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.)

In recent months, we have heard voices on the Left cry “foul” at the town-hall tactics of Americans upset at current political leadership. The Left professes to be shocked — horrified! — to see Americans defending themselves passionately, unapologetically, and confrontationally. The confrontational tactics the Left now finds so troubling include such activities as holding up really big signs and shouting.

Now, I’ve seen a lot of political hypocrisy in my lifetime, but the Left griping about confrontational tactics has got to be some kind of record.

Of course, leftists have no problem with strong-arming when they do the strong-arming. They’ve been using such tactics for decades to beat up on the rest of us. As if anyone needed reminders –

* Many people remember when “peace” activists were seizing college buildings, disrupting higher education, burning flags, throwing excrement and bricks at law enforcement officers, Continue Reading »

It’s unfortunate that so much of the health care debate is about whether insurance companies — or for that matter, the government — are good or bad. The cost problem, which in turn is the accessibility problem, is due to the third-party payer system, and that system exists whether one uses bureaucratic private insurance companies or bureaucratic government to pay routine bills that patients should be paying themselves.

To put it in perspective: We use car insurance only for major expenses, not routine care. If windshield wiper blades were covered by auto insurance, can you imagine what the cost would be? Continue Reading »

During the Bush administration, many within the dominant culture expressed concern about the constitutionality of detaining several hundred alleged enemy combatants in Guantanamo.

Whenever legal restrictions on abortion are proposed, many express doubt about the constitutionality of interjecting government between patients and their doctors.

But those voices have been mostly silent about the constitutionality of empowering the federal government with decisions over the life, death, and health of three hundred million Americans.

In fact, the constitutional difficulties are profound. This is certainly so for those who believe the Constitution means what our Founders understood it to mean. But it is even true for those interested only in modern Supreme Court jurisprudence.Following are some of the ways in which current health care proposals potentially clash with our nation’s Basic Law: Continue Reading »