Today in Supreme Court History: January 22, 1890

1/22/1890: Hans v. State of Louisiana argued.

Comments

[DaivdBehar]

The vile lawyer cannot read the English of the Eleventh Amendment. I want to reverse Hans, and to allow citizens to sue their own state. Liability will shrink an enterprise. It is the road to shrinking this worthless government.

Sovereign immunity has no justification whatsoever. It is based on the psychotic assertion that the Sovereign speaks with the Voice of God. Government sucks in part as a result of its immunity. Immunity is bad for the functioning of government.

Immunity also justifies violence in formal logic. The courts should defer to formal logic, and dismiss violent charges when a government official is attacked.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Tar and feathers FTW!

[Cal Cetín]

Seriously, if you have a legitimate case, why *not* sue your own state in the Supreme Court? Nothing in the 11th Amendment against it so long as it's *your* state.

Is there an "invisible emanation" from the 11th Amendment? As for sovereign immunity, the sovereignty belongs to the people of the entire United States ("We the People of the United States"), not to one state in particular.

And we're talking about cases where a state has violated, say, someone's rights under the Constitution or federal law generally, not your average suit.

[Krychek_2]

Cal, this is a situation in which I agree with you that textualism would have produced a better result. That said, the larger problem hovering over all of this is that the Constitution was written to protect states, not individuals, so this decision is probably in keeping with originalist intentions even if the 11th Amendment as written isn’t as airtight on that issue as some originalists might like.

[Cal Cetín]

I'm open to any school of interpretation which is sensible while reserving the amendment process to the procedures outlined in Art. V.

That said, if (as many originalists *and* living-constitutionalists claim) the alternative to originalism is some method of changing the constitution by interpretation, bypassing Art. V, then that would be a point in favor of originalism. But I'm not sure I accept the premise - I suspect there are ways of keeping the amendment process where the constitution leaves it without having to rummage through old newspapers and legislative journals in search of meaning.

Some living constitutionalists say that the original intent is unascertainable, meaningless, infinitely flexible according to the whims of the interpreter, etc. Other living-constitutionalists say the original intent is *very clear* - clearly meant to achieve a bad result from which only living-constitutionalism can save us.

But before opining on which version of originalism is the True Doctrine, I'd have to be convinced of originalism first.

[Krychek_2]

It’s not changing it by interpretation (and by the way, I also favor the amendment process when it’s politically feasible).

Please remember that interpretation has multiple components, two of which are what did the speaker say, and what did the hearer hear. If over time hearers begin to hear different things, that’s not a change in the text but it is a change in the hearers.

Nobody seriously thinks that that negligence today means what it meant a century ago. You’ve got a whole lot more duties today than you used to. But the basic concept remains intact and there’s no need to amend anything; just let judges and jurors do their work. And if some jury goes completely off the rails, well, there is a legislative process to fix it.

[Cal Cetín]

If the fellow-servant rule (for example) were in the Constitution, it would take an amendment to remove it. It's not and it doesn't.

"I also favor the amendment process when it’s politically feasible"

I think that's pretty much the opposite of what Art. V is in there for. It's to make sure there's a specific procedure - difficult but not impossible - to make needed changes.

Like, for example - if someone thought the federal government didn't have enough power over the economy, the environment, public health, etc., they could propose an amendment or amendments to correct that problem, taking these subjects away from the states or at least supplementing state laws on the subject with federal rules.

And there would probably be much support for such amendment(s). Maybe some of those amendments could pass and some not. Maybe it would depend on the phrasing of the specific amendment(s).

But imagine what would would happen if, instead of using the amendment process, they simply had the federal government grab the extra powers it wanted, and mocked any procedural concerns as out-of-touch racist gooberism.

That of course would be silly - good thing it didn't happen that way.

[Krychek_2]

Cal, this takes us full circle to: the Constitution was written to protect states, not individuals. It’s very raison d’etre is to ensure that the majority, which, after all, is made up of individuals, can’t get what it wants without begging and bribing a minority with far more power than arguably it ought to have. And further, it gave us a system designed to be difficult to change. So you are essentially defending something that by its nature is hostile to the desires and wishes of individuals. Please don’t tell me it’s because it achieves good results.

