DLaycock at law.utexas.edu
Tue Dec 6 18:55:46 PST 2005
Isn't Scalia right? I have long wondered why the power to raise armies, together with the Supremacy Clause, isn't the end of the case.
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From: Dellinger, Walter [mailto:WDellinger at OMM.com]
Sent: Tue 12/6/2005 5:59 PM
To: Marty Lederman; Sanford Levinson; Douglas Laycock; DavidEBernstein at aol.com; conlawprof at lists.ucla.edu
Subject: RE: Solomon Amendment
I will weigh in when I can. for now, here's is Dahlia -- she links to the HLR brief if you go to Slate.
Justice Stephen Breyer cites one of the amicus briefs <http://www.law.harvard.edu/news/2005/09/21_brief.pdf> in the case that suggests that the law schools have not discriminated against military recruiters, but rather have adopted an evenhanded policy from which the military seeks an exemption <http://www.slate.com/id/2131465/> . For a few moments several justices are in the thrall of the amicus brief, until Scalia reminds Clement that the Constitution grants Congress the power "to raise and support armies." Scalia wonders why that isn't the end of this case.
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From: Marty Lederman [mailto:marty.lederman at comcast.net]
Sent: Tue 06-Dec-05 5:36 PM
To: Sanford Levinson; Douglas Laycock; DavidEBernstein at aol.com; conlawprof at lists.ucla.edu
Subject: Re: Solomon Amendment
I think Sandy's broader point is an important one -- namely, that the government has been pitching this, and virtually the entire press corps has been reporting it, as a case in which schools are discriminating against the military and denying them equal access. I think it's almost certain the Court will uphold the law; but I think it's a salutary development that at least some of the Justices seem to understand clearly that what the SA condition coerces is not equal treatment (as in title VI), but an exclusive pro-military privilege -- an exemption from the rules that bind everyone else. Put that way, perhaps the public support for the law --the "Military Gets an Exemption From the Basic Rules That Apply to Everyone Else Act of 2001" -- would be a bit more equivocal.
P.S. I should have noted that the very first challenge to Clement on the "equal access" question was from Justice Scalia, followed by Justices O'Connor, Kennedy and Breyer, and then Scalia again, insisting that Clement had had them "off galloping in the wrong direction" by stressing "same access": "The statute requires much more than that." Here's a link to the audiotape:
----- Original Message -----
From: Sanford Levinson <mailto:SLevinson at law.utexas.edu>
To: Douglas Laycock <mailto:DLaycock at law.utexas.edu> ; DavidEBernstein at aol.com ; marty.lederman at comcast.net ; conlawprof at lists.ucla.edu
Sent: Tuesday, December 06, 2005 4:54 PM
Subject: RE: Solomon Amendment
Doug concludes his posting by writing:
So I think the objection to the government's equality argument is not that it is false, but that it assumes the conclusion.
But isn't this the thrust of Peter Westen's "emptiness" argument, that all equality arguments assume their conclusion (i.e., that one has a right not to be discriminated against on grounds of race, religion, gender, etc., as against a widely shared perception that it is perfectly all right to discriminate against people on grounds of residence, age, attractiveness, etc., etc., etc.)? My initial posting was that the NYTimes was "misleading," not that it was necessarily "false." The term "equality" is too capacious to generate easily identifiable "true" or "false" arguments (or perhaps I should omit "easily").
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