05 August, 2008

The Candidates and the Eleventh Amendment

This is the tenth post in an ongoing series regarding the major Presidential candidates and their views on civil liberties.

This post is about Senator John McCain's (R-AZ) and Senator Barack Obama's (D-IL) views pertaining to the Eleventh Amendment to the U.S. Constitution. Regular readers were no doubt expecting this post to deal with the Ninth Amendment, but I have decided to deal with the Ninth and Tenth Amendments last.

Except for those two, we've finished the Bill of Rights, so now we're definitely beyond the knowledge of most Americans. What's the text of the Eleventh Amendment?

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.

Some might say this is both a "federalist" and an "anti-Federalist" amendment, since defines sovereign immunity from federal courts on the one hand while limiting the sovereignty of the states on the other. However, it does protect one important right, the right of citizens of one state to sue another state.

As an aside, it also says that Federal Courts have no jurisdiction in any suits between persons and states (giving back to the Federalists after taking away in the other part). Some people claim that this means that the U.S. Supreme Court had no jurisdiction in Bumediene v. Bush, a case we've noted many times in reference to granting rights to Guantanamo detainees. Of course, one could also argue that the Eleventh Amendment would prohibit the U.S. Supreme Court's involvement in many cases, including Bush v. Gore. This part of the Amendment is confusing to scholars and justices alike and appears to contradict, rather than clarify, Article III of the Constitution.

As usual, we'll start with Barack Obama.

There's only one thing I can find pertaining to Barack Obama and the Eleventh Amendment and that is his Senate co-sponsorship of the Employment Non-Discrimination Act (ENDA). Critics claim that since it allows Federal civil damage actions against States, that it violates the Eleventh Amendment. Interesting. How do we judge this? It grants civil liberties, yet opposes the constitution? Since we are looking at this from a "libertarian perspective", it seems relevant to say that (from that perspective) ENDA is right and the Eleventh Amendment is wrong.

And now to John McCain.

Once again, there's little here to go on, however McCain opposed ENDA.

That's all I've got and it's not much.


Obama: B+. He starts with a B, since there is so little to go on here, but moves up a tick due to support of ENDA.

McCain: B-. He starts with a B, since there is so little to go on here, but moves down a tick due to opposition of ENDA.

Eleventh Amendment: Advantage Obama

Results so far:

Obama McCain
First Amendment* F
Second Amendment D- C-
Third Amendment B B
Fourth Amendment D+ D+
Fifth Amendment D+ B-
Sixth Amendment B B
Seventh Amendment C C
Eighth Amendment C B
Eleventh Amendment B+ B-

* Obama's First Amendment grade lowered as documented in this post.

UPDATE: Obama's First Amendment grade lowered to F as documented in this post.

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