Hello again!

I've got a pile of Qs on my old threads following yesterday's SSM decisions so, as promised, I'm back for the post-decision AMA. I'm around today save for a few meetings so I should be able to do Q&A most of the day.

Per usual, here's my regular intro.

Quick Background:

I'm a lawyer living and working in DC. My pet love my whole life has been the Constitution and constitutional law. I do not work as a constitutional lawyer for my day job, but I do write academically and colloquially about areas of constitutional law. I've worked in a public interest firm doing constitutional litigation in the past, so I can do some Q&A about how that process works but I no longer actively litigate.

My areas of specialization are the First Amendment and legislative procedure. Within the First Amendment I know mostly speech/press/election law issues and legislative procedure is all about our federal legislative system (so everything from item-line veto to the filibuster) are what I love to talk and write about.

I have a general knowledge of most other constitutional provisions, including the issues surrounding same sex marriage, so ask away - I'll be as accurate as possible (and will point you to more knowledgeable folks if I can't answer your questions).

One caveat that I give in all my AMAs - I'm not great on national security law. I know the basics on issues of military tribunals, jurisdictional issues, war powers, and executive privilege but questions of indefinite detention, torture, GITMO, and drone strikes are pretty foreign to me. I highly recommend the Lawfare Blog for all national security law related interests. The writers there are fantastic and unbelievably knowledgeable.

I do know the Espionage Act through my First Amendment forays, so I can answer Snowden related questions there.

One more caveat - I'm happy to dig in to the 2nd Amendment but will warn in advance that I'm not fluent in it. I can discuss the decisions that set the rules but most folks want me to make arguments and, while I can throw together law school quality arguments, I'd hardly call myself an authority, so take any answers to 2A questions with a grain of salt. Happy to talk about the constitutionality of gun control legislation as I see it, but again, I'm not an authority on this one.

Past AMAs

SSM Argument Day Q&A:


Constitution Day Q&A:


Obamacare Decision Day Q&A:


First Q&A:



Nothing contained herein is or should be construed as legal advice. This is purely informational and made for educational purposes. I'm here because I believe educating people about our system is the best way to engage folks in protecting and improving the system. I'm not here to be your lawyer, nor could I legally give you advice even if I wanted to.

Also, I do my absolute best to keep my politics out of my commentary and my answers. Where I am giving an opinion or my interpretation, I will note it as best I can. The law, like many things, has many interpretations - some good, some bad. Opinions on case law are diverse and I'm not here to present a single truth, in fact I will do my best to display the diversity of opinion around particular areas of law.


Got pulled away for a project briefly and this thread exploded. Going to try to get to everyone but may defer to scrolling through the thread and answering upvoted posts to avoid getting bogged down in discussion threads - so upvote your friends!

Comments: 1640 • Responses: 63  • Date: 

Sexy_Sasquatch357 karma

Considering that President Obama taught constitutional law, how well do you think he is doing with adapting his policies to the constitutional framework?

ConstitutionalLawyer425 karma

Fun question, but one without an answer.

Is Obama staying within the bounds of the Constitution 24/7? No, I don't think so. Not even close. Then again, if you asked me who the last President who acted constitutionally was, I'd be hard-pressed to find one in the last 50 years or so.

Should he know better? Yes. Does he know better? Probably. Does he care terribly much? Probably not.

As President, he's tasked with protecting people, commanding troops, ensuring the economy doesn't implode, yadda yadda, etc, etc. I think that immediate needs often trump long term constitutional considerations. I don't like it but I recognize that its going to happen, period.

The question is how aggressively do we the people push back and where. I think we should be pushing back on the NSA programs. I think we should be pushing back on Drones and other elements of the War on Terror and the surveillance state. But that's me, others' opinions will differ.

I think Obama is much better on certain issues (like, you know, TORTURE) but he's not perfect. I don't think going after climate change or pushing through healthcare reform were huge violations of constitutional law. Obama's black mark is civil liberties.

I don't think his guiding principles are based in his knowledge of constitutional law. I'm sure it helps pop up internal warnings of "are we sure this is kosher?" but I don't think its as guiding as other elements of his point of view and ideology.

The responsibility to hold elected officials accountable to the Constitution lies primarily with the citizenry and electorate, not the elected official. Not to excuse what they do but to encourage ourselves to be better about calling them out on their nonsense.

