Toward the end of her article, The History of Mainstream Legal Thought, Elizabeth Mensch identifies federalism as a dominant theme in recent Supreme Court decisions. The Court's focus on questions of federalism, however, cannot be directly attributed to the emergence of any specific social or political issues dividing champions of strong central government from defenders of state sovereignty. Instead, the Court's scrutiny seems to have arisen from a perplexing, frustrating, and self-contradictory body of Eleventh Amendment jurisprudence and the perpetual call for judicial clarification it has produced. While the text of the Eleventh Amendment is unambiguous—its language specifically bestows immunity upon states sued in federal court by non-citizens of the defendant state—subsequent case law has expanded this grant of state immunity considerably. Like a doctrinal rubber band, the Eleventh Amendment was recently stretched to its outer limits in Alden v. Maine, in which the Court ruled that the state of Maine cannot be subject to suit in its own courts for violating the Fair Labor Standards Act of 1938 (FLSA). Through its decisions, the Supreme Court has broadened the Eleventh Amendment from a procedural rule of narrow, precise application to an overriding, absolute principle of state sovereign immunity. Although it acknowledged that the text of the amendment does not explicitly warrant such a ruling, the Court nonetheless declared the sovereign immunity of the states in any forum—state or federal—to be a fundamental, unwavering precept of universal recognition. According to the Court, such immunity is not only inherent in the constitutional scheme as envisioned by the Founders, but is also a philosophical postulate that predates our constitutional history. This Article will argue that federalism is not a historically fixed vision of the constitutional balance of power between the state and federal governments, but rather a contested terrain upon which competing visions perpetually engage in a historiographical and ideological tug-of-war.
Sovereign Immunity and the Crisis of Constitutional Absolutism: Interpreting the Eleventh Amendment After Alden v. Maine,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol53/iss1/19