If you’ve ever dreamed of being in the same room as not one, but TWO real life geniuses, then you’ll want to attend our program for the grassroots on Sunday, May 15th, from 1:15 to 5pm at the Red Rocks Community College. Both constitutional law professor Rob Natelson and our Second Amendment expert and constitutional law professor Dave Kopel will be educating the class on how to use our constitution to fight federal overreach. By the time the program is over, you will know the constitutional information you need to restore liberty and constitutional government in America! And maybe have a higher IQ through osmosis.

The program discusses:
* Why the Constitution was adopted and what purpose it serves
* Untruths spread about the Founders and the Founding spread by those who seek to discredit it
* How the Constitution was to be interpreted.
* What key provisions in the Constitution really meant.
* How politicians and courts have destroyed limits on federal power and driven America toward bankruptcy
* How you can use the tools provided by the Constitution to restore the Founders’ vision
* And much more!

Please go to our event page here for more detailed information including the class schedule. Space is extremely limited so please RSVP now!

The Independence Institute is pleased to present the upcoming event: A Constitutional Guide to Fighting Federal Overreach. Come join Independence Institute constitutional scholars David Kopel and Rob Natelson on Sunday, May 15 from 1:15 to 5:00 PM at Red Rocks Community College for this important program designed to arm citizens with reliable, factual information they need to help restore liberty and constitutional government in the United States. Participants will also learn how to identify constitutional myths that, intentionally or not, can undermine the cause.

David Kopel is Research Director of the Independence Institute and one of the nation’s leading experts on the Second Amendment. The author of numerous books and articles, he also teaches Advanced Constitutional Law at the University of Denver.

Rob Natelson is Senior Fellow in Constitutional Jurisprudence at the Independence Institute. He was formerly professor of constitutional law at the University of Montana, and has authored numerous books and articles, including the 2010 book, The Original Constitution: What It Actually Said and Meant.

Register online here. Or Call Mary at (303) 279-6536, Ext. 102. Cost is ten dollars and space is limited.

Our resident legal and constitutional scholar Dave Kopel participated in this incredibly important amicus brief for the 4th circuit court of appeals. The amicus argues that the individual mandate to buy health insurance found in ObamaCare is not constitutional, neither through the commerce clause nor the necessary and proper clause. The brief was filed by the Washington Legal Foundation, in Virginia v. Sebelius. The lead attorney is Ilya Somin, of George Mason Law School. You can read more about Ilya Somin and his writing over at the Volokh Conspiracy law blog where Dave also contributes. I have a strong feeling that this case will be yet another blow dealt to the individual mandate and ObamaCare in general.

Is the Patient Protection and Affordable Care Act consistent with the original meaning of Constitution? David Gans (at Balkinization) and Charles Fried (testifying before the Senate Judiciary Committee) agree that the answer is “yes.” Both of them point to Gibbons v. Ogden and McCulloch v. Maryland.

Gibbons is certainly a good foundation for advocates of strong federal powers. As the Supreme Court later wrote in Wickard v. Filburn, Gibbons “described the Federal commerce power with a breadth never yet exceeded.” Indeed, Wickard itself did not purport to go any further than Gibbons had gone. Yet too many people know Gibbons only from expurgated versions in casebooks; thus they rely on some general phrases in Gibbons, and they infer that the commerce power encompasses everything that has interstate effects. Yet reading the full text of Gibbons ends the need to build speculation upon speculation. According to Chief Justice Marshall, the commerce power does not encompass:

that immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description....

(Emphasis added.) Of course one may argue that Chief Justice Marshall was wrong, and that it would be better if “health laws of every description” could be enacted by the national government. But that would not be an originalist argument, and it would certainly not an argument for which one could cite Gibbons v. Ogden.

