Narrowing the Nation's Power: The Supreme Court Sides with the StatesUniversity of California Press, 2002. 8. 21. - 212페이지 Narrowing the Nation's Power is the tale of how a cohesive majority of the Supreme Court has, in the last six years, cut back the power of Congress and enhanced the autonomy of the fifty states. The immunity from suit of the sovereign, Blackstone taught, is necessary to preserve the people's idea that the sovereign is "a superior being." Promoting the common law doctrine of sovereign immunity to constitutional status, the current Supreme Court has used it to shield the states from damages for age discrimination, disability discrimination, and the violation of patents, trademarks, copyrights, and fair labor standards. Not just the states themselves, but every state-sponsored entity--a state insurance scheme, a state university's research lab, the Idaho Potato Commission—has been insulated from paying damages in tort or contract. Sovereign immunity, as Noonan puts it, has metastasized. "It only hurts when you think about it," Noonan's Yalewoman remarks. Crippled by the states' immunity, Congress has been further brought to heel by the Supreme Court's recent invention of two rules. The first rule: Congress must establish a documentary record that a national evil exists before Congress can legislate to protect life, liberty, or property under the Fourteenth Amendment. The second rule: The response of Congress to the evil must then be both "congruent" and "proportionate." The Supreme Court determines whether these standards are met, thereby making itself the master monitor of national legislation. Even legislation under the Commerce Clause has been found wanting, illustrated here by the story of Christy Brzonkala's attempt to redress multiple rapes at a state university by invoking the Violence Against Women Act. The nation's power has been remarkably narrowed. Noonan is a passionate believer in the place of persons in the law. Rules, he claims, are a necessary framework, but they must not obscure law's task of giving justice to persons. His critique of Supreme Court doctrine is driven by this conviction. |
목차
| 1 | |
The Battle of Boerne | 15 |
Superior Beings | 41 |
Votaries | 58 |
The Sovereign Publisher and the Last of the Menu Girls | 86 |
Perhaps Inconsequential Problems | 102 |
Gang Rape at State U | 120 |
Sovereign Remedy | 138 |
NOTES | 157 |
INDEX | 195 |
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action ADEA Age Discrimination Alexander Hamilton American applied Arte Publico attorney Boaltman Brzonkala California Cantwell Circuit citizens City of Boerne civil rights Cleo College Savings Bank commerce common law congruence criteria damages David McGowan decision defendants dignity disabled dissent district court doctrine Dred Scott Education Expense Board eleventh amendment employees enacted enforce evil Ex parte Young federal court federal law federal question jurisdiction Federalist fifty Florida Prepaid fourteenth amendment free exercise gress Hamilton Harvardman individual infringement John Henry John Marshall judge judicial judiciary jurisdiction justices Kimel legislation liberty ment Morrison Number opinion patent law persons plaintiffs power of Congress prohibited proportionality protection rape religion religious freedom remedy RFRA Scalia section 5 power Seminole Tribe Senate Simple sover sovereign immunity sovereignty state's statute sued suit Supreme Court tion U.S. constitution unconstitutional United University violation Violence Against Women Virginia Tech Westlaw Women Act Yalewoman York
인기 인용구
21 페이지 - If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein If there are any circumstances which permit an exception, they do not now occur to us.
63 페이지 - That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction.
193 페이지 - 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. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.
73 페이지 - It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent.
184 페이지 - Congress assembled to provide for the promotion of Vocational Rehabilitation of persons disabled in industry or otherwise and their return to Civil Employment, Approved June 2, 1920.
28 페이지 - Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce HI I. mist-ion to the prohibitions they contain and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.
169 페이지 - 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 to 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 death, to judge all, and to be judged nor accountable to none.
159 페이지 - 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...
71 페이지 - It is a mistake that the constitution was not designed to operate upon states, in their corporate capacities. It is crowded with provisions which restrain or annul the sovereignty of the states in some of the highest branches of their prerogatives. The tenth section of the first article contains a long list. of disabilities and prohibitions imposed upon the states.