NOTES
PROLOGUE: A RECURRENT
STRUGGLE IS RESUMED
the copyright case: infra, chapter 4; the age discrimination case: infra, chapter 5; the woman raped by members of the football team: infra, chapter 6.
“[T]he States entered the federal system with their sovereignty intact”: Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991); quoted in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 150 (1996) and in Alden v. Maine, 527 U.S. 706, 713 (1999).
“neither a national nor a federal Constitution”: James Madison, Number 39, The Federalist.
These express powers were construed … under John Marshall: McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
The standards apply to the states, but … cannot be enforced: infra, chapters 4 and 5.
“There must be congruence and proportionality”: City of Boerne v. Flores, 521 U.S. 507, 520 (1997).
“widespread and persisting deprivation of constitutional rights”: id. at 526.
“anecdotal evidence”: id. at 531 and Bd. of Trustees of the Univ. of Alabama v. Garrett, 121 S. Ct. 955, 966 (2001); see infra, chapter 5.
The Violence Against Women Act held unconstitutional: infra, chapter 6.
The recurrent battle: Robert H. Jackson, The Struggle for Judicial Supremacy (New York: Alfred A. Knopf, 1941), xii–xvii.
the institution has more influence on individuals: id., vii.
“ahistorical literalism”: Alden v. Maine, 527 U.S. 706, 730 (1999).
a contradiction sits at the center: See infra, chapter 3.
Dred Scott v. Sandford: 60 U.S. 393 (19 How.) (1857); Lochner v. New York: 198 U.S. 45 (1905); Carter v. Carter Coal Company, 298 U.S. 238 (1936).
CHAPTER 1
THE BATTLE OF BOERNE
A unique contribution: See John T. Noonan Jr., The Lustre of Our Country: The American Experience of Religious Freedom (Berkeley: University of California Press, 1998), 75–91 (hereafter Lustre).
The mother country: id. at 57–58.
A wouldbe imitator: id. at 267–275.
the umpire of the experiment: id. at 91.
The states had no intention: id. at 96.
New Hampshire even had a provision: New Hampshire Constitution, pt. 2 (1784), in James Fairbanks Colby, comp., Manual of the Constitution of the State of New Hampshire (Manchester: J. B. Clarke, 1912), 110–113; Lustre at 99.
A foreign observer like Tocqueville: Lustre at 95.
Most important, religion was exercised freely: id. at 119–137.
The Supreme Court's one sustained venture: id., 252–254; Supreme Court upheld: Reynolds v. United States, 98 U.S. 145 (1878); federal statute: An Act to punish and prevent the Practice of Polygamy in the Territories of the United States and other Places, and disapproving and annulling certain Acts of the Legislative Assembly of the Territory of Utah, 12 Stat. 501–502 (July 1, 1862); court also upheld a territorial statute: Murphy v. Ramsey, 114 U.S. 15 (1885); court enforced a federal law confiscating the property: The Late Corporation of the Church of Jesus Christ of Latter Day Saints v. United States, 140 U.S. 665 (1891).
various state prosecutions: See e.g., Nicholls v. Mayor and Sch. Comm. of Lynn, 297 Mass. 65, 7 N.E. 577 (1937) (expulsion from school); When the Witnesses appealed to the Supreme Court: Lustre at 241–242.
The Supreme Court decided that religious liberty: Cantwell v. Connecticut, 310 U.S. 296 (1940).
The makers of the fourteenth amendment did have a sense that the religious freedom of the newly emancipated slaves: Kurt T. Lash, “The Second Adoption of the Free Exercise Clause: Religious Exemptions under the Fourteenth Amendment.” 88 Nw. U.L.R. 1106, 1134–1135 (1994).
Three overlapping reasons: Freedom of speech and freedom of the press read into fourteenth amendment: Gitlow v. New York, 286 U.S. 652, 666 (1925); withdrawn from the business of invalidating governmental regulation: West Coast Hotel v. Parrish, 300 U.S. 379 (1937); “in the delusion of racial or religious conceit”: Cantwell, 310 U.S. 296 at 310.
Writing for the court, Felix Frankfurter: Minersville School District v. Gobitis, 310 U.S. 586 (1940); “an interest inferior to none”: id. at 595.
“If there is any fixed star”: West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943).
“Providing public schools ranks at the very apex”: Wisconsin v. Yoder, 406 U.S. 205, 213 (1972); “[B]elief and action cannot be neatly confined”: id. at 220; “[A] regulation neutral on its face”: id. at 220.
The national government was always found to have had a national interest: See e.g., Bowen v. Roy, 476 U.S. 693 (1986); Goldman v. Weinberger, 475 U.S. 503 (1986); United States v. Lee, 455 U.S. 252 (1983).
The governmental interest … had to be “compelling”: See Employment Div. v. Smith, 494 U.S. 872, 894–895 (1990) (concurrence, collecting cases)
“Compelling interest” … could be dispensed with: Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 447 (1998); “the Indians' ability to practice”: id. at 451.
It would not have been a stretch to hold that Oregon had a compelling interest: Employment Div., 494 U.S. 872 at 905 (concurrence).
It did so without even asking: Michael W. McConnell, “Free Exercise Revisionism and the Smith Decision,” 57 U. Chi. L. Rev. 1109, 1113 (1990).
To achieve this result, the court had to put a new skin: Employment Div. v. Smith, 494 U.S. 872 (1990) (opinion by Scalia, J., joined by Rehnquist, C. J., and by White, Stevens, and Kennedy, JJ.); Cantwell and Yoder explained: id. at 881; a Mormon case: Reynolds v. United States, 98 U.S. 145 (1879), twice cited in Employment Div. at 879 and 885; “Instead the opinion of Justice Frankfurter”: id. at 879.
“sweeping result,” … “disregard our consistent application of free exercise doctrine”: id. at 892 (O'Connor, J., joined by Brennan,
A formidable and unusual coalition: See Gustav Niebuhr, Disparate Groups United Behind Civil Rights Bill on Religious Freedom, Washington Post, October 16, 1993 at 7, available at 1994 WL 2093750 (noting “no fewer than 48 religious and civil liberties groups” from People for the American Way and the ACLU to the National Association of Evangelicals, the U.S. Conference of Catholic Bishops, and major Jewish organizations).
Incredibly …free exercise was being characterized as a luxury: Testimony of John H. Buchanan, Jr., chairman, People for the American Way Action Fund, Religious Freedom Restoration Act of 1990: Hearings on H.R. 5377 before the House Committee on the Judiciary, 102d Cong. at 53 (1990); “The Dred Scott of first amendment law”: Testimony of Nadine Strossen, president of the American Civil Liberties Union, Religious Freedom Act of 1992: Hearings on S. 2969 before the Senate Judiciary Committee, 102d Cong. at 171 (1992). See also Statement of Elder Dallin H. Oaks in the same hearings, p. 33 (1992); Testimony of Robert P. Dugan Jr., Religious Freedom Restoration Act of 1991: Hearings on H.R. 2797 before the House Committee on the Judiciary, 102d Cong. at 13 (1992).
RFRA: 42 U.S.C. §2000bb; House and Senate votes on RFRA: 139 Cong. Rec. 26416 (103rd Cong., 1st sess., October 27, 1993); 139 Cong. Rec. 27241 (103rd Cong., 1st sess., November 3, 1993).
“self-executing”: City of Boerne v. Flores, 521 U.S. 507, 522 (1997).