Some advocates of the current health control law also point to McCulloch v. Maryland to bolster their favored interpretation of the Necessary & Proper clause. These interpretations are not consistent with Chief Justice Marshall’s own understanding of what McCulloch said, and what he believed that “necessary and proper” includes. When McCulloch was decided, it came under fierce criticism, and so Chief Justice Marshall penned a series of pseudonmyous newspaper essays defending the decision. (That the essays, like The Federalist, were written pseudonymously makes them no less valuable.) The essays are collected in the book John Marshall’s Defense of McCulloch v. Maryland, published by Stanford University Press in 1969, and edited by Gerald Gunther. Having studied the essays, Professor Gunther wrote in his introduction, “Clearly these essays give cause to be more guarded in invoking McCulloch to support views of congressional power now thought necessary.”

Marshall explicitly agreed with a critic of McCulloch “that the insertion of the words necessary and proper in the last part of the 8th section of the 1st article, did not enlarge powers previously given, but were inserted only through abundant caution.” (Emphasis in original.) In Marshall’s understanding, any power necessarily includes its incidents. At the time of the Founding and the Early Republic, the legal definition of “incidents” was that they are inferior powers, and cannot be equal to or greater than the enumerated power to which they pertain. Regarding incidental powers, wrote Marshall, “Their constitutionality depends on their being the natural, direct, and appropriate means, or the known and usual means, for the execution of the given power.”

In a forthcoming article in Engage (the journal of The Federalist Society’s practice groups), Rob Natelson and I penned a hypothetical opinion on a federal health control law, written entirely in Chief Justice Marshall’s voice. The opinion consists mainly of direct quotes from Marshall. (Rob, who knows the law and legal culture of the Founding Era as well as anyone in the world, is the lead author.)

It would be difficult to make a serious argument that the original meaning of the commerce clause and the necessary & proper clause is broader than Chief Justice Marshall thought them to be. Marshall’s vigorous readings of those clauses were hardly uncontested by other Founders. For example, James Madison criticized the reasoning, although not the result, in McCulloch. (As President, Madison had signed the bill creating the Second Bank of the United States, which he thought to be inconsistent with original meaning, but validated by subsequent practice.)

The current U.S. Supreme Court and the Circuit Courts of Appeal do not always follow original meaning, but to the extent that they do care about it, the PPACA in general and the mandate to purchase congressionally-designed health insurance in particular cannot be considered constitutionally valid under the commerce clause or the necessary & proper clause.

How prescient we must be at the Independence Institute. Yesterday our Constitutional law expert and Senior Fellow Professor Rob Natelson did a podcast on how to interpret the constitution that was based on his most recent blogpost at our Constitution Studies website. The podcast explained how our constitution is a legal document written mostly by lawyers. As such, the words and phrases in the document have very specific meaning – mostly 18th century legal meaning. When the framers wrote the word “commerce” for example, that actually meant something specific to them. Today the word means very little. Why? Because when you stretch a word to mean virtually anything and everything under the sun, the word is rendered useless and means nothing. Meaning is also derived from context. The framers wrote in the context of separating from the crown and creating a document to protect the individual from the state. This context, along with the 18th century legal context, is lost on most people attempting to interpret the constitution.

Now onto the prescient part. David Harsanyi wrote an entertaining op-ed today in the Denver Post explaining that the constitution “has become too complex for many of us to decipher, and thus irrelevant.” He’s being tongue-in-cheek of course, but the point is well taken. Many people feel that way. It’s why most any legislation can be both supported and unsupported by our founding document. When words have no meaning and context, just about anything can be justified and “authorized” by our constitution. Case in point: ObamaCare.

So you see, that’s just how good we are here at the Independence Institute. We do podcasts on op-ed’s that haven’t even come out yet. Hmmm… I wonder what might happen if we do a podcast on the lottery numbers that haven’t come out yet…

