New Research Finds Most State Constitutional “Blaine Amendments” Facially Unconstitutional

New Research Finds Most State Constitutional “Blaine Amendments” Facially Unconstitutional

My newly published research finds that state constitutional bans on aid to “sectarian” institutions are facially unconstitutional. The bans have long been controversial, because some courts use them to void school choice programs that include religious schools. Opponents of those provisions—sometimes called “Blaine Amendments” after 19th century political figure James G. Blaine—typically claim they violate the Religion Clauses of the First Amendment because they were designed to discriminate against Catholic institutions. Defenders argue, however, that they apply to all religions,…

Read More Read More

Presidential Elector Discretion: The Originalist Evidence

Presidential Elector Discretion: The Originalist Evidence

This post first appeared at The Originalism Blog, in first and second installments. Colorado went Democrat in the 2016 presidential election. But three of Colorado’s Democratic presidential electors wanted to vote for someone other than Hillary Clinton. Two eventually cast ballots for Clinton under court order, while one—not a party to the court proceedings—opted for Ohio Governor John Kasich, a Republican. After this elector voted, state officials, acting pursuant to a judicial interpretation of state law, voided his ballot, removed him…

Read More Read More

Rob Natelson’s Research Again Relied on by a Supreme Court Justice

Rob Natelson’s Research Again Relied on by a Supreme Court Justice

On November 27, 2017 the Supreme Court denied certiorari (review) of a lower court decision in Upstate Citizens for Equality v. United States. Justice Clarence Thomas issued a dissenting opinion in which he argued that his colleagues should have taken the case. Justice Thomas twice cited (i.e., explicitly relied on) Rob’s 2008 research article on the Indian Commerce Clause. These two citations mark the 18th and 19th times since 2013 that Supreme Court justices have cited Rob’s articles. (The citations…

Read More Read More

What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 5th in a Series on the Electoral College

What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 5th in a Series on the Electoral College

The previous installment collected founding era evidence on whether presidential electors were to control their own votes. The evidence included dictionary definitions, existing practices, and the records of the Constitutional Convention. This installment continues the discussion of founding era by collecting material from the public debates on whether to ratify the Constitution. These debates occurred between September 17, 1787, when the Constitution became public, and May 29, 1790, when the 13th state, Rhode Island, ratified. Comments from those debates generally…

Read More Read More