Justice Kennedy Reiterates Invention of 5th Amendment Equal Protection Clause

I once had a conversation with Judge Bork. I first asked what was the worst Supreme Court decision, and, without the slightest hesitation, he answered Roe v. Wade.

But more relevant to the conversation here was his thoughts on Bolling v. Sharpe, the case that manufactured an “equal protection component” into the Due Process Clause of the 5th Amendment, which contains no such command.

In his opinion for the court in Windsor (striking DOMA), Kennedy relied on Bolling, which was but another fabrication of the Warren Court.

Kennedy wrote:

“The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. See Bolling, 347 U. S., at 499–500; Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 217–218 (1995). While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.”

All fiction.

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Published in: on July 7, 2013 at 5:10 pm  Leave a Comment  

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