We have all heard of "jury nullification," in which juries rule contrary to the law because they don't agree with the law. It seems to me, that in its unrelenting activism toward states' rights, this Court has engaged in a kind of incremental "judicial nullification" of the 14th Amendment. I use this term because the Supreme Court's responsibility is to interpret the Constitution, not change it. Since the 14th Amendment is part of the Constitution, and yet seems to have been rendered virtually unenforceable under these decisions, "judicial nullification" seems to be the only appropriate description. I'm not a lawyer, of course, and I expect some lawyers would take issue with the term. But let's take a look at recent Supreme Court Decisions, and you can make up your own mind about whether my use of the term is justified.
States' Rights Background
The Eleventh Amendment presupposes that each State is a sovereign entity in our federal system, and that it is essential to the nature of "sovereign immunity" that an individual can't sue "the state" without the state's consent. However, this sovereignty has generally not been held to confer complete immunity upon states within the federal system.
The Constitution grants Congress the right to abrogate a state's "sovereign immunity" in two sections: The Commerce Clause, (Article 1, Section 8) which gives Congress the authority to regulate commerce among the states (and Indian Tribes); and the "Enforcement Clause" (Section 5) of the 14th Amendment, which gives Congress the power to pass laws to enforce the guarantee of equal rights to all citizens.
The Supreme Court has held in past years that such abrogation of states' sovereign immunity is constitutional, if Congress unequivocally states its intention to do so, and is acting "pursuant to a valid exercise of federal power." Both sections have been used, to some degree, in passing civil rights legislation, as I pointed out in my article Freedom from Rape. And recent Court decisions have substantially - and progressively - limited Congressional authority in both areas.
This Court's decisions
In the 1995-1996 term, the Court said, in deciding Seminole Tribe v. Florida, that the 11th Amendment prevents Congress from unilaterally authorizing Indian tribes to sue States in federal court to enforce legislation based on the Commerce Clause. This means that a state can not be sued in federal court to enforce federal laws without the consent of the state, even if the law was passed as a "valid exercise of Congressional power, and even if Congress specifically stated its intent to abrogate state's sovereign immunity with the law.
Although that ruling said that Congress still retained the power of "explicit abrogation" under the Enforcement Clause of the 14th Amendment, the Court significantly restricted that power in a following decision, City of Boerne v. Flores. In that case, the Court restricted Congressional enforcement-clause powers by requiring "congruence and proportionality" between 14th Amendment violations by the states and the Congressionally-legislated remedy.
In the 1998-1999 term, Supreme Court decided, by identical 5-4 votes, three cases that virtually wiped out Congress' capacity to make a state's legal obligations judicially enforceable: Alden v. Maine, Florida v. College Savings Bank, and College Savings Bank v. Florida. In each of these cases, the majority consisted of Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas.
In Alden v. Maine, Court ruled that state workers may not enforce federal minimum-wage laws in state courts, without the consent of the state. In other words, having already prohibited lawsuits against states brought in federal courts in Seminole Tribe, in Alden, the Court now prohibited lawsuits against states in state courts as well.
In the College Savings cases, the question was a little different. In the law being challenged, Congress had amended Federal patent law to specifically state its intent to abrogate state sovereign immunity and to explicitly define activities which would constitute a state "waiver of sovereign immunity" under that law. By adding language which, in effect, said, "by engaging in these activities, a state officially consents to become subject to this law," Congress intended to address the "consent of the state" issue upon which the previous two cases had been ruled unconstitutional.
In College Savings v. Florida, the Court held that state immunity can only be waived "when a State voluntarily invokes, or clearly declares that it intends to submit itself to, the jurisdiction of the federal courts." In drafting the amendment to federal patent laws, Congress had relied on a 1964 precedent, Parden v. Terminal Rail Road Co., which held that "an implied or constructive waiver is possible when Congress provides unambiguously that a State will be subject to private suit if it engages in certain federally regulated conduct and the State voluntarily elects to engage in that conduct." The court simply dismissed that reliance by stating that the ruling in Parden had never been applied to another statute, had in fact been narrowed in subsequent cases, and, finally that "[w]hatever may remain of this Court's decision in Parden is expressly overruled."
In the "companion" case, Florida v. College Savings, the Court further restricted Congressional enforcement-clause powers by adding a requirement that any legislation enacted as an exercise of the enforcement clause powers must "respond to a history of widespread and persisting deprivation of constitutional rights," not just a particular instance of a state depriving an individual of his or her constitutional rights.In the current term, the Court ruled in Kimel v. Florida Board of Regents, that state governments are shielded against federal age-bias claims by the doctrine of Sovereign Immunity, again, by the same 5-4 split that the previous term's cases were decided.
In Vermont Agency of Natural Resources v. U.S. ex rel Stevens, the Court ruled that a state cannot be sued under the False Claims Act. This act, also known as the whistle-blower law, permits an individual to file a civil action on behalf of the federal government against "[a]ny person" who "knowingly presents a false or fraudulent claim for payment" to the government. However, the Court ruled that states' 11th Amendment sovereign immunity does not permit an individual to file such suits against a state or a state agency, even if that state is defrauding the federal government, and thus, the American people.