Posts in "Constitutional Law"

By David Nilson at 11:38AM

Jan 13, 2011

The Past is Prologue

Written by my good friend and constitutional scholar, Scott N. Bradley.

At the beginning of the American Revolution, the great patriot Patrick Henry stated, “I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way of judging the future but by the past.”

In The Tempest, William Shakespeare (act 1, scene 1) observed “What’s past is prologue,” meaning, the experience of the past is but an introduction to that which is to come.

In many ways, history repeats itself. If we are willing to learn the lessons of history, perhaps the nation may avoid the mistakes of the past.

There is national discussion occurring with prominent people in very public forums suggesting the possible need of a constitution convention to correct the current disaster facing the nation. That discussion is growing into a movement to call a constitution convention to revise the United States Constitution. I fear that this movement will precipitate crises in this nation that will pose a greater risk to the survival of the republic than anything we have experienced since the 1860's.

Obamacare: Bring on the Lawyers!

The newly passed health-care "reform" bill and the amendments to be made to it through the reconciliation process should be great fodder for lawyers around the country. ProPublica has posted a side-by-side comparison of the passed Senate bill and the proposed changes.

The most important form of litigation, of course, should be challenging the constitutionality of the bill. Besides its uncomfortable level of paternalism, "Obamacare" is in truth unconstitutional in several aspects -- particularly the individual mandate.

Proponents will no doubt try to justify the bill using the two clauses in the Constitution often used by those seeking dubious justification for their expansions of government power: the commerce and general welfare clauses (both found in Art. 1, Sec. 8). Expansive interpretations of those two pieces of the document have been used countless times in the past to bolster the scope of the federal government's authority to regulate and tax.

The Chicago Gun Ban Quagmire

There was a video posted by Jack Hunter called "Gunning Down the Constitution" that comments on what the outcome of the Supreme Court's decision on the Chicago gun ban would entail for the concept of states' rights.

Hunter's argument is essentially that the Bill of Rights are amendments to the federal constitution and thus inapplicable to the states. So, if Chicago/Illinois wants to ban guns, while it may go against the the 2nd Amendment to the US Constitution, it does not go against the law of the state of Illinois (at least by ruling of Illinois courts). Therefore, while it may be illegal for the federal government to ban guns, it is not illegal for Illinois to ban guns in Illinois.

The danger Hunter presents is that if the Supreme Court declares the gun ban of Illinois illegal, it means that the 9th and 10th amendments become null because the federal government is dictating what a state government can make law (outside of the enumerated powers of the federal government in the Constitution). The Bill of Rights prohibits what the federal government may make law, but does not prohibit what the state government may make a law.