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Antonin Scalia’s Fraudulent “Textualism”


Scalia gesture

Patterico argues that federal judges not abiding by the tenets of ACA tooferism is not merely wrong, it’s an impeachable offense:

I would support all manner of reactions that the GOP will lack the guts to try — and that, if they did try, would cause them to get shellacked in the elections. For example, I would support impeachment of any and all of the Justices that voted in the majority of either King v. Burwell or Obergefell. That, in my view, is a proper constitutional reaction to lawless decisions (notwithstanding the disastrous precedent established by the Samuel Chase impeachment proceedings).

There are countless ways of demonstrating that this argument is being made in bad faith. But let’s go with my favorite one, the Rehnquist Court’s “sovereign immunity” jurisprudence. The Eleventh Amendment reads, in its entirety:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Despite what people who think that disagreeing with their interpretations of the 14th Amendment is an impeachable offense will tell you, most of the constitutional provisions whose interpretation leads to frequent Supreme Court cases are so broadly worded that the text does not yield technically “correct” or “incorrect” answers in a case of any interest. Reasonable people can disagree with what constitutes a “cruel and unusual punishment” or a denial of the “equal protection of the laws.” (This broad wording is necessary: an 8th Amendment that listed specific punishments rather than enacting a general principle against “cruel and unusual punishment” would essentially be a roadmap for how to get away with torture, in addition to becoming instantly obsolete.)

The 11th Amendment is an exception: it enacts a clear and specific restriction, not a general principle. It forbids a state from being sued in federal court without its consent by any citizen of another state or a foreign state. By implication, the amendment also answers another question: a state can be sued in federal court by a citizen of the state. The amendment could have been easily worded to ban any federal suit against a state; the fact that it didn’t logically requires the conclusion — absent another constitutional provision or act of Congress saying so — that citizens retain the right to sue their state government in federal court.

As it happens, in 1991 the author of the spittle-drenched dissent in King v. Burwell had the opportunity to address this very question. And:

Despite the narrowness of its terms, since Hans v. Louisiana, we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty.

If the Eleventh Amendment forbids citizens of a state from suing their state government, one might say, words have no meaning. But that’s what the Court ruled.

At this point, I might be accused of committing a tu quoque fallacy. Since I’ve been consistently critical of the ridiculous line of “sovereign immunity” cases, am I therefore required to declare that the card says “Moops”? Of course not. In the ACA case, the “Exchange established by the State” language is embedded within a statute that takes up 1,000 pages of the U.S. Code. It is an elementary principle of statutory construction that statutory language must be read in the context of the statute as a whole. In this case, reading the isolated phrase as denying tax credits on exchanges established by the federal government on the state’s behalf produces an absurd result that contradicts both other specific provisions of the law and the general purpose of the statute. Which is why 6 members if the Supreme Court, including one justice who believes the law to be unconstitutional, refused to bite this particular lemon.

With the 11th Amendment, conversely, there is no other text — it says what it says in one sentence and that’s it. The text read properly does not produce an absurd result; it is perfectly logical to make state governments accountable in federal court to their own citizens but not to those in of other states or nations. As Justice Souter explains in his dissent in Seminole Tribe Congress considered but rejected language that would bar suits against a citizen’s own state. Conversely, no legislator involved with the ACA ever suggested the preposterous idea of going to the trouble of establishing a federal backstop that wouldn’t work; that idea is solely an ex post facto invention of the statute’s most fanatical opponents.

Justice Scalia attempts to get around all this by making a structuralist argument about the meaning of the Constitution as a whole. I don’t think there’s anything wrong with this method of interpretation (although Scalia’s King dissent would rule it out.) But in this case, the argument is lousy. It’s true that states retain their “sovereignty,” but the idea that royalist assumptions of immunity for states that violates the rights of citizens upon whose consent the legitimacy of the government rests is an essential element of sovereignty in a democratic state is the purest question-begging, and perverse question-begging at that. If anything, the presumption created by a Constitution that “guarantee[s] to every State in this Union a Republican Form of Government” should be the opposite. There’s certainly not nearly enough there to overcome the very strong presumption created by the specific wording of the Eleventh Amendment.

And yet, I can find nothing in Patterico’s archives calling for the impeachment of Scalia and Thomas (or Alito, who also shares this misreading of the Eleventh Amendment.) Indeed, as a first approximation the group of people fulminating against King who have anything critical to say about the “sovereign immunity” cases is a null set. I wonder what could possibly explain this?

Oh, and as for the idea that the Obergefell majority should be impeached, I have a certain equal protection case to discuss…

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