TheeJosephSantos44 karma


ConstitutionalLawyer209 karma


ConstitutionalLawyer140 karma


IveGot2Words4YouSTFU191 karma

Yeah. Good thing that guy had the same name as you!

ConstitutionalLawyer322 karma

And that he was just as good looking!

goodguygaymer42 karma

Can we have pics, you know, for science?

ConstitutionalLawyer325 karma

Nice try, NSA.

jlesnick259 karma

Thanks so much for doing this.

Every time Gerrymandering comes up in the SCOTUS, Scalia always likes to say something along the lines of "your argument doesn't show anything unconstitutional, however, I think there is an argument that can be made, it's just that none of you are making it."

What is he talking about?

ConstitutionalLawyer23 karma

Sorry for the delayed response - I was trying to look back through some decisions to see if you were referencing any specific Scalia decisions. As I couldn't find any, I'll just answer the gerrymandering issue broadly.

The problem with gerrymandering isn't that its great, its that there's no objective way for the judiciary to evaluate it.

In order for judges to get involved in political questions, there needs to be an objective, proven rubric for evaluation. Gerrymandering simply doesn't have that. How can judges consistently determine whether a district was drawn to make a seat safer, or to cut out minorities, or to split the wealthy vote?

There are obviously cases where gerrymandering is sent for a re-do, but that's usually on procedural grounds, rarely on constitutional grounds.

The best fix to gerrymandering is to have it conducted by non-partisan commissions like in Iowa. The problem is that no state party wants to unilaterally disarm and give up their advantage. Its being done in California but that's about it.

Here are some good thoughts from former Justice Stevens on the issue:


BlerpityBloop166 karma


ConstitutionalLawyer153 karma

Legitimate question. Best answer is because the rules/qualifications/regulation is so vastly different that there are exceptions made. Just like medical/legal/engineering/other licenses. States have state-specific limitations, so they can't be forced to recognize out of state contracts that don't meet their standard.

AlbinoSnowcat82 karma

Follow up Q: Would states be able to argue that marriage is a "contract" between two people and thus meet the requirements for exception to the Full Faith and Credit Clause?

ConstitutionalLawyer193 karma

They don't need to argue - it is a contract. I'd expect this to be back in the courts shortly.

Damadar124 karma

So, people are saying that DOMA is dead.

Does that re-establish Full Faith and Credit on gay marriages in other states?

Specifically if someone gets married in a state that supports it, do other states, even if its illegal to happen there, have to recognize it as a valid institution?

ConstitutionalLawyer294 karma

DOMA isn't dead. Section 3 of DOMA is dead, which gets rid of the federal definition of marriage.

Section 2, which basically exempts gay marriage from the Full Faith and Credit clause is alive and well, which is the real meat and potatoes issue of SSM (in my view). I fully expect this issue to come back to the Court.

If someone gets married in a state that supports it, states that don't recognize SSM do not have to recognize it. Yes, I think that's a pretty clear violation of the full faith and credit clause, but the issue was never addressed by the courts on the way up.

Damadar69 karma

Ah, so if I understand this correctly, if they are married in a state that supports SSM, then they get to apply for Federal Tax benefits and things related to the federal government, but they don't qualify for state-level benefits, right?

If that's the case, how do certain things like spousal-rights (think Doctor-related situations) hold up now in a post-Section 3 world? Are there any changes to that?

ConstitutionalLawyer92 karma


As for how all of these things change, federal agencies are going to have to redo some of their rules. Questions like that will be clarified in the coming months, but if there is a federal rule on an issue it will generally trump a state rule.

green_and_yellow14 karma

I have a follow up question to this, which I'm hoping you answer.

Let's say two men, Aaron and Brett, become legally married in Seattle (Washington recognizes SSM). After a couple of years, they move to Portland (Oregon currently prohibits SSM under the state constitution). Now, under ยง2 of DOMA, Oregon does not have to recognize the marriage. But let's say Aaron dies and devises a substantial estate to Brett. Even though their marriage is not recognized in the state of their domicile (Oregon), is Brett still able to take advantage of federal tax benefits as married persons?

ConstitutionalLawyer34 karma

Federal tax benefits? Almost certainly yes but we'll need to see the updated regs/rules.

State level benefits? That'll be the next SCOTUS case.

MrDowntown15 karma

I thought the jurisprudence of Full Faith and Credit was pretty well settled in regard to marriage, and that Section 2 was essentially a restatement of the caselaw. States don't have to recognize marriages from other states that have different laws regarding age and consanguinity.

