Three cases that deal with a powerful federal law pervasive in its influence pose the opportunity to the Court for the takeover of legislative power.
Liberty Forum on the Constitutional Amendment Process
The Liberty Forum feature of this site is an exciting one. It provides for an essay on a topic of interest, followed by two responses by commentators, and then a possible reply by the original author. The first Liberty Forum was written by the excellent Philip Hamburger on the topic of the proper office of the judge, a subject that Professor Hamburger knows something about.
The second Liberty Forum was written by yours truly on the problems created by the failure of the national convention amendment process and the consequences of that failure for the protection of federalism. The piece was based on this longer article. Here is a short excerpt from my essay:
The failure of the convention method means that the Constitution largely operates as if it contained only the congressional proposal method for enacting amendments and therefore that no amendment that Congress does not support can be enacted. This congressional and nationalistic bias in the amendment process has distorted our constitutional history by preventing amendments that check Congress and, unless corrected, promises to do the same to our constitutional future.
I was fortunate to have two excellent commentators from two different perspectives: Nick Dranias and Bradley Watson. I have now posted a reply to their comments here. Here is a short excerpt from my reply, The Middle Way:
Watson argues that I am too optimistic about the benefits of a reformed amendment process. Dranias argues that I am too pessimistic about the current national convention amendment process. Watson argues that, even if the amendment process is reformed, no significant improvements can happen until the country grows out of its progressive beliefs. Dranias believes that significant benefits are possible now without any change in either the nation’s beliefs or the amendment process. My position – that a reform of the national convention amendment process could produce significant benefits, even though it would not solve all of our problems – is right in the center. The pairing of their two responses gives me the reasonable, middle position.