Con law in the news: This is my jam.

On the way to work, I was listening to Walton & Johnson (they're amazing, and if you're not listening to them, you should be), and they were talking about new bills garnering the support of state governors. Apparently, these are being introduced in several state legislatures (I'm supposed to be really working, so I can't look them all up right now, but I know Oklahoma, Texas, and Tennessee are all included). They are basic declarations that the state reaffirms the validity of the Tenth Amendment and plans to enforce it. For those of you who didn't waste three years in law school constitutional law classes, this is the text of the Tenth Amendment:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Basically, then, the states that are reaffirming this are saying that unless the Constitution explicitly gives the federal government the right to do whatever it is that the federal government is doing (you know, like adopting communism as our economic format), the states can IGNORE it. How beautiful is that? This policy, called nullification, was popular around the time of Andrew Jackson. Wikipedia (noted legal authority) explains:

Nullification is a legal theory that a U.S. State has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional. The theory is based on a view that the sovereign States formed the Union, and as creators of the compact hold final authority regarding the limits of the power of the central government. Under this, the compact theory, the States and not the Federal Bench are the ultimate interpreters of the extent of the national Government's power. A more extreme assertion of state sovereignty than nullification is the related action of secession, by which a state terminates its political affiliation with the Union.

This theory lost steam when the South took it a step farther and actually seceded from the Union. But it's apparently poised for a comeback. And I am ALL FOR IT.

A caveat: Since I've been trained to write legal stuff, I have to present the counterargument to all this, which is pretty major. Even if we're saying that the federal government has to have the express power to do something, the Constitution gives the feds some major latitude in the Necessary and Proper Clause. According to that,

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Pretty much, it says Congress can do whatever it needs (read: wants) in order to achieve something it's expressly allowed to do (like tax, go to war, etcetera--read Article I for a full list). So as long as congress relates its action to an expressed power, it's fine. There are ways to get around it, but I've bored you enough with legal theory.

However, if you're bored, or crazy, or actually interested, below is a paper I wrote awhile back examining all this. I love this part of the constitution with all my libertarian heart, so I have way too much to say about it. Thanks for listening.


Reconciling Unenumerated Rights

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