VIEWSrnSisyphus and States’ Rightsrnby Stephen B. PresserrnCan a ten-year-old girl successfully sue a local school boardrnfor failing to prevent the sexual harassment of the youngrnlady by an elementary-school classmate? Should an Alabamarnstate court judge be able to display his hand-carved copy of thernTen Commandments in his courtroom? Can the people of arnstate decide that no state municipalit)- is permitted to forbid discriminationrnon the basis of sexual orierrtation? Is a state forbiddenrnfrom declaring that only English shall be used for officialrnstate business? These are a few of the more outlandish questionsrnthat federal courts have recently addressed. Some remainrnunresolved, but all suggest that the federal government,rnthrough the federal courts, is now engaged in supervising andrncircumscribing the activities of states and their people to an extentrnall but undreamed of until recentiy.rnTwo hundred and eight years ago, when the Tenth Amendmentrnto the Ihiited States Constitution was ratified, there wasrngeneral agreement with its text: “The powers not delegated tornthe United States by the Constitution, nor prohibited by it tornthe States, are reserved to the States respectively, or to the people.”rnTwo hundred and eight years ago, Americans thought ofrnthemselves as citizens of their states first, and only secondarilyrnas citizens of a national federation. Now it is unclear that mostrnAmericans are even aware of the Tenth Amerrdment, let alonernthe principle that the federal government is supposed to be onernof limited and enumerated powers.rnMow did we come to this pass? Is there any hope that thernfederal courts will once again read the Constitution and, atrnleast to the extent implied by that document, resurrect somethingrnof the doctrine of states’ powers, if not states’ rights? Inrnthe nation’s law schools, among a very few professors and an in-rnStephen B. Presser is the Raoul Berger Professor of Legal Historyrnat Northwestern Universit}’ School of Law and the legal affairsrneditor for Chronicles.rncreasing number of students, there is a faint sense that the federalrngovernment and the federal courts have gone too far. A nationalrnorganization called the Federalist Society, with localrnchapters in many law schools and even many local bar associations,rnis now the most intellectually exciting and fastest-growingrnprofessional legal organization. Its central tenet is that therncontinued success of our republic depends on a reawakeningrnof understanding that ours is a federal system—an aggregate ofrnsovereign states united for common purposes but with divergentrngovernmental philosophies. While it is ironic that thernFederalist Societ)’ has adopted the name of the “strong centralrngovernment” advocates of the late 18th century, even Washington,rnHamilton, and Madison would have been astonished atrnpresent-day incursions of the central government and its courts.rnThe Federalist Societ)’ is swimming against the tide of mostrnof recent legal history and legal philosophy. The story of thernpresent usurpation of the states’ primary responsibility for domesticrnlaw and policy seems to begin in the legal academy irrrnthe first decades of the 20th century. For many years, thernSupreme Court had held that neither the state nor the federalrngovernments ought to be permitted to interfere with agreenrentsrnbetween employers and employees and, in particular,rnthat iro government had any business dictating minimumrnwages or maximum hours for workers. Indeed, for the mostrnpart, state and federal courts were even hostile to workers’ organizationsrnthat sought, by collective bargaining, to raise wages orrncontrol hours or working conditions. The courts held that therndoctrines which forbade state or federal interference with freedomrnof contract were based on frmdamental Anglo-Americanrnprinciples of individual liberty, and that these principles werernprotected and enhanced by the Constitution.rnA few judges—and many academics—vigorously began torndissent. Oliver Wendell Holmes, Jr., the great judicial skepticrnwho is regarded by nrost contemporary law professors as anrnAPRIL 1999/13rnrnrn