Denise Chavez, United States of America, Intervenor v. Arte Publico Press Nicolas Kanellos University of Houston

WISDOM, Circuit Judge,

dissenting:

I respectfully dissent.

I have thought about this case a great deal — rarely with any feeling of satisfaction.

Now, nearly three and one-half years after this ease was argued, I find myself where I started. I conclude that a state may be sued in federal court under the copyright and trademark laws. 1 I think now that the panel acted prematurely when we concluded that the Seminole case overruled Parden; this is not a case in which Parden waiver applies. Nevertheless, Congress has authority under section 5 of the Fourteenth Amendment to abrogate state sovereign immunity in copyright and trademark infringement cases. 2

I. PARDEN WAIVER

The majority concludes that “we must ‘drop the other shoe’ and declare that Congress cannot condition states’ activities that are regulable by federal law upon their ‘implied consent’ to being sued in federal court”. 3 I disagree. Only the Supreme Court has the authority to overrule one of its decisions. 4 Over a period of many years, the Court has limited Parden, but Parden has not been overruled. The reasons offered by the majority to justify its conclusion that Parden has been overruled are unpersuasive. The Supreme Court did not necessarily reject Justice White’s vote in Union Gas when the Court overruled Union Gas in the Seminole case. The Seminole decision does not support the conclusion that Justice Scalia’s dissent in Union Gas has been elevated to the law of the land. And, there is a place, although limited, for the Parden waiver doctrine after Seminole. In the wake of Seminole, however, Parden does not apply in this ease before this Court.

*292 A.

The Union Gas majority position was the product of a four-justice plurality opinion (upholding the use by Congress of Article I powers to abrogate state sovereign immunity) plus Justice White’s separate opinion (based upon the Parden waiver doctrine). 5 The Seminole Court expressly overruled Union Gas. 6 In Chavez II, we wrote: “We cannot understand how the Court could have overruled Union Gas only in regard to the 4-vote plurality opinion and not in toto, and we do not believe it attempted such a feat.” 7 I am now persuaded that the Seminole Court intended this feat.

First, as a matter of pure mathematics, the Supreme Court needed to reject only one vote to overrule Union Gas. In the absence of a single vote (from the plurality or Justice White), Union Gas would not be a majority position. It was not mathematically necessary for the Seminole Court to reject both the plurality opinion and Justice White’s separate opinion to overrule Union Gas. The Supreme Court wrote, at length, attacking the reasoning of the Union Gas plurality, but the Court made no effort to criticize Justice White’s reasoning. In fact, the Court partially relied upon Justice White’s opinion to conclude that the Union Gas majority was entitled to a diminished level of respect under the principle of stare decisis. 8 In these circumstances, it is doubtful that the Seminole Court intended to reject Justice White’s position.

If the Seminole Court intended to reject Justice White’s separate opinion in Union Gas as well as the Parden waiver theory upon which it relies, the Court would have done so expressly. The Supreme Court knows the language to use in overruling a decision. The Seminole Court expressly overruled Union Gas in clear language. 9 In Welch v. Dept. of Highways & Public Transp., when the Court intended to limit the reach of Parden, the Court did so expressly. 10 The Welch Court wrote: “[T]o the extent that Parden ... is inconsistent with the requirement that an abrogation of Eleventh Amendment immunity by Congress must be expressed in unmistakably clear language, it is overruled.” 11 In Seminole, however, the Court did not expressly reject the Parden waiver doctrine. Instead, the Court cited Parden for the “unremarkable, and completely unrelated, proposition that States may waive their sovereign immunity”. 12 It would have been remarkable, indeed, if the Seminole Court had cited Parden to confirm that a state may waive its sovereign immunity when the Court intended to reject the manner in which the Court found a waiver in Parden.

B.

