Constitutional Limits

The United States Constitution has been the basis for America and its limited government since 1789. The document quite literally binds us together as a nation and sets the ground rules for what our federal government may or may not do. Without a doubt, it is an exceptionally unique document in history and has been an example to the world of successful self-government. The philosophical roots of the Constitution go back through Western Civilization to the times of the Ancient Romans, Greeks, and even Hebrews.

In this topic, the following topics are covered:

Human Nature
Federalists and Anti-Federalists
The Bill of Rights
Federalism
Constitutional Interpretation
General Welfare
Commerce Clause
Checks and Balances
Growth of Government vs. Constitutional Limits
Moving Forward


Human Nature

The Constitution was written with a particular understanding of human nature, that all men are born with a dual nature, capable of both good and bad, and hence require social influences such as those from family, religion, and community to provide moral education and guidance. Therefore, society, and by extension government, is not only natural but necessary.

But, rather than try to remake human nature as many modern ideologies have tried, the Framers of the Constitution believed that it was better to build a government that recognized human nature as unchanging and simply harnessed the good and the bad innate in man for the betterment of society. As James Madison, chief author of the Constitution, wrote in 1788 in Federalist 51:

"Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

Part of counteracting ambition was to establish ways to both limit the overall power of the federal government over states and individuals, as well as the power of individuals or branches within the federal government. How to do so was hotly debated at the time by the Federalists and the Anti-Federalists.

 

Federalists and Anti-Federalists

The debate between the Federalists and the Anti-Federalists is perhaps one of the most famous debates in American history. It was a debate over the principles and institutions by which the nation would be governed. The Federalists were in favor of a more powerful central government; the Anti-Federalists saw the proposed Constitution as flawed and lacking the ability to adequately check federal government encroachments on liberty. The fundamental argument between the two factions wasn't over whether  the government was to be limited in its powers, but if the Constitution would be able to effectively keep government limited and protect liberty.

Both the Anti-Federalists and Federalists believed in Natural Rights that transcend the power of government, such as the rights to life, liberty, and property. While there were many compromises made to ratify the Constitution, perhaps the most notable is the Bill of Rights which attempted to protect some Natural Rights. Even the Bill of Rights, though, was debated as the Anti-Federalists were concerned that putting a "right" on paper could be interpreted to limit that right, or that the government would attempt to deny other natural rights that weren't listed. As a result of that concern, the 9th Amendment of the Constitution was added as an attempt to defend those unnamed rights.

As the debate over the Bill of Rights, individual freedom, and the extent of federal power still occurs today, it would seem that the Anti-Federalists were right to fear vague grants of power by the Constitution like the necessary and proper clause, the commerce clause, and general welfare clause, as those clauses have in fact been used to increase federal power over the states and individuals.

 

The Bill of Rights

The Bill of Rights, included in the Constitution as a compromise to win Anti-Federalist votes for ratification, is rooted in Natural Law/Rights and Common Law traditions. The idea of Natural Law is that there are universal, objective truths (laws) that logically infer certain rights (Natural Rights) to each individual such as life, liberty, and property.

We can see the development of natural rights written into legal code quite early in Western Civilization. The framers were certainly aware of that history, and they looked to Common Law and English legal tradition in general, and the English Magna Carta of 1215 in particular, for guidance in creating our founding documents.

The Bill of Rights set out to codify the protection of individuals' natural rights against encroachment from the Federal Government that would be created by the Constitution. Some of the more popular rights or protections are as follows: 1st Amendment (protecting religion, speech, the press, and association); the 2nd Amendment (protecting gun ownership for personal defense); the 4th Amendment (protecting against warrantless searches); the 5th Amendment (protecting against government seizure of property and guaranteeing due process); and the 10th Amendment (reserving powers not granted to the federal government for the states).

 

Federalism

Taking its lesson from the overreach of the British Crown, the first government of the United States, under the Articles of Confederation ratified in 1781, sought to ensure that "Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."

While the adoption of the Constitution in 1787 was motivated to remedy some of the ills that resulted from the weak national government the Articles had created, James Madison made it clear in Federalist 45 that,

"The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite."

To this day, Madison's position is much debated. Those favoring a strong federal government argue that policy differences between the states often create obstacles to social and economic progress. Those desiring a very limited federal government observe that localization of powers is needed to effectively protect the liberties and meet the needs of a large and diverse population, and that leaving much of the governing power to individual states provides a unique opportunity for them to experiment and discover effective solutions to societal problems.

 

Constitutional Interpretation

There are two main categories of constitutional interpretation: Originalism and Non-Originalism. These two categories are admittedly broad. But in general terms, the first seeks to interpret the Constitution by looking closely at the text, the influencing documents, and the historical context in which it was written. The second looks at the Constitution as a living document the interpretation of which needs to take into account changes in social norms, economic and political circumstances.

The first debates over proper constitutional interpretation arose among the Founders themselves. In 1788, while the Constitution was awaiting ratification, Alexander Hamilton stated that the interpretation of the Constitution was to be left in the hands of the courts. Nearly 30 years later, James Madison noted the bias that was possible in interpreting the Constitution, both for those present during its formation, like himself, and for those removed from the process, but eager "to find in its text an authority for a particular measure of great apparent Utility." Finally, Thomas Jefferson weighed in on constitutional interpretation methods with the following statement:

"On every question of construction, carry ourselves back to the time when the constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."

In the years following the Founding generation, the courts and other constitutional scholars continued to approach constitutional interpretation with caution. For example, Joseph Story's Commentaries on the Constitution suggested that Americans interpret the Constitution in a straightforward, rational manner while cautiously appealing to the Founders' contemporary context in matters lacking clarity. Additionally, various court cases cited the need to look into the historical circumstances surrounding the Founding Fathers in order to make accurate judgments.

However, as the 20th century advanced, the idea that the Constitution needed to be interpreted in light of the nation's changing times and circumstances began to take precedence in the Court system. As a result, important clauses of the Constitution began to be applied much more broadly.

 

General Welfare

Since before the ratification of the Constitution there have been two schools of thought regarding the use of "General Welfare" in the constitution.

The first perspective, supported by James Madison in Federalist No. 41, interprets the language as a further restriction upon the enumerated powers. If Congress were to exercise a power, it would have to add to the general welfare of the entire nation, not just a narrow sector. For example, if the modern Congress were to pass legislation for a welfare program, it would have to benefit all Americans, not just one particular group. As Madison later noted in a private letter, interpreting the general welfare clause other than as a restriction on the enumerated powers would expand the Constitution far beyond what its writers intended:

"With respect to the words 'general welfare,' I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

The second perspective, supported by Alexander Hamilton, and feared by Anti-Federalists, is that it grants Congress powers beyond the twenty enumerated powers. Hamilton's interpretation was largely rejected during his time (why specify powers if the Constitution has already given blanket authorities?). However, given the past century's massive growth of government in the name of "the general welfare," it seems clear that Hamilton's interpretation has won the day--for now.

 

Commerce Clause

Another area of the Constitution where interpretations have differed significantly since the ratification of the Constitution is the Commerce Clause. Conservative and libertarian legal experts interpret this clause from an originalist viewpoint, arguing that the power to "regulate" is actually the power to "make regular." Under this interpretation, the Commerce Clause was put into the Constitution to give the federal government the power to prevent states from erecting barriers to commerce against each other, such as tariffs on goods from other states, or forbidding interstate exchange altogether. Essentially, the originalists argue that the Framers wanted to ensure domestic free trade in America.

Progressives (and many neo-conservatives) tend to rely on past Supreme Court interpretations of the Commerce Clause. One of the most cited cases is Wickard v. Filburn (1942), which followed closely after FDR threatened to "pack the Court" to make sure it didn't rule his new laws unconstitutional. In this case, the Supreme Court ruled that the Commerce Clause gives Congress the right to regulate any economic activity that has substantial effect (in the aggregate) on interstate commerce.

Recently, the Commerce Clause has received revived attention in determining the constitutional basis for the "individual mandate" portion of the Obama Administration's new health care reform law, the Patient Protection and Affordable Care Act (colloquially known as "Obamacare"). The individual mandate would require all citizens to purchase health insurance, and those who do not purchase insurance would have to pay a penalty.

 

Checks and Balances

In designing the U.S. Constitution, the Framers sought to secure individual liberty against the encroachment of governmental power by not giving too much power to any one individual or branch in government. By doing so, they expected that ambitious men would keep each other in check as they jealously guarded their powers granted by the Constitution.

Examples of checks and balances in the U.S. Constitution include: the president can veto legislation passed by Congress, but Congress can override that veto with a 2/3 vote; the president commands the army but Congress declares war and appropriates funds; the president appoints justices to the Supreme Court, but only with the approval of the Senate; Congress and the president can pass laws, but the Supreme Court can strike those laws down as unconstitutional.

Critics argue that checks and balances tend to slow the process of governing thereby preventing urgently needed action from taking place. However, that is the intended effect. To guard against tyranny, human nature must be obliged.

 

Growth of Government vs. Constitutional Limits

Historically speaking, an overreaching and oppressive government was a main reason why the colonies rebelled.  Generally, the Founders advocated for a limited government, which, in the words of Thomas Jefferson, could be described in the following way:

"[W]ith all these blessings, what more is necessary to make us a happy and a prosperous people? Still one thing more, fellow-citizens—a wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicities."

It was hoped that the Constitution and the limits on power it enumerated would secure personal and economic freedom for Americans, while allowing states to be the prime drivers of regulations.

With the dawn of the 20th century and the rise of the Progressive movement however, America's ideal of limited government began to change. The Progressives often desire that the Federal Government, rather than state or local government, play the major role in regulations and social welfare. As many charts show, federal expenditures – a key measure of government growth – rose steadily following the 1913 passage of the 16th Amendment, which officially implemented the income tax.

Apart from federal department creation, government growth is measured in a number of ways, including the expansion in government employment, the growth of the regulatory budget, and the size of the federal register. On all these measures, the trend has been upward.

The most noticeable part of a growing government is the money it spends. The spending increases in the U.S. defense, education, health care, transportation, and welfare budgets in recent decades have contributed significantly to the burden of debt the United States is accumulating.

 

Moving Forward

Today, many from all sides of the partisan divide are concerned by the growth in centralized, government power. Often people want the federal government to provide various services, such as Social Security or Medicare, that are only possible by re-interpreting parts of the Constitution, such as the General Welfare and Commerce Clauses, to allow for such services. The problem is that when those interpretations happen, then the government is able to interfere in the lives of people in many other ways. It is a classic case of wanting one's cake, while trying to eat it, too.

As the powers of the Federal Government continue to be debated in the courts and on Facebook, it's important to go back to when the Constitution and the nation's "first principles" were founded and determine whether or not you believe the Framers set out to create a limited or unlimited federal government, and whether or not most of the regulating, taxing, and welfare powers should rest with local and state governments or a centralized government in Washington, D.C.

You can learn more and share with friends with these helpful study guides:

Constitutional Interpretation Study Guide 

The Commerce Clause Study Guide

The General Welfare Clause Study Guide

U.S. Supreme Court Cases Study Guide

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Spalding traces the roots of American progressives to German thinkers who believed in the "Administrative State." Here, government is controlled by administrators and "experts," rather than officials elected to represent the people. Spalding also notes that the Founders and the progressives differed in their view of the Constitution. Progressives believed in a "...