The Congress that drafted the fourteenth amendment: Joseph T. Sneed III, Footprints on the Rocks of the Mountain: An Account of the Enactment of the Fourteenth Amendment (West Coast Print Center, 1997), 330–331, 370; Stephen A. Engel, “The McCulloch Theory of the Fourteenth Amendment: City of Boerne v. Flores and the Original
Dred Scott: Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
“It is the power of Congress which has been enlarged”: Ex parte Virginia, 100 U.S. 339, 345–346 (1879).
“Let the end be legitimate”: McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819).
the court had held that a test of literacy … did not violate the fourteenth amendment: Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959); Congress had responded: see Voting Rights Act of 1965 41(a), 42 U.S.C. §1971(a)(2)(C) (banning literacy tests).
The evidence that Congress was remedying: Katzenbach v. Morgan, 384 U.S. 641, 654 n.14 (1966).
The history of St. Peter's: “St. Peter the Apostle Catholic Church,” http//www.massintransit.com/tx/stpeter-tx-boerne/index.html, accessed July 18, 2001.
The early stages of the battle of Boerne: San Antonio Express News, August 8, 1993; “like sardines”: id.; over $600,000 in pledges: id.; historical value of church: James Steely to Anna Marie Davison, June 23, 1992; The archbishop and then the pope: Thomas P. Sullivan to Archbishop Flores, June 1993; petition to the pope:reprinted, Boerne Star, October 13, 1993; question as to extent of historic zone: San Antonio Express, January 30, 1996; actions of landmarks commission and city council: Boerne Star, April 20, 1994; “morally and grossly unjust”: Hill County Recorder, April 5, 1995; move to Rainbow Senior Center: id.
The case in the district court: Flores v. City of Boerne, 877 F. Supp. 355 (M.D. Texas, 1995); the case in the Fifth Circuit: Flores v. City of Boerne, 73 F.3d 1352 (5th Cir. 1996), cert. granted, 519 U.S. 926 (1996). Almost in parallel with Boerne a case arose in the Ninth
“not easy to discern”: City of Boerne, 521 U.S. 507 at 519; “must have wide latitude”: id. at 520; “the distinction exists”: id.
“There must be a congruence and proportionality”: id. (opinion by Kennedy, J. with Rehnquist, C. J., and Stevens, Scalia, Thomas, and Ginsburg, JJ., concurring). For a searching critique of Boerne, see Evan H. Caminker, “‘Appropriate’ Means–Ends constraints on Section 5 Powers,” 53 Stan. L. Rev. 1127–1199 (2001).
“imposition of subjective judgment”: Hamelin v. Michigan, 501 U.S. 957, 985 (1991) (Scalia, J., joined by Rehnquist, C. J.).
“anecdotal evidence”: City of Boerne, 521 U.S. 507 at 531; “adverse effects”: id.; “in the past 40 years”: id. at 530; “sweeping coverage”:id. at 532.
exemption as establishment: id. at 536–537 (Stevens, J., concurring)
exemptions already accepted by the court: See Selective Draft Act §4, 40 Stat. 76, 79 (May 18, 1917); Selective Training and Service
Two … dissenters explicitly agreed: City of Boerne, 521 U.S. 507 at 544 (O'Connor, J.) and 563 (Breyer, J.).
“Who's in charge?”: San Antonio Express, June 27, 1997; compromise: San Antonio Express, September 26, 2000.
CHAPTER 2
SUPERIOR BEINGS
Samuel Simple, his law clerks, and his friends: These persons have already conducted a discussion of Boerne and RFRA in “The Pilgrim's Process,” chapter 7 of my book, The Lustre of our Country: The American Experience of Religious Freedom (Berkeley: University of California Press, 1997), 179–210. Familiar with their different perspectives, I return to them to explore a basic building block in the Supreme Court's new approach.
concept of immunity not prominent when Simple went to school in the 1960s: When in 1975 Gerald Gunther, a leading authority on constitutional law, completed the ninth edition of Constitutional Law: Cases and Materials, neither the eleventh amendment nor sovereign immunity appeared in the book's index, as they had not in the preceding editions dating back to 1937. The subjects were similarly absent from the 1996 casebook on constitutional law, dating back to 1964, edited by five prominent scholars—William B. Lockhart, Yale Kamisar, Jesse H. Choper, Steven H. Shiffrin, and Richard H. Fallon, Jr. In the field of constitutional law, crowded by issues of intense debate, the eleventh amendment and sovereign immunity did not loom large. Much has changed since 1964.
The novelty of the Supreme Court's approach is wittily captured by Seth P. Waxman, who, as solicitor general of the United States, lost six federalism cases in 1999 and 2000. He invokes the beginning of the Stanley Kubrick film 2001, in which a bunch of apes are standing in a forest. “They're astounded to see a huge black stone monolith in their midst. They don't know what to make of it. They wander around it, they grunt at it, they bang on it. But they don't know where it came from, and they don't know what it means.” Waxman goes on: “I know the feeling. And so do so many of my colleagues who grew up in the law at a time when the Eleventh Amendment was understood to mean more or less what it said.” Waxman, “Foreward: Does the Solicitor General Matter?” 53 Stan. L. Rev. 1115 (2001).
“burden on the states”: City of Boerne v. Flores, 521 U.S. 507, 534 (1997); see supra, chapter 1.
a sovereign cannot be sued by an individual: Hans v. Louisiana, 134 U.S. 1 (1890); by an Indian tribe: Blatchford v. Noatak Village, 501 U.S. 775 (1991) (Scalia, J., joined by Rehnquist, C. J., and White, Blackmun, O'Connor, Kennedy, and Souter, JJ.); by a foreign government: Monaco v. Mississippi, 292 U.S. 313 (1934); and even though Congress exercised its article I powers: Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).
“central to sovereign dignity”: Alden v. Maine, 527 U.S. 706, 715 (1998).
“Even where the Constitution vests in Congress complete lawmaking authority”: Seminole Tribe, 517 U.S. 44 at 72 (Rehnquist, C. J., joined by O'Connor, Kennedy, Scalia, and Thomas, JJ.).
“inherent” or “implicit”: Alden, 527 U.S. 708, 730 (citing Blatchford, 501 U.S. 775 at 781).
habeas corpus petitions of prisoners: e.g., DePetris v. Kuykendall, 239 F.3d 1057 (9th Cir. 2001); Dorsey v. Chapman, 262 F.3d 1181 (11th
“stripped”: Ex parte Young, 209 U.S. 123, 160 (1908); facts: id., 127–141.
Moby Dick: See e.g., Strahan v. Cox, 939 F. Supp. 963 (D. Mass. 1996) (injunction against Massachusetts officials on behalf of endangered whales). The court rejected the argument that Seminole Tribe should lead to state immunity from the Endangered Species Act. The Supreme Court has not decided the issue. See Note, “An Inapt Fiction: The Use of the Ex Parte Young Doctrine for Environmental Citizen Suits against States After Seminole Tribe,” 27 Envtl. L. Rev. 935 (1997).
ordinarily enough to allege unconstitutional acts: See Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 281 (1997).
suit for money damages against a state officer is suit against the state: Edelman v. Jordan, 415 U.S. 651 (1974).
the wrong way ’round: See Pamela S. Karlan, “The Irony of Immunity: The Eleventh Amendment, Irreparable Injury and Section 1983,” 53 Stan. L. Rev. 1311, 1328–29 (2001).
suit against state officer for violating state law is suit against the state: Pennhurst State School and Hospital v. Haldeman, 465 U.S. 89 (1984).
The fourteenth amendment does not apply to individuals.: Civil Rights Cases, 109 U.S. 3 (1883).
“a well-recognized irony”: Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 685 (1982); “the rule … is one of the cornerstones”: id.
