Still, I was surprised to see that TLC was coming out with a new show called “Sister Wives,” which is essentially the reality show version of Big Love. Polygamy is of course illegal in Utah, where the series is filmed, as well as in all other U.S. jurisdictions. And, predictably, the police are now investigating the family for possible charges of bigamy and adultery.

Utah’s bigamy statute provides that

“[a] person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.”  Utah Code Ann. § 76-7-101 (2003).

Not to mention, just four years ago in 2006, the Supreme Court of Utah rejected a barrage of Constitutional and statutory challenges to the statute, in State v. Holm:

Holm argues that his conviction under the “purports to marry” prong of the bigamy statute was improper as a matter of statutory interpretation.   Specifically, Holm argues that he did not “purport to marry” Ruth Stubbs, as that phrase is used in the bigamy statute, because the word “marry” in subsection 76-7-101(1) refers only to legal marriage and neither Holm nor Stubbs contemplated that the religious ceremony solemnizing their relationship would entitle them to any of the legal benefits attendant to state-sanctioned matrimony.  Second, Holm argues that his conviction under the bigamy statute was unconstitutional as applied in this case because it unduly infringes upon his right to practice his religion, as guaranteed by our state constitution.   Third, Holm argues that his conviction under the bigamy statute was unconstitutional under the federal constitution. …

We reject each of these arguments.  

So why, then, did Kody Brown and his wives agree to go on the show on the first place?

The family does not seem to be an obvious bunch of dumbasses, which is generally my first guess when it comes to this sort of thing. However, while I would not rule that possibility out entirely, given the context of the show, I wonder if the family was motivated, at least in part, not in spite of the fact that there was a risk of prosecution, but because of it. Their stated reason for agreeing to star on Sister Wives is to raise awareness of the polygamous lifestyle, and it is not a far leap from there to wonder if perhaps they also hope to de-criminalize polygamy by bringing a favorable test case before the courts.

If so, that is a bold and risky move to make. Bigamy is a felony that is punishable by up to five years in prison, and so far, no court has ever found that laws criminalizing bigamy are not constitutionally enforceable.

Still, bigamy prosecutions are rare, and prosecutions of polygamous individuals are rarer still. And, apparently, all prior polygamy prosecutions have involved allegations of abuse or other improper activity. If the Brown family does end up facing prosecution, the case might very well end up being a constitutional landmark.

It turns out the GW Law professor Jonathan Turley has gotten involved in the case, and is lead counsel for the family. Turley’s take on the case is pretty much the same as my own:

The use of this statute to prosecute the Browns would be in my view unconstitutional. It would also end a long-standing policy to confine prosecutions to those who abuse children or commit such crimes as fraud. We are confident that the authorities will find no such criminal conduct in this case and we intend to cooperate to the fullest in resolving any such questions from the State. I hope that the prosecutors will recognize that this would be bad criminal case making bad criminal law. It is, after all, a television show and there is no need to move the matter from the television guide to the criminal docket.

Whether it is based on First Amendment religious freedoms, or on freedom of association grounds, or (most likely) Lawrence-style due process protections, criminal prosecution of polygamy is likely not sustainable under the federal Constitution. I suspect that the current Supreme Court would have a very hard time finding prosecution of the Brown family to be permissible — even the faction that dissented in Lawrence might now be inclined to accept its precedential value, albeit grudgingly.

Besides, if there was ever the perfect defendant for testing the constitutionality of criminalizing polygamy, the Browns are it. I actually watched an episode of Sister Wives last night, and it was primarily remarkable for how utterly banal it was. If it wasn’t for the sub-plot involving Kody Brown taking a fourth wife, the show would be so lacking in material that it probably wouldn’t be able to exist. I mean this in the nicest way possible, but the family is super boring. In a lot of ways, it reminded me of another TLC show, 18 and Counting, about the infamous Duggars. While temporarily intriguing for the gawking factor, both shows very quickly devolve into utterly trivial depiction of average home life.

And Sister Wives, with its mere 1:4 adult-to-kid ratio, can’t even come close to matching the logistical ingenuity displayed by the Duggars, who face a more daunting 1:10 ratio. In fact, with their incredible feats of organization and their eerily unflagging cheeriness, the Duggars seem far more alien to mainstream American life than the Browns ever could.

-Susan

But as a matter of the Constitution, it’s a whole lot harder to feel that same level of confidence.