Law review article on the subject

ConstitutionalLawyer30 karma

The difference is that those distinctions don't run afoul of equal protection.

argle-bargle120 karma

What's your take on Google's and Microsoft's assertion that the first amendment trumps the NSA gag order on releasing FISA data?

ConstitutionalLawyer130 karma

I think it's going to depend on what data is being released. I think if the data is just information about how the program works, the First Amendment does protect. If the data reveals details that threaten lives/operatives or capability to the level of potentially hurting national security, courts might not be quite so nice.

Personally, I side with the First Amendment argument, but that's just me. Will be interested to see how it plays out.

YouthInRevolt22 karma

What's your take on Google's and Microsoft's assertion that the first amendment trumps the NSA gag order on releasing FISA data?

I think it's going to depend on what data is being released

What's to stop the government from using the State Secrets clause and refusing to even admit what type of data Google is referring to?

ConstitutionalLawyer30 karma

If the data is publicly available, State Secrets doesn't really work. State Secrets works where the government makes an accidental disclosure and can compel the return of said information. They'll make the claim, I just don't think it'll work if the data is made public without permission.

sac009107 karma

How does this work in the military? Do same sex spouses get full benefits and can live on base? EDIT: Basically, how soon will we see it affect DOJ/DOD and other federal organizations like dont ask dont tell did?

ConstitutionalLawyer235 karma

SecDef Hagel already said they're moving to comply as quickly as possible. Full benefits, full protection.

fairiedusst36 karma

I am very curious to see how this works. Would same sex couples be eligible for the same housing allowance that heterosexual couples have? What happens when these folks transfer from, say, WA to FL? Do their spouses suddenly not count anymore?

ConstitutionalLawyer71 karma

Yep, same allowance. Also, allowance is federal. They'd still get it in FL.

semi-Wonder_Woman81 karma

There is a man in California who wrote (with sidewalk chalk) against using big banks. Now he's facing 13 years in prision... Is THAT constitutional? What can he do to protect himself and what can WE do to protect our future in non-violent protestings?

ConstitutionalLawyer153 karma

Contact your local ACLU.

Grace10873 karma

I have worked for the federal govt for over 20 years.

I filed whistle blower paperwork in 2005 concerning MKULTRA and crimes that took place by govt employees in the Omaha sex ring that benefitted politicians. The sex ring perps were politicians who raped children. I was one of those children raped in the ring. I was also used in torture experiments in Project Paperclip's MKULTRA programs.

I grew up, sought treatment, healed and became a federal whistle blower.

In the years following my whistle blower paperwork, the federal govt broke all of the rules making me the bad guy. The Office of Special Counsel, CIA , Secret Service and FBI all took part in the breach of ethics. After these events, I contacted my state Senators because at the time I held out hope that the system of checks and balances was still in operation in our govt. I held out that others who took oaths of office to uphold our constitutiton existed. I found no one in our govt to obtain justice for the crimes. My experiences have shown me that there are no checks and balances in our govt.

I spent years contacting agencies within our govt both in the Executive Branch and the Legislative Branch. After failing there, I sought justice outside our govt in the International Criminal Courts.

I feel like Frodo in Mordor when he can no longer remember the shire.

Should I give up hope of ever finding justice?

ConstitutionalLawyer119 karma

Uhhh, AMA?

But seriously, I'd talk to the ACLU ASAP to get info on your relevant statute of limitations issues to make sure its not too late.

jenhbrooklyn62 karma

With respect to DOMA and the judges that disagreed with it's unconstitutionality, what was the basis for their dissention? In plain english please. Has it something to do with common law or states rights?

ConstitutionalLawyer95 karma

It was more a separation of powers argument. Scalia argued that this was the Court overreaching and striking down a democratically passed law that should have been left alone because it wasn't, in the dissenter's eyes, discriminatory enough to justify getting shut down constitutionally.

The dissent argued that this was a political/moral question for democratic institutions to decide and not for courts to declare right or wrong. It side-stepped the constitutional issue by reminding that sexual orientation doesn't get the same level of scrutiny that other kinds of discrimination might.

matts256 karma

How could Scalia argue that right after he struck down the key provision of the VRA?

scshunt25 karma

As far as I can tell, that wasn't the thrust of Scalia's opinion. He was saying that the Court should not have heard the case because there was no controversy: the US executive agreed with the lower court's opinion and as such there was no sense in making an appeal when the parties agreed. Since there was no controversy, it was outside the bounds of the SCOTUS. I don't think he meant that the SCOTUS couldn't ever decide this case, but that in this particular instance, the issue had already been settled elsewhere and so should not have come before the SCOTUS.

