Return of the 11th Amendment

Supreme Court: Ends term with close decisions enlarging states' sovereign immunity.

July 05, 1999

AFTER the Bill of Rights, the next amendment to the Constitution was the 11th, in 1798. It says that federal courts may not hear suits against a state by citizens of another state or foreign country. Reflecting struggles at the birth of the country, that amendment has not seemed crucial lately.

It is now, thanks to three 5-4 decisions with which the Supreme Court ended its term. Because of the narrowness of the vote, these did more to open than close the argument.

The issue of state vs. federal sovereignty is reignited.

When Supreme Court nominations figure in a presidential election, the goal is usually result-oriented. But the 5-4 breakdown of the Supreme Court in these three cases turned on judicial philosophy, particularly on the nature of the federal system. Justices named by the next president may prove decisive in resolving the issue.

In these decisions, states' sovereign immunity was expanded by three justices appointed by President Ronald Reagan, one named by President George Bush, and one appointed by President Richard Nixon (and elevated to chief justice by Mr. Reagan). Among the dissenters, one was appointed by President Gerald Ford, one named by President George Bush and the only two justices chosen by a Democrat, President Clinton. They upheld the enforceability of laws passed by Congress.

The key decision denied the right of state probation officers to sue the state of Maine for overtime pay complying with the Federal Labor Standards Act. Another limited suits against a state for patent infringement. The third, suits against a state over unfair competition in the marketplace.

These narrow outcomes are less important than the rhetoric supporting them. "Congress has vast power but not all power," thundered Associate Justice Anthony M. Kennedy for the majority. Associate Justice David H. Souter retorted that the majority imposed a conception of state sovereignty not found in the Constitution or the minds of its Framers.

The decisions should trouble citizens because the court concedes the right of the federal government to sue on these matters, while denying it to citizens. They are left with no remedy when a state denies a right legislated to them by Congress.

Not only are laws overturned here, but past Supreme Court precedents. That could happen again. A 5-4 decision is fragile. This victory for states' rights is tentative.

After delivering it, the justices dispersed on their separate summer vacations. But the debate on the nature of federalism is not settled. They just dumped it into the 2000 presidential election.

Pub Date: 7/05/99

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