This
week’s blog post is a review of an article published in Publius magazine
in 1986. The article is “State Sovereignty in the Federal System:
Constitutional Protections under the Tenth and Eleventh Amendments” by James R.
Alexander.
The
article begins with discussing the various ways the Tenth Amendment can be
interpreted regarding state sovereignty and Congressional preemption of it.
Next, the article mentions the Eleventh Amendment and the degree to which
states are immune in the courts. The article then goes on to describe when
Congress can preempt state sovereignty. The second half of the article consists
of a series of reviews of various Supreme Court cases which have, over time,
affected the sovereignty of States. The cases involved are: Parker v. Brown and National League of Cities v. Usery. Concluding the article is a
summary of how state sovereignty has been affected by the decisions of these
various cases.
Overall,
I felt that the article was well-written. I did not spot any typos nor any
grammatical errors. Additionally, I found it relatively understandable; when
there were some sentences which I understood not, it could likely be blamed on
my relative inexperience with law. I appreciated the layout of the article better
looking it over after having read it.
Various
points the article made are helpful to me in my research of the Tenth
Amendment. For instance, I appreciated the explanations the article made
concerning the Supreme Court cases towards the end. Court cases are difficult
to understand, for me anyway, upon reading just the case briefs and summaries,
so any scholarly explanations, including how the cases affect the
interpretation of the Tenth Amendment, are welcome.
I also
found interesting the amount of complications the article seems to imply there
are concerning when Congress can or cannot preempt state sovereignty. I had
thought that the Tenth Amendment was pretty straightforward when describing
which powers states could have. Thus, when it appeared to me that Congress was
doing things that appeared to be interfering with state rights, it was
automatically the fault of the federal government. However, due to the Commerce
Clause and the Necessary and Proper clause, the Federal government can do
things lawfully that seem to be unconstitutional at face value.
In
conclusion, the article herein reviewed is a great read for those seriously
interested in State Sovereignty and the Tenth and Eleventh Amendment.
Bibliography:
James R. Alexander, "State Sovereignty in the Federal System: Constitutional Protections under the Tenth and Eleventh Amendments," Publius 16 (1986): 1-15.
The Commerce Clause and the Necessary and Proper clause always seem to strike me as a fairly slippery slope in legal reasoning, and I think what you mentioned at the end shows why that is pretty well. They allow things to be done legally that otherwise seem to be outside of the reach of the law. In some cases, that's a good thing, it helps the federal government reach into issues that the Framers either missed or couldn't anticipate. However, once we begin allowing those types of circumventions for certain issues, it gives rise to a lot of debate on which are important and relevant enough to be intruded upon, which rights are able to be beaten down, and that can be a frightening proposition without the proper protections in place. I believe that this is where a lot of the problems arising in our country have grown from.
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