The Seminole decision does not support the view that the Court adopted Justice Sca-lia’s Union Gas dissent in its entirety. Professor Kit Kinports has written on this lack of support:

“[T]he Seminole Tribe majority did not even cite or refer to [Justice Scalia’s dissent], much less endorse it. In fact, the only reference to the implied waiver doc *293 trine in the majority opinion in Seminole Tribe suggests that the Court consciously limited its decision to the abrogation context. The Seminole Tribe majority criticized the Union Gas plurality for ‘misreading ... precedent’ by relying on Parden to support its holding that the Commerce Clause gave Congress the power to abrogate the Eleventh Amendment. The principle that states may waive the Eleventh Amendment (the issue of Parden) is ‘completely unrelated’ to the abrogation doctrine (the issue in Union Gas and Seminole Tribe), the Court explained in Seminole Tribe.” 13

Prof. Kinports also rejects the notion that the Court adopted Justice Scalia’s position on the merits. Justice Sealia’s dissent states that:

“At bottom, then, to acknowledge that the Federal Government can make the waiver of state sovereign immunity a condition to the State’s action in a field that Congress has authority to regulate is substantially the same as acknowledging that the Federal Government can eliminate state sovereign immunity in the exercise of its Article I powers — that is, to adopt the very principle that I have just rejected.” 14

Justice Scalia concludes that the differences between Parden waiver and abrogation are “verbal distinctions” 15 . The concern that Justice Scalia expresses is that a broad interpretation of the Parden waiver doctrine could lead to an end-run around the position accepted in Seminole — that Congress could not use its Article I powers to abrogate the state’s immunity.

Parden waivers would not necessarily allow an end-run around the Seminole decision because Parden waivers are very limited. A brief discussion of the refinement of the Par-den waiver sion’s proper, limited role.

C.

Although states are immune from suit in federal court under the Eleventh Amendment and Hans. v. Louisiana, 16 that immunity is not absolute. A state may waive its immunity and consent to a suit in federal court. 17 Or, in limited circumstances, Congress may abrogate state immunity through legitimate legislative action. 18 Waiver and abrogation are separate theories. The Seminole Court recognized this when it cited Par-den for the unremarkable proposition that a state may waive its immunity. The decision in Seminole is based upon the abrogation doctrine. Congress may not unilaterally waive state immunity through the exercise of Congress’s Article I powers. Seminole does not suggest that a state is powerless to waive its immunity through voluntary action.

The Parden Court held that a state may waive its immunity through voluntary action. Every justice, including those who agreed with Justice White’s dissent, accepted this position. The disagreement in the case was over the level of specificity needed to effect a waiver. The majority concluded that “when a State leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation.” 19 In dissent, Justice White focused upon the need for a clear statement of Congress’s intent to condition a state’s participation in an industry upon the state’s waiver of its immunity. Justice White wrote:

“[T]he Court has indicated that waiver of sovereign immunity will be found only where stated by ‘the most express lan *294 guage, or by such overwhelming implication from the text as would leave no room for any other reasonable construction.’ If the automatic consequence of a state operation of a railroad in interstate commerce is to be waiver of sovereign immunity, Congress’ failure to bring home to the State the precise nature of its option makes impossible the ‘intentional relinquishment or abandonment of a known right or privilege’ which must be shown before constitutional rights may be taken to have been waived.” 20

The differences in these views is important. The majority approach is similar to the abrogation approach rejected in Seminole in that Congress could waive Eleventh Amendment immunity whenever the State acts outside of its core governmental area. The dissent’s position is different, focusing upon the traditional concept of waiver. Unless the state is clearly informed that its actions will result in the loss of immunity, the dissent would not find a knowing and voluntary waiver of state sovereign immunity.

Justice White’s view was accepted by the Court in Atascadero State Hosp. v. Scanlon. The Atascadero Court found that the state had not waived its immunity when it accepted federal funds under the Rehabilitation Act because “[t]he Act likewise falls short of manifesting a clear intent to condition participation in the programs funded under the Act on a State’s consent to waive its constitutional immunity.” 21 In Welch v. Dept. of Highways & Public Transp., the Court confirmed this point when it wrote: “[T]o the extent that Parden ... is inconsistent with the requirement that an abrogation of Eleventh Amendment immunity by Congress must be expressed in unmistakably clear language, it is overruled.” 22

The Court narrowed Parden further, finding that the states do not waive their immunity by engaging in core governmental functions. 23 This limitation is consistent with the requirement of a clear expression of intent to waive a state’s immunity. By engaging in core functions, the state has shown no intention, one way or the other, to waive its immunity. The state has merely shown its intent to operate as a state.