“obvious fiction”: Idaho v. Coeur d'Alene Tribe, 521 U.S. 261 at 270; “a careful balancing”: id. at 278 (Kennedy, J., joined by Rehnquist, C. J.); “case-by-case approach”: id. at 280 (Kennedy, J., joined by
a formal exception … When Congress appropriately exercises its power under section 5: Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
the Supreme Court's power to review decisions of state courts: Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816).
the Supreme Court's power over federal questions where the state is a litigant: e.g., Secretary of State of Maryland v. Munson Co., Inc., 467 U.S. 947 (1984).
removal to federal court of cases where the state is a litigant: e.g., Georgia v. Rachel, 384 U.S. 780 (1966).
power of the United States to sue a state: United States v. Mississippi, 380 U.S. 128, 140 (1965).
Towns, etc., are not states: Alden v. Maine, 527 U.S. 706 at 756;Lincoln County v. Luning, 133 U.S. 529 (1890).
The University of California has the immunity of the state: Regents of the University of California v. Doe, 519 U.S. 425 (1997); “an arm of the state”: id. at 427.
A tug on the Erie Canal: Suit against the steam tug Charlotte for damages caused by it on the Erie Canal to boats owned by the plaintiffs was barred by “the fundamental rule” of sovereign immunity of which the eleventh amendment was “but an exemplification,” because the true defendant was the state superintendent of public works, who had leased the tug; the tug itself had been returned to its owners; and the judgment could have been satisfied out of any property owned by the state. Ex parte State of New York, No.1, 256 U.S. 490, 497 (1921).
the many state agencies, such as the Barbering and Cosmetology Program: Cornwell v. California Board of Barbering and Cosmetology, 962 F. Supp. 1260 (1997); California School for the Blind: See Doe
“in common usage”: Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989).
Cities are not states for immunity purposes but are for fourteenth amendment enforcement: Monell v. Dep't of Social Services, 436 U.S. 658 (1978).
“our longstanding interpretive presumption”: Vermont Agency of Natural Resources v. United States ex. rel. Stevens, 529 U.S. 765, 780 (2000); “a personal privilege which it may waive …”: College Savings Bank v. Florida Prepaid Postsecondary Education Board, 527 U.S. 666, 675 (1999) (quoting Clark v. Barnard, 108 U.S. 436, 447 (1883)).
“central to sovereign dignity”: Alden v. Maine, 527 U.S. 706 at 715.
“it is necessary to distinguish a prince from his subjects”: William Blackstone, Commentaries on the Laws of England. A Facsimile of the First Edition of1765–1769 (Chicago: University of Chicago Press, 1979), 1, 234. For a fullbodied exposition of a prince's superiority, penned by a prince himself, see James I, Address to Parliament (1610), James I, The Political Works of James I (New York: Russell & Russell, 1965; reprint of the edition of 1616), 307–308:
“Kings are justly called Gods, for that they exercise a manner or resemblance of Divine power upon earth; for if you will consider the Attributes of God, you shall see how they agree in the person of a King. God hath power to create, or destroy, make or unmake, at his pleasure, to give life, or send to death, to judge all, and to be judged nor accountable to none: To raise low things, and to make high things low at his pleasure, and to God are both soule and body due. And the like power have Kings.”
This exaggerated language was immediately corrected by what followed: it applied only before the time that kingdoms with laws were established.
Now “every just King in a settled Kingdom is bound to observe that paction made to his people by his Lawes. … And therefore a King governing in a settled Kingdome, leaves to be a King, and degenerates into a Tyrant, as soone as he leaves off to rule according to his Lawes.” James I, A Speech to Both the Houses of Parliament, March 21, 1609, The Political Works of James I, reprint of the edition of 1616 with an introduction by Charles Howard McIlwain (Cambridge: Harvard University Press, 1918), 307–309.
Jean Bodin is credited with making the concept of sovereignty “a central feature of Western political thought.” Kenneth Douglas McRae, “Introduction,” in Jean Bodin, The Six Books of a Commonweale. A facsimile reprint of the English translation of 1606, corrected and supplemented (Cambridge: Harvard University Press, 1962), 14. Sovereignty, in Bodin's sense, cannot be applied to the fifty states, for just as God cannot make another god, so a sovereign cannot make another sovereign. Book the First, chapter X. Nor is Congress a sovereign because a power “for a certain time limited” is not sovereignty, but is in trust and accountable. Id., chapter VIII. A prince can be a sovereign but he is bound “by the laws of God and nature” and is also obliged to observe the oath he has made to keep the laws of his country. Id. For this author, sovereignty does not imply immunity. The sovereign is “the debtor of justice and so bound to give every man
“threaten the financial integrity”: Alden, 527 U.S. 706 at 750. For a detailed critique of the paragraph setting out this reason, see David McGowan, “Judicial Writing and the Ethics of the Judicial Office,” Georgetown Journal of Legal Ethics, 14, 558–565 (2001).
Acknowledging that the Supreme Court has not presented “any functional justifications for its decisions in this area” and that they seem to signify “nothing except a weirdly anthropomorphic desire to protect states' ‘dignity,’” Roderick M. Hills Jr., offers a new, subtle, and tentative rationale. See Hills, “The Eleventh Amendment as Curb on Bureaucratic Power,” 53 Stan. L. Rev. 1225,1226, 1229 (2001). It is that if states were liable for damages, the costs would be borne by the general finances of the state rather than by the particular state agencies that caused them, and that particular agencies might negligently pay excessive claims because their own budgets would not feel the cost. Id. at 1234. As Hills admits, the argument does not have empirical proof.
“the omnipresent teacher”: Olmstead v. United States, 277 U.S. 438, 485 (1928). (Brandeis, J., dissenting).
federal law will be shaped by members of congress: See Larry D. Kramer, “Putting Politics Back into the Political Safeguards of Federalism,” 100 Colum. L. Rev. 215 (2000).
“Behind the words: Monaco, 292 U.S. 313 at 322; immunity inherent: id. 1329;a “presupposition”: Blatchford, 501 U.S. 775 at 779; “the background principle: Seminole Tribe, 517 U.S. 44 at 72.
modern justices attached to the text: e.g., Minnesota v. Carter, 525 U.S. 83, 91–92 (1998) (Scalia and Thomas, JJ., concurring); Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (920) (O'Connor, J.). See also Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press, 1997), 23–25.
CHAPTER 3
VOTARIES
the Supreme Court distinguishes cities: e.g., Monell v. Dep't of Social Services of New York City, 436 U.S. 658 (1978).
State law bound the state to pay: Reis v. State, 133 Cal. 593, 65 P. 1102 (1901); cf. Union Trust Co. of San Francisco v. State of California, 154 Cal. 716, 727, 99 P. 183 (1908).
“In the winter and spring of 1976, the State of New York”: Felix Rohatyn, “Fiscal Disaster The City Can't Face Alone,” New York Times, October 9, 2001, Sec. A, p. 35.
employment discrimination and tort cases: Regents of the University of California v. Doe, 519 U.S. 425 (1997) (employment contract dispute); Lujan v. Regents of the University of California, 69 F.3d 1511 (10th Cir. 1995) (tort).
waive it and win … on the merits: See e.g., Katz v. Regents of the University of California, 229 F.3d 831 (9th Cir. 2000).
It works in patent cases: Regents of the University of California v. Genentech, Inc., 527 U.S. 1031 (1999); settlement of case: Marcia Barinago, “Genentech, UC Settle Suit for $200 Million,” Science 286 (November 26, 1999) 1655.
U.C. was immune [although] acting as manager for the … federal government. Regents of the University of California v. Doe, 519 U.S. at 431.
