Alden v. Maine: Protecting the States at the Expense of the People

AuthorSarah Louise House
Pages275-302

Page 275

The author wishes to thank Professor Howard L'Enfant for his guidance and insight during the preparation of this article.

The jurisdiction of the Court, then, being extended by the letter of the constitution to all cases arising under it, or under the laws of the United States, it follows that those who would withdraw any case of this description from that jurisdiction, must sustain the exemption they claim on the spirit and true meaning of the constitution, which spirit and true meaning must be so apparent as to overrule the words which its framers have employed. 1

I Introduction

Alden v. Maine2 presented the Supreme Court with a constitutional question of first impression. There, probation officers filed suit in federal court against their employer, the state of Maine, under the Fair Labor Standards Act of 1938 (the "FLSA") alleging the State had violated the Act's overtime provisions. The United States District Court for the District of Maine dismissed the suit on the basis of the Supreme Court's ruling in Seminole Tribe of Florida v. Florida.3 Petitioners refiled their suit in state court. The Maine Supreme Judicial Court affirmed the trial court's dismissal of the action on the grounds that the provision of the FLSA that authorized private suits against a state in its own courts violated the principle of sovereign immunity. The Supreme Court affirmed in an opinion authored by Justice Kennedy holding that the Eleventh Amendment4 merely confirmed the principle of sovereign immunity that was implicit in the Constitution. Although earlier Eleventh Amendment cases5 rendered the result in Alden predictable, Page 276 the Court stepped beyond Eleventh Amendment jurisprudence by asserting that sovereign immunity found its basis not in that Amendment, but in the structure and history of the Constitution and the Tenth Amendment. In reaching this conclusion, the Court examined the debates surrounding the ratification of the Constitution and adoption of the Bill of Rights, pre-Constitution state law, writings of members of the founding generation, and prior Eleventh Amendment jurisprudence. The Court concluded that the founding generation did not contemplate state suability in their scheme of federalism, asserting that sovereign immunity had always been a part of the American consciousness. In doing so, the Court relied on a literal interpretation of some of the founders' words, but ignored the evolutionary nature of American government envisioned by those men. This reliance on federalism to support the right of state sovereign immunity was a misapplication of modern and, arguably, 1787 concepts of federalism.

The Founders sought to create a system that would permit Congressional action to promote unity, while considering the people's fears of an overreaching central government.6 By 1787 many citizens recognized the need for a central national authority to prevent states from destroying the Articles of Confederation.7Accordingly, certain powers were ceded to the federal government in order to insure stability and security, both of which had been lacking under the Articles of Confederation.8 By permitting the states to invoke the right of sovereign immunity through the structure and Page 277 history of the Constitution, the Alden Court undermined the concept of federalism because state sovereign immunity ultimately permits states to ignore the federal government in federal issues, and leaves individuals unprotected.

The Alden majority provides only one side of the constitutional debate on state sovereign immunity. The true intentions of the founders are ultimately impossible to discern,9 but their ideas on sovereign immunity serve a vital purpose in interpreting the meaning behind the words of the Constitution. The Court, looking only to the words of a few men from the founding generation, ignored the fundamental purpose of the Constitution. The object of the Constitution was not the protection of states, but the protection of individuals. The federal system served to protect the people from any government becoming too strong. The Court ignored the sovereignty of the people in Alden by crafting a view of federalism in which more rights are accorded to the states than to the citizens.

The majority opinion presents a flawed interpretation of history as reliance on authorities cited by the majority permits the conclusion that opinions differed as to the existence of state sovereign immunity. Also, even if state sovereign immunity could definitively be found to exist in 1787, this does not mean state sovereign immunity is compatible with today's form of government. The government has changed since 1787, even the founding generation recognized the fluidity of the Constitution, and, by relying on their interpretation of events over two centuries ago, the Alden majority departs from the modern scheme of government.

Section two of this paper examines the reasoning of the majority and dissenting opinions in Alden. An analysis of the historical nature of federalism comprises the third section. The fourth section consists of an analysis of the change in the balance of government precipitated by the Civil War. The final part of the paper examines Alden's implications on the Supremacy Clause and the Tenth Amendment, as well as the case's practical consequences.

II Alden V. Maine
A The Majority

The Court begins its analysis by examining the understanding of sovereign immunity at the time of ratification. According to Justice Kennedy, the states did not surrender the right of sovereign immunity upon entering the Union because it had existed in state Page 278 constitutions throughout the period of revolution and under the Articles of Confederation.10 To support this contention, the Court argued that the right of sovereign immunity remained with the states because the Constitution reserved to the states a "substantial portion of the Nation's primary sovereignty, together with the dignity and essential attributes inhering in that status."11 Although the Constitution delegated certain matters to the national government, the founding generation intended to create a "system in which the State and Federal Governments would exercise concurrent authority over the people-who were. . . 'the only proper objects of government.'"12 Because the states remained sovereign, they retained their right to immunity from suits by citizens and other states.13

The right of sovereign immunity originated in English common law. Under common law principles a suit could not be brought against the sovereign unless the Crown consented. The King could never be sued in any court because he was sovereign over all. Lower vassals could, however, be subjected to suits by higher sovereigns. Thus, in British history, the King as sovereign could never be brought into court, nor could suits be instituted against lords in their own courts, but suits could be brought against people in courts where they were subjects, not sovereigns.14 The majority urged that the states universally accepted this British practice, and as such did not understand the Constitution to remove state sovereign immunity.15

The American Revolution and the heavy debts incurred by the states during those years made state sovereign immunity a concern of state legislatures.16 The states wanted to insure they would not have to defend themselves against creditors, because such claims would lead to ruination and insolvency.17 The Alden Court relied on the words of Alexander Hamilton, James Madison, and John Marshall. Hamilton wrote that suits could not be commenced against a Page 279 sovereign without its consent, and because the states did not cede such power at the Constitutional Convention, it still existed.18Madison and Marshall voiced this same idea at the Virginia Convention.19 Because the retention of the right of sovereign immunity served the states' financial interests, there existed a valid basis for the argument in favor of state sovereign immunity.

The Alden Court also examined prior Eleventh Amendment jurisprudence in order to support its contention that sovereign immunity existed implicitly within the structure and understanding of the Constitution. The Court had repeatedly rejected the argument that the authors of the Eleventh Amendment intended it to be applied literally, narrowing the scope of subject matter jurisdiction by amending Article III.20 Just over one hundred years ago, the Court in Hans v. Louisiana21 settled the issue of state sovereign immunity under the Eleventh Amendment. By ignoring the literal language of Article III and the Eleventh Amendment, the Hans Court held that sovereign immunity prevented a suit by a citizen against his own state. In the opinion of the Hans Court, rejecting sovereign immunity would have strained the "Constitution and the law to a construction never imagined or dreamed of."22

Subsequent Supreme Court decisions adhered to this general understanding that the Eleventh Amendment was intended to overturn the decision of Chisholm v. Georgia23 and clarify the principle that sovereign immunity had not been surrendered with the adoption of the Constitution.24 Although prior to Alden the Court recognized the Eleventh Amendment as confirming the principle of sovereign immunity, such statements served as dicta to the main point that the...

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