Saturday, September 13, 2014

Our Wile Y. Coyote Constitution

In oral argument before the Supreme Court on March 26, 2013, the following exchange occurred:
JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became unconstitutional? Has it always been unconstitutional? . . .
It struck me that Scalia thinks that it is an "easy question" that bans on interracial marriage became unconstitutional in 1868. The Supreme Court failed to affirm this was so until Loving vs. Virginia in 1937, and ruled the other way in Pace vs. Alabama in 1883.  It seems to me that our Supreme Court can spend an inordinately long time before noticing that their current interpretation of the law is hanging in thin air without visible means of support.

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