Tuesday, October 30, 2012

Upon further reflection, Justice Stevens still thinks he is right.

The Wall Street Journal Law Blog reports that retired Supreme Court Justice John Paul Stevens is still unhappy about being on the dissenting end of two cases from the 1990s.  However, Justice Stevens is not just sitting there wallowing in defeat.  Instead, Justice Stevens is proposing an amendment to the Constitution.

The cases, Printz v. United States and New York v. United States, had to do with whether state government officials could be required ("commandeer" is the word the New York opinion uses) to carry out federal regulations. The Supreme Court held in the two cases that state officials could not be commandeered to carry out federal regulations.  Justice Stevens dissented in both cases.  In Justice Stevens's view the Article VI of the Constitution makes federal law the supreme law of the land so state officials needed to carry out federal law.  Using one of the textualist approaches that prompted a lot our recent posts, Justice Scalia wrote for the Supreme Court in Printz that the supremacy clause only applies to state court justices.

Apparently not content to let Justice Scalia have the last word, Justice Stevens wants to amend Article VI, Clause 2 by adding the four words in bold and italics.
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges and other public officials in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Given our current political climate, I cannot imagine how Justice Stevens's proposed amendment would ever be passed by congressional super majorities or passed by any state legislatures let alone 75% of them. 

I wish Justice Stevens well on his quixotic mission to right what he sees as a wrong.  In the event the justice needs some inspiration, here is Jim Nabors singing "The Impossible Dream" from an episode of Gomer Pyle, U.S.M.C..

1 comment:

  1. Weird. It also seems that this a capitulation to textualism.


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