A call to repeal the Second Amendment

In a piece for Rolling Stone, Drexel constitutional law professor David S. Cohen calls for repealing the Second Amendment.  He argues that the right to keep and bear arms “is outdated, a threat to liberty and a suicide pact.” [Read more…]

Obamacare funding ruled unconstitutional

A federal judge has ruled that the mechanism for subsidizing insurance companies under Obamacare violates the Constitution.  That document reads, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” (Article 1.  Section 9).  The Obama administration has been paying that money without Congress having passed an appropriation to do so.  The ruling is on hold, pending appeal. [Read more…]

Hoping for a deadlock in the electoral college?

Many Republicans are hoping for a deadlocked convention in which no candidate gets the majority of votes.  And if that doesn’t work, say some, maybe we could have a deadlocked electoral college.

If Donald Trump has the nomination “stolen” from him, to his mind, he may run as a third party candidate.  Or if he gets the nomination, surely other third part candidates will emerge, whether Republicans (who would have a challenge to get on state ballots) or candidates from parties such as the Libertarians or the Constitution Party that are already on the ballot in many states.

A credible third party candidate could prevent either Hillary Clinton or Donald Trump from winning a majority of electoral votes.  Which means that the vote would then go to the House of Representatives. Which is controlled by Republicans, who could choose anyone they wanted.

Would that be a crisis for our democracy?  Or would that simply be our Constitution in action?

UPDATE:  Thanks to Todd for quoting to me the 12th Amendment, which requires the House of Representatives, in the event that no one wins an electoral majority, to choose from the top three candidates. So theoretically, a third party candidate could be chosen in the House.  The Republican majority would have to go against its own party’s candidate, which could possibly happen.  But there is not much hope for this option. [Read more…]

How the Founders tried to prevent a Donald Trump

If Republicans pull some convention maneuvering to prevent the nomination of Donald Trump, wouldn’t that thwart the will of the people?  Well, historian Andrew Trees shows that the Founders of our nation who wrote the Constitution believed that the will of the people often needed to be thwarted, or at least checked and balanced.  The Founders feared that the public would be tempted to vote according to their “passions,” thus allowing themselves to be manipulated by a “demagogue” who would stir up these passions to put himself into power.  (Sound familiar?)  This is why the Founders built non-Democratic safeguards into our Republic, such as having the president be elected not by the public but by the Electoral College.

Many of those safeguards have been gotten rid of, unfortunately.  (Perhaps the coming debacle will encourage us to bring them back:  If political parties are corrupt, something both angry voters today and the original Founders would agree on, let’s remove the presidency from politics.  Let’s vote state-by-state for delegates to the Electoral College, without any of them stating whom they would be voting for.  They would then deliberate on who would be the best person for the job.  That would be returning to what the Founders intended.) [Read more…]

LCMS congregation will go before the Supreme Court

The Supreme Court has agreed to hear a case from an LCMS congregation.  Trinity Lutheran Church in Columbia, Missouri, was denied a state grant to improve its school’s playground, in the name of the separation of church and state.  This could prove to be an important case in drawing those lines.  Watch for  Trinity Lutheran Church v. Pauley. [Read more…]

So is Ted Cruz eligible or not?

Donald Trump is a “birther,” casting doubt on Barack Obama’s eligibility to be president, since the Constitution requires that the holders of that office be “natural-born citizens.”  Recently he has raised the issue about Ted Cruz, who was born in Canada of a Cuban father and an American mother.  Most observers have said that since both babies had an American parent, they have been citizens from birth and thus eligible under the Constitution.

But now an expert in Constitutional law is saying that at the time the Constitution was written, “natural-born citizen” had the specific common-law meaning of  being born on a nation’s soil.  Cruz has always been a citizen, since Congress passed a statute granting citizenship to children of a citizen, but he is not a “natural-born” citizen.  Obama was born in Hawaii, so he is natural-born.  But Cruz is not.

Cruz’s old law professor at Harvard, the prominent liberal Laurence Tribe, tweaks his former A-student for his originalist interpretation of the Constitution, saying that if he holds to his view that the document means what its authors originally meant, then he would not be eligible.

What do you think?  Isn’t Trump right that Cruz needs to get a court opinion on this before he goes much further?

[Read more…]