Narrowing the Nation's Power: The Supreme Court Sides with the States.

• Date: 01 May 2003
• Author: Solimine, Michael E.
• Published date: 01 May 2003
• Author: Solimine, Michael E.

NARROWING THE NATION'S POWER: THE SUPREME COURT SIDES WITH THE STATES. By John T. Noonan, Jr. Berkeley: University of California Press. 2002. Pp. ix, 203. Cloth, $24.95.

INTRODUCTION: THE EMBARRASSING ELEVENTH AMENDMENT

For many years the Second Amendment to the Constitution (1) was construed by most authorities to grant a communal right to bear arms, through state militias and the like. Some years ago Sanford Levinson labeled this interpretation "embarrassing" to liberal scholars. (2) That characterization was deserved, Levinson argued, since liberal academics had been eager to defend expansive interpretations of other rights-granting provisions of the Constitution. (3) But they failed to do so when it came to language in the Second Amendment, which could be plausibly construed to grant an individual right to bear arms. The failure might be attributed, in part, to the conservative, anti-gun-control agenda that such an interpretation might serve.

A similar dynamic (4) is at work for conservative scholars and the Eleventh Amendment. (2) Read literally, without the nuances of history and case law, the Amendment might be read as a mundane housekeeping measure for federal courts. On its face, it just prohibits suits in federal court against a state by citizens of another state, or those of a foreign state. But the Amendment has not been read literally: (6) today its reach extends to any suit in federal court for damage relief by any citizen against an unconsenting state, with only a limited opportunity for Congress to statutorily authorize such suits. And by analogy, the penumbra of the Amendment extends to lawsuits for damages based on violations of federal law against states in their own courts. These interpretations should be embarrassing to conservatives, since they are at war with the text of the Amendment, and draw little support from history or what we know of the intent of the framers and ratifiers of the Amendment. Yet many conservatives cheer on--or do not criticize--the Rehnquist Court's Eleventh Amendment jurisprudence, perhaps because it resonates with a pro-federalism policy agenda. (7)

One conservative who is embarrassed by the Eleventh Amendment jurisprudence is Judge John Noonan, (8) as revealed in his recent monograph, Narrowing the Nation's Power. Judge Noonan comes to the topic with impeccable scholarly and conservative credentials. A multidegree graduate of Harvard, he served on the law faculties of Notre Dame and Boalt Hall, published numerous books and articles on religion, ethics, and constitutional law, and was appointed to the Ninth Circuit by President Reagan in 1985. (9) He is now on senior status in that court. Judge Noonan's sharp critique of the Rehnquist Court's federalism jurisprudence in general, and the Eleventh Amendment cases in particular, has drawn notice and praise in the mainstream media. (10) The Senate Judiciary Committee even held a hearing on the book. (11)

Yet given the enormous, and mostly critical, scholarly commentary (12) on the Court's Eleventh Amendment cases, one must ask what Judge Noonan's book adds to the literature, which has been described as "not only voluminous but dazzling," and unsurpassed in its "insight, elegance, and sophistication ... by any similar body of work in all of constitutional law." (13) This Review answers that question. Part I of the Review surveys the tone and substance of Judge Noonan's book. Part II discusses conservative legal opinions on the Eleventh Amendment. The first two parts are concerned mainly with a formalist critique of Eleventh Amendment doctrine, that is, analyzing the cases in light of precedent, history, and deductive logic. Drawing on arguments raised by Judge Noonan, the third and fourth Parts turn to a more pragmatic critique of those cases. Part III considers why the Rehnquist Court has seemingly decided so many cases raising Eleventh Amendment issues, and suggests that one of the reasons is the activism of state attorneys general in aggressively litigating the cases, as parties or amici curiae, in the Supreme Court. An empirical study on the states' amicus activity in Eleventh Amendment cases is presented there. Part IV revisits additional rationales for, and empirical effects of, the Eleventh Amendment cases. With regard to the former, I address whether current Eleventh Amendment doctrine has some functional justifications, whatever its doctrinal shortcomings. With regard to the latter, I revisit the claim of some that there are gaping exceptions to the doctrine that, taken with the purported availability of state-law remedies, considerably ameliorate the supposed negative effects of the doctrine on the enforcement of federal law. The conclusion briefly outlines an alternative path the conservative Justices on the Court could have, and perhaps should have, taken in shaping Eleventh Amendment doctrine.

