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By John Burton
The U.S. Supreme Court term
ended just before the Independence Day holiday, allowing the justices and
their law clerks to enjoy barbecues and fireworks with minds free from the
weight of pending decisions. Unfortunately, this year they left our minds
burdened with concern about the ramifications of the instantly infamous trio
of "sovereign immunity" cases.
The majority opinions in College
Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 99 Daily
Journal D.A.R. 6359, Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav.
Bank, 99 Daily Journal D.A.R. 6371, and Alden v.
Maine, 99 Daily Journal D.A.R. 6329, all decided June 23, reject the
ideals of the Declaration of Independence - a perverse salute to the last
July 4 of the millennium.
The Declaration of
Independence and the U.S. Constitution are products of the Enlightenment, a
period from about the beginning of the 18th century until the late 1780s. The
Enlightenment was the philosophical and political outcome of the
extraordinary scientific advances that over the previous two centuries had
fundamentally altered the conception of the universe and humanity's role in
it.
Fascinated with the power of
thought, the great figures of the Enlightenment - and their devoted followers
among the nation's founders - generally believed that reason was capable of
resolving the problems that had troubled mankind for ages and of improving
the human condition. Among the great tasks of reason, according to the
Enlightenment thinkers, was to establish equality by eliminating feudal
privileges, and to secure for all their inalienable rights to life, liberty
and the pursuit of happiness.
These are the ideals that
Independence Day commemorates, and yet they are the very one the Supreme
Court majority - Chief Justice William Rehnquist and Justices Anthony
Kennedy, Sandra Day O'Connor, Clarence Thomas and Antonin Scalia, their
intellectual leader - hold in contempt.
Take the majority's
despicable treatment of James Wilson, a Pennsylvanian who signed the
Declaration of Independence, helped draft the Constitution and served as one
of the Supreme Court's first associate justices. George Washington called
Wilson "as able, candid, and honest a member as any in Convention."
The National Archives and Records Administration Web site's founding fathers'
page described Wilson's influence as "probably second only to that of
[James] Madison."
Wilson enters this debate, a
full 200 years after his death, because Justice David Souter, the
intellectual leader of the four dissenters, relied on him to refute the
majority's assertion that "the sovereign's right to assert immunity from
suit in its own courts was a principle so well established that no one
conceived it would be altered by the new Constitution."
"Sovereign
immunity," according to Wilson's opinion in Chisolm v.
Georgia, 2 Dall. 419 (1793), "is only a branch of a much more
extensive principle, on which a plan of systematic despotism has been lately
formed in England, and prosecuted with unwearied assiduity and care. ... The
principle is, that all human law must be prescribed by a superior. ...
[A]nother principle, very different in its nature and operations, forms, in
my judgment, the basis of sound and genuine jurisprudence; laws derived from
the pure source of equality and justice must be founded on the consent of those,
whose obedience they require. The sovereign, when traced to his source, must
be found in the man."
"With this rousing
conclusion of revolutionary ideology and rhetoric," Souter wrote,
"Justice Wilson left no doubt that he thought the doctrine of sovereign
immunity entirely anomalous in the American Republic." He could have
added that the doctrine is equally anomalous with the Enlightenment ideals on
which the founders erected the Republic, and sounded the tocsin for a new
epoch of world history, one in which feudal privileges no longer stood in the
way of social equality.
What does the Supreme Court
majority feel about Wilson's rousing revolutionary ideology and rhetoric?
Nothing but disdain. Kennedy wrote in Alden:
"Wilson ... expressed a radical nationalist vision of the constitutional
design that not only deviated from the views that prevailed at the time but,
despite the dissent's apparent embrace of the position, remains startling
even today."
Even more disturbing is
Scalia's majority opinion in College Savings Bank. He
singled out Souter's dissent in Alden as
"despoiling our northern woods," in other words, worth not even the
paper it was printed on. Scalia claimed that the United States was
established by people "whose north star was that governmental power,
even - indeed, especially - governmental power wielded by the people, had to be
dispersed and countered."
Scalia's expressed rejection
of democratic ideals echoed Robert Bork's "Slouching Towards
Gomorrah." Bork, who came within a handful of votes of joining Scalia on
the court instead of Kennedy, wrote, "The proposition that all men are
created equal said what the colonists already believed, and so ... equality
became 'the single most powerful and radical force in all of American
history.' That is true and ... it is also profoundly unfortunate."
The majority of the Supreme
Court finds "startling" the notion that the people, and not the
states they erect, are "sovereign," while their ideological cohort
Bork finds the struggle for equality "unfortunate." I do not agree
with either position; I wager that most Americans do not either.
John Burton is a Pasadena
civil rights attorney.
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