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.Details
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.Details
In the wake of the Court’s decision, some cynical political operators have tried to provoke hysteria among the ignorant. To a certain extent they have succeeded: One citizen asked me recently about “that decision that took away our right to vote.”
Of course, the decision takes away no one’s right to vote.Details
U.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.Details
The issues raised by National Labor Relations Board v. Noel Canning, which provides the Supreme Court with its first opportunity to interpret the Recess Appointments Clause, are easy to misinterpret.Details
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.Details
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.”Details
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:Details
The full constitutional case against the power of “indefinite detention” – whether purportedly authorized by NDAA, AUMF or anything else. Overview of full 42 page Amicus brief signed by the Tenth Amendment CenterDetails