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Revisiting Federalism and Gun Control
Josey1
Member Posts: 9,598 ✭✭
Revisiting Federalism and Gun Control
By LINDA GREENHOUSE
. Re "Justices Expand States' Immunity in Federalism Case" (May 29), you write: Justice Breyer "said the majority had rejected the 'basic understanding reached during the New Deal era that the constitutional system requires 'structural flexibility sufficient to adapt substantive laws and institutions to rapidly changing social, economic and technological conditions.'"
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What was the "basic understanding that was reached during the New Deal era" to which Justice Breyer refers? Doesn't the 10th Amendment "restrict ... severely the authority of the federal government to regulate innumberable relationships between state and citizen?"
CLIFFORD SHAW
Portland, Ore.
A. This is a very rich subject. Justice Breyer's reference was to the turn-about that occurred on the court in the late 1930's, when the justices began upholding New Deal programs under an expansive view of Congress's power to regulate interstate commerce. This expansive view remained unchallenged until the current court began reexamining it in the mid 1990's.
In his dissenting opinion, Justice Breyer characterized the New Deal court as having rejected "overly restrictive formalistic interpretations of the constitution's structural provisions, thereby permitting Congress to enact social and economic legislation that circumstances had led the public to demand."
Clearly, the New Deal era did not resolve the debate over the extent of congressional power -- it just pushed it below the radar screen for a couple of generations.
Q. Re "Justices Expand States' Immunity in Federalism Case" (May 29), does this ruling have any affect on Indian "states" sovereignty, weakening it or strengthening it? Or does the Indian depend more on the federal relationship due to his land being a federal reservation?
TRENCHARD
A. The decision was based on the court's interpretation of the 11th Amendment, which gives states immunity from suit. Consequently, the decision will have no bearing on the relationship between the federal government a Indian tribes -- which are treated under the law as sovereign nations for many purposes, but don't come under the 11th Amendment.
Q. Re "Justices Expand States' Immunity in Federalism Case" (May 29), Does the U.S. Supreme Court's ruling in Federal Maritime Commission v. South Carolina Ports Authority also immunize municipal agencies from EEOC complaints, which are brought by private individuals and can eventually end up in Federal Court, or in State Court under the State Discrimination Laws?
ROBERT L. GARBER
Pittsburgh, Pa.
A. The 11th Amendment applies only to states, not to cities. The precedents are clear that cities do not share the states' constitutional immunity.
Q. Re "Justices Expand States' Immunity in Federalism Case" (May 29), how would the maritime ruling affect states that have assumed primacy in the enforcement of federal environmental or health and safety laws? Would the states be exempt from citizen suits that charge them with failing to enforce those laws?
GREG EDWARDS
Richmond, Va.
A. Good question! I'm not sure I know the answer, or rather, I'm not sure there's a one-size-fits-all answer, at least not yet. As you indicate, a number of environmental laws have "citizen suit" provisions that explicitly contemplate that individuals will be able to bring their own lawsuits. Justice Breyer's dissenting opinion in the Federal Maritime case suggested that the ruling would curb enforcement of various environmental laws, but he didn't connect the dots with the citizen suit provisions.
One thing to bear in mind is that the 11th Amendment has been interpreted to bar suits only against "unconsenting" states -- meaning that states that have agreed to waive their immunity become "consenting" states and can be sued. Why would a state waive its immunity? They often do, as a condition on the receipt of federal funds, in the exercise of Congress's "spending clause" power. So states that receive various clearn water, clean air etc. grants from the feds may be deemed to have waived their immunity. I'm sure we'll be hearing more about this.
Q: Re "Justices Expand States' Immunity in Federalism Case" (May 29), if the Supreme Court of the United States has ruled that states may be held immune from suit by employees under the American with Disabilities Act, the Age Discrimination Act and the Family Leave Act, what's to stop state governments from violating ANY Federal Law, ie: the Equal Employment Opportunity Law? Are we looking at an all young white male possibility in State employee rosters?
DEBBIE TIRADO
A: The federal government can still bring suits against states and state agencies -- the ability of the Equal Employment Opportunity Commission to bring a suit in the circumstance you describe is not affected by the Federal Maritime Commission ruling. The 11th amendment immunizes states only against private suits. But of course, as Justice Breyer pointed out in his dissent, the agencies have come to rely on private actions as a kind of supplemental enforcement mechanism and are not currently staffed or structured to do it all on their own.