ConstitutionalLawyer25 karma

The argument was that they didn't have Article 3 jurisdiction, which is silly. I get the argument but the idea that the Court can't hear things the Executive appeals is, well, not really based in too much outside of Scalia's reading of the Constitution.

barnesandnobles18 karma


ConstitutionalLawyer62 karma

Sexual orientation isn't seen as an immutable characteristic, legally. The way to change that is to have SCOTUS recognize it as a characteristic demainding heightened scrutiny.

They've been doing that. Many scholars (myself included) argue that the Court has been applying a "rational plus" or a "rational with teeth" review on sexual orientation issues. It did the same in the 70's when it pushed toward a heightened scrutiny for sex classifications. I think we'll see heightened scrutiny for sexual orientation within the next 15 years.

Fatereads58 karma

Would this mean same-sex couples have all the same immigration laws apply to them to as well?

ConstitutionalLawyer92 karma

Yep. The DOMA ruling effectively got rid of the need for the Leahy Amendment on immigration reform.

Melnorme58 karma

What do you think of Scalia's dissent asserting that the Court did not have Article III jurisdiction?

Is he correct that the effect of this ruling is not to resolve a conflict (as there was none), but to convert local precedent into nationwide precedent?

ConstitutionalLawyer164 karma

I love Scalia dissents because they're so fun to read. I think his argument was terrible. I don't know how you can, with a straight face, write that you don't have the power to invalidate democratically passed laws when you gutted the VRA the day before.

As for the second argument - that can certainly be made. But the counter of that argument, that the Court heard an alleged question of discrimination and addressed it appropriately, which is what it is supposed to do.

fryguy10151 karma

My understanding of the "gutting" of the VRA was that the Federal approval list was invalid for a procedural, not a constitutional reason, and thus if they fix the procedure it will be valid again.

Basically, that it's not valid to single out states based on what they did in the 60's, but should instead be based on what they've done recently.

Ergo, by biasing the list towards more recent actions, some states or counties may be taken off the list, while others, like places in Ohio, Pennsylvania, or Michigan may be added.

Is this not correct?

ConstitutionalLawyer83 karma

It's one reading (and more or less the correct one, I think). Personally, I agree with the legal reasoning behind Roberts' opinion. I agree that you can't use the specter of deterrence to justify indefinite government programs.

However, the political implications of it are pretty harrowing. Congress is going to sit on their hands for this one and the damage of changes that will influence elections can help ensure that the issue never gets addressed. But, the reality is that this is the fault of Congress, not the Court.

wilzmcgee55 karma

Do you think that the patriot act/prism program was a gross violation of out civil rights granted to us by the constitution?

ConstitutionalLawyer89 karma

Personally? Yes. I think the 4th Amendment argument is strong against these programs. But that's just me.

ViolenceDogood7 karma

I've often heard Smith v. Maryland (1979) mentioned in defense of PRISM's constitutionality. Could you explain that case some and whether you think it's applicable here?

ConstitutionalLawyer8 karma

Smith was a case where SCOTUS said that installing a device that tracked/recorded all numbers called from a particular phone line did not constitute a search for purposes of the Fourth Amendment.

It's the case the government would use to defend the meta-data phone collection stuff and I think its a very strong case for the government.

emersonlennon50 karma

ELI5 what is the significance of the prop 8 ruling and what happens to the case now?

ConstitutionalLawyer119 karma

To try a case, you need to have "standing." Standing, explained at the most basic level, means you need to have actually have a stake/have suffered harm to be able to bring the case. (Example: if I punch you, you can sue me. If you see me punch a guy across the street, you can't sue me, because there's no harm to you, you don't have standing)

The party with standing to defend a law is the government and nobody else (generally). The question was whether a private party could defend a law when the government refused to do so.

After the Prop 8 trial, CA stopped defending Prop 8. Private parties took over. SCOTUS ruled that those private parties did not have standing, so the opinion of the appeals court was vacated and the ruling of the trial court (last ruling with proper standing, which declared Prop 8 unconstitutional) will be enforced.

in_the_airoplane40 karma

Ooh, I have a question.

