The Obama Administration’s Decision to Defend Constitutional Equality Rather Than the Defense of Marriage Act

When President Barack Obama announced his view that the Defense of Marriage Act1 (DOMA) violated the Fifth Amendment’s guarantee of equal protection,2 he joined a storied line of Presidents who have acted upon their own constitutional determinations in the absence of, and on rare occasion contrary to, those of the U.S. Supreme Court. How best to proceed in the face of a federal statute the President considers unconstitutional can involve complex judgments, as was true of the difficult decision to enforce but not defend DOMA. Ordinarily the Department of Justice should adhere to its tradition of defending statutes against constitutional challenge, but I believe that DOMA constituted a rare exception. To defend DOMA’s discrimination would have required making arguments that the Obama Administration did not consider reasonable and that in their very making would have exacerbated the constitutional harm to the equality and dignity of Americans on the basis of sexual orientation. President Obama and Attorney General Eric Holder acted appropriately and admirably in choosing instead to present their actual views on sexual orientation discrimination, just as their predecessors did on racial segregation, thereby leaving DOMA’s defense to Congress and the ultimate resolution to the courts

Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning?

Johnsen examines the roles of nonjudicial entities--especially the Congress and the president--in the development of constitutional meaning. Although the other two branches are fearful of challenging judiciary supremacy, functional departmentalism may offer a certain degree of autonomy from the Court

The Constitutionality of a National Wealth Tax

Economic inequality threatens America’s constitutional democracy. Beyond obvious harms to our nation’s social fabric and people’s lives, soaring economic inequality translates into political inequality and corrodes democratic institutions and values. The coincident, relentless rise of money in politics exacerbates the problem. As elected officials and candidates meet skyrocketing campaign costs by devoting more and more time to political fundraising—and independent expenditures mushroom—Americans lose faith and withdraw from a system widely perceived as beholden to wealthy individuals and corporate interests. The United States needs innovative approaches to help rebuild foundational, shared understandings of American democracy, the American Dream, and opportunity and fairness. Tax policy provides one central context in which collective judgments about fundamental values help form national identity. We believe that a national wealth tax (that is, a tax on individuals’ net worth) should be among the policy options under consideration to support vital infrastructure, social service, and other governmental functions. Although not a new concept, a wealth tax may be an idea whose time has come, as inequality soars toward record highs. Our aim in this Essay is to help ensure that a wealth tax is among the policy options available to Congress by challenging a common assumption that has unduly harmed its prospects: the belief that the U.S. Constitution effectively makes a national wealth tax impossible. We believe this conventional wisdom is wrong and its casual repetition has been harmful. Devising a progressive tax system that effectively taxes the wealthy is notoriously difficult, but whether a wealth tax is part of that system should depend upon the policy choices of democratically elected representatives, not faulty constitutional understandings

Foreword

The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy

Justice Brennan: Legacy of a Champion

During the 1980s, when the Court\u27s approval rating was relatively high, commentators from both ends of the ideological spectrum remarked on the importance of Justices\u27 values and views, and bemoaned the public\u27s utter lack of attention to the Court and judicial appointments. President Ronald Reagan\u27s Department of Justice prefaced an extensive analysis of the momentous issues at stake for the Court and the Constitution with a call for attention to the critical yet often overlooked values and philosophies of federal judges. Professor Laurence Tribe similarly introduced a historical analysis of the Court\u27s vital role by describing Justices\u27 powerful, if often unseen and rarely understood, impact on nearly every aspect of our lives. Both were correct: because under our Constitution, We, the People govern, public appreciation of the actual influences on judicial decisionmaking should be seen as desirable, even if the Court\u27s popularity suffers when the public disagrees with it. The Reagan Administration and Professor Tribe diverged, predictably, on the desirable content of Justices\u27 values and philosophies, and both pointed to the example of Justice William J. Brennan, Jr. While Reagan officials singled out Justice Brennan as possessing precisely the wrong values and philosophies and targeted many of his activist decisions for overruling, Professor Tribe held him up as an exemplar of a catalytic Justice whose work on the Court greatly improved Americans\u27 lives. Around this time, Justice Brennan agreed to cooperate in the writing of his biography by Stephen Wermiel, to whom he gave extraordinary access during his final few years of service before his 1990 retirement. Wermiel later partnered with coauthor Seth Stern to complete the project, and in 2010, they published Justice Brennan: Liberal Champion, an engaging account of the life and work of one of the Court\u27s most influential, effective, and controversial Justices. Over those decades, the Court\u27s vital role in American life advanced from often overlooked and rarely understood to a frequent subject of news reports and popular cable comedy shows. For example, the Court\u27s ruling in Citizens United sparked a valuable nationwide conversation, from President Barack Obama\u27s State of the Union address, to Occupy demonstrations across the nation, to a running joke by comedian Stephen Colbert that included the formation of an active Super PAC and Colbert\u27s indirect candidacy in a state presidential primary. Although the public better appreciates the extent of the Court\u27s power, partisan battles fuel continued confusion about the proper role of Justices\u27 personal views and values