In this article McCluskey lays out the changes in the interpretation of the General Welfare Clause, as well as what a literal interpretation would look like in the modern era. As he points out:

"Article I, Section 8 lists the few -- and only -- powers belonging to the federal government. They include the power to borrow money,...

Explaining the constitutional set-up of the House of Representatives and the Senate, Morrisey discusses differences between the Constitution and the previous Articles of Confederation. The Articles of Confederation had outlined a federal government in which all three powers—legislative, executive, and judicial—resided entirely in one Congress. This was...

"Publicly, Madison proclaimed that the General Welfare Clause is merely a synonym for the enumerated powers considered collectively, not an independent source of power."

"What is news is that Americans also have little trust in the legal system, the operating system of our Bill of Rights, the bedrock of our nation's commitment to 'liberty and justice for all.'"

"Spooked by anthrax in the Capitol, public officials and opinion makers are scrambling to figure out how to keep the government running if Congress can't physically convene. Among the options being considered: having senators and representatives gather online, in 'an electronic Congress.'"

One of the most publicized and recent uses of the "general welfare" language has been in the passage of the health care bill. Although initially President Obama had declared that it would not result in any new taxes, he'd been forced to recant that position in order to defend its constitutionality under Article I, Section 8.

"...

"Secretary of State Hillary Rodham Clinton is allowing U.S. funds to flow to the West Bank and Gaza despite a hold by House Foreign Affairs Committee Chairwoman Ileana Ros-Lehtinen, R-Fla., a rare display of executive-branch authority that angered the key lawmaker concerned about protecting her congressional oversight role."

"It seems that the House Judiciary Committee is considering seeking help from the Justice Department to enforce contempt citations against Bush administration officials such as Joshua Bolten who refuse to respond to congressional inquiries into alleged White House wrongdoing. That would be a mistake.

Such a strategy leaves Congress beholden to hostile executive branch officials to...

"The American constitutional system includes a notion known as the Separation of Powers. In this system, several branches of government are created and power is shared between them. At the same time, the powers of one branch can be challenged by another branch. This is what the system of checks and balances is all about.

There...

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But most...

"The E-Governance Institute's mission is to explore how the internet and other information and communication technologies (ICTs) have and will continue to impact productivity and performance on the public sector and how e-governance fosters new and deeper citizen involvement within the governing process."

This school lesson plan includes a section on separation of powers but goes on to ask students, "How is the Constitution a living document?"

In this article, Mr. Anthony illustrates how the surveillance powers granted under the Patriot Act have been used to circumvent traditional warrant procedure--even when the suspect had no real connection to terrorism. He argues that FISA and the Patriot Act run afoul of the Fourth Amendment. 

"The context for understanding contemporary political debates regarding judicial power is provided by a proper account of the theory and history of judicial review. Judicial review is not the limited power now that it was in 1789; it has been transformed into something new and completely different. It is impossible to understand current debates -- such as bitterly contested judicial...

In this opinion piece, Healy talks about recent Federalism-related developments in the Obama administration and medical marijuana legislation in the states.

"The Republican-run House voted Thursday to hold Attorney General Eric Holder in contempt of Congress, protesting his refusal to turn over documents related to the 'Fast and Furious' gun-trafficking investigation.

GOP lawmakers cast Holder as an obstructionist in the probe of a botched operation that contributed to the death of a border patrol agent; Holder and White House officials...

"If we're going to save this nation for our children, if we're going to be able to leave them even the possibility of a better life than we've had, we must start now and we must start by returning to the actual meaning of the Constitution as it stands in black letters on parchment as the touchstone for all that government is allowed to do -- and more importantly,...

"The House of Representatives voted Thursday to hold Attorney General Eric Holder in contempt for refusing to turn over documents tied to the botched Fast and Furious gun-running sting -- a discredited operation that has become a sharp point of contention between Democrats and Republicans in Washington.

The House approved a pair of criminal and civil measures against the attorney...

"The House votes Friday on a constitutional amendment to balance the budget, and members of both parties say they support one. But a dispute over which version of the amendment should pass could doom the whole effort."

"The GOP-led House voted Thursday to hold Attorney General Eric Holder in contempt of Congress for failing to provide key information pertaining to Operation Fast and Furious, making Holder the first sitting Cabinet member to be held in contempt.

The vote was 255-67, with 17 Democrats breaking ranks to side with Republicans in favor of contempt.

The vote follows a roughly 16-...

"The Fourth Amendment asserts that the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.' For more than a century after the founding, interpreting this was relatively straightforward: A 'search' was defined along the lines of common law trespass. If police came on to...

"House Majority Leader Steny Hoyer (D-Md.) said that the individual health insurance mandates included in every health reform bill, which require Americans to have insurance, were 'like paying taxes.' He added that Congress has 'broad authority' to force Americans to purchase other things as well, so long as it was trying to promote 'the general welfare.'

...

There are a variety of reasons the United States is still classified as limited: We don't live under totalitarianism, Congress and the states do pay their citizens a level of deference, and government officials are still sworn to uphold the Constitution. Even so, the U.S. government far exceeds not only the limited government structure libertarians prefer but also...

"Back in June, the American Civil Liberties Union launched a new Web hub called Spy Files, which promises to be an invaluable resource for those of us who make a point of watching the watchers. Probably the most interesting document available on the site at launch was a thorough state by state survey of law enforcement surveillance of protected political and...

"James Madison didn't originate the idea of checks and balances for limiting government power, but he helped push it farther than anyone else before or since. Previous political thinkers, citing British experience, had talked about checks and balances with a monarch in the mix, but Madison helped apply the principle to a republic. Contrary to such respected...

"The framers of a constitution who want to make it a charter of liberties and not just a set of constitutive rules face a difficult choice. They can write specific provisions and thereby doom their work to rapid obsolescence, or they can write general provisions, thereby allowing substantial discretion to the authoritative interpreters, who in our system are the judges. The U.S. Constitution...

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But toward the end of the nineteenth century, and especially since the 1930′s, more and more Americans began to accept...

Lawson comments on the growth of power in federal government over time, noting the first encounters with the "general welfare" language post-1788. He namely highlights the Savannah, Georgia fire and Congress' intervention for aid. Since there were no enumerated powers allowing the government to "rebuild a torched city", the legislators had to look through the scope...

"The phrase 'general welfare' appears twice in the Constitution -- first in the preamble (which grants no authority to Congress, but simply states the broad objectives underlying the Constitution), and second in Article I, Section 8, Clause 1 (the "Spending Clause"). Both James Madison and Alexander Hamilton viewed the phrase as a limitation on the spending power, one that was intended to make...

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Contemporary controversies such as the individual mandate involved in the Patient Protection and Affordable Care Act (Obamacare) demand an appreciation for the United States Constitution. The document was not, contrary to belief, a celebration of unrestrained democracy but, rather, a safeguard for individual rights.

"Over on the Think Progress blog, Ian Millhiser accuses Sen. Tom Coburn (R-Okla.) of never having read the Constitution. His grounds for the accusation? Coburn, citing Jefferson, doesn't think that the Constitution gives the federal government authority to provide such things as Pell Grants and student loans.

This might be a...

In this commentary, Armey argues that the founding fathers envisioned a country with limited government and taxation, submitting that that is not the case today.

"Our Founding Fathers designed a constitutional system based on the rule of law to protect the individual from an overbearing federal government. The government was to...

This web-only op-ed from the liberal publication The American Prospect rails against Tenth-Amendment advocates, referring to the individuals as "Tenthers."

"[The 'Tenthers'] members are convinced that the 10th Amendment of the Constitution prohibits spending programs and regulations disfavored by conservatives....

"The most conservative principle of the Founding Fathers was distrust of unchecked power. Centuries of experience substantiated that absolute power corrupts absolutely. Men are not angels. Ambition must be made to counteract ambition to avert abuses or tyranny. The Constitution embraced a separation of powers to keep the legislative, executive, and judicial...

"When the police or other Executive Branch officers conduct searches under civil and environmental statutes, settled Fourth Amendment jurisprudence provides them with substantially more constitutional authority to search private businesses without a search warrant...

"The Supreme Court on Monday ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.

Justice Anthony M. Kennedy, joined by the court's conservative wing, wrote that courts are in no position to second-guess the judgments of...

During President Clinton's impeachment trial, Special Investigator Kenneth Starr asked President Clinton specific, embarrassing questions regarding his relations with Ms. Lewinsky. Jeffrey Rosen points out the President should have pleaded the Fourth Amendment -- and we should too! He claims that the Fourth Amendment allows citizens to avoid answering "overly...

"We Americans find ourselves faced with the disquieting specter of a five trillion dollar national debt, a sum truly inconceivable. Many economists and politicians tell us this debt portends a disastrous financial collapse in the future and we worry. Once debt free, we are now the largest debtor nation in the world and as we find ourselves on the precipice we are...

"September 27 marks the anniversary of the publication of the first of the Antifederalist Papers in 1789. The Antifederalists were opponents of ratifying the US Constitution. They feared that it would create an overbearing central government, while the Constitution's proponents promised that this would not happen. As the losers in that debate, they are...

"In response to an unprecedented expansion of federal power, citizens have held hundreds of 'tea party' rallies around the country, and various states are considering 'sovereignty resolutions' invoking the Constitution's Ninth and Tenth Amendments. For example, Michigan's proposal urges 'the federal government to halt its practice of imposing mandates upon the...

"Skeptics of an e-Congress invoke the intentions of the Founding Fathers, the assertion that deliberative bodies require physical proximity, and the argument that technology isn't an adequate substitute for face-to-face interactions."

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Many in Washington are worried. The idea that the Constitution is relevant to the operation of the federal government is a frightening...

"As we approach the bicentennial of the ratification of the Constitution, Americans face what many regard as a constitutional crisis. A resolution calling for a constitutional convention to limit the spending powers of government has been approved by thirty-one out of a required thirty-four states. Over two hundred other constitutional amendments, many of them dealing with economic issues,...

"Once President Barack Obama and Democrats in Congress have passed a health care reform bill, conservative groups are likely to challenge parts of it as unconstitutional, arguing that it oversteps Congress's powers. A key target will be the individual mandate, which is designed to coax uninsured persons into purchasing insurance.

...

"The Supreme Court dealt a devastating blow to the Fourth Amendment and individual liberty this week. In a 5-4 ruling, the Court said police officers can jail citizens for minor offenses without arrest warrants. The case, Atwater v. City of Lago Vista, lowers the constitutional threshold by which citizens can be deprived of their liberty."

"The Exclusionary Rule is available to a Defendant in a criminal case as a remedy for illegal searches that violate the rights set forth in the Fourth Amendment. When applicable, the rule dictates that the evidence illegally obtained must be excluded as evidence under the Fourth Amendment. See Mapp v. Ohio, 367 U.S. 643. One important corollary...

"Numerous lawmakers embrace a discredited theory of the Constitution that would not only end Medicare outright but also cause countless other cherished programs to be declared unconstitutional. Under this theory, Pell Grants, federal student loans, food stamps, federal disaster relief, Medicaid, income assistance for the poor, and even Social Security must all be eliminated as offensive to the...

"With a reformer's zeal, President Bush is plunging into federally funded faith-based charity. He says it will be less costly and more effective than programs run by government bureaucrats. Probably so. But apart from the dispute over separation of church and state, there's a compelling constitutional case against federal welfare programs, no matter who administers...

