Holistic interpretation: Fitzpatrick v. Bitzer and our bifurcated Constitution.

• Author: Jackson, Vicki C.

INTRODUCTION

Within days of the Symposium for which this essay was originally written, the Supreme Court found that yet another federal statute--this time, the Americans with Disabilities Act (ADA)--unconstitutionally abrogated states' immunity from suit.(1) Unconsented-to suits for damages by state employees who claimed violations of the ADA against their state employers were thus barred. Once again, the Court concluded that a federal statute was not constitutionally authorized by the Fourteenth Amendment and thus that, although the substantive provisions of the statute might be valid under Congress' Article I powers, Congress was not authorized to abrogate states' immunity from suit. In Seminole Tribe v. Florida(2) and Alden v. Maine,(3) the Court has recently insisted that the sovereign immunity of the states is a deep constitutional value, always implicit in the Constitution, mistakenly ignored in Chisholm v. Georgia,(4) leading to correction by the Eleventh Amendment, which is thus merely emblematic of a deeper and more pervasive constitutional principle of state sovereign immunity. I do not agree with the Court's conclusion, as to history, text, structure, or logic, for reasons set forth at length in other writings.(5) I continue to believe it would be consistent with a better view of the Constitution and with traditions of stare decisis in constitutional adjudication for the Court to reverse Seminole Tribe and to restore some version of the principle of Pennsylvania v. Union Gas.(6) But until it does so, its current federalism doctrines--and especially its sharp distinction between Congress' powers under the Fourteenth Amendment and those under Article I with respect to abrogation of state sovereign immunity--raise interesting questions of how to interpret an old constitution in light of its newer parts, questions which this essay explores.

Parts I and II of this essay identify a demarcation between the approach used in the Court's constitutional cases dealing with federalism in evaluating state immunities on the one hand, and federal powers on the other. In its recent decisions, the Court's analysis of the constitutional scope of federal powers has been particularly "clause-bound," while its analysis of state immunities has focused on a more holistic appreciation of the structure and relationship of different parts of the Constitution to each other.(7) In United States v. Morrison,(8) for example, the Court held unconstitutional the federal Violence Against Women Act's civil rights remedy, essentially on the ground that it was not closely enough linked to economic activity to come within the federal commerce power and that it was insufficiently directed at "state action" to come within the Fourteenth Amendment powers. By contrast, in Alden v. Maine(9) and Printz v. United States(10) the Court ranged through the Constitution's structure and history to support finding nontextual immunities--from private suit and from commandeering--for states. These and other recent "federalism" cases illustrate two interesting divides in constitutional interpretation: first, on the extent to which later enacted amendments should be read to modify earlier parts of the Constitution, or are instead themselves "reconciled" to and domesticated by the existing Constitution; and second, on the extent to which clauses bearing on a power or immunity are construed in isolation from other parts of the Constitution or together with those other parts. Why has the Court not considered the scope of the powers of the federal government in a more holistic way, according to which each clause of the Constitution is interpreted in light of the overall constitutional structure and, specifically, in light of the most recent amendments to the Constitution? And if, as the Court held in Fitzpatrick v. Bitzer,(11) the Fourteenth Amendment implicitly modified the Eleventh Amendment--which the Court has repeatedly asserted in recent years to be an important part of the federalism protections for states--why has the Fourteenth Amendment not also modified the scope of federal powers under Article I of the Constitution?

