More Supreme than Ever.The Court rules in its own favor. Mr. Arkes is professor of jurisprudence at Amherst College. A thought-experiment, not so implausible: A Clintonesque candidate for governor in one of the states proclaims his interest in reducing medical costs by having the state sell "off label" drugs-starting with Viagra. As a result of the recent round of decisions by the Supreme Court, Pfizer, the manufacturer of Viagra, would not be able to sue to protect its patent under federal law. Thanks to the Reagan and Bush appointees to the Court, the state would now be insulated by its "sovereign immunity The legal protection that prevents a sovereign state or person from being sued without consent. Sovereign immunity is a judicial doctrine that prevents the government or its political subdivisions, departments, and agencies from being sued without its consent. " under the Eleventh Amendment The Eleventh Amendment to the U.S. Constitution reads: . That amendment bars private litigants from bringing lawsuits against the states in federal courts. But it has posed a puzzle since its advent in 1795, and the question now is just what is so "conservative" in these recent decisions produced by so-called conservative judges. The problem of patents arose this term in the case of College Savings Bank savings bank, financial institution that, until recently, performed only the following functions: receiving savings deposits of individuals, investing them, and providing a modest return to its depositors in the form of interest. v. Florida Prepaid Postsecondary Education Expense Board. The State of Florida, in arranging packages for the payment of tuition in college, had trespassed on a "methodology" that was patented by the College Savings Bank in Princeton, N.J. For compelling reasons, the authority to issue patents was assigned, under the Constitution, to the federal government. But that constitutional authority could be made a nullity nullity n. something which may be treated as nothing, as if it did not exist or never happened. This can occur by court ruling or enactment of a statute. The most common example is a nullity of a marriage by a court judgment. NULLITY. if the holders of patents could not vindicate their rights in federal courts when the patents were infringed by states. In the same way, we would expect that if Congress can impose a minimum wage on certain establishments, that law would apply to employees of a state if they fell into the classes covered by the law (the problem posed in a parallel case, Alden v. Maine Alden v. Maine, 527 U.S. 706 (1999)[1], was a United States Supreme Court case which held that Article One of the U.S. Constitution did not give the United States Congress the power to abrogate the sovereign immunity of the states and thereby allow ). The law on minimum wages is not particularly defensible, but if Congress has the authority to enact such a law, it seems neither politically wholesome nor tenable ten·a·ble adj. 1. Capable of being maintained in argument; rationally defensible: a tenable theory. 2. in principle to exempt the states from the laws that are binding on the rest of us. Far better to recruit the power of the states in resisting those laws-unless, of course, something in the Constitution erects a barrier to the reach of federal power when it comes to the states. But how could such a barrier be put in place without undermining the very logic of a national government? There has always been an uneasy mixture in the logic of "state sovereignty." The separate states were never sovereign in international affairs; no foreign nations ever sent ambassadors to Massachusetts or Rhode Island Rhode Island, island, United States Rhode Island, island, 15 mi (24 km) long and 5 mi (8 km) wide, S R.I., at the entrance to Narragansett Bay. It is the largest island in the state, with steep cliffs and excellent beaches. . But in theory, the powers of the federal government in domestic affairs were "delegated" by the states, and the national government was one of "enumerated This term is often used in law as equivalent to mentioned specifically, designated, or expressly named or granted; as in speaking of enumerated governmental powers, items of property, or articles in a tariff schedule. " powers. The Eleventh Amendment arose precisely because the first Supreme Court denied that there could be "sovereign immunity" in this sense: that a state could refuse to make itself accountable to a single person defending his interests in a lawsuit. The case was Chisholm v. Georgia An early U.S. Supreme Court case holding that Article III of the federal Constitution gives the Court original jurisdiction over lawsuits between a state government and the citizens of another state, even if the state being sued does not consent. (1793), and it produced two of the most stirring arguments for "natural rights" that can be found in that period. Justice James Wilson pointed out that the very term "sovereign" was derived from feudalism feudalism (fy  `dəlĭzəm), form of political and social organization typical of Western Europe from the dissolution of Charlemagne's empire to the rise of the absolute monarchies. and bound up with the
assumptions of legal positivism A school of Jurisprudence whose advocates believe that the only legitimate sources of law are those written rules, regulations, and principles that have been expressly enacted, adopted, or recognized by a governmental entity or political institution, including administrative, : namely, that law was simply the rule
prescribed, or "posited," by the commands of the Sovereign.
But in America, said Wilson, the law would be placed on a radically
different foundation: "The pure source of equality and justice must
be founded on the consent of those whose obedience they require. The
Sovereign, when traced to his source, must be found in the man."
