Sunday, June 16, 2019

Ninth Amendment (Part IV)

Other theories limiting the power of the Ninth Amendment include the “residual rights” theory. A good example of this is illustrated in United Public Workers v. Mitchell (1947) where Justice Stanley Reed wrote “If granted power is found, necessarily the objection of invasion of those rights reserved by the Ninth and Tenth Amendments, must fail.” In other words, individual freedom, rights, and liberty must take a back seat to enumerated federal powers. Let’s be clear, the Constitution does not support any hierarchy of clauses or Amendments (unless amendments are drafted specifically to repeal or correct previous clauses and amendments). In fact, the Ninth Amendment guarantees all rights be treated equally. This follows any natural law principle that there is “no arbitrary preferences among values” or among morals or rights. So, why have the Ninth and Tenth Amendments been treated differently than other amendments? That is the million-dollar question. Mitchell upheld the Hatch Act which denied citizens working a government job from practicing their fundamental right to “engage in a political activity”. Mitchell was the first case to deny the concurrent powers doctrine simply by labelling the Ninth and Tenth Amendments as truisms. The Constitution has been described as an island of government powers surrounded by a sea of rights and not the other way around. “Rights came first, then came the government, and then came the law.” The Constitution was written to protect individuals from government intrusion and restrictions. It would make no sense to protect the government at the expense of the people. This goes against any Federalist or anti-Federalist views during the Founding era. As Libertarian legal scholar Randy Barnett asserts “Ninth Amendment skeptics have always seemed to think that when a provision is inserted merely for greater caution, this means it has no function apart from serving as some sort of enforceable warning.” Moreover “They [Justices] consistently overlook how such cautionary rights can serve as a redundant or secondary line of defense when other primary constraints on government power fail.” Just as the Ninth Amendment provides redundancy to protect the rights of citizens, the freedom of contract can do the same. Both Barnett and Liberal Legal Scholar Daniel Farber have similar views about the Ninth Amendment. However, they differ on one key point. Farber sees the Ninth Amendment as protecting the “rights” of citizens whereas Barnett sees the Ninth Amendment protecting both the “rights” and “liberty” of citizens. They both see liberty as something different than rights. Liberty is to protect citizens from unnecessary government restrictions, regulations, and mandates that may not necessarily violate the rights of citizens. For that reason, Barnett pictures a small federal government whereas Farber is okay with a big convoluted government encroaching on people’s liberty. Farber contends that Madison’s purpose for the Ninth Amendment had nothing to do with limiting the size of government. He is wrong, the whole purpose of the Constitution and Bill of Rights was to limit the scope of the federal government. Madison may have been a Federalist (wanting a strong central government) at the Constitutional Convention but he said in Federalist Paper 45 that the Constitution provides for limited federal powers but State powers were infinite. In fact, what Madison is referring to is that the Constitution was designed to meet the subsidiarity natural law principle: “Subsidiarity is an organizing principle that matters ought to be handled by the smallest, lowest or least centralized competent authority. Political decisions should be taken at a local level if possible, rather than by a central authority.” For the purpose of this book both liberty and rights will be seen as one of same thing since governments should not be in the business of violating either without some compelling reason to do so. Legal scholar, Kurt Lash, also views the Ninth Amendment’s purpose to curb federal government encroachment, but his originalism interpretation led him to come to that conclusion via different reasoning. However, Lash does not view the Ninth Amendment as protecting the individual rights of citizens from State encroachment – that is a big flaw. The 2010 case Troxel v. Granville is an interesting case regarding Justice Antonin Scalia’s misguided originalism view of the Ninth Amendment. The majority held that parents had the fundamental right to make decisions concerning the care of their children. That is not an overly surprising decision, but what was interesting was Justice Scalia’s dissent. Scalia holds that “a right of parents to direct the upbringing of their children is among the unalienable rights”. But Scalia uses restraint declining to use the Ninth Amendment to elevate this right. Scalia made the following remarks regarding the Ninth Amendment: “even farther removed from authorizing judges to identify what they may be (rights)” when discussing what fundamental rights to elevate. In other words, according to Scalia, if the right cannot be found in the text of the Constitution, then the right cannot be elevated. Therefore, the Ninth Amendment, the privileges and immunities clause, and substantive due process are not acceptable theories or law doctrines to elevate any fundamental right in Scalia’s view. In sum, there are strong originalism arguments to say the Ninth Amendment has been applied incorrectly by judges and justices because it is misunderstood. The Ninth Amendment should be used to elevate rights and to protect individuals from both State and federal encroachment which may violate individual rights and liberty – it is used for neither reason.

