If you believe that the Constitution, like virtually every other legal document, should construed according to its original meaning, you might well question whether the federal government has power to ban possession of eagle feathers at all. The Constitution gives Congress power to regulate interstate commerce, but the Founding-Era record makes it clear that this did not authorize flat bans on particular kinds of property. So to justify such a ban under the Commerce Power, the government must rely on the very strained interpretations of that power adopted by the modern Supreme Court.

Another possible basis for a federal ban are statutes adopted under migratory bird treaties. The notion that treaties allow Congress to adopt laws outside its enumerated powers was adopted by the Supreme Court in the 20^th century. But it, too, has been challenged recently by a top constitutional scholar writing in the nation’s leading law journal.

Still more importantly, the First Amendment prohibits the federal government from creating an “establishment of religion.” And both under the original meaning of the First Amendment and under modern Supreme Court interpretations, the federal government may not favor some religions over others. If a statute directly hampers religious exercise, the government may exempt religious adherents. But the government cannot exempt some of the hampered religions and refuse to exempt others.

While I can’t claim to have researched the subject exhaustively, a rule that limits an exception to Indians in recognized tribes — thereby excluding religions of non-recognized tribes as well as non-Indian religions — certainly looks like a constitutional violation to me.

(Rob Natelson, a leading scholar of the American Founding, teaches Constitutional Law and First Amendment Law at the University of Montana; his opinions, of course, are his own.)