30 Pages Posted: 8 Dec 2003 Last revised: 25 Jun 2013
The Constitution is designed to protect individual liberty and equality by diffusing power among the three branches of the federal government and between the federal and state governments, and by providing a minimum level of protection for individual rights. Yet, the Supreme Court seems to think that federalism is about protecting states as states rather than balancing governmental power to protect individuals. In the name of federalism, the Supreme Court has been paring away at Congress' power to enact civil rights legislation. In doing so, it has transformed the Fourteenth Amendment into a vehicle for protecting states rights rather than a vehicle for protecting individual rights. This paper analyzes this process and the institutional competence and separation of powers problems that have resulted. It proposes that the Court give effect to Congress' powers to deter potential constitutional violations by states under the Fourteenth Amendment and to keep in mind that federalism's purpose should be to maximize equality and liberty.
Keywords: Federalism, civil rights, legislation, separation of powers, Congress, Supreme Court, Fourteenth Amendment, Eleventh Amendment, individual rights, equality, liberty, national citizenship, employment discrimination, sovereign immunity, states' rights
JEL Classification: J7, K3
Suggested Citation: Suggested Citation
McCormick, Marcia L., Federalism Re-Constructed: the Eleventh Amendment's Illogical Impact on Congress' Power. Indiana Law Review, Vol. 37, No. 2, 2004; Saint Louis U. Legal Studies Research. Available at SSRN: https://ssrn.com/abstract=446720 or http://dx.doi.org/10.2139/ssrn.446720