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Jewish World Review March 13, 2001 / 18 Adar, 5761

Nat Hentoff

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Supreme Court rewrites Constitution -- 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.


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