Alden v. Maine and the jurisprudence of structure.

• Author: Young, Ernest A.

Last term's decision in Alden v. Maine(1) is the latest chapter in the Rehnquist Court's effort to revive federalism doctrine as a meaningful limit on the power of the national government. The Court had already held, in Seminole Tribe v. Florida,(2) that the Constitution embodies a principle of state sovereign immunity that is not subject to abrogation by Congress(3) Alden, however, took a significant step beyond Seminole Tribe by announcing that this constitutional immunity applies even in state court lawsuits where the Eleventh Amendment is wholly inapplicable.(4) The voting pattern was familiar: Justice Kennedy, joined by the Chief Justice and Justices O'Connor, Scalia, and Thomas in the majority; Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer in dissent? In both substance and line-up, Alden is typical of the "federalist revival" that some commentators have identified in the Rehnquist Court's jurisprudence.(6)

Alden ought to be a good case to stop and examine the interpretive methodology of the "federalist revival." Yet when the focus shifts from result to method, several curiosities arise. Most would agree that the current doctrinal emphasis on state's rights is driven in some sense by "conservative" ideology.(7) One would therefore expect the new federalism cases to be dominated --methodologically speaking--by textualism and originalism, the two interpretive methods associated most commonly with conservatism.(8) Alden disappoints any such expectation, however.

It is hard to see how a textualist could view Alden as anything other than a disaster. The Court's state sovereign immunity jurisprudence has always had a somewhat strained relationship to the text of the Eleventh Amendment. But Alden drops the textual fig leaf entirely, acknowledging that any principle of immunity applicable in state court can have no basis in the Eleventh Amendment.(9) After all, that amendment governs only "[t]he Judicial power of the United States"(10)--not that of the state courts. Nor does the Alden majority purport to rest its holding on any other provision in the constitutional text. The abandonment of textualism is as clear and self-conscious as anyone could wish.

Instead, Justice Kennedy's opinion for the Court in Alden relies almost entirely on history. As such, it appears to rest on the originalism espoused by many textualists--most prominently Justice Scalia--as a necessary supplement to the not-always-determinate text. But Justice Kennedy's originalism in Alden is of an altogether different stripe than that advocated by Justice Scalia, Judge Robert Bork, and others. These prominent originalists advocate reliance on the original understanding of constitutional text; everything depends on what the particular textual term at issue generally would have been understood to mean at the time it became part of the Constitution. The Alden opinion, by contrast, asks instead whether the Framers thought states should be suable in their own courts--a strictly intentionalist question wholly divorced from the interpretation of any particular text.

Read in context, however, the intentionalist aspects of Alden seem secondary to a different method entirely--one that focuses on the original understanding of overall structure rather than particular constitutional provisions. Justice Kennedy's argument in Alden is not so much that the Framers thought about the particular question whether the states would be immune in their own courts and answered that question in the affirmative. Rather, he argues that the Framers understood the constitutional structure to embody certain broad principles--"big ideas," if you will --drawn from the history of legal and political theory. Because Justice Kennedy is convinced that state sovereign immunity is one of those principles, any congressional action inconsistent with that principle must be constitutionally invalid. Alden's lack of any textual anchor at all makes this approach more explicit than before, but ultimately it seems the best explanation for a number of the Court's recent federalism cases.

In this Essay, I come neither to bury Alden's interpretive method nor to praise it. As the action in constitutional law shifts from issues of individual rights to government structure, it is only natural that structural modes of interpretation will take on a more prominent role in debates over interpretive methodology.(11) To the extent that Alden represents a relatively distinct form of the structural method, I hope to assess its strengths vis-a-vis other forms of constitutional argument and to identify potential pitfalls that counsel caution. Specifically, I want to make three points about Justice Kennedy's structural jurisprudence of "big ideas."

First, the approach to structural argument taken by the Alden majority--and, interestingly, by the dissent as well--may be a useful addition to the Court's interpretive repertoire. By linking the Framers' original understandings of the Constitution's structure to broader aspects of political theory, the "big ideas" approach offers recourse to sources that may offer determinate answers when more familiar sources, such as text and specific history, run out. But the method also has potentially serious liabilities, arising from its tendency to press courts toward more complete theorization of constitutional issues. Although the federalism cases do not provide an adequate body of evidence to support firm conclusions, it seems likely that "big ideas" structuralism will frequently be helpful if used with appropriate awareness of these dangers.

Second, although Alden's structural jurisprudence represents a significant departure from textualism and the more widely accepted versions of originalism, that does not mean that broad structural principles should be eschewed by "conservative" jurists. Rather, Justice Kennedy's approach in Alden, and in a number of other opinions, represents a different kind of "conservatism"--one that emphasizes continuity with the past and the organic development of social institutions over the primacy of text.(12) Appreciating the difference between this approach and Justice Scalia's more explicitly articulated views may enhance our understanding of the perspectives and fault lines within the Court's current conservative majority.

Third, the jurisprudence of "big ideas"--like any other interpretive methodology--can be done well or poorly. Just as textualists and originalists are concerned primarily with limiting the range of discretion available to unelected judges in constitutional cases, an adherent of "big ideas" must also take pains to handle them in ways that constrain as well as illuminate. In particular, a judge interpreting the constitutional structure in light of first principles must be careful to take those principles as he finds them--complete with their historical qualifications --rather than picking and choosing among different aspects of those principles so as essentially to construct what he had always hoped to find.

Part I of this Essay briefly describes the case law leading up to Alden as well as the Alden majority's basic analysis,(13) That history describes a gradual but escalating deviation from the Eleventh Amendment's text. The story culminates with the Alden majority's decision to jettison the text entirely. In Part II, I argue that Alden's methodology fits neither of the approaches --textualism or originalism--usually identified with a conservative Court.(14)

Part III develops Justice Kennedy's approach to structural argument in more detail.(15) For purposes of comparison, I describe initially two alternative models of structural argument: the structural aspects of the "New Textualism" espoused by Justice Scalia and others, and the more open-ended structuralism of Professor Charles Black. I next trace Justice Kennedy's emphasis on broad structural principles from Alden back through his important concurrences in U.S. Term Limits, Inc. v. Thornton(16) and United States v. Lopez.(17) I also suggest that other recent federalism opinions, including Justice O'Connor's opinion in New York v. United States(18) and even Justice Scalia's opinion in Printz v. United States,(19) are best described as driven by "big ideas" rather than more conventional modes of argument.

In Part IV, I argue that Justice Kennedy's approach may be a useful element of the Court's interpretive arsenal, but that attention must also be paid to the method's potential liabilities.(20) I also contend that this sort of structuralism is perfectly consistent with judicial conservatism, properly conceived. Finally, in Part V, I criticize the particular application of structural principles in Alden.(21) Interestingly, there is no disagreement on interpretive method between Justice Kennedy's opinion for the majority in Alden and Justice Souter's dissent. I conclude, however, that Justice Souter's is the more careful approach to structural principle because it is more faithful to the historical constraints that traditionally have cabined the concept of sovereign immunity. A comparison of Justice Souter's use of "big ideas" structuralism in Alden with Justice Kennedy's use of the same method suggests criteria for evaluating the use of this method in other cases.

1. HOW DID WE GET HERE? THE TROUBLED RELATIONSHIP OF THE CASES AND THE TEXT

   The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.(22) The troubled relationship between that text and the Court's state sovereign immunity doctrine is a long story, and I will attempt only a brief outline here.

   1. What Had Gone Before

      The Court's 1890 decision in Hans v. Louisiana(23) is probably the best place to start. In Hans, the Court held that the Eleventh Amendment barred...