Sunday, June 9, 2019

Ninth Amendment (Part III)

Marshall would rely on his “expressly” argument to circumvent the Tenth Amendment in McCulloch v. Maryland (1819). In this case, Marshall held the federal government could create a national bank to carry out enumerated powers such as to lay and collect taxes. Marshall would use a broad interpretation of the necessary and proper clause in this opinion. Marshall contends that the federal government can use any implied power necessary to carry out enumerated powers. But, obviously, there were many more less intrusive ways to carry out laying and collecting taxes then creating a government monopoly. Where Marshall failed in his decision was to evaluate the “proper” part of the necessary and proper clause. Marshall, never asked the question if the bank was necessary, was it also proper? In other words, was creating the national bank the “correct” way to achieve the least evasive means (federal encroachment) to establish the end result (tax collection)? No, and proof of this is provided throughout this book in terms of how McCulloch is cited to grant the federal government expanded implied powers. This is perfect proof that consequentialism doctrines (do the ends justify the means) do not necessarily work at achieving the greater good. These doctrines are arbitrary and are impossible to measure. Madison was correct to say that once the federal government was provided ANY implied powers, then federal power would reach to every aspect of the lives of Americans. Marshall made a huge mistake. Sure, he was wrong to even consider that the federal government had the right to build a corporation, but more importantly, since his decision provided no limit on implied powers for the federal government, Marshall essentially armed Congress with a blank check to intrude on State and individual rights whenever they felt it appropriate. The concurrent powers doctrine of the Ninth and Tenth Amendment is interesting because it is the antithesis of modern jurisprudence introduced by the FDR Court. The doctrine holds that States maintain sovereignty over powers concurrently held by both the States and federal government via the Ninth and Tenth Amendments. For instance, the Federal government has the enumerated power to prosecute counterfeiters. However, in State v. Antonio, the South Carolina Supreme Court held that South Carolina had the right to prosecute a counterfeiter citing the Ninth and Tenth Amendments. Today, modern federal courts uphold many federal laws and statutes even though they are outside the realm of its enumerated powers. But in State v. Antonio, the South Carolina Supreme Court laid the groundwork to limit federal powers by reading Constitutional provisions narrowly to limit the expansion of enumerated powers. In another case, Houston v. Moore (1820), in his dissent, Justice Joseph Story held Pennsylvania could discipline militia members (through court-martial) even though Article I, Section 8, Clause 15 and 16 provide enumerated power over militias to the federal government. Story cited the Ninth Amendment to uphold the doctrine of concurrent powers. In New York v. Miln (1837), the Court upheld a New York law which said ships must furnish a passenger list to local authorities. In his majority concurrence, Justice Smith Thompson, cited Story’s opinion in Houston v. Moore upholding the law based on the concurrent powers doctrine. At this point, however, Justice Story changed his view about State power and the Ninth Amendment and dissented in the case. In Smith v. Turner (1849, passenger car cases), the Court held that States could not impose a passenger tax on ships travelling in interstate commerce. In his dissent, Justice Peter Daniel, cited the concurrent powers doctrine in Story’s Houston opinion. Even though Justice Story’s dissent in Houston was cited in many Court cases, most modern scholars overlook this Ninth Amendment claim. The reason for this is simple: Story changed his view. In his book “Commentaries on the Constitution” published in 1833, Story changed his opinion about federal power instead invoking those views held by Chief Justice Marshall. Justice Marshall never mentions the Ninth Amendment in any one of his opinions even when that was the main argument in the case. However, Story’s concurrent powers doctrine has never been questioned or overruled by the Court. The 1948 case, Bute v. Illinois, is often overlooked. In this case, Justice Harold Burton held that the concurrent powers doctrine of the Ninth and Tenth Amendments could be used to deny applying the Bill of Rights to the States. Most would agree that the Bute opinion should only hold weight if the State law is stricter (provided more individual rights) than the federal law otherwise the Bill of Rights should apply to the States. Many State and federal cases also used the concurrent powers doctrine. For instance, in Hawke v. Smith, the Ohio Supreme Court upheld the right of States to use referendums to approve proposed amendments to the Constitution instead of State legislatures as outlined by Article V. FDR’s National Industrial Recovery Act (NIRA) was rejected using the concurrent powers doctrine by federal judges in Amazon Petroleum Corporation v. Railroad Commission, Hart Coal Corporation v. Sparks and Acme Inc v. Besson. And the Iowa Supreme Court struck down provisions of FDR’s Agriculture Adjustment Act (AAA) in United States v. Neuendorf. In Henry Broderick v. Riley (1951), the Washington Supreme Court said that the Ninth and Tenth Amendments are being forgotten in legal jurisprudence to protect State rights from federal encroachment. The concurrent powers doctrine, the right to work, freedom of contact, and property rights took a big hit Tennessee Electric Power v. Tennessee Valley Authority (1938, TVA). In this case, the plaintiffs argued that the federal government’s TVA project to generate and sell electricity violated States rights because it would “result in federal regulation of the internal affairs of states, and will deprive the people of the states their guaranteed liberty to earn a livelihood and to acquire and use property subject only to state regulation.” Justice Owen Roberts held that individuals had no standing to file claims under the Ninth and Tenth Amendments – only States could make claims under these two Amendments. That is odd since both amendments claim to protect the rights “retained for the people” and “or to the people”. The TVA case erased the original intent the Founders held for the Ninth and Tenth Amendments. Madison’s amendment placement proposals also debunked several other flawed theories about the meaning or purpose of the Ninth Amendment. First is the collective rights theory which states the Ninth Amendment was adopted for the purpose of creating a Constitutional convention. If that were true, then Madison would have proposed placing the Amendment in Article V with other Constitutional convention and amendment guidelines. Second is the Ninth Amendment was created for the purpose of guaranteeing a republican form of government for the States. If that were true, then Madison would have proposed placing the Amendment in Article IV with the other guaranteed republican form of government statements. Still, other scholars theorized the Ninth Amendment’s purpose was to prevent the repeal of any States’ Bill of Rights that may be stricter than those proposed in the Constitution. If this was its purpose it is not working. The Court continually infringes on stricter State law interpretations of the Bill of Rights, especially during the Warren Court (more on this later).

