I just started reading John T. Noonan’s “Narrowing the Nation’s Power: The Supreme Court Sides With the States” today. Anyone else read it? Your comments welcome.

The book brings up several compelling examples of cases where the Supreme Court has insisted on the sovereignty of states and therefore their immunity from prosecution under the law. The book points out the extension of this immunity to a wide variety of state institutions, including for example state universities. The apparent consequence is that a legal complaint brought successfully against a private employer may in many circumstance not be successful when brought against a state unless the court feels that Congress’ legislative remedies are “proportional and congruent” as determined by the court itself. The Supreme Court has taken this stance in cases involving patents, trademarks, and copyrights. Even more frightening to me, the Supreme Court has taken this stance in cases involving fundamental human rights like the right to be free from violent sex discrimination as in the case of a gang rape at Virginia Tech. It has also greatly limited Congress’ ability to legislate protection for the disabled and for the elderly when that protection was intended to extend to the state as well as the private employer for example.

The most troubling to me was the fact that so much of the defense of basic human rights is left to strange constructions and legal fictions that have arisen out of two hundred years of struggle between Congress and the Supreme Court, between the states and the federal government. The fact that our basic human rights depend on the ability to show damage to interstate commerce is troubling at best.

Seems like it’s time to start again with a constitution that guarantees human rights outright, not as a side effect of its fourteenth amendment applied precariously to some portion of the relevant cases.