About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

93 Nw. U. L. Rev. 819 (1998-1999)
Reconciling Textualism and Federalism: The Proper Textual Basis of the Supreme Court's Tenth and Eleventh Amendment Decisions

handle is hein.journals/illlr93 and id is 829 raw text is: Copyright 1999 by Northwestem University, School of Law Printed in U.SA. Northwetrn University Law Review Vol. 93, No. 3 RECONCILING TEXTUALISM AND FEDERALISM: THE PROPER TEXTUAL BASIS OF THE SUPREME COURT'S TENTH AND ELEVENTH AMENDMENT DECISIONS Michael B. Rappaport* INTRODUCTION In recent years, one of the most important developments in constitu- tional law has been the resurgence of federalism. In several cases, the Su- preme Court has held that federal laws violate principles of federalism embodied in the Constitution.! After decades of the Supreme Court pro- gressively relaxing federalism principles so that they seemed destined for extinction, we now appear to have entered a new age of federalism, in which the main question is not whether, but to what extent the Court will enforce federalism principles.2 Some of the most important of the federalism cases have involved the establishment of state immunities. In these cases, the Supreme Court has held that Congress may not take certain actions against the states. In Semi- nole Tribe,3 the Court held that Congress lacked the power under the Com- merce Clause to abrogate state sovereign immunity in federal court. In New York v. United States4 and Printz v. United States,5 the Court held that the states had an immunity against being commandeered by the federal gov- ernment; Congress could not require that the state legislatures pass certain laws or that the state executives enforce federal laws. These recent immu- nity decisions call to mind earlier cases in which the Court recognized other * Professor of Law, University of San Diego School of Law. J.D. 1985, D.C.L. 1990 Yale Law School. I would like to thank Larry Alexander, Stuart Benjamin, Shaun Martin, John McGinnis, Saikrishna Prakash, Mike Ramsey, Thomas Smith, and John Yoo for their comments and suggestions. I am also grateful to my wife and children for their love and support. 1 See Printz v. United States, 117 S. Ct. 2365 (1997); City of Boerne v. Flores, 117 S. Ct. 2157 (1997); Idaho v. Coeur d'Alene Tribe of Idaho, 117. S. Ct. 2028 (1997); Seminole Tribe v. Florida, 517 U.S. 44 (1996); United States v. Lopez, 514 U.S. 549 (1995); New York v. United States, 505 U.S. 144 (1992); see also Gregory v. Asheroft, 501 U.S. 452 (1991). 2 See Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REv. 2180,2181-82 (1998); John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311, 1357 (1997). 3 517 U.S. at 47. 4 505 U.S. at 149. 5 117 S. Ct. at 2384.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most