Cont.
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
By LINDA GREENHOUSE
. Re "Justices Expand States' Immunity in Federalism Case" (May 29), you write: Justice Breyer "said the majority had rejected the 'basic understanding reached during the New Deal era that the constitutional system requires 'structural flexibility sufficient to adapt substantive laws and institutions to rapidly changing social, economic and technological conditions.'"
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What was the "basic understanding that was reached during the New Deal era" to which Justice Breyer refers? Doesn't the 10th Amendment "restrict ... severely the authority of the federal government to regulate innumberable relationships between state and citizen?"
CLIFFORD SHAW
Portland, Ore.
A. This is a very rich subject. Justice Breyer's reference was to the turn-about that occurred on the court in the late 1930's, when the justices began upholding New Deal programs under an expansive view of Congress's power to regulate interstate commerce. This expansive view remained unchallenged until the current court began reexamining it in the mid 1990's.
In his dissenting opinion, Justice Breyer characterized the New Deal court as having rejected "overly restrictive formalistic interpretations of the constitution's structural provisions, thereby permitting Congress to enact social and economic legislation that circumstances had led the public to demand."
Clearly, the New Deal era did not resolve the debate over the extent of congressional power -- it just pushed it below the radar screen for a couple of generations.
Q. Re "Justices Expand States' Immunity in Federalism Case" (May 29), does this ruling have any affect on Indian "states" sovereignty, weakening it or strengthening it? Or does the Indian depend more on the federal relationship due to his land being a federal reservation?
TRENCHARD
A. The decision was based on the court's interpretation of the 11th Amendment, which gives states immunity from suit. Consequently, the decision will have no bearing on the relationship between the federal government a Indian tribes -- which are treated under the law as sovereign nations for many purposes, but don't come under the 11th Amendment.
Q. Re "Justices Expand States' Immunity in Federalism Case" (May 29), Does the U.S. Supreme Court's ruling in Federal Maritime Commission v. South Carolina Ports Authority also immunize municipal agencies from EEOC complaints, which are brought by private individuals and can eventually end up in Federal Court, or in State Court under the State Discrimination Laws?
ROBERT L. GARBER
Pittsburgh, Pa.
A. The 11th Amendment applies only to states, not to cities. The precedents are clear that cities do not share the states' constitutional immunity.
Q. Re "Justices Expand States' Immunity in Federalism Case" (May 29), how would the maritime ruling affect states that have assumed primacy in the enforcement of federal environmental or health and safety laws? Would the states be exempt from citizen suits that charge them with failing to enforce those laws?
GREG EDWARDS
Richmond, Va.
A. Good question! I'm not sure I know the answer, or rather, I'm not sure there's a one-size-fits-all answer, at least not yet. As you indicate, a number of environmental laws have "citizen suit" provisions that explicitly contemplate that individuals will be able to bring their own lawsuits. Justice Breyer's dissenting opinion in the Federal Maritime case suggested that the ruling would curb enforcement of various environmental laws, but he didn't connect the dots with the citizen suit provisions.
One thing to bear in mind is that the 11th Amendment has been interpreted to bar suits only against "unconsenting" states -- meaning that states that have agreed to waive their immunity become "consenting" states and can be sued. Why would a state waive its immunity? They often do, as a condition on the receipt of federal funds, in the exercise of Congress's "spending clause" power. So states that receive various clearn water, clean air etc. grants from the feds may be deemed to have waived their immunity. I'm sure we'll be hearing more about this.
Q: Re "Justices Expand States' Immunity in Federalism Case" (May 29), if the Supreme Court of the United States has ruled that states may be held immune from suit by employees under the American with Disabilities Act, the Age Discrimination Act and the Family Leave Act, what's to stop state governments from violating ANY Federal Law, ie: the Equal Employment Opportunity Law? Are we looking at an all young white male possibility in State employee rosters?
DEBBIE TIRADO
A: The federal government can still bring suits against states and state agencies -- the ability of the Equal Employment Opportunity Commission to bring a suit in the circumstance you describe is not affected by the Federal Maritime Commission ruling. The 11th amendment immunizes states only against private suits. But of course, as Justice Breyer pointed out in his dissent, the agencies have come to rely on private actions as a kind of supplemental enforcement mechanism and are not currently staffed or structured to do it all on their own.
