Friday, January 27, 2006


The Central Virginia Community College decision

There is a lot to criticize in Justice Stevens’ majority opinion in Central Virginia Community College v. Katz but I think Justice Thomas’ opinion more than carries that burden. However, I would like to pick at Justice Stevens’ annoying selectivity in how he used certain numbers.

As part of the history lesson Justice Stevens gives us (in fact it is the bulk of his opinion), he writes the following:

“As discussed below, to remedy this problem, the very first Congresses considered, and the Sixth Congress enacted, bankruptcy legislation authorizing federal courts to, among other things, issue writs of habeas corpus directed at state officials ordering the release of debtors from state prisons.”


“Congress considered proposed legislation establishing uniform federal bankruptcy laws in the first and each succeeding Congress until 1800, when the first Bank­ruptcy Act was passed.”

Glossed over in all this is the actual length of time involved in getting Congress to pass an initial Bankruptcy Law. Noting it was the Sixth Congress or “each succeeding Congress until 1800” obscures the fact that it took twelve years to get this legislation passed. A casual reader of Justice Stevens’ opinion may instead get the impression that few things weighed on the collective minds of our first Congress’ as much as Bankruptcy legislation.

In the second example, he takes note of the aftermath of a particular case that led to the swift enactment of the 11th amendment and pointedly makes note of the length of time needed for adoption.

“Chisholm v. Georgia, 2 Dall. 419, the case that had so “shock[ed]” the country in its lack of regard for state sovereign immunity, Principality of Monaco v. Mississippi, 292 U. S. 313, 325 (1934), was decided in 1793. The ensuing five years that culminated in adoption of the Eleventh Amendment were rife with discussion of States’ sovereignty and their amenability to suit.”

Well, as Justice Thomas correctly noted in his dissent, ratification was complete by 1795. In fact it took all of 340 days from the time Congress approved the amendment in March 1794 until North Carolina made ratification official in February 1795. What Justice Stevens must be referring to is that official announcement of ratification was not made until January 1798, when President Adams did so to Congress. To the extent that the ensuing years “were rife with discussion of States’ sovereignty and their amenability to suit”, it seems fairly clear that States’ sovereignty was a very important concept and the states weren’t all that amenable to suit. But by including the extra three years, Justice Stevens can better make it seem that the Bankruptcy Act of 1800 was passed on the heels of the amendment and, “[y]et there appears to be no record of any objection to the bankruptcy legislation or its grant of habeas power to federal courts based on an infringement of sovereign immunity.” This is probably because everyone involved considered it a done deal with the ratification of the 11th amendment.

And, while I’m here:

From Justice Stevens' opinion: "The power granted to Congress by that Clause is a unitary concept rather than an amalgam of discrete segments." this the opening salvo in an emerging "Unitary Legislative" theory?.....And Justice Stevens' seems very taken with the idea that the 1st Congress considered Bankruptcy legislation...never mind they didn't actually do anything about it until the 6th Congress. Has the use of legislative history in judicial decision-making really gotten to the point where it's just the mere existence of a history that is important; the details are irrelevant.

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