Seminole Tribe v. Florida: Faithful Federalism or Right-Wing Brennanism?
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


2001 The Federalist Society