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34 votes
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Why did CJ Roberts apply the Fourteenth Amendment to Harvard, a private school?

Justice Gorsuch attempts to explain (at p. 20 of his concurrence): In the years following Bakke, this Court hewed to Justice Powell's and Justice Brennan's shared premise that Title VI and the Equal ...
Jen's user avatar
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34 votes

If everyone in the Senate is drunk, does that invalidate their actions?

This is covered under what is known as the Enrolled Bill Rule, as used in Field v. Clark, 143 U.S. 649 (1892). The very fact that a law was passed raises an essentially unrebuttable presumption that ...
Robert Columbia's user avatar
31 votes
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Would it be constitutional for a US state or the federal government to ban all homeopathic "medications"?

Would it be legal for a US state or the federal government to prohibit the sale of homeopathic "remedies"? Yes. There are all sorts of medical treatments and drugs that are illegal. In ...
ohwilleke's user avatar
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28 votes

What happens when Congress violates the Constitution through inaction?

The Constitution grants Congress powers to do things but generally does not obligate them to do any particular thing. Constitutionally, it is equally valid for Congress to pass a bill, to vote a bill ...
Justin Cave's user avatar
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22 votes

What happens when Congress violates the Constitution through inaction?

The only obligation the Constitution imposes upon Congress is that they must meet at least once a year: The Congress shall assemble at least once in every Year, and such Meeting shall be on the first ...
Mark's user avatar
  • 6,388
19 votes

If everyone in the Senate is drunk, does that invalidate their actions?

Is that a validly passed law? Yes. Robert Columbia's solid answer provides a basis in case law and a federal statute for this conclusion. Even without this case law or statute, however, the U.S. ...
ohwilleke's user avatar
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19 votes

In Indiana, can an apartment complex force you to remove social media posts if they pertain to the management?

What First Amendment rights? The First Amendment says: Congress shall make no law ... abridging the freedom of speech, or of the press; ... By virtue of the Fourteenth Amendment, this restriction ...
Dale M's user avatar
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18 votes
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Can penalties be increased retroactively by statutes?

united-states Such a law would be prohibited under the ex post facto clause of the Constitution. A (very!) early Supreme Court case on this was Calder v. Bull (1798), in which Samuel Chase wrote I ...
Michael Seifert's user avatar
18 votes

Can a judge be barred from office under the 14th amendment for offering aid and comfort to an insurrectionist?

Is this a correct interpretation of the provisions of section 3 of the 14th amendment? No. A good faith ruling on a disputed legal issue by a judge is not providing aid and comfort. Can a judge be ...
ohwilleke's user avatar
  • 221k
17 votes

Why did CJ Roberts apply the Fourteenth Amendment to Harvard, a private school?

TL;DNR: You are right. Roberts says Harvard should lose because it violates the 14th Amendment. But he does not say the 14th Amendment applies directly to Harvard. He says Title VI and the 14th ...
Just a guy's user avatar
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17 votes
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Who pays for the damages caused by the government attempting to enforce a preempted or unconstitutional law?

In general Who pays for the damages caused by the government attempting to enforce a preempted or unconstitutional law? It depends upon the legal theory asserted and the parties involved. ...
ohwilleke's user avatar
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16 votes
Accepted

Could one get a declaratory judgement on which parts of the Constitution *are* self-executing?

No, a U.S. federal court will not issue a free-standing declaration of constitutional meaning outside of a case or controversy. This is a jurisdictional limit. By way of comparison, Canada does ...
Jen's user avatar
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16 votes
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Has Article 5 of the German Constitution any influence on me as a PhD student in Germany?

Neither one. One key word in the description of your situation is "employed." If you are hired for a certain project, you are required to do that work or face the consequences as far as your ...
o.m.'s user avatar
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13 votes

NASA and the president's power

Not exactly. The Impoundment Control Act limits presidential power of rescission and deferral in spending of Congressionally approved funds. Rescission requires Congressional approval, and there is a ...
user6726's user avatar
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13 votes
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Can a state force someone to sell it something?

The tendency for governments in the U.S. to purchase goods from private firms in voluntary transactions is largely a policy choice (in part, consistent with a distaste ideologically for communism) ...
ohwilleke's user avatar
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10 votes

What does Section 2 of the 21st Amendment to the US Constitution do?

