constitutional sovereign immunity

[John C. Eastman]

 To pick up on Michael MASINTER's point, there are actually two flaws with the
Seminole Tribe argument.  First is with the Court's understanding of
sovereignty, namely, GOVERNMENT as sovereign rather than THE PEOPLE as
sovereign--an understanding that is shared by the dissenters as well as the
majority.  That Hobbesian view of government was rejected by the founders
See, for example, James Wilson's speech in the Pennsylvania ratifying
convention on Nov. 26, 1787.  And under the Founders view, sovereign immunity
-- at least where the government has only limited, delegated powers, makes no
sense.  Second, the delegation of powers to the federal government meant that
the exercise of such power, even against the states, was "within the plan of
the convention," to use Hamilton's words.  The Founders did not view the
division of sovereign powers between national and state governments primarily
as a means to insulate the states from federal power, but rather so that the
states might serve as an independent check on the federal government,
preventing the latter from expanding its powers against ordinary citizens.  (I
make this latter argument in an amicus brief I filed in the U.S. v. Morrison
case, heard last month, in case anyone is interested).  Chisolm was wrongly
decided because it encroached upon state sovereignty in areas that had been
left to the states (and hence, left to the people of each state to decide
whether, and to what extent, sovereign immunity was no longer viable).
That said, Seminole Tribe is rightly decided, because the underlying statute
rests on a impermissibly expansive reading of the commerce clause, at least as
that (those?) clause was originally understood.  So which outcome is better:
The dissent's, which leaves the unconstitutional exercise of power unchecked,
or the majority's, which erects a non-textual barrier to a non-textual
exercise of power?
John C. Eastman
Chapman University School of Law



Michael MASINTER wrote:

> I think the historical argument is sound that the ratification of the
> constitution and the passage of the Judiciary Act did not, in and of
> themselves, abrogate state immunity from suits based upon state law.  The
> Eleventh Amendment rightly restored that status quo ante.
>
> I think the argument that the constitution does not empower Congress to
> abrogate immunity in exercising Article One powers is deeply flawed.  That
> question was not before the Court in Chisholm, and Iredell's passing
> mention of his view that Congress could not strip states of immunity for
> claims based on state law should never have been expanded to claims based
> upon federal law.
>
> It may be useful to ask the question of how the law would have developed
> absent either Chisholm or the Eleventh Amendment?  In that alternative
> universe, the first issue might well have been whose law governs whether a
> state can be sued in federal court for damages arising from claims under
> state law?  If, as Erie teaches today, the answer would be "state law,"
> then doesn't that provide a context in which Iredell's brief argument over
> Congressional power can be understood?  At least since Erie, it is clear
> that Congress would lack power to enact sovereign immunity overrides for
> claims based upon state law.
>
> I think that same context explains virtually all of the remarks of framers
> from George Mason to John Marshall:  The creation of the judicial branch
> would not strip states of immunity in all the local land claims and
> "liquidated accounts" claims which so concerned them.
>
> Hans can be defended for the same reason -- Congress had not exercised any
> article one power to strip states of immunity, and until and unless it
> did, states could not be sued for damages in federal court.   Add to that
> the true character of the Hans claim -- a "liquidated accounts" claim
> dressed up as an impairment of contracts claim -- and the Hans result
> makes sense.
>
> It is the modern cases which go astray; they make the mistake of
> conflating two questions:  Did ratification strip states of immunity (no
> per Iredell and Hans) and did ratification empower Congress to strip
> states of immunity when enacting valid article one legislation (no per
> Seminole Tribe).
>
> Alden is at most a minor consequence of Seminole Tribe's greater error; if
> Congress could (as I am convinced) exercise Article One powers to
> selectively strip states of immunity from suits in federal court, then
> Alden is just a museum piece.
>
> Michael R. Masinter                     3305 College Avenue
> Nova Southeastern University            Fort Lauderdale, Fl. 33314
> Shepard Broad Law Center                (954) 262-6151
> masinter at law.acast.nova.edu             Chair, ACLU of Florida Legal Panel
>
> On Mon, 7 Feb 2000, Michael McConnell wrote:
>
> > Eric Segall makes a good point about deference; it is the lack of
> > textual support (putting aside Michael Rappaport's argument -- what
> > do people on the list think of his argument?), as well as the
> > principle of deference, that makes me hesitant to embrace the Court's
> > holdings without further discussion, which I hope will take place.
> >
> > But no one believes in absolute deference. There have been a few
> > major cases in which many, many statutes passed by Congress have been
> > overturned (e.g., Chadha and Meyers), and it seems to me, correctly.
> > So, I want to know whether we are being asked to defer to Congress in
> > a close case, or one in which the arguments the other way are
> > overriding.
> >
> > I also want to know exactly what we are being asked to defer to.
> >
> > (1) Did Congress ever debate the constitutionality of allowing
> > suits against states, and if so, when, and what was the thrust of the
> > debate? Or did Congress simply presuppose that since the Court did
> > not say "nay" it could do so?
> >
> > (2) For how long (if ever) did Congress refrain from passing laws
> > allowing suits against states? When did things change?
> >
> > (3) What constitutional view does Congress take? That
> > constitutional sovereign immunity extends no further than the
> > terms of the 11th amendment? That it does not extend to federal
> > question cases? That it can be evaded altogether under Ex Parte
> > Young?
> >
> >
> > -- Michael McConnell (U of Utah)
> >
> >