1. JUDGE NOONAN'S ARGUMENT

   In addition to being embarrassed, Judge Noonan is not coy about his position. In a helpful prologue marked by clear, jargon-free writing--as is the balance of the book--he observes that the Court's recent federalism cases are at "the center of an explosive package" of expanding state sovereign immunity, at the expense of Congressional power that results in a federal "right without a remedy" (p. 4). The Eleventh Amendment cases are "boldly innovative" (p. 9) because they have little connection, he says, to the text or original intent of the Amendment. The majority opinions themselves make little attempt, in his view, to justify a broad interpretation of the Amendment in light of precedent, logic, or practical difficulties of the state defendants.

   As the title of the book reflects, Judge Noonan is concerned with the whole federalism jurisprudence of the Rehnquist Court. He spends two separate chapters critically examining Morrison v. United States (14) and City of Boerne v. Flores, (15) where Court majorities struck down provisions of the Violence Against Women Act and the Religious Freedom Restoration Act, respectively, as beyond the constitutional powers of Congress. But the bulk of the book considers the Eleventh Amendment cases. (16)

   Those cases will be familiar to many readers, and only the briefest summary is necessary here. (17) The doctrinal story begins with Chisholm v. Georgia, (18) in 1793, where the Court held that sovereign immunity did not bar a suit in assumpsit by a South Carolina citizen against Georgia, as it fell within Article III's grant of judicial power over controversies "between a State and Citizens of another State." (19) With a swiftness remarkable for that period or any other, the Eleventh Amendment was passed to overrule that holding within two years. (20) What more, if anything, it was intended to do remains controversial to this day. A century later in Hans v. Louisiana, (21) the Court held that the intent of the Framers, though not conveyed by a literal reading of the text, was to bar federal question suits for damages in federal court by citizens of a state against that state.

   But several exceptions seemingly blunted the broad ruling in Hans. On the same day Hans was decided, the Court held the ruling did not apply to suits against political subdivisions of a state. (22) During the Progressive Era, the Court held in Ex parte Young (23) that the Amendment did not bar injunctive relief in federal court when the state official was named as the defendant. The Court in the 1970s held that the Young exception did not cover injunctive suits against state officials that had the effect of a retroactive damage award drawn from the state treasury. (24) But only two years later, a unanimous Court held in Fitzpatrick v. Bitzer (25) that Congress could statutorily abrogate state immunity in federal court by passing legislation under Section Five of the Fourteenth Amendment.

   Fitzpatrick seems to have been the high-water mark of the expansion of exceptions to a broad reading of the Eleventh Amendment. In the 1980s the Court required that Congress clearly state in the text of a statute that sovereign immunity was meant to be abrogated. (26) At the end of that decade a fractured Court held that Congress could statutorily abrogate under its Article I powers as well. (27) but that was overruled in 1996 by Seminole Tribe of Florida v. Florida. (28) Then the Court began to restrict Congress's Section Five power. Building on the Boerne case, which did not involve the Eleventh Amendment, the Court insisted that the abrogating statute must be based on a legislative record that demonstrates that the remedy created (a private cause of action for damages against a state in federal court) is proportionate to the injury (state violation of a federal constitutional right embodied in Section One of the Fourteenth Amendment). On three of four occasions the Court has found that abrogating legislation did not meet this level of scrutiny, and hence the legislation was found unconstitutional. (29) And equally if not more controversially, the majority of the Court in Alden v. Maine (30) in 1999 held that the penumbra of the Eleventh Amendment did not permit Congress to statutorily authorize private suit for damages against unconsenting states in state court.

   Judge Noonan tells this story at greater length, though much of it will be familiar to experts in the field. Still, he has useful insights and nuances to the story. For example, he discusses, and finds wanting, the purported Framer's intent cited by the Hans Court. Evidence that some of the Framers wished to preserve a broad understanding of sovereign immunity (and thus apparently contradicted by Chisholm v. Georgia) is best read, he says, as restricted to diversity jurisdiction, not federal-question jurisdiction, and as not limiting the power of Congress. (31) Elsewhere, he notes the "illogic" of Ex parte Young (32)--the defendant official is a state actor, but is stripped of immunity by virtue of being alleged to have...