Mmmm, Burger (C.J.) |
09-14-2005 11:11 AM |
In the spotlight losing my religion.....
Quote:
Originally posted by Captain
On sovereign immunity, other than the limited sovereign immunity that is set out in the 11th amendment, where do you view sovereignty, and any powers relating to it, as arising? Sovereign immunity is not mentioned in the constitution itself. And what powers might be included in this concept of "Sovereignty".
You complained yesterday about the vagueness of the 9th amendment rights reserved to the people. Does the vagueness of some extra-constitutional powers (one of which is "Sovereign immunity" but I see an implied and broader "sovereign" set of powers as soon as you do that) being reserved to the government bother you? I'm not sure where you came down on the right to privacy, but I find it much easier to understand a concept of a right to privacy from a quick skim through the Federalist Papers than I do the concept of "sovereign powers" beyond those enumerated in the constitution.
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Are you talking state sovereign immunity or federal sovereign immunity? With states, a lot of it is now defined by statute under state law, so for the most part it's irrelevant. As for federal laws abrogating state sovereign immunity, while it was once an interesting question, now it's essentially a statutory drafting question (isn't it?) and Congress can either abrogate it or not, with courts deciding only whether they did or didn't, and applying a default rule of it didn't. Don't get me started on the 11th amendment, because 11th amendment jurisprudence has almost nothing to do with the 11th amendment's text or purpose. Instead it's judicial activism used to strike down laws on a basis for which there are 5+ votes to do so (whereas the proper basis--the 10th amendment--has supplied, at least most recently, only 4 votes, at best).
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