Call me silly. In fact, call me terminally silly. For despite Justice Scalia's remarkably confident claim, I believe, and shall try to prove below, that the Romer Court majority opinion invalidating Colorado's Amendment 2 was right both in form and in substance, both logically and sociologically. I stress "form" and "logic" at the outset because I share Justice Scalia's belief in the importance of these things in constitutional adjudication. I also share his commitment to constitutional text, history, and structure, and his suspicion of "free-form" constitutionalism. And so I shall highlight the text, history, and spirit of a constitutional clause that - though not explicitly invoked by the Romer majority - clarifies and supports the majority's theory: the Article I, section 10 Attainder Clause. My claim is not that the Equal Protection Clause, relied upon by the Romer Court, was incapable of doing the work; but that the sociology and principles underlying the Attainder Clause powerfully illuminate the facts of Romer, the opinions in Romer, and the spirit of the Equal Protection Clause itself.
Akhil R. Amar,
Attainder and Amendment 2: Romer's Rightness,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol95/iss1/5