In Part III, I sketch two features of a form of holistic, structural interpretation: first, being attentive to the Constitution as a whole in evaluating particular interpretive problems,(12) and second, being attentive to temporal vectors of analysis that help reconcile constitutionalism with democracy--by which I mean looking at older parts of the Constitution through the lens of more recent amendments in understanding what the Constitution as a whole has become. I note the long provenance of the first feature of holistic interpretation, beginning with McCulloch v. Maryland(13) and suggest, as many before me have, that such a mode of interpretation will make for better constitutional interpretation than one that narrowly focuses on particular clauses or words considered apart from their position and presence in the overall constitutional structure. In other words, the holistic, structural mode the Court has used to discern rules for protecting the positions of states is not an illegitimate mode of reasoning (albeit one mistakenly applied, in my view, by the Court)--but is a mode that should be more generously applied to the powers of the federal government. I advance an argument from democracy in favor of the second feature of my version of holistic interpretation, under which the values reflected in later-enacted amendments must inform interpretation of the preexisting constitutional structure. The possibility of this form of holistic interpretation is one that has (fleetingly) appeared in the Court's decisions and has recently been invoked in an arguably analogous constitutional case in Canada.(14) To the extent that a constitutional court has a duty to interpret an older constitution in such a way as to promote and facilitate its survival and its workability, giving greater weight to more recent amendments may be a necessary feature of the Court's work.(15)

In the final Part, I consider briefly how this form of holistic interpretation might be applied to frame analysis of particular cases, as well as some of the interpretive difficulties it raises. First, I consider whether a more holistic view of the Constitution would have supported an argument in Morrison to treat the Commerce Clause power as broad enough to encompass Congress' role in removing obstacles to full participation in the national economy of those groups so systematically disadvantaged by law and history in the past as to warrant heightened forms of scrutiny under the Fourteenth Amendment.(16) I believe it would. I hesitate to advance a more aggressive reading of the scope of the Commerce Clause based on the Fourteenth Amendment than this one, which I believe is firmly anchored in the "central value"(17) of the Fourteenth Amendment and its progeny: equality. The notion of the primacy of the more recent amendment does not necessarily inform interpretation of its breadth, and the question of breadth is central to any effort to reread Article I powers in light of later enacted amendments. But amidst the many contested readings of the intended scope of the Fourteenth Amendment, there is widespread agreement on its core function of securing equality.

I next raise a question whether the Fourteenth Amendment's Privileges and Immunities Clause could be understood to inform the scope of Congress' authority to create and enforce federal rights pursuant to some Article I clauses (including, for example, the Bankruptcy Clause), to link them with national interests in affording equal "privileges" to all citizens and fair process to all persons within the United States in their dealings with state governments. Thus, even assuming arguendo that the Eleventh Amendment stands for a constitutional constraint on state amenability to suit under statutes enacted under Article I as it existed when the Eleventh Amendment was enacted, the question I raise is whether the "privileges and immunities" of national citizenship could reasonably be read to effect a change in the scope of remedies available to Congress to impose on states for failure to abide by statutes validly enacted under Article I powers. Under The Slaughter-house Cases,(18) could one understand rights conferred by federal statutes enacted under Article I to be among the "privileges and immunities" of citizenship? If so, would Congress have the power, acting under the Fourteenth Amendment, to abrogate state immunity from suit? I do not believe that the current Court would find this possibility an attractive doctrinal turn. But I put forward these questions as a thought experiment in doctrinal exploration of possible relationships between the Fourteenth Amendment and Article I.(19)

1. THE ELEVENTH AND FOURTEENTH AMENDMENTS: CHRONOLOGY AND THE BIFURCATED CONSTITUTION

   The Eleventh Amendment cases have sharpened the supposed cleavage between the Fourteenth Amendment and the "basic" Constitution. In 1976 the Court held in Fitzpatrick v. Bitzer(20) that Congress, when it acts under Section 5 of the Fourteenth Amendment, can subject states to suit in federal courts notwithstanding the Eleventh Amendment. This holding has been reaffirmed,(21) even as the Court in Seminole Tribe v. Florida(22) and its progeny have held that Congress lacks power to subject states to suit when acting under its Article I powers.

   Because the power to subject states to suit now depends on whether Congress is acting under Article I or under the Fourteenth Amendment, in a wide range of areas of federal law courts must now identify which power Congress acted under in order to know whether an attempt to make states subject to the same remedies as others is or is not constitutional.(23) The premise for this cleavage between the remedies available against states under Article I and the remedies against states available under the Fourteenth...