Eminent Domain

George Mason Law School Professor Peter Berkowitz has an article in The Weekly Standard about the Court's recent upholding of the Solomon Amendment. George Mason was the one law school who submitted a brief in favor of the government's position in that case (that's the position that won, in case you forgot). The focus of his article is the following...

Roberts's opinion does give rise to, and leaves unresolved, one nonlegal but rather large and disturbing question: How could so many law professors of such high rank and distinction be so wrong about such straightforward issues of constitutional law?

You have to wonder that, don't you? When the Court hands down a unanimous opinion, it's a sign that the law is pretty clear. Shouldn't law professors at prestigious universities like Yale, Harvard, Columbia, and Chicago be able to predict the outcome of an easy case? Well, after the case, the petitioners had this response...

Joshua Rosenkranz, who represented FAIR, told the Washington Post that the law schools always saw the suit as a "scrimmage in a broader war" about equality--a revealing remark from an attorney who had just suffered a dreadful defeat in a high profile First Amendment case.

So this was all just politics? It was a protest suit?

This whole lawsuit seems strange to me. The people who direct their anger at the military recruiters seem strange to me too. "Don't Ask, Don't Tell" is not military-made policy. It's policy passed by Congress. If you really want it changed, why not petition Congress? I think that simply arguing policy is a better route than Constitutional law. Argue that our military needs every committed person that it can get, regardless of sexual orientation. Argue that all patriotic Americans should be allowed to serve their country in the military. It certainly seems more legitimate to change a policy via the legislative process than trying to shoehorn it into the Constitution. But I guess we have a history of doing such things in the past...