The Eleventh Amendment and the reading of precise constitutional texts.

Author:Manning, John F.

CONTENTS INTRODUCTION I. THE "SPIRIT" OF THE ELEVENTH AMENDMENT A. The Immediate Context: Chisholm v. Georgia B. Hans and Holy Trinity C. Seminole Tribe and the New Textualism II. ARTICLE V AND CONSTITUTIONAL PRECISION A. Constitution Versus Statutes B. Article V and Constitutional Compromise 1. Background Consideration 2. Reading Precise Constitutional Texts C. Article V and the Eleventh Amendment III. THE ELEVENTH AMENDMENT AS A LIMIT ON STATE SOVEREIGN IMMUNITY A. The Eleventh Amendment as Irrelevant B. Liquidating Article III C. The Specific and the General CONCLUSION INTRODUCTION

In recent years, the Supreme Court has frequently observed that most statutes involve compromise. (1) In particular, when Congress enacts a clear and precise statutory text--one that articulates not only a set of relevant aims but also the specific means of their pursuit--the Court has assumed that the operative details of such a statute may reflect a (frequently unrecorded) compromise to go so far and no farther in pursuit of its background goals. (2) Accordingly, even when a precise statute seems over- or underinclusive in relation to its ultimate aims (as is often the case), the Court now hews closely to the rules embedded in the enacted text, rather than adjusting that text to make it more consistent with its apparent purposes. (3)

One might think that similar principles would apply with equal, if not greater, force to constitutional interpretation. The constitutional lawmaking processes prescribed by Articles V and VII reflect a conscious design to give political (or at least geographical) minorities extraordinary power to block constitutional change. (4) Such political minorities, therefore, also have extraordinary power to insist upon compromise as the price of assent. Although constitutional scholarship tends to emphasize those constitutional texts that are framed in open-ended terms, many of the document's clauses--including some rather important ones--articulate their policies at a level of detail that suggests compromise over the acceptable means of pursuing such clauses' apparent background aims. In this Article, I argue that, just as in the case of statutes, when the Court confronts a precise and detailed constitutional text, it should adhere closely to the prescribed solution rather than stretch or contract the text in light of the apparent ratio legis. Indeed, the heightened protection assigned to minority interests in the amendment process may make it especially crucial for a court to adhere to the compromises embedded in a precise constitutional text.

This premise about constitutional precision, if correct, represents an overlooked but, I believe, quite significant consideration in the ongoing controversy over the Eleventh Amendment's meaning. That Amendment of course has played a central but awkward role in the development of the federal law of state sovereign immunity. As the only constitutional provision that bears directly on the states' immunity against the assertion of federal jurisdiction, the Amendment's centrality to this body of law is unsurprising. At the same time, it is a familiar reality that almost none of the Court's important cases involving the Amendment deal with matters that fall within its terms. 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." Yet despite the Amendment's carefully drawn alignment of parties, the Court has extended state sovereign immunity to include federal lawsuits filed by a state's own citizens, (5) by federal corporations, (6) by tribal sovereigns, (7) and by foreign nations. (8) The resulting immunity, moreover, now reaches not only "any suit in law or equity," but also any suit in admiralty. (9) Finally, although the Amendment is framed as a constraint on "[t]he Judicial power of the United States," states presently enjoy constitutional immunity from actions before state courts and federal administrative tribunals as well. (10) In recognizing such broad classes of immunity, the Court has dealt with the Eleventh Amendment's text in two (arguably inconsistent) ways, each of which raises an important and much overlooked methodological question about the interpretation of precise constitutional texts.

