This coming week, on Thursday and Friday, I will be doing three different two talks in New York City, two at NYU Law School, and one at Columbia Law School. On Thursday, April 11, from 12:10 to about 1:10, Columbia law Professor Theodore Shaw and I will be debating affirmative action and the Supreme Court’s […]
Archive | Federalism
Marijuana and Federalism
More and more states are stepping back from waging war against marijuana, legalizing medicinal use and minor possession, and popular support for decriminalization appears to be growing. Thus far, the federal government has sought to stamp out such efforts. Writing in the Washington Post, Jonathan Rauch suggests Washington should tak a different tack. Squashing the states, […]
Linda Greenhouse’s Misrepresentation of the Federalism Argument Against DOMA
By Ilya Somin on April 4, 2013 2:16 pm in DOMA, Federalism, Gay Marriage, Gay Rights, Same-Sex Marriage
In a recent New York Times column, prominent Supreme Court commentator Linda Greenhouse grossly misrepresents the federalism argument against the Defense of Marriage Act put forward in an amicus brief co-signed by several federalism scholars, including co-bloggers Randy Barnett, Jonathan Adler, Dale Carpenter, and myself. She claims that it is a “Trojan horse” for an […]
DOMA and Definitions – A Final Comment
In his last post on the subject, Nick Rosenkranz concludes that “the mere fact of a federal definition, for purposes of federal law, does not violate principles of federalism.” On this we are entirely agreed. And if all Congress sought to do with Section 3 of DOMA was to define the semantic meaning of a […]
The Exact Same Word May Mean Different Things For Purposes of State Law and Federal Law
Section 3 of the Defense of Marriage Act (DOMA) defines the word “marriage” for purposes of federal law. In a recent post, Randy argues that this provision must be unconstitutional, because otherwise one could be “married” under state law but not under federal law, or vice versa, and “that is crazy.” With all due respect, […]
Commentary on DOMA and Federalism
By Jonathan H. Adler on March 29, 2013 7:02 pm in DOMA, Federalism, Same-Sex Marriage, Supreme Court
Whatever the merits of the federalism concerns I and others have raised about the Defense of Marriage Act (DOMA), the issue is garnering a fair amount of attention. Here’s a brief round-up of some recent commentary: Mike Dorf, “The Federalism Argument that Should Have Been Made Against DOMA” – arguing that DOMA’s opponents missed an opportunity at […]
Reflections on John McGinnis’ Accelerating Democracy
By Ilya Somin on March 29, 2013 11:45 am in Democracy, Federalism, Political Ignorance, Voting With Your Feet
Guest blogger John McGinnis’ new book Accelerating Democracy is an outstanding analysis of the ways in which modern technology and social science can improve the quality of decision-making in government and society. It is probably the most important book on that subject in a long time. Much of John’s thesis is compelling. He is right […]
Three Senses in Which DOMA Implicates Federalism
By Dale Carpenter on March 29, 2013 10:54 am in Equal Protection, Federalism, Same-Sex Marriage, Sexual Orientation
Overnight, it seems, federalism has become a major ground on which the Defense of Marriage Act is being contested. This is surprising because, as we saw Wednesday in the arguments of Roberta Kaplan and the Solicitor General, there were no real advocates for federalism as an issue during the oral argument in United States v. Windsor. No advocates, that […]
Can the Federal Government Define “Property” For Purposes of Federal Law? – A Response to Orin
In a post below, Orin notes that many federal statutes define the meaning of the term “property,” even though property is generally defined under state law. If this is so, Orin understandably wonders, how could there be a problem with Congress defining marriage for purposes of federal law in DOMA? The short answer to Orin […]
Why Striking Down DOMA on Federalism Grounds Would not Lead to “Litigation Chaos”
By Ilya Somin on March 28, 2013 5:48 pm in DOMA, Federalism, Gay Marriage, Gay Rights, Same-Sex Marriage
In a recent op ed, Harvard Law Professor Noah Feldman argues that striking down the Defense of Marriage Act on federalism grounds – as advocated in an amicus brief I signed along with several other federalism scholars, including co-bloggers Jonathan Adler, Randy Barnett, and Dale Carpenter – would lead to “litigation chaos”: [T]he problem with […]
The “Pretext” Argument Against Section Three of the Defense of Marriage Act
In his most recent post, Randy responds to my critique (here and here) of the DOMA “federalism brief.” He begins by conceding: “In most every conceivable case, there is no objection to any particular definition adopted by Congress for purposes of federal law. Most definitions can easily be shown to be both necessary and proper […]
Upcoming Talk on “Progressive Federalism” at Harvard Law School
On Tuesday, April 2, I will be speaking on federalism and its implications for various racial, ethnic, religious, and political minorities at Harvard Law School. I will be appearing with Yale Law School Professor Heather Gerken, a leading federalism scholar who has argued that her fellow progressives should take a more favorable view of federalism […]
The Wall Street Journal Editorial Page Rejects The Federalism Argument Against Section Three of the Defense of Marriage Act
The Wall Street Journal editorial page — always a steadfast friend of federalism — is nevertheless unconvinced by the “federalism brief” in the Defense of Marriage Act (DOMA) case. The editors write: [L]iberals and some libertarians argue [that DOMA] is an offense to federalism. We disagree …. In the Constitution’s system of dual federal-state sovereignty, […]
Federalism and Proposition 8
Federalism principles may weigh against Section 3 of the Defense of Marriage Act (DOMA), but what about Proposition 8? Reason.com has just posted an exchange between me and Ilya Shapiro of the Cato Institute on this question. Cato’s Ilya S. (not to be confused with our Ilya S.) argues that federalism has nothing to do […]
Why Does Federalism Matter in an Equal Protection Case?
The question presented in United States v. Windsor is whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection. Why, then, are some of us talking about federalism? It’s a fair question. In an equal protection case, courts are called upon to weigh the weight of the […]