This premise of natural rights transformed the problem of suing a state. For, by a "state," we would then mean: the free citizens who make up the political community known as, say, Delaware. Under the Constitution, one state may sue another, but as Chief Justice John Jay suggested, that means essentially that all of the citizens of Delaware may sue all of the citizens of Pennsylvania. But if "all" can sue "all," then either such "all" may sue the "all" of the other state. In Chisholm, Wilson and Jay condensed their argument to a syllogism syllogism, a mode of argument that forms the core of the body of Western logical thought. Aristotle defined syllogistic logic, and his formulations were thought to be the final word in logic; they underwent only minor revisions in the subsequent 2,200 years. and produced a decision that still cannot be refuted. The political class at the time recoiled from it and passed the Eleventh Amendment. If the amendment means anything, it must mean something close to what the conservative judges have said in these latest cases. Yet it is a pity that the arguments of Chisholm are recalled only by the liberal dissenters-by people like David Souter, who do not have the least respect for the doctrine of natural rights that those first jurists The following lists are of prominent jurists, including judges, listed in alphabetical order by jurisdiction. See also list of lawyers. Antiquity
Take again the case on patents. Congress derives its power to issue patents under Article I of the Constitution. But over several years, the Court has held that the powers of Congress under Article I may not be used to override the "sovereign immunity" of the states. Congress may override that immunity, it has said, only in exercising its Fourteenth Amendment Fourteenth Amendment, addition to the U.S. Constitution, adopted 1868. The amendment comprises five sections. Section 1 Section 1 of the amendment declares that all persons born or naturalized in the United States are American citizens and citizens power to enforce the requirement that states grant all persons the due process and equal protection of the law equal protection of the law n. the right of all persons to have the same access to the law and courts, and to be treated equally by the law and courts, both in procedures and in the substance of the law. . And even there, the Court has insisted that Congress could formulate remedies only when the courts find that constitutional rights have been denied. In the case of patents, the judges did not agree that there was a constitutional violation to be remedied because there were only a handful of cases in which states ran afoul of the laws on patents. But why should the number of cases matter? Congress can surely protect patents lawfully granted, and the Court concedes that in this field, there is no immunity to lawsuits brought by individuals. Why then should the Court insert itself here as a kind of regulator, to determine when legislation is permitted? The justices could have argued that Congress is free to protect patents-but not by authorizing private lawsuits against a state. Congress could enforce its policy by authorizing the attorney general to bring suits against the officers of a state. The Eleventh Amendment would no longer be in play because private litigants would not be involved; it would mainly restrict the ability of judges to collude col·lude intr.v. col·lud·ed, col·lud·ing, col·ludes To act together secretly to achieve a fraudulent, illegal, or deceitful purpose; conspire. with private litigants to subvert the policies of a state. As Justice Anthony Kennedy suggested, the object of the Eleventh Amendment may be to preserve the integrity of the political process in the separate states. If the voters and their representatives settle upon a policy, that policy should be overturned only by a political process at a higher level. But that argument against the power of the courts is not the one that the judges have concentrated their wit in explaining, and indeed their arguments have pointed in a rather different direction. On the surface, the Court claims to be shoring up the authority of the states against the national government. But the real import of these cases is that the judiciary is again cutting back on the power of Congress in relation to the courts. In a telling sign, the Court leans on its precedent, two years ago, in City of Boerne v. Flores City of Boerne v. Flores, 521 U.S. 507 (1997), was a Supreme Court case concerning the scope of Congress's enforcement power under the fifth section of the Fourteenth Amendment. , when the Court struck down the Religious Freedom Restoration Act The Religious Freedom Restoration Act (, also known as RFRA) is a 1993 United States federal law aimed at preventing laws which substantially burden a person's free exercise of their religion. . The concern then was that Congress had gone beyond the Court's interpretation of the Fourteenth Amendment and upended many local laws. Yet there was no such concern when the Court in a stroke swept away the laws banning abortion in all the states. More recently, the Court showed no inhibitions about "sovereign immunity" when it decided that the states would be held accountable for acts of sexual harassment sexual harassment, in law, verbal or physical behavior of a sexual nature, aimed at a particular person or group of people, especially in the workplace or in academic or other institutional settings, that is actionable, as in tort or under equal-opportunity statutes. carried out by fifth graders. The sober truth emerges when we recognize that Congress would never have acted in this way. Congress has ever been more sensitive to local interests, and it has been the most reliable protector of federalism in the national government. Under the banner then of protecting the states, the Court has really weakened the main counterweight coun·ter·weight n. 1. A weight used as a counterbalance. 2. A force or influence equally counteracting another. coun to the Court itself in imposing policies on the states. Behind the slogans of limited government, the limits have been dismantled even further. |
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