Our resident constitutional scholars, Dave Kopel and Rob Natelson, joined forces to write an article for the National Law Journal titled, “Health insurance is not ‘commerce.” In the article, Kopel and Natelson make the case that one solitary and erroneous Supreme Court case from 1944 is to blame for the false idea that buying insurance does indeed qualify as “commerce.” Commerce that the federal government — congress — can regulate. But as the authors state,

But that assumption is wrong: In fact, the congressional power to regulate “Commerce…among the several States” does not include authority to regulate health insurance. Under the Constitution, health insurance is a matter of state, not federal, jurisdiction.

Kopel and Natelson believe that when the case is brought before the Supreme Court, the court will have an opportunity to overturn this erroneous precedent and return to an original understanding of our founder’s definition of the word commerce. Therefore, insurance markets will rightly be placed back in the hands of state and local governments.

Our resident constitution legal expert and original understanding junkie Rob Natelson has made it his business to bust all of the myths that surround our founding fathers. One of these myths claims that the founders cared very little for property rights, and to demonstrate this, they failed to properly protect property in our constitution. (Say that five times fast). Rob calls hooey on this idea in the latest post on his blog Our American Constitution. Not only that, he felt compelled to get into the studio and do a podcast with one of my minions. In this iVoices.org podcast, Rob clears the air and vindicates our founders from the claim that they did not care for property rights. If you read his blog post, you’ll see a fairly comprehensive list of protections they built into the constitution to protect our property rights.

Bravo Rob, keep doing the dirty work and myth busting your heart out. We love seeing this stuff.

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.

If you’ve ever tried to find high quality research that supports an “originalist” perspective of our U.S. Constitution and founding, you already know how difficult it can be. It seems that the majority of the scholarship – especially at the university level – is critical and sometimes outright hostile to an original understanding of our founding documents. The question is why? Professor Rob Natelson, our resident constitutional scholar, explains why in this new iVoices.org podcast. And believe me, if anyone knows the difficulties in doing unbiased constitutional scholarship, it’s Rob Natelson. The man has published more high quality founding era research than most people could ever read in their lifetime. To begin your journey into Rob’s world, visit his blog at constitution.i2i.org. In particular, check out this post on his personal struggle working within the university system and trying to uncover never before seen insights into our founding era.

Remember when I told you a few days back that “extraordinary claims demand extraordinary evidence?” Our resident constitutional law scholar and senior fellow Professor Rob Natelson agrees with me. As Rob puts it in this insightful article featured in both the Colorado Springs Gazette and the Denver Daily News, the Constitution’s commerce power does not permit ObamaCare. (Nor does anything else in the constitution for that matter). Rob’s article is really worth a read. Even if you think you know everything about our constitution, this article will enlighten you. It’s unfortunate the ObamaCare apologists will close their eyes and plug their ears to all of Rob’s evidence. It’s better when you don’t know these stubborn facts right?

Constitutional mistakes just keep coming out of the Denver Post.

One was the editorial board’s assessment that “ObamaCare” is somehow constitutional.

Two more mistakes have just come from Post columnist Mike Littwin. In his Oct. 23 profile of the Tea Party Littwin wrote, that “the founders’ visions were often in complete opposition.”

Actually, the Founders’ visions were remarkably consistent — their disagreements were about how best to achieve common goals. Those common goals included a limited, republican federal government held to trust-style standards and protecting personal liberty. (American dissenters from those goals were called “Tories” and fled the country or dropped out of public life after the Revolution.) You can find the details in my new book The Original Constitution: What It Really Said and Meant.

Littwin returned with another column on October 27, in which if he didn’t make an error, he certainly left an mistaken impression.

He wrote “It was only recently that O’Donnell was laughed at by a group of law students . . . for saying that the separation of church and state was not guaranteed by the First Amendment. It’s an old argument, since the words themselves aren’t in the Constitution. But it was Thomas Jefferson, one of your more important founders, who did say exactly that in an 1802 letter to the Danbury Baptists concluding that the First Amendment built ‘a wall of separation between Church & State.’”

What Littwin apparently doesn’t understand is that “separation of church and state” meant something different to Jefferson than it means in discourse today.

Today the term is used for the view that both federal and state governments must divorce themselves from all religious recognition, even at the risk of seeming anti-religion. Believers in this view are called “strict separationists.”

That was hardly Jefferson’s view, since when he was governor of Virginia he supported religious holidays and blasphemy laws.