What does the recent ruling on the 5th amendment "right to remain silent" mean for the average Joe?

EDIT to also ask: Does the ruling have any impact in what a person should say or do if confronted by a law enforcement official (which to me is normally keeping my mouth shut and asking for a lawyer if necessary)?

ConstitutionalLawyer88 karma

Roughly speaking - you don't get to remain silent, then talk, then claim you were remaining silent. You have to remain silent or tell people you're going to exercise your right to silence so there's no confusion.

savemejebus038 karma

How is it acceptable that societal attitude effects the declensions of the Supreme Court? Isn't it supposed to be decisions bases on the merit of constitutionality alone? Or to the best of their ability anyways.

chris4290125 karma

Though not really the case here, there are some parts of constitutional law that essentially require the court to look at evolving consensus and popular opinion. What is considered "cruel and unusual punishment" under the 8th amendment is, more or less, decided by assessing current opinion and social standards. Check out Kennedy v. Louisiana as an example of that. Among other things, the Court simply tallied up all the states that had a death penalty (still a majority of them),looked at the number of states that USED to have a death penalty (showing momentum against), and then looked at the rest of the world's view on the practice. That was some of their most important evidence in the decision (which interestingly enough also written by Kennedy. It should give you a good idea of how much kennedy loves to poll opinions and forge middle ground before writing something)

The same goes for privacy. When phrases like "reasonable expectation of privacy" direct jurisprudence, the consequence is that, more or less, we have the amount of privacy that we expect. i.e., our societal attitude towards it.

Not necessarily the case in Windsor, but 1) societal attitude very often should affect the Court's opinion, if only as a subtle factor, and 2) the court is still a political being, despite our theoretical intentions.

ConstitutionalLawyer44 karma

This. Read this.

ConstitutionalLawyer43 karma

Can't prove it one way or the other. This was the first time DOMA made it to the Court and, on its first blush, the Court determined it to be unconstitutionally discriminatory. Theoretically, they should/would reach the same decision if this case came to them 10 years ago.

4shitzngigz33 karma

Why aren't federal drug laws a violation of the tenth amendment? Why weren't federal drug laws amended to the constitution like with prohibition? Thanks for doing this AMA!

ConstitutionalLawyer44 karma

Commerce clause. I don't like it either. Read Raich.

mo_dingo7 karma

Regarding the SCOUTS case http://en.wikipedia.org/wiki/Wickard_v._Filburn

What in this world could not be considered effecting commerce, and as such, not under the purview of Congress to legislate?


ConstitutionalLawyer5 karma

Theoretically, nothing, which is why most anti-federal power folks have big problems with it. It theoretically opens up anything to federal regulation, even things the feds don't regulate (like drugs in Raich). It's the reason that the Obamacare decision came down as a tax, because anything else would have had to push back on Wickard.

ProfessorPaulKrugman26 karma

If only you had been a community organizer... just think of the possibilities!

ConstitutionalLawyer52 karma

Outside, I'm stoic. Inside, I'm full of tears.

Auralay_eakspay19 karma

Would it now be possible for a couple married in...say MA and move to KY where SSM is banned, could they sue the state to try to get benefits now?

ConstitutionalLawyer45 karma

That will likely be the next level of litigation around Section 2 of DOMA.

TheOmnipotentOne18 karma

Is Obamacare constitutional?

ConstitutionalLawyer31 karma

reallychillypenguin18 karma

To what degree does this affect immigration and visas for individuals in SSMs? Specifically, a SSM between and US citizen and a non-US citizen. Will this now be recognized in the same way as a non-SSM marriage by ICE?

ConstitutionalLawyer30 karma

Yes. The real question is when and how.

msutton418 karma

Concerning Edward Snowden, is there any constitutional grounds of a defense for him regarding the 4th amendment of unreasonable search. He obviously breached a contact but didn't he adhere to the highest law of them all? The 4th amendment.

ConstitutionalLawyer50 karma

No. "Defending" a constitutional right is not a defense. First Amendment is his protection, via painting him as a protected whistleblower under the Pentagon Papers case.

Bearowolf16 karma

Can you explain to me why things like SB5 even exist when there is a Supreme Court ruling in Roe v. Wade protecting a woman's right to have an abortion? I know the state governments that don't like it, particularly Texas, do their best to muck up the process, but still.

