“Some states may not have made it easy for handicaps to vote, but that is not reason enough for Congress to subject states to lawsuits.”

Justice Antonin Scalia

Tennessee v. Lane Oral Arguments:
Why are the Civil Rights of People with Disabilities a “States Rights” Issue?

Antonion Scalia’s statement about “handicaps” seems to show how far our Supreme Court Justices are away from the understanding of the Civil Rights Movement and the role of people with disabilities. Americans are concerned that the Court, which was once seen as active in the move to Civil Rights, has become retroactive.

The Justices could expect the balance of civil rights to be more clear when they consider the reason that has brought Tennessee v. Lane to the highest Court. The 11th Amendment and “sovereign immunity” both predate the Civil War and one might think that they are issues clearly defined in law, history and blood. They are not. These primeval Constitutional subjects have been given new life in modern Court activism to erode Civil Rights.

The ADA “exceeds Congress’ enforcement authority,” argued Tennessee Solicitor General Michael Moore. Although the democratically elected Congress and President George H. W. Bush believed that the legislation was necessary to prevent discrimination, the un-elected Attorney General of Tennessee did not like the law.

Moore said to the Court that US states “were not engaged in a widespread pattern of violations.” Of course this is not true. US states have engaged in a long history of discrimination; as a matter of fact, states are the worst discriminators. States have systematically denied fundamental rights of property, due process, marriage and family, and sterilized and institutionalized people with disabilities against their will. 

The reason Moore seems to assert that states are not guilty of a widespread pattern of violations is because the legislative history created by Congress does not satisfy the activist Court. Tennessee is not claiming that states do not discriminate, have a history of discrimination or even that states are not the worst discriminators; only that the legislative history created by Congress lacks substantiation.

Rehnquist noted in Alabama v. Garrett that Congress had put together only “minimal evidence of unconstitutional state discrimination,” but does not hint on how much evidence is needed, or why the Court turned away from the clear context of the law in favor of the artificial creation of a legislative history.

“As I have said, I object to the use of legislative history on principle,” wrote Antonin Scalia in his book A Matter of Interpretation, “since I reject intent of the legislature as the proper criterion of the law. [A Matter of Interpretation, Federal Courts and the Law; Princeton University Press 1997 page 31]”

Congress expressly abrogated the States' Eleventh Amendment immunity to private suits in federal court. But the textualist Supreme Court Justice seems to easily ignore the wording of the law and the clear intent of Congress to side disingenuously against the handicaps. 

“A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter [42 U.S.C. 12202].”

“Can we really just decree that we will interpret the laws that Congress passes to mean less or more than what they fairly say?” asks Scalia, “I doubt it. [page 29]” 

It seems clear that US states do not claim “sovereign immunity” because they are attempting to redefine their federal role in a post-Civil War Republic. States will gladly take Federal money, however, states claim states rights when pesky Civil and Constitutional Rights come into play.

Our Supreme Court is stepping back into 150 years of ambiguity and revisiting the time of Dredd Scott and Plessy v. Ferguson, stagnating the Civil Rights Movement with questions of states Rights. We are sacrificing our humanity to save states money. 

-Tim Wheat