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  • The Most Radical Decision Ever?0

    • June 29, 2015

    This article first appeared in The American Thinker. A complete commentary on the same sex marriage case would take far more than a single short article. Accordingly, I offer only some discrete thoughts: * A big expansion of federal power. Many libertarians believe the courts should use the Fourteenth Amendment to protect rights unenumerated in

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  • Must the Federal Government Honor an "Equal Protection" Rule?0

    • August 4, 2013

    Does the Constitution require the federal government to afford “equal protection of the laws?” At first glance at the Constitution’s text, it would appear not. There is no general Equal Protection Clause in the Constitution applying to the federal government—although there are a lot of clauses requiring equal treatment in specific situations. The Equal Protection

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  • Justices Make It Tougher for State Universities to Discriminate, But Not Tough Enough0

    • July 4, 2013

    (This is the third of several short commentaries on recent Supreme Court decisions.) The Supreme Court’s recent decision in Fisher v. University of Texas has made it tougher for state universities to run their ethnic spoils systems. But not tough enough. First, the background: The Fourteenth Amendment requires states to extend “equal protection of the

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  • The Constitutional Issues In Same-Sex Marriage0

    • April 6, 2013

    I’ve found that most of the discussion about same-sex marriage, even among lawyers, tends to mis-characterize the constitutional issues. This is particularly true of the “equal protection” issues. Under the Constitution as originally understood, jurisdiction over domestic relations outside federal enclaves and federal territories was reserved to the states. State laws dealing with domestic relations

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