Through repeated refinement of the Par-den waiver doctrine, the Supreme Court has shown that this doctrine is grounded in the concept of waiver, not abrogation. These two concepts are “completely unrelated” 24 although they have been confused because of their parallel development. 25 In Seminole, the Court continued to acknowledge that a state may waive its immunity, citing Parden for this position. Nothing in Seminole prevents a state from voluntarily waiving its immunity by engaging in non-core functions so long as the intent to waive the immunity is clear. “The Court’s decision in Seminole Tribe breathes new life into the implied waiver doctrine, furnishing a reason to distinguish once again between cases of implied waiver and eases of abrogation.” 26

Prof. Chemerinsky, writing before Seminole, summarized Parden's limited role as follows:

“In short, constructive waiver of Eleventh Amendment immunity is virtually nonexistent. If it ever will exist, it will be in situations where Congress indicates a clear intent to make states liable in a federal court if they engage in a particular activity, and then a state voluntarily chooses to engage in that conduct. The congressional desire to make states liable must be in ‘unmistakable language in the statute itself and it must be an area where the *295 state realistically could choose not to engage in activity.” 27

After Seminole, the Parden waiver doctrine should have the same limited role. Only when the state is engaged in non-core functions can it “choose not to engage in activity”. This severe limitation on the use of Parden provides a partial response to Justice Scalia’s criticism that, through the Parden doctrine, Congress could waive state sovereign immunity in areas where it could not abrogate that immunity directly. When the Supreme Court issued Seminole, then, it did not necessarily overrule Parden. There is room for the two decisions to co-exist. 28

D.

Publishing for profit is outside of the state’s core governmental functions. In the circumstances of the present case, however, Texas did not consent to be sued in federal court through its actions. The language used to waive state sovereign immunity in the copyright and trademark laws is written as an absolute, not as a condition. 29 On their face, these provisions are the type of unilateral abrogation of sovereign immunity using Article I powers that were condemned in Seminole. 30 To conclude that these laws provide clear notification to the States as to which activities will result in the loss of sovereign immunity is troubling. 31 The Court has been clear that a waiver will not be found lightly. 32 This is not a narrow waiver like Congress provided that any entity operating an interstate railroad would be subject to suit in federal court. 33

A general attempt at abrogation is not sufficient to condition a state’s action in a non-core area on the waiver of immunity. If it were sufficient, this would allow a serious end-run around Seminole in circumstances in which Congress did not have the authority to abrogate state immunity under section 5 of the Eleventh Amendment. A clear, narrow condition does not suffer from the same defect. 34 For instance, a condition requiring the waiver of immunity for any state that engages in the operation of an interstate railroad for profit would be sufficiently specific so that a state decision to operate an interstate railroad for profit could be interpreted as a knowing and voluntary waiver of the state’s immunity. Although this view severely limits the circumstances under which Parden waiver would apply, the waiver doctrine would return to its original'position before its entanglement and confusion with the abrogation doctrine recently rejected in Seminole. For the most part, this position is the same as that articulated by Prof. Cheme-rinsky.

The present case is not a case in which the Parden waiver doctrine applies. It is necessary, then, to consider section 5 of the Fourteenth Amendment.

*296 II. Section 5 of the FOURTEENTH AMENDMENT

In Seminole, the Supreme Court continued to recognize Congress’s ability to abrogate state sovereign immunity through legitimate exercises of its power under section 5 of the Fourteenth Amendment. 35 This Court has considered Congress’s authority under section 5 in several cases since the Seminole decision. For example, we have upheld Congress’s attempts to abrogate state immunity in the Equal Pay Act, 36 the Age Discrimination in Employment Act, 37 and the Americans with Disabilities Act. 38 We also rejected Congress’s attempt to abrogate state immunity in the bankruptcy laws. 39 The majority in the present case concludes that Congress lacks the authority under section 5 to abrogate state immunity for copyright and trademark infringement cases. I disagree.

Congress created legitimate property interests in copyrights and trademarks through a valid exercise of its Article I powers. Article I grants Congress the authority to create certain property interests that are protected from intrusion by the state. 40 Over the course of many years, and in many different contexts, copyrights and trademarks have been treated as a form of “property”. 41 The Supreme Court expressly held that patents are protected property. 42 Copyrights and trademarks are entitled to the same protection as patents under the Due Process Clause.