Georgia Medicaid case: McClendon v. Georgia Dep't of Community Health, 261 F.3d 1252 (11th Cir. 2001).
how John Marshall explained … the eleventh amendment: Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 406–407 (1821).
The history of Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793): The Documentary History of the Supreme Court of the United States,
“The supreme court shall have exclusive jurisdiction …”: U.S. Stat. 1: 81–82.
At common law an individual could not sue the sovereign: Chisholm, 2 U.S. (2 Dall.) 419 at 448; “let me hope and pray,…”: id. at 436; “A dispute between A and B …”: id. at 450; “reduce states to mere corporations …”: id. at 468; “To the Constitution of the United States the term SOVEREIGN is totally unknown.”: id. at 454; “that a state, any more than the men who compose it …”: id. at 456; “to establish justice”: id. at 465; Could a citizen not sue in the same way?: id. at 472; the United States … was bound by the law of nations: id. at 473–474.
Georgia settled: See The Documentary History, 136.
Congress at once proposed the eleventh amendment …: id. at 137. the eleventh … tells the judges how to construe part of article III: For a seminal review of the eleventh amendment and its proper construction, see William A. Fletcher, “A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition against Jurisdiction,” 35 Stan. L. Rev. 1033 (1983).
Marbury v. Madison: 1 Cranch 137 (1803).
“the passiveaggressive approach”: Mark A. Graber, “The Passive Aggressive Virtues: Cohens v. Virginia and the Problematic Establishment of Judicial Power,” Constitutional Commentary 12 (1995) 67; “not fond of butting against a wall”: Marshall to Joseph Story, September 26, 1823, quoted in id., 86; the first names of the defendants: id. at 75; the prosecution of the brothers and $100 fine: Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821); motion to dismiss denied: id.
“over all Cases …“: U.S. constitution, art. III; “This clause extends the jurisdiction…to all the cases: Cohens, 19 U.S. (6 Wheat.) 264
“remarkable state paper”: Albert J. Beveridge, The Life of John Marshall (Boston: Houghton Mifflin Company, 1919), iv, 342.
judgment of borough court affirmed: Cohens, 19 U.S. (6 Wheat.) 264 at 447.
McCullough v. Maryland, 17 U.S. (4 Wheat.) 316 (1819); Ohio statute of February 1819: Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 740 (1824); the $ 100,000 collected: Richard H. Fallon, Daniel J. Meltzer, and David L. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System (Westbury, N.Y.: The Foundation Press, 1996), 1049; “The party named in the record”: Osborn, 22 U.S. (9 Wheat.) 733 at 857.
“It is a mistake, that the constitution was not designed to operate upon states”: Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 at 343. “It is crowded with provisions that restrain or annul the sovereignty …”: id.
ordered the prisoner freed: Worcester v. Georgia, 31 U.S. 6 (1832). Where a suit was on the record against the governor of a state in his official capacity and the object of the suit was the recovery of money and property, Chief Justice Marshall explicitly noted that no federal law was invoked and dismissed the suit. Governor of Georgia v. Madrazo, 26 U.S. (6 Pet.) 110 (1828).
“the administration of the fiscal affairs of the state”: Louisiana ex rel. Elliott v. Jumel, 107 U.S. 711, 722 (1883).
the suit by New Hampshire and New York: New Hampshire v. Louisiana, 108 U.S. 76 (1883).
“a valid obligation of the state”: Constitution of the state of Louisiana, as amended by the act of January 24, 1874, and quoted in Hans v. Louisiana, 134 U.S. 1 at 2 (1890).
“anomalous and unheard of”: id. at 18; “the letter”: id. at 15.
“It is inherent in the nature of sovereignty …”: Alexander Hamilton, Number 81, The Federalist.
“It is not in the power of individuals …“: James Madison, Speech, Debates in the Several State Convention, ed. Jonathan Elliot (1888; reprint, New York: Burt Franklin), 3, 533.
“It is not rational to suppose …”: John Marshall, Speech, id. at 555.
“extrajudicial”: Hans, 134 U.S. 1 at 20; Chisholm wrongly decided: id. at 13–14.
Hans read to enlarge the eleventh: See e.g., Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 363, (2001); speculation as to natural law basis: Alden, 527 U.S. at 773, 795 n.30 (Souter, J., dissenting).
“writers on public law”: Hans, 134 U.S. 1 at 21; their reliance on custom or common law: id. at 16 (referring to Justice Iredell's opinion in Chisholm v. Georgia, 2 U.S. 419, 437–446 (1793) in which Justice Iredell sets out the English common law heritage. Justice Bradley cites no “writers on public law” and his authorities consist of a letter by Daniel Webster and citations to other Supreme Court opinions.
“State” as a term given sense in a system: See H. L. A. Hart, “Definition and Theory in Jurisprudence,” in his Essays in Jurisprudence and Philosophy (Oxford: The Clarendon Press, 1983), 41–43.
thirty-six states were never sovereign: See George Fletcher, Our Secret Constitution. How Lincoln Redefined American Democracy (New York: Oxford University Press, 2001), 117; “equal footing”: e.g., United States v. Louisiana, 339 U.S. 699, 703 (1950); Stearns v. Minnesota, 179 U.S. 223, 243 (1990).
the state in Hobbes: See Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1991), chapter 18,
on the religion of Joseph Bradley: See Joseph Bradley, “Esoteric Thoughts on Religion and Religionism,” in Miscellaneous Writings, ed. Charles Bradley (Newark, N.J.: L. J. Hardhan, 1902), 431.
on Holmes: See John T. Noonan Jr., Persons and Masks of the Law (New York: Farrar, Straus and Giroux, 1978) (discussing American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909)); “the authority that makes the law …”: The Western Maid, 257 U.S. 419, 432 (1922); “the logical and practical ground that there can be no legal right …”: Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907).
Hans as break with precedent: See John V. Orth, The Judicial Power of the United States (New York: Oxford University Press, 1987), 62–63, 79.
reconciliation with the South as motive for Hans: id. at 79; cf. Eric Foner, Reconstruction (New York: Harper and Row, 1988), 580–581; Pamela Brandwein, Reconstructing Reconstruction: The Supreme Court and the Production of Historical Truth (Durham, N.C.: Duke University Press, 1999), 8–17.
the historical explanation objected to: See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 68–69 (1996) (“undocumented and highly speculative extralegal explanation”).
“the trial of controversies in which the States may be parties”: James Madison, Number 39, The Federalist; controversies relating to “the boundaries”: id.; “residuary and inviolable”: id. Madison's statements here, published January 16, 1788, and his similar remarks at the Virginia convention that opened June 2, 1788, are interpreted by James E. Pfander to refer to the original jurisdiction language of article III; see Pfander, “Rethinking the Supreme Court's Original Jurisdiction in State-Party Cases,” 82 Calif. L. Rev. 555, 633, n.318.
“[u]ltimate authority resides in the people alone”: James Madison, Number 46, The Federalist; federalizing state courts: id.
“perhaps not less essential”: Alexander Hamilton, Number 80, The Federalist, “The Powers of the Judiciary”; “[u]nless, therefore, there is a surrender”: id., Number 81; “the proper objects” of the federal courts: Hamilton, Number 80; The Federalist.
