Dervan on Selective Use of History in the Supreme Court's States' Rights Opinions

Selected Conceptions of Federalism: The Selective Use of History in the Supreme Court's States' Rights Opinions has just been posted by Lucian E. Dervan, Southern Illinois University School of Law. It appeared in the Emory Law Journal (2001). Here's the abstract:

In the period leading to the Civil War, debate over federalism and states’ rights developed into the seeds of a war that would forever change America. Over one hundred years later, the debate over federalism continues, unanswered by the blood of more than half a million soldiers. Over the last decade, the United States Supreme Court has increased state sovereignty and state immunity to levels unseen since the pre-Civil War period. The Court’s opinions are structured in a manner that relies significantly on historical methodologies. The multiple rationales used to structure the Justices’ arguments clash, and the Justices spar with one another over who is being more true to history. This current historical tug of war may be better understood through an analysis of the different historical methodologies employed in the Court’s sharply divided opinions. While arguments over history will never end, understanding the methods used by the Justices to find support in the past will better explain the ways the Supreme Court brings history into the issues that affect our lives today. Part I of this article begins with an explanation of the significance of the current federalism debate and the importance of examining the historical
arguments used to support the various Justices’ opinions of state sovereignty today. Part II describes the manner in which history has been used by the Supreme Court in the past, especially since the 1980s. In Part III, this article dissects four recent states’ rights cases and examines the use of history by the Justices. Finally, Part IV argues that the Justices employ multiple rationales, and these different methodologies, along with the incorporation of selective historical evidence, explain the sharp split in the Court’s states’ rights opinions. Through the use of four historical methodologies – the founding period, precedent, the Civil War and New Deal, and pre-ratification American history – the Justices examine selective historical evidence to construct competing Tenth and Eleventh Amendment federalism opinions.