Of Sovereignty and Federalism

by Akhil Reed Amar

Victims of government-sponsored lawlessness have come to dread the word "federalism." Whether emblazoned on the simple banner of "Our Federalism"' or invoked in some grander phrase, the word is now regularly deployed to thwart full remedies for violations of Constitutional rights. Consider, for example, the Burger Court. Rallying under flags of federalism, the Justices pushed back remedies for segregation in public schools, denied relief to citizens threatened by racially discriminatory police brutality, cut back federal habeas corpus for state prisoners convicted in tainted trials, and forced lower federal courts to dismiss a broad range
of suits challenging unconstitutional state conduct.'

So too, "sovereignty" has become an oppressive concept in our courts. A
state government that orders or allows its officials to violate citizens' federal constitutional rights can invoke "sovereign" immunity from all liability—even if such immunity means that the state's wrongdoing will go partially or wholly unremedied. When the national government invades
constitutionally protected zones, "sovereign" immunity is once again
wheeled out to defeat the remedial imperative.'

To be sure, our Constitution does embody structural principles of federalism and sovereignty. Yet that same document also guarantees certain
fundamental individual rights against government. Is the Constitution
therefore divided against itself? Is the way in which it constitutes political
bodies at war with the legal rights that it constitutionalizes?

In this essay, I hope to offer a neo-Federalist answer—one that allows
us to see how the Constitution's political structure of federalism and sovereignty is designed to protect, not defeat, its legal substance of individual
rights.' I seek to counter the Supreme Court's version of federalism and sovereignty with the framers' version—to replace "Our Federalism" with
their federalism, and government sovereignty with popular sovereignty.

96 pages, ebook

Published June 1, 1984

About the author

Akhil Reed Amar is currently Sterling Professor of Law and Political Science at Yale University, where he teaches constitutional law in both Yale College and Yale Law School. He received his B.A, summa cum laude, in 1980 from Yale College, and his J.D. in 1984 from Yale Law School, where he served as an editor of The Yale Law Journal. After clerking for Judge Stephen Breyer, he joined the Yale faculty in 1985. In 1994 he received the Paul Bator award from the Federalist Society for Law and Public Policy, and in 1997 he was awarded an honorary doctorate of law by Suffolk University. In 1995 the National Law Journal named him as one of 40 “Rising Stars in the Law,” and in 1997 The American Lawyer placed him on their “Public Sector 45" list. His work on the Bill of Rights also earned the ABA Certificate of Merit and the Yale University Press Governor’s Award. He has delivered endowed lectures at over two dozen colleges and universities, and has written widely on constitutional issues for such publications as The New York Times, The Washington Post, The Los Angeles Times, The Wall Street Journal, Time Magazine, The New Republic, and Slate. He is also a contributing editor to The American Lawyer. His many law review articles and books have been widely cited by scholars, judges, and lawmakers; for example, the Justices of the United States Supreme Court have invoked his work in more than twenty cases, and he has testified before Congress on a wide range of constitutional issues. Along with Dean Paul Brest and Professors Sanford Levinson, Jack Balkin, and Reva Siegel, Professor Amar is the co-editor of a leading constitutional law casebook, Processes of Constitutional Decisionmaking. He is also the author of several books, including The Constitution and Criminal Procedure: First Principles (Yale Univ. Press, 1997), The Bill of Rights: Creation and Reconstruction (Yale Univ. Press, 1998), America’s Constitution: A Biography (Random House 2005), and most recently, America’s Unwritten Constitution: The Precedents and Principles We Live By (Basic Books, 2012).

from http://www.law.yale.edu/faculty/amarb...