Sunday, June 2, 2019

Ninth Amendment (Part II)

Some scholars have said that the Ninth Amendment only applies to a compact between the States and the federal government (like the Tenth Amendment). This is half true. The original meaning of the Ninth Amendment can be explained in part by James Madison, Supreme Court Justice Joseph Story, and Roger Sherman’s original draft of the Bill of Rights. Sherman attempted to combine both the Ninth and Tenth Amendments into one amendment. The committee rejected this, but it is proof both amendments had the purpose of limiting federal power. Madison’s first inclination was to add the first ten amendments into the Constitution under the section where they were most pertinent. Madison wanted to list the first nine amendments under Article I, Section 9 after the clauses guaranteeing other natural or fundamental rights including a writ of habeas corpus and the ban on bills of attainer and ex post facto laws. Madison proposed placing the unique federalism protection clause (the Tenth Amendment) in Article VI. Since Madison did not want to place the Ninth Amendment in the same section as the Tenth Amendment, some incorrectly argue the two amendments cannot have a similar meaning to limit federal power. This explains why when some States were admitted to the union they had provisions similar to the Ninth Amendment in their State constitutions: They believed the Ninth Amendment limited federal power, not State power. Of course, the amendments were added to the end of the Constitution creating some confusion about the intent or the meaning of the Ninth Amendment. In fact, Madison’s original proposal for the Ninth Amendment reads as follows: “The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be construed so as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted for greater security.” The second part of the proposed Ninth Amendment is proof it was intended to be a federalism clause. The purpose of the clause was to limit federal powers similar to the Tenth Amendment. The fact the “enlarge the powers” phrase of the Madison’s Ninth Amendment draft was removed, it incorrectly led many scholars to believe the amendment was not one to deny federal power, but only retain individual rights. However, in letters between Madison and Hardin Burnley, he ensures the meaning of his draft and the final version of the Ninth Amendment have the same meaning. Madison asserted that “retained rights” and “limited power” were one of the same thing. Madison’s correspondence with Burnley started when the Virginia ratifying committee (for the Bill of Rights) rejected the Ninth and Tenth Amendments. Governor Edmund Randolph and others fretted over the changed language of the Ninth Amendment. Although the language of the Tenth Amendment between Madison’s draft and the final version remained unchanged, the Virginia committee wanted two amendments to stop the encroachment of federal power. Madison wrote that “every public usurpation is an encroachment on the private right, not of one, but of all.” Hence, protecting rights is the same as limiting federal power. At the same time Virginia was debating ratifying the Bill of Rights another dispute started in Congress over establishing a national bank. The crux of the debate for Madison centered around the fact that both the Ninth and Tenth Amendments limited federal powers from using the necessary and proper clause to create a national bank. Madison’s reassurance of the meaning of the Ninth and Tenth Amendments in the bank dispute may have helped Virginia to end its gridlock and pass the Bill of Rights. It is important to note that only Virginia questioned the meaning of the Ninth Amendment. All of the other States seemed to understand that the Ninth Amendment was intended to limit federal power. Thus, the Ninth Amendment was drafted to protect citizens from the “backdoor” theory. For instance, freedom of the press in the First Amendment did not allow Congress the power to regulate the press if it did not infringe on a free press. Hamilton feared this exact theory in Federalist Paper 84. He felt by having a Bill of Rights it would allow the federal government to use the amendments as a backdoor to broader powers. In other words, if there is an amendment restricting Congressional powers, then the fear was that the Constitution would be interpreted as implying that power must be an enumerated one. But the statement proposed by Madison in the previous paragraph shows he did not intend for the Bill of Rights to “enlarge the [federal] powers” in the Constitution. A good early example of the backdoor theory is the Alien and Seditions Act signed into law by President John Adams. Many people were imprisoned or deported because of the Act. Most people are aware of the Virginia and Kentucky Resolutions (written by Madison and Jefferson). In the Resolutions, both Madison and Jefferson proposed that the Alien and Seditions Act was unconstitutional because it violated both the First and Tenth Amendments. Most people, on the other hand, are not aware of the “Response to the Virginia Resolutions”. Scholars agree that the author of the document would be future Chief Justice John Marshall. Marshall defends the Alien and Seditions Act as Constitutional using three arguments. First, he asserts that Congress may use the necessary and proper clause in times of crisis (to avoid war with France) to protect the well being of American citizens. Secondly, he brings up the point of how the Tenth Amendment was copied from Article II of the Articles of Confederation which provides “each state retains its sovereignty, freedom, and independence, and every power, jurisdiction and right, which is not by this Confederation expressly delegated to the United State, in congress assembled.” The key word in this provision is “expressly” since it was omitted from the wording of the Tenth Amendment. Hence, Marshall felt this meant that federal power could be “liberally construed”. Finally, Marshall contends that Congress can regulate speech so long as it does not abridge the freedom of speech. The final argument proposed by Marshall was the backdoor theory and is precisely one of the purposes of the Ninth Amendment. The Ninth Amendment does not allow Congress to “enlarge” its powers around clauses, provisions, and amendments in the Constitution. In fact, many politicians such as Thomas Mason, James Callender, and Nathaniel Macon are on record for using the Ninth Amendment to find the Alien and Seditions Act unconstitutional. As for the “expressly” argument, John Page (Virginia politician and governor), wrote that the combination of both the Ninth and Tenth Amendments provides for “conferred expressly delegated powers.” Even in the famous case, Calder v. Bull, Justice Samuel Chase holds “the several State Legislatures retain all the powers of legislation, delegated to them by the State Constitutions; which are not expressly taken away by the Constitution of the United States”

