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The Templar
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People's Republic of the East Village
Oct 2001
time: 00:28
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quote:
Originally posted by Imran Siddiqui
You insinuated the blame fall squarely on the Rehnquist Court. I saw it, and DD saw it. You cannot deny it. NOW, you change your tune and say they didn't get rid of bad precedent. |
No changing my tune at all - they are at fault for not only for relying on bad precedent but extending it.
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If you've read Seminole Tribe of Fla v. Florida or Alden v. Maine, you will realize that the majority used legislative history to determine what the 11th Amendment meant. Especially since it came right after (and was meant to rectify) the SCOTUS decision in Chrisholm v. Georgia.
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Legislative history? As Scalia once said - nobody votes on it, so it has no place in a court. (Besides, congressional staffers edit these after the fact.)
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And btw, saying there is no excuse not to overturn 'bad' precedent shows a severe lack of understanding of the federal court system and how insanely difficult it is to overturn precedent. Brown came 60 years after Plessy, and is one of the rare cases that actually overturned prior precedent. One can easily see from Planned Parenthood v. Casey how important precedent is to the federal court system (or else they easily would have overturned Roe v. Wade in 1991, and then it would have overturned again with the next Democrat majority). |
Actually Flood is the best example of the stickiness of bad precedent. But it isn't "insanely difficult" - there are just policy reasons that mitigate against overturning precedent.
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All going to show that your view is seriously misguided and in some parts just wrong. |
How so? Because I disagree with the Hans court? Give me a break. Hans is bad precedent with bad analysis.
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And I think I'll continue to let my top 30 ranked Law School keep my tuition. Though perhaps you ought to write your educational facilities and ask for a partial refund, since you seem to have large gaps in your educational understanding. |
Top 30? I'll assume it's lower that #25, otherwise you would have said top #25. This shows, because your argument is all black letter law (without analysis even!)and no substance.
You cite a bunch of cases at me without actually arguing against my analysis of why the precedent is bad. Again, how can the framers have intended for states to be immune from suits when the text of the constitution (pre-11th Amend) endorses the practice? And before you cite any Federalist Papers - tell me, who ratified those? Oh yeah, no one.
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Agathon
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Leafs 4TW!! - CPA
Dec 2002
time: 00:28
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**** America.
Well that's my two cents. At least that's what all us commies are supposed to say.
Last edited by Agathon on 23-05-2003 at 07:25
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Imran Siddiqui
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The Potterverse
Jan 1970
time: 00:28
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Legislative history? As Scalia once said - nobody votes on it, so it has no place in a court. (Besides, congressional staffers edit these after the fact.) |
NO ****! That's why it ain't a textualist argument!
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But it isn't "insanely difficult" - there are just policy reasons that mitigate against overturning precedent. |
Of course it is insanely difficult, because if the court changes its mind every ten years no one is going to take the court seriously! Yes, that's a policy reason, but that doesn't make is insanely difficult!
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How so? Because I disagree with the Hans court? Give me a break. Hans is bad precedent with bad analysis. |
No, because you place the blame for what the Hans court did on the Rehnquist Court! That's intellectually dishonest.
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Top 30? I'll assume it's lower that #25, otherwise you would have said top #25. This shows, because your argument is all black letter law (without analysis even!)and no substance. |
So wait... you are saying that the schools from 25-30 are dramatically inferior? Please  . And it was in the Top 25 last year, so does that mean my analysis would have been better before the recent ranking came out?
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how can the framers have intended for states to be immune from suits when the text of the constitution (pre-11th Amend) endorses the practice? |
When did I say anything about the framers? The 11th Amendment came after the framers and superceeds anything the Constitution says beforehand (and anything after it superceeds the 11th, which is why Civil Rights cases aren't subject to soveriegn immunity). The courts looked at the intention for the 11th Amendment at the time it was passed and ratified. The founders have nothing to do with it.
Btw, the 11th Amendment was ratified. And interestingly enough it came almost right after Chisholm v. Georgia, and according to the speechs was undoubtably related to that. It may be bad precedent to say that is what it meant, it may not, but who cares? Precedent ain't an easy thing to overturn, as witnessed by the fact that in the 100 years from Hans to the Rehnquist court, that interpretation of the 11th wasn't deemed wrong (then again, they may have decided that the legislative history was clear).
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Ned
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of Aptos, CA
Oct 1999
time: 21:28
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Templar, as a general rule, citizens cannot sue states or the United States without a waiver by them of their sovereign immunity. The 11th Amendment clarified an ambiquity created by the language of Article III. The clarification limited federal state-citizen jurisdiction to actions commenced by states against citizens of other states. This is consistent with and affirms the general rule of sovereign immunity.