ConstitutionalLawyer48 karma

The abortion standard is that states can't "unduly burden" the right to an abortion. The fight is over what "undul burdens" means.

Edit: Unduly burden, not substantial. Thanks couchst.

couchst12 karma

I think you mean unduly burden.

ConstitutionalLawyer3 karma

Sorry, thanks - was thinking of something else.

Ancano15 karma

When can we expect the courts to address section 2 of DOMA?

And on a semi-related question, in cases like DOMA and others that address the constitution specifically, how much nit-picking goes on? Is it a regular thing for opponents to try to reword the constitution or find loopholes and vague phrasing to fit their arguments or is it generally a fair series of arguments?

ConstitutionalLawyer31 karma

Section 2 - soon.

One thing I would say about the Constitution - it doesn't mean what it says it means. Things that may seem like rewordings or loopholes may very well be completely accurate readings of the Constitution based on past precedent.

That and the easy answer is - they're lawyers, it's what they're paid to do.

Ancano8 karma

Thanks for the reply! I hadn't considered how past precedent might be considered when courts examine laws, which, looking back, seems kinda obvious.

ConstitutionalLawyer11 karma

Yeah. Read up on the 11th Amendment if you ever want to see an amendment that no longer means anything CLOSE to what it was originally written as.

TheBrototype11 karma

Law student here. What effect do you think Fisher v. University of Texas will have on affirmative action? What do you think of that case?

ConstitutionalLawyer19 karma

I think it'll be a narrow striking down of affirmative action when it comes back up (which it will). It'll leave Grutter alone by keeping the ruling narrow to Texas' unique dual-pronged system. I think it will push other universities to adopt similar systems though, reducing the prevalence of race as a considering factor in university admissions.

LakeRat9 karma

Why was a constitutional amendment needed to enact federal alcohol prohibition, but no such amendment was needed to enact federal marijuana prohibition?

ConstitutionalLawyer14 karma

Courts stopped caring as much about the regulatory state post New Deal. It should have been the same, arguably.

headintherealworld9 karma

Could you possibly elaborate in layman's terms why the VRA was 'gutted'? From my minimal reading on the ruling, they only invalidated the provision of the act that requires specific states to get federal permission for changes to elections? While personally I think it will have a negative impact, the ruling didn't surprise me since I assumed it would be seen as basically unequal treatment of states at the federal level. If my understanding is way off, I would appreciate any suggested articles or explanations you could direct me to.

ConstitutionalLawyer10 karma

"Gutted" in a political sense. I actually agree with CJ Roberts' reasoning. I think it was a political savvy way to kill the VRA.

What are the odds, do you think, that Congress will actually pass an updated formula? Especially before an election where Republicans think they can retake the Senate?

James_Dalton9 karma

Thanks for doing this AMA. I have an easy one for you - what's your favorite amendment and why? also what's your least favorite and why?

ConstitutionalLawyer27 karma

First. I think a free press, free dialogue and a rabid protection of speech and ideas helps our democracy survive.

11th Amendment, I hate. I get why we need sovereign immunity but the way it exists today is ridiculous and makes the government almost entirely immune from litigation when it screw up.

LazyCon8 karma

I have a few questions i've always wondered about. Mainly the constitutions views on Taxation.

  1. Why are state run toll roads, inheritance tax, and gambling tax not considered double taxation?
  2. How is taxing American citizens over seas considered legal?
  3. Is there any thing in the constitution preventing us from making political parties and/or they're listing on voting ballots illegal?

Thanks if you happen to get around to answering these.

ConstitutionalLawyer40 karma

  1. Why does it matter if its double taxation? We're taxed dozens of times on the same dollar. No legal issue.

  2. Because Congress has the constitutional power to enact taxes and passed laws to tax them.

  3. No, you can do whatever you want. Most ballots have a ton of parties on them. Primaries are managed by private parties, not states, so they can keep out whoever they want.

amitarvind7 karma

I saw an interesting comment in another subreddit that mentioned that the standard being used to assess it's constitutionality was equality, rather than federalism, and would thus have a serious influence on any future rulings in the area of civil rights. Does this statement make sense, and if so, how true is it?

Thanks for doing this AMA.

ConstitutionalLawyer16 karma

The term of art is that DOMA was decided under equal protection analysis. This is important because it makes the ruling much broader. The analysis used here can now potentially apply to all cases dealing with alleged discrimination on the basis of sexual orientation.

