Clicking on banner ads enables JWR to constantly improve
Jewish World Review March 13, 2001 / 18 Adar, 5761

Nat Hentoff

Hentoff
JWR's Pundits
World Editorial
Cartoon Showcase

Mallard Fillmore

Michael Barone
Mona Charen
Linda Chavez
Ann Coulter
Greg Crosby
Larry Elder
Don Feder
Suzanne Fields
Paul Greenberg
Bob Greene
Betsy Hart
David Horowitz
Marianne Jennings
Michael Kelly
Mort Kondracke
Ch. Krauthammer
Lawrence Kudlow
Dr. Laura
John Leo
David Limbaugh
Michelle Malkin
Chris Matthews
Michael Medved
MUGGER
Kathleen Parker
Wes Pruden
Sam Schulman
Amity Shlaes
Roger Simon
Tony Snow
Thomas Sowell
Cal Thomas
Jonathan S. Tobin
Ben Wattenberg
George Will
Bruce Williams
Walter Williams
Mort Zuckerman

Consumer Reports


Supreme Court rewrites Constitution


http://www.jewishworldreview.com -- IN 1788, Alexander Hamilton, writing in "The Federalist Papers," tried to allay the fears of the newly independent Americans that the Supreme Court -- created in the Constitution the year before -- would not dominate the other two branches of government.

"The judiciary," Hamilton promised, "will always be the least dangerous to the political rights of the Constitution. ... The judiciary has no influence over the sword or the purse" to get its judgments executed. "It can merely judge."

But 174 years later, Alexander Bickel, a widely respected constitutional scholar, noted that "the 'least dangerous branch of the American government' is the most extraordinarily powerful court of law the world has ever known."

On Feb. 21, the Rehnquist Court -- in Board of Trustees of the University of Alabama v. Garrett -- underlined the accuracy of Bickel's point. By a 5-4 vote, the Supreme Court ruled that individual employees of any of the states cannot sue their own state for damages when they have been discriminated against under the provisions of the Americans With Disabilities Act -- signed into law in 1990 with enthusiasm by then-President George Bush.

This decision mocks those justices who claim to adhere to the "original intent" of the Constitution. The 11th Amendment to the Bill of Rights says clearly that "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."

You can translate that into Gaelic, or read it upside down, but the 11th Amendment does not prohibit the bringing of lawsuits by citizens against their own states.

But Chief Justice Rehnquist, in his decision for the Court, claims that somehow the court has rewritten the 11th Amendment in its previous decisions. This goes beyond "judicial activism" to contempt of the Constitution.

Similarly, this Supreme Court -- in declaring the individual states immune from lawsuits by their employees under the Americans With Disabilities Act -- has also decided to eviscerate the 14th Amendment's guarantee that no individual state can "deny to any person within its jurisdiction the equal protection of the laws." That amendment also gives Congress the power to enforce that guarantee.

As former Solicitor General Walter Dellinger told Nina Totenberg on National Public Radio, the 14th Amendment gave Congress "for the first time, the power to protect the rights of individual citizens against their own state governments. The 14th Amendment only mentions one institution of government -- and that is Congress."

But for individual states to be held in violation of the 14th Amendment -- declared the innovative Chief Justice Rehnquist -- those of its employees charging discrimination under the Americans With Disabilities Act have to provide a high level of proof that the state being sued has engaged in "a pattern of unconstitutional discrimination."

This evasion of the Constitution is -- in George Orwell's term -- sheer "newspeak." Rehnquist declared that there is only "minimal evidence of unconstitutional discrimination in employment" by the states under the Americans With Disabilities Act. In a dissent marked by the precision of its evidence, Justice Stephen Breyer pointed out that "Congress compiled a vast legislative record documenting 'massive society-wide discrimination' against persons with disabilities." There were 13 Congressional hearings, and a special task force created by Congress that "held hearings in every state, attended by more than 30,000 people, including thousands who had experienced discrimination first-hand."

With regard to employment, Justice Breyer continued, "Congress found that 'two-thirds of all disabled Americans between the ages of 16 and 64 were not working at all,' even though a large majority wanted to, and were able, to work productively." And Congress found that this discrimination flowed from "purposeful unequal treatment."

