Posted by Orin Kerr:
Does the Constitution Require Congress to Pass Particular Statutes "By Negative
Implication"?:
http://volokh.com/archives/archive_2007_07_08-2007_07_14.shtml#1184359963
Today the Ninth Circuit amended its earlier habeas decision in
[1]Irons v. Carey, and I was intrigued by the following dicta that
Judge Noonan added to his concurring opinion:
The great writ exists, by negative implication, in Article I of the
Constitution of the United States. It was initially understood to
extend only to prisoners in the custody of the United States. It
was extended by statute in 1867 to embrace prisoners of a state in
custody in violation of the Constitution of the United States. It
may be that the right to federal review of a claim of
unconstitutional incarceration by a state is now to be considered
an essential of due process just as the existence of federal courts
to hear cases in numbers that it would be impossible for the
Supreme Court to handle alone may be viewed as essential to due
process. In each case, Congress exercising a power originally
designed for application to the national government may lie under a
constitutional obligation to exercise it more broadly for the
preservation of the Constitution. In each instance, Congress would
be called to enact a statute which is necessary.
Does anyone know what that is supposed to mean? It sounds like Judge
Noonan is suggesting that the constitution requires Congress to pass
particular kinds of statutes when necessary "for the preservation of
the Constitution" -- with the catch, I suppose, that Congress only
knows when a statute is necessary "for the preservation of the
Constitution" when a judge like John Noonan says so. Of course, it's
one thing to say that a federal constitutional right exists, and
therefore that courts can entertain a claim absent legislation. That's
common enough. But it sounds like Judge Noonan is speaking of an
affirmative obligation to enact a statute. Am I interpreting this
passage correctly, and if so, am I wrong in thinking that this is a
pretty radical idea? Unfortunately, Judge Noonan does not provide any
citations in this passage.
References
1.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/ED625DD354AA06128825731700548D0D/$file/0515275.pdf?openelement
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
