The Growing Support for an Article V Convention of the States

The Growing Support for an Article V Convention of the States

One reason Donald Trump is finding support for his presidential bid is that so many people are fed up with Washington and its inability to get things done—that is, get things done the way the fed-up people think they should. Some of that sentiment is also driving a reexamination of an Article V Convention of the States. Most Americans know that the Founding Fathers tried to set up a system of checks and balances, but that issue is usually discussed in relation to the three branches of the federal government imposing a check on each other. But Article V of the U.S. Constitution creates a check and balance between the states and Washington. If two-thirds of the states apply to Congress for a convention for the purpose of amending the Constitution, Congress must convene it. If the convention of the states is able to agree upon a constitutional amendment, and if three-fourths of the states ratify the amendment, it would become part of the Constitution. There is a growing interest among state legislators who believe that Washington has ignored some of its constitutional responsibilities and far exceeded its allowable reach with respect to the states. An Article V convention might restore some of the historic balance. The country’s top expert on an Article V Convention is Rob Natelson, who used to be a law professor teaching constitutional law. He is now with the Independence Institute in Colorado. Natleson points out that there have been numerous multi-state conventions to consider similar issues, and that the process is pretty-well established. Participating states would send their representatives to the convention. Only the...
Congress Must Update ECPA to Protect Fundamental Rights

Congress Must Update ECPA to Protect Fundamental Rights

If the Fourth Amendment to the Constitution of the United States were being drafted today, James Madison, and George Mason before him, would likely not have used the word “papers” to describe various types of personal communications protected from unreasonable and warrantless search or seizure by government. Much has changed since then, but the idea communicated in the amendment is as clear as ever: that the people and anything they own must be protected from unreasonable and warrantless government searches and seizures. There should be little doubt that such a basic protection must extend into the electronic realm as well. The Electronic Communications Privacy Act (ECPA) was passed 30 years ago to extend the already-existing restrictions on government wiretapping of telephone calls to the transmission of electronic data by computers. But time and use of technology moved on while the law became as dated as a 5 ¼ inch floppy disk. Under the law, stored “communications” data (such as emails) kept for more than 180 days is considered “abandoned,” which has been interpreted to mean that the owner no longer has any expectation of privacy in what was stored. Therefore, law enforcement can access that data without a warrant. Data less than 180 days old requires the government to obtain a search warrant to acquire the data. But, many decades later and with computing power doubling 20 times since then, the initial concept of “transmission of electronic data by computers” bears almost no relation to technology and practices today. Today we save data, lots of data, for a long time. An increasing amount of personal data, most easily described...
Set Judicial Terms to Balance Accountability and Independence

Set Judicial Terms to Balance Accountability and Independence

The judiciary has been described as the least dangerous branch.  But that isn’t true.  The Supreme Court has become a continuing constitutional convention, in which just five votes often turns the Constitution inside out. The latest Supreme Court term was seen as a shift to the left. These decisions set off a flurry of promises from Republican Party presidential candidates to confront the judiciary. For instance, Jeb Bush said he would only appoint judges “with a proven record of judicial restraint.” Alas, previous presidents claiming to do the same chose Anthony Kennedy, David Souter, and John Roberts, among many other conservative disappointments. Sen. Ted Cruz (R-Texas) called for judicial retention elections. Even more controversially, he suggested that only those before the justices had to respect Supreme Court rulings. Extreme measures seem necessary because a simultaneously progressive and activist judiciary has joined the legislature and executive branches in forthrightly making public policy.  The influence of judges has been magnified by their relative immunity from political pressure, including life tenure. Lose the battle over filling a Supreme Court slot and you may suffer the consequences for decades.  Unelected, accidental President Gerald Ford merits little more than a historical footnote.  But his malign Supreme Court legacy long persisted through Justice John Paul Stevens, a judicial ideologue hostile to liberty in most forms. Life tenure is enshrined in the Constitution and rooted in history.  The justification for lifetime appointment is to insulate the courts from transient political pressures. Yet judicial independence does not require lack of accountability. Judges are supposed to play a limited though vital role—interpreting, not transforming, the law. The dichotomy...
Federalist Society Asks “Is the Akaka Bill Back?”

Federalist Society Asks “Is the Akaka Bill Back?”

One of the important roles that the Grassroot Institute plays in opposing the creation of a Native Hawaiian tribe is in promoting discussion and interest in the issue–especially on the mainland, where issues that are important to Hawaii can sometimes be overlooked. As a result, awareness of the problems inherent in the current nation-building efforts is on the rise. This podcast from the Federalist Society is from a teleforum that the public policy organization held on Dec. 17th.  In it, Hans von Spakovsky, Senior Legal Fellow and Manager of the Civil Justice Reform Initiative at the Heritage Foundation, discusses the recent effort from the Department of the Interior to involve itself in the creation of a Native Hawaii government. The informational briefing includes an explanation of why the DOI’s contemplated action violates the Constitution and is a good primer on the issue for anyone who needs a powerful and concise explanation of the problems with federal efforts to recognize a Native Hawaiian tribe.  ...