“The truth is that difficulties on this point are inherent …”: “Alexander Hamilton, “Opinion as to the Constitutionality of the Bank of the United States,” February 23, 1791, in The Works of Alexander Hamilton, ed. Henry Cabot Lodge (New York: G. P. Putnam's Sons, 1904), 3, 457; “the literal meaning”: id.; “the end …”: id., 458 (italics in original).
a “corrupt squadron”: Thomas Jefferson to George Washington, May 23, 1792, in The Papers of Thomas Jefferson, ed. Charles T. Cullen (1990) 23, 537; “How shall it be determined which side is right? There are some things …”: Hamilton to Washington, August 18, 1792, in The Papers of Alexander Hamilton, ed. Harold C. Syrett (New York: Columbia University Press, 1967), 12, 251; “the Antifederal Champions”: id., 258; “That the beneficial effects .. .”: id. I am indebted to Professor David McGowan for focusing on “the middle ground” as “the middle ground of sovereignty.” See David McGowan, “Ethos in Law and History: Alexander Hamilton, The Federalist, and the Supreme Court,” 85 Minn. L. Rev. 755, 804 (2001).
“credulous votaries …”: Hamilton, Number 60, The Federalist.
“We, the people of the Confederate States …”: Constitution of the Confederate States of America, Preamble.
“between a State and citizens of another State”: id.
the vigor and vitality of true development: John Henry Newman, An Essay on the Development of Christian Doctrine, ed. Charles Frederick Harold (London: Longmans, Green and Co., 1949), 158 (corruption), 165–171 (continuity), 189–191 (vigor).
CHAPTER 4
THE SOVEREIGN PUBLISHER AND
THE LAST OF THE MENU GIRLS
Peter Roberts's patent: U.S. Patent No. 4,722,055, “Methods and Apparatus for Funding Future Liability of Uncertain Cost” (issued January 26, 1988).
“the most excruciating case-by-case basis”: Robert L. Harmon, Patents and the Federal Circuit, (Washington D.C., Bureau of National Affairs, 3d ed., (1994)), 39.
useful and new: 35 U.S.C. §101; a “new use”: 35 U.S.C. §100b.
the University of Michigan plan: George J. Schwatzer to the U.S. Dep't of Education's Student Financial Assistance Program, February 3, 1999, http://arizona.collegesavings.com/azbreq.shtml.
The Florida legislation: Fla. Stat. ch. 240.551; the marketing entity: id., sec. 5(b); product providers: id., sec. 6(f); no liability for misrepresentation: id., sec. 6(d); extension to qualified private universities: id., sec. 10; advertising slogan: Florida Prepaid College Program website http://www.fsba.state.fl.us/prepaid/Main-Frame.htm; success of program and comparison with CSB: Tommy Sangchompuphen, “College Prepayment Plan Is Focus of Patent Suit against Florida,” Wall Street Journal, July 10, 1995, sec. B, p. 3.
On occasion a state or a state agency … was sued: Jacobs Wind Elec. Co., Inc. v. Florida Dep't of Transp., 919 F.2d 726 (Fed. Cir. 1990) (holding that eleventh amendment barred suit by Florida resident alleging that Florida Department of Transportation infringed on plaintiff's patent on tidal flow system because Congress failed to enunciate clearly in the text of the patent laws that it intended to abrogate the states' sovereign immunity); Chew v. State of Cal., 893 F.2d 331 (Fed. Cir. 1990) (holding for the same reason that eleventh amendment barred plaintiff's patent infringement suit against the state of California alleging infringement of her patent for a method for testing automobile exhaust emissions); Watts v. University of Del., 622 F.2d 47 (3d Cir. 1980) (holding that a fact issue existed as to whether use of chair frame in dormitory lounge was for experimental purposes, precluding summary judgment for university as an arm of the state on the theory that frame was in public use more than one year before filing of patent application for chair design); Lemelson v. Ampex Corp., 372 F. Supp. 708 (N.D. Ill. 1974) (denying a motion to dismiss a claim against a state for contributory infringement because the state had waived its immunity); Hercules, Inc. v. Minnesota State Highway Dep't, 337 F. Supp. 795 (D. Minn. 1972) (holding that state highway department was subject to suit for injunctive relief but was not subject to liability damages, in absence of waiver by state of its eleventh amendment immunity in suit by plaintiff for alleged infringement of a patent for process of applying weed- and pest-control spray); William C. Popper & Co. v. Pennsylvania Liquor Control Bd., 16 F. Supp. 762 (E.D. Pa. 1936) (dismissing a claim against the state for patent infringement as barred by the eleventh amendment's grant of state immunity); Automobile Abstract & Title Co. v. Haggerty, 46 F.2d 86 (E.D. Mich. 1931) (dismissing claim against highway commission for infringement of plaintiff's patent for pavement due to the state's sovereign immunity under the eleventh amendment); Warren Bros. Co. v. Kibbe, 43 F.2d 582 (D. Ore. 1925) (holding that state had waived its immunity against patent infringement suit after agreeing to indemnify contractors for royalties owed when infringing patents for paving materials).
Supreme Court emphasis on need for explicit override: Atascadero State Hosp. v. Scanton, 473 U.S. 234, 243 (1985); the doubt became a certainty: Jacobs Wind Elec. Co. v. Florida Dep't of Transp., 919 F.2d 726, 728 (Fed. Cir. 1990).
“whoever includes …”: 35 U.S.C. §271(h); “Any State … shall not be immune …”: id. §296(a).
reasoning of affirmance: College Savings Bank v. Florida Prepaid Post-secondary Education Expense Board, 148 F.3d 1343 (Fed. Cir. 1998) (Clevenger, J., with Rader and Bryson, JJ., concurring). See also College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 131 F.3d 353 (3d Cir. 1997) (Greenberg, J., with Mansmann and Alarcon, JJ., concurring).
“a history of ‘widespread and persisting deprivation …”: Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627, 645 (1999), per Rehnquist, C. J., joined by O'Connor, Scalia, Kennedy, and Thomas, JJ., quoting Boerne, 521 U.S. 507 at 626; statute disproportionate: id. at 641–647; the statute defended: id. at 654–664 (Stevens, J., dissenting, joined by Souter, Ginsburg, and Breyer, JJ.).
existing patent law largely preempted the state courts: The patent laws preempt inconsistent state laws. See Compco Corp. v. Day Brite Lighting Inc., 376 U.S. 234 (1964). State contract and unfair competition laws can offer some degree of protection beyond the patent laws without being preempted. See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 165 (1989) (“Both the law of unfair competition and state trade secret law have coexisted harmoniously with federal patent protection for almost 200 years, and Congress has given no indication that their operation is inconsistent with the operation of the federal patent laws.”); Lear Inc. v. Adkins, 395 U.S. 653, 674–676 (1969) (permitting state court to provide limited contract law protection in dispute surrounding patent). Contract and trade secrets laws depend on some relationship between the parties. While patent laws protect the inventor against the world, state
What proportion could be more exact?: It could be argued that the Supreme Court supposed that there would be groundless patent suits (“strike suits” in legal jargon), so there would be more suits than actual infringements. But the remedy for strike suits is judicial vigilance, not invalidation of an act of Congress.
“Truly bizarre”: Charles Fried, “Supreme Court Folly,” New York Times, July 6, 1999, sec. A, p. 17; “Bizarre”: James N. Gardner, “The Supreme Court's War on Intellectual Property,”Nature Biotechnology, January 18, 2000, 1001; “potentially devastating”: id.; “bizarre”: David Malakoff, “Critics Say Rulings Give State U. License to Steal, Science, September 29, 2000, 2267.
“adequate remuneration” for governmental use of a patent: World Trade Organization, Agreement on Trade-Related Aspects of Intellectual Property Rights, April 15, 1994.