Sunday, May 26, 2019

Ninth Amendment (Part I)

The Ninth Amendment is an excellent example of how originalism theory is dead among justices. The Ninth Amendment is an enigma because it is interpreted incorrectly and it is hardly used. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Ninth Amendment and the privileges and immunities clause of the Fourteenth Amendment are very similar and allow for justices to elevate natural law fundamental rights that are nowhere to be found in the Constitution. They are also very similar because they are seldom used. Scholars are at odds whether the Ninth Amendment applies to both federal and State governments. The theory in this text believes the Ninth Amendment should be included as part of the Bill of Rights (most scholars only believe the first eight amendments make up the Bill of Rights). Therefore, the Ninth Amendment should be applied to the States via the Fourteenth Amendment’s due process clause as other Bill of Rights amendments have been (although this has not happened yet). Fundamental rights can be elevated through either the Ninth Amendment or the privileges and immunities clause of the Fourteenth Amendment. Of course, the privileges and immunities clause has been incorrectly redacted from the Constitution in the Slaughter House Cases (more on this later) and the Ninth Amendment is long forgotten, also redacted by the “inkblot” theory. Robert Bork, a Supreme Court Justice nominee (Senate did not confirm him in 1987), said during his confirmation hearings that the Ninth Amendment is an “inkblot” and should be ignored since its true meaning is hard to discern. It is hard to fathom, something as important as the Ninth Amendment, should be redacted from the Constitution. After all, our Founders had a specific reason to put it in the Constitution in the first place. The Ninth Amendment was James Madison’s way to handle a very perplexing issue. Most Constitutional Convention members did not want to create a Bill of Rights for various reasons. The most important reason was echoed by James Iredell from North Carolina. He contented it is impossible to list all the natural rights of all citizens. Thus, by enumerating a few natural rights it may end up disparaging the many natural rights that are not found in the Bill of the Rights. But many States would not ratify the Constitution without the promise of a Bill of Rights to be added to the document. In Federalist Paper 84 Alexander Hamilton argues against a Bill of Rights: A Bill of Rights is not needed for the Constitution since many individual and State rights are built into the Constitution such as not allowing a suspension of a writ of habeas corpus. Besides, Hamilton argues that by adding a Bill of Rights “they would contain various exceptions to powers not granted”. Furthermore, Hamilton added “Why declare that things shall not be done which is no power to do?” Hamilton argues further in Federalist Paper 83 that many individual rights are already included in State constitutions such as trial by jury. Hamilton claims there is no trial by jury provision in the Constitution since each State has varying and unique interpretations on the subject such as some States allow trial by jury for criminal cases but not for civil ones and vice versa. In most cases, State constitutions were more stringent than the federal Bill of Rights. Constitutional convention member, James Wilson, also argued against a Bill of Rights fearing those rights not incorporated in the Bill of Rights would be denied or disparaged by both federal and State governments. Wilson was correct in his assessment and this will be explained later in this book. Madison’s plan to solve this conundrum was the Ninth Amendment. The Ninth Amendment was scarcely used in American jurisprudence to enumerate individual rights. But there is some precedent to back this school of thought. Justice Goldberg used the Ninth Amendment in his reasoning for Griswold v. Connecticut (he was the only Justice out of 7 to do so) and Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter used the Ninth Amendment in Casey v. Planned Parenthood (Roe v. Wade follow up in 1992). The Oregon Supreme Court elevated the right to own property as fundamental in Roman Catholic Archbishop v. Baker (1932) using the Ninth Amendment. A district court upheld the fundamental right to work in United States v. Lieto using the Ninth Amendment. In Lieto, Judge William Hawley Atwell held “The only controversy that is here is between the humble citizen who asserts his right to carry on his little business in a purely local fashion, without being arrested and punished for a mythical, indirect effect up interstate commerce.” Most scholars (both liberal and conservative) have tried to minimize the impact and relevance of the Ninth Amendment and most justices have been reluctant cite it because they are afraid of opening “Pandora’s box”. Put another way, both the Right and Left are afraid of how each side will use the amendment. In particular, they fear the amendment will be exploited for political purposes. This is true, but justices have already exploited many provisions of the Constitution for political purposes. Later, in this text, there is an outline of rules that should be followed by justices to elevate natural law fundamental rights so the Ninth Amendment is not exploited for political purposes. The original intent of the Ninth Amendment provides for a dual purpose. First, it is to prevent the federal and State governments from denying any rights that may not be enumerated in the Constitution or Bill of Rights. Secondly, the amendment is to “deny an expansion of federal power” that may arise from a limited list of rights in the Constitution. In other words, the amendment would prevent the federal government from assuming it has power to regulate any rights that are not enumerated in the Constitution. The Ninth Amendment also has a dual purpose in terms of protecting the rights of individuals and also protecting the collective rights of people within a State. For example, the collective right of the “home rule” provides that States can “determine for itself its own political machinery and its own domestic policies” so long as they do not violate the rights of citizens. The Ninth Amendment also dictates that all enumerated and unenumerated rights be treated exactly the same. Put in other terms, one right, regardless of enumeration, should not be given any priority over another right. This is important because the entire history of the Supreme Court violates this Ninth Amendment rule. Instead, the Court is about conjuring up balancing tests to provide some rights more preferred status over other rights. That being said, however, it is important to note that the Ninth and Tenth Amendments cannot be used by States to shield them from violating the rights of its citizens. For this reason, the Ninth Amendment should apply to the federal government as a federalism clause and both the State and federal governments for protecting the individual rights of its citizens.