Actually (as most recent scholarship confirms), the Establishment Clause of the First Amendment meant only that the federal government could not establish a national church or otherwise favor some religions over others. My own research on the subject appears here.
[For the future, please note that Jefferson is not a very reliable source of constitutional meaning anyway, since he was in France when the Constitution was drafted and ratified.]

Senate candidates Ken Buck and Christie O’Donnell have gotten a lot of flak for saying they don’t buy the current notion of “separation of church and state.” Critics have tried to portray this as an opinion that is somehow looney or extremist. If so, then the current Supreme Court of the United States is looney or extremist, because it doesn’t agree with strict separation, either.

Ding ding ding! Let the debate begin!

Please join us for the next Free People, Free Markets: Principles of Liberty course!

Five consecutive Tuesdays, May 18th to June 15th

6:30 to 9:30 in the Denver Tech Center

Call us at 303.279.6536 to RSVP

Many of you asked for a Principles of Liberty course to take place on a weeknight, instead of on Saturdays. You also asked that we hold the class somewhere in the south metro area, instead of here at the Independence Institute offices in Golden. Well, you’re in luck! The Spring Free People, Free Markets classes will be held on 5 consecutive Tuesdays at 6:30pm, starting May 18th, down in the Denver Tech Center. Classes will be at the Colorado Contractors Association building at the intersection of I-25 and Arapahoe Road (map). For more information, click here for the official class flyer.

So why should you take our class?

You have a strong love of freedom. It’s a natural part of being human. But too few of today’s adults were taught the fundamentals of a free society. We have a wonderful seminar to offer you. It pulls together the basic principles of liberty and a free market, showing you that these cohesive fundamentals allow society to work well, and to honor the individual. The course material springs from the great thinkers and achievers who shaped America. It is designed for business and community leaders and the general public as well as for college students.

The course makes the moral and philosophic case for free-market capitalism. One of the most important concepts of Western Civilization is the acquisition of property as an unalienable right. The course develops the relationship between economic liberty and political liberty. Participants learn the principles behind wealth-creation. They are introduced to the philosophy of the Austrian School of Economics and its connection to the founding ideas of the American experiment. Participants are awakened to their heritage of economic liberty. It will be more than worth your time.

A few law professors have been arguing that it’s constitutional to force people to buy health insurance, because the Constitution gives Congress power to “regulate Commerce among the several States.”

Under the very broad formulation of the federal Commerce Power issued by the modern Supreme Court, Congress can regulate not just interstate commerce and certain related activities (as the Founders intended) but also any “economic activities” that “substantially affect interstate Commerce.” This, the new argument goes, includes a power to punish non-activity (i.e., failure to buy insurance).

Let’s examine some of the implications of this novel argument:

* The Constitution grants Congress authority to “provide for the Punishment of counterfeiting. . . ” By the same reasoning, Congress enjoys power to punish anyone who doesn’t counterfeit.

* The Constitution grants Congress authority to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Hence, Congress may punish anyone who does not commit those crimes.

* The Constitution grants Congress’ authority to “declare the Punishment of Treason.” Hence, Congress may “declare the Punishment” for people who do not commit treason.

These examples show how ridiculous such “reasoning” is. Ridiculous, but also dangerous, because it can be used to obliterate meaning from the constitutional language, and, thereby, all constitutional limits on government.

Some of the Founders warned us that unscrupulous advocates would try to subvert the Constitution in this way — by arguments those Founders called “sophistry.”

Sophistry is defined by Merriam-Webster’s Collegiate Dictionary (11th ed.) as “subtly deceptive reasoning or argumentation.” The term comes from the practice of professional mouth-pieces in ancient Greece, who to demonstrate their rhetorical prowess would construct clever arguments for a proposition, and then just as slyly tear it down.

It’s no secret that University of Colorado economics professor and senior fellow Barry Poulson is a prolific writer.  The man cranks out a consistent bevy of works that are both substantive and interesting (the latter being something you almost never get from an economist).  His latest piece is no exception.

In “Restoring Federalism and State Sovereignty: A Constitutional Path to Prosperity,” Barry gives a brief overview of how we got to where we are – states becoming more and more subservient to Federal power – and the important role the Judiciary played in steering us in that direction.  (I say steering, but Barry would probably say “pushing”).  After years of judicial abdication bolstering Federal powers and all but eviscerating Constitutional constraints, what can we do to turn the ship around?  Is it too late?

Barry offers a few different paths we can take, all Constitutionally compliant.  One of the possible solutions happens to be the subject of yesterday’s post regarding a very special podcast featuring AG Suthers.  Give Barry a few minutes of your time to flesh out some other solutions.  You won’t regret it.