They tried to hang DOMA on the commerce clause?

Trojan Horse

Oh, what a tangled web we weave when first we practice to deceive.

Yes, I refer to about 90% of our current constitutional law and the nonsense that provides its transparently absurd rationale.

Really?

The commerce clause?

In passing Linda Greenhouse writes,

A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws.

Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all.

Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)

Wow.

We are ruled, not by laws, but by judges shoveling bullshit by the ton.

By the way, the reference to Gideon in LG’s piece is very much on point.

Gideon is constitutional nonsense in a good cause.

As was Loving, cited earlier.

But it’s horse-manure, all the same.

The only honest reply for a liberal is, “So what?”

As to old William O, he was the biggest and boldest fraud of them all.

She writes of today’s Supremes,

But you will listen in vain for the voice of Justice William O. Douglas, who brushed away concerns about what he dismissively called “this federalism” to ask: “Has any member of this court come out and said in so many terms it’s the constitutional right of a state to provide a system whereby people get unfair trials?”

To which tendentious and question-begging query the true and only answer is, sadly, “Yes.”

And the constitution most certainly does not partake of anyone’s fundamental commitment to equality under law.

The Solicitor General, when he spoke of such a thing, was speaking as a liberal to liberals, not as an obedient, sworn servant of the constitution to others likewise sworn.

Reminds me of this quote from Jefferson, addressed to Marshall.

Marbury vs. Madison

You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so.

They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.

The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.

It has more wisely made all the departments co-equal and co-sovereign within themselves.

He’s half right.

The Constitution didn’t face the issue, at all.

Apart from one possible use of the presidential veto, there is no provision in it for anyone to play constitutionality cop with regard to either federal or state acts.

Too bad.