…is this the opening salvo in an emerging “Unitary Legislative” theory?….

And Justice Stevens’ seems very taken with the idea that the 1st Congress considered Bankruptcy legislation…never mind they didn’t actually do anything about it until the 6th Congress (or, for those who can do the math, over ten years later). Has the use of legislative history in judicial decision-making really gotten to the point where it’s just the mere existence of a history that is important; the details are irrelevant.

Because the Fourteenth wasn’t produced by the Convention? Stevens’s argument would seem to work only for the “original” Constitution.

KR: I guess he might have meant that, but it still doesn’t make much sense. The reason Congress can subject States to suit under the 14th Amendment is basically the same — it is part of the constitutional plan to which the states essentially agreed.

The 1867 Act was enacted to enforce the Thirteenth Amendment, to rescue freedmen still being held in slavery despite the emancipation. It had nothing to do with collateral attack on state criminal judgments.

TG resonds: Justice Stevens was not in Court. He likely was in Florida.