Cohen says Scalia = Activist?

In today's New York Times, Adam Cohen has an opinion piece criticizing conservatives, Scalia, Tom DeLay, John Cornyn, and every other perceived evil he can find that offends the living Constitution. On closer examination, however, his argument collapses.

He begins by criticizing Tom DeLay, who last week "called for an investigation of the federal judges in the Terri Schiavo case, saying ominously: 'We set up the courts. We can unset the courts.'" This is, conveniently or not, a Constitutional fact of life. The first sentence of Article III, Section 1 of the Constitution -- the Judicial Article -- states that, "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." From the Framers, the principle is genius; from DeLay, however, it is ominous. The thoughts of the state courts being forced to interpret the byzantine federal code is mind-boggling, but it is part of the Constitutional design.

Cohen next sets his sights on Justice Scalia for his "mythical" adherence to originalism in the face of a "living" Constitution. Criticizing Scalia for his opinion in an 11th Amendment case, Cohen writes,

"The 11th Amendment says federal courts cannot hear lawsuits against a state brought by 'Citizens of another State, or by Citizens or Subjects of any Foreign State.' But it's been interpreted to block suits by a state's own citizens - something it clearly does not say. How to get around the Constitution's express words? In a 1991 decision, Justice Scalia wrote that 'despite the narrowness of its terms,' the 11th Amendment has been understood by the court 'to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms.'"

In his piece, Cohen conveniently omits key sections of the opinion, and wholly omits context, leaving the casual reader with the impression that Scalia invented this 11th Amendment doctrine fourteen years ago. Scalia actually wrote, in Blatchford v. Native Village of Noatak,

"Despite the narrowness of its terms, since Hans v. Louisiana, 134 U.S. 1 (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the 'plan of the convention.'" [Citations omitted.]

Scalia was actually adhering to a constitutional doctrine that had been in place for more than a century, that essentially says that states, as sovereigns, did not waive their immunity from lawsuits by citizens of their own states simply by entering into the Constitutional covenant. States cannot be sued in state courts by their own citizens without consent, and the Court has long held that the same principle applies in the federal courts. Besides, Scalia, unlike Justice Thomas, is loath to depart from the doctrine of stare decisis, or respecting long-standing judicial opinions, and has made that clear on a number of occasions. This criticism by Cohen, upon closer examination, deflates.

But he presses on, this time aiming at "The Supreme Court's conservative majority [which] regularly overturns laws passed by Congress, like the Violence Against Women Act and the Gun-Free School Zones Act." These laws were declared unconstitutional by the Supreme Court because Congress passed them under the Commerce Clause, which gives Congress the authority "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." This power relates solely to interstate commerce, not intrastate commerce.

In United States v. Morrison, the Court struck down a portion of VAWA that allowed victims of domestic violence to sue for civil damages in federal court under the Commerce Clause. Chief Justice Rehnquist wrote that "[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity." In United States v. Lopez, Chief Justice Rehnquist wrote, "The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Nothing in this opinion prevents state and local officials from making possession of a gun in a school zone a criminal act, but nothing in the Constitution empowers the Congress to do so. Cohen's cited examples of Scalia's "activism" are, rather, instances in which the Court has stated that the legislative branch of the federal government went beyond its specifically enumerated powers in the Constitution, striking the law as an improper exercise of power.

Cohen concludes with the thorn in the side of liberals, Bush v. Gore. He charges that "the court's conservative bloc trample[d] on the Florida state courts and stop[ped] the vote counting," a shockingly "activist" position. He conveniently omits that Scalia joined an opinion with Rehnquist and Thomas that would have based the ruling on Article II, Section 1, clause 2 of the Constitution, which states, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." Rehnquist noted that, "A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question," and, concluded that the Florida Supreme Court "significantly departed from the statutory framework in place" prior to Election Day, in violation of the U.S. Constitution. Cohen also does not state that O'Connor and Kennedy, the latter of whom he has referred to as a "mainstream conservative," declined to join this opinion based on the text, opting instead for an equal protection violation argument.

Cohen is simply off the mark with today's diatribe, but it must have felt good getting the frustration out.