Why are people willing to pay for the right to put their message on a license plate, rather than just put it on a bumper sticker? Justice Breyer suggests that it is because they want the state's endorsement of their message. The problem, though, is that this is about the state discriminating among private speakers based on whether it approves or disapproves of the message. This, the First Amendment does not permit.
Even 150 years later, it's clear that the wounds of the Civil War are not completely healed. But despite these historical and political rifts, there is one thing that can and should unite all Americans, as it has united Senators Leahy and Lee and a unanimous Senate: The wisdom and importance of the constitutional changes wrought by the Civil War and Reconstruction.
As the Supreme Court's ruling on same-sex marriage bans looms, the right wing has begun their assault on reason and intellect with the standard dire warnings, threats, and fear mongering in the form of corporate boycotts and revolt. As usual, their claims include flagrant misinterpretations of their favorite documents, the Constitution and the Bible.
To say that the judiciary is duty-bound to say "what the law is" and should not simply rubber-stamp the actions of the other branches is not to say that the other branches have a duty to obey its decisions. But holding the contrary position would make the judiciary an inferior branch and risk creating an uncertain and dangerous state of affairs.
During his 10-and-a-half hour filibuster in opposition to the Patriot Act, Senator Paul boldly asserted that the Constitution protects individual rights not expressly listed in its text, including the "right to privacy." As Senator Paul put it, "Few and limited [are] the powers given to the government. But it's the opposite with your rights. Your rights are many and infinite."
Anderson's preoccupation with activism leads him to miss out on a crucial point that all defenders of limited government should be able to agree upon: The Court should make an independent determination of the constitutionality of the challenged marriage laws, rather than reflexively deferring to the political branches.
If no reliable evidence at all were required to justify legislative classifications in constitutional cases, the judiciary would be transformed from a co-ordinate branch into a meaningless rubber stamp. The Framers neither intended nor envisioned that role for an institution they designated to serve as the "[bulwark] of a limited Constitution."