Strengthening Constitutional Self-Government

No Left Turns

Justice Scalia and the Declaration

I’m not sure I agree with Robert Alt’s more charitable take, below, on Justice Scalia’s joining only parts I-VII of Justice Thomas’s opinion in Grutter. Justice Scalia penned a pretty strong opposition to reliance on the Declaration of Indepedence in Troxel v. Granville two years ago: The Declaration "is not a legal prescription conferring powers upon the courts." And he did not join Justice Thomas’s opinion in Adarand, in which Justice Thomas argued that racial set asides violate the equality principle that infuses the Constition, a proposition for which he cited the Declaration of Independence. I think it pretty likely, therefore, that the asteriks were added to make a concluding section separate from Part VII, so neither it nor the introduction were joined by Justice Scalia.

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