Re: My Responses to Randy Barnett and Jonathan Adler

by Ed Whelan

As a follow-up to my own responses to Randy Barnett and to Jonathan Adler, I’m pleased to note that on the Volokh Conspiracy blog Orin Kerr weighs in powerfully against Randy’s post and that his points apply equally against Jonathan’s. Some excerpts:

[M]y co-blogger Randy Barnett writes that “defining marriage — like defining property — is a traditional function of the states.” …

But Congress often defines the meaning of “property” for purposes of federal law. See, e.g., 26 U.S.C. § 317(a) (“For purposes of this part, the term ‘property’ means money, securities, and any other property; except that such term does not include stock in the corporation making the distribution (or rights to acquire such stock).”); 26 U.S.C. § 614(a) (“For the purpose of computing the depletion allowance in the case of mines, wells, and other natural deposits, the term ‘property’ means each separate interest owned by the taxpayer in each mineral deposit in each separate tract or parcel of land.”); 21 U.S.C. § 853(b) (“Meaning of term “property” — Property subject to criminal forfeiture under this section includes–(1) real property, including things growing on, affixed to, and found in land; and (2) tangible and intangible personal property, including rights, privileges, interests, claims, and securities.”).…

I don’t think I have ever encountered an argument that these statutes are unconstitutional, and cases are wrongly decided, because the word “property” cannot be defined for purposes of federal law without “undermining the institution of property.”

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