The November 6 election outcome has many friends of the Constitution dispirited. As so often before, they hoped that by defeating federal candidates contemptuous of constitutional limits and replacing them with others, they could help restore our Constitution.

Obviously, that decades-long strategy has failed—spectacularly.

They also have long hoped that by appointing the right people to the U.S. Supreme Court, they could win case decisions restoring constitutional limits. But after 40 years, that campaign has produced only indifferent results. Actually, worse than indifferent: When, through the 2010 Obamacare law, federal politicians overreached further than they ever had before—by imposing a mandate ordering almost everyone in the country to buy a commercial product—the Court didn’t even hold the much-weakened line. Rather, the Court upheld the mandate.

The fundamental fallacy behind the federally-centered strategy lies in assuming federal politicians and federal judges will somehow restore limits on federal power. That is implausible as an abstract proposition. And practical experience over many decades also shows that strategy to be a failure.

There are several reasons for the failure of the federal election strategy. First, for this approach to work, you have to elect a majority—actually a super-majority (at least 60 in the Senate)—of constitutionalists to Congress. You also have to elect a person of similar views to the presidency. And you have to do this so they are all in office at the same time.

Second, constitutionalists face inherent handicaps running for federal office: Most are by nature non-political, and therefore don’t make good or persistent politicians. Their views prevent them from promising farmers more subsidies, seniors more health care, or students more loans. And those views also discourage campaign contributions.

Third, even when constitutionalists do achieve federal office, a critical proportion of them forget or weaken their commitments amid the enticements of Washington, D.C. and the fleshpots of power.

The Founders foresaw this sort of thing. That’s why they inserted in the Constitution’s Article V language allowing the states to respond to federal abuse by amending the document. At the behest of 2/3 of the states, all convene together to propose constitutional amendments, which 3/4 may ratify.

This provision was designed explicitly to enable the states to bypass federal politicians.

Incredibly, however, the convention method of proposing amendments has never been used. This largely explains why our governmental system is so unbalanced today.

Year after year, well-meaning people have rejected the convention approach in the vain hope that federal elections are the answer. In the light of Tuesday’s results, they need to re-assess. This reassessment is now more urgent than ever, because even more than the Constitution is at stake. So also is our national solvency.

Today’s Wall Street Journal has an article about a potentially heart-rending development: The movement by many companies, forced by the Obamacare insurance mandates, to permanently replace full-time workers with part-timers.

Obamacare forces businesses to purchase expensive health insurance for full-time workers or pay stiff penalties. Businesses are not permitted to compromise, as many now do, by purchasing cheaper, skeleton policies—even though those are fully adequate for most younger workers. (I covered myself with such a policy when I was in my early 30s, but they will be essentially illegal under Obamacare)

The businesses most affected are in retailing and hospitality, except for those that cater to the ultra-wealthy. The latter, such as the parent company of the Ritz-Carlton Hotels, can afford to meet the health care law’s mandates.

It doesn’t take much imagination to see how this development will affect workers and families, particularly young families. Some will be forced to take multiple part-time jobs. Some will be forced into the ranks of the working poor. Primary-caretaker parents who otherwise would stay at home to care for small children will be forced into outside employment so they can pay their bills.

As Nancy Pelosi promised, only after its passage are we now learning about the details of Obamacare. And specifically, we are learning that it is more than just bad policy: It is an evil, evil law.

Here is our constitution scholar Rob Natelson explaining the ObamaCare Supreme Court ruling on my TV show:

Here is Colorado Springs Gazette editorial page editor Wayne Laugesen on the saga of the Waldo Canyon wildfire.

Here’s another take on the recent Supreme Court’s ObamaCare decision. This time we get to hear from perhaps the most famous constitutional scholar in the country, Randy Barnett of Georgetown University. He sat down with Damon Root of Reason TV for this half hour interview. I’ve watched the whole thing and it is well worth your time. (yes I know. 30 minutes YouTube time is 2.5 days real time). Randy has a couple of insights that are incredibly profound. I’ll mention just one here: that Chief Justice Roberts’ ruling was unique on a level that is still difficult to appreciate. It was so unique that ONLY HE held the position. Not a single law scholar, constitutional lawyer, lower court, academic, law student, man, woman, or child anywhere in the world held the view Justice Roberts espoused. Watch the whole video here.

In case you missed the Hands of my Health Care rally at the state capitol last week, we’ve got a sample of what went down on behalf of health care freedom. In this video, Constitutional scholar and Independence Institute senior fellow Rob Natelson shares his thoughts on the Supreme Courts decision to uphold the individual mandate as a “tax.” He calls the reasoning, “sophistry.” Heh. Go get ‘em Rob!

Extra special thanks to Ari Armstrong for filming Rob and putting it on YouTube.

This aired Friday night, just a day after the SCOTUS decision dropped.