The question is, can Congress pass a law that permits a citizen to sue a state in federal courts under federally created causes of actions, such as patent or copyright infrinement? The Rehnquist court held that Congress does not have this power, IIRC. You say this holding was non textual. But is it?
The 11th Amendment: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State...."
The language does not provide an exception for federally-created rights. It is absolute.
But there is no text anywhere in the constitution that expressly denies a citizen the right to sue his own state in federal court under federal causes of action. You suggest therefor that Congress could grant such a right to a citizen without violating the 11th amendment or any other protection given the states by the constitution.
I suggest, however, that the 11th amendment clearly implies just such a prohibition. It would ludicrous, if you ask me, to expressly deny the right of a citizen of one state to sue a second state for federal causes of action while permitting such a right if the citizen were from the same state. The denial of such a right is also consistent with the general rule of state sovereign immunity.
The Rehnquist court is right, no pun intended.
Last edited by Ned on 23-05-2003 at 07:40
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Imran Siddiqui
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The Potterverse
Jan 1970
time: 00:28
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quote:
Thomas is essentially a textualist who is a bit more honest than Scalia about his basis for interpretation - i.e. Natural Law type arguments. But he tends to reason in a textualist mode with respect to cases. In Staples he notes that the text of the statute does not impose strict liability and so he is unwilling to read it that way. |
Like I said Criminal Law is different from Constitutional Law. In Criminal Law there has been a turn that if a statute does not say 'strict liability' then it does not mean it. This was spearheaded by the MPC.
Btw, it is actually an ANTI-textualist argument. Because Thomas is reading things in that are not already there. Because there is no mens rea requirment, the statute should be read as strict liability. No mens rea stated means no mens rea required. Thomas' position here is that even though there is no mens rea here, we are going to impose mens rea, and from now on if a statute is silent on mens rea, we are going to go to the default mens rea under the MPC, which is recklessly.
In Constitutional cases, Thomas always goes back to 'what did the Framers mean'. He doesn't look at the text, but more to the intent behind the words. That is what Natural Law is about, right? I've never heard Natural Law and Textualism co-exist peacefully before. They are naturally at odds. The great Textualist, Oliver Wendall Holmes said (paraphrasing) natural law has no place in the Constitution.
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Berzerker
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topeka, kansas,USA
May 1999
time: 23:28
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chegitz - quote:
That's a nice theory, but the people are sovreign, not the States. |
That's a nice theory  , but what happens when some people - "sovereigns" - use the state to infringe upon the freedoms of other people who are also sovereign?
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The States weren't even forced to accept that they had to abide by the Bill of Rights until the last century. |
The states weren't obliged because the 14th Amendment had not been added until after the Civil War, so why would the states have to accept those restrictions before that?
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Even now, as The Templar mentions, the people have very litte redress against the actions of their states. |
And who is to blame for that? The voters in that state?
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Sure, we can vote them out of office, providing they don't blatently violate the law, as they did in Florida. |
What state politician in Florida blatantly violated the law to avoid being voted out of office? If you're talking about the presidential election, that's ridiculous. Gore was trying to get additional recounts only in counties he considered Democrat strongholds to increase his tally, he didn't give a damn about the law. That tactic, if successful, would have treated the voters in Florida differently by applying different standards. It sure takes alot of spin to turn that blatant attempt to subvert the equal protection clause of the Constitution into an accusation against Bush.
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All the Constitution guarantees us against our own states is that the governments must be republican. |
There were several prohibitions on the states even before the 14th Amendment. But the US Constitution was, for the most part, a blueprint for the federal government, not the states which have their own constitutions. The people, via their states, "delegated" certain powers to the federal government, and the Constitution is a record of those delegated powers. Unfortunately, far too many people believe the feds can do almost anything as long as the Constitution doesn't explicitly prohibit the action.
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The Constitution has never even been ratified by the people of the US. IIRC, we're the only Constitutional government in the developed world to have that honor. |
Are you suggesting the Constitution should be re-ratified every decade or so? Those other countries don't do that, so why are we unique?
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The States created the Constitution, the States ratified it, and only they can change it. We are their subjects, not their masters. |
Who do you think make up the states? People living in them?
If your complaint is that a state may not always do the bidding of the majority of those who vote, i.e., "democracy", so what?
I agree we are subjects and not sovereign, but that's because various legislative bodies have passed laws criminalising our freedom, and they usually do this at the behest of the majority who will gladly vote away freedoms they don't cherish.
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23-05-2003 07:12
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