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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, December 31, 2012 ::

    Prof. Bainbridge takes care of the matter here. I could say more - perhaps I will later, esp. about how choosing one at-the-time viable reading of the Constitution over a later, victorious one, as John Adams did re the Sedition Act, does not amount to "ignoring" the Constitution - but, spurred by a tweet from @walterolson, I realized that I have somewhat aggressively not cared what Prof. Seidman thinks about the Constitution for a long time, and New Year's Eve (also, still, the thick of the grading season) is hardly the time to change ways.

    I have not yet eulogized Judge Bork, other than on Facebook, for (perceived) lack of time to do justice to the subject, so to speak. After grades are in, I hope.

    :: David M. Wagner 8:51 PM [+] ::
    :: Friday, December 07, 2012 ::
    The Supreme Court has granted cert in the two closely-watch "gay rights" cases: the Prop. 8 same-sex marriage case, now called Hollingsworth v. Perry, and the only DOMA case to have yielded Court of Appeals decision thus far, U.S. v. Windsor. Note that in both cases, the Court directed the parties to brief the issue of standing. That's a different issue in the two cases:

    In Hollingsworth, the standing question is: do activists who have all along promoted and defended Prop. 8 (a much more specific and narrowly-injured set of parties than simply "backers" or "supporters") have standing to defend a state constitutional amendment when the state refuses to? If not, then any state could nullify the outcome of a referendum through simple non-enforcement.

    In Windsor, the standing question is: does a group consisting of a large number of Congressmen, but which is obviously not itself Congress, have standing to challenge a decision holding a federal statute unconstitutional when the executive branch is of that opinion also?

    The Court seems to be maximizing its options for disposing of these cases on standing. The result could be standing rules that restrict activist standing beyond anything Justice Scalia ever dreamed of, and an executive coordinate constitutional review power beyond anything Andy Jackson ever dreamed of. And that's if the gay interest wins on its standing issues. One presumes it would just as soon lose on those issues and take its chances on the merits. Or would one?

    :: David M. Wagner 6:25 PM [+] ::

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