Document Type
Article
Publication Date
1979
Publication Information
54 Notre Dame L. 745 (1978-1979)
Abstract
During the past decade, the Supreme Court has decided two notable cases which have had, it is certain, the effect of greatly enhancing both the theoretical and the practical significance of the tenth and eleventh amendment-based concept of "state sovereignty." As a consequence, there has been an acceptance, at least in the "conventional wisdom," of the proposition that the star of "state sovereignty"—long dulled since Mr. Justice Stone's famous remark in United States v. Darby—is now on a steadily ascending course at the hands of a Court clearly concerned about restoring a sense of balance in "Our Federalism." Analysis—and prognostication—in the development of constitutional doctrine are, however, never that comfortable. As Justice Frankfurter wrote, in an essay originally written before his ascendancy to the Supreme Bench and revised after over a decade as a sitting Justice, "[a] rhythm, even though not reducible to law, is manifest in the history of Supreme Court adjudication. Manifold and largely undiscerned factors determine general tendencies at the Court, much too simplified by phrases like 'the centralization' of Marshall or 'the states rights' of Taney." Moreover, it is a basic trait of American constitutional development that any shift in ideological perspective—and especially a cross-doctrinal shift—carries within it the seeds of its own limitations. Indeed, these modern cases, manifesting a concern with the position of the state government within the federal system, began their jurisprudential lives with a particular susceptibility to such limitation. Forged on the barest of majorities, they were subject, from the beginning, to the strongest of dissent.
The purpose of this article is not to announce the end of this rejuvenation of state sovereignty in our federal structure. Rather, in the pages which follow, we shall attempt to isolate, from the recent work of the Court, what appear to be significant indications-some of them seminal-that the trajectory of the star of "state sovereignty" will soon encounter as many centripetal as centrifugal forces and that the resultant doctrinal orbit may be a little less spectacular than the "conventional wisdom" had predicted.
Recommended Citation
Kenneth F. Ripple & Douglas W. Kenyon,
State Sovereignty--A Polished But Slippery Crown,
54 Notre Dame L. 745 (1978-1979).
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/917
Comments
Reprinted with permission of Notre Dame Law Review (previously Notre Dame Lawyer).