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.

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