A Carcass for Constitutional Vultures

Constitutional VulturesU.S. v. Windsor—the case in which the Supreme Court struck down the Defense of Marriage Act (DOMA)—is a carcass from which constitutional flesh-pickers will feast for a very long time. It is one of those cases like Dred Scott v. Sandford or Roe v. Wade that is so uncandid and so laden with gibberish that not even those who like the result can defend the Court’s language with a straight face.

The problems begin with the fact that the case was a collusive one—that is, both Ms. Windsor and the federal government were on the same side. The primary defense of DOMA was not presented by a party at all, but by a majority of Congress acting as “Friends of the Court.” Of course, non-parties do not have the same sort of stake in a case that parties do, which is why the Constitution bars collusive suits from federal court.

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Don’t Blame Me, I Did the Bare Minimum

True advocates of liberty don’t sulk because their candidate wasn’t elected. They don’t idly gloat in the comfortable knowledge that their guy would have been a better choice. They certainly don’t look three years down the road to see which defender of liberty will come riding to their rescue astride a white horse. Voting, especially at the federal level, is doing the bare minimum. For those who wish to live free from the oppression of an overreaching federal government, there’s real work to be done.

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