Much of the conversation about the Equal Protection Clause recently has centered around the stunning assertion by Justice Antonin Scalia that discrimination on the basis of sex is not prohibited by the Constitution. Which is why yesterday’s marvelous panel celebrating the 40th anniversary of the Supreme Court’s decision in Reed v. Reed, the first case in which the Court applied the Equal Protection Clause to prohibit discrimination against women, was so refreshing and welcome. Justice Ruth Bader Ginsburg gave a tour de force performance, explaining that the Constitution’s text protects all persons, not only men, and demonstrating why Reed is a bedrock part of our law.
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There are few areas of the law as deeply polarizing and emotionally heated as the application of the Constitution’s guarantee of the equal protection of the laws to all persons. What is lost – all too often – in this heated and polarized discussion is the text and history of the Constitution’s Equal Protection Clause itself, along with the full sweep of our constitutional history: the principle of equality first stated in the Declaration of Independence, perfected in the Equal Protection Clause of the Fourteenth Amendment, and further illuminated in the Nineteenth Amendment and other Amendments.
If the government can take over the health care system in this country entirely, why can’t it take the far less ambitious step of using a tax penalty to encourage Americans to purchase private insurance?
Big Business in America loves to use the somewhat obscure legal doctrine of “federal preemption” to thwart state and local efforts to do all sorts of good things, such as protecting public health and safety, ensuring consumers have a remedy when they are harmed by corporate misconduct, and preserving the environment. “Preemption” is based on the Constitution’s declaration that federal law is supreme over conflicting state law.