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DOMA and Federalism: A Reply to Young and Adler



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Jonathan Adler quotes at length Duke law professor Ernie Young’s response to the critiques that Georgetown law professor Nicholas Quinn Rosenkranz and I have made of the anti-DOMA amicus brief that Young, Jonathan, and other “federalism scholars” signed their names to. Jonathan also adds some responsive comments of his own. Here’s my reply (which is directed to Young’s points but also covers Adler’s):

1. Young (whom Jonathan identifies as “the primary author of our brief”) states:

This post simply responds to the primary point that both Rosenkranz and Whelan raise, which is that Congress “obviously has the power to define the meaning of the terms that it uses in [its] enactments.” (Whelan).

To say something is “obvious” is not itself an argument, and one may well ask from what clause of the Constitution this definitional power derives.

I confess that I regarded, and continue to regard, the proposition that Congress has the general power to define the terms that it uses in legislation as something that should be obvious to anyone who gives it a moment’s thought. And I regard Young’s inquiry about “from what clause of the Constitution this definitional power derives” as much like asking what the source is of Congress’s power to use adjectives, or words with more than six letters, in legislation. But since Young asks for an argument to establish this elementary point, here goes:

Young’s position that Congress is limited in its ability to define the terms that it uses necessarily assumes that there is some constitutionally significant difference between the “substantive” provisions of a law and the definitional provisions. But the two are in fact fully interchangeable, and it’s drafting aesthetics that determines what ends up in the definitional provisions.

Here’s an illustration that ought to prove the point:

A. Congress passes a law stating that “No private vehicle shall be allowed” on a particular piece of federal land. A definitional provision of the law states that the term “vehicle” means “A, B, C … or Z.”

B. Congress passes a law stating that “No private A, B, C … or Z shall be allowed” on the same piece of federal land.

C. Congress passes a law stating that “No private vehicle shall be allowed” on the particular piece of federal land. A general definitional provision in federal law (not part of the same enactment) states that the term “vehicle” means “A, B, C … or Z.”

The three examples are substantively identical, yet Young would have us think that the first and the third somehow trigger a set of inquiries into whether the definitional provision is “necessary and proper” for “carrying into execution” Congress’s enumerated powers. I don’t see how this makes any sense.

Young correctly points out that Rosenkranz and I don’t address “most of the actual arguments in the brief.” As I indicated in my opening post, that’s because, once one properly understands Congress’s power to define the terms it uses, those arguments are nothing more than epicycle upon epicycle of tedious irrelevancies.

2. Young contends, “Because DOMA applies in shotgun fashion to over 1,100 federal statutes, it is ‘plainly adapted’ to none of them.” Again, as I pointed out in my original post, Young’s pejorative rhetoric is a backhanded way of acknowledging that Congress in DOMA consistently applies the principle that marriage is the union of a man and a woman under federal law. Since everyone understood that that was what the term marriage meant before DOMA was enacted, I don’t see how DOMA’s maintaining that meaning can fairly be criticized as ill-considered. (Further, if it were to turn out that there was a statute to which DOMA was so ill-adapted as to render an unconstitutional meaning, the proper course would be to void that particular application, not DOMA in its entirety.)

3. Young also argues (as his brief does on multiple occasions) that the very name of the Defense of Marriage Act establishes that “[d]efining marriage, in order to defend the traditional institution, is itself the primary objective of DOMA” and is not a proper end. But DOMA would be more accurately named the Defense of Marriage Federalism Act, as its two substantive provisions operate to preserve the authority of the states and the federal government to define marriage as they see fit within their respective realms. The fact that Congress, for aesthetic simplicity, chose one title over another doesn’t alter what DOMA actually does.

4. In his secondary argument, Young laments that “[h]aving two definitions of marriage operative within a state causes confusion” and has other unwelcome consequences. His points strike me entirely as policy arguments against DOMA (and, for the reasons I explained in point 2.b of my original post, not arguments I find powerful).

Update: Jonathan has a surreply on Volokh Conspiracy, in which he states that “asserting that Congress has the power to define terms for purposes of federal law is not, in itself, a sufficient answer to our claim.” I’ll note that Jonathan, unlike Young, now concedes the point that he says that Rosenkranz and I are just “asserting.” But I agree with him that there are some other propositions in his amicus brief to refute—which is why I have done so in this post and my initial one.



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