With Utah’s Marriage Amendment recently overturned by a federal court, many Utahns are doubtless wondering what exactly justifies (or not) the courts in overturning the voice of the People. The answer to this question lies in the concept of Rule of Law.Details
This question just came in on our feedback forum, and I thought it was important enough to discuss that I’d share my answer here.
QUESTION: Is the principle of anti-commandeering synonymous with nullification
ANSWER: It depends on how you define the word “nullification”
Many believe that it is defined only as John Calhoun did in 1830’s South Carolina.
Anti-commandeering is not that process.
What it is, though, is a 100% legal process, backed up by years of Supreme Court precedent, which says that the feds cannot “commandeer” state resources to carry out a federal act or regulatory program. In other words, the states are free to decide if they will participate or not.
Recognizing that many, if not most, federal programs rely heavily on this kind of cooperation, by enacting anti-commandeering laws on various issues around the country, they can have the effect of a practical nullification – rendering federal acts “nearly impossible to enforce”
I think it is not surprising that the leading current commentaries supporting the President — including the four mentioned above — focus on modern needs or on practice long after ratification. The founding-era meaning is clear and straightforward. Cecere’s weak attempt to show otherwise actually confirms it.Details
There have been some top constitutional experts making comments about our legislative proposal to NullifyNSA. Here’s a balance – pro and con – of the most prominent of late.Details
The Ninth Circuit (Judge Harry Pregerson writing) had an interesting recent decision regarding foreign relations federalism in Cassirer v. Thyssen-Bornemisza Collection Foundation. The case involves California Code of Civil Procedure § 338(c)(3), which extends the statute of limitations for suit for the recovery of fine art against a museum, gallery, auctioneer, or dealer.Details
while the article is most directly about Article VI and the ways federal interests should and should not trump state law, it is more broadly about how original meaning can be implemented in an area with significant non-originalist judicial precedents.Details
TIME’s Nate Rawlings reports on state-level efforts to thwart NSA spying, but doesn’t understand the Constitutional basis behind the effort.Details
Historians and non-originalists argue that legal scholarship lacks the tools to identify original meaning. But that is, to a significant extent, because they misunderstand what originalist analysis seeks to do.Details