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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Justices Make It Tougher for State Universities to Discriminate, But Not Tough Enough

Fisher v Texas(This is the third of several short commentaries on recent Supreme Court decisions. see HERE and HERE)

The Supreme Court’s recent decision in Fisher v. University of Texas has made it tougher for state universities to run their ethnic spoils systems. But not tough enough.

First, the background:

The Fourteenth Amendment requires states to extend “equal protection of the laws” to their citizens. The primary goal of the Equal Protection Clause was to stop states from discriminating against racial and ethnic groups. But the actual wording of the Clause covers more than just racial and ethnic discrimination.

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Do the Feds Belong in Indian Adoption Law?

Rob Natelson writes: “There is little more heart-rending than the sorrow of a child.

The sorrow of a child—and of her adoptive parents—created one of the Supreme Court’s more compelling cases this term. I was happy to be cited extensively in one of the opinions. And, much more importantly, happy that the Court acted to minimize the sorrow of the child and of her adoptive parents.”

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Why the Framers Could Suggest Ratification by Only Nine States

SigningconstituIn prior postings such as the one here, I have explained why it is wrong to claim that the commissioners (delegates) to the 1787 Constitutional Convention exceeded their power in recommending that the Articles of Confederation be replaced by a new instrument.

Another aspect of the same charge is that the Framers exceed their power by providing that the Constitution could come into effect upon ratification by only 9 states instead of the 13 the Articles required.

One quick answer is that ultimately the Constitution was ratified by all 13. The 13th state (Rhode Island) ratified on May 29, 1790, less than three years after the document was composed.

But there is a more formal, and perhaps better answer.  Here’s the background:

The Declaration of Independence explicitly presented Americans to the world as “one people”—not as 13 different peoples. It is true that this “one people” initially operated through 13 separate

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