“Evenhandedness” could not be expected.: College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 669, 688 (1999) (Scalia, J., joined by Rehnquist, C. J., and O'Connor, Kennedy, and Thomas, JJ.); “might well have dropped from the lips of Robespierre”: id. at 696; “in ordinary commercial ventures”: id. at 694 (dissent, Breyer, J., joined by Stevens, Souter, and Ginsburg, JJ.); foreign sovereign immunity as test: id. at 692 (per Stevens, J.), cf. the Foreign Sovereign Immunities Act, 28 U.S.C. §1605. The earlier history of the case: 131 F.3d 353 (3d Cir. 1998) (Greenberg, J., joined by Mansmann and Alarcon, JJ.), affirming
No case where a state has been successfully sued for infringement of a trademark; see, e.g. State Contracting & Engineering Corp. v. State of Florida, 258 F .3d 1329 (Fed. Cir. 2001) (suit for patent and trademark infringement and for taking of property dismissed on sovereign immunity grounds); Idaho Potato Commission v. M & M Produce Farm & Sales, 95 F. Supp. 2d 150 (S.D.N.Y. 2000) (Idaho Potato Commission held to enjoy sovereign immunity in suit involving trademark claims).
Chávez's suit: Chávez v. Arte Publico, 59 F.3d 539 (5th Cir. 1995), applying the Copyright Remedy Clarification Act, 17 U.S.C. §511(a); reversed, 157 F.3d 282 (5th Cir. 1998) (on remand from the Supreme Court, reversing the district court ); “Are you so sure?”: id. at 298 n.54 (Wisdom, J., dissenting); en banc ordered: 178 F.3d 281; “the kind of massive constitutional violations”: 204 F.3d 601, 607 (5th Cir. 2000); the origin of Arte Publico:http://www.arte.uh.edu/Arte_Publico_Press/arte_publico_press.html. Chávez had sued for a declaratory judgment and an injunction as well as for money damages. After her claim for damages was dismissed, Arte Publico settled her suit for an injunction. Communication from Kenneth Kuffner, counsel for Chávez, October 29, 2001. Citing College Savings Bank, a district court dismissed a suit against the John D. Calandra Italian American Institute and City University of New York, held to be “arms of the State.” Salerno v. City University, 2001 WL 1267158 (S.D.N.Y. 2001).
CHAPTER 5
PERHAPS INCONSEQUENTIAL PROBLEMS
“arbitrary discrimination”: Secretary of Labor, The Older American Worker. Age Discrimination in Employment (1965), reproduced in U.S.
the presidential message, January 23, 1967: Report of the Committee on Education and Labor, H.R. 805, 90th Cong., 1st Sess, in History, 75.
the ADEA: Pub. L. 90–202, 81 Stat. 602 (December 15, 1967) codified as amended at 29 U.S.C. §631–634.
ageism “as great an evil …”: Special Message of the President to Congress on Older Americans, 1972 Pub. Papers 461, 483 (March 23, 1972).
140 suits, six thousand investigations: Special Committee on the Ageing, United States Senate, “Improving the Age Discrimination Law” (September 1973), in History, 222–223; “a good idea”: id. at 223.
not “a conscious decision”: House Report No. 93–690, “Fair Labor Standards Amendments of 1974,” 93rd Cong., 2d Sess., in History, 251.
Congress in 1978 barred mandatory retirement: Age Discrimination in Employment Act Amendments of 1978, Pub. L. 95–256, 92 Stat. 189; In 1986, ADEA again amended: Age Discrimination in Employment Act Amendments of 1986, Pub. L. 99–592, 100 Stat. 3342; exemption for tenured professors: id. at §6.
Allegations of MacPherson and Narz: Kimel v. Florida Board of Regents, 528 U.S. 62, 69 (2000); of Kimel and his coplaintiffs: ibid., 70; of Dickson: ibid., 70–71; Eleventh Circuit decision: Kimel v. State of Florida Board of Regents, 139 F.3d 1426 (11th Cir. 1998); “not a proportional response”: id. at 1447; “simply thought it was a good idea”: ibid. at 1448.
Circuit split: Compare Cooper v. New York State Office of Mental Health, 162 F.3d 770 (2d Cir. 1998) (holding ADEA valid exercise of congressional power); Migneault v. Peck, 158 F.3d 1131 (10th Cir. 1998) (same); Coger v. Board of Regents of the State of Tennessee, 154 F.3d 296 (6th Cir. 1998) (same); Keeton v. University of Nevada System, 150 F.3d 1055 (9th Cir. 1998) (same); Scott v. University of Mississippi, 148 F.3d 493 (5th Cir. 1998) (same); Goshtasby v. Board of Trustees of the University of Illinois, 141 F.3d 761 (7th Cir. 1998) (same), with Humenanusk v. Regents of the University of Minnesota, 152 F.3d 822 (8th Cir. 1998); Kimmel, 139 F.3d 1426 (11th Cir. 1998). Seven of the eight circuit cases were suits against state universities.
abrogation of immunity: Kimel, 528 U.S. 62 at 74; Congress failed the Boerne tests: id. at 82–91 (opinion by O'Connor, J., joined by Rehnquist, C. J., and Scalia, Kennedy, and Thomas, JJ., Kennedy and Thomas, however, finding no abrogation).
state police retired at age fiftyeight: Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976); It was … an unfortunate fact of life …: Gregory v. Ashcroft, 501 U.S. 452, 472 (1991); “It is far from true”: id. at 473.
“substantially higher burdens on state employers”: Kimel, 528 U.S. 62 at 87; Congress had not “identified any … discrimination that rose …: id. at 89; “Congress had virtually no reason …”: id. at 91; “an unwarranted response”: id. at 89; court explicitly reproving dissenters: id. at 79–80. For criticism, see A. Christopher Bryant and Timothy J. Simeone, “Remanding to Congress: The Supreme Court's New ‘On the Record’ Constitutional Reviews of Federal Statutes,” 86 Cornell L. Rev. 328, 375–383 (2001). The court suggested that its decision was not “the end of the line” for the plaintiffs, there might be other remedies they could pursue. Kimel, 528 U.S. 62 at 91. A subsequent inquiry found no other remedies available to the Alabama plaintiffs. See Evelyn Corrine McCafferty, “Age Discrimination and Sovereign Immunity: Does Kimel
“profoundly misguided”: Kimel, 528 U.S. 62 at 97 (dissent by Stevens, J., joined by Souter, Ginsburg, and Breyer, JJ.).
as Brandeis had pointed out: Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–410 (1932).
“policy choice”: Kimel, 528 U.S. 62 at 96 (dissent).
“reasonably prophylactic”: id. at 88 (opinion of court); “entitled to much deference”: id. at 81; “that merely parrots: id. at 86; “a somewhat broader swath”: id. at 81.
Thomas Jefferson believed in the inferiority: See Thomas Jefferson, Notes on the State of Virginia (Williamsburg: Institute of Early American History and Culture, 1955), 138–143.
Why should what was “probably not true” be taken as the basis for discrimination treated as rational?: See similar criticism in Note, “The Irrational Application of Rational Basis. Kimel, Garrett and Congressional Power to Abrogate State Sovereign Immunity,” 114 Harv. L. Rev. 2146, n.55, citing Larry Alexander, “What Makes Wrongful Discrimination Wrong? Preference, Stereotypes and Process,” 141 U. Pa. L. Rev. 149, 169–170 (1992), and Cass R. Sunstein, “Three Civil Rights Fallacies,” 79 Calif. L. Rev. 751, 752 (1991).
“discrete and insular minority”: United States v. Carolene Products Co., 304 U.S. 144, 152, n.4 (1938).
“all persons, if they live out their normal life spans”: Kimel, 528 U.S. 62 at 83.
Americans with Disabilities Act: 42 U.S.C. §§12101–12213; congressional findings: 42 U.S.C. §12101(a).