Sunday, May 19, 2019

The Eleventh Amendment and the Contracts Clause

In holding with the spirit of the Declaration of Independence, the Northwest Ordinance, and the Constitution there can be only one purposeful enforcement of the Eleventh Amendment. The true purpose of the Eleventh Amendment is to protect States from being sued by citizens for enforcing constitutional State and federal laws or from States being sued by citizens for failing to enforce unconstitutional State or federal laws. This follows Shiras’s equality principle. Let’s evaluate a few examples:

A good example of the Court allowing a State to use sovereign immunity was Griffin v. School Board of Prince Edward County (1964). In this case, the Court held that a State government could not be sued for educational reasons. This case was about citizens suing a State for higher tax rates to improve education. A State is not violating any Constitutional clause or amendment for appropriating taxes for education. Using this logic, it can be argued that States could use sovereign immunity to prevent the federal government from integrating school systems during the 1960s. This is true. Later, this text will discuss in more detail why government mandates forcing the integration of schools during this era were wrong. In short, citizens should be able to choose the school they want for their children’s education. Citizens should not be forced to attend schools they do not want for the sole purpose of obtaining the integration results the government desires. Desegregation is a natural process whereas integration is a forced process.

The Eleventh Amendment would not face another landmark case until Seminole Tribe v. Florida (1996). This is good example of a case where States should not be able to hide behind the Eleventh Amendment to avoid a federal law. Congress passed the Indian Gaming Regulatory Act (IGRA) under the commerce clause. The Act imposed upon the States a duty to negotiate in good faith with Indian Tribes to generate a contract for gamming privileges. Congress certainly has the power granted under the commerce clause to pass this regulatory act since it applies to “Indian Tribes”. When the State of Florida refused to negotiate with the Seminole Tribe, they brought a suit against the State. But the conservative sect of the Court incorrectly asserted precedent set by Hans to deny Citizens the right to sue their State because Florida had Sovereign immunity granted by the Eleventh Amendment. In the majority opinion they thought Hans restricted the application of the commerce clause. Sure, this decision provides States more power over the federal Government, but it also restricts the power and sovereignty of its citizens. Since the IGRA was a federal law, States could only hide behind the Eleventh Amendment if 1. The IGRA was unconstitutional or 2. The IGRA was outside the scope of Congress’s constitutional authority. Since neither of the above conditions were met, the Eleventh Amendment should not apply.

Justice Souter wrote the dissent to Seminole Tribe which was joined by Justice Ginsberg, Stevens and Breyer. Souter rightly remarks “Because the plaintiffs in today’s case are citizens of the State they are suing, the Eleventh Amendment simply does not apply to them.” For this reason, he also believes Hans was also wrongly decided. Souter also points out in Federalist Paper 32 that States have no sovereignty over the regulation of commerce with Indian Tribes. Souter further acknowledges a proposed amendment by Massachusetts Representative Theodore Sedgwick after the Chisholm decision, but it was never ratified. The Sedgwick amendment would have denied “Any Citizen” the right to sue “any State”. Souter asks why this proposal was denied in favor of the one ratified in the Eleventh Amendment? Souter certainly pokes holes in the Hans holding. Finally, Souter admits “The American development of divided sovereign powers was made possible only by a recognition that the ultimate sovereignty rests in the people themselves.” This is certainly consistent with the Chisholm decision and Marshall’s remarks about Chisholm in Fisher. A year later, in Alden v. Maine (1997), the Court made similar arguments and came to a similar decision as in Seminole Tribe. Souter is correct, since the IGRA did not violate the Constitution then a State cannot hide behind sovereign immunity.

Why was the Eleventh Amendment passed? At constitutional ratifying conventions at least five States made serious objections that citizens of other States could sue States (Virginia, Massachusetts, New York, North Carolina, and Rhode Island). Rhode Island did not even attend the Constitutional Convention so their objections should be taken with a grain of salt. There are three main reasons for the passage of the Eleventh Amendment. The first reason was debt. All of these States had large sums of paper currency in circulation that the State was obligated to honor following the Revolutionary War. The second reason was to limit the federal judiciary power over disputes between citizens with other States. The final reason was small compared to the first two but there was some concern putting citizens on equal footing with the States. Therefore, the Eleventh Amendment was passed to protect State rights and immunity from federal judiciary interference, concerns over debt, and to hold State sovereignty at a higher hierarchical status than popular sovereignty.

