reaching unnecessary constitutional decisions in Kimel!
Edward A Hartnett
hartneed at SHU.EDU
Tue Jan 11 17:02:56 PST 2000
My apologies for the typo in my last post. Obviously, I meant to say, "It was
equally proper for Stevens, Souter, Ginsburg and Breyer to decide that Congress
had the constitutional power and vote _against_ [not "for"] the state."
Edward A Hartnett <hartneed at SHU.EDU> on 01/11/2000 04:30:40 PM
Please respond to Discussion list for con law professors
<CONLAWPROF at listserv.ucla.edu>
To: CONLAWPROF at listserv.ucla.edu
cc: (bcc: Edward A Hartnett/LWF/SHU)
Subject: Re: reaching unnecessary constitutional decisions
Eugene Volokh asks:
If the seven Justices who thought Congress abrogated the immunity hadn't
reached the constitutional issue, I'm not sure how they could have cast
The seven who thought that Congress abrogated the immunity did have to reach the
constitutional question. It was proper, then, for O'Connor, Rehnquist, and
Scalia to decide that Congress lacked the constitutional power to abrogate and
vote for the state. It was equally proper for Stevens, Souter, Ginsburg and
Breyer to decide that Congress had the constitutional power and vote for the
What I object to is Thomas and Kennedy reaching the constitutional issue.
Having concluded that Congress did not intend to abrogate, they should voted for
the state without addressing the constitutional issue.
This procedure would decide the case: Five votes to affirm the judgment in favor
of the state; four dissenting votes to reverse.
This is a particular hobby horse of mine. If you are really interested,
[shamless self-promotion warning] see A Matter of Judgment, Not a Matter of
Opinion, 74 NYU 123 (1999).
More information about the Conlawprof