First, invoking what I have elsewhere called "strong purposivism," (11) the Court has relied on the Amendment's perceived background purpose to establish broad state sovereign immunity that goes well beyond its carefully drawn text. The Court's justification for this approach has rested squarely on historical premises. Specifically, in the ratification debates over the original Constitution, figures no less important than Hamilton, Madison, and Marshall offered explicit assurances that Article III's adoption would leave intact the background sovereign immunity that states, like all other sovereigns, had traditionally enjoyed. (12) Soon after ratification, however, the Court in Chisholm v. Georgia invoked the state-citizen diversity clause of Article III--which governs controversies "between a State and Citizens of another State" (13)--to assert jurisdiction over a common law action by a citizen of South Carolina to recover a debt from Georgia. (14) Although the Eleventh Amendment quickly overturned Chisholm by adopting carefully worded restrictions on the exercise of federal jurisdiction in suits against states by out-of-state individuals, (15) the Court in Hans v. Louisiana held that the Amendment stands for more than it says. (16) In particular, the Hans Court's "shock of surprise" theory maintained that the Amendment's swift and emphatic adoption conveyed a purpose not only to deal with the precisely drawn classes of jurisdiction described by the text, but also to overturn Chisholm and its guiding premise that Article III made states suable in the first place. (17) Although the Amendment's text could not bear that wider meaning, the Court concluded that reading it as written would produce an absurdity, given eighteenth-century American society's obvious support for broad sovereign immunity.

Second, the Court has sometimes read the Eleventh Amendment more defensively, treating it merely as a nonimpediment to the independent derivation of a broad immunity from Article III or the constitutional structure more generally. In this line of cases, perhaps typified by Monaco v. Mississippi, the Court has simply held that

neither the literal sweep of the words of Clause one of [section] 2 of Article III, nor the absence of restriction in the letter of the Eleventh Amendment, permits the conclusion that in all controversies of the sort described in Clause one, and omitted from the words of the Eleventh Amendment, a State may be sued without her consent. (18) In other words, the Amendment's precise specification of certain types of immunity carries no negative implication. In some tension with Hans, the Court in this second line of cases has typically built on the assumption that the Amendment merely sought to rectify Chisholm's narrow holding, not to articulate a comprehensive but carefully limited policy about state sovereign immunity in general. (19) Under this theory, the Amendment's specific terms do not constrain the Court's ability to derive new rules of sovereign immunity from the general authority of "the judicial Power" in Article III or to infer them from the constitutional structure as a whole.

Perhaps because of the Court's openly originalist approach, an extensive body of legal scholarship has undertaken to examine the historical foundations of sovereign immunity case law. For the most part, this scholarship has proceeded from the Court's specific frame of reference, relying on eighteenth-century historical context to dispute (or, much more rarely, to buttress) the Court's reading of the intentions or background understandings of those who adopted Article III and the Eleventh Amendment. (20) To be sure, most such writings rely on the Amendment's text or the text and structure of the Constitution to anchor their criticism of the Court's analysis. (21) But with rare exceptions, work in this area gives little if any attention to the more fundamental methodological question embedded in the cases: How should a federal court interpret a precise constitutional text like the Eleventh Amendment? (22) In particular, no one has examined the legitimacy of using an amendment's background purpose to depart from the otherwise clear import of the adopted text. (23) Nor has existing scholarship, with one exception, examined how the specification of a precise constitutional policy on a given topic (state sovereign immunity against federal jurisdiction) ought to affect the Court's capacity to invoke otherwise applicable general authority ("the judicial Power") to craft additional law on the same question. (24)

These methodological arguments have become more salient in recent years. The Rehnquist Court has not only credited Hans under rules of stare decisis, but has also endorsed and utilized its strongly purposive method of constitutional reasoning to resolve open questions about the scope of sovereign immunity under the Eleventh Amendment. (25) Alternatively, as in the Monaco case of an earlier era, the Rehnquist Court has also held that the line-drawing implicit in the Eleventh Amendment carries no negative implication, thereby allowing the Court to cull new unenumerated sovereign immunities from general features of constitutional structure. (26)

These decisions create an apparent incongruity in the modern Court's interpretive jurisprudence. In matters of statutory interpretation, a defining trait of the Rehnquist Court has been its assiduous observance of the lines drawn by a clear and precise statutory text, even when the outcomes seem...

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