"IN THEORY America's three branches of government are equal. In practice the judiciary is the weakest, as Alexander Hamilton cautioned in 'The Federalist Papers', because it controls neither sword nor purse. Of late, state legislatures and executives have been closing their purses as they struggle to balance tight budgets. At the same time, the federal bench is being weakened by both stagnant salaries and frozen politics. This is now swelling dockets, delaying cases, and reducing access to the legal system."

"American government under the Constitution was supposedly meant to work as follows: Congress, staying within delegated powers and the Bill of Rights, passes laws; the president executes the laws; and the courts sort out ensuing wrangles. This plan ran aground rather early—the 1798 Alien and Sedition Acts, for example—which raises at least two possibilities: 1) The Federalist movement...

"I've just gotten around to reading Orin Kerr's fine paper 'Applying the Fourth Amendment to the Internet: A General Approach.' Like most everything he writes on the topic of technology and privacy, it is thoughtful and worth reading. Here, from the abstract, are the main conclusions:

'First, the traditional physical distinction...

"What are appropriate sources of authority to guide interpretation of the Constitution and what relative weight should be assigned to the various appropriate sources?

There are five basic sources that have guided interpretation of the Constitution: (1) the text and structure of the Constitution, (2) intentions of those who drafted, voted to propose, or voted to ratify the provision in...

"There's no shortcut to a free society. I find myself repeating this because looking for shortcuts is tempting, and thinking is easily overtaken by wishful thinking.

A shortcut favored by most advocates of limited government is restoration of the Constitution. If only we could get back to the Constitution as it was written, people say. It’s a sincere wish, but as a path to a free...

"Americans are beginning to question the constitutionality of proposed programs such as government run health care. In response to these challenges, a misinterpretation of the 'General Welfare' clause seems to be the common support for such Federal programs. This article examines what the General Welfare clause actually means."

"Congress and the White House appear headed for a showdown over President Bush's decision to invoke executive privilege to deny documents to House and Senate committees and prevent former aides from testifying about the firing of U.S. attorneys.

Lawmakers, in turn, have threatened to hold subpoenaed officials in contempt of Congress.

Here are some questions and answers about the...

Chart or Graph

This chart outlines a police officer's authority to detain, frisk, and arrest an individual under the Fourth Amendment.

This chart breaks down several of the constitutional interpretation views generally used in the court system.

"Figure 6 illustrates how pages in the Federal Register have increased during national wars."

"Figure 5 shows that, while the number of federal workers has been roughly constant for decades, the number of state and local workers has soared."

"The history of real (2000 dollars) federal government expenditures per capita from 1792 to 2004 is shown in Figure 1."

Indeed, as this diagram illustrates, the arms of government all serve as watchmen of the other branches.

"Figure 3 shows the real dollar increase in social and economic regulatory spending by presidential term between 1960 and 2009."

This chart traces the growth of U.S. defense spending from fiscal year 1900 to fiscal year 2012.

This chart demonstrates the growth in government education expenditures since 1900.

This chart demonstrates the growth of government spending on health care since 1900.

This chart demonstrates the growth of U.S. transportation expenditures in the last century. The transportation spending budget has gradually grown to nearly $300 billion.

This chart shows the growth of government spending on welfare from 1900 to 2012. Welfare spending especially accelerated after 2005.

Analysis Report White Paper

"Although the [Fourth] Amendment’s text appears straightforward, the legal community has long debated precisely what that text means."

"Landlords and tenants are not usually on the same side in the courtroom. But in Kalamazoo, Michigan, a group of tenants are standing up for their property rights and supporting their landlord against the City's inspection policy. It's a case with far-reaching implications that should concern every American."

The Civil War often is seen as a turning point in the history of American federalism. In one sense the truth of this perception is beyond dispute. Had the South secured secession by force of arms, the Union would have been broken, the federal system disrupted.

Perhaps no other clause in the Constitution generated as much debate among the Founders as the 'Spending Clause'—the first of the 18 powers granted to Congress under Article I, Section 8.

The theory behind aid to the states is that federal policymakers can design and operate programs in the national interest to efficiently solve local problems. In practice, most federal politicians are not inclined to pursue broad, national goals; they are consumed by the competitive scramble to secure subsidies for their states.

Stanford's Philosophy Department put together a rather comprehensive piece defining and analyzing federalism in one encyclopedia article.

"At the command of Thomas Jefferson and James Madison, I have often written about the need for students to understand why they are Americans — so they can act as informed citizens."

This Article reports the results of a comprehensive study of core free speech cases decided by the federal courts over a 14-year period. The study finds that speech-restrictive laws adopted by the federal government are far more likely to be upheld than similar laws adopted by state and local governments.

The context for understanding contemporary political debates regarding judicial power is provided by a proper account of the theory and history of judicial review. Judicial review is not the limited power now that it was in 1789; it has been transformed into something new and completely different.

This paper analyzes the history of the "General Welfare" Clause and the power growth in government over time. It highlights key battles, opinions and moments in history with regards to the clause and enumerated powers.

"To consider liberty in relation to the Constitution is to enter upon a subject of some ambiguity. Which Constitution are we to consider? The document has undergone dramatic shifts in its coverage and in its meaning over the course of our history.

Few have done more over the years to articulate the conservative response to liberal judicial activism than Judge Robert Bork. Writing recently in The American Spectator, he argues that courts, working reciprocally with elite opinion, have given constitutional finality to values most Americans oppose

Crisis and Leviathan is indeed the theme of this essay. Inspired by the scale of post-9/11 actions taken by government and the fact that this national crisis is the first to emerge since Higgs' book, we seek to do three things. First, we will describe the mood change that affected public opinion about government.

The American public tends to focus on the President's role in choosing judicial nominees and on the Senate's role in approving or vetoing them after nomination, but this is just the most public aspect of the power-sharing in our system of checks and balances when it comes to court appointments.

In the Anglo-American constitutional tradition, judicial checks and balances are often seen as crucial guarantees of freedom. Hayek distinguishes two ways in which the judiciary provides such checks and balances: judicial independence and constitutional review.

This Article explores the fiduciary law of the founding generation to determine whether it was part of the constitutional design for the Judiciary to review special interest appropriations, and, if so, how the courts might proceed.

Underscoring the tremendous historical accomplishment of limited government, the handbook identifies the roots of free society as far back as the higher laws of the ancient Hebrews and Greeks.

Our first presidents approached spending bills very differently. The first question they usually asked was, 'Is this spending constitutional?' Only if the answer was yes would they then ask if it was wise, if it would benefit the nation, or if it would gain votes.

Montesquieu is famously heralded for directly inspiring the framers of the United States Constitution. Zuckert re-examines Montesquieu's actual philosophy, highlighting the manner in which the founders internalized Montesquieu's thoughts in consistent and divergent ways that eventually translated into America's core framework.

"What does it mean to read this Constitution? What is it that we do when we interpret it? Why is there so much controversy over how it should be interpreted — and why is so much of that controversy, these days in particular, not limited to the academy or to the profession, but so public that it makes the evening news and the front pages?"

"The Court's opinion in United States v. Lopez sent shock waves through official Washington, not least because Washington had simply assumed, since the era of the New Deal, that its regulatory powers were plenary."

Our modern regulatory and redistributive state--the state the Framers sought explicitly to prohibit--has arisen largely since 1937, and primarily through just two clauses in the Constitution, the commerce clause and the general welfare clause, respectively.

This paper reviews several theories of government size and growth that are dominant in the public choice and political science literature. The theories are divided into two categories: citizen-over-state theories and state-over-citizen theories. The relationship between the 16th Amendment to the U.S. Constitution and the timing of government growth is also presented.

The separation of powers, the concept that the legislative, judicial, and executive branches of government ought to be separate and distinct, is a central feature of the United States Constitution. Through this separation, each branch works according to its own authority, forming a check or balance against any abuse of power by the remaining two branches.

One provision in the PATRIOT Act decreases the oversight the FBI needs for issuing National Security Letters. These letters require ISPs to provide information on their clients to the government. Patrick Garlinger explains why current Fourth Amendment jurisprudence fails to protect information hosted by a third party.

Appearing during the Reagan Administration in 1983, Olson's article discusses the Supreme Court's rejection of the legislative veto device--a decision Olson believes reinforced a proper understanding of checks and balances and halted what Olson identifies as an erosion of executive power.

Ethridge highlights the Progressive attempt to evade checks and balances by delegating power to bureaucratic agencies. Indeed, the efficiently responsive government Progressives prefer has not translated into social equality. In contrast, the U.S. Constitution, as intended by the framers, fosters heated debate by design.

"The Tenth Amendment expresses the principle that undergirds the entire plan of the original Constitution: the national government possesses only those powers delegated to it. The Framers of the Tenth Amendment had two purposes in mind when they drafted it. The first was a necessary rule of construction. The second was to reaffirm the nature of the federal system...

The United States Constitution was a dramatic revision of the earlier Articles of Confederation in that it established the powers of a national and federal government. What underlies this shift and what can the Federalist Papers tell us about the Federalists' motivations?

"These days the Fourth Amendment to the Constitution means next to nothing."

Clancy provides a detailed background of 18th century debates on warrants and the Fourth Amendment. He specifically focuses on John Adams' contributions.

In sum, then, it is most unlikely that the makers of the Constitution would have chosen the phrase, 'general welfare,' to authorize the federal government to provide what they understood to be poor relief.

"Starting in 2014, the recently enacted Patient Protection and Affordable Care Act (PPACA, P.L. 111-148) will require most U.S. residents to purchase health insurance or pay a financial 'penalty' to the government. This provision, popularly called the individual mandate, is the linchpin of some of the PPACA's most significant reforms."

Like previous years, the budget requested by the president in his FY 2009 Budget of the United States to run federal regulatory agencies and its staff increased significantly. Tracking the expenditures of federal regulatory agencies and the trends in regulatory spending over time helps analysts monitor one aspect of the cost of regulations: the direct cost to regulate the economy and taxpayers' lives.

Meese relays why the Constitution of the United States, coupled with the philosophies of the Declaration of Independence, outlined the principles of America's unique and liberating government.

"Courts and the legal academy both generally agree that early efforts to limit the federal government to only 'expressly' delegated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland."

Adams discusses the history of American sentiments towards taxation before and after the signing of the Constitution, also elaborating on the restrictions of the General Welfare clause.

From the moment you get up in the morning until the close of the day, and from the day you are born until the day you die, the Federal government intrudes upon virtually every aspect of your life. The Founding Fathers had a very different philosophy about the proper role of government.

"Historical sources indicate that the Framers were focused on a single, narrow problem: physical trespasses into houses by government agents. The Fourth Amendment was enacted to address this problem through a precise, bright-line rule."

The centerpiece of President Bush's crimefighting program is an initiative called Project Safe Neighborhoods. That initiative calls for the hiring of some 700 lawyers who will be dedicated to prosecuting firearm offenses, such as the unlawful possession of a gun by a drug user or a convicted felon.

Video/Podcast/Media

"I'm here to talk this afternoon about what I think is a very important issue about the constitutional law and … what it means to be an American, which is whether it's proper and efficient to limit the power of our government by lifting certain rights that we have against the government."

Democracy can serve as an incredibly liberating system, but it can also wield grave dangers if it capitulates to the rule of the mob. How does the American Constitution guarantee freedom while guarding against anarchy?