Several obscure contract cases made their way to the Supreme Court around the time of the Chisholm decision and that was of great concern to States. Grayson v. Virginia (1796) was a land dispute between Virginia and an Indiana fur company. If Virginia lost the suit they would have been forced to pay a sum of between 1 and 2 million dollars (a huge sum in those days). In Vassall v. Massachusetts, Vassell was a Loyalist during the Revolutionary war. He fled to England during the war to avoid prosecution (and persecution). In this case, the State of Massachusetts confiscated his property during the war and Vassall wanted his property refunded after the war. In Cutting v. South Carolina, the Prince of Luxemburg wanted to recover debt on a vessel purchased by the State of South Carolina. And Huger v. Georgia involved a land dispute between a South Carolina company and Georgia. The South Carolina company held that Georgia breached on its contract conditions by later claiming it would only accept coined money instead of paper notes to pay for the land. James Jackson (future Georgia governor) wrote that Georgia had no authority to sell state lands. Jackson argued that such decisions are “retained by the people” of Georgia to act in a collective manner. Georgia was already outraged by the Chisholm ruling: its lower House passed a bill calling it a felony, subject to death, for anyone helping to enforce the Chisholm ruling. States began to fear that suits brought forward against States would include much more than contract disputes such as civil liabilities like in Vassell. States feared everyone would be going to the High Court demanding some form of restitution. The above cases were either settled or the suit was dropped following the adoption of the Eleventh Amendment.

Clyde Jacobs, disagrees with the premise States passed the Eleventh Amendment to seek shelter from debts since the federal treasury (under Alexander Hamilton) introduced a policy of “assumption”. Assumption allowed the federal government to take over “most” State debt incurred by the war effort (about 85%). Thus, in Jacobs view, State debt was minimal and most of it was being honored. Most cases where debts were not being honored were generally disputes over the confiscation of Loyalist property. Jacobs may be right, but without recourse, it is hard to imagine that the rights of some citizens were not violated by the passage of the Eleventh Amendment. In fact, in Cohens v. Virginia, Chief Justice Marshall explains the reason for the adoption of the Eleventh Amendment was for the sole purpose of denying out of State citizens any recourse from recovering their debts.

The Eleventh Amendment set a bad precedent by allowing States to default on contract obligations. Only six years following the passage of the Constitution the sovereignty of “We the People”, the rights “retained by the people” in the Ninth Amendment, and the rights “to the people” in the Tenth Amendments would be diminished forever. Did our Founders want the federal and State governments to have immunity powers similar to the King of England? Of course not, that is why Americans fought the Revolutionary War: To break away from this tyranny style of English rule. If taxation without representation caused friction between the King and colonies, it is hard to imagine that the colonies would be happy if England hid behind sovereign immunity to breach on contract obligations similar to how States were breaking their contract obligations. The objective of the Declaration of Independence and the Constitution was to provide ultimate sovereignty with the people with State and federal sovereignty to follow (in that order).

What is sometimes lost in the debate over the Eleventh Amendment is that, although it passed Congress overwhelmingly, the Senate asked for a textual change to the Amendment that the House rejected. That change read “where such State shall have previously made provision in their own courts, whereby such suit may be prosecuted to effect”. The rejection of this statement eliminated any chance that suits by citizen and foreign subjects against other States would ever be resolved in State courts. Hence, there was no recourse for citizens whose property rights or contractual rights had been violated at any level in the court system.

In sum, individual or popular sovereignty over State and federal government sovereignty is an important issue that will change for the worse over the course of United States history. When individual sovereignty is diminished at the expense of State and federal government power, it is without question, one of many things, that has led to the mitigation of contract rights and all rights in general. The Eleventh Amendment was the first step in the process of diminishing individual contract rights at the expense of the federal and State governments. The correct application of the Eleventh Amendment was described by Justice George Shiras in Prout. By applying his principles, the Eleventh Amendment would protect both individual citizens from State and federal encroachment (unconstitutional acts or laws) and collective citizens (States) from federal encroachment (unconstitutional acts or laws). Finally, it is important to note that Justice Bradley and Miller in their Slaughter House dissents correctly point out that the right of citizens to use the contracts clause or to sue a State were both fundamental rights.

Sunday, May 12, 2019

The Eleventh Amendment and the Contracts Clause (Part III)

The Court shifted gears in New Hampshire v. Louisiana (1883). The Court held the States of New York and New Hampshire could not circumvent the Eleventh Amendment by filing suit against Louisiana on behalf of its citizens. In this case, New York and New Hampshire tried to recoup defaulted loan payments from Louisiana for their citizens. Elliot v. Jumel (1883) was another Louisiana loan default case where the Court again shielded Louisiana from the suit using the Eleventh Amendment. In Cunningham v. Macon Railroad (1895), the Court provided Georgia sovereign immunity. In this case, when the railroad sold its ownership to the State, the State only honored corporate bonds held by one group of investors while neglecting another. Both Justices Stephen Field and John Harlan dissented. Field and Harlan wanted to protect citizens from breach of contract using the contracts clause. But the New Hampshire, Elliot, and Cunningham line of cases essentially provided the Eleventh Amendment priority over the contracts clause. This is something the Founders did not intend to happen. Again, no clause or Amendment in the Constitution has priority over any other. And just because the Eleventh Amendment was “newer” than the original text of the Constitution this does not mean it can supersede all other provisions, clauses, and amendments. In fact, the Ninth Amendment provides that all rights, enumerated or not, should face exactly the same levels of scrutiny or priority. By 1890, it was official, the Eleventh Amendment was shielding States who defaulted on contracts with citizens. What’s worse, in Ex parte Ayers (1887), the Court held that State officers could not be held liable for carrying out unconstitutional State laws. Most can agree with that outcome (the State should be liable), but where is the recourse for citizens who have been wronged? The Ayers precedent meant citizens cannot sue either the State or its officers who can both hide under the guise of the Eleventh Amendment allowing them to impair or default on contracts or worse yet, violate other fundamental rights.

