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If states traditionally regulate marriage, why can’t states make homosexual marriage illegal?

An international student asked a very good question in our class the other day. He noted that because of federalism, states generally have the power to regulate marriage.  When people get married in the United States, a state, not the national government, certifies the marriage. But the student also noted that he learned that states may not prohibit a same-sex couple from getting married.  That is, if two men or two women want to get married, the state must permit the marriage.   How can this be if states regulate marriage within their borders?  Under what authority can states be required to allow same-sex couples to get married? The Constitution and the Supremacy Clause The answer is connected to the Constitution of the United States and the Supremacy Clause  (more info on the Supremacy Clause here). No law is higher in the United States than the Constitution – – that is why the Constitution is called the Supreme Law of the United States.  If any law violates the Constitution, a court can declare the law unconstitutional through its power of judicial review. You can think of this like a card game.  The Constitution is the highest card in the deck, the Ace of Spades.  Any other card is weaker than the Ace of Spades.  We’ll say a state law is the Queen is Hearts.  Because the Ace of Spades is higher than the Queen, the...

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What is a writ of mandamus? by uslawessentials | Oct 12, 2017 | video, What does . . . mean? | 0 CommentsThis video introduces the writ of mandamus, an order from an appellate level court to a judge or government official. What is a mandatory arbitration clause? by uslawessentials | Aug 22, 2017 | ADR, Contract law, video, What does . . . mean? | 0 CommentsThis video discusses arbitration and contractual agreements obligating parties to arbitrate. Ziglar v. Abbasi: The Scope of Bivens Actions by uslawessentials | Aug 15, 2017 | Supreme Court News, The Constitution | 0 CommentsThis video and post discusses Ziglar v Abbasi, in which the Supreme Court defined the scope of Bivens actions. What is a federal grand jury investigation? by uslawessentials | Aug 12, 2017 | Criminal Law, Evidence, video, What does . . . mean? | 0 Comments Grand Jury: Impaneled, Investigation, and Indictment You probably read in the news that a special prosecutor, Robert Mueller, impaneled a grand jury as part of an investigation into interference by a foreign power (Russia) in the US elections and whether... What is a limited public forum? by uslawessentials | Aug 7, 2017 | The Constitution, video, What does . . . mean? | 0 CommentsThis video introduces the limited public forum, a space designated by the government for certain types of expression. Supreme...

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Agency by estoppel test

In an agency by estoppel a defendant will be liable to a plaintiff because the defendant’s negligence or intentional acts caused the plaintiff to reasonably rely on there being an agency relationship between the defendant and someone who purported to act on behalf of the defendant. As a general rule,  a person can bind someone else to a contract if he has authority as an agent to act on that person’s behalf.  The person on whose behalf the agent is acting is called the principal.   For example, a salesperson (agent) can bind his company (principal) to a sales contract because he has authority as an agent to represent the company.   If an agent sells a house on the owner’s (principal) behalf the  owner can’t suddenly refuse to sell the house. Naturally, the result is different if a person is not really an agent.  If a person pretends to be a salesperson for a company he can’t force the company to honor a contract – – the “salesperson”  is an imposter and no agency relationship exists with the company. Courts will apply an exception where a person or company is careless and as a result a third party reasonably relies on the existence of an agency relationship.   For example, let’s say an imposter goes around purporting to act as a salesperson for an electronics store that sells television sets.  The...

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What is the mirror image rule?

I also talk about that a bit here The mirror image rule is a traditional rule of contract law which requires an acceptance to contain the same terms as an offer, otherwise, there is no contract. For example, let’s say Mr. A offers Ms. B his car for $5,000 and Ms. B says she accepts the offer but also wants the car to come with a big red ribbon on the hood. The mirror image rule tells us Ms. B rejected Mr. A’s offer and made a counteroffer to buy a car for $5,000 with a big red ribbon.  Mr. A now has to decide whether he wants to accept Ms. B’s offer.  Mr. A does not have to sell the car and Ms. B does not have to buy the car until they agree completely on all the terms. Here is an older video I made on the mirror image rule:...

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Been busy but here are a few recent projects

I’ve been a bit swamped lately but here are a few projects I created for a class I’m teaching.  The material provides some basic information on the US Constitution.     The Constitution and the Distribution of Power to the Federal Government The Constitution and the Protection of Important Freedoms Talk to you...

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