So liberals are especially good at calling conservatives flip-floppers. It usually works because conservatives aren’t so great at explaining themselves. Jeffrey Rosen , in this great tradition, thinks in THE NEW REPUBLIC that the Court will probably overturn the DOMA on grounds of federalism limiting the power of Congress. If the so-called conservative judges don’t vote this way, they’ll be (God help them) INCONSISTENT:
We’ll find out this summer whether the conservative justices are as devoted to limiting congressional power on the subject of marriage equality as they were with Obamacare. If they’re not, however, libertarian law professors won’t be the only ones wondering about the inconsistency.
You know, of course, I called attention to the likely CONSISTENCY of Chief Justice Roberts, who probably will have deferred to Congress in both cases.
And it is true that if Justice Kennedy consistently follows his prior libertarian opinions he will vote not so much for federalism as liberty defined as autonomy.
More rigorously consistent libertarians such as Randy Barnett, in truth, don’t give a fig for federalism. They don’t think any limited government—state or national—should be understood to have “police powers.” The same “presumption of liberty” standard should be applied to all laws. For me, this puts any law that privileges marriage over autonomous relationships as such in doubt. That is, in fact, what Kennedy should want to do if he consistently sticks to his argument in LAWRENCE v. TEXAS.
But my goal is to keep decent liberals such as Rosen from the temptation to flip and flop: If they’re all about about federalism when it comes to the DOMA, then they should be all about federalism when it comes to each state deciding for itself what marriage is. They wouldn’t want the Court sticking each state with a NATIONAL definition of “marriage equality.”