Tuesday, February 12, 2008

Nino Scalia, lying sack'o'jowls

From the Beeb, we have this:

Justice Scalia is often described as the most conservative member of the court - but it's a charge he denies.

Instead, he says he's an "originalist," which means he interprets the text of the US Constitution as it was written.

He both attacks and mocks the idea that the Constitution is a "living document" which needs reinterpreting in the light of social change.

All codswallop. Nino Scalia has no such 'principle'. Scalia was one of the strongest proponents of a theory that the Constitution says what it does not say, and that the Eleventh Amendment means what it expressly omits.

The U.S. Constitution says in Article III, Section 2:
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
Note the language: "between a state and citizens of another state". This is what is termed "diversity jurisdiction" (on the other hand, the jurisdiction conferred over cases involving the Constitution and "the laws of the United States" [i.e., federal law] is "subject matter jurisdiction" or "federal question jurisdiction").

The Eleventh Amendment to the Constitution removed this "diversity jurisdiction" from the purview of the federal judicial system:
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.
at least for the specific instance where one of the states was the defendant in a suit.

It didn't take long before someone pointed out that there was no mention of "subject matter jurisdiction" and "diversity jurisdiction" -- either literally or by implication -- in the Eleventh Amendment text itself, and thus, on a purely literal reading of just the amendment text, both types of suits were barred by this provision from federal court (despite the fact that the Eleventh Amendment was in response to a "diversity jurisdiction" decision, Chisholm v. Georgia, which was unpopular at the time of the adoption of the Eleventh Amendment).

But the "states' rights" crew (and that includes Nino Scalia) didn't want states to ever have to answer to citizens in federal court (and they can of course ban suits against themselves in their own state courts, so that means they would be free from ever having to answer to citizens in any forum if they didn't want to). With this impetus in mind, they started arguing that it was obviously unfair (and thus unreasonable) to bar the citizens from another state from filing suit in federal court against a state, even under "federal question jurisdiction", but to allow a suit on the same subject matter by the citizens of that very same state in federal court. Literalists might have said that the Eleventh Amendment was poorly worded, and we just have to live with the strangeness of (legally) similarly placed individuals being treated differently entirely based on their state of residence. Those seeking some reason behind the Eleventh Amendment might have said that the Eleventh Amendment was an explicit revocation of "diversity jurisdiction" as provided by Article II, Section 2 for such cases, but which left the "federal question jurisdiction" intact as a fit subject for the federal courts to resolve (and who better to resolve such?). But the "states' rights" contingent said that the obvious result was to bar suits against a state in federal court by its own citizens, even though this was not stated in any way, shape, or form, by the the text of the Eleventh Amendment. This view, long a minority view, finally prevailed in Seminole Tribe of Florida v. Florida, which overturned Pennsylvania v. Union Gas.

Scalia's 'reasoning' is that the states have "sovereign immunity" and are not required to show up in court if they don't feel like it (see, e.g., here). But we had this little revolution to throw out the "divine right of kings" and to get rid of the "sovereign".....

Scalia is no fan of literalism ... or of originalism.


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