Attainder and Amendment 2: Romer's Rightness

Abstract

Call me silly. In fact, call me terminally silly. For despite Justice Scalia's remarkably confident claim, I believe, and shall try to prove below, that the Romer Court majority opinion invalidating Colorado's Amendment 2 was right both in form and in substance, both logically and sociologically. I stress "form" and "logic" at the outset because I share Justice Scalia's belief in the importance of these things in constitutional adjudication. I also share his commitment to constitutional text, history, and structure, and his suspicion of "free-form" constitutionalism. And so I shall highlight the text, history, and spirit of a constitutional clause that - though not explicitly invoked by the Romer majority - clarifies and supports the majority's theory: the Article I, section 10 Attainder Clause. My claim is not that the Equal Protection Clause, relied upon by the Romer Court, was incapable of doing the work; but that the sociology and principles underlying the Attainder Clause powerfully illuminate the facts of Romer, the opinions in Romer, and the spirit of the Equal Protection Clause itself.