Pubdate: Sat, 26 Jun 1999
Source: Houston Chronicle (TX)
Copyright: 1999 Houston Chronicle
Contact:  http://www.chron.com/
Forum: http://www.chron.com/content/hcitalk/index.html
Page: editorial
Author: Donald Kaul

IS THAT A REBEL YELL IN THE HALLS OF JUSTICE?

It is increasingly apparent that the South, at long last, has won the Civil
War.

We Northerners gave them a good fight; I'll say that. For 130 years or more
we struggled on dozens of battlefields, real and virtual; and we won most
of the battles. We beat them on the field at Gettysburg and Vicksburg, we
passed constitutional amendments to cement those victories and we passed
laws, many laws, that gave expression to the cause we fought for.

In the process, we of the North achieved a prosperity undreamed of in the
South. We had the most powerful corporations, the best schools, the most
glittering cities.

All for naught. The Old South just kept grinding away, electing reactionary
politicians who saw to it that we appointed reactionary judges, until it
had taken back the country.

That was evident this week when the Supreme Court, in a series of
remarkable decisions, ruled that private citizens cannot sue states, not
even when those states act in violation of federal law. A state is a
sovereign entity, above any law but its own, the court said.

That means, to use the example offered by one of the cases decided this
week, that if Maine decides it doesn't want to pay its parole officers
premium pay for overtime, it doesn't have to, even though the Fair Labor
Standards Act of 1938 requires it.

It also means, to cite the other cases, that if a state decides to steal
your patent or engage in unfair business competition against you -- tough
for you. The rights of the state are superior to your rights as an individual.

The decision Wednesday comes perilously close to resurrecting the
discredited doctrine of nullification, whereby states can simply choose to
ignore federal law at their pleasure.

Makes you wonder what the Civil War was all about, doesn't it? If the
states are truly sovereign entities, why can't they secede from the union
whenever they want to? A lot of people argue just that, of course, but I
didn't expect to find five of them sitting on the Supreme Court at the
close of the 20th century.

The Supremes -- at least the majority, Chief Justice William Rehnquist and
Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas and Sandra
Day-O'Connor -- seem to be afflicted with their own bizarre version of the
Y2K problem. Instead of flipping back to 1900 when the calendar's odometer
turns to 2000, however, they're going back to 1800.

If you liked the Articles of Confederation, you're going to love 21st
century America.

The court was not content merely to trash the supremacy of the federal
government this week, it also had something for the disabled -- the short
end of the stick.

In another ruling, the court (by a 7-2 vote) decided that people who are
denied employment because of physical impairment cannot sue under the
Americans with Disabilities Act if their impairment is correctable.

Did you get that? Neither did I.

It means that if you are rejected for a job, for example, because of bad
eyesight, which is correctable with glasses to 20-20, you cannot say you've
been discriminated against because of your disability, because you're not
really disabled. I think the technical name for that is Catch-22.

So in one case the court said that people have federally protected rights,
but they can't enforce them. In the other it said that people considered
sufficiently disabled to be denied a job aren't disabled enough to
challenge that denial under the Disabilities Act.

That's quite a week's work, even for the Supremes.

The court ended its session this week, thank God. I hope the justices all
have a good rest over the summer. It sounds like they need it.

There was one good word for our side this week. The House took steps to
reform the Civil Asset Forfeiture Reform Act.

If that doesn't sound like good news to you, you don't know the act.

It allows federal agents to seize the assets of people suspected of crimes,
without a hearing, trial or, in some cases, an arrest. And it doesn't
guarantee the return of those assets even if the suspects are acquitted or
their cases dropped. To get their property back, the defendants must prove,
at their own expense, that their property was never linked to any criminal
activity.

A bill reported out of committee under the leadership of Rep. Henry Hyde,
R-Ill., would change all that.

Let's hope the Supremes don't find out about it. Individual rights make
them nervous.

Kaul is a syndicated columnist based in Washington, D.C.

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