Please explain Scalia
jnoble at DGSYS.COM
Tue Nov 27 17:11:02 PST 2001
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.
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?
>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
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