In a letter to The New York Times, Joel Levy, chief executive of the National Institute for People with Disabilities, pointed out that the current Supreme Court -- violating the separation of powers -- "could ultimately affect critical measures like the Fair Housing Act, special education measures and the rights of people with disabilities to live in non-institutional settings." Many more civil rights laws are in jeopardy.

Said Hamilton in "The Federalist Papers," "The supposed danger of judicial encroachments on the legislative authority is in reality a phantom." He could not have envisioned Justices Rehnquist, Scalia, Thomas, O'Connor and Kennedy.



JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

Up

03/06/01: Testing compassionate conservatism
02/27/01: Are certain lives not worth living?
02/20/01: Misteaching the rule of law
02/13/01: What a web!
02/06/01: All that jazz
01/30/01: History will also judge Robert Ray
01/23/01: History will not absolve him
01/08/01: Will Rice remember Rwanda?
01/02/01: Expanding the culture of death
12/26/00: Media should stop misleading public about High Court's actions
12/18/00: A government that executes children
12/11/00: Caucus speaks out on slavery in Sudan
12/04/00: This year, give the gift of the Constitution
11/27/00: Is capital punishment a deterrent?
11/20/00: Punishing the Boy Scouts
11/06/00: Joe Lieberman's excommunication
10/30/00: CNN discards journalistic responsibility
10/23/00: The basic flaw in the debates
10/16/00: Nader's American history lesson; or: Silencing Jesse Jackson
10/06/00: Hate-crime laws: The real message
10/03/00: Why Clinton was not convicted
09/25/00: Protecting babies born alive
09/25/00: A selective zeal for justice
09/06/00: The power of nonviolence
08/28/00: Should Dr. Laura be silenced?
08/22/00: Trashing the Bill of Rights in Philly
08/14/00: The repressive hand of China
08/07/00: A racial incident on a train
07/31/00: Attention Jesse Jackson: Sudanese children are still branded and enslaved
07/24/00: Open up the presidential debates!
07/17/00: A stealth attack on privacy
07/03/00: Plea to the Congressional Black Caucus
06/26/00: Burning 'bad' ideas at college
06/19/00: Affirmative action beyond race
06/12/00: Students discover the Constitution
06/06/00: The Liar's legacy and America's delusions
05/30/00: Reining in the majority's will
05/23/00: Press swoons for a bunco artist
05/15/00: The China that tourists don't see
05/08/00: The coverage of Reno's lawless raid
05/01/00: In Clinton and Castro's best interests
04/24/00: Elian's human rights
04/17/00: Crime's down, but arrests keep rising
04/10/00: Teacher brings Constitution to life
04/03/00: The Americans who keep disappearing
03/27/00: The censoring of feminist history
03/20/00: Should there be a chaplain in Congress?
03/13/00: Big labor, big China, spinning Gore
03/03/00: The ACLU violates its principles --- yet again!
02/28/00: Still two nations?
02/11/00: You bet we should disbar Bubba
01/31/00: Where was Jesse?
01/24/00: Is suing church for sexual harassment an entanglement?
01/18/00: Will Miranda make it?
01/11/00: ACLU: Guilty until presumed innocent?
01/03/00: Liberty lion should be Man of Century
12/28/99: Drug tests that tear families apart
12/20/99: Get ready for decisive ruling on school vouchers for religious schools
12/13/99: Guess who is taking the lead in anti-slavery movement? Hint: It ain't Rev. Jesse
12/06/99: When we refuse to buy the 'otherly-challenged' excuse
11/29/99: Expelling 'Huck Finn'
11/22/99: Pleading the First
11/16/99: Goal of diversity needs rethinking?
11/08/99: Prosecution in darkness
11/02/99: The accuracy that's owed to readers
10/26/99: Disappeared Americans
10/18/99: The blue wall of silence
10/11/99: Bill Bradley's speech tax
10/04/99: 'Technicalities' that keep us free
09/27/99: Our 'Americanism'-ignorant generation
09/20/99: ACLU better clean up its act
09/13/99: A professor of infanticide at Princeton
09/07/99: The Big Apple's Rotten Policing
08/23/99: Lawyerly ethics
08/16/99: To Get a Supreme Court Seat
08/02/99: What are the poor people doing tonight?
07/26/99: Lady Hillary and the press

© 2000, NEA