Please explain Scalia

[John Noble]

I'm not sure that a very-liberal would find it very satisfying, but if you
start with the premise that the Constitution is a limited grant of federal
authority, the presumption runs against the grant. If that's the
presumption, the implications of the grant would fall to the implications
of the limitations.

John Noble

At 10:39 AM -0600 11/27/01, Malla Pollack wrote:
>As a "very-liberal," I would appreciate help to prevent me from
>overlooking a rationale for Scalia's concurrence of today in Correctional
>Svcs Corp v. Malesko (No. 00-860, slip op issued Nov. 27, 2001).  Scalia
>(joined by Thomas) concurs in the 5-4 refusal by the Sp Ct to extend a
>Bivens COA to a private corporation running a federal prison.  Scalia
>points out that the Court abandoned the power to imply private COAs under
>statutes in Alexander v. Sandoval, 532 U.S. 275, 287 (2001).  He then
>says:  "There is even greater reason to abandon it in the constitutional
>field, since an 'implication' imagined in the Constitution can presumably
>not even be repudiated by Congress."
>    My problems is finding a non-political-agenda coherent way to square
>this statement with his willingness to imply into the Constitution limits
>on federal power over the states--both in the Sovereign immunity cases and
>(even harder for me) the Reconstruction Amendment cases.  Can anyone help?
>Perhaps I am just not familiar enough with the cases or the way Scalia's
>own opinions (as opposed to the Court's) dealt with the fine points.
>    Help anyone?
>
>Malla Pollack
>Northern Illinois Univ., College of Law
>DeKalb, Illinois 60115
>815-753-1160; (fax) 815-753-9499
><mailto:mallapollack at niu.ed>mallapollack at niu.edu