I’ve been thinking about this a lot lately, for obvious reasons, and I think that, for me, my hesitancy and uncertainty about whether there are Constitutional protections for gay marriage grows directly out of of my hesitancy and uncertainty about the role of judicial fact finding in Constitutional interpretation.

To be clear, my use of the word “fact” here does not mean refer exclusively to empirical scientific fact — although that sort of fact is included as well — but rather I mean “facts” that are based not merely on physical occurrences but are sociological or even, to an extent, philosophical “facts.”

For instance, I hold the following to be accurate factual statements:

1. Males and females are, jurisprudentially, identical. That is, there are no differences that are legally cognizable between people in the class of humans that we call “male” and people in the class of humans that we call “female.” (To clarify, I don’t believe in the slightest that males and females are biologically identical. But while knowing a specific person’s sex will allow you to guess, with increased accuracy, the degree to which that person displays various physical and mental attributes that are distributed unequally among the sexes, the simple fact of whether they are male or female does not reveal a sufficient distinction which would permit a law to discriminate between them.) (Or if that’s still too muddled: I believe any differences between males and females are as significant as differences between different races, which is to say, not at all.)

2. There are no meaningful differences between same-sex couples and opposite-sex couples. (If you really want to be pedantic, I’m willing to clarify this to be “between same-sex couples and opposite-sex couples where one partner is completely infertile,” but I don’t think it makes non-inconsequential difference.)
3. There is no rational basis for allowing straight marriage but not gay marriage. True, the bar for “rational basis” is pretty low, but it requires more than just a basis by itself. A rational basis, to me, requires: (1) that the legislative goal of the law is not itself discriminatory, irrational, or based on factually incorrect beliefs; and (2) that there is a rational, non-discriminatory and factually correct reason for believing that the law will actually promote that goal. And given that there are no differences between same sex couples and opposite sex couples, there is nothing on which a rational basis for a distinction can be found.

So here’s the problem: based upon all of these factual assumptions, I literally cannot articulate a valid argument for why banning same sex marriage is constitutionally permissible, even under the most deferential standards of review.

And yet the idea of a Constitutional right to marriage still gives me pause. I am, probably reflexively, exceedingly skeptical of any new constitutional guarantee that has been hitherto “undiscovered.” This remains so even where given all my factual beliefs, I am unable formulate an acceptable rationale for why prohibiting same-sex marriage is constitutional.

That’s the problem, though. “Given my factual beliefs” is a pretty huge premise to start from. It’s not that I have any personal doubts about whether or not those beliefs are empirically correct — because I don’t. I know I’m right, with the sort of certainty I reserve for believing in things like the heliocentric theory of the solar system.

But when it comes to constitutional law, I just don’t know how important factual truths should be.

Let’s be honest: the Constitution, as originally enacted, was a narrow-minded, petty, and tyrannical document that had inscribed into its heart factually incorrect prejudices regarding the essential humanity of non-white males. Yes, many of these flaws were fixed by later amendments, but that doesn’t change the fact that the U.S. Constitution can, indisputably, be based upon factually wrong assumptions about the nature of the world.

This means that in the abstract, there is nothing “unconstitutional” about hateful, biased, and factually incorrect laws. Even if it can be established empirically that a given prejudice is wrong and motivated by animus, and even if you can get near universal agreement on this point, that does not necessarily imply that it would be unconstitutional to have a law based on that prejudice.

But at the same time, modern Equal Protection and Due Process clause jurisprudence requires that judges make factual findings about sociological and philosophical facts, and it requires that judges use those factual findings to dictate whether or not a given governmental activity is constitutionally permissible or impermissible. And areas of the law involving topics where legislators are likely to be factually incorrect, because their biases are likely to lead them to a false conclusion, are precisely the areas of the law where judges are empowered to give greater deference to their factual beliefs than to the will of the legislative branch.

But seeing how levels of scrutiny is judge-made law, there is no objective, a priori way of determining forever what exactly falls into this category of “things legislators are likely to get factually wrong.” Today, most lawyers and judges agree that laws based upon distinctions involving race, religion, national origin, or alienage are the kinds of laws that the legislative process is supremely likely to screw up. They also agree that distinctions based upon sex and illegitimacy are “things that legislators are reasonably likely to screw up.” But there is zero reason or requirements that heightened judicial review be given to just these categories — it is entirely permissible under EP and DP precedent to add new ones, if such addition is justified.

