In recent years, one of the most important developments in constitutional law has been the resurgence of federalism. In several cases, the Supreme Court has held that federal laws violate principles of federalism embodied in the Constitution.1 After decades of the Supreme Court progressively relaxing federalism principles so that they seemed destined for extinction, we now appear to have entered a new age of federalism, in which the main question is not whether, but to what extent the Court will enforce federalism principles.2
Some of the most important of the federalism cases have involved the establishment of state immunities. In these cases, the Supreme Court has held that Congress may not take certain actions against the states. In Seminole Tribe,3 the Court held that Congress lacked the power under the Commerce Clause to abrogate state sovereign immunity in federal court. In New York v. United States4 and Printz v. United States,5 the Court held that the states had an immunity against being commandeered by the federal government; Congress could not require that the state legislatures pass certain laws or that the state executives enforce federal laws. These recent immunity decisions call to mind earlier cases in which the Court recognized other immunities: Collector v. Day,6 which found an immunity against taxing the states that has been narrowed but continues to exist, and National League of Cities v. Usery7-now overruled, but with the possibility of being revive which established an immunity against certain regulations of the states.
These immunity decisions could significantly promote federalism, but they are open to a powerful criticism. In all of the cases, the Supreme Court has failed to adequately explain how the immunities derive from the text of the Constitution. The Court has purported to derive the immunity against federal commandeering, as well as the immunities against regulation and taxes, from either the Tenth Amendment or the structure of the Constitution.8 And the justices have rooted sovereign immunity primarily in the Eleventh Amendment.9 But the texts of the Tenth and Eleventh Amendments simply do not provide for such immunities and constitutional structure, while a useful aid to interpretation, is not itself text.
The Supreme Court's inability to derive these state immunities from the text of the Constitution is a serious problem, because it means that these decisions violate the textualist theory of constitutional and statutory interpretation. This theory, which requires judicial interpretations to derive from the text of the Constitution and statutes,10 has gained increasing acceptance in the Supreme Court, and along with federalism is one of the most important developments in recent years.11 A conflict between textualism and federalism, however, could undermine both movements. If many federalism decisions are exempted from textualist principles, then textualism cannot claim to be the standard for constitutional interpretation. Moreover, if federalism decisions are permitted to violate textualist principles, but decisions in other areas are not, then the federalism cases may come to be viewed as illegitimate decisions that derive from the political preferences of the justices rather than the Constitution.
The conflict between federalism and textualism creates an even greater problem for the conservative jurisprudence that has emerged in the Rehnquist Court. Although it is certainly possible for liberals to advocate both textualism and federalism, the decisions in these areas have generally been viewed as the work of conservatives.12 But if conservatives are seen as departing from text in order to promote federalism, they will be open to the charge of inconsistency if not hypocrisy, of pursuing their own political agenda under the cover of inconsistently applied neutral principles. After all, if one may ignore the text when finding state immunities, then why not also when establishing a right to abortion? …