Congress has authority to protect those property rights by enacting legislation under section 5. It is not necessary that Congress thought it was enacting legislation under section 5 “as long as Congress had such authority as an objective matter”. 43 To determine whether Congress has enacted valid legislation under section 5, we are bound by the Supreme Court’s decision in City ofBoeme 44 and this Court’s decision in Coolbaugh. 45 We consider whether Congress is pursuing a legitimate objective in enacting legislation and whether there is proportionality and congruence between the means employed to achieve that objective and the harm to be prevented. 46

Protecting copyright and trademark holders from infringement by an arm of the state government is a legitimate legislative objective under section 5. Section 5 gives Congress the authority to enforce the substantive provisions of the Fourteenth Amendment through appropriate legislation. Section 5’s enforcement power extends to the Due Process Clause of section 1 of the Fourteenth Amendment. 47 Naturally, section 1 protects property interests, including interests in *297 copyrights and trademarks, from depriva- or infringements by the states.

In College Savings Bank v. Florida Prepaid Postsecondary Educ. Exp. Bd., the Federal Circuit concluded that Congress may exercise its authority under section 5 to abrogate state sovereign immunity in patent infringement eases. 48 The Federal Circuit begins with the familiar premise that the Fourteenth Amendment trumps the Eleventh Amendment because the Fourteenth Amendment was adopted later in time. This premise led to the Seminole Court’s decision allowing Congress to abrogate sovereign immunity under section 5 of the Fourteenth Amendment. The Federal Circuit wrote:

“Surely the enforcement power of Congress under section 5 must embrace the full range of behavior that the Supreme Court has held to violate the substantive provisions in section 1 of the Amendment. We therefore reject the proposition that congressional authority under section 5 is restricted to only a certain provision of the Fourteenth Amendment, namely the Equal Protection Clause.” 49

The Fourteenth Amendment allows Congress to provide a federal forum for both equal protection and due process violations. Congress can create a federal cause of action against the state in federal court for patent, copyright, or trademark infringement. 50 To be valid under section 5, however, legislation must meet proportionality”. 51

“This proportionality inquiry has two primary facets: the extent of the threatened constitutional violations, and the scope of the steps provided in the legislation to remedy or prevent such violations.” 52 The interests that Congress seeks to protect here are important ones. As the facts of this ease show, the value of copyrights and trademarks can be diminished significantly by state action. By making state’s amenable to suit in federal court for copyright and trademark infringement, Congress is attempting to protect copyright and trademark owners from the dilution of their interests at the hands of the state in the same manner that those interests are protected against private action.

The means chosen by Congress to achieve its objective are modest; it is not the type of “general legislation” rejected by the Court in City of Boeme. 53 States are subject to suit in federal court only when they infringe upon the interest of a copyright or trademark holder. If a state is sued for infringement, the remedies available will be the same as that available in an action against a private infringer.

Congress enacted a valid waiver of state sovereign immunity for copyright arid trademark infringement cases. It may be that this allows an end-run around Seminole, but *298 this end-run is one grounded in the text of the Constitution and well-established precedent. 54

I respectfully dissent.

. During the three and one-half years since this case was argued, this court has issued two opinions: Chavez v. Arte Publico Press, 59 F.3d 539 (5th Cir.1995) (Chavez I); Chavez v. Arte Publico Press, 139 F.3d 504 (5th Cir.1998) (Chavez II).

. See College Savings Bank v. Florida Prepaid Postsecondary Education Exp. Bd., 148 F.3d 1343 (Fed.Cir.1998).

. Chavez II, 139 F.3d at 508 .

. Rodriguez de Quijas v. Shearson/American Express Inc., 490 U.S. 477, 484 , 109 S.Ct. 1917 , 104 L.Ed.2d 526 (1989).

. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273 , 105 L.Ed.2d 1 (1989).

. 517 U.S. 44 , 116 S.Ct. 1114 , 134 L.Ed.2d 252, 273 (1996).

. Chavez v. Arte Publico Press, 139 F.3d 504, 507 (5th Cir.1998).

. Seminole, 517 U.S. 44 , 116 S.Ct. 1114 , 134 L.Ed.2d at 273 The Seminole Court wrote:

"Reconsidering the decision in Union Gas, we conclude that none of the policies underlying stare decisis require our continued adherence to its holding. The decision has, since its issuance, been of questionable precedential value, largely because a majority of the Court expressly disagreed with the rationale of the plurality.”

