Federalism, enforcing the 14th, et al.
I just got the chance to read the TN v. Lane decision that came down last month. Quick reminder: a paraplegic had to appear in court; there being no elevator, he crawled up the stairs to the second story court room; later, upon having to be in court again, he refused the crawling entrance to the halls of Justice; he (and another plaintiff) brought this suite against the state for lost opportunity to participate in the judicial process (this, then, is a quite literal due process case.)

State's defense was sovereign immunity under the 11th amendment. That, and Congress oversteped it's bounds with the Americans with Disabilities Act (under which the case is presented).

The ADA provides that states shant be immune from lawsuites brought under the Act. The question, then, is whether Congress had power to make that provision (and thus overcoming the general 11th amendment state immunity.) Only another Constitutional grant of power would so allow.

Under the 5th section of the 14th amendment, Congress can create laws that enforce the 14th amendment. That power, though, is limited. In City of Boerne v. Flores, the Court gave us the test for whether a law passed under the guise of enforcing the 14th amendment is Constitutional: the measures may not work a "substantive change in the governing law; the law must have "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."

So, the question here was whether article II of the ADA (dealing with access to civil institutions) meets that test. Justice Stevens, writing for the majority, says yes. The opinion's pretty straight-forward. It should be no suprise that, under the 14th amendment--which requires states to provide due process--should provide reasonable access to their courts.

What was interesting was Scalia's dissent. He calls for the end of Boerne's test of congruence and proportionality...because, in quite Scalian terms, the test is too mushy and uncertain. So watch out folks- we have an advocate for a new test in this important constitutional law area:

I yield to the lessons of experience. The "congruence and proportionality" standard, like all such flabby tests, is a standing invitation to judicial arbitrariness and policy-driven decisionmaking. Worse still, it casts this Court in the role of Congress's taskmaster. Under it, the courts (and ultimately this Court) must regularly check Congress's homework to make sure that it has identified sufficient constitutional violations to make its remedy congruent and proportional. As a general matter, we are ill advised to adopt or adhere to constitutional rules that bring us into constant conflict with a coequal branch of Government. And when conflict is unavoidable, we should not come to do battle with the United States Congress armed only with a test ("congruence and proportionality") that has no demonstrable basis in the text of the Constitution and cannot objectively be shown to have been met or failed. As I wrote for the Court in an earlier case, "low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict." ...
I would replace "congruence and proportionality" with another test--one that provides a clear, enforceable limitation supported by the text of §5. Section 5 grants Congress the power "to enforce, by appropriate legislation," the other provisions of the Fourteenth Amendment. U. S. Const., Amdt. 14 (emphasis added).
...The 1860 edition of Noah Webster's American Dictionary of the English Language, current when the Fourteenth Amendment was adopted, defined "enforce" as: "To put in execution; to cause to take effect; as, to enforce the laws."...Nothing in §5 allows Congress to go beyond the provisions of the Fourteenth Amendment to proscribe, prevent, or "remedy" conduct that does not itself violate any provision of the Fourteenth Amendment. So-called "prophylactic legislation" is reinforcement rather than enforcement.

So, there's something to watch in future opinions.

By the way... I wonder how Scalia feels about the 11th amendment and states' sovereign immunity. No where in the language of the amendment does it protect states against suite brought by citizens of that state--it only protects states againt suits from out-or-staters. Does Scalia embrace the judicially created in-state-citizen sovereign immunity?

Yes...he does.