Wednesday, August 03, 2016


by Michael Dorf


Dear [Daughter],







Joe said...

Let's change that provision. I think arguably equal protection principles would hold it is already unconstitutional. But, a general amendment to deal with various voting issues would be useful & probably something with some bipartisan agreement.

Thanks for letting us read the letter.

Plus, we know she knows her ABCs.

Asher Steinberg said...

I don't think, Joe, that a provision of the Constitution can itself be unconstitutional. Unless you think the natural-born citizen clause has been repealed? That is theoretically possible, but usually repeals are much more specific, besides which, I believe on the current state of equal protection doctrine it's constitutional for states to disqualify, at least, aliens from holding office.

Joe said...

I think that the equal protection component of the Fifth Amendment, which amended the Constitution, could be used to challenge a classification by alienage. Perhaps, some other amendment to the Constitution, which can override what came before (see, e.g., how state immunity has been affected by the 14A). The "repeals are much more specific" is not some hard and fast rule or fixed in stone.

The "current state of equal protection doctrine" changes over time. I said "principles" not "the current state of equal protection doctrine." Anyway, I realize it's a stretch. But, so were various other things once upon a time that are now accepted, down to basic sex and sexual orientation equality principles.

Anyway, an amendment would be the best approach.

Joe said...

"aliens from holding office"

There is a "political function" exception, if one that included some split opinions, accepted by the Supreme Court's understanding of illegitimate classifications by alienage. But, even there, it's "aliens" not people who were aliens when they were one. Naturalized citizens generally would still have the right to hold office from my understanding. Plus, just to toss it out there, the outer limits of "office" is somewhat unclear (notary publics not included -- BERNAL v. FAINTER).

qwoijzacxoi said...

This letter was very patronizing, much more than expected! With that said, you are the parent, so...I suppose everything works out.

t jones said...

Just a quibble: The fact that India and Pakistan had women at the tops of their governments doesn't give a very complete picture of the status of women there, given the issues with rape and honor killings, etc. Indeed the fact that those two specific women were chosen says much more about the class structures and dynastic politics of those countries than about their progress in sexual equality.