The "New Federalism" is a recent trend in the United States Supreme Court to cut back Congress' powers to enact laws binding upon the several States. Given the Supreme Court's radically conservative bias, the focus of the Court's ire has been progressive civil rights laws. The "New Federalism" makes a mockery of the frequently repeated but obviously fallacious view that progressive laws are created by "activist judges" in defiance of the political process. Here, the conservatives are clearly the anti-majoritarian and "activist" judges, thwarting the will of the People as expressed in duly enacted laws, passed by the legislature and signed by the President.
Eleventh Amendment Historical Background
In Eleventh Amendment cases, the legal issue is whether a private citizen can sue a State for money damages. While there are other ways to enforce laws against a State government other than lawsuits for money damages (i.e. declaratory and injunctive relief) money damages provide a incentive for the plaintiff, as well as a deterrent directed at the defendant. Underlying the dispute about lawsuits, however, is a more fundamental issue: the extent of the power of the federal Congress to enact laws to protect individuals from oppressive conduct by state and local governmental entities.
The first federal Congress, in the Judiciary Act of 1789, granted original jurisdiction to the Supreme Court to hear cases brought by citizen of one state against another State. Thus, a citizen of New York could bring a lawsuit against the State of Georgia in the United States Supreme Court. This kind of case, where the plaintiff is a resident of one State, and the defendant either resides in or is another State, is called a "diversity jurisdiction" case (because the residences of the parties are "diverse"). "Diversity" jurisdiction persists today, because it is thought that a citizen from another State will get a fair trial in the federal court, where one of the parties does not have a hometown advantage.
One of the first "diversity" cases, however, caused a political uproar. In Chisolm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), the State of Georgia was sued to collect a debt incurred in the Revolutionary War. There was never any question whether the State in fact owed the money, and the Supreme Court held that the State of Georgia had no immunity from suit, because it had consented to being sued in federal court by joining the federal Union.
All of the new States had war debt --more than they could pay. Congress quickly passed the Eleventh Amendment. The Eleventh Amendment did not directly absolve the States of their war debt, but did put some limits on how you could collect it. It 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.
Two things are obvious from the text of the Eleventh Amendment: (1) it only applies to federal court (i.e. "the judicial power of the United States") and (2) it only applies to diversity cases. In other words, if a State where you were not a citizen owed you money, you could sue in that State's courts. If you were a citizen of that State, you could sue the State anywhere.
The distinction between "diversity" cases and other grounds for federal jurisdiction was abrogated nearly one hundred years later, in the case of Hans v. Louisiana, 134 U.S. 1 (1890). This case held that the Eleventh Amendment protected the State of Louisiana from suits by its own citizens. Hans v. Louisiana concludes that sovereign immunity was not limited to the text of the Eleventh Amendment, that the Supreme Court's reasoning in Chisolm v. Georgia was wrong about the doctrine of sovereign immunity which existed before the Eleventh Amendment, and that the legal presumption or "default" rule is that States are immune from suit, unless the State expressly consents to suit.
The other textual limit of the Eleventh Amendment (that it only applied in federal court) was abrogated very recently by the United States Supreme Court in the case of Alden v. Maine, 527 U.S. 706 (1999).
Fourteenth Amendment Historical Background
The Fourteenth Amendment was passed after the War Between the States, along with the Thirteenth Amendment, which abolished slavery. Prior to the War of Northern Aggression, the States had considerable autonomy. The Bill of Rights applied only to the federal government. States could allow slavery, and did. States could have "established" (tax-sponsored) religions, even though the First Amendment prohibited the federal government from "establishing" a national church. The State of Massachusetts taxed its citizens to support churches right up through the 1830's. The Fourteenth Amendment, however, expressly imposes on the States the legal duty to treat all persons equally. "Persons" means everybody, including corporations as well as bloodthirsty foreign terrorists. And, under Section 5 of the Fourteenth Amendment, the Congress was given the power to enforce the Fourteenth Amendment through "appropriate legislation".