And the majority is increasingly not paying attention because why should it.

I’ve done enough work with HOAs over the years to know that no matter how important and beneficial something may be, there will always be one lone contrarian whose answer is always no. And sometimes you just have to tell them to get the hell out of the way.

[Cal Cetín]

"the Constitution was written to protect states, not individuals...

"the majority is increasingly not paying attention because why should it"

The majority? I recall in one of our earlier chats, you discoursed about certain things no majority should be able to do.

So how narrow a majority would you want to be able to...rewrite or ignore the Constitution, call it what you will? 50% of registered voters plus one more voter?

People have found it so easy to circumvent the amendment process, the question of whether or not there could be an amendment to accomplish the same end doesn't get addressed. The assumption I suppose is that if a Congressional bill (or a state bill perhaps?) is supported by 50% plus one, but not by the Art. V supermajority, the minority is automatically wrong?

[Cal Cetín]

PS - pure majoritarianism is not the same as pro-individual, and I'm not sure where that idea even comes from.

[Cal Cetín]

A majority of whom? Earthling adults? Or only adult citizens in a country whose boundaries and population came about through particular historical events? Or if the country is made up of states, a majority of adult citizens of any given state?

[Krychek_2]

That certain things should be beyond majority control does not mean that everything should be beyond majority control. You seem to think it's all or nothing, and it isn't. That the majority shouldn't be permitted to suppress speech it doesn't like doesn't mean it shouldn't be able to set economic policy. You are familiar with the fallacy of the false alternative, no?

And nobody's advocating pure anything, which is likely impossible anyway.

A majority of the people of the United States, taken as a whole, should be able to set national policy, except for specific carve outs like free speech and free religion. And if they make a bum choice, the remedy is another election in two years.

[Cal Cetín]

"You seem to think it's all or nothing"

Well, to be fair, you are fairly casual about the majority disregarding the Constitution, which you seem to think is a good idea. If you dismissively ask why the majority should comply with the Constitution, and invoke the specter of wrongheaded obstinate minorities, then yes, you certainly seem to be a strong majoritarian (at least on the national level, the states apparently aren't the relevant unit for calculating a majority).

I am the nuanced one here, suggesting that the will of a national majority should be subject to constitutional checks.

Casually dropping our existing restraints on the majority, and assuming that some alternate method can be cobbled together, puts you in the position of Dr. Frankenstein or the Sorcerer's Apprentice - that which you conjure up may not observe your restraints and reservations.

[Krychek_2]

Constitutional checks would be one thing, but that's not what we have. We have a minority with close to an absolute veto. Effectively, we have governance by the minority. And here's why I'm cavalier about paying attention to originalism:

Suppose somehow I ended up with close to an absolute veto over anything you choose to do. I then amuse myself by putting up roadblocks, just because I can. (Sometimes because I think what you're doing is a bad idea, but a lot of the time just to keep you from getting anything you want.) Oh, you want to leave the house? Not unless it's a Thursday in a non-leap-year February and a full moon, and there's a pope who was born in Senegal. We have rules that must be observed, and those are the rules, and if you don't like them, there is a mechanism in place to change them: All you have to do is get everybody in the entire country with a 7 in their social security number to sign a petition.

Can you understand why, at some point, you might simply tell me to go to hell?

That's a fairly accurate description of what happens to the wishes of the majority under our current system.

[Krychek_2]

And I intentionally chose leaving your house as my example because that's a pretty good analogy to what conservatives tell liberals: You are free to do as you like inside blue majority areas -- unless, of course, it's a blue city with a red state legislature -- but you want to get anything done outside blue areas, we have a veto because it might somehow have some impact or other on us, or we simply may not like it.

[Cal Cetín]

"That's a fairly accurate description of what happens to the wishes of the majority under our current system."

No, I don't think it is.

[Syd Henderson]

It gets even worse when you consider Alden v. Maine forbids citizens from suing the state in state court (although I think that depends on the laws of the state.)

[Vaclav Matthess]

I like that Josh has already consigned Roe v. Wade, 410 U.S. 113 (January 22, 1973) to the dustbin of history. Let's hope so!