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February 20, 2006

Dodged Bullet

Pickering: Judges shouldn't legislate

Retired federal Judge Charles Pickering said Friday he believes the U.S. Constitution should be amended so judges cannot "legislate from the bench."

"This way judges could not change, alter or add to our Constitution," Pickering, 68, told students and faculty during an appearance on the Jones County Junior College campus.

"Now judges are legislating from the bench and we have a mystery Constitution," he said.

The stupid actually makes the article hard to read. Amend the Constitution?? I suppose it's obvious, but every now and then it needs to be said -- it's only "legislating from the bench" if you're on the losing side. For instance, if he really wants to prevent courts from just making shit up, he might start by attacking a favorite of the right, namely, sovereign immunity. See, the text of the Eleventh Amendment reads:

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, or by Citizens or Subjects of any Foreign State.

Quite clear, right? "Judicial Power of the United States" = federal courts. "Against one of the United States" = against a state. "by Citizens of another state" = by someone from outside the state. Someone from Mississippi can't sue the state of Georgia. Fine.

Except, because most lawsuits against states are intended to enforce federal rights, and because conservatives are -- or, should I say, were -- hostile to the idea of the federal government imposing obligations on states (particularly crazy liberal notions like civil rights laws), the Amendment has been interpreted to apply to lawsuits by a state's own citizens, and has even been interpreted to apply to lawsuits brought in state courts, even though there is literally nothing in the text that supports such a reading. As the Supreme Court -- including "textualist" Justice Scalia -- held:

We have, as a result, sometimes referred to the States' immunity from suit as "Eleventh Amendment immunity." The phrase is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment.

Really?? Where does it come from, then?

Although the Constitution establishes a National Government with broad, often plenary authority over matters within its recognized competence, the founding document "specifically recognizes the States as sovereign entities." ... Various textual provisions of the Constitution assume the States' continued existence and active participation in the fundamental processes of governance. See Printz v. United States, 521 U. S. 898, 919 (1997) (citing Art. III, §2; Art. IV, §§2-4; Art. V). The limited and enumerated powers granted to the Legislative, Executive, and Judicial Branches of the National Government, moreover, underscore the vital role reserved to the States by the constitutional design, see, e.g., Art. I, §8; Art. II, §§2-3; Art. III, §2. Any doubt regarding the constitutional role of the States as sovereign entities is removed by the Tenth Amendment, which, like the other provisions of the Bill of Rights, was enacted to allay lingering concerns about the extent of the national power. The Amendment confirms the promise implicit in the original document: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." ....

The federal system established by our Constitution preserves the sovereign status of the States in two ways. First, it reserves to them a substantial portion of the Nation's primary sovereignty, together with the dignity and essential attributes inhering in that status...

Second, even as to matters within the competence of the National Government, the constitutional design secures the founding generation's rejection of "the concept of a central government that would act upon and through the States" in favor of "a system in which the State and Federal Governments would exercise concurrent authority over the people--who were, in Hamilton's words, `the only proper objects of government.' "...

The States thus retain "a residuary and inviolable sovereignty." The Federalist No. 39, at 245. They are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty. ...

In light of history, practice, precedent, and the structure of the Constitution, we hold that the States retain immunity from private suit in their own courts, an immunity beyond the congressional power to abrogate by Article I legislation.

Huh. That reasoning sounds ... so familiar...:

specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U.S. 616, 630 , as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life." We recently referred in Mapp v. Ohio, to the Fourth Amendment as creating a "right to privacy, no less important than any other right carefully and particularly reserved to the people."

We have had many controversies over these penumbral rights of "privacy and repose." These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. .... Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.

We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system.

If anyone can spot which one "change[s], alter[s] or add[s] to our Constitution," and which one hews closely to the text, well, you've got greater powers than I do. So it's with glee that I'm reminded that once, the Democrats did object to things:

Pickering's 2001 nomination by President Bush to a seat on the U.S. Court of Appeals was defeated by a filibuster on the U.S. Senate floor led by Democrats who accused Pickering of racial insensitivity.

So while Congress was in recess in January 2004, Bush appointed Pickering again to the court - allowing him to serve until that December when the Senate failed to confirm his nomination.

Of course, it's not like his Pickering's replacement is all that, so it's really more like a temporary reprieve before the firing squad.

(via How Appealing)

(cross posted to Fantasy Life)


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Agreed, of course. Can we get an amendment against deciding predidential elections from the bench too?

I've always thought that briefings on the Rehnquist court's sovereign immunity jurisprudence should be mandatory for liberals who might end up in "legislating from the bench" arguments. Ironically enough, Glenn Reynolds, in his former life as a law professor who actually did his fucking job every once in a while, co-wrote an article with Brannon Denning called "Comfortably Penumbral" on that very issue. I think Denning still writes "with" Reynolds on some issues, though I have no idea why.

What I found frustrating about the Democrats who rolled over on the Alito nomination was the fact that they blinded themselves to the fact that Alito is little more than a Pickering who's smart enough to hold his tongue.

Alito's record as a jurist was clear enough, but Byrd, Landrieu, and the others pretended that they needed a smoking gun statement from Alito himself, on the order of: "while shooting an unarmed child would be troubling in a suburban neighborhood, the policeman acted properly in this case because his victim was black."

Hah, I actually read "Comfortably Penumbral." I fI understand, Reynolds was a student of the late Charles Black, who wrote a brilliant book about structuralism in constitutional interpretation...

The thing is, I think Douglas' argument in Griswold is right. The problem isn't the fairly banal concept that rights apply other rights, but that as applied to sovereign immunity the case is so weak.

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