THE MISUNDERSTOOD ELEVENTH AMENDMENT.

• Author: Baude, William

INTRODUCTION 611 I. "POSTULATES WHICH LIMIT AND CONTROL" 614 A. Beyond "Elvent" and the Amendment 614 B. The "Postulates" and the Modern Court 618 C. The "Postulates" and the Modern Court 620 II. THE ELEVENTH AMENDMENT 623 A. "The Judicial power of the United States": Waiver 625 1. Text and History 625 B. "shall not be construed to extend": Federal Questions 632 1. Text 633 2. History 636 3. Purpose 644 C. "to any suit": Abrogation 646 D. "in law or equity": Appellate jurisdiction 648 E. "commenced or prosecuted": Appellate jurisdiction 650 1. Text and History 651 2. Precedent 652 F. "against one of the United States": Defendant 657 G. "by Citizens of another State, or by Citizens or Subjects of any Foreing State": Plaintiff 659 INTRODUCTION

The competition is tough, but the Eleventh Amendment still might be the most misunderstood amendment to the Constitution. Adopted in 1795, the Amendment provides:

The 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. (1) Ever since, the Amendment's friends and enemies have competed with each other to misconstrue it. Despite their differences, they've often made the same mistake: treating the written text of the Amendment, and the unwritten doctrines of state sovereign immunity, as one and the same. The result is a bewildering forest of case law, which takes neither the words nor the doctrines seriously. This Article tries to mark a more straightforward path.

Past understandings have usually gone wrong in one of two ways. The first is to treat the entire doctrine of state sovereign immunity as somehow inscribed within the Eleventh Amendment's words. Some make this mistake by adopting a broad view of immunity, and by reading the Amendment for more than it's worth. Though the text refers only to plaintiffs from "another State" or a "Foreign State," this broad theory concludes that a penumbral "Eleventh Amendment immunity" extends even to in-state suits. (2) Others, who take a narrower view of sovereign immunity, have read the Amendment for less than it's worth. What might be called a "compromise theory" of the Amendment holds that its enactors, having named a precise set of cases in the text, deprived the states of any other immunity in any other federal cases. (3) And under the "diversity theory," which is narrower still, there is no immunity even for some cases falling within the Amendment's text, if they also fall within some other head of federal jurisdiction. (4)

A second wrong turn treats the Amendment as merely illustrative of sovereign-immunity doctrines writ large. (5) For example, common-law sovereign immunity can be waived by the sovereign, and maybe it can also be abrogated by certain federal statutes. (6) Modern interpreters have mistakenly inferred that the Eleventh Amendment can be waived or abrogated too. (7) Likewise, common-law sovereign immunity lets a state consent to suit in its own courts, sometimes exposing it to Supreme Court review on appeal. (8) But the Court has mistakenly concluded that its appellate jurisdiction is generally exempt from the Amendment's terms. (9)

The truth is simpler. The Eleventh Amendment means what it says. It eliminates federal judicial power over one set of cases: suits filed against states, in law or equity, by diverse plaintiffs. It strips subject-matter jurisdiction in all such cases, regardless of why or how the plaintiffs are in federal court, and in only such cases. It can't be waived. It can't be abrogated. It applies in the Supreme Court. It means what it says.

By the same token, the Eleventh Amendment does not mean what it does not say. The Amendment doesn't implicitly repeal any other, similar rules of sovereign immunity--including any limits on the federal courts' personal jurisdiction, properly derived from the common law and the law of nations. The general law of sovereign immunity existed before the Constitution; it remained mostly intact after the Constitution; and it survived the Eleventh Amendment, too.

Despite this confusion, the Supreme Court has arrived at mostly right answers in its sovereign immunity cases, most of the time. (10) But many of those right answers were wrongly defended, with the Court carelessly mushing the written and unwritten rules into a formless "hybrid" theory. (11) This carelessness exposed sound doctrines to needless criticism, and occasionally it caused the Court to veer off track. Distinguishing the unwritten rules of sovereign immunity from the written rules of the Eleventh Amendment lets us deal with each set of rules on its own terms, and lets us respect the text as meaning what it says. (12)

In this piece we try to set things right, by putting the Eleventh Amendment in its historical context. As understood when enacted, the Amendment's words made sense in light of the common-law principles that preceded them. In so arguing, we draw on insights from previous scholarship, (13) together with previously overlooked aspects of the historical materials--both of which we believe haven't yet been properly assembled, and which become far more persuasive when properly aligned. In sum:

* States are protected by two forms of sovereign immunity.

