An unconstitutional “law” is no law at all, which puts most of the federal register to the legal trash. But, since the federal government doesn’t recognize the constitution, the only way to render those federal acts null and void in practical effect is to resist and nullify them on a state, local and individual level.Details
Earlier this year, the Harvard Journal of Law and Public Policy published my article showing that the Constitution’s Recess Appointments Clause limits presidential vacancy appointments far more than President Obama (and most prior Presidents) have claimed. I posted earlier on the same subject here.
The issue is before the Supreme Court right now.Details
I like that McGinnis and Rappaport frame the core question of constitutional adjudication as a choice among (a) originalism, (b) a “living constitution,” or, as they frequently call it, “judicial updating”, or (c) judicial deference to political branches.Details
Trying to solve these questions by judicial reasoning rather than historical inquiry converts them from questions about what the framers wrote to questions about what the judge thinks is best.Details
A Liberty Preservation Act that would help thwart the unconstitutional indefinite detention efforts of the federal government has been introduced in Minnesota.Details
Via Derek Muller at Excess of Democracy, last week the Tenth Circuit found a guarantee clause claim justiciable. Here is the opinion in Kerr v. Hickenlooper, which is challenge to Colorado’s constitutional limits on the legislature’s power to tax.Details
Robert J. Pushaw (Pepperdine University – School of Law) has posted Obamacare and the Original Meaning of the Commerce Clause: Identifying Historical Limits on Congress’s Powers (University of Illinois Law Review, Vol. 2012, No. 1703, 2012) on SSRN. Here is the abstract:Details