The most significant decision involving federalism that was handed
down during the October 1995 Term--indeed, during the last several
Terms--was the Court's landmark ruling in Seminole Tribe of Florida
v. State of Florida, 116 S. Ct. 1114 (1996). In Seminole, the Court
held that, in light of the "background principle" of sovereign
immunity that underlay the Eleventh Amendment, Congress has no power
under the Commerce Clauses of Article I of the Constitution to subject
the States to citizen suits in federal court without their consent.
The decision may have far reaching effects, potentially invalidating
a host of laws that permits citizens to sue States in federal court
over such varied matters as environmental clean-ups, claims arising
in bankruptcy proceedings, and fair labor standards. The decision
has generally been applauded by conservatives, and it unquestionably
promotes the sort of substantive policies that federalists advocate.
But is the method of decisionmaking reflected in Seminole faithful
to the principles of originalism and textualism that federalists have
also strongly championed? Or it is an exercise in conservative judicial
activism that disregards the text in favor of judicially imposed substantive
values? These issues are explored in the following lively exchange
between California Assistant Attorney General Thomas Gede and Cardozo
Law School Professor John Duffy.
Supreme Court Reaffirms
State Sovereignty Thomas F Gede
Blind to Text, Unfaithful
to Principle John F. Duffy
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