* The first is a common-law immunity from compulsory process, one that prevents states from being forced into court without their consent. This immunity existed before the Constitution; it wasn't eliminated by Article III; and it largely can't be abrogated by Congress under Article I. Its limits derive from the common law itself.

* The second is the Eleventh Amendment. The Amendment supplements the traditional immunity, limiting the subject-matter jurisdiction of the federal courts when certain kinds of plaintiffs sue a state in law or equity. Its limits apply across-the-board, whatever the head of federal jurisdiction. They can't be waived. They can't be abrogated. They apply to the Supreme Court. They protect states, and states alone.

1. "POSTULATES WHICH LIMIT AND CONTROL"

   Sovereign immunity has a troubled relationship with text. Recall the confident declaration of Monaco v. Mississippi: "Behind the words of the constitutional provisions are postulates which limit and control." (14) This claim has come in for some ribbing, (15) and for good reason: when the text is clear, background "postulates" are the last refuge of scoundrels.

   So Monaco's claims are easy to dismiss--too easy. Read carefully, they reflect anything but indifference to text. On the contrary, they recognize the need to read enactments for what they actually say, in light of their unwritten antecedents, and with an eye to the preexisting corpus juris. (16) If anything, ignoring the "postulates" behind the Eleventh Amendment is what's gotten our textual analysis into trouble.

   1. Beyond "Eleventh Amendment Immunity"

      The usual story of the Eleventh Amendment is well-known. In 1793, the Court in Chisholm v. Georgia let a South Carolina citizen use its original jurisdiction to sue the State of Georgia for debt. (17) The ensuing "shock of surprise" (18) prompted Congress to propose, and the states to ratify, the Eleventh Amendment. That Amendment reversed Chisholm, forbidding suits "against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." (19) In time, the Court came to read the Amendment as "confirm[ing]" a broader "presupposition of our constitutional structure," (20) and to apply its terms to a much broader range of circumstances: suits by citizens of the same state, (21) suits by other unenumerated plaintiffs, (22) suits in admiralty (and not just "law or equity"), (23) and so on. Through a sort of synecdoche, all questions of state sovereign immunity have now come to touch on the Eleventh Amendment; the phrase "Eleventh Amendment immunity" thus serves as appropriate shorthand for state sovereign immunity in general. (24)

      So goes the usual story. But at the risk of stating the obvious, it isn't a true story, at least where the Constitution is concerned. Neither the Eleventh Amendment nor any "Eleventh Amendment immunity" extends to suits not described in the Amendment's text. Reading the words "another State" as if they included "the same State," or the phrase "law or equity" as if it included "admiralty," and so on, is the most risible kind of purposivism--and would indeed be funny, if it weren't sometimes done seriously.

      But. The Court has generally been right to hold the states immune to suits by in-state citizens, suits in personam in admiralty, and the like. It's merely that this immunity has nothing to do with the Eleventh Amendment.

      Long before the Eleventh Amendment was ratified, indeed even before the Constitution was written, the states were protected by doctrines of sovereign immunity. These doctrines were drawn from the law of nations and from the common law of which it was a part, and they exempted an unconsenting sovereign from what we today call a court's personal jurisdiction. (25) (We sometimes give these unwritten doctrines the label of "common law," but "general law" might be more precise: (26) this law was often shared by multiple jurisdictions, and it included rules of equity or admiralty more properly excluded from the "common law" label.)

      As Caleb Nelson has persuasively shown, under these doctrines a sovereign state wasn't amenable to suit and couldn't be haled into court as a defendant. (27) Pennsylvania's attorney general explained in 1781 that "every kind of process, issued against a sovereign, is a violation of the laws of nations; and is in itself null and void." (28) While these doctrines were only rarely codified in statute or constitutional text, that was no cause for surprise: the states were already accustomed to applying a general law of personal jurisdiction. (29)

      As is argued in more detail...