"There has recently been a resurgence in support of the 10th Amendment by the 'Tenthers' in the recent wave of government expansions, especially with the recent passage of the healthcare overhaul. Roger Pilon gives a brief history of what the Constitution was originally intended to accomplish, and how that paradigm changed in the 1930s. Since the New Deal the...

"Public historian J.L. Bell, legal scholars Frederick Lane and Joseph McEttrick, and Kurt Opsahl, discuss the historical origins of the protection against unreasonable search and seizure, as well as modern challenges to this long-cherished protection of our rights.

The protection against unreasonable governmental search and...

"Libertarian, Michael Badnarik teaches a class on the Constitution. If you like Ron Paul and follow his message of freedom, this is a MUST WATCH!!! Most of what you think you know about the United States is wrong. Think you own your Car? Think its your money? Why do we have to register your car and get plates? Think you own Your property? He explains the differences between rights and...

"The system through which Congress, the Presidency, and the Supreme Court regulate one another is examined, and the specific regulatory powers of each branch is detailed."

"Supreme Court Chief Justice John Roberts addressed students at the University of Alabama Law School about the history of the U.S. Supreme Court. Following his remarks he responded to questions from audience members. In response to a student, Justice Roberts said the Senate's confirmation process for federal judges is 'broken down' and stated that President Obama's...

"Daniel Lazare, Author of the Book: The Frozen Republic: How The Constitution Is Paralyzing Democracy.

James Madison's celebrated checks and balances have left the American government without direction or even final authority. In an effort to find the source of our nation's problems, political scientist Lazare offers a passionate...

This video is part of a question and answer session with Judge Andrew P. Napolitano, senior judicial analyst for Fox News and host of the television program, Freedom Watch, on the Fox Business Network. 

If you fast-forward to the 1:16 mark in this video, Judge Napolitano provides a very succinct explanation of...

"Down on the boardwalk, we interview a few young Americans to find out what they know about the Constitution of the United States. Can you answer the questions? Does it matter?"

"We ask moms on the street what they know about the Constitution. Can you answer the questions? Does it matter?"

"What does it take to achieve limited, republican government in a large nation such as the United States?  Is it possible to sustain a healthy republic over a large territory?  As events unfold, this has become a pressing question.  The Founders had to deal with this question as well, and they turned to Montesquieu for guidance.  The most...

"We often hear much about the perils of judicial activism and how a judge's proper role is as interpreter of law, not maker of law. However, in a world where much binding precedent has been decided on grounds other than original intent, this restrained view of the judiciary is sometimes thought to stand often in stark contrast with the originalist movement. Originalists have had two ways of...

When the Founders forged our Constitution in the summer of 1787, they held deep convictions for what the American republic ought to look like. What were these convictions? What did they mean then and what should they mean now? Mr. Meese guides us through the core principles of America's history.

In this video, Rand Paul and Judge Andrew Napolitano discuss the historical importance of the 4th Amendment, as well as its erosion today.

Senator Rand Paul on why he opposes the PATRIOT Act. Dr. Paul provides a historical background of the Fourth Amendment, discussing writs of assistance, John Adams, and James Otis. He explains why the Founding Fathers felt these protections were necessary, and how the PATRIOT Act violates these core principles.

"Chief Justice John Roberts spoke about the history, meaning, and provisions of the U.S. Constitution, as well as the operation of government within the parameters set forth in the U.S. Constitution. Video footage highlighted the operation of the legislative, executive and judicial branches of government by providing footage of several recent events and activities such as presidential...

Primary Document

In this essay, the author, most commonly believed to have been New York judge Robert Yates, provides his reasons for arguing that "a free republic cannot long subsist over a country of the great extent of these states. If then this new constitution is calculated to consolidate the thirteen states into one, as it evidently is, it ought not to be adopted."

"If any possible situation makes it a duty, it is our present important one, for in the course of sixty or ninety days you are to approve of or reject the present proceedings of your [Constitutional] Convention, which, if established, will certainly effect, in a greater or less degree, during the remainder of your lives, those privileges which you esteem dear...

This satirical piece mocks Franklin Roosevelt's New Deal by creating a "New Constitution" consistent with FDR's policies.

This case from 1935 marks one of the many times that the Supreme Court struck down New Deal legislation, this time dealing with the National Industrial Recovery act. The court ruled unanimously that the provisions of federal regulation authorized in this law were unconstitutional, as the Commerce Clause did not provide Congress with the power to regulate price and...

Calling a special session in order to acquire permission to pay for the war against the South, Lincoln lays out the reasoning behind his actions at the start of the war. He also states his case for the preservation of the Union and forcefully argues against the claim that the states have a right to secession.

In this treatise on the Constitution, David Ramsey provides his own interpretation of the General Welfare, clashing with the view held by men such as Alexander Hamilton.

"When you authorised Congress to borrow money, and to contract debts, for carrying on the late war, you could not intend to abridge them of the means of paying...

Noah Webster examines the roots of the Federal Constitution. He cites virtue as one of the most important factors.

This treatise, originally published anonymously, indirectly expounds on Noah Webster's view of Congressional power in regards to the General Welfare. Webster says,

"Every person, capable of reading, must discover, that the convention have labored to draw the line between the federal and provincial powers—to define the powers of...

"I have received your resolution of the 15th instant, requesting me 'to inform the Senate whether the provisions of the act entitled 'An act to regulate trade and intercourse with the Indian tribes and to preserve peace on the frontiers, passed the 30th of March, 1802, have been fully complied with on the part of the United States Government, and if they have not that he inform the Senate of...

"Much has been said and written upon the subject of this new system on both sides, but I have not met with any writer who has discussed the judicial powers with any degree of accuracy. And yet it is obvious, that we can gain but very imperfect ideas of the manner in which this government will work, or the effect it will have in changing the internal police and mode...

Unlike the Federalist Papers, the Anti-Federalist Papers are not a single organized project, but a set of later compilations of articles, essays, and speeches opposing the ratification of the Constitution.

This hearing includes testimony and dialogue on the issues involving the Fourth Amendment and National Security during the War on Terror.

"The Fourth Amendment provides that the right of the people to be secure in their persons, houses, papers, and effects against...

Petitioners, who were found guilty of committing felonies, by less than unanimous jury verdicts ... claim that their convictions, upheld on appeal, contravene their right to trial by jury under the Sixth and Fourteenth Amendments.

The Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.

This particular Fourth Amendment case poses an interesting scenario, as the votes on the decision were not along normal liberal/conservative lines. The case in question involved a warrantless police search of an individual's car in which illegal drugs were discovered. The court...

This case revolved around a traffic stop which eventually led to a pat-down and the discovery of a weapon. The Supreme Court determined that a search such as this was not in violation of the individual's Fourth Amendment rights, and was in fact necessary for the...

This case, decided by the United States Supreme Court, dealt with the constitutionality of warrant-less arrests for misdemeanor crimes, in this case, not wearing a seatbelt. Justice David Souter delivered the majority opinion, saying that the Fourth Amendment does not forbid law enforcement officers from making an arrest for a misdemeanor...

As the title suggests, this memo deals with the intricacies of "no-knock" warrants. The memorandum lays out the limits and meanings of the Fourth Amendment, and then describes Supreme Court precedent in dealing with the matter.

A defendant's constitutional right to a speedy trial cannot be established by any inflexible rule, but can be determined only on an ad hoc balancing basis in which the conduct of the prosecution and that of the defendant are weighed.

This case centered around a law enforcement response to a domestic violence complaint. When the owner of the house informed the police officer that his...

The constitutional right of a defendant to a speedy trial and by a jury of the district where the offense was committed relates to the time, and not to the place, of trial, and cannot be invoked by a defendant....

This case is part of the legal cannon regarding warrant requirements. It defines probable cause and lays down the requirements for particularity and evidence. The case arose when New York issued a warrant to police officers to "bug" a suspect's house under a law that only required "reasonable ground to believe that evidence of crime may be thus obtained...

The petitioner...requested that counsel be appointed for him. The judge advised him that this could not be done as it was not the practice in Carroll County to appoint counsel for indigent defendants save in prosecutions for murder and rape.

Transcript of the Bill of Rights to the Constitution.

Blackstone's work is considered the most authoritative statement of the pre-American Revolution common law. It influenced the American founding documents, and continues to be a persuasive legal authority in the United States and other common law jurisdictions.

Because the facts supporting petitioner’s exceptional sentence were neither admitted by petitioner nor found by a jury, the sentence violated his Sixth Amendment right to trial by jury.

"In the Authorization for Use of Military Force (AUMF), Congress empowered the President 'to use all necessary and appropriate force against those … he determines planned, authorized, committed, or aided the terrorist attacks … on September 11, 2001.' In Hamdi v. Rumsfeld,...

This case revolved around several murders performed by an allegedly insane man. The case dealt with Due Process of law, but it also had implications for self-defense, for the opinion declared that "there is no constitutional right to be protected by the state against being murdered by criminals or madmen."

In this case, the Court upheld a Georgia law prohibiting oral and anal sex taking place in private between consenting homosexual adults. Writing for the majority, Justice Byron White asserted that the case "does not require a judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or desirable. It...

This case centered around two facets of the Constitution: the Commerce Clause and the regulation of taxes on imports. Chief Justice Marshall offered the opinion of the Court in this case, concluding with following statement:

"It has been contended that this construction of the power to regulate commerce, as was contended in construing the prohibition to...

This Supreme Court case ruled that election campaign contributions are a protected form of free speech, however, the court also said that spending limits on political campaigns are indeed constitutional.

This case is significant because the Supreme Court summed up the modern understanding of the General Welfare clause in its...

n this case, the general question has been argued at some length, whether a witness, without his own consent, can be called to testify to any fact pertinent to the issue between other parties....

The Court held that surrogate testimony of that order did not meet the constitutional requirement where the accused's right was to be confronted with the analyst who made the certification....

A conviction by a nonunanimous six-person jury in a state criminal trial for a nonpetty offense ... violates the right of an accused to trial by jury guaranteed by the Sixth and Fourteenth Amendments.

In regards to the Fourth Amendment, this Supreme Court case, written by Chief Justice William H. Taft,  established the Carroll Doctrine, otherwise known as the automobile exception. In writing the the majority opinion, Chief Justice Taft argued that that it was permissible for law enforcement officers to execute warrantless searches on automobiles, so long as...

"The horrible facts of this case are contained in the complaint that respondent Jessica Gonzales filed in Federal District Court. ... Respondent alleges that petitioner, the town of Castle Rock, Colorado, violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution when its police officers, acting pursuant to official policy or custom, failed to respond...

This controversial case overturned Austin v. Michigan Chamber of Commerce (494 U.S. 652), the Court stating that stare decisis does not apply because "Austin was a significant departure from ancient first Amendment principles."

At issue was a law that stated, "if a covered transmission during the blackout period creates the...

James Kent was an American legal scholar. Widely popular, his Commentaries consist of a series of lectures on the history of law, the American Constitution, federal and municipal law, and laws concerning persons and property.

The reader must not expect to find in these pages any novel views, and novel constructions of the Constitution.

“In this case, the Commonwealth of Virginia …, through its Attorney General, challenges the constitutionality of the pivotal enforcement mechanism of the health care scheme adopted by Congress in the Patient Protection...

"Congress's contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance, to punish the contemnor, and/or to remove the obstruction. Although arguably any action that directly obstructs the effort of Congress to exercise its constitutional powers may constitute a contempt, in recent...