Put another way, the language/reasoning used to kill DOMA can now be argued against other discriminatory programs.

intellax7 karma


Now that we have Salinas (remaining silent during non-custodial interview can be used to infer guilt), do you think in your following of this Court that custodial silence is next to go (Doyle)?

Seems to me that people need to me much more freaked out about Salinas than they are...

ConstitutionalLawyer31 karma

I'm restrained on panicking over Salinas. I think an important point folks are missing is that he started talking AFTERWARDS and then tried claiming the initial silence couldn't be used against him. That's not really how it works today - you can't have both. You're either silent or you're talking. You can't claim you were being silent when you start talking.

I think Salinas is going to be more narrowly applied than people think so I'm not panicking over it yet.

shadoworc016 karma

When was the last time the SCOTUS had to cite the 3rd Amendment for a ruling?

mjrspork5 karma

Hey /u/ConstitutionalLawyer , thank you very much for answering our questions this morning / afternoon!

With the Supreme Court declaring DOMA Unconstitutional, what does this mean for Same-Sex Couples who have been married in states where Same-Sex Marriage is legal but live in states where it is illegal? Are they still covered by the Federal Benefits? Also, if someone who lived in a state where Same-Sex Marriage was not legal (such as North Carolina), could they travel to a state such as California or Massachusetts and get married? (And again, how would they be seen in the eyes of a state where Same-Sex Marriage is not legal?)

Thank you very much!

ConstitutionalLawyer5 karma

Are they still covered by the Federal Benefits?


if someone who lived in a state where Same-Sex Marriage was not legal (such as North Carolina), could they travel to a state such as California or Massachusetts and get married?


how would they be seen in the eyes of a state where Same-Sex Marriage is not legal?

As unmarried.

mjrspork4 karma

Thank you for the quick reply! - one last question, if you live in a state where Same-Sex Marriage is Illegal, you would still receive federal benefits, correct?

ConstitutionalLawyer5 karma


PandaLaw4 karma

In the Windsor opinion, Kennedy was highly reliant on the idea that the GLBT crowd is "politically unpopular." What are your thoughts on an assertion like that, and how long do you think this kind of status will last?

ConstitutionalLawyer10 karma

It's a necessary crutch, because he references the famous "Footnote Four," which is where all of the minorities needing protections pull said protections from. It's one of the factors that goes into consideration when determining appropriate scrutiny.

speledwrong3 karma

My husband (we live in NY) is on my health insurance (based in CA) and we have to pay quarterly taxes on the benefits he receives as income or he is dropped from the coverage. When will we not have to pay those taxes?

ConstitutionalLawyer9 karma

Unclear. Depends on how quickly the regulations are appropriately updated. Probably within the next year but I don't know how ACA implementation will impact those kinds of issues.

verbete3 karma

How can any piece of gun control legislation be considered for voting in any part our legal system when clearly the constitution states that our right to bear arms shall NOT be infringed?

ConstitutionalLawyer14 karma

No right is absolute. Reasonable regulation is not considered infringement. The fight is over what "reasonable" means.

JohnnyUtah3 karma

Did you clerk, and, if so, (1) state or federal court and (2) trial or appellate? Have you ever handled an appeal or been involved in the staging of a case that involved an unresolved question of constitutional law?

And now the real point: why wasn't the Windsor case decided under the Full Faith and Credit clause?

ConstitutionalLawyer6 karma

I clerked at the State Supreme Court level, which, as you can imagine, handled plenty of unresolved constitutional questions.

As for Windsor - I honestly don't know. The several cases that were coming up on DOMA definitely argued it but all of the courts ducked the issue. I think the DOMA plaintiffs, politically, realized this wasn't the best shot at a win, so they made the strategic choice to leave it alone since the courts didn't seem to want to deal with it.

I think Section 2 will be back in court sooner than we think.

ichegoya2 karma

Do you think that the country is ready for the legislators in, say, Texas to make their own voting laws? I thought gerrymandering was already a problem, and now it seems like the more bigoted states (sorry to single out Texas, but they are pretty conservative, which often dovetails with bigotry) will have free reign to set up districts in any way they see fit.

ConstitutionalLawyer14 karma

It's going to be interesting to see. I, personally, think there are still a great deal of problems surrounding voting laws. The recent election's focus on voter ID laws and the court rulings declaring them discriminatory are, to me, indicative of a problem that hasn't really been solved yet.

