Article Argues that the 11th Amendment Makes Sense

October 12th, 2010

It is quite epic at 103 pages, but it looks like a doozy. Take a look at The Eleventh Amendment and the Nature of the Union in the Harvard Law Review. Here is the abstract:

Leading theories of the Eleventh Amendment start from the premise that its text makes no sense. These theories regard the Amendment as either under-inclusive, over-inclusive, or an incoherent compromise because it prohibits federal courts from hearing “any suit” against a state by out-of-state citizens, but does not prohibit suits against a state by its own citizens. Two of these theories would either expand or contract the immunity conferred by the text of the Amendment in order to avoid this absurd or anomalous result. This Article suggests that the Eleventh Amendment made sense as written when understood in its full historical context. In particular, the Articles of Confederation empowered Congress to require states to supply men, money, and supplies, but gave Congress no power to enforce its own commands. Prominent Founders initially argued that the only way to fix the Articles was to give Congress coercive power over states. But the Convention, and the ratifiers, ultimately rejected this idea because they feared that the introduction of such power would lead to a civil war. To avoid this danger, the Founders designed the Constitution to give Congress legislative power over individuals rather than states. This novel approach eliminated the need for coercive power over states, and provided Federalists with a key argument for adopting the Constitution rather than amending the Articles. Anti-federalists threatened to undermine this case for the Constitution by arguing that the state-citizen diversity provisions of Article III — authorizing suits “between” states and out-of-state citizens — could be construed to permit suits against states (and thus imply federal power to enforce any resulting judgments against states). Although Federalists denied this construction, the Supreme Court proceeded to read Article III to permit out-of-state citizens to sue states. Federalists and Anti-federalists quickly joined forces to restore their preferred construction of Article III. In adopting the Eleventh Amendment, they saw no anomaly in prohibiting “any suit” against a state by out-of-state citizens because they did not understand the Constitution to authorize any suits against states by in-state citizens. Federal question jurisdiction did not expressly authorize such suits, and the Founders likely would not have perceived any real need for such jurisdiction given their understanding that the Constitution conferred neither legislative nor coercive power over states. Because the Eleventh Amendment, as written, made sense in light of the nature of the Union, the absurdity doctrine cannot justify departing from the terms of the Amendment.

Update: My friend Steven Menashi made a similar argument last year about the individual nature of the 11th Amendment in the Notre Dame Law Review in his article Article III as a Constitutional Compromise: Modern Textualism and State Sovereign Immunity. Here is the abstract:

This Article challenges the scholarly consensus that a textualist reading of the Constitution cannot support a broad constitutional principle of state sovereign immunity. In doing so, it develops a fuller account of textualist constitutional interpretation, recognizing that the original public meaning of a text may be informed by commonly held philosophical presuppositions or background political principles. Legislative compromise, moreover, pervaded the whole constitutional design, whether it took the form of precisely worded provisions that enact particular policies or imprecisely worded provisions that invoke abstract political principles.

The ratification of Article III contained just such a legislative compromise over abstract principles of state sovereign immunity. A potentially ratification-blocking minority of Antifederalists opposed granting federal courts jurisdiction over suits by individuals against states. In order to win ratification of the Constitution, Federalists gave to Article III a construction that incorporates a background principle of state sovereign immunity. That construction formed the original public understanding of Article III and the compromise struck at ratification. A textualist approach should honor that compromise. The ratification process gave political minorities the right to insist on such a compromise, so it would violate the process values underlying the Constitution to conclude, as most scholars do, that Federalist assurances respecting state sovereign immunity formed no part of the constitutional bargain.

While many scholars have long criticized the Supreme Court’s state sovereign immunity jurisprudence as inconsistent with other constitutional values, modern textualism and public choice theory recognize the centrality of compromise in the lawmaking process. The Constitution, too, was the product of a ratification process that involved political compromises. This insight, however, has been applied to constitutional interpretation in only a limited way. The few scholars who have applied the insights of public choice theory to constitutional interpretation have argued that a textualist approach to state sovereign immunity would read the Eleventh Amendment narrowly in order to respect a possible legislative compromise embedded in its precise text. But the limited textualism of scholars such as John Manning and Lawrence Marshall leads to a strained and implausible reading of the Eleventh Amendment because it fails to recognize the original understanding of the initial bargain embedded in Article III.