"The object of these essays is not to exhaust criticism of the government of the United States, but only to point out the most characteristic practical features of the federal system. Taking Congress as the central and predominant power of the system, their object is to illustrate everything Congressional. Everybody has seen, and critics without number have said,...

"We may summarize our view of constitutional government by saying that its ultimate and essential objects are:

1st. To bring the active and planning will of each part of the government into accord with the prevailing popular thought and need, in order that government may be the impartial instrument of a symmetrical national...

"I am deeply grateful for the invitation to participate in the 'Text and Teaching' symposium. This rare opportunity to explore classic texts with participants of such wisdom, acumen and insight as those who have preceded and will follow me to this podium is indeed exhilarating. But it is also humbling. Even to approximate the standards of excellence of these vigorous and graceful intellects is...

"Arguably no political principle has been more central than the separation of powers to the evolution of constitutional governance in Western democracies. In the definitive work on the subject, M. J. C. Vile traces the history of the doctrine from its rise during the English Civil War, through its development in the eighteenth century - when it was indispensable to...

"Taylor defends a strict 'states rights' interpretation of the U.S. Constitution and advocates limited republican government."

Cooper v. Aaron held that states are bound to Supreme Court decisions.  This case held that since Marbury established the concept of judicial review and that the Supreme Court is supreme in the interpretation of the Constitution, then the states are also beholden to the decisions of the Supreme Court due to the incorporation of the 14th Amendment, where the 14th Amendment applies to...

The case of Corfield v. Coryell revolved around the issue of whether or not a certain vessel was at fault for taking oysters from an alleged New Jersey river. Among other things, it was argued that the detainment of the vessel was a violation of the...

The State's use of Sylvia's statement violated the Confrontation Clause because, where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation.

Predominantly written by Thomas Jefferson, the Declaration of Independence formally and eloquently justified the independence of the United States from British monarch King George III.

Thomas Paine shows the common understanding of the term General Welfare. In Paine's list of rights, the phrase, "General Welfare" is paired with the phrase "Public Needs," implying that the two phrases are conceptually linked. During the time period of the writing of the Constitution, it was understood that General Welfare referred solely to the welfare of the...

Tocqueville's famous analysis of the American economic and political system, as he observed during his travels of the country in the 1830s.

This opinion declared that "[a] State's failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause, because the Clause imposes no duty on the State to provide members of the general public with adequate protective services. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal...

This is the opinion issued by the Supreme Court that invalidated Washington, DC's gun ban and established the Second Amendment as an individual right, as opposed to a collective right.

In District of Columbia v. Heller, the Court held that the ban on handguns in the District of Columbia was in violation of the Second Amendment.  The majority opinion written by Justice Scalia depends on concepts of originalism to reason that the ban on guns in the District of Columbia was unconstitutional. Both the majority and the dissenting opinion use examples from the era of the...

"The Court concludes that the compulsory, secret, and unreviewable production of information required by the FBI's application of 18 U.S.C 2709 violates the Fourth Amendment, and that the non-disclosure provision of the 18 U.S.C 2709(c) violates the First Amendment."

The plaintiffs in this case argued that a portion of the Patriot Act violated the First, Fourth, and Fifth Amendments of the United States Constitution. The particular portion of the Patriot Act with which the plaintiffs took issue dealt with the issuance of...

Dred Scott was a slave who, because his owner had moved him to a free state for a period of time, sued for his freedom. The Court held that slaves were not citizens of the United States and therefore not entitled to constitutional protections. And since slaves were considered property, the Court held that their owners could not be deprived of them without due...

The Fourteenth Amendment guarantees a right of jury trial in all criminal cases which, were they tried in a federal court, would come within the Sixth Amendment's guarantee of trial by jury.

"Now it is true that I believe this country is following a dangerous trend when it permits too great a degree of centralization of governmental functions."

"Specifically, you are asking whether some form of e-Congress might be a viable alternative to our two-centuries-old tradition of assembling as a single body, in a single location, to deliberate and vote on the people's business in the sunlight of public scrutiny and accountability."

"The events of September 11, 2001, and the subsequent anthrax incidents have prompted some observers to suggest creating a capability for a virtual or electronic Congress (e-Congress) that could function in the event of an emergency."

This case, decided in England in 1765, established that any trespass unto another person's property must be justified by law through an official warrant handed down by a justice of the peace. According to this ruling, warrants must be specific in nature, and there must also be reasoning for the warrant. Lord Camden made it clear that if a warrant was issued without...

"This is an original petition in this court for a writ of habeas corpus by Philip Grossman against Ritchie V. Graham, Superintendent of the Chicago House of Correction, Cook County, Ill. The defendant has answered the rule to show cause. The facts are not in dispute."

"The case was thus:

An act of Congress-the Judiciary Act of 1789,1 section 14-enacts that the Circuit Courts of the United States

'Shall have power to issue writs of habeas corpus. And that either of the justices of the Supreme Court, as well as judges of the District Court, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of...

"1. A federal court may refuse to issue a writ of habeas corpus where the facts alleged in the petition, if proved, would not warrant discharge of the prisoner. P. 24.

2. Presentation to the District Court of the United States for the District of Columbia of a petition for habeas corpus was the institution of a suit, and denial by that court of leave to file the petition was a judicial...

This document, written by an anonymous author, outlines his view regarding the separation of powers between the state and national governments. He believes that it is best for the framers of the Constitution to fully enumerate the powers of both the state and federal governments, instead of enumerating one and then being silent on the reserved rights of the other...

"THIS book is a plea for the sacredness of the Constitution of the United States. I do not mean by this that I consider our Constitution, framed a hundred and twenty years ago, well suited to the needs of our existing government. Its rigid provisions, its system of checks and balances, are an obstacle to popular government, and they should be radically changed by...

In this Federalist Paper, Hamilton argues for the need to restrain the legislature's authority with regard to defense, and that armed citizens are the last line of defense for liberty.

Alexander Hamilton (under the pseudonym Publius) extols the necessity of having the Commander-in-Chief be in charge of the militia, and also argues the benefits of an armed citizenry.

In this paper, which would later be assembled in The Federalist Papers, Madison explains to the Constitutional Opponents that the "General Welfare Clause" does not provide an unrestrained, vast reservoir of power for Congress. He shows that in that case there would be no need for a commerce clause or interstate...

Writing under the pseudonym "Publius" James Madison discusses the relationship between the federal and state governments, concluding that "the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes...

"TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government...

The objection to the plan of the convention, which has met with most success in this State, and perhaps in several of the other States, is that relative to the want of a constitutional provision for the trial by jury in civil cases.

"A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection. It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were...

"Responding to criticism about his proposal to restructure the Supreme Court, Roosevelt criticizes conservative judges who blocked important New Deal programs and advocates a restructuring of the judiciary. Ultimately, the President's plan deteriorates, but, nonetheless, Roosevelt was eventually able to reshape the court by appointing eight justices before his...

From the Social Security Administration's "Background to the Case":

"The fact that workers contribute to the Social Security program's funding through a dedicated payroll tax establishes a unique connection between those tax payments and future benefits. More so than general federal income taxes can be said to...

In his first inaugural address, President Roosevelt (FDR) gives a speech that borders on messianic with references to the money changers in the temple and the need to move away from a society based on profit. He then outlines various steps towards restoring the economy...

Gannett Co. argued that removing the press from a trial constituted a violation of the Sixth Amendment right to a public trial, among other issues.

This case overruled a previous Supreme Court case (National League of Cities v. Usery, 1976), saying that the Tenth Amendment does not impede Congress' authority to regulate employment conditions and practices in state governments. Justice Blackmun writes that the Fair Labor Standards Act, when applied to state government employees, is not in...

In this case the officials of the Village of Newburgh's water facilities created an interruption to the water flow of a property owner. Chancellor Kent argued that the owner's right to due process under New York's constitution was applicable in this case and entitled him to "just compensation," given that a taking of private property had occurred: "It is a clear...

The Disciplinary Board found that Gentile violated the Rule and recommended that he be privately reprimanded. The State Supreme Court affirmed, rejecting his contention that the Rule violated his right to free speech.

The Terrorist Surveillance Program, authorized by President George W. Bush, was severely questioned by many Americans who wondered whether or not it violated their Fourth Amendment rights. In this...

Gibbons v. Ogden is considered a landmark supreme court case on the issue of the Interstate Commerce Clause. Aaron Ogden was given an exclusive license to operate a shipping business within the State of New York. He sued a man named Thomas Gibbons, who ran a competing shipping business between New Jersey and New York City, claiming that Gibbon's operations in the...

The right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial, and petitioner's trial and conviction without the assistance of counsel violated the Fourteenth Amendment.

This case revolved around whether or not government officials could end a recipient's welfare assistance without advance warning. The Supreme Court determined that such a move was a violation of due process.

This Supreme Court case deals with how the Commerce Clause gives the federal government the right to criminalize the growing and personal usage of marijuana, even when these actions are in accordance to state law. 

California's Compassionate Use Act allows people to use limited amounts of marijuana for strictly medicinal...

Griswold is a landmark Supreme Court case that argued that the Bill of Rights contains penumbras, rights that are guaranteed by implications of the Constitution, that create zones of privacy. For example, the right of association in the First Amendment, the prohibition against quartering of soldiers in the Third Amendment, and the protection against unreasonable...

Petitioner Hamdi, an American citizen whom the Government has classified as an 'enemy combatant' for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan and presently is detained at a naval brig....

This case brought before the Court the question of whether it is "within the authority of Congress in regulating commerce among the States to prohibit the transportation in interstate commerce of manufactured goods, the product of a factory in which, within thirty days prior to their removal therefrom, children under the age of fourteen have been employed or...

Heart of Atlanta Motel was a motel in Atlanta, Georgia that would not rent rooms to black men and women. When the Civil Rights Act was passed, the owner of the motel sued, arguing that Congress did not have the right to regulate his motel under the interstate commerce clause.

The Supreme Court ruled that not only did Congress...

"Any doubt remaining after Butler as to the scope of the General Welfare Clause was dispelled a year later in Helvering. There the Court defended the constitutionality of the 1935 Social Security Act, requiring only that welfare spending be for the common benefit as distinguished from some mere local purpose. Justice Benjamin Cardozo...

The petitioner in this case was arrested and indicted based on expired warrant. Due to the clerical error, the petitioner argued that his conviction was based on illegally obtained evidence. The Supreme Court, however, declared that "[w]hen police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than...

"Had the praise of History been passed over by former Chroniclers it would perhaps have been incumbent upon me to urge the choice and special study of records of this sort, as the readiest means men can have of correcting their knowledge of the past. But my predecessors have not been sparing in this respect. They have all begun and ended, so to speak, by enlarging...

This Supreme Court case dealt with the common law doctrine of police officers first knocking on the door and announcing their presence before said officers execute a search warrant and enter the home of a citizen. 

In this case, Detroit police officers were issued a warrant to search Booker T. Hudson's residence for drugs...

An accused is entitled to a public trial, at least to the extent of having his friends, relatives and counsel present -- no matter with what offense he may be charged.

A letter from James Madison which discusses the General Welfare clause of the Constitution.

"I have recd your very friendly favor of the 20th instant, referring to a conversation when I had lately the pleasure of a visit from you, in which you mentioned your belief that the terms 'common defence & general welfare' in the 8th section of the first article of the Constitution of the U. S. were still regarded by some as conveying to Congress a substantive & indefinite power, and...

