The Supreme Court
Who's in Control—the States or the Federal Government?
Two Constitutional amendments are used when deciding whether states' rights should prevail or if a strong federal government is more important—the Eleventh Amendment and the Fourteenth Amendment.
The Eleventh Amendment states, “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” This amendment primarily has been used to grant states immunity from being sued.
The portion of the Fourteenth Amendment that limits the Eleventh Amendment states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
All cases in which states' rights is a critical part of the issues to be decided involve at least one and more likely both of these amendments. When the Supreme Court struck down the gun control law in 1995, states' rights proponents believed the Court had the majority it needed to move more aggressively in support of states' rights.
They were correct for about eight years and enjoyed watching the court grant states immunity from discrimination laws and other federal laws that impinged on state sovereignty. In fact, in a 2000 policy paper developed by Michael Greve for the American Enterprise Institute he declared:
“Rehnquist's problem here was that he shouldn't have even started exempting state governments from laws that all the state's citizens must obey. He saw the doctrine going places that made him unhappy, and he needed an exit strategy. When the Supreme Court needs to back down or turn around it often resorts to desperate distinctions as a way to hide retreat.”
—Michael Kinsley, Washington Post columnist and editor of MSN's Slate, in a Washington Post column on May 30, 2003
His analysis was partially correct. State's were granted immunity from the Americans with Disabilities Act in cases related to hiring practices such as the Board of Trustees of the University of Alabama v. Garrett, Patricia. We'll delve more deeply into that case in Keeping Things Equal. He was wrong about the Family and Medical Leave Act, which was upheld in a 2003 case Nevada Department of Human Resources v. Hibbs (I'll call it Hibbs for short from this point on), which I'll describe in greater detail in a later section.
Just the Facts
The Tennessee v. Lane case involves two people who were unable to access the state's courtrooms because courtrooms were not wheelchair accessible. George Lane, one of the plaintiffs, crawled up two flights of stairs for his arraignment on a misdemeanor traffic violation. He was arrested and jailed on a “failure to appear” violation when he refused to crawl up the steps a second time for a pre-trial hearing.
From the time of the New Deal legislation victory, the Supreme Court supported Congress's authority to regulate interstate commerce and gave Congress just about free reign to establish federal mandates that states must accept. Rehnquist's Court decided to challenge that, believing states as sovereign powers don't have to obey some federal mandates.
Greve wrote that in order for the Supreme Court to continue on its states' rights path it needed a strong constituency for its version of federalism. The only such constituency that Greve could find was what Republican strategist Grover Norquist calls the “Leave-Us-Alone” coalition, which is made up of socially conservative, populist constituencies, such as gun owners, home schoolers and school choice groups, property-rights advocates, and religious organizations.
Now let's take a look at the case that started the recent state's right trend—U.S. v. Alfonso Lopez.