As early as 1920: An Act to provide for the Promotion of Vocational Rehabilitation of Persons Disabled in Industry or Otherwise and Their Return to Civil Employment, 41 Stat. 735 (June 2, 1920);by 1988 ten federal acts were in place: Fair Housing Amendments of 1988,
Task force on the Rights and Empowerment of Americans with Disabilities: see House Report 101–485, pt. 2:27(task force established by the subcommittee on Select Education); “massive, society-wide”: See e.g., Senate Report 101–116 at 9 (1990).
nineteen hearings: See House Report 101–485 pt. 2: 24–25 (listing twelve days of hearings by the Committee on Education and Labor and its subcommittees and those testifying); House Report 101–485 pt. 4: 28–29 (listing two days of hearings by Committee on Energy and Commerce and those testifying); Senate Report 101–116 at 4–5 (listing five days of hearings and those testifying). national opinion polls: Senate Report 101–116 at 6 (1989) (citing Louis Harris and Associates, “The ICD Survey of Disabled Americans: Bringing Disabled Americans Into the Mainstream” (1986), and Louis Harris and Associates, “The ICD Survey II: Empowering Disabled Americans” (1987)).
allegations of Patricia Garrett and Milton Ash: See Petitioner's Brief, Bd. of Trustees v. Garrett, available on Westlaw, 2000 WL 821035, *15–*16, Brief for Respondents Patricia Garrett and Milton Ash, Bd. of Trustees v. Garrett, available on Westlaw, 2000 WL
suits dismissed: Garrett v. Board of Trustees of the University of Alabama/Ash v. Alabama Department of Youth Services, 989 F. Supp. 1409 (1998) (Acker, J.); the circuit: Garrett v. University of Alabama at Birmingham Board of Trustees, 193 F.3d 1214 (1999) (Roney, J., with Anderson, C. J., concurring and Cook, J., concurring in part and dissenting in part).
solicitor general: Brief for the United States, available on Westlaw, 2000 WL 1178761 (2000); amici: See e.g., Brief for the National Association of Protection and Advocacy Systems and United Cerebral Palsy Associations, Inc, available on Westlaw, 2000 WL 1154037 (2000); Brief of Amici Curiae Self-Advocates Becoming Empowered, available on Westlaw, 2000 WL 1154043 (2000).
“Although by its terms the Amendment …”: Bd. of Trustees of the University of Alabama v. Garrett, 121 S. Ct. 955, 961–962 (2001) (Rehnquist, C. J., joined by O'Connor, Kennedy, Scalia, and Thomas, JJ.); “these now familiar principles”: id. at 963.
“simply fails to show …”: id. at 965; “half a dozen examples”: id.; “no pattern of unconstitutional state discrimination”: id. at 966.
“to squeeze out …”: id.; “undue hardship”: id. at 959.
the embattled four dissenters: 121 S. Ct. 955, 969 (Breyer, J., dissenting, joined by Stevens, Souter, and Ginsburg, JJ.); “roughly 300 ”: id. at 970; appendix to the dissent: id. at 977 (Appendix C); “a legislature is not a court of law”: id. at 970.
“Unlike courts …”: id. at 973; “on its head”: id.
“congruent”: id. at 974; “reminiscent”: id.; the court “improperly invades …”: id. at 975–976. Another statute, whose enforceability for damages against a state became doubtful, was the Family and Medical Leave Act of 1993, 29 U.S.C. §§2601–2654. The Ninth
CHAPTER 6
GANG RAPE AT STATE U.
“all persons within the United States shall have the right to be free from crimes of violence motivated by gender”: Violence Against Women Act, 42 U.S.C. §13981(b).
the facts as set out by Brzonkala: Pleadings: Brzonkala v. Virginia Polytechnic and State University, 935 F. Supp. 772 (W.D. Va. 1996); Brzonkala v. Virginia Polytechnic and State University, 935 F. Supp. 779 (W.D. Va. 1996); Brzonkala v. Virginia Polytechnic Institute and State University, 132 F.3d 949 (4th Cir. 1997). When a court dismisses a case for failure to state a claim, it must accept the plaintiff's allegations as true before finding that they are legally insufficient. Such was the situation here. What the court accepted as true and what is stated here as fact is what the plaintiff stated in her pleadings.
Virginia Tech ranked eighth in the nation: College Football Poll, Past Rankings: AP, UPI, USA Today, at http://www.collegefootballpoll.com/polls_1936_2000.html.
term of imprisonment for rape in “the discretion of the court or the jury”: Va. St. §18.2–61C.
Title IX of the Education Act of 1972: 20 U.S.C. §1681.
influence of the football team not indication of discrimination: 935 F. Supp. at 778; Virginia Tech's sensitivity to victims: id. at 777; environment only “might become abusive in the future”: id. at 778.
a crime due to an animus based on gender: 935 F. Supp. at 789.
Lopez: United States v. Lopez, 514 U.S. 549 (1995).
the law unconstitutional: 935 F. Supp. at 785–789; remedy “purely by chance”: id. at 800.
“This case arises from a gang rape …”: Brzonkala v. VPI, 132 F.3d 949, 954 (4th Cir. 1997); “excellent legal analysis”: id. at 974 (dissent); “bold intransigence”: id. at 977 (dissent).
“foundational principles of our constitution”: 169 F.3d 820, 826 (en banc); “ignore vast temptations …”: id. at 897 (concurrence); dissent: id. at 903–933. The en banc court remanded Brzonkala's hostile environment claim: id. at 827, n.2.
“presumption of constitutionality”: United States v. Morrison, 529 U.S. 598, 607 (2000) (Rehnquist, C. J., joined by O'Connor, Kennedy, Scalia, and Thomas, JJ.). The caption of the case needs explanation. Brzonkala was the named plaintiff at the district court level, and the United States intervened at the district court level to defend the constitutionality of 42 U.S.C. §13981. The U.S. then separately filed an appeal, and the Fourth Circuit consolidated the government's appeal with Brzonkala's appeal. Brzonkala and the United States then filed separate petitions for certiorari to the Supreme Court, and their cases were consolidated once again.
“coordinate branch”: Morrison, 529 U.S. 598 at 607; “a plain showing”: id. at 598.
the decisive swing: NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416 (1937).
“latitude”: Morrison, 529 U.S. 598 at 608; “substantially affect”: id. at 609.
Congress lacked the power: id. at 610–611.
The argument went too far: id at 611, 618; legislative grace: id at 615–616; specter: id at 616; “truly national”: id. at 599; quotations of Marshall: id. at 618 quoting Cohens v. State of Virginia, 19 U.S. 264, 426, and 428 (1821).
“It is State action … that is prohibited”: The Civil Rights Cases, 109 U.S. 3, 11 (1883); invalidating the Civil Rights Act, of March 1, 1875, ch. 114, §§1–2, 18 St. 335. The Civil Rights Cases were the “judicial fulfillment of the Compromise of 1877” that permitted the election of Benjamin Harrison. See C. Vann Woodward, Origins of the New South (Baton Rouge: Louisiana State University Press, 1971) 216.
“intimate knowledge”: Morrison, 529 U.S. 598 at 599.
Lynching was beyond federal law: United States v. Harris, 106 U.S. 629 (1883); U.S. Rev. Stat., ch. 7, §5519 (1873) (originally Act of April 20, 1871, ch. 22, §2, 17 St. 13, 14).
“‘Careful adherence’”: Morrison, 529 U.S. 598 at 622, quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982).