Cont.
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
Comments
Revisiting Federalism and Gun Control
(Page 2 of 3)
There is still a further element to this complex picture. Under a 1976 Supreme Court decision, Fitzpatrick v. Bitzer, Congress has authority to abrogate the states' 11th Amendment immunity under its power to enforce the equal protection guarantees of the 14th Amendment (which, as the court pointed out, came after the 11th). So Congress's desire to make the states answerable to civil rights complaints of the sort you envision would prevail -- at least until the court tells us otherwise.
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Q. Re "Justices Expand States' Immunity in Federalism Case" (May 29), does this mean that no state or federal employee can sue their respective employers under any act?
NICK BALDWIN
Florida
A. As I observed in answer to a similar question, there is not a one-size-fits-all answer to your question, because states may well have waived their constitutional immunity from suit as a condition on the receipt of federal funds under various statutes. In addition, under a convoluted doctrine known as Ex Parte Young, private plaintiffs can under some circumstances do an end-run around state immunity by naming the individual state official, rather than the state or state agency itself, as the defendant. All I can do here is just hint at the many complexities of this area of the law. Don't try this at home!
Q. Can you tell me the case that extended the equal protection of the law in the 5th and 14th amendments to corporations. The 14th amendment was obviously aimed at freed black slaves--human persons. Yet so much of the use this amendment is directed toward/about business and corporation.
PAUL DONOVAN
Owasso, Oklahoma
A. To answer your question, I can't improve on "A Practical Companion to the Constitution" by Jethro K. Lieberman (University of California Press, 1999), so I will quote directly from it (p. 348):
"One of the most far-reaching constitutional pronouncements the court has ever made was that personhood encompasses corporations and other legal entities, so that the constitutional protections of the Fourteenth Amendment apply to ordinary businesses as well as to people. The issue was never truly explored, and the reasons for the conclusion were never set forth in an opinion of the court. Instead, during oral argument in an 1886 case [Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394], Chie fJustice Morrison R. Waite told the lawyers that they need not debate whether the Equal Protection Clause applies to coroporations because, he said for his colleagues, 'We are all of the opinion that it does.' "
Q. What was the philosophy (if there was one) behind the practice of simple majority in Supreme Court rulings, as opposed to, say, a 2/3 or even 3/4 majority? Indeed, since Supreme Court rulings, in some cases, very much differ from Congress' view on the meaning of the Constitution, and generally alter the meaning of the text, shouldn't those rulings be subject to more stringent rules, such as the one devised by the Founding Fathers in article V for amending the Constitution?
YANNICK HARTSTEIN
Trooz, Belgium
A: I have never seen this question addressed anywhere. The Constitution, of course, does not specify how the Supreme Court is to vote. But the general default rule of the constitutional system is that simple majorities prevail, unless another provision is specified - such as the 2/3 vote necessary in both houses of Congress to override a presidential veto, as specified in Article I, Section 7.
Just as Congress can go beyond the constitutional framework and make its own procedural rules, for example, the requirement of 60 votes in the Senate to cut off debate, which has the effect of requiring a super-majority for any controversial legislation, I suppose the Supreme Court could make its own rules if it felt that a simple majority wasn't good enough. For example, it is by court rule that it takes four votes to agree to hear a new case.
Q. Do you know of any Supreme Court decisions, majority or minority, that actually use the phrase "slippery slope", or directly allude to a similar concept?
DOUG ELIAS
Ithaca, New York
cont
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
(Page 3 of 3)
A. "Slippery slope" is a favored metaphor among the justices. The database I consulted (findlaw.com) came up with 20 cases in which either the majority or dissent used this phrase (usually to warn of impending doom). Among the better-known of the cases are Washington v. Glucksberg, 521 U.S. 702, the physicial-assisted suicide case from 1997; Walz v. Tax Commission of the City of New York, 397 U.S. 664, a 1970 decision upholding tax exemptions for religious property; and McClesky v. Kemp, 481 U.S. 279, a 1987 decision rejecting a broad-based challenge to the death penalty that was based on a claim of racial discrimination.
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Q. I know the Constitution prohibits self-incrimination. Yet, through the years, the courts have allowed fingerprints to be used to convict persons and now DNA is also used. What precedent was used to allow this?
