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574 Annals Am. Acad. Pol. & Soc. Sci. 9 (2001)

handle is hein.cow/anamacp0574 and id is 1 raw text is: PREFACE In the last decade, the Supreme Court has handed down a remarkable series of decisions invalidating congressional legislation in the name of feder- alism or states' rights. Most of these were decided by a razor-thin majority of five justices-the Court's conservative quintet of Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Ken- nedy, and Clarence Thomas. The cases fall into four categories. First, the Court reaffirmed and expanded the principle of state sovereign immunity. In Seminole Tribe of Florida v. Florida' and Alden v. Maine,' it held that Congress cannot subject an unconsenting state to suit in either federal or (its own) state court, whether the suit is brought by a citizen or noncitizen of that state, and whether it is based on federal law or state law. The four dis- senters in Seminole argued that the states' constitutional immunity is con- fined within the four corners of the Eleventh Amendment, which rules out of federal court only suits against a state by citizens of another state. The majority, however, concluded that the immunity is inherent in the concept of state sovereignty, rests upon a structural principle of the Constitution that is presupposed by but not limited to the text of the Eleventh, and extends even to suits by the state's own citizens for violation of federal law. Three years later, Alden further extended this nontextual constitutional immunity to suits in the state's own courts. In a second pair of cases, the Court held that state governments (other than their courts) cannot be commandeered by Congress to assist in the enforcement of federal law. State legislatures cannot be required to regulate in accordance with congressional instructions,3nor can state executive offices be forced to perform federal tasks. This aspect of state sovereignty, like immunity from suit, was attributed by the Court to the intentions of the Founders. Both immunities-from suit and from commandeering-can be waived by consent, and consent made a condition of eligibility for federal grants or privileges. Third, for the first time since the early New Deal, the Court, by the familiar 5-4 margin, invalidated a federal statute enacted pursuant to the interstate commerce clause. For nearly 60 years, the reigning principle of that clause has been that even local activities are reachable by Congress if they have substantial effects on interstate commerce.5 In 1995, however, United States v. Lopez' declared unconstitutional a law banning possession of guns within 1000 feet of a school, despite the aggregate impact of the regulated activity on the national economy through its effects on education and crime. The Court declared that to accept such remote effects as justification for NOTE: The author owes many thanks to Jarett Epstein both for his splendid assistance in the editing of this volume and for his useful comments on the preface. 9

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