Why law professors don’t tell us much about our Constitution

To uncover what the Founding Generation really thought about the Constitution, you have to really want to do it. If you think of legal scholarship as mostly promoting your political views, then you don’t reach for the truth. Instead, you forage around for historical scraps that support your pre-fixed conclusion, and once you find them, you quit looking.

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Must the Federal Government Honor an “Equal Protection” Rule?

At first glance at the Constitution’s text, it would appear not. There is no general Equal Protection Clause in the Constitution applying to the federalgovernment—although there are a lot of clauses requiring equal treatment in specific situations. The Equal Protection Clause in the Fourteenth Amendment is general in nature, but it applies explicitly only to stategovernments.

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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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