Eleventh Amendment

“ The Court's distinction is untenable. The clear statement rule is not a mere canon of statutory interpretation. Instead, it derives from the Constitution itself. The rule protects the balance of power between the States and the Federal Government struck by the Constitution. Although the Eleventh Amendment spells out one aspect of that balance of power, the principle of federalism underlying the Amendment pervades the constitutional structure: The Constitution gives Congress only limited power to govern the Nation; the States retain power to govern locally. ”

“ The constant increase of governmental functions and of interference with individual liberty and action is certain to be a fruitful source of litigation in the future and will call for frequent consideration of the scope of the eleventh amendment. ”

“ The Eleventh Amendment, as does Article III, speaks in terms of "judicial power." The question that must therefore animate the inquiry in any actual Eleventh Amendment case is whether the federal court has power to entertain the suit. In cases in which there is no such power, Congress cannot provide it even through a "clear statement." Many of this Court's decisions, however, purporting to apply the Eleventh Amendment, do not deal with judicial power at all. ”

“ Whatever the result of the Supreme Court's review, its timely attention to the delicate interaction between the federal and state governments in the context of the Eleventh Amendment will be most welcome. ”

“ Congressional intent to abrogate Eleventh Amendment immunity must be expressed in the text of the statute; the Court will not look to legislative history in making its inquiry. Dellmuth v. Muth, 491 U.S. 223, 230, 109 S.Ct. 2397, 2400, 105 L.Ed.2d 181 (1989) . These cases establish a rule of constitutional law, based on the Eleventh Amendment. That rule was developed after the Parden decision, and was found in Welch to have undercut the reasoning of Parden and to require Parden's Eleventh Amendment holding to be overruled. ”

“ If the Constitution is to command the kind of respect which shall make it the steadfast bulwark of our institutions, the guaranty of our union and our welfare, it must preserve the character that befits such an instrument. The Eighteenth Amendment, if it were not odious as a perversion of the power of the Constitution, would be contemptible as an offense against its dignity. ”

“ In determining whether the injunction does deprive petitioners of their constitutional liberties, we cannot and should not lose sight of the nature and importance of the particular liberties that are at stake. And in reaching my conclusion I view the guaranties of the First Amendment [3] as the foundation upon which our governmental structure rests and without which it could not continue to endure as conceived and planned. [4] Freedom to speak and write about public questions is as important to the life of our government as is the heart to the human body. ”

“ Is not their example a sound precedent for those who are now constituting a new government of Americans and giving it power over their freedom, for those who made the Eighteenth Amendment and those who upheld its validity? ”

“ If a majority of both houses of Congress should, from any motive, be induced deliberately to exercise "powers not granted," what prospect would there be of "arresting the progress of the evil," by a vote of three fourths? But the Constitution does not permit a minority to submit to the people a proposition for an amendment of the Constitution. ”

“ The General Assembly of Virginia, in their resolve under consideration, observe, that when that state, by its Convention, ratified the Federal Constitution, it expressly declared, "that, among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States," and, from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, with other states, recommended an amendment for that purpose; which amendment was, in due time, annexed to the Constitution ”

“ Court has expressly declared to be the most important declaration in that Tenth Amendment, that we ourselves, the individual citizens of America, the “people” of the Preamble and of that Tenth Amendment, retain (secure from any valid exercise by any government or governments in the world and only capable of exercise by ourselves in our “conventions”) every power to interfere with the individual freedom of the American citizen except in the matters enumerated in the First Article. ”

“ Whether, in lieu of the federal and state governments, the national Constitution now proposed shall be substituted without amendment. Never, perhaps, were a people called on to decide a question of greater magnitude. Should the citizens of America adopt the plan as it now stands, their liberties may be lost; or should they reject it altogether, anarchy may ensue. It is evident, therefore, that they should not be precipitate in their decisions; that the subject should be well understood;—lest they should refuse to support the government after having hastily accepted it. ”

“ The Ninth Amendment obviously does not create federally enforceable rights. It merely says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." ”

“ Justice DOUGLAS that the Fourteenth Amendment makes the First Amendment applicable to the States and protects the freedoms of religion, speech, press, assembly, and petition from state abridgment with the same force and to the same degree that the First Amendment protects them from federal abridgment. ”

“ I ask the wholehearted cooperation of all our citizens to the end that this return of individual freedom shall not be accompanied by the repugnant conditions that obtained prior to the adoption of the 18th Amendment and those that have existed since its adoption. Failure to do this honestly and courageously will be a living reproach to us all. ”

“ First Amendment rights are not merely curtailed by the construction of the Act which the Court adopts. Today's ruling abolishes First Amendment rights on a wholesale basis. Protection of minority groups, if any, can be no excuse. ”

“ That purpose is thus expressed in the preamble to the Constitution: 'We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain [Pg 320] and establish this Constitution for the United States of America.' Every one of the objects therein specified is, in the baleful light of the rebellion, a plea for the amendment. ”

“ Immediately it is seen that, if the Eighteenth Amendment were the entire Constitution, there would be a government of the whole American people with an enumerated power to interfere with their individual human liberty. ”

“ Though strongly opposed to the adoption of that constitution, owing to what he regarded as its dangerous infringements upon the independent power of the states, he accepted the place of senator in hope of bringing about amendments, and proposed the Tenth Amendment in substantially the form in which it was adopted. ”

“ What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. ”

“ Not only were the terms "common defence and general welfare" unnoticed in the long list of amendments brought forward in the outset, but the Journals of Congress show that, in the progress of the discussions, not a single proposition was made, in either branch of the legislature, which referred to the phrase as admitting a constructive enlargement of the granted powers, and requiring an amendment guarding against it. ”

“ It is a mere incident of their teaching that they settle the plain fact that the supposed Eighteenth Amendment is not in the Constitution.
It is our own candid belief that very few Americans will be found to prefer the existence of the Amendment to the existence of America itself. ”

“ The choice expressed in the First Amendment in favor of free expression was made against a turbulent background by men such as Jefferson, Madison, and Mason — men who believed that loyalty to the provisions of this Amendment was the best way to assure a long life for this new nation and its Government. ”

“ The modern claim, the sole claim upon which the Eighteenth Amendment depends for existence, is that a state government, if it combines with enough other state governments, can go outside its own jurisdiction, outside the citizenship which chose the legislators in it, and issue its omnipotent command telling the citizens of America what they may do and may not do, “in all matters whatsoever.” ”

“ As I have shown, a citizen merely by virtue of citizenship does not enjoy political rights; neither the right to vote nor the right to hold office. The manifest object and purpose of the XIV. Amendment was to secure to all the American people equality of right in the States, equality of right under the United States, civilly, not politically ”