In Reagan v. Farmers Loan and Trust (1894), the Court shifted gears again. Justice David Brewer initiated a new doctrine. The Brewer doctrine distinguished between governmental and pecuniary cases when identifying which State cases the Court may apply sovereignty immunity via the Eleventh Amendment. Reagan dealt with State railroad rates set by the Texas railway commission. The Court held the rates were too high in violation of the Fourteenth Amendment. The Court viewed the action taken by the State of Texas as being a pecuniary one and not a governmental one. The Brewer pecuniary doctrine was an unnecessary balancing test. After all, aren’t most of the contract clause / Eleventh Amendment disputed cases discussed in this section pecuniary in nature? Interestingly, the Court conjured up the Brewer doctrine so it did not appear as if the Court was justifying using the Fourteenth Amendment to supersede the Eleventh Amendment. In fact, Clyde Jacobs believes this would be acceptable and may explain why the Eleventh Amendment has more clout than the contracts clause. Once again, there is nothing in the structure of the Constitution which provides any provision, clause, or amendment priority over another.

Other cases such as Smyth v Ames (1898) and Prout v. Starr (1903) had similar outcomes as Reagan over railway rates. Fitts v. McGhee (1899) was the anomaly ruling during the era holding States could be provided Eleventh Amendment protection over setting predatory railroad rates. However, Ex parte Young (1908) established, without a doubt, the Reagan, Smyth, and Prout line of cases were the clear precedent. The Court would correctly hold that States violating property or other rights of individuals would not be tolerated for any reason. States could not seek shelter from these violations via the Eleventh Amendment. For example, in Ex parte Young, the Court held that State laws forcing railroad companies to set outrageous rates or face high fines, long jail sentences, and the forfeiture of property was way too extreme and a violation of both individual and corporate due process rights.

But why would the Supreme Court protect citizen rights via the Fourteenth Amendment but not through the contracts clause? One reason, discussed earlier, it is incorrectly believed that the Fourteenth Amendment is newer and trumps the Eleventh Amendment whereas the newer Eleventh Amendment trumps the contracts clause. Justice George Shiras dispels that myth in his opinion in Prout v. Starr: “The Constitution of the United States, with the several amendments thereof, must be regarded as one instrument, all of whose provisions are to be deemed of equal validity. It would, indeed, be most unfortunate if the immunity of the individual states from suits by citizens of other states, provided for in the 11th Amendment, were to be interpreted as nullifying those other provisions which confer power on Congress to regulate commerce among the several states, which forbid the states from entering into any treaty, alliance, or confederation, from passing any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or, without the consent of Congress, from laying any duty of tonnage, entering into any agreement or compact with other states, or from engaging in war, all of which provisions existed before the adoption of the 11th Amendment, which still exist, and which would be nullified and made of no effect if the judicial power of the United States could not be invoked to protect citizens affected by the passage of state laws disregarding these constitutional limitations. Much less can the 11th Amendment be successfully pleaded as an invincible barrier to judicial inquiry whether the salutary provisions of the 14th Amendment have been disregarded by state enactments.” Notice Justice Shiras writes the Eleventh Amendment is not meant to protect States from a “law impairing the obligation of contracts”. Despite Shiras opinion States have been allowed to impair or default on contracts by hiding behind the Eleventh Amendment. Clyde Jacobs correctly asserts the “contracts clause had no limitation on state power” but what’s worse, it continues to have no limitation on State power.

Hence, if any provision, clause, or amendment is violated then the law is unconstitutional using the Shiras equality theory. The only way a law is constitutional is when ALL provisions, clauses, and amendments within the Constitution are not violated (or true). Therefore, if the contacts clause is violated, it does not matter if the Eleventh Amendment is not violated, they both must be Constitutional for States to receive sovereign immunity. But by holding that sovereign immunity is true in a scenario where the contracts clause is violated, this is incorrectly providing more power to the Eleventh Amendment. The Eleventh Amendment should only apply and protect States if they are not violating the rights of citizens with unconstitutional laws. This follows the logic and precedent set forth in the Reagan, Smyth, Prout, and Young line of cases which withheld sovereign immunity from States for violating the Fourteenth Amendment. Although the line of cases from Reagan to Young were correctly decided the Brewer doctrine was wrong. The Brewer pecuniary doctrine is not needed to justify the holding in these cases: The Fourteenth Amendment is not trumping the Eleventh Amendment (they are both given the same weight).

Sunday, May 5, 2019

The Eleventh Amendment and the Contracts Clause (Part II)

John Marshall also believed that Article III, Section 2 should have been construed broadly at the time of the Virginia ratifying convention. But, as we shall see, Marshall changed his tune as Chief Justice because he was not expecting States to hide behind immunity to commit crimes against citizens. Besides, how do you protect the rights of citizens without yielding some degree of sovereignty to the people? This is what makes the Constitution, the Northwest Ordinance, and the Declaration of Independence so unique: these documents followed Lockean social compact theory by placing priority for individual sovereignty over government sovereignty.