Id. Justice White's vote was essential for the Court to conclude that a majority of the Justices rejected the Union Gas plurality opinion.

. The Seminole Court wrote: "We feel bound to conclude that Union Gas was wrongly decided and that it should be, and now is, overruled.” Id.

. 483 U.S. 468 , 107 S.Ct. 2941 , 97 L.Ed.2d 389 (1987).

. Id. at-, 107 S.Ct. 2941 , 97 L.Ed.2d at 399 .

. Seminole, 517 U.S. 44 , 116 S.Ct. 1114 , 134 L.Ed.2d at 272 .

. Kit Kinports, Implied Waiver After Seminole Tribe, 82 Minn. L.Rev. 793, 814-5 (1998).

. Pennsylvania v. Union Gas, 491 U.S. 1, 44 , 109 S.Ct. 2273 , 105 L.Ed.2d 1 (1989) (Scalia, J„ dissenting).

. Id.

. 134 U.S. 1 , 10 S.Ct. 504 , 33 L.Ed. 842 (1890).

. U.S Const. Amend. 11; Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99 , 104 S.Ct. 900 , 79 L.Ed.2d 67 (1984).

. Seminole Tribe of Fla. v. Florida, 517 U.S. 44 , 116 S.Ct. 1114 , 134 L.Ed.2d 252 (1996); Fitzpatrick v. Bitzer, 427 U.S. 445 , 96 S.Ct. 2666 , 49 L.Ed.2d 614 (1976).

. Parden v. Terminal Ry. of Ala., 377 U.S. 184, 196 , 84 S.Ct. 1207 , 12 L.Ed.2d 233 (1964).

. Id. at 199-200 , 84 S.Ct. 1207 (White, J„ dissenting).

. 473 U.S. 234 , 105 S.Ct. 3142 , 87 L.Ed.2d 171, 183 (1985).

. 483 U.S. 468 , 107 S.Ct. 2941 , 97 L.Ed.2d 389, 399 (1987).

. Employees of Dept. of Health and Welfare v. Dept. of Public Health & Welfare, 411 U.S. 279 , 93 S.Ct. 1614 , 36 L.Ed.2d 251 (1973).

. Seminole, 517 U.S. 44 , 116 S.Ct. 1114 , 134 L.Ed.2d at 272 .

. Kit Kinports, Implied Waiver After Seminole Tribe, 82 Minn. L.Rev. 793, 809 (1998).

. Id. See also MCI Telecommunications Corp. v. Illinois Bell Telephone Co., 1998 WL 156678 , *7 (N.D.Ill.1998).

. Erwin Chemerinsky, Federal Jurisdiction § 7.6 at 410 (1994) (footnotes omitted).

. See Kinports, supra note 13, at 815-9.

. "Any State ... shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court ... ” 17 U.S.C. § 511 (a). “Any State ... shall not be immune, under the eleventh amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court ...” 15 U.S.C. § 1122 .

. See Jacqueline D. Ewenstein, Seminole Tribe: Are States Free to Pirate Copyi'ights with Impunity?, 22 Colum.-VLA J.L. & Arts 91, 100-1 (1997) (citing Senate Report 101-305, 101st Cong.2d. Sess. (1990) to suggest that Congress relied upon Union Gas when it attempted to waive state sovereign immunity in copyright cases).

. One commentator has concluded that similar provisions in the patent laws were not enacted in reliance upon the Parden waiver doctrine. See Gerald P. Dobson, Emerging IP Issues in the Wake of Seminole Tribe, 490 PLI/Pat 179, 213 (1997).

. See Edelman v. Jordan, 415 U.S. 651 , 94 S.Ct. 1347 , 39 L.Ed.2d 662 (1974).

. Obviously, Parden s factual discussion is not good law today because the law did not expressly provide for the waiver of state sovereign immunity.

. Prof. Kinports provides other examples in which Parden waiver could be found. See Kin-ports, supra note 13 at 815-9.

. Seminole, 517 U.S. 44 , 116 S.Ct. 1114 , 134 L.Ed.2d at 272-3 .

. Ussery v. State of Louisiana, 150 F.3d 431 (5th Cir.1998).

. Scott v. University of Mississippi, 148 F.3d 493 (5th Cir.1998).