So here we are, then. We have:

(1) A Constitution that is entirely okay with having incorrect factual conclusions enshrined within it, including false factual assumptions based on prejudice. (And for anyone who wants to claim that the 14th Amendment changed this, then why did we need the 19th?)

And, (2) A Constitutional jurisprudence that requires the judicial branch to discern where the legislative branch has made incorrect factual conclusions as a result of bias, and to then overturn those laws as unconstitutional on the basis of their factual incorrectness.

These points are in tension with one another. How much fact finding are judges allowed to do, then, given these two competing principles?

It is clear, today, that judges are allowed to make the factual finding that the essential humanity of all people is the same, regardless of their skin color. But do judges have the power to make the factual finding that the human impulse for romantic and sexual attraction is the same, whether it is directed towards a male or a female?

I don’t know. And sometimes, I very much suspect there is no “legal” answer to this question at all. Judges will have the power to make this factual finding at the point when they actually do make it, and not a moment before.

-Susan

The Court explained:

This court simply “cannot say that [DOMA] is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which [this court] could discern a relationship to legitimate [government] interests. Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.  In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue.  By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification.  As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

The Court relies substantially on Romer v. Evans, 517 U.S. 620 (1996), which struck down a Colorado law preventing homosexuals from ever being classified as a protected class.

The decision, standing alone, will have only a limited impact on DOMA going forward.  But it will be interesting to see if the Obama administration appeals, as a decision from the First Circuit on this issue could have real impact.  (Although the opinion of one Circuit court judge is already out there.)  A big decision against DOMA might also signal to the judge deciding the Boies-Olson Prop. 8 trial in California that other jurists find anti-gay-marriage provisions troubling.

-Michael

Update: The New York Times has a good discussion, including some quotes from experts on what the prospects for appeal look like.

Yesterday, a Circuit Court Judge in Arkansas issued an order striking down an Arkansas law that prohibits any unmarried person who has a non-platonic relationship with someone they live with from either adopting or fostering a child.

These two decisions are being trumpeted as victories for gay rights, as they should be. But the gay rights promoted by these decisions are only a component of the much broader category of human rights that are being recognized here — the associational rights of all persons. In other words, the decisions recognize peoples’ right to establish interpersonal relationships in the manner that best serves their individual needs, and not in the manner dictated by social tradition. In a free society, we should be free to choose which relationships we want to have with which people, and the degree of importance to be attributed to each of those relationships. The government has no business in deciding on everyone’s behalf which sorts of relationships “count” — i.e., only those between kin and those between opposite sex spouses.

The Executive Memorandum issued by Obama was a no-brainer that should have been done decades ago. Hospitals do not operate on the free market — people just don’t get to pick and choose hospitals based upon the associational rights they recognize. In the case of sudden injury, people can be transported to a hospital not of their choice. Or, in the case of rare conditions that require a specialist facility only found in a handful of hospitals across the country, a patient will have no effective ability to choose a hospital based on whether or not they will allow a partner to visit.

In a case like that, I have no problem with the government ordering hospitals to respect patient’s wishes. Hospitals that mandate only kin are allowed to visit are substituting a patient’s actual preferences (or even contractual specifications!) with an idealized, moralistic vision of who a patient should prefer to visit them.

The issues raised by the Arkansas Act — which is “An Act Providing That An Individual Who is Cohabitating Outside of a Valid Marriage May Not Adopt or Be a Foster Parent of a Child Less than Eighteen Years Old” — are not quite so cut and dry. Although the state has no legitimate interest in dictating people’s personal relationships, the state very much does have a legitimate interest in protecting the best interests of the children placed in its care. The trick, then, is to prevent the government from using its interest in children’s welfare as a means of infringing upon rights they have no business messing with.

In Cole v. Department of Human Services, the judge decided that the U.S. Constitution was not implicated, but that the statute violated the Arkansas state constitution’s protection of privacy rights.

Under the U.S. Constitution, the right to adopt or foster a child is not fundamental, and that cohabitating people are not a not a suspect class. Therefore, rational basis review was to be applied. Therefore, the Arkansas Act could only be examined under rational basis review, which means the ban on adoption by a cohabitating person is constitutional so long as it is ‘rationally related to a legitimate government purpose.’ This is a very easy test to pass — under rational basis review, even if it’s very obvious that the legislature was talking out of it’s ass when it made up a piece of legislation, so long as a judge can squint at it and conceive of some sort of logical purpose that the legislature could have had, the statute will be allowed.