“a brutal assault”: id. at 627; “The omitted portions … shock and offend”: id. at 601.
a “mountain of data”: id. at 628–635 (Souter, J., dissenting, joined by Stevens, Ginsburg, and Breyer, JJ.); “the most thorough legislative consideration”: Morrison, 529 U.S. 598 at 631, quoting Hodel v. Virginia Surface Min. and Reclamation Ass'n, Inc., 452 U.S. 264, 278–279 (1981); “thousands to millions of dollars”: id. at 635.
“The power … is complete in itself …”: Gibbons v. Ogden, 22 U.S. 1, 196 (1824).
“a step toward recapturing”: id. at 643; “proper sphere”: id. at 644; “no general doctrine”: Maryland v. Wirtz, 342 U.S. 183, 195 (1968), Morrison at 645; “inviolable state spheres”: id. at 646.
“single government”: Gibbons, 22 U.S. 1 at 197.
Carter v. Carter Coal Co.: 298 U.S. 238 (1936).
Robert Jackson: The Struggle for Judicial Supremacy 160, quoted in Morrison, 529 U.S. 598 at 654 (Souter, J., dissenting).
“in the main”: id. at 665; “answer the § 5 question”: id. at 666. Under some civil rights laws, state and institutional actors have been found liable if they engage in a “pattern or practice” of discrimination, or if they have a “custom” of encouraging violations of rights. Cf. Bazenmore v. Friday, 478 U.S. 223 (1988) (states liable under Title VII if a “pattern or practice” of discrimination is demonstrated); Monell v. Dept. of Social Services, 436 U.S. 658, 690 (imposing §1983 liability on municipalities for a specific event if a custom of encouraging such violations is demonstrated). Brzonkala's case against Virginia Tech was not significantly different. If in that case she had been given the opportunity to show a custom or practice of shielding athletes from the consequences of their violations of women's rights, the situation would be analogous to state action under Title VII.
duty and failure to act (torts): American Law Institute, Restatement (Second) of Torts, §284 (St. Paul, Minn.: American Law Institute Publishers, 1965); duty and failure to act (trusts): American Law Institute, Restatement (Second) of Trusts, §201 (St. Paul Minn.: American Law Institute Publishers, 1957). An even broader approach to congressional power is argued by Jack M. Balkin and Sanford Levinson, “Understanding the Constitutional Revolution,” 87 Va. L. Rev. 1045, 1100 (2001).
special circumstances involving racial discrimination: Reitman v. Mulkey, 387 U.S. 369 (1967) (amendment to state constitution invalidating fair housing laws held to be state action violating equal protection); Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961); see also Robert C. Post and Reva B. Siegel, “Equal Protection by Law,” 110 Yale L. J., 441, 503–05 (2001); Judith Resnik, “Categorical Federalism,” Yale L. J., 619 (2001).
CHAPTER 7
SOVEREIGN REMEDY
the “least dangerous” department: Alexander Hamilton, Number 78, The Federalist.
Intellectual Property Act proposed …in 1999: S. 1835 (“Intellectual Property Restoration Act of 1999”), 106th Cong., 1999, text introduced by Senator Leahy at 145 Cong. Rec. S13555–65 (1999).
Religious Liberty Protection Act: See H.R. Rep. 106–219 (1999).
secular saints: See G. Edward White, “The Canonization of Holmes and Brandeis: Epistemology and Judicial Reputations,” 70 N.Y.U. L. Rev. 576 (1995).
The decision in Bush v. Gore:Bush v. Gore, 531 U.S. 98 (2000).
“neither Force nor Will”: Alexander Hamilton, Number 78, The Federalist.
the waiver required by the Intellectual Property Act: See S. 1835 (“Intellectual Property Restoration Act of 1999”) §111, 106th Cong., 1999, 145 Cong. Rec. at S13560 (1999).
condition federal funding: See College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 686–687 (1999) (citing South Dakota v. Dole, 483 U.S. 203 (1987), which upheld Congress's use of spending power over highway funds to pressure states to raise drinking age to twenty-one); forced states to set speed limits: See 23 U.S.C. §141 (1994), repealed by National Highway System Designation Act of 1995 §204(d), 109 Stat. 568, 577 (1995). David Meltzer has made a careful study of action Congress could take to provide damages for infringement by states of federal patent, copyright, and trademark law. His conclusion is that “the most promising alternative, although hardly a surefire one,” would be to condition federal funding of a state's programs on waiver of its immunity from suit on these subjects. See Meltzer,
combined two incongruous areas: Religious Land Use and Institutionalized Persons Act of 2000, Pub. L. 106–274, 114 Stat. 803 (September 22, 2000), codified at 42 U.S.C. §2000cc and elsewhere in 42 U.S.C.; The Religious Liberty Protection Act: See H.R. Rep. 106–219 at 12–13 (1999).
duty of lawyers to work to reform the law: American Bar Association, Model Code of Professional Responsibility, Canon 8 (1983); judges' right to speak and write for the improvement of the law: American Bar Association, Code of Judicial Conduct, Canon 4 (1990).
No defensible theory of the constitution justifies the justices …: See Akhil Reed Amar, “The Supreme Court 1999 Term. Foreword: The Document and the Doctrine,” 114 Harv. L. Rev. 26, 83–84. State sovereign immunity has been attacked as “inconsistent with the supremacy of the Constitution and federal statutes, the basic principle of government accountability, and the central requirements of due process of law.” See Erwin Chermerinsky, “Against Sovereign Immunity,” 53 Stan. L. Rev. 1201, 1216 (2001).
the penalties of Purgatory: Dante Alighieri, Commedia divina, Canto 10 (the proud), Canto 13 (the envious), Canto 27 (the lustful).
The justices are all acting as legislators: see Amar, “The Supreme Court,” 114 Harv. L. Rev. at 84, n.194, noting that under its present chief, the court has invalidated 24 acts of Congress, a number far outstripping the invalidations effected by any previous Supreme Court. The court under John Marshall, its chief from 1801 to 1832, held invalid a single congressional enactment.
that role being remedial: See City of Richmond v. J. A. Croson Co., 488 U.S. 469, 487–488 (1989).
The preventative could be encompassed by the remedial: See e.g., Fullilove v. Klutznick, 448 U.S. 448 (1980), overruled by Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (constitutionality of federal affirmative action statute applied preventatively); United Jewish Org. of Williamsburgh v. Carey, 430 U.S. 144, 161 (1977) (rejecting proposition that racial criteria for redistricting can be used only as specific remedy for past unconstitutional apportionments.
The states appear in the original constitution: See U.S. constitution, art. I, sec. 2 (determining electors to House of Representatives and apportioning representatives by state); art. I, sec. 3 (states' role in apportionment and election of senators); art. II, sec. 1 (states' role in choosing electors); art. I, sec. 8 (reserving to the states the right to appoint officers to the militia and granting Congress power to purchase land from the states); art. I, sec. 9 (slave trade clause); art. III, sec. 2 (states as litigants); art. IV, sec. 1 (Full Faith and Credit clause); art. IV, sec. 2 (Privileges and Immunities clause); art. IV, sec. 2 (fugitive slave clause); art. IV, sec. 3 (states immune from division or merger); art. V (amending the constitution). By amendment of the constitution: U.S. constitution, amend. 10 (reserving nondelegated powers to the states or the people); U.S. constitution, amend. 11 (restricting judicial power of the United States); U.S. constitution, amend. 12 (procedures for electing president); U.S. constitution, amend. 17 (election of senators); U.S. constitution, amend. 21 (regulating importation of alcohol by states).
The states are expressly forbidden: U.S. constitution, art. I, sec. 10; The president may call to service: U.S. constitution, art II, sec. 2; Supremacy Clause: U.S. constitution, art. VI.
“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”: O. W. Holmes Jr., “The Path of the Law,” 10 Harv. L. Rev., 469 (1897).