"I respect too much the right and the duty of the Reps of the people to examine for themselves, the merits of all questions before them, and am too conscious of my own fallibility, to view the most rigid & critical examination of the particular question referred to your Committee, with any other feeling than a solicitude for a result favorable to truth and the public good."

In this document, the fifth president of the United States, James Monroe, outlines his views on the concept of enumerated powers. He believed that the powers given to the federal government "are enumerated and defined in the most precise form."

"Where officers detected the odor of burning opium emanating from a hotel room, entered without a search warrant and without knowing who was there, arrested the only occupant, searched the room and found opium and smoking apparatus, the search violated the Fourth Amendment to the Federal Constitution, and a conviction for a violation of the federal narcotic laws...

It appears from the opinion of the District Judge denying habeas corpus that he believed petitioner was deprived, in the trial court, of his constitutional right under the provision of the Sixth Amendment....

This case is considered a landmark case in Fourth Amendment jurisprudence as it established the benchmark prerequisite test for warrants. According to Justice Stewart, who wrote the majority opinion for this case, the Fourth Amendment "protects people, not places" and that the rule of thumb for warrants is whether or not there is a "reasonable expectation of...

This U.S. Supreme Court decision rules that if police believe that evidence may be destroyed before they can secure a warrant, then an "exigent circumstance" has been established. At which point the police may simply enter and search a home or other private property. Civil libertarians are likely concerned that the police may use this ruling to justify many...

This case revolved around a warrant-less search in which police encountered illegal marijuana possession. The Kentucky Supreme Court determined that the police department had failed to follow the proper procedures in entering a house without a warrant. Since this decision was released, the case has continued on to the U.S. Supreme Court. A transcript of the oral...

By indefinitely postponing prosecution on the indictment over petitioner's objection and without stated justification, the State denied petitioner the right to a speedy trial....

"The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a 'Military Area,' contrary to Civilian Exclusion Order No. 34 of the Commanding General [p216] of the Western Command, U.S. Army, which directed that, after May 9, 1942, all persons of Japanese ancestry should be excluded...

"Congressman Jim Langevin (D-RI) today met with a bipartisan group of House leaders on the issue of congressional continuity to push his eCongress proposal, which seeks to ensure the continuity of congressional business in the event of a natural disaster or terrorist strike on Washington, D.C."

A recent Supreme Court decision in which the Due Process Clause played a major role was Lawrence v. Texas. This case revolved around the anti-sodomy laws in one of the nation's largest states. The High Court held that "[t]he Texas statute making it a crime for two...

"Liberty, Order, and Justice represents a new and unique approach to the study of American government. It is based on the premise that in order to understand the dynamics of the American political system, the inquiring reader must first become familiar with the constitutional framework that shapes and controls the political process. In other words,...

A Supreme Court decision involving the Confrontation Clause of the 6th amendment.

Livingston v. Van Ingen is another case which centered around the question of the Commerce Clause and the rights it does or does not grant to Congress. In general, the opinion of this court is that Congress has a right to regulate "external" commerce and that...

Lochner represents the height of economic freedom protected by substantive due process. The case arose because the owner of a bakery had violated New York state labor law, which stipulated "that no employes shall be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day." The court acknowledged the liberty of contract...

"This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of...

"Our law is that in the absence of a special relationship, such as exists when a victim is in custody or the police have promised to protect a particular person, law enforcement agencies and personnel have no duty to protect individuals from the criminal acts of others; instead their duty is to preserve the peace and arrest law breakers for the protection of the general public."

"We consider whether the government may employ random, suspicionless container searches in order to safeguard mass transportation facilities from terrorist attack. The precise issue before us is whether one such search regime, implemented on the New York City...

The Magna Carta was the first set of rules curtailing an English king's power. It was formulated and passed under King John's reign. Specifically, it curtailed his right to arbitrarily punish subjects. It has been revised many times over the centuries.

This case is considered a landmark case because prior to this case, the exclusionary rule applied only to federal cases. Through 14th Amendment Due Process, the exclusionary rule was incorporated into the states. This prevents the prosecution from using evidence obtained in violation of the Fourth Amendment. This case overturned Wolf v. Colorado.

A landmark case which helped form the basis for Judicial Review. The case involved the midnight appointments by President Adams to fill various judicial positions throughout the country. William Marbury had been appointed Justice of the Peace for the District of Columbia, but his appointment was never delivered by the new secretary of state, James Madison. Chief Justice John Marshall and the...

"The Court today has written a narrow and, on the whole, careful opinion. In effect, the Court holds that officially sponsored legislative prayer, primarily on account of its 'unique history,' ante at 791, is generally exempted from the First Amendment's prohibition against 'an establishment of religion.' The Court's opinion is consistent with dictum in at least one of our prior decisions, and...

"The excitement which grew out of the territorial controversy between the United States and Great Britain having in a great measure subsided, it is hoped that a favorable period is approaching for its final settlement. Both Governments must now be convinced of the dangers with which the question is fraught, and it must be their desire, as it is their interest, that this perpetual cause of...

This case addressed the Fair Labor Standards Act. The dissent, written by Justice William Douglas, explains why the Fair Labor Standards Act cannot be constitutionally applied to the employees of State governments, as such a law is in clear violation of the Tenth Amendment.

The Constitution should be interpreted in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject....

"In an action brought by a former suspect in the 2004 Madrid train bombings and his family claiming that several provisions of the Foreign Intelligence Surveillance Act (FISA) as amended by the PATRIOT Act were unconstitutional, judgment for...

This Supreme Court case is considered a landmark case on the issue of federalism. The decision held that the authority of the federal government is expressly enumerated in the Constitution, and that the implied powers of the federal government override the reserved rights of the states. According to Chief Justice Marshall, the Necessary and Proper clause implies...

While this case primarily revolved around the Second Amendment issue of gun ownership, the case was decided in regards to issues found in the Fourteenth Amendment. The main opinion was written by Justice Alito and declared that "the Due Process Clause of the...

"On the evening of August 11, 1967, local law enforcement officials of Pike County, Kentucky, entered Alan and Margaret McSurely's home and seized a huge quantity of books, papers, and other personal effects. The officials arrested the McSurelys and charged them with violation of Kentucky's anti-sedition statute. Thus began the McSurelys' seventeen-year odyssey...

The admission of the certificates violated petitioner’s Sixth Amendment right to confront the witnesses against him.

This decision, written by Chief Justice William Rehnquist, dealt with the question of whether highway sobriety checkpoints violate the Fourth and Fourteenth Amendments. By a vote of 6-3, the court decided that checkpoints along state highways do not violate the Fourth or Fourteenth Amendments, as the state governments have a strong interest in curbing drunk driving...

Covington's identification and description of the shooter and the location of the shooting were not testimonial statements because they had a 'primary purpose . . . to enable police assistance to meet an ongoing emergency.'

"Being suddenly called in the midst of the last session of Congress by a painful dispensation of Divine Providence to the responsible station which I now hold, I contented myself with such communications to the Legislature as the exigency of the moment seemed to require. The country was shrouded in mourning for the loss of its venerable Chief Magistrate and all hearts were penetrated with...

"In the District of Columbia, officers without a warrant knocked on the door of petitioner's apartment and upon his inquiry, 'Who's there?' replied in a low voice, 'Police.' Petitioner opened the door but quickly tried to close it, whereupon the officers broke the door, entered, arrested petitioner and seized marked bills which were later admitted as evidence over petitioner's objection at a...

"This is a habeas corpus case originating in the Supreme Court of New York. Relator was indicted in the County Court of Kings County and sent to jail to await trial upon the charge that, as manager of a laundry, he failed to obey the mandatory order of the state industrial commissioner prescribing minimum wages for women employees."

The U.S. Supreme Court's highly anticipated decision which upheld the Affordable Care Act.

This case effectively marked the end of the Supreme Court's resistance to FDR's New Deal programs and legislation. Allegedly responding to Roosevelt's court packing threat, the Supreme Court ruled that the National Labor Relations Act of 1935 (The Wagner Act) was indeed constitutional.

Chief Justice Hughes ruled for an expansive...

In this case, the U.S. Supreme Court ruled in a 5-4 decision that the Fair Labor Standards Act could not be applied to state governments.

The Fair Labor Standards Act regulates employees working hours, overtime pay, etc. Justice Rehnquist wrote that the Constitution did not grant Congress the ability to control the working...

"1. As a basis for attacking a discriminatory regulation of prices, under the equal protection clause of the Fourteenth Amendment, the party complaining must show that he himself is adversely affected by it.

2. A regulation fixing the price at which storekeepers may buy milk from milk dealers at a higher figure than that allowed dealers in buying from producers, and allowing dealers a...

While the guarantees of freedom of expression are not an absolute prohibition under all circumstances, the barriers to prior restraint remain high and the presumption against its use continues intact.

"I am pleased to be here at the New School. The University's distinction is legendary. Since the early part of the Twentieth Century the School's name has been synonymous with excellence in humanities, public policy, and the liberal arts. In the 1930s, its University in Exile provided refuge for those fleeing from oppression abroad. My own Supreme Court predecessor, Felix Frankfurter, lectured...

"Written by Elbridge Gerry, member of the Philadelphia Convention from Massachusetts, and one of the number who refused to sign the Constitution, for reasons given in his letter to the presiding officers of the Massachusetts legislature ...." Gerry uses this document to present some of his objections to the Constitution, many of which centered around the lack of a Bill of Rights. Item number...

In the tenth chapter of James Wilson's magnum opus, Lectures on Law, Wilson elaborates and provides commentary on the process by which the government pursues, arrests, and prosecutes criminals in accordance to Common Law and Constitutional Principles.

"A bankrupt or insolvent law of any state which discharges both the person of the debtor and his future acquisitions of property is not 'a law impairing the obligation of contracts' so far as respects debts contracted subsequent to the passage of such law in those cases where the contract was made between citizens of the state under whose laws the discharge was obtained and in whose courts the...

The Olmstead case is one of the most infamous Fourth Amendment cases. The incriminating evidence was obtained electronically without a warrant. The Supreme Court decided that a search and seizure did not occur because a physical trespass did not occur. This precedent has since been overruled.

This speech in the House chamber details why Representative McClintock withdrew his support from the Patriot Act. McClintock first recounts the circumstances leading up to the creation of the Fourth Amendment, and then relates an anecdote from Russia which demonstrates the importance of the Fourth Amendment.

"In short, sir, without going farther into the subject. Which I should not have here touched at all but for the reasons already mentioned, I venture to declare it as my opinion, that, were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited government established...

The Kentucky Supreme Court denied Padilla postconviction relief on the ground that the Sixth Amendment’s effective-assistance-of-counsel guarantee does not protect defendants from erroneous deportation advice....

The reflections of statesman Dr. James Henry, which have proven an excellent resource for historians seeking a first-hand account of the Federal Convention.

In this case, the Society of Sisters, which ran a private religious school, brought suit against the state of Oregon for requiring that all children of a certain age attend public school. The Court ruled Oregon's law unconstitutional under the due process clause of the 14th Amendment.

The right granted to an accused by the Sixth Amendment to confront the witnesses against him, which includes the right of cross-examination, is a fundamental right essential to a fair trial....