I don't think it's going to be anything blatant or bombastic (though who knows) but more insidious over time. Things like moving polling places to country clubs that aren't public transit accessible and are in exclusively white neighborhood type stuff.

Again, the damage comes because these rules/changes are made prior to an election and only challenged/turned off after an election, so regardless of the ruling, the damage will be done.

Needless to say, it's going to be a wild 2014/16 cycle.

ichegoya4 karma

Thank you for your reply. Are there precedents for the NSA data collection program? I find it hard to believe that this capability and willingness to use it is a new phenomenon. My only concern is that the oversight is by 'secret courts'. What are secret courts? I assume that anything done secretly is easily corrupted. But the NSA collecting the phone numbers and time of calls? Not a big issue for me, really.

ConstitutionalLawyer6 karma

The current system was created following the Vietnam War.

I'd recommend reading up on the Church Committee, which recommended and created our current structure of FISA Courts

seltaeb42 karma

It seems that any Supreme Court action the American Right approves of is painted as "strict constructionism," whereas anything they dislike is labeled "legislating from the bench," in spite of decisions without any legal precedent such as Bush v. Gore, which they in turn declared should not be used as precedent in any future case. They danced around it, but let's be honest: the right-wing Supreme Court installed Bush as President.

Scalia, especially, has been ever more boastful and strident in recent years. Do they actually expect people to take them seriously, or are they just getting away with anything they can while they can because they know the average American won't know the difference anyway?

What will history say about the Reagan/Bush/Bush II appointees?

ConstitutionalLawyer23 karma

Depends on who you ask. To be totally fair, Scalia is considered by many regulatory/administrative law scholars as unbelievably consistent, eloquent, and innovative on issues of regulatory law.

I think the leadership of Rehnquist will reflect more strongly on what a particular Court did more than any individual Justice.

For what it's worth, I've met roughly half of the sitting Justices and several retired in my time and they ALL take themselves very very seriously. These aren't political campaigns and they take their opinions and approaches in a considered fashion. They are still people and therefore act on things like passions, biases, experiences, etc but I don't think its fair to paint them as political hacks. These are folks of extreme intellect and rigor and they recognize the honor bestowed on them of serving as a Justice and they respect the position.

Lord_Osis_B_Havior2 karma

Speaking of hacks, what was your feeling when Harriet Miers was nominated? Were you afraid she had a chance to be approved?

ConstitutionalLawyer2 karma

I was never terribly worried.

Bitastrophe2 karma

Why does the executive branch believe they have the right have our 4th amendment right conferred, and how can the supreme court excise the 5th amendment right?

ConstitutionalLawyer7 karma

Going to need to ask for some clarification on that one. Specific examples are easier to discuss/answer than allegations.

Bitastrophe3 karma

We can tackle one if 2 q's are too much. I read that the supreme court has excised the 5th amendment, meaning you no longer have the right to remain silent. I belive it passed June 7th 2013 it was 5-4 vote

ConstitutionalLawyer13 karma

June 7th 2013

I assume you mean the 5-4 vote in Salinas v. Texas. There, the Court ruled that because the plaintiff was silent initially when arrested and then started talking later, there was no right to remain silent exercised at the point of initial arrest. The Court ruled that you have to be explicit in declaring your silence.

It would have been different, I think, if the person had stayed quiet. The issue was that he started talking later, so they used his prior silence against him - which is allowed under certain circumstances (like here).

Put another way, you don't get to remain silent, then talk, then claim you were remaining silent. You have to remain silent or tell people you're going to exercise your right to silence.

This has historically been a contentious issue, but they didn't "excise" it - they just said better to play safe than sorry if you plan on talking later.

LeinadSpoon1 karma

Hey, so this isn't related to current events or the areas you mentioned, but I'll ask it anyways:

I'm having trouble understanding the relationship between the tenth amendment and the supremacy clause. To me they look contradictory. What powers are given to the federal government and what powers are given to the state government by these two portions of the constitution?

ConstitutionalLawyer2 karma

Powers of the federal government come from Article 1, Section 8 of the Constitution (the enumerated powers). Anything not included there is not a power Congress.

The remaining contradictory part? That keeps lawyers like me employed ;)

But on a serious note - supremacy trumps. The push from state's rights folks is the argument that federal overreach has essentially negated all of the powers protected by the 10A.