The state’s theory was that “cohabitating environments, on average, facilitate poorer child performance outcomes and expose children to higher risks of abuse.” Although this is an overbroad and less than scientific assumption, under a rational basis review, it’s sufficient. I’m a little skeptical, however, of the judge’s blithe assumption that rational basis review applies here.

First, the idea that no “fundamental right” is at stake doesn’t square with the judge’s analysis under the Arkansas constitution. The Arkansas Adoption Act was invalidated for violating the “fundamental privacy right to private, consensual, non-commercial sexual activity” under Arkansas’ constitution. This sounds awfully similar to the same fundamental privacy right protected by the Federal Constitution that the Supreme Court has recognized in sodomy and contraception cases.

Second, I’m not completely buying the idea that “cohabitating couples” are not a suspect class. Under the Equal Protection clause, federal laws addressing “illegitimates” are reviewed under an intermediate level of scrutiny. I wonder if perhaps this precedent could be turned around and used to advance the argument that the parents of out of wedlock kids are themselves semi-suspect class. After all, at its heart, the court’s illegitimacy jurisprudence truly is truly one about associational rights — i.e., whether or not the government can decide, ex ante, for all people, that relationships with out of wedlock children are not as significant as relationships with children from wedlock.

So given all that, I’m not really convinced that the judge had to decide this case based upon the Arkansas Constitution and not the U.S. Constitution. Then again, this would be a pretty effective way of possibly insulating the case from review by SCOTUS…

Constitutional law aside, the Judge’s invalidation of the Arkansas Adoption Act was not specifically about gay rights, but about the private association rights of all persons. For instance, in the following scenario, a straight person is just as adversely effected by the law: Say that both of a child’s parents die. The child’s aunt then wants to adopt her niece or nephew, but she is living with her long term boyfriend, whom she has been a stable relationship with for ten years. Under the Arkansas Adoption Act, she is prohibited from doing so.

It is not the state’s place to mandate the interpersonal relationships people must have in order to enjoy equal protection under the law. Gay or straight, the government has no legitimate interest in who we decide to invite to our holiday dinners or who we choose to make a home with. Although I’m happy to see ever greater protections afforded to gay Americans, that is only the beginning, not the end, of the fight against governmental coercion in peoples’ personal relationships.

-Susan

It turns how that courts have officially recognized the secularization of Christmas.  For a long while now, courts across the land have recognized that “the Christmas holiday in our national culture contains both secular and sectarian elements.”  Lynch v. Donnelly, 465 U.S. 668, 709 (1984) (Brennan, J., dissenting).  As the Seventh Circuit explained a while ago:

Some holidays that are religious, even sectarian, in origin, such as Christmas and Thanksgiving, have so far lost their religious connotation in the eyes of the general public … [that they] have only a trivial effect in promoting religion.

Metzl v. Leininger, 57 F.3d 618, 620 (7th Cir.1995); see also American Civil Liberties Union v. City of St. Charles, (“There is nothing distinctively Christian about reindeer, Santa Claus, gift-giving, eggnog, tinsel, toys, retail sales, roast goose, or the music (as distinct from the words) of Christmas carols.”).

So, for all those out there of a non-Christian bent, drink down the eggnog with the understanding that even your government thinks Christmas doesn’t have anything to do with Christ anymore. 

-Michael

Update: I forgot to include a poem from one of the judges who addressed the “constitutional Christmas” question.  It’s further evidence that judges are not the poets they sometimes fancy themselves, but it’s also pretty funny.  From Ganulin v. United States, 71 F. Supp. 2d 824 (S.D. Ohio 1999):

The Court will address Plaintiff’s confusion,
Erroneously believing Christmas is a merely a religious intrusion.
Whatever the reason, constitutional or other,
Christmas is not an act of Big Brother!
Christmas is about joy and giving and sharing,
It is about the child within us and mostly about caring!
One is never jailed for not having a tree,
For not going to church, for not spreading glee!
The Court will uphold seemingly contradictory causes,
Decreeing the “Establishment” and “Santa” both worthwhile “Clauses!”
We are all better for Santa, the Easter Bunny, too,
And maybe the Great Pumpkin to name just a few!
An extra day off is hardly high treason,
It may be spent as you wish regardless of reason!
The court having read the lessons of Lynch,
Refuses to play the role of the Grinch!
There is room in this country, and in all our hearts, too,
For different convictions and a day off, too!

