Why federal campaign finance disclosure laws are unconstitutional

Why federal campaign finance disclosure laws are unconstitutional

This article originally appeared in The Hill. Many on the left are campaigning to “overturn Citizens United.” By this they mean they want to reverse the portion of Citizens United v. Federal Election Commission in which the Supreme Court upended a federal ban on corporations participating in candidate elections independently of the candidates’ campaigns. The effect of the court’s ruling is to allow citizens to utilize the corporate form when participating in politics. By an accurate reading of the Constitution, the ruling was correct—not merely because…

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Part II: What Do We Do About Legal Realism and Its Promotion of Judicial Activism?

Part II: What Do We Do About Legal Realism and Its Promotion of Judicial Activism?

In the previous installment in this two-part series, I surveyed how the theory of “legal realism” came to displace the traditional views of law shared by Anglo-American attorneys and judges. I explained that the Constitution’s provisions for the judiciary were drafted with the traditional views in mind—but once “legal realism” began to dominate legal thinking, the judicial system no longer worked as expected. Legal realist thought encouraged judges to engage in activist behavior not anticipated by the Constitution. How, therefore,…

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Part I: Judicial activism: Here’s a core reason for it you’ve never heard about

Part I: Judicial activism: Here’s a core reason for it you’ve never heard about

Whenever a court issues a highly publicized liberal activist decision, constitutionalists understandably become upset. They cast around for ways to stop this kind of overreaching. But if you want to devise a viable solution to misconduct, you have to understand the reasons for the misconduct. And constitutionalists almost invariably overlook one of the core reasons. This post discusses that reason. Next week we shall address possible solutions. Federal judges and state supreme court justices are largely drawn from a group…

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Drafting a Balanced Budget Amendment: It’s tougher than you might think

Drafting a Balanced Budget Amendment: It’s tougher than you might think

The idea of a balanced budget amendment to the U.S. Constitution (BBA) has been highly popular since the 1970s. Yet Congress has failed to propose a BBA, and the number of states applying for a proposing convention remains stuck below the necessary 34. Meanwhile, the federal debt continues to soar out of control. Among the tactics employed by Article V skeptics is to highlight the difficulties in drafting an effective BBA. For once they have a point. Here are some…

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If you want to win a Supreme Court case, it helps to play to “progressive” values

If you want to win a Supreme Court case, it helps to play to “progressive” values

This article originally appeared in The Hill. Two new Supreme Court decisions illustrate the point: Even conservative litigants should argue their cases so as to genuflect before the legal elite’s “progressive” faith. Courts are supposed to apply the law neutrally. When construing the Constitution, this means they should apply the original, actual meaning of the document. Yet the Supreme Court often decides cases in ways divorced from that meaning. So it is easier to win your case if your argument…

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