We’ve all heard the claim many times before, and at this point, it almost seems like common knowledge – the Constitutional convention held in Philadelphia in 1787 was a “runaway.” The mainstream view holds that the delegates came to Philadelphia simply to amend the Articles of Confederation, yet they left Philly with an entirely new document. Therefore, those assembled to merely improve what already existed far exceeded the authority granted to them by the states. This view, albeit widely held, is factually incorrect. According to Professor Rob Natelson, one of the foremost authorities on the founding era, disagrees with the charges levied against our founding fathers. Indeed, he’s written an entire book on the subject titled, “The Original Constitution: What It Actually Said and Meant” to exonerate the delegates and present new research and evidence of our nation’s founding. It turns out that much of the vernacular used during the founding era and even the law itself is much different than today. These differences require the curious mind to understand the language of the time and study the culture of law with a careful eye. In this new iVoices.org podcast, Rob sits down with Justin Longo to discuss why the overwhelming majority of delegates sent by the states had the authority to not only amend the Articles of Confederation, but to construct an entirely new document. Don’t believe it? Listen here and you be the judge.

A recent issue of the Michigan Law Review features Jack Balkin’s article Commerce. (109 Mich. L. Rev. 1 [2010].) The article argues that in the original meaning of the Constitution, “commerce” was understood to include a broad variety of social relationships, including relationships that had nothing to do with economic activity. Accordingly, writes Balkin, the original meaning of the interstate commerce power justifies not only the entire New Deal, but almost every expansion of congressional power since then.

In a reply article for the Michigan Law Review’s on-line supplement, First Impressions, Rob Natelson and I challenge Balkin’s analysis. We argue that “commerce”–as it was actually used in the Constitution–includes mercantile exchange, and a few closely-related activities, such as navigation.

For example, for dictionary definitions of “commerce,” Balkin relies entirely on the 1785 edition of Samuel Johnson, whose first word in the definition of “commerce” is “intercourse.” We look at the 1786 edition of Johnson, as well as six other influential dictionaries of the period. All of these dictionaries have less expansive definitions.

In addition:

Balkin entirely fails to address a decisive historical fact: during the ratification debates, the Constitution’s advocates repeatedly and clearly represented to the general public many areas over which the new government would have no power at all, at least within state boundaries. Their lists included education, social services, real estate transactions, inheritance, religion, manufacturing, agriculture and other land use, business licensing, most road building, civil justice within states, local government, and control of personal property outside mercantile commerce. All of these are within Balkin’s broad definition of “commerce,” but control over all, the Federalists informed the public, were outside federal authority.

As for whether the expansions of federal power during the presidencies of FDR, LBJ, GHWB, BHO, et al., are constitutionally justifiable, we leave that issue to whatever theory of living constitutionalism (or, per Woodrow Wilson, discarding the Constitution as outmoded) that one wishes to adopt (or to reject). We disagree with the first sentence of Balkin’s article, that “A good test for the plausibility of any theory of constitutional interpretation is how well it handles the doctrinal transformations of the New Deal period.” For otherwise, he writes, “we could not have a federal government that provides all of the social services and statutory rights guarantees that Americans have come to expect. The government could neither act to protect the environment nor rescue the national economy in times of crisis.”

We disagree. The original meaning is what it is, not what people in the 21st century might wish it to be. “The original meaning of the Constitution does not depend on whether it comports with Jack Balkin’s policy preferences on the welfare state any more than whether it comports with John Yoo’s policy preferences on habeas corpus or John McCain’s policy preferences on campaign speech.” Of course the judicial and political branches, the legal academy, and the American public do not necessarily have to consider themselves restrained by original meaning.

Incidentally, for any law student who aspires to be a better legal writer, I highly recommend reading the Balkin article, or any other Balkin article. Balkin is superb at presenting sophisticated topics in a straightforward style that is engaging to read. Particularly outstanding is Balkin’s Framework Originalism and the Living Constitution. Whether or not you are entirely persuaded that Balkin’s particular synthesis of originalism and living constitutionalism should  be the framework for constitutional interpretation, Balkin’s description of when, why, and how courts actually decide to enforce or not enforce various parts of the Constitution is very perceptive.

“The Influence of the State and Federal Governments Compared,” from the New York Packet, by James Madison. My essay thereon is here, at Constituting America’s series on The Federalist.

Bottom line: even taking into account the many changes over the last two and quarter centuries, Madison was generally right.