According to Oyez, "The Constitution gave the states the power to impose direct taxation. The federal government could impose direct taxes as well, but only if those taxes were apportioned among the states in proportion to their representation in Congress. In this case the Court examined a national income tax...

The fact that the right of an accused person to have counsel for his defense was guaranteed expressly (as respects the federal Government) by the Sixth Amendment, notwithstanding the presence of the due process clause in the Fifth Amendment....

"In November 1966, petitioner Adam Clayton Powell, Jr., was duly elected from the 18th Congressional District of New York to serve in the United States House of Representatives for the 90th Congress. However, pursuant to a House resolution, he was not permitted to take his seat. Powell (and some of the voters of his district) then filed suit in Federal District Court, claiming that the House...

This case decision, written by Associate Justice Antonin Scalia, ruled that certain aspects of the Brady Handgun Violence Prevention Act are unconstitutional. Scalia argued that the supporters of the Brady Act misinterpreted the Tenth Amendment and the Necessary and Proper clause of the Constitution, as the Brady Act "violates the principle of State Sovereignty" in...

In the 12th chapter of the book, Construction Construed and Constitutions Vindicated, John Taylor outlines his opinions and constitutional views regarding the General Welfare and the Congressional power to regulate Commerce.

"Despite our hardships, our union is strong. We do not give up. We do not quit. We do not allow fear or division to break our spirit. In this new decade, it's time the American people get a government that matches their decency; that embodies their strength. And tonight, tonight I'd like to talk about how together we can deliver on that promise."

Hamilton argues that "general Welfare" in the Constitution provides for an expansion beyond the enumerated powers.

"The terms 'general Welfare' were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have...

"A generation ago, Harvard law professor Frank Michelman advanced an influential and provocative vein of scholarship theorizing the content and justiciability of constitutional welfare rights. Michelman's writings, which endure as the most insightful and imaginative work in this area, sought to anchor the Supreme Court's welfare rights jurisprudence in a comprehensive theory of distributive...

"This appeal presents, in a very sympathetic framework, the issue of the liability of a municipality for failure to provide special protection to a member of the public who was repeatedly threatened with personal harm and eventually suffered dire personal injuries for lack of such protection."

With this executive order, Reagan sought to "restore the division of governmental responsibilities between the national government and the States that was intended by the Framers of the Constitution and to ensure that the principles of federalism established by the Framers guide the Executive departments and agencies in the formulation and implementation of...

"This case requires us to address, for the second time in a decade and a half, whether it is permissible under the Eighth and Fourteenth Amendments to the Constitution of the United States to execute a juvenile offender who was older than 15 but younger than 18 when he committed a capital crime."

The Slaughterhouse cases arose "out of the efforts of the butchers of New Orleans to resist the Crescent City Livestock Landing and Slaughter-House Company in the exercise of certain powers conferred by the charter which created it, and which was granted by the legislature of that State." The butchers claimed the monopoly violated "the most important...

Under the Sixth Amendment, as made applicable to the States by the Fourteenth, the State, on petitioner's demand, was required to make a diligent, good faith effort to bring petitioner to trial in respondent's court.

"Persons who sell liquor are not relieved from liability for the internal revenue tax imposed by the federal government by the fact that they have no interest in the profits of the business and are simply the agents of a state which, in the exercise of its sovereign power, has taken charge of the business of selling intoxicating liquor. ...

The national government is one of enumerated...

This decision by the Court upheld a federal law that deprived states with a drinking age of less than 21 years of 5 percent of their federal highway funds: "Even if Congress, in view of the Twenty-first Amendment, might lack the power to impose directly a national minimum drinking age (a question not decided here), § 158's indirect encouragement of state action to obtain uniformity in the...

"The plaintiffs in error and Thomas St. Clair were indicted jointly for the murder of Maurice Fitzgerald upon the high seas, on board of an American vessel....

This selection is from St. George Tucker's legal commentary and discussion on Sir William Blackstone's commentaries, specifically regarding arrests and warrants. Tucker was an American jurist and applied Blackstone's ideas and concepts directly to American law.

In January 2011, U.S. District Judge Roger Vinson declared that "'The Patient Protection and Affordable Care Act' [is] unconstitutional." Judge Vinson's decision was carefully thought out and related to the Constitutional "Commerce Clause." Vinson also made an...

In August of 2011, the Eleventh Circuit Court of Appeals declared that parts of the PPACA were unconstitutional. This decision addresses the constitutionality of the Individual Mandate portion of Obamacare, as well as the difference between a tax and a penalty in relation to the PPACA's implementation.

"This is a bill in equity brought by the State of Missouri to prevent a game warden of the United States from attempting to enforce the Migratory Bird Treaty Act of July 3, 1918, c. 128, 40 Stat. 755, and the regulations made by the Secretary of Agriculture in pursuance of the same. The ground of the bill is that the statute is an unconstitutional interference with the rights reserved to the...

In the present case the jury were suffered by the court's officer to separate without giving a verdict.

US v. Carolene Products signified the abandonment of substantive due process protections for economic rights. Justice Stone argued that the government only had to provide a rational basis for enacting economic regulation. From this, the...

In light of the policies underlying the right to a speedy trial, dismissal must remain, as noted in Barker v. Wingo, ... 'the only possible remedy' for deprivation of this constitutional right.

"Suspicion that a person is engaged in violations of the prohibition law, confirmed by the odor of whisky and by peeping through a chink in a garage standing adjacent to his dwelling and part of the same premises, will not justify prohibition officers in breaking into the...

This case is considered a landmark Fourth Amendment case as it codified the law enforcement tactic of a "stop and frisk" search, colloquially known as a "Terry Stop."

In this case, a plain-clothed police officer witnessed two men behaving suspiciously. After identifying himself as a police officer, he stopped the men...

Although Frank Mylar admits to being a supporter of President George W. Bush, he respectfully questions the constitutionality of some of the provisions in the Patriot Act. Mylar is particularly concerned about the Fourth Amendment rights of American citizens and implies that the Patriot Act strikes at the heart of the safeguards established in it.

"Here is the text of remarks by President Bush and Judge Samuel Alito at the White House announcement of Alito's nomination to the Supreme Court, as transcribed by the White House...."

After the Pennsylvania Convention ratified the new constitution on December 12, 1787, by a vote of 46 to 23, twenty-one members of the minority signed a dissenting address that appeared in the Pennsylvania Packet and Daily Advertiser....

"Article V of the U.S. Constitution provides two methods of proposing amendments. First, Congress, with the approval of two-thirds of both houses, may propose amendments to the states for ratification, a procedure used to propose all 27 current amendments to the Constitution. Second, if the legislatures of two-thirds of the states (34 at present) apply, Congress shall call a convention for...

Noted orator Daniel Webster articulates to the Supreme Court the legal theory behind substantive due process during the hearing of Dartmouth Trustees V. Woodward. First, Webster claims that New Hampshire's legislators do not possess the power to abridge...

"The Debates in the Several State Conventions on the Adoption of the Federal Constitution is a five-volume collection compiled by Jonathan Elliot in the mid-nineteenth century. The volumes remain the best source for materials about the national government's transitional period between the closing of the Constitutional Convention in September 1787 and the opening of the First Federal Congress...

"In a word, the people and the states no longer trust Washington...because Washington has assumed a vast array of regulatory and redistributive powers that were never its to assume--not, that is, if we take the Constitution seriously."

Madison's Federalist #10 argues for a large and powerful republic to combat the problem of factions. He argues that factions were the cause of the downfall of the ancient democracies and small republics. The American Constitution, with this in mind, advocates a republican form of government that would solve the problem of factions and prevent internal strife while maintaining liberty.

"HAVING shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several States."

"One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The...

Alexander Hamilton explores the proposed role of the judiciary in the U.S. federal government. The independence of the court and a discussion of judicial review is included, and Hamilton argues that interpretation of laws should be left to the judiciary under the power of judicial review.

"The Federalist Papers were a series of articles written under the pen name of Publius by Alexander Hamilton, James Madison, and John Jay. Madison, widely recognized as the Father of the Constitution, would later go on to become President of the United States. Jay would become the first Chief Justice of the US...

"This enumerated power allegedly allows federal regulation of markets because the Preamble to the Constitution reads, in part 'We the people of the United States, in order to ... promote the general welfare ... do ordain and establish this Constitution' and because Article I Section 8 has similar language also in the initial paragraph of that section.

But...

Aristotle, one of the best known Western philosophers, concluded his work on ethics with the statement that he intended to look into "the whole question of the management of a state." The Politics was his effort to do so. He examines the origin and purpose of government, and then discusses Plato's The Republic and other proposed and existing forms of government.

"The great fundamental issue now before the Republican party and before our people can be stated briefly. It is: Are the American people fit to govern themselves, to rule themselves, to control themselves? I believe they are. My opponents do not. I believe in the right of the people to rule. I believe the majority of the plain people of the United States will, day...

Locke's Second Treatise develops his descriptions of the state of nature along with natural law. His work was extremely influential in the founding of America and its Constitution.

Rousseau is noted for advancing the idea of popular sovereignty. He opens with the question of whether any government authority can be legitimate, and concludes that the only legitimate government is one where "the laws being solely the authentic acts of the general will, the Sovereign cannot act save when the people is assembled."

Montesquieu was a significant advocate of separation of powers between executive, legislative, and judicial branches, and his discussion of law contributed significantly to the concept of rule of law.

This cause was now tried, by a special jury, upon an amicable issue, to ascertain, whether the debt due from Spalding, and the right of action to recover it, belonged to the State of Georgia, or to the original creditors....

The Constitution of the United States established the federal governmental system currently in place with three branches of government. The premise of executive privilege developed from the separation of powers clause.

"You request me confidentially, to examine the question, whether the Supreme Court has advanced beyond its constitutional limits, and trespassed on those of the State authorities? I do not undertake it, my dear Sir, because I am unable. Age and the wane of mind consequent on it, have disqualified me from investigations so severe, and researches so laborious. And it is the less necessary in...

"CALLED upon to undertake the duties of the first executive office of our country, I avail myself of the presence of that portion of my fellow-citizens which is here assembled to express my grateful thanks for the favor with which they have been pleased to look toward me, to declare a sincere consciousness that the task is above my talents, and that I approach it with those anxious and awful...

John Adams' suggestions for the formation of a new government in the North Carolina provincial congress.

"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."

"At least as applied in this case to a native-born citizen of the United States who did not voluntarily relinquish or abandon his citizenship or become involved in any way with a foreign nation, § 401(g) of the Nationality Act of 1940, as amended, which provides that a citizen 'shall lose his nationality' by

deserting the military or naval forces of the United States in...

"The great end of men's entering into society being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society; the first and fundamental positive law of all commonwealths is the establishing of the legislative power; as the first and fundamental natural law, which is to govern even the legislative itself, is the...

The dissent of this case, written by Associate Justice Clarence Thomas, argues against the Majority ruling that the States cannot legislate additional prerequisites for their representatives in Congress beyond what is set down in the Constitution.

Justice Thomas argues that because the Constitution is silent on the...

The first written constitution of the United States of America. They maintained state sovereignty, yet unified the colonies into a single nation.

"In Butler, the Court struck down the Agricultural Adjustment Act, which taxed processors in order to pay farmers to reduce production. Although invalidating the statute, the Court adopted the Hamiltonian view (almost in passing) that the General Welfare Clause is a separate grant of congressional authority, linked to and qualified by the spending power...