State laws that impair the ability of businesses to operate on an interstate basis can be held unconstitutional and invalidated pursuant to a U.S. Constitutional law doctrine known as the dormant ...
ohwilleke's user avatar
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10 votes
Accepted

Why does Art. 103 of the German Basic Law forbid a second trial after an acquittal?

tl;dr: There is a long legal tradition that the prohibition on being punished a second time really means that a suspect cannot (generally) be put on trial for a second time, no matter whether the ...
sleske's user avatar
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10 votes

Can penalties be increased retroactively by statutes?

canada In Canada, this is answered by section 11(i) of the Canadian Charter of Rights and Freedoms: Any person charged with an offence has the right ... if found guilty of the offence and if the ...
Jen's user avatar
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10 votes
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Pleading Not Guilty when you are guilty

A "not guilty" plea is not a statement of fact, it not made under oath, and is not subject to an ethical obligation that it be supported by a belief that the client is factually innocent of ...
ohwilleke's user avatar
  • 221k
10 votes

Has Article 5 of the German Constitution any influence on me as a PhD student in Germany?

No. The word "free" there doesn't refer to price. It refers to (as seen in the rest of art 5.) freedom of speech and freedom of expression. And it is a guarantee between the state and the ...
PMF's user avatar
  • 5,980
9 votes
Accepted

On what basis are Miranda rights enforced?

The U.S. Constitution, as the U.S. Supreme Court held in the year 1966 in the Miranda case, provides that introduction of evidence obtained without a Miranda warning in a criminal trial is ...
ohwilleke's user avatar
  • 221k
8 votes

Why did CJ Roberts apply the Fourteenth Amendment to Harvard, a private school?

Harvard university receives substantial money from the federal government. There is a federal law prohibiting racial discrimination in education, 42 USC 2000d, which says No person in the United ...
user6726's user avatar
  • 215k
8 votes

Can penalties be increased retroactively by statutes?

european-convention-on-human-rights Such a law would not be consistent with the European Convention on Human Rights, article 7, paragraph 1: No one shall be held guilty of any criminal offence on ...
Daniel Hatton's user avatar
8 votes

Who pays for the damages caused by the government attempting to enforce a preempted or unconstitutional law?

canada This question is currently before the Supreme Court of Canada in an appeal styled Attorney General of Canada v. Joseph Power. The question is when, if ever, a damages award would be available ...
Jen's user avatar
  • 59.8k
7 votes

Can a person be convicted for violating a law that had been ruled unconstitutional by a lower court but was later reinstated?

No. This is covered by the U.S. Constitution by its banning of Ex Post Facto laws from being enforce (i.e. The law cannot be enforced against violations of the law that took place prior to the ...
hszmv's user avatar
  • 23k
7 votes

Who pays for the damages caused by the government attempting to enforce a preempted or unconstitutional law?

In france, the constitutionality of a law can be checked before its promulgation, or after. If it is checked after, and deemed to be unconstitutional, then it is struck down at the date of the ...
Maxime's user avatar
  • 802
7 votes
Accepted

Can the government compel a witness to testify against an accused criminal?

united-states There is no general right to avoid testifying in court on any matter. There are some protections for defendants, victims, and minors, and for material that's confidential in some way (e....
Cadence's user avatar
  • 953
6 votes

Is it constitutional to require that certain drivers have no detectable alcohol in their bloodstream without religious exemptions?

Is this a violation of his freedom of religion? No. Even if freedom of religion allows for sacramental consumption of alcohol, it doesn't give you a right to drive a motor vehicle after doing so. ...
ohwilleke's user avatar
  • 221k
6 votes

Why does Art. 103 of the German Basic Law forbid a second trial after an acquittal?

The English translation (via Google) of the linked article states: The Second Senate of the Federal Constitutional Court (BVerfG) has upheld the constitutional complaint of a man who, after being ...
ohwilleke's user avatar
  • 221k
6 votes

If the legislature wrote into law "black is white", how would the judiciary react?

There was a recent case in the US state of California (Almond Alliance v. California Fish & Game Commission) that got a lot of press because the court found that bees were fish. The California ...
Justin Cave's user avatar
  • 3,067

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