The Eleventh Amendment Cases: Going "Too Far" with Judicial Neofederalism
Loyola Los Angeles Law Review
Eleventh Amendment, federalism, neofederalism, Seminole Tribe doctrine
Beginning with Seminole Tribe v. Florida, the Supreme Court's recent Eleventh Amendment decisions are some of its worst in decades. The Court has diluted the constitutional and federal statutory rights of millions of people. This Article uses several techniques to support this bitter proposition. It first compares the Court's "neofederalism" in the Eleventh Amendment context with two other of the Court's states' rights inventions - constraints on Congress through broader constructions of the Tenth Amendment and narrower interpretations of the Commerce Clause - to demonstrate why their Eleventh Amendment approach threatens basic democratic and constitutional norms, including a humane form of federalism. The Court's recent, unanimous validation in Reno v. Condon of congressional regulation of state distribution of personal information obtained from drivers license applications may offer the best we can hope for from these neofederalist doctrines: numerous, complex, result-oriented outcomes that do not profoundly alter the political culture or economy. The Article then briefly considers Akhil Amar's scintillating book, The Bill of Rights, to make an "intratextual" argument against the Court's Eleventh Amendment interpretation. This provides a Fourteenth Amendment textual/historical argument to be added to the obvious claim that neither the Eleventh Amendment's text nor history warrant a broad construction of state sovereign immunity. Next, the Article explores some foreseeable consequences of the Seminole Tribe doctrine, particularly its effects on private power. Finally, this piece considers the doctrine's affinities with the following: Richard Rorty's repudiation of "rights talk"; the tendency of academic multiculturalists to reduce their analysis to race and gender; some intellectual leftists' diminishment of the importance of the "individual"; and the racist John C. Calhoun's nullification doctrine from the 1830s. Oddly enough, the more conservative wing of the Court is commingling extreme Southern Constitutional theory from the Antebelleum era with some of the trendiest theories of contemporary left-wing intelligentsia. At long last, this portion of the left is seeing some of its concepts being turned into power.
James G. Wilson, The Eleventh Amendment Cases: Going "Too Far" with Judicial Neofederalism, 33 Loyola Los Angeles Law Review 1687 (2000)