The mere passage of 19 months between the original arrests and the hearings on the later indictments is not ipso facto a violation of the Sixth Amendment's guarantee of a speedy trial.

In this particular case, FBI officials relied on permission from an individual involved in a bribery case rather than a warrant to set up a secret video camera in a hotel room. The case revolved around whether or not this warrantless evidence was...

This is considered a landmark case as it was the first time since the New Deal that federal legislation claiming authority under the commerce clause was overturned. 

Chief Justice William Rehnquist wrote the majority opinion for this case, declaring that the Gun-Free School Zones Act of 1990 was unconstitutional because...

Chief Justice Rehnquist delivered the majority opinion in this case, ruling that the Violence Against Women Act of 1994 was unconstitutional. This law gave victims of gender-motivated crimes the right to sue for damages in federal court. In this instance, the court ruled that the Commerce Clause and Fourteenth Amendment did not give Congress the authority to enact...

The discharge of the jury from giving a verdict in a capital case, without the consent of the prisoner, the jury being unable to agree, is not a bar to a subsequent trial for the same offence.

This case involved the contest of a charge of "unlawful transportation and possession of intoxicating liquors in violation of section 3 of title 2 of the National Prohibition Act." A lower court had granted the defendants' claim that the "Eighteenth Amendment by authority of which the [National Prohibition Act] was enacted has not been ratified so as to become part...

This court decision discusses Congressional boundaries in regulating U.S. commerce, particularly in relation to foreign commerce. Judge Davis seems to conclude that Congress has a perfect right to regulate commerce - if only for a short time - if...

This case dealt with the government's ability to use electronic surveillance with a warrant, in the interest of domestic security. The Court had to balance the legitimate government interest of preventing domestic attacks with the privacy concerns of citizens. The Court decided that the searches themselves may be reasonable, but the Fourth Amendment requires an...

"Rather than issuing the summons required by Virginia law, police arrested respondent Moore for the misdemeanor of driving on a suspended license. A search incident to the arrest yielded crack cocaine, and Moore was tried on drug charges. The trial court declined to suppress the evidence on Fourth Amendment grounds. Moore was convicted. Ultimately, the Virginia...

"The respective trial judges held that the police were under no specific legal duty to provide protection to the individual appellants ... and dismissed the complaints for failure to state a claim upon which relief could be granted. ... However, in a split decision a three judge division of this court determined that appellants Warren, Taliaferro and Nichol were owed a special duty of care by...

George WashingtonPreparing to leave office, Washington wrote his now famous "Farewell Address" to placate American concerns that a country without his leadership could not survive. Washington stresses the importance of unity, the supremacy of the Constitution, the danger of...

This case resulted in the creation of the "exclusionary rule", meaning that evidence obtained in violation of the Fourth Amendment is inadmissible in trial. In this case, Marshals entered Mr. Weeks' house and discovered letters incriminating him. They did not have a warrant. The Court claimed that without the exclusionary rule, "the protection of the Fourth...

This case is generally said to have ended the Lochner era of Supreme Court decisions protecting economic liberties utilizing substantive due process reasoning. It upheld a "statute of the State of Washington ... providing for the establishment of minimum wages for women."

This Supreme Court case is regarded as the case that threw open the doors of federal government regulation. Whenever the constitutional authority of Congress to regulate interstate commerce is brought up, legal scholars and analysts point to this case, which gives Congress the authority to regulate almost anything it wants to regulate.

...

John Wilkes was a member of parliament who printed anonymous pamphlets criticizing the King. The king issued a general warrant to discover the creator of these pamphlets. Wood was charged with executing the warrant. The court ruled in favor of Wilkes, stating the power of general warrants is "totally subversive of the liberty of the subject… [and] of the most...

"The first of a series of lectures on Education under the auspices of the Lecture Bureau of the Department of Education was delivered in Cooper Union last night by President Woodrow Wilson of Princeton University, who chose for his subject 'Americanism.'"

"The framers, in seeking to establish and preserve the presidential veto, were aware that the originating House, unlike the President who is without incentive to avoid receipt of a bill which he is free to veto, might have the strongest motives to avoid the veto of a bill, if that were possible, by preventing its return or by challenging the fact of its return. They accordingly took care to...

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"Many parents and taxpayers feel helpless because the problems can seem so monumental. 'Kids Aren't Cars' director Kyle Olson reviews what he learned in the filmmaking process and the small things individuals can do that will add up to make a big difference." Here's Kyle being interviewed on a few things you can do and share with friends, family, and educators: Part 1Part 2
We all know Facebook is awesome for keeping up with friends, sharing about your life, and even distributing ideas. One great new way to get people thinking is to take advantage of the new banner profile with the help of Intellectual Takeout. Here's what one of our banners looks like loaded up on a Facebook profile: If you haven't changed your banner profile, than Facebook is likely ...
Tired of business getting a bum rap? We are, too. Here's your chance to share on Facebook the good news that business is good, beautiful, and makes life better.
While many documentaries on the education system focus on various examples of failure, "Flunked" takes a bit different tack. While certainly acknowledging and exposing the failures of the system, "Flunked" also seeks out individuals and approaches that ARE working in education. The hope is that these points of hope may serve as examples for others working in education.  Here's the trailer:...
Okay, so your friends and family keep telling you to jump on the social media bandwagon, but you have no idea what the fuzz is about. Here’s the deal: The Internet gives liberty-loving folk like us an opportunity we have never had before: to make the case for individual liberty, limited government and free market economics instantly and globally. But with the vast amounts of information...

Offline

Looking for an internship? If so, Intellectual Takeout has an opportunity for you. We have plenty of work to do as well as ideas to spread, and we need your help to get it done. If you're interested in an internship with Intellectual Takeout, you likely share our passion and you're excited about the possibility of working for a great cause. That said, you might have a few questions about what "...
The Association of American Educators (AAE) advances the teaching profession through personal growth, professional development, teacher advocacy and protection, as well as promoting excellence in education so that our members receive the respect, recognition and reward they deserve.
Are you concerned your child isn't getting the education necessary to compete in the global economy or even, perhaps, to carry on the lessons and learning of Western Civilization? If so, you have a number of choices. You could, of course, consider changing schools to a charter school, private school, or even homeschooling. If that's overwhelming for you right now, you can always supplement your...
Curiously, not a few individuals are realizing that their education (K-12 and even college) neglected to provide them with as much understanding of the world as they would like. At Intellectual Takeout, we believe that however you feel about your education, there is still much to be learned. To that end, we'd like to refer you to one book and a collection of "study guides" that serve as...
Sure, the idea of homeschooling is likely overwhelming. Indeed, homeschooling is a big commitment and a lot of work. That said, there's a reason why more and more parents are turning to homeschooling as the best option for their child(ren)'s education(s). Perhaps you are starting to realize that the public school system has changed a lot since you last attended it. Maybe you can't afford private...
Know your rights with Flex Your Rights guide to the "10 Rules for Dealing with Police."
In a highly regulated society such as ours, it's very easy to get yourself in trouble with the law. Learn more about how to protect yourself with the 5th Amendment and how to interact with the police.
Let's face it, most of us love to watch TV and movies. A wonderful way to spread ideas is to embrace our love of the cinema by hosting a movie night with friends and family.  There are numerous documentaries that do a fantastic job of sharing the ideas of liberty. You can pull a small group of friends together at your house or even consider asking a local restaurant or tavern to let you...
Watch "Waiting for Superman" to learn about the problems with the public education system.
Another movie that tells the story of the failing public school model in the United States is “The Lottery”. It takes its own unique look at the systems by focusing on the use of lotteries to choose which children will be plucked from failing public schools and put into more successful public charter schools. Here’s the trailer:  You can watch the whole movie right now with the help of Hulu...
While there are a variety of really good documentaries about the failing public school systems in America, "The Cartel" stands alone in its frontal assault on the teacher unions, particularly those in New Jersey. If you'd like to get an inside look into how some teacher unions operate and the effects they have on education, you'll want to watch "The Cartel."From the movie's website: "This movie...
How often do you hear conservatives being called a bunch of knuckle-dragging Neanderthals? Here's the reality: Conservatism, classical liberalism, and libertarianism have a rich, intellectual heritage reaching back many millennia. Our ideas are not just some historical relics from bygone eras; they are the very foundation of Western Civilization in general, amd the United States in particular....
Sadly (or happily for some), life goes on after college. So does the fight for freedom. Building friendships, networking, and growing the movement is critical after college. If our ideas are to be preserved and promoted, you need to stay involved. Plus, in a time when the individual seems to be ever more isolated and adrift, these groups can help plug you into social networks you can use....
Okay, so we don't expect you to drive a wooden stake into your flat screen. Plus, we're total hypocrites since we watch some TV. But here's the point: People waste a ton of time watching TV. If you're cool with government taking over your future, than keep watching Dancing with the Stars. If you consider yourself to be a free man or woman and want to live in a free society, then watch what you...
A great way to make a difference on your campus by spreading the ideas of individual rights, limited government, and free markets is to tutor. Plus, you can occasionally make a little bit of money. Depending on the subject matter, you will be discussing a variety of ideas, key thinkers, and theories. As anyone who has tutored knows, there are almost always opportunities to expand upon a topic....

On Campus

We've built Intellectual Takeout to provide you with quick, easy access to information. In time, we hope to become your one-stop-shop for the ideas of freedom. If your professor allows you to bring your laptop to class (if not, you can use an iPhone), we recommend keeping a tab open to Intellectual Takeout. As we continue to generate new content on the site, you will be able to fact check the...
When it comes to campus life injustices, student fees rank high on any list. On most campuses across the country a mandatory student fee is assessed to each student at the beginning of the year. A portion of this fee, which may be several hundred dollars, will go toward funding various political, religious, and interest groups.  A college requiring you to support groups espousing ideas which...
If you're not happy with the direction of the country and you want to take back your future, at some point you will have to do something. It's not enough to just know that we're going in the wrong direction. You actually have to step out and get involved. Most college campuses have conservative and libertarian student groups. Find one of them to join. Below is a list of some of the larger non-...
Now that you're at college and the initial excitement has worn off, maybe you're thinking that the course selection is a bit biased and you'd like some options. So how do you (the consumer) get the college (the business) to change up its offerings? It certainly won't be easy. Nevertheless it's something that should be done--particularly since you're footing the bill. A good, education in a free...
Whatever activism you choose to do on campus, you need to get your story out. A popular tactic used by the Left is to isolate and intimidate freedom-loving students. You're not alone and there are a lot of people in your city, state, and country that can probably support your efforts. They just need to know what is happening. Whenever you can, record in-class bias, discrimination against...
The reality is that most students (and people for that matter) won't speak out. It's called human nature and it was recognized in the Declaration of Independence: "...all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed." While you might feel alone when debating a teacher,...
In the land of the free and the home of the brave, speech codes are a particularly odious example of politically correct repression on many a college campus. In some ways, college campuses are the least free places for thinking and speech in America. Your best friend for fighting your school's repressive speech codes is the Foundation for Individual Rights in Education (FIRE). Here's a short clip...
Running for office isn't easy, even in college. Not everyone is cut out for it, either. For those of you who are, this completely non-partisan section is for you. If you are inclined to pursue student government, we're not going to spend time on telling you how to get elected. A good place to go for ideas and training is CampusReform.org. Rather, we want to help you in office, as a believer in...