Restoring Nobility to the Constitution: A Modern Approach to a Founding Principle

It is common lore in the United States that our federal government was structured with a number of checks and balances that ensure, at a minimum, the equal application of law among all citizens. While there are indeed such structural mechanisms embedded in the Constitution, they don’t always work as intended and, in fact, at times they fail utterly to prevent blatant abuses of the rule of law by the vast and growing political class in America. Our political office holders (and their favored constituents) can, and do, pick and choose which laws apply to them and, more importantly, which laws they are exempt from. This has led to increasing outrage focused on the nation’s inequitable political and legal framework, with many calling for, among other things, new amendments to the Constitution to remediate the infirmities of the system. The solution, however, is already in the Constitution. The “Nobility Clauses” are among the least understood, and least invoked, provisions of the Constitution relating to the use, limits and distribution of political and legal power in the United States. Many believe that the purpose of the Nobility Clauses is specifically limited to forbidding grants of noble titles by the federal and state governments of the United States and are thus of narrow constitutional importance. This paper will show that the Nobility Clauses were never intended to be limited solely to prohibiting titles and were, in fact, intended to prevent the political class from granting themselves and their favored affiliates privileges and immunities not available to the general public. This paper concludes with a proposal for a mechanism to enforce the Nobility Clauses in a modern context

The Inapplicability of First Amendment Protections to BDS Movement Boycotts

This paper has been derived from, and is an expansion of, certain arguments the author made in an earlier legal study of the BDS Movement under United States law entitled, “The BDS Movement: That Which We Call a Foreign Boycott, by Any Other Name, Is Still Illegal,” and is meant to rebut recent misleading assertions that the First Amendment protects participation by United States persons in foreign boycotts of Israel

Boycotting the Boycotters: Turnabout Is Fair Play Under the Commerce Clause and the Unconstitutional Conditions Doctrine

Organized boycotts are among the most powerful means of expressing a viewpoint. Boycotts have become so prevalent and persuasive in American politics and culture that many local and state governments have adopted this form of expression as well, particularly through laws and policies that prohibit state funds from being invested in, or spent to contract with, parties whose actions the state finds objectionable. While the First Amendment status of many boycotts has been robustly covered in court opinions and scholarly works, the constitutionality of state and local governments responding in kind with their own boycotts is not as well understood. Many commentators, and some litigants, take the position that state boycott action violates, inter alia, the Dormant Commerce Clause and the Unconstitutional Conditions Doctrine, predicated on what is often a false belief that all boycott activity by non-state actors is absolutely protected First Amendment expression. This Article examines the intersection of state and local boycotts of boycotters, on the one hand, and the Dormant Commerce Clause and Unconstitutional Conditions Doctrine, on the other hand. One of the most contentious cases of states boycotting the boycotters involves state antidiscrimination laws designed to allow states to refuse to enter into contracts with parties engaged in organized boycotts of Israel. This Article takes an in-depth look at this particular boycott movement and state laws enacted to deal with the discriminatory intent and impact of those boycotts. It finds that states are on firm constitutional ground in enacting laws that boycott the boycotters