That has riled conservative activists, who cite a little-noticed quirk in North Carolina’s Constitution that disqualifies officeholders “who shall deny the being of Almighty God.” The provision was included when the document was drafted in 1868 and wasn’t revised when North Carolina amended its constitution in 1971. One foe, H.K. Edgerton, is threatening to file a lawsuit in state court against the city to challenge Bothwell’s appointment.

[Update: H.K. Edgerton, it turns out, is a few fries short of a happy meal. See below for more information on the Confederate NAACP president.]

Article 6, section 8 of the North Carolina Constitution prohibits from office “First, any person who shall deny the being of Almighty God.” Legally, though, Edgerton’s claims against Bothwell don’t have a leg to stand on.

Article VI, section 3 of the U.S. federal constitution provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Torcaso v. Watkins held that under the First Amendment (and incorporated by the Fourteenth), states could not use religious tests — whether or not Article 6 is applicable to the states or only the federal government is technically an open issue, but also rather moot. (Actually, this brings up a question I am sure has been brought up before but do not have time to research now… If the First Amendment was, originally, intended to be as broad as it is in today’s constitutional jurisprudence, why would the Founders have found it necessary to include the religious test clause to boot?). But Torcaso found that Maryland could not actually enforce a clause from its constitution that stated, “nor shall any person, otherwise competent, be deemed incompetent as a witness, or juror, on account of his religious belief; provided, he believes in the existence of God, and that under His dispensation such person will be held morally accountable for his acts, and be rewarded or punished therefor either in this world or in the world to come.”

From the language, the Maryland constitution, unlike the North Carolina one, seems to reflect more of a concern with assuring the veracity of witnesses or jurors rather than any direct concern for religion. Because if someone does not believe they will be held morally accountable in the next world, how could they possibly be concerned with being morally accountable in this world?

Anyway, North Carolina is not alone in having unenforceable religious requirements. The state constitutions of Maryland, Massachusetts, South Carolina, Tenessee and Texas also have language in their constitutions prohibiting non-religious (or possibly non-monotheistically religious) persons from carrying out certain state functions. Texas, for instances, places a requirement on officeholders being people that “acknowledge the existence of a Supreme Being.”

But why are these obviously unenforceable provisions still hanging around in the Constitution?

Provisions like North Carolina’s tend to stay on the books because lawmakers would rather not spend time weeding out outdated laws, said Duke University Law School Professor Joseph Blocher.

“I mean there are state laws against spitting in the street,” he said. “Why spend the time?”

I find this explanation rather unpersuasive. Sodomy laws, religious test clauses, and other unenforceable statutes or constitutional clauses remain on the books in state courts because legislators don’t wish to risk publicly coming out in favor of “allowing sodomy” or “letting atheists take office.” So they let the laws molder there, pretending they don’t exist, until someone or another goes on a moral crusade and tries, once again, to breathe life back into them.

Anyone who campaigned on a platform that included removing all of the vestigial and antiquated cultural baggage from our laws would have my vote. Even if they are not enforced, leaving them on the books can and sometimes does cause an unwarranted burden on citizens who, in a bygone era, would have faced heavier discrimination. Not to mention, it’s also pretty embarrassing for the state involved.

-Susan

ETA: Wait, hold the horses. Two quotes, from different articles about the guy threatening the lawsuit, caught my eye:

“If they go ahead, then the city of Asheville and the board of elections could be liable for a lawsuit,” said Edgerton, who is known for promoting ‘Southern heritage’ by standing on streets decked out in a Confederate soldier’s uniform and holding a Confederate flag.

“My father was a Baptist minister. I’m a Christian man. I have problems with people who don’t believe in God,” said Edgerton, a former local NAACP president and founder of Southern Heritage 411, an organization that promotes the interests of black southerners.

NCAAP president in cosplaying as a Confederate soldier? That’s a new one for me. Looking now, according to Wikipedia, Southern Heritage 411 “provides Southern viewpoints such as that there was great love between the African who was here in the Southland and his master and research on Black Confederate participation in the American Civil War.”

