American University Law Review
February 2000

ARTICLE

Daan Braveman*

INTRODUCTION

Chief Justice Salmon P. Chase stated more than 100 years ago that "[t]he Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." This observation describes the essential feature of our ongoing experiment with federalism. "Our Federalism" represents a "system in which there is sensitivity to the legitimate interests of both State and National Governments." As Justice Black cautioned, however, federalism does not mean "blind deference to 'State's Rights' any more than it means centralization of control over every important issue in our National Government and its courts." Much of our constitutional history has involved attempts to allocate power between the two indestructible units and to find appropriate ways to accord sensitivity to the legitimate state and federal interests.

One aspect of our federalism focuses on the distribution of power between state and federal courts. During the past two decades, the Supreme Court has articulated federalism concerns to restrict a person's ability to sue a state in federal court for federal rights violations. In an attempt to strike a balance between state and federal power, the Court sided with the states. Relying in some instances on general federalism concerns and in others on the Eleventh Amendment, the Court effectively closed the federal courthouse doors to many lawsuits alleging state violations of the Constitution or federal statutes.

This past term, the Supreme Court championed states' rights in a manner that extended federalism notions well beyond existing boundaries. In Alden v. Maine, for the first time in our history a Court majority held that the Constitution is not limited to protecting states from lawsuits in federal court. Rather, the Constitution embodies a much broader principle of sovereign immunity that protects states from suits brought in their own state courts. Alden and other recent cases limiting congressional authority to abrogate a state's immunity from suit seriously erode an individual's ability to enforce federal rights against a state. Indeed, the Court's current approach to sovereign immunity creates an "enforcement gap" in federal law and converts federalism into a one-way protection for states that disregards the federal government's interests.

The purpose of this Article is to examine the impact of the latest federalism developments on the judicial enforcement of federal rights. To illustrate the shift that occurred in this past term, this Article first will review the Court's reliance on federalism to restrict the role of the federal courts "to adjudicate claims alleging state violations of federal rights." Regardless of the propriety of such reliance, it is evident that the Court's decisions assumed that state courts would be available to protect federal interests. Second, this Article analyzes Alden and examines its implications for enforcing federal rights and maintaining an appropriate balance between state and federal concerns. This Article concludes that by constraining the ability of any court to ensure that states follow federal law, the Court largely has disregarded the necessity for sensitivity to both state and federal interests, a concept that lies at the heart of federalism.

* Dean and Professor of Law, Syracuse University College of Law. I want to thank my research assistant, Matthew Agen, for his help on this Article.

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