Prop 8 stands?

Consider this: 1.  The Supreme Court today ruled in its opinion holding DOMA unconstitutional that the states are entitled to decide their own marriage laws.  Assume this is not a meaningless statement – a “bald, unreasoned disclaimer,” as Justice Scalia called it.  (This may be asking much of those who recall the majority opinion author’s…

Scalia on Reading Law

Supreme Court Associate Justice Antonin Scalia spoke on his new book, Reading Law, at a lunch at the California Club in downtown Los Angeles today, hosted by the Federalist Society.  The majority of Justice Scalia’s remarks were responses to questions submitted via note cards by a crowd well over 250 in number, by my estimate –…

Presuppositional Constitutionalism

Does the Constitution assume certain presuppositions on the part of those it means to govern?  If so, what are those presuppositions?  I submit the answer to the first question is yes, and explain the presuppositions that by necessity must be true for our Constitution to be intelligible.  In light of the project begun here recently…

The Supreme Court We Deserve

In one of his questions during oral arguments on the Affordable Care Act, Justice Kennedy observed the judicial presumption in favor of the constitutionality of federal statutes.  The presumption is a nod to the democratic process, which itself is generally the most decisive proxy we have for institutional legitimacy.  But it is not the proxy. …