hello all,I just joined and i am interested in gaining my sovereign status back.I came across this item on accident,and it discusses the 11th Ammendment in a different light that my be of some help.
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<P align=center><FONT color=#000000 size=+1>American Association
of
University Professors</FONT></TD></TR></TBODY></TABLE></TD>
<TD vAlign=top align=middle bgColor=#990033 height=130><FONT color=#ffffff size=+4>11th Amendment
<FONT size=+3>AAUP Background Paper</FONT></FONT></TD></TR></TBODY></TABLE>
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To return to the Government Relations page.
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<FONT color=#000000 size=+2>The Sleeper Amendment: Sovereign Immunity </FONT>
<FONT color=#000000>It never made the top ten, but it may shake up the country even so.
The Eleventh Amendment -- the one that shields states from at least some kinds of suits -- is rising to prominence again. Since its adoption in 1793, the amendment's meaning and application have been stretched, reshaped, and perforated many times. The Eleventh Amendment says:
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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. </FONT></BLOCKQUOTE>
<FONT color=#000000>The amendment's
language provides that the citizens of one state may not sue another state in federal court. But more than a hundred years ago, the Supreme Court ruled that the
words of this particular amendment were unimportant -- what it
meant to say was that "federal jurisdiction does not extend to making defendants of unwilling states," no matter who is suing, and no matter what the issue is. On that basis, the courts have thrown out suits for monetary damages by citizens against their own state government. (Ironically, even though the amendment's language clearly refers to "suit(s) in law or equity," the courts have so far permitted suits against states for injunctive relief.)
But Federal law rules. In some instances, Congress can override states' immunity with legislation. Until fairly recently, it was understood that federal laws intrinsically directed at states -- such as the commerce clause (Article I, section 8) of the Constitution -- would override states' immunity, and would permit citizens to bring suit against states for violations of such laws. Copyrights and patents are also protected under the Commerce Clause, and have always applied to states and across state lines. States have also been held accountable for violating trust obligations to Native Americans, as well as for violating the equal protection or due process clauses of the 14th amendment.
Now the Court is changing all that. In a recent series of cases, the Supreme Court has begun to define a different balance between states' rights and federal legislative power. The Court may substantially narrow the reach of certain major civil rights laws, and may undermine the protections of intellectual property rights. Faculty members who work in public institutions could be particularly vulnerable to copyright and patent infringement (especially by their own institutions), or to unlawful discrimination on the basis of age, gender, religion, race or disability.
So far the Supreme Court has said that states
are immune to suits invoking the Indian Gaming Regulatory Act, the Patent Remedy Act and the Trademark Remedy Clarification Act, the Religious Freedom Restoration Act, and the Age Discrimination in Employment Act. Cases based on the Equal Pay Act and the Americans with Disabilities Act may be argued before the Supreme Court soon.
New rules. The Supreme Court now insists that Congress can override states' immunity from suit only when it follows a new set of rules. Specifically, Congress must:
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<FONT color=#000000>enact a law under the fourteenth amendment to enforce a constitutional right to equal protection, due process, or the voting rights specifically described in the fourteenth amendment (
Seminole Tribe of Florida v. Florida, 1996); </FONT></LI>[/list]<UL>
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<FONT color=#000000>make "unmistakably clear" its intention to abrogate states' rights under the 11th amendment; </FONT></LI>[/list]<UL>
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<FONT color=#000000>demonstrate that the legislation is responsive to a widespread record of "unconstitutional behavior" by states; and </FONT></LI>[/list]<UL>
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<FONT color=#000000>ensure that the requirements of the legislation are "congruent and proportional" to the injury that is being remedied or prevented. </FONT></LI>[/list]
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What's next? Other federal laws enacted before the Supreme Court's new rules were laid down will undoubtedly be reviewed and some will be found wanting. For example, two equal pay cases wait in the wings. Two cases based on the Americans with Disabilities Act were headed for Supreme Court review recently when they were settled. Copyright cases are being decided at the Court of Appeals level now. In January, in a case called
Chavez v. Arte Publico, the Court of Appeals for the 5th Circuit held that federal copyright laws do not prevail against states' immunity from federal suit.
If states are immune from suit, what else is there? Four other avenues are still open:
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<FONT color=#000000>So far, the Court has not invalidated injunctive relief. For example, a faculty member could sue to enjoin the sale of a work that she authored without her permission. </FONT></LI>[/list]<UL>
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<FONT color=#000000>State laws cover some employment and discrimination issues, and may need to be strengthened if they are to be adequate guardians of individual rights without the support of federal law. </FONT></LI>[/list]<UL>
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<FONT color=#000000>Contracts (individual or collective bargaining) and faculty handbooks may need to offer clearer protection and enforcement processes on issues such as ownership of copyright, and appropriate processes and criteria for reviews, promotions, etc. </FONT></LI>[/list]<UL>
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<FONT color=#000000>University policy and faculty governance processes may need to be improved and strengthened with regard to issues which have formerly relied on the enforcement of federal or constitutional law.</FONT></LI>[/list]
<FONT color=#000000>These recent Supreme Court cases create chaos in the enforcement of federal laws, some of which are based on constitutional authority that predates the eleventh amendment itself. The commerce clause, for example, including the specific powers for Congress to legislate on matters pertaining to patents and copyrights, has virtually
no meaning if it does not apply to states. This Court's peculiar brand of judicial activism will force states to play unexpected roles as final arbiters on issues that were once thought to be matters of constitutional right.</FONT> </DIV>
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This background paper is adapted from a recent Washington Watch column that appeared in ACADEME, May-June 2000
(posted: 5/00}</FONT></DIV>
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