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Narrowing the Nation's Power: The Supreme Court Sides with the States

John T. Noonan
Copyright Date: 2002
Edition: 1
Pages: 212
https://www.jstor.org/stable/10.1525/j.ctt1pq08d
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    Narrowing the Nation's Power
    Book Description:

    Narrowing the Nation's Poweris the tale of how a cohesive majority of the Supreme Court has, in the last six years, cut back the power of Congress and enhanced the autonomy of the fifty states. The immunity from suit of the sovereign, Blackstone taught, is necessary to preserve the people's idea that the sovereign is "a superior being." Promoting the common law doctrine of sovereign immunity to constitutional status, the current Supreme Court has used it to shield the states from damages for age discrimination, disability discrimination, and the violation of patents, trademarks, copyrights, and fair labor standards. Not just the states themselves, but every state-sponsored entity--a state insurance scheme, a state university's research lab, the Idaho Potato Commission-has been insulated from paying damages in tort or contract. Sovereign immunity, as Noonan puts it, has metastasized. "It only hurts when you think about it," Noonan's Yalewoman remarks. Crippled by the states' immunity, Congress has been further brought to heel by the Supreme Court's recent invention of two rules. The first rule: Congress must establish a documentary record that a national evil exists before Congress can legislate to protect life, liberty, or property under the Fourteenth Amendment. The second rule: The response of Congress to the evil must then be both "congruent" and "proportionate." The Supreme Court determines whether these standards are met, thereby making itself the master monitor of national legislation. Even legislation under the Commerce Clause has been found wanting, illustrated here by the story of Christy Brzonkala's attempt to redress multiple rapes at a state university by invoking the Violence Against Women Act. The nation's power has been remarkably narrowed. Noonan is a passionate believer in the place of persons in the law. Rules, he claims, are a necessary framework, but they must not obscure law's task of giving justice to persons. His critique of Supreme Court doctrine is driven by this conviction.

    eISBN: 978-0-520-93766-6
    Subjects: History

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. ACKNOWLEDGMENTS
    (pp. ix-x)
  4. PROLOGUE: A RECURRENT STRUGGLE IS RESUMED
    (pp. 1-14)

    If you were a writer whose short stories were published by an ethnic press affiliated with the University of New Mexico, you would be justifiably surprised to learn that, when your publisher disregarded your copyright, you could not sue for damages because the press was a sovereign entitled to a sovereign’s immunity from suit. If you were a professor of business at the University of Montevallo in Shelby County, Alabama, and were passed over for a raise because of your age, you would be understandably indignant to learn that your university, classified as a sovereign, could not be brought to...

  5. CHAPTER 1 The Battle of Boerne
    (pp. 15-40)

    The big break came withBoerne. I tell its story here against the background of the American devotion to religious liberty and the power granted Congress after the Civil War by the fourteenth amendment.

    A unique contribution of the United States to civilization is the invention of religious liberty. No nation before our own had moved beyond tolerance. No nation had made freedom of religion a cherished value. No nation had designated “exercise,” not mere opinion, as the value guaranteed. No nation had ever guaranteed in a written constitution that the nation would enact no law prohibiting the free exercise...

  6. CHAPTER 2 Superior Beings
    (pp. 41-57)

    Samuel Simple, a federal appellate judge in San Francisco, had completed his pilgrim’s process in the intricate forest of the first amendment as it touches on religion when he encountered the cases of the past five years restricting the power of federal law and invalidating new and old acts of Congress. The cases seemed to him to turn on a concept that had not been very prominent when he had gone to law school in the 1960s.

    As Simple thought about the cases, he observed to his law clerks, “There’s a background factor that’s at work that I have to...

  7. CHAPTER 3 Votaries
    (pp. 58-85)

    That afternoon Simple found himself at the St. Wenceslas Club where he could count on seeing Fred Frye and Aeneas Ketchum of his old firm of Fish, Frye & Ketchum. “You know about the sovereign immunity of states,” Simple began, “and you know that a state is immune from being sued if it wishes to be immune. Fred, you do a lot of work for brokerage houses. What does state immunity do to the state bond market?”

    “Not a thing,” said Frye shortly. “All munis are the same. I know, I know that the Supreme Court distinguishes cities from states,...

  8. CHAPTER 4 The Sovereign Publisher and the Last of the Menu Girls
    (pp. 86-101)

    Peter Roberts had an inspiration, or so it seemed to him. Everyone he knew was complaining about college tuition. It was rising every year everywhere. How could parents be sure they had put enough aside to assure their children a college education when the time came? Suddenly Roberts had the answer: Devise a scheme that would be devoted to saving parents’ money for college. Guarantee that when the time came there would be enough to pay for the education the parents wanted for their child.

    How was this feat to be accomplished? First, the cost of college, say, ten years...

  9. CHAPTER 5 Perhaps Inconsequential Problems
    (pp. 102-119)

    Age is an easy and obvious way by which people may be classified. School age and voting age are fixed by law; retirement age often has been. Distinctions of this kind appear to be natural and unavoidable, necessary for the functioning of society, and not invidious. Like any system of classification, they submerge the individual in the group and fail to recognize exceptions. They suppose the stereotypical. They act on the basis of the average. When the individual is merged in the average, does the individual suffer a loss of civil rights?

    In 1964, in the course of enacting the...

  10. CHAPTER 6 Gang Rape at State U.
    (pp. 120-137)

    Ever sinceSeminole Tribein 1996 , the Supreme Court had been moving to reduce the accountability of the states for not complying with federal legislation. A new issue was presented when federal legislation was enacted to remedy a perceived failure in the states’ ordinary administration of criminal justice—when, observing this failure, Congress declared that “all persons within the United States shall have the right to be free from crimes of violence motivated by gender” and provided for a civil action for damages against any perpetrator of such a crime. The Violence Against Women Act was passed in 1994...

  11. CHAPTER 7 Sovereign Remedy
    (pp. 138-156)

    Alexander Hamilton inThe Federalistfamously wrote that, of three “departments of power,” the judiciary was the “least dangerous to the political rights of the constitution.” The judiciary had no army; it had no way of raising taxes; it was dependent on the other branches for the laws it would enforce and for the appointment of its own members. Lacking force, money, and independence in choosing its membership, its capacity to do harm was limited.

    Hamilton, aware of aberrations in every government, did not say the judiciary could do no harm, and he underestimated its capabilities. He downplayed the advantage...

  12. NOTES
    (pp. 157-194)
  13. INDEX
    (pp. 195-203)
  14. Back Matter
    (pp. 204-204)