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Federalism Re-Constructed: The Eleventh Amendment's Illogical Impact on Congress' Power
Indiana Law Review (2004)
  • Marcia L. McCormick, Cumberland School of Law

The last decade has seen a transformation in the way the Supreme Court views the balance of power between the federal government and the states. The Eleventh Amendment protects the states from suit by individuals in federal court, and the Court has read this protection increasingly broadly. At the same time, the Court has been reading Congress’ power to enact protective legislation increasingly narrowly. These two areas of jurisprudence have converged in a series of cases in which the Court determined that Congress lacked the power to subject the states to suits for damages in federal court.

This convergence has been troubling to many academics and practitioners for a number of reasons both practical and jurisprudential. But there is another reason that these cases should be alarming. They call into question the power of Congress to enact lasting legislation regulating the states’ treatment of their citizens. They also denigrate the normative principles of national citizenship and equality that the Fourteenth Amendment added to our core constitutional values.

For background, Congress can abrogate states’ immunity from suit in federal court only under the enforcement clause of the Fourteenth Amendment. Legislation under the Fourteenth Amendment can be broader than the amendment itself and be valid. Congress can enact legislation under the Fourteenth Amendment that prohibits some kinds of constitutional conduct if the prohibition works to remedy past discrimination or to deter future violations.

While remedy and deterrence would appear to give Congress significant power to enact legislation, the Court has focused on remedy to the exclusion of deterrence. In Board of Trustees v. Garrett, for example, the Court scrutinized the legislative record to determine whether there was an existing constitutional evil (rather than a potential constitutional evil) that Congress could have addressed through the legislation it enacted. If a statute is a valid exercise of the Fourteenth Amendment only if it addresses an existing constitutional evil, what happens to that validity over time as constitutional evil ceases to exist and its past existence becomes more distant? Focusing on remedy alone leads to a result in which the validity of legislation under the Fourteenth Amendment may expire once enough time has passed during which states are actually deterred from discriminating.

Part one of this article briefly describes the state-immunity jurisprudence of the Court. Part two focuses on the Court’s treatment of legislation passed under the Fourteenth Amendment. Part three describes the convergence of the two lines of cases and the problems this convergence poses for Congress as it considers ways to promote the normative principles of national citizenship and equality. Finally, Part four suggests ways in which the Court could consider deterrence and prevention in its analysis.

  • Eleventh Amendment,
  • federalism,
  • constitutional law,
  • Fourteenth Amendment,
  • sovereign immunity,
  • jurisdiction,
  • congress,
  • congressional power,
  • discrimination,
  • civil rights
Publication Date
March, 2004
Citation Information
Marcia L. McCormick. "Federalism Re-Constructed: The Eleventh Amendment's Illogical Impact on Congress' Power" Indiana Law Review Vol. 34 Iss. 2 (2004)
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