This is not the first time H.K. Edgerton has been in the news. I think this quote on Edgerton summarizes it best:

“His elevator doesn’t go all the way to the top,” Rev. Skip Alston, executive director of the North Carolina NAACP, told a reporter recently. “It doesn’t even reach the second floor. We don’t recognize anything that he’s doing.”

When our nation was first created, we chose three essential principles to hold most dear: “life, liberty, and the pursuit of happiness.”  Our forefathers created this nation because we felt that the bonds of an oppressive government stood in opposition to the achievement of those fundamental goals.  Even though we may be free from the chains of the British crown, government and law are still potential tools of oppression.  Therefore, it becomes the duty of those involved in our legal system to ensure that those values are preserved.

“The public defender from Podunk” is one example of one of the last lines of defense against the destruction of liberty.  If that young woman “wasn’t really brilliant,” perhaps innocent men would be tried, jailed, and stamped with the badge of dishonor that a felony conviction is often taken to be.  That young woman might go out and “invent the automobile,” but our country may face a horrible tradeoff for those four wheels: we may have more of our citizens unjustly stripped of their three most important possessions: life, liberty, and happiness.  The criminal lawyer, therefore, is the protector of these personal rights from societal oppression.

I understand these arguments might seem most relevant in the criminal context, but I think civil lawyers do something terribly important as well.  If we go back even further to the First Continental Congress’ Declaration of Colonial Rights, we find a different description of our most cherished national belongings: “life, liberty, and property.”  The civil lawyer, therefore, guards against the unjust deprivation of the property that is rightfully his.  The civil lawyer, therefore, is the protector of these property rights from societal oppression.

For any devoted constitutionalist to disavow these cardinal values is deplorable.  For Scalia to use his position of power to espouse these views is just plain stupid.

-Michael

Update:  Now folks over at Volokh are talking about this, too.

Apparently, one roommate planned to throw a party.  The other roommate planned to be out of town and was concerned someone would use his bed.  So, logically, the roommate posted a notice invoking attorney-client privilege, the Iowa constitution, Iowa statute, federal statute, and the U.S. Constitution.  Some highlights (and I’m not even going to try to insert [sic]s):

This room is protected as later defined from trespassing.  There is privileged information contained within. . . . If you feel the need to disrespect me, State Gov’t, and Federal Gov’t, as well as those person found on the classified documents, then you will be prosecuted.

. . .

I will not jeopardize my future law career and will therefore not be afraid to press charges for violations found herein.

-Michael

[I]f the Supreme Court adopts a “presumption of constitutionality” by which it defers to the Congress’s judgment of the constitutionality of its actions–as it has and as “judicial conservatives” urge–and the Congress adopts [the] view that “unconstitutionality” means whatever the Supreme Court says, then NO ONE EVER evaluates whether a[n] act of Congress is or is not authorized by the Constitution. A pretty neat trick–and a pretty accurate description of today’s constitutional law.

With all due respect to Professor Barnett, I think this is not the state of today’s constitutional law.  First, I think Congress does more than assuming a deferential Supreme Court will rubber stamp all of its legislation.  Even if the Commerce Clause doesn’t give many legislators reason for pause, there are still other constitutional provisions that Congress worries about.  (Witness, for example, the constitutional hubub over the attempt to give D.C. a vote in the House.)

Second, even though Prof. Barnett may be frustrated that the Commerce Clause isn’t invoked by the Supreme Court more often, a presumption of constitutionality is not absolute.  The Supreme Court obviously does strike down certain congressional legislation on constitutional grounds.  Indeed, important pieces of legislation (like the Patriot Act and the Defense of Marriage Act) have come under constitutional fire, and cases like Morrison and Lopez suggest that the Court will step in when Congress goes too far.  Prof. Barnett shouldn’t lose sight of that.  (Frankly, I’m hoping his views aren’t simply skewed by being on the losing end of Gonzales v. Raich, which he argued before the Court.)

-Michael

Update: Prof. Barnett has reaffirmed this understanding of constitutional law, this time with even more ALL CAPS and bold text!

This point is so important that I should repeat it. [W]hen it comes to the enumerated powers of Congress, the Supreme Court should defer to Congress’s assessment of constitutionality (because of judicial restraint); and Congress should defer to the Supreme Court’s assessment of constitutionality (because “the Supreme Court is the ultimate authority on the Constitution”). So NO ONE SHOULD ACTUALLY INTERPRET THE CONSTITUTION! This is current American constitutional “law” in nutshell.