A. Certainly the Framers, if they thought about their genetic material at all, would have assumed that they would retain some privacy in it. However, a long line of Supreme Court cases has made clear that the Fifth Amendment's prohibition against compelled self-incrimination applies only to the content of communications, written or oral, and not to physical evidence as such.
The court has held that it is not unconstitutional to require a suspect to give a sample of his handwriting, as well as fingerprints. Suspects can be required to stand or walk a certain way, to allow photographs and measurements to be taken, etc. So there's no reason to think that DNA is not well within this zone.
Q. I was wondering about state courts not being able to interpretate the federal constitution more broadly than the Supreme court. However a least New Jersey's constitution contains a paragraph saying that no law violating the federal constitution may be passed. Could the New Jersey supreme court use this as a excuse for interpretating the federal constitution more broadly? There has been a lot about USA not signing the ICC convention since Bush fears he will be prosecuted for warcrimes. If the Supreme Court too felt that the trials in front of the tribunal would not be due process could it declare a ratification illegal?
JOHAN RICHTER
A. State courts may of course interpret their own constitutions to give broader protections than the U.S. Constitution would give to similar provisions, and many have. But as to the U.S. Constitution, as on other questions of purely federal law, state courts are bound by the interpretations of the U.S. Supreme Court.
On your question about the International Criminal Court: treaties are negotiated exclusively by the President and ratified by the Senate. The Supreme Court doesn't have a role in the treaty process as such. In 1979, it refused to decide the legitimacy of the U.S. withdrawal of recognition from Taiwan, which was governed by a treaty. The court hasn't made the basis for its diffidence exactly clear. In the Taiwan case, four justices in the five-justice majority said it was a "political question," not suitable for judicial resolution. In any event, it's not really conceivable that the court would get involved in the political debate over the I.C.C.
Q. I am under the understanding that the Solicitor General is the top government lawyer, what is the power of the Attorney General in relation to the Solicitor General? In your experiance how do the two positions interact in practice?
LUKE PERRY
Amherst, Mass.
A. The Solicitor General is a Justice Department official who is in charge of the office that represents the interests of the United States before the Supreme Court (and who authorizes government appeals in the lower federal courts as well). He (there has never been a female SG) is also a political official, nominated by the President and confirmed by the Senate, who is part of the administration and can be expected not to diverge from the policies set by the executive branch policy-makers, including the Attorney General, who runs the Department of Justice. The SG is expected to defend federal statutes whenever they are arguably defensible. Sometimes tensions do arise, of course, because the SG has a bit of a dual role -- the interests of the United States and the interests of the administration in power are not always one and the same thing.
An interesting book about the office of the Solicitor General is "The Tenth Justice: The Solicitor General and the Rule of Law," by Lincoln Caplan, published in 1987.
Note from Ms. Greenhouse: In response to my story on the Justice Department's new policy on the right to bear arms, the column received many questions about the syntax, history, and meaning of the Second Amendment, and about the practical and constitutional implications of the Attorney General's new reading of this amendment to guarantee an individual, and not simply a collective, right of gun ownership.
This is not the place to debate the merits of the question. It's fair to say that the way the administration chose to notify the Supreme Court of its new position, in footnotes to two briefs, without any public announcement or explanation, surprised many people. What the court will make of this, we may not see for a while. The department's view of the Second Amendment has little if any bearing on the two cases themselves, which in fact the Solicitor General urged the justices not to review.
And it's not all that clear exactly what the administration hopes or plans to accomplish in a legal sense. The briefs describe the new position as holding that "'the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse." Clearly, the meaning and scope of these "reasonable restrictions" will ultimately determine what this is all about. The phrasing seems to want to preserve the very commonly imposed sentence enhancements for those convicted of using guns in connections with a drug transaction, for example. But we'll see, I guess. Personally, I don't see a majority of the current Supreme Court having any interest in revisiting the question. Someone posed a question about what this might mean for the states. The court has never formally "incorporated" the Second Amendment -- that is to say, the court has not made the Second Amendment binding on the states through the 14th Amendment, as it has most of the other protections of the Bill of Rights. That is logical, because the court has not viewed the Second Amendment as conferring a personal right. If that ever changes, then so would the application of the amendment to the states, I suppose. http://www.nytimes.com/2002/05/30/national/30GREENHOUSE.html
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878