In Chisholm, property was sold by a South Carolina citizen to the State of Georgia. The Court was correct to hold Georgia or any State should not default or impair their contractual agreements with citizens. Was the purpose of the Eleventh Amendment to protect States who default or impair contracts or violate the rights of citizens? Was the purpose of the Constitution to protect the government over citizens? Some believe the drafters of the Eleventh Amendment wanted to protect States from frivolous claims while at the same time maintaining peace and tranquility within the Union (eliminating disputes between States). If this is true, this is a weak argument. After all, it can create just as much friction between States if a neighboring State is taking advantage of its residents. Hence, the peace and tranquility argument can go both ways.

This text believes the best reason for the Eleventh Amendment is to protect States and citizens from federal government encroachment (judicial and legislative). Other than that, it suits no purpose. However, the amendment is hardly used for that reason.

In Hans v. Louisiana (1890), the Court’s Justice Joseph Bradley overruled the principals of sovereignty held in Chisholm by siding with the views held by a single justice in that decision: Iredell. This was not an easy decision since the Eleventh Amendment says “Citizens of another State” but Hans was from Louisiana, the State he was suing. Yet, the Court decided that the drafters of the Eleventh Amendment also meant to include “Citizens of the same State”. Interestingly, Justice John Harlan concurs with the decision in Hans but writes “The comments made about the decision in Chisholm v. Georgia do not meet my approval.” He would continue by writing “Besides, I am of opinion that the decision in that case was based upon a sound interpretation of the Constitution as that instrument then was.” Hans also went against Justice Marshall’s precedent set in Cohens v. United States (1821). In Cohens Justice Marshall held citizens can sue a State in which they reside. Of course, it seems odd that a State can be sued by its own citizens but a citizen of another State with a similar grievance has no recourse. That seems to be the compromise made by the drafters of the amendment. But the text is clear, if the Eleventh Amendment meant to provide States sovereign immunity from ALL suits introduced by citizens those words cannot be found in the amendment. In his Hans opinion, Justice Bradley also conveniently ignored Justice John Marshall’s opinion in Fletcher v. Peck (1810). Marshall said individuals suing State governments may no longer be in the Constitution, but Chisholm was the proper interpretation of the intent of the Constitution. In other words, the Eleventh Amendment does not change the meaning of the Constitution, it merely prohibits citizens (from different States) from suing States. Marshall’s exact words in Fletcher were: “The Constitution as passed, gave the courts of the United States jurisdiction in suits brought against individual States. A State, then, which violated its own contract was suable in the Courts of the United States for that violation. Would it have been a defense in such a suit that the State had passed a law absolving itself from the contract? It is scarcely to be conceived that such a defense could be set up. And yet, if a State is neither restrained by the general principles of our political institutions nor by the words of the Constitution from impairing the obligation of its own contracts, such a defense would be a valid one. This feature is no longer found in the Constitution, but it aids in the construction of those clauses with which it was originally associated.” Therefore, Marshall does not necessarily think Chisholm was completely repudiated by the Eleventh Amendment. In Marshall’s view, Chisholm was a sound decision whose principles still represent legitimate constitutional jurisprudence: Citizens are still sovereign within the structure of the Constitution. Put another way, the Eleventh Amendment was not an open invitation for States to violate the rights of its citizens.

In fact, over Marshall’s long tenure as Chief Justice he restricted the Eleventh Amendment by narrowly interpreting the text. In the line of cases United States v. Peters (1809) and Osborn v. Bank of the United States (1824), Marshall held that the Eleventh Amendment applied only to States and not State officers. In other words, State’s had to be the party of record in the case to obtain sovereign immunity. However, in Governor of Georgia v. Madrazo (1828) the Marshall Court backtracked a bit and established a new doctrine. The Court held the Eleventh Amendment can be applied to cases where the suit is brought against a State office but not to those cases where the individual character of the person holding that office is the purpose of the suit. And of course, in Cohens, Marshall held that the Eleventh Amendment did not apply to States being sued by citizens of the same State. Even the unfriendly Hans Court held in Lincoln County v. Luning (1890), that any subdivision of a State (in this case a county) is exempt from sovereign immunity.

After the Civil War, the Court moved in a positive manner to protect citizens from having States default on contract obligations. In Davis v. Grey (1873), the Court used Osborn precedent (State officers can be sued) and the substantive due process concept of “freedom of contract” in holding Texas violated a land contract with a local railroad. In other words, the State could not pass legislation that would allow a State to default on a property contract. Of course, many scholars like Clyde Jacobs criticized the opinion because it meant State officers could be held liable for State debts. Jacobs also did not like the substantive holding by the Court, but that was not much different than using the contract clause to strike down the law. However, Jacobs admits State officers have never been held liable for debt amassed by a State since the State would repay the debt before an officer was held accountable. And what is wrong with that: A State honoring its contract obligations with American citizens and foreigners. In Board of Liquidation v. McComb (1875), the Court held that the State of Louisiana repaying a bond debt at 60 cents on the dollar was an impairment of a contract. Again, the Court did not let States hide behind the Eleventh Amendment to default or impair their contract obligations with citizens. In the United States v. Lee (1882), the Court even held the United States could not be shielded from immunity in property rights cases because this is a fundamental right of all citizens.