Is Amendment 2 Really a Bill of Attainder? Some Questions About Professor Amar’s Analysis of Romer

As I first discovered as a law student in Professor Amar’s classes on legal history and federal courts, it is generally an intellectual treat to listen to Professor Amar’s legal analysis, even when he is attacking one’s own arguments. So my pleasure at reading Professor Amar’s analysis of the Court’s decision in Romer v. Evans was only partly dampened by his disapproval of the respondents’ brief that I and other plaintiffs’ counsel filed with the Court. According to Amar, this respondents’ brief provided the Court with “so little help” that it had to rely on an entirely different and much sounder argument – an argument rooted in the U.S. Constitution’s prohibition on attainder, contained in Article I, sections 9 and 10. Amar maintains that (1) contrary to Justice Scalia’s vituperative dissent, the attainder argument provides an intellectually compelling basis for believing that Amendment 2 is unconstitutional, and (2) the Romer decision, correctly interpreted, adopted precisely this argument. Amar’s revival of the Attainder Clauses is classically Amaresque: it talces constitutional text and structure seriously and it provides an original and sensitive reading of specific constitutional clauses and a careful understanding of their structural relationships. However, as much as I appreciate his elegant and astute reading of the Attainder Clauses, I think in the end that his application of these clauses to Amendment 2 and his reading of Romer are unconvincing. The difficulty with his argument is that, as Amar notes, the Attainder Clauses prohibit state and federal legislation from “naming persons and singling them out for distinctive treatment.” As explained below, a law “names ” persons only if it defines a closed class of persons with some fixed characteristic – a class the entire membership of which could be known (at least in theory) by the legislators at the moment when the law is enacted.