Thanks to our two in-house constitutional law scholars, Dave Kopel and Rob Natelson, we have a couple of fresh off sound editor podcasts on yesterday’s SCOTUS ruling. But before I link to you that, take a look at Dave’s article on the ruling in the SCOTUSblog.

Just hours after the ruling came down yesterday, Dave got on the phone with George Mason University Law professor Ilya Somin for analysis. You can find the iVoices.org podcast here.

Rob Natelson went home immediately yesterday after the decision came down to read the Court’s opinions in their entirety. Today he reported his findings both on his blog and on iVoices.org. Rob’s take is focused primarily on why the argument that the penalty for not buying insurance is really a “tax” has no constitutional basis or founding evidence. Listen to Rob’s iVoices podcast here.

Hey everyone. I know today’s Supreme Court ObamaCare decision is a lot to stomach right now, but I wanted to share with you our Constitutional Law scholar Dave Kopel’s statement on the issue. It should soften the blow considerably.

The Court’s decision against the Medicaid mandate means that Colorado has the right to choose whether or not to drastically expand state spending on Medicaid; Congress cannot coerce Coloradans to do so. The Medicaid mandate decision stops Congress from misusing of its Spending power to violate the 10th Amendment rights of the States; and it is the first time since 1936 that the Court has enforced significant constitutional limits on the Spending power.

The Medicaid mandate would have required Colorado to provide Medicaid to able-bodied childless adults. Simply put, this mandate would have put Colorado on a short path to insolvency.

The Independence Institute is gratified that the Court agreed with both of our amicus briefs, on the Medicaid mandate and on the Necessary and Proper Clause. On the Medicaid mandate, the Court strongly affirmed the fundamental constitutional principle, detailed in our brief, that the States are separate and independent sovereigns. The decision is in line with the Court’s record over the last two decades years in protecting state sovereignty. The Independence Institute has a long record of advocacy in this field; for example, in 1997, II Research Director Dave Kopel and Colorado Attorney General Gale Norton (herself a former Senior Fellow at II), co-authored an amicus brief for eight States in Printz v. United States. There, a 5-4 majority of the Court held that Congress could not order state and local law enforcement officers to carry out federal background checks on handgun buyers.

Today’s decision on the Medicaid mandate was 7-2, with Justices Breyer and Kagan joining the majority. This is one sign of how the Independence Institute’s long-term work is paying off.

The Court also agreed with our amicus brief on the Necessary and Proper Clause. As the research of our Senior Fellow Rob Natelson has explained, the Necessary and Proper Clause confers no additional powers on Congress. The Clause simply restates the general principle that Congress can exercise powers which are merely “incidental” to Congress’s enumerated powers. For example, since the Constitution gives Congress to power to establish the rules of bankruptcy, Congress can enact laws against bankruptcy fraud. The Court’s adoption the originalist interpretation developed by Natelson is the most important decision on the Necessary and Proper Clause since McCulloch v. Maryland in 1819.

Of course we were disappointed that the Supreme Court upheld the individual mandate under a different theory–not that the mandate is a “Necessary and Proper” regulation of interstate commerce, but instead that the mandate is merely a tax.

While the socialists are celebrating the individual mandate that they love and that most Americans loathe, let’s consider the bottom line, according to Lyle Deniston, the most-esteemed and most senior Supreme Court journalist in the United States: “The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.”

There are more legal challenges coming to other parts of Obamacare. The political challenges are going to continue too, and the Independence Institute is going to remain at the forefront–in the courts, and in the court of public opinion–fighting for the day when there will be no more Obamacare, and for the day when all Americans will truly enjoy patient protection and affordable care.

I have a special announcement to make. This Thursday the Supreme Court will release its ruling on the constitutionality of Obamacare. This is going to be the big news of the day (the week? the month? the YEAR!). As soon as the decision drops this Thursday, our constitutional law scholar Dave Kopel is going to get on the phone with a couple of very highly regarded figureheads in the legal world – Richard Epstein and Gary Lawson. Dave will be discussing the fallout from the decision, taking particular care to get into the legal analysis with the two professors. In other words, it is a law nerd’s deepest, darkest fantasy.

I will make sure to post the podcasts here on my blog as soon as they are released Thursday afternoon/evening. Stay tuned!

The Colorado Lawyers chapter of the Federalist Society and we at the Independence Institute are putting on a Continuing Legal Education (CLE) class with two of the greatest legal minds in Colorado. Our Research Director Dave Kopel and Constitution Studies Director Rob Natelson will be presenting continuing education for lawyers on the ObamaCare decisions and the future of Constitutional law Monday, July 9th from 2 to 4pm here at the Independence Institute Freedom Embassy (727 E. 16th Ave, Denver, CO 80203). The program will examine the Supreme Court’s decisions in the ObamaCare cases, which will have likely been announced between June 25th and 28th.

There will be two Continuing Legal Education credits available from taking the class. The cost of the event is only $20 and payment is required no later than July 6th. RSVP by July 6th to Linda Carroll at Carroll6-at-mindspring.com.

For more information, please click the flyer.