would appoint judges who would interpret, rather than rewrite,rnthe Constitution, hi recent years, as Republican-appointedrnjudges have settled into a semi-permanent majority on thernCourt, there have been some signs of a return to a Constitutionrnwith content. Federalism flourished in the 1995 ruling in thernLopez case that the federal government had no business, evenrnusing its commerce power, to regulate the carrying of guns inrnor near local schools. Nor, according to the Supreme Court,rncould the federal government conscript state officials to carryrnout its mandates regarding handgun regulation. Nevertheless,rneven a Court dominated by purportedly conser’ative Republicanrnjustices has held that the states were not permitted to imposernterm limits on their federal representatives, that statesrncould not maintain male-only military academies, that localrnchapters of the Jaycees could not discriminate on the basis ofrnsex, and that state courts could not permit peremptory challengesrnto jurors based on race.rnUntil very recently, the federal courts even tended to upholdrnfederal requirements that state and local bodies enforce raciallyrndiscriminatory “affirmative action” programs. These havernnow been all but outlawed by the Supreme Court, althoughrnthe executive branch continues to try to implement them. Followingrnfederal statute, political rcdistricting was mandated inrnorder to increase the number of minority elected officials, butrnfortunately this has come under increasing scrutiny, and therernhave even been signs that a majorit)’ of the Supreme Court isrnnearing a declaration that all government-mandated discriminahonrnon the basis of race is unconstitutional. This may havernbeen the principle actually enshrined in the 14th Amendment,rnand a return to a color-blind Constitution would have thernserendipitous result of reducing federal influence on the states.rnThe federal courts, however, still have a powerful tendencyrnto restrict state sovereignty. For example, in 1997, by arnbare five-to-four majorit)-, the Supreme Court held that thernstate of Maine could not give special state tax benefits to charitablerninstitutions which served primarily state residents and denyrnthem to institutions which served primarily out-of-state residents.rnMost of the decisions regarding rcdistricting, race,rnreligion, or alleged rights of privacy have yet to be overturned.rnStill, there are occasional moves in the right direction. Inrn1996, by a five-to-four majority, the Supreme Court reaffirmedrnthe notion of state sovereignty by holding that Congress couldrnnot use the hidian Commerce Clause to abrogate the states’rnsovereign immunit}’—tiieir ancient right to decline to be subjectrnto federal lawsuits for state actions.rnState sovereign immunity was supposed to be protected byrnthe 11th Amendment, which provides that ” I’hc Judicial powerrnof the United States shall not be construed to extend to anyrnsuit in law or equity, commenced or prosecuted against one ofrnthe United States by Citizens of another State, or by Citizens orrnSubjects of any Foreign State.” In that 1996 decision, thernSupreme Court breathed new life into the amendment bv recognizingrnthat it stood for the proposition that “each State is arnsovereign entity in our Federal system.” Unfortunately, in thatrnver’ same case, the Supreme Court reaffirmed earlier holdingsrnthat, when rights arc asserted under the 14th Amendment orrnthe Interstate Commerce Clause, state sovereign immunityrngoes by the board. The Court thus held —incredibly—that thern14th Amendment somehow implicitly repealed part of thern11th, while the Commerce Clause somehow trumps thernlater 11th Amendment.rn’Ibis issue of state sovereign immunity—an essential aspectrnof state sovereignty—is once again before the Supreme Court.rnIn an extraordinar}’ case, a fifth-grade girl has brought a federalrncivil-rights suit against her local school board, arguing that itrnfailed to protect her purportedly federally secured right to bernfree from sexual harassment by a male classmate. As the casernwas argued before the Court this Januar}’, it appeared that a majorityrnof the judges were beginning to agree that, if local schoolrnboards were subject to federal lav’suits each time ten-year-oldrnbovs teased ten-year-old girls, the notion of local autonomy forrnschools —perhaps the very heart of states’ rights—was dead.rnThis had been recognized by the federal court of appeals,rnwhich had ordered tiie dismissal of the case. The Clinton administrationrnand feminist organizations demanded that thernSupreme Court reverse the court of appeals and declare localrnschool boards liable if they did nothing to prevent “sexual harassment”rnbv fellow pupils. Sometime in the late spring or earlyrnsummer, we will know how this case comes out, and whetherrnthe justices will rescue tiic states from this latest insult to theirrnprerogatives.rnMost legal analysts infer from the hostile questions asked ofrnthe ten-year-old plaintiffs lawyers that the justices will affirmrnthe decision of the court of appeals and say that this incursionrnon local school board autonomy goes too far. The federalrncourts have also wisely dodged, for the moment, the question ofrnthe Alabama judge’s hand-carved copy of the Ten Commandments,rnwhich remains in his courtroom. Wliilc welcome affirmationsrnof tiie constitutionally obvious, these are but tiny victoriesrnin a war that is all but lost.rnThe trimnph of Legal Realism is still nearly complete, andrnnot just in tiie federal courts on the issue of state sovereignty.rnPresident Clinton, as this is written, claims that 900 constitutionalrnhistorians support his assertion that his obvious perjuryrnbefore a grand jury, obstruction of justice, and witness-tamperingrn—felonies all—are not grounds for his impeachment andrnremoval from office. This is a strange construction of a Constitutionrnwhich clearly mandates the dismissal of a President whorncommits “high crimes and nnsdemeanors.” The Americanrnpeople seem, at this writing, broadly to support their Presidentrnand to believe his lies that his impeachment is just about “lyingrnabout sex.” If William Jefferson Clinton stays in office, and/orrnhis Vice President succeeds him for another term, we can expectrnthe appointinent of more Supreme Court justices whornshare their Legal Realist views and their agenda for reducingrntiie prerogatives of the states and expanding the reach of thernfederal government. This has consistentiy been the perspectivernof the ti,vo Clinton appointees, Justices Breyer and Cinsburg.rnIt may be too late to save state sovereignt}’ and the original intentionrnof the Constitution. A slew of bold Supreme Court appointmentsrnby a conservative Republican president mightrnhelp, but so far only Justices Thomas and Scalia, and occasionallyrnJustice Rehnquist, have acknowledged that the Court hasrnbeen operating for one or two generations in clearly unconstitutionalrnterritory. The odds of nominating jurists with theirrnsympathies are not great, and the possibilitv’ of getting themrnconfirmed by a Senate which leans toward Legal Realism andrnaway from the original understanding is slight. Periiaps nothingrnshort of a new eonstihitional convention, or at least a slewrnof correeti’e constitutional amendments, will restore somernsemblance of state sovereignty. The Federalist Societ)’, and thernadmirers of tiie Constihition of Madison, Hamilton, Washington,rnand even Jefferson, face an almost Sisyphean task. crnAPRIL 1999/15rnrnrn