gay marriage constitution

Federalism and the DOMA Decision

Federalism and DOMAby Randy Barnett, for SCOTUSblog

Because the logic of Justice Kennedy’s opinion for the majority in Windsor is novel, it is likely to confuse observers as it seems to have confused the dissenters.  So in this post, I want to lay bare this logic, by explaining how it resembles, but also differs from, the federalism argument we made in our “Federalism Scholars” amicus brief (cited by the Court at page 23).

In our brief, we contended that DOMA was unconstitutional because (a) Congress had no enumerated power to regulate or “defend” marriage by imposing its definition on the states, and (b) DOMA was not necessary and proper for carrying into execution any of its enumerated powers.  By operating in so sweeping and undiscriminating a manner, DOMA was exceeded its enumerated powers by enacting a law that by design interfered with the operation of the traditional state regulation of marriage.  But overlooked in debates about our argument, we also made this federalism claim in the context of equal protection:

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Dead-goldfish

Cheaters Revenge Meets the New World Order

Dead-goldfishby Nick Dranias, Goldwater Institute

What does poisoning a goldfish to get revenge on a cheating spouse have to do with the President’s power to make treaties? The constitutionally correct answer is: Nothing at all. Unfortunately, that’s not how the Obama Administration sees it. The Administration is claiming power to get into a domestic dispute under the authority of a chemical weapons treaty. And it is aggressively advancing the proposition that Congress’s power is essentially unlimited when based on the treaty power.

The federal government has been prosecuting Carol Anne Bond for causing minor burns to the fingers of her husband’s girlfriend after spreading a caustic chemical used in developing photographs around her home. Ms. Bond has fought the prosecution by arguing that the Constitution gives power over such domestic disputes to the States.

According to the U.S. Court of Appeals for the Third Circuit, Congress implemented a chemical weapons treaty by enacting a law that expands the treaty’s purpose and turns “each kitchen cupboard and cleaning cabinet in America into a potential chemical weapons cache.” In an earlier phase of the litigation, Justice Samuel Alito asked, “Suppose that the Petitioner in this case decided to retaliate against her former friend by pouring a bottle of vinegar in the friend’s goldfish bowl. As I read this statute, that would be a violation of this statute, potentially punishable by life imprisonment, wouldn’t it?”

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Federal War on the 4th Amendment Continues

The framers were very careful when they wrote the Fourth Amendment, as it imposes the most explicit requirements on the government found anywhere in the Constitution. It requires that all search warrants “particularly describ(e) the place to be searched, and the persons or things to be seized.” So, if the government follows the Constitution, it cannot seek what it is unable to identify, and it cannot compel the custodian of whatever records it is seeking to do its work for it.

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500b3e0cc4aa540325607e13

Guerrilla Jurors: Sticking it to Leviathan

Citizens in our (once) free republic founded under the English common law system, have both the power and the right to vote according to conscience when they sit on a jury and can vote not guilty even in the face of the law and in the face of the evidence. The defendant also has a right to expect that his jury will be fully informed of their rightful power to vote “not guilty” if they believe justice requires it, regardless of the evidence. Anything less is not a real jury trial.

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