. Coolbaugh v. State of Louisiana, 136 F.3d 430 (5th Cir.1998).

. In the Matter of the Estate of Fernandez, 123 F.3d 241 (5th Cir.1997).

. See Arnett v. Kennedy, 416 U.S. 134, 151-2 , 94 S.Ct. 1633 , 40 L.Ed.2d 15 (1974); Goldberg v. Kelly, 397 U.S. 254, 261-3 , 90 S.Ct. 1011 , 25 L.Ed.2d 287 (1970).

. See John T. Cross, Intellectual Property and the Eleventh Amendment After Seminole Tribe, 47 DePaul L.Rev. 519, 544-8 (1998); Ewenstein, supra note 30, at 115-20. The majority's reliance upon Paul v. Davis, 424 U.S. 693 , 96 S.Ct. 1155 , 47 L.Ed.2d 405 (1976), to suggest that trademarks are not protected property is misplaced. Paul involved an injury to reputation only. The present case involves much more than an interest in reputation. This case involves an interest created under the Lanham Act.

. See Hartford-Empire Co. v. United States, 323 U.S. 386, 415 , 65 S.Ct. 373 , 89 L.Ed. 322 (1945); Consolidated Fruit-Jar Co. v. Wright, 94 U.S. 92 , 24 L.Ed. 68 (1876).

. Ussery, 150 F.3d 431 , (citing Crawford v. Davis, 109 F.3d 1281 (8th Cir.1997)).

. City of Boerne v. Flores, 521 U.S. 507 , 117 S.Ct. 2157 , 138 L.Ed.2d 624 (1997).

. 136 F.3d 430 (5th Cir.1998).

. Id. at 435 .

. "The provisions of this ‘article,’ to which § 5 refers, include the Due Process Clause of the *297 Fourteenth Amendment.” City of Boerne, 521 U.S. at-, 117 S.Ct. at 2163 , 138 L.Ed.2d at 638 .

. 148 F.3d 1343 (Fed.Cir.1998).

. Id at 1-349.

. Id. at 1352 . "If the reasoning of Fitzpatrick is to retain vitality, it must be that protecting a well-established property interest such as a patent is a permissible objective under the Fourteenth Amendment.”. Id. In College Savings Bank , the Court rejected the majority’s reasoning in this case. The Court wrote:

"These cases miss the mark, however, because they ignore the essential fact that, because the Fourteenth Amendment was enacted subsequent to the Eleventh Amendment, unlike Article I, it expressly qualified the principle of sovereign immunity."

Id. at 1351 .

. Coolbaugh, 136 F.3d at 435 .

. Id.

. City of Boerne, 521 U.S. at-, 117 S.Ct. 2157 , 138 L.Ed.2d at 641-2 . In City of Boeme, Congress attempted to use section 5 both to enact legislation defining the scope of the First Amendment protection for the free exercise of religion and to make that legislation enforceable against the states. The Court found that Congress exceeded its authority. Id. at -, 117 S.Ct. 2157 , 138 L.Ed.2d at 649 . In the present case, however, Congress used section 5 for enforcement purposes only. Congress used its Article I authority to create property rights in copyrights and trademarks. Congress can combine its authority under Article I and section 5 of the Fourteenth Amendment to achieve a result that would not be possible in the absence of that combination. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 , 96 S.Ct. 2666 , 49 L.Ed.2d 614 (1976) ("We think that Congress may, in determining what is 'appropriate legislation for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts”).

. One may argue that the Seminole Court intended its holding to have more bite than this. In response, I ask are you so sure? After the Supreme Court issued its decision In Bailey v. United States, 516 U.S. 137 , 116 S.Ct. 501 , 133 L.Ed.2d 472 (1995), federal public defenders across this nation ran to the courts arguing that a restrictive definition of "use” in a section 924 firearms charge must also limit the definition of "carry”. Otherwise, they argued, Bailey would have little or no practical effect. The Supreme Court's decision in Muscarello v. United States, -U.S. --, 118 S.Ct. 1911 , 141 L.Ed.2d 111 (1998), confirmed that the Court intended for Bailey to have this limited effect. My point is this: what looks like a clear statement of broad policy issuing from the Supreme Court may actually be an attempt by the Court to return a level of honesty to the interpretation of statutory or constitutional language.