In its 1996 decision, Seminole Tribe v. Florida, the Supreme Court, reversing itself, held that Congress lacks Article I power to abrogate states’ Eleventh Amendment immunity from suit in federal court. In exploring the decision’s ramifications, Professor Jackson contends that it may foreshadow more pervasive, and more troubling, shifts in the balance of power between state and federal governments, and among the federal, judicial, legislative, and executive branches. In particular, the Court’s dubious reasoning in Seminole Tribe may have severe repercussions on the federal courts’ ability to enjoin state officials from violating federal Iaw in the future. The availability of such equitable relief, under the so-called Ex parte Young doctrine, has long been accepted as a necessary counterbalance to the states’ Eleventh Amendment immunity from federal jurisdiction. While the new restrictions on Congress’s power would seem to make the availability of such relief more important than before, Professor Jackson examines how the Court’s unfortunate analysis in Seminole Tribe may presage a substantial limitation of the Ex parte Young doctrine in the federal courts. Professor Jackson concludes by articulating the dangers that such a course might pose to federal courts’ role in maintaining the rule of law and the supremacy of federal law.
Vicki C. Jackson
In Response to: The Declining Influence of the United States Constitution
David Law and Mila Versteeg have used their considerable legal and empirical skills to identify what they provocatively describe as the “declining influence of the U.S. Constitution,” or of what they sometimes call “American constitutionalism.” This claim has been headline-grabbing in important part because of the larger sociolegal context, in which the question of American hegemony in the world of global politics and economics is deeply unsettled. Declining influence in the design of constitutions thus resonates with a larger set of anxieties about the role of the United States in the world.
An alternative to seeing greater variations among constitutional instruments as a sign of decline in the influence of the U.S. Constitution within a framework of power hierarchy and competition, is instead to see the increased variations in a framework of evolution and diffusion, and as a sign of the success—not the failure—of the U.S. constitutionalist project. To read “decline” into greater variation may, then, be simply a reflection of anxieties in other spheres, rather than a troublesome development in its own right. In the rest of this comment, I offer brief thoughts on the influence of the U.S. Constitution and on the challenges of accurately and completely tracking such influence. I close with some questions about whether and why influence matters.