The New Federalism
Since the 1950's, federal civil rights laws have been an effective tool for social change against oppressive state and local government opposition. Federal statutes have been passed prohibiting discrimination based on race, age, gender and disability. While conservatives ideologues regularly attacked judges who interpreted these laws, calling them "activists", the real fount of liberal activism is not the courts, but the Congress.
I don't think this would surprise any political philosopher, from Plato through Burke, but it does seem to surprise contemporary conservatives, who grew up believing that the Warren Court was the focus of evil in the Western World. In recent years, the conservative majority of the Rhenquist Court has moved to curtail civil rights lawsuits, wherever and whenever possible. Merely rolling back "liberal" precedent was not enough. The only way to completely stamp out civil rights lawsuits was to extirpate democracy at its root: the power of the legislative branch to enact laws.
A series of cases, commencing about 1995 with the Lopez case, the Supreme Court has gone on an anti-democratic rampage. First they went for the easy targets, cutting back on Congress' over-extended powers under the Commerce Clause. In the United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court struck down a silly Act of Congress creating "Gun Free School Zones". The Court found that possession of firearms in and around schools has no significant effect on interstate commerce, and therefore the Congress exceeded its power, under the Commerce Clause, to regulate interstate commerce. Prior to this case, and since the time when the conservative Supreme Court opposed Franklin Roosevelt's New Deal, the Commerce Clause had been used as an excuse to enact just about any federal law, since everything has at least some tenuous or tangential effect on interstate commerce.
Next, the Court held that Congress did not have the power to let Native American Tribes sue States in federal court to enforce gambling contracts under the Indian Gaming Regulatory Act. Seminole Tribe of Florida v. Florida517 U.S. 44 (1996). Article I of the original Constitution gave Congress the authority to regulate commerce with "the Indians", as well as interstate commerce. However, the Court decided that Article I authority did not allow Congress to override the Eleventh Amendment. The Court decided that only Section 5 of the Fourteenth Amendment gives Congress the power to subject the States to a lawsuit, through "appropriate legislation" to guaranty legal equality to all "persons".
So the question becomes, what is "appropriate legislation" under the Fourteenth Amendment? In City of Boerne v. Flores, 5211 U.S. 507 (1997), the Court held that the Religious Freedom Restoration Act was not "appropriate legislation" to enforce the Fourteenth Amendment. Simply put, the Fourteenth Amendment did not give Congress the power to tell the Supreme Court how to interpret the Constitution.
Unfortunately for the conservative agenda, the Eleventh Amendment itself had a loophole large enough to drive a lawsuit through it, namely, it only applied in federal court. You could still bring federal civil rights lawsuits against States in state courts. (Since a vast majority of federal judges have been appointed by conservative Republican presidents, this is what civil rights lawyers were doing anyway). The conservatives plugged this loophole by abandoning all pretense of actually interpreting the United States Constitution, and instead resurrecting the English common law notion of "sovereign immunity".Alden v. Maine 527 U.S. 706 (1999).
Now the fun begins. First, you can't sue states for age discrimination. Kimel v. Florida Board of Regents, 528 U.S. 62 (2000). Age discrimination isn't race discrimination: the primary historical focus of the Fourteenth Amendment. Second, you can't sue for violence against women. United States v. Morrison, 529 U.S. 598 (2000). Violence against women has no significant impact on interstate commerce. Third, you can't sue states for disability discrimination. Board of Trustees of the University of Alabama v. Garrett 531 U.S. 356 (2001). Hundreds of witnesses in dozens of congressional hearings giving reams of testimony just isn't enough evidence to prove that States discriminate against people with disabilities.
The Court finally reached the limit of its rampage, however, with the Family and Medical Leave Act, in the case of Nevada Dept. of Human Resources v. Hibbs. How Hibbs can be squared with Garrett in any principaled way I leave to greater legal geniuses than myself.