The U.S. Supreme Court ended its October 1998 term on June 23, the earliest closing date in 30 years. Anthony Lewis, writing in the New York Times, declared that the term “showed us a phenomenon that this country has not seen for more than 60 years: a band of radical judicial activists determined to impose on the Constitution their notion of a proper system of government.” The Wall Street journal observed blandly that the Court was engaged in “an important effort to restore the balance between state power and federal power” and that “the Constitution doesn’t permit Congress to order the states around willy-nilly.” Who got it right?

The three decisions that had set off Mr. Lewis concerned whether states are immune from suit by aggrieved individuals, pursuant to the ancient doctrine of “sovereign immunity.” The Court had ruled that they were. Sovereign immunity for the states was clearly a part of our jurisprudence at the time of the Constitution, and a cautious return to that doctrine should really set off no alarms. It is not as if we don’t have enough litigation clogging our courts already, and there are other means of redress available, through state or federal legislation or administrative action, or through court actions brought by the federal government. The Wall Street Journal has the better of the argument.

In general, the October 1998 term was a good one for believers in the rule of law, although too many decisions were by slim five to four majorities. It is hardly reassuring that the future of constitutional government in our republic rests on the discretion of Sandra Day O’Connor, the justice who most frequently shifts between the bloc of “conservatives” (Rehnquist, Scalia, Thomas, and Kennedy), and the bloc of “liberals” (Stevens, Souter, Breyer, and Ginsburg). Justice O’Connor was with the conservatives on the three key state sovereign immunity decisions, but still voted with the liberals to reverse a lower federal court and declare that state school districts could be sued for failing to prevent elementary school students from sexually harassing each other. Only Justice O’Connor knows how these positions can be reconciled.

Even so, Justice O’Connor wrote a fine majority opinion in a case rejecting the Clinton administration’s plan to use statistical sampling when conducting the 2000 census. Since this count is used to determine congressional representation, many Republicans feared statistical sampling would be used to create more districts where Democrats could win. Justice O’Connor correctly pointed out that the words of the Constitution expressly call for an “actual” enumeration for the purposes of determining congressional districts, but the marvel was that four Supreme Court justices still believed that statistical sampling was permissible.

The Wall Street Journal, quoting Prof Jonathan Turley of George Washington University, noted that one might say, based on recent Supreme Court decisions, that the “federalism revolution” was under way. Turley was my law student, so I believe him to be a particularly astute court critic, but the “federalism revolution” still has not succeeded. Anthony Lewis has not really seen any “radical” behavior yet. What would be radical? When will the “federalism resolution” be won?

If real state sovereignty, as contemplated by the Framers, is actually to be restored, it would require the abandonment of the “selective incorporation” doctrine, by which the 14th Amendment has been read by the Supreme Court to impose the restrictions of bits and pieces of the first eight amendments on the states. The Bill of Rights, the first ten amendments to the Constitution, was designed by its framers to be a safeguard against the federal government, because of the fear that a federal leviathan would obliterate state and local governments. Since the 1920’s, however, the Supreme Court has concluded that the 14th Amendment’s prohibitions that no state shall deprive any person of the “equal protection” of the laws, or that no state shall deprive any person of life or liberty without “due process,” means, somehow, that state actions are subject to nullification by federal courts in matters of speech and press, in the administration of criminal law, in state educational programs, and in state laws regarding contraception and abortion —all areas die original understanding of the Constitution and the Bill of Rights u ould have marked out as the province of the states, not the federal government. It may be true that the Supreme Court has begun to understand that the Constitution “doesn’t permit Congress to order the states around willy-nilly,” but while the “selective incorporation” doctrine survives, it will remain true that the Supreme Court and the other federal courts can do just that.

There is a slim historical foundation for both the “selective incorporation” doctrine and the “total incorporation” idea promoted by the late Supreme Court Justice Hugo Black. At the time of the passage of the 14th Amendment, one framer of that amendment. Congressman Bingham of New York, stated his belief that the “Bill of Rights” should protect state citizens, and one other framer. Senator Howard, did actually claim that the text of the amendment was designed to extend the protections of the first eight amendments against the state governments. But the 14th Amendment does not make this point expressly, and the words that amendment uses —”privileges and immunities,” “equal protection,” “due process”— appear to have other connotations. There is precious little, if any, contemporary evidence that the state ratifiers of the 14th Amendment understood that it was to work the radical deconstruction of federalism that the Supreme Court has accomplished over the last 60 years in its “selective incorporation” decisions. A few legal and constitutional historians—Raoul Berger is the most prominent example—have recently railed against the “selective incorporation” doctrine, and it was subject to powerful academic criticism a generation or so ago. Not one member of the Court’s current “conservative” bloc has suggested doing away with the doctrine, however, and until that happens Mr. Lewis is simply crying “wolf”