John F. Duffy*
"[W]e have long recognized that blind reliance upon the text
of the Eleventh Amendment is "to strain the Constitution and
the law to a construction never imagined or dreamed of.""
Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114, 1130 (1996).
This remarkable passage is found three-quarters of the way through
the majority opinion for the Court in Seminole Tribe, but it should
not be overlooked. Even outside the context of the case, the statement
is astonishing: One would have thought that the Framers of constitutional
language, as well as those ratifying that language, might -- just
might -- have "imagined" or "dreamed" that the
text could be given a literal interpretation.
But within the context of Seminole Tribe, the assertion goes beyond
the astonishing to the ironic. If there is a proper charge of blindness
in this case, it surely runs against the majority, for the result
in Seminole Tribe can be reached only by covering one's eyes to
the words written into the Eleventh Amendment. Moreover, this example
of atextual constitutional decisionmaking has been delivered to
the nation by Justices who, to their credit, have generally been
faithful to the principle of strict fidelity to constitutional text.
The litigation that would lead to the unfortunate Seminole Tribe
decision began as a dispute over gambling. In 1987, the Supreme
Court held in California v. Cabazon Band of Mission Indians, 480
U.S. 202 (1987), that in many circumstances States lacked jurisdiction
to regulate gambling on Indian reservations, although Congress could
grant States such jurisdiction if it so chose. Responding to the
decision in Cabazon, Congress in 1988 enacted the Indian Gaming
Regulatory Act, which struck a compromise: Indians could still have
gambling on their reservations but, for many types of wagering (casino
games, lotteries, slot machines, etc.), a tribe must first enter
into a compact with the relevant State. The compact negotiation
process was intended to give States some power to control Indian
gambling where otherwise, under Cabazon, they would have none. See
116 S. Ct. at 1124 ("It is true enough that the Act extends
to the States a power withheld from them by the Constitution.").
The Indian Gaming Act required States to negotiate gaming compacts
in good faith, and the Seminole Indians believed that Florida was
violating this requirement. The Tribe thus brought suit against
the State, which sought dismissal of the action based on the Eleventh
At the Supreme Court, all Justices agreed on two points: First,
Congress clearly expressed an intent in the Gaming Act to subject
States to suit in federal court. Second, unless overruled, the Court's
prior decision Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989),
which held that the Eleventh Amendment did not bar Congress from
exercising its power under the Interstate Commerce Clause to create
a cause of action against a State, would dictate a loss for the
State. (The majority rejected the Eleventh Circuit's attempt to
distinguish Union Gas on the ground that the Gaming Act was enacted
under the Indian Commerce Clause, not the Interstate Commerce Clause.
"If anything," the majority noted, "the Indian Commerce
Clause accomplishes a greater transfer of power from the States
to the Federal Government than does the Interstate Commerce Clause."
116 S. Ct. at 1126.) The Seminole Tribe majority, however, proceeded
to reconsider whether the result in Union Gas was consistent with
the Eleventh Amendment.
Here it is important to pay close attention to the actual language
of the Eleventh Amendment:
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.
Simply put, this text cannot be construed to place any restriction
on federal judicial power except in suits "commenced or prosecuted
against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State." The text of
the Amendment therefore has no application to a suit brought by
an Indian tribe, which is not a citizen of another State or a foreign
citizen or subject. The Seminole majority did not deny this basic
truth and, indeed, expressly recognized that "the text of the
Amendment would appear to restrict only the Article III diversity
jurisdiction of the federal courts." 116 S. Ct. at 1122; see
also 116 S. Ct. at 1152 (Souter, J., dissenting) (reaching same
interpretation of the Amendment's text).
But to the Seminole majority, the words used in the Eleventh Amendment
were really quite unimportant to the meaning of the Constitution:
"We have understood the Eleventh Amendment to stand not so
much for what it says, but for the presupposition . . . which it
confirms." 116 S. Ct. at 1122 (internal quotations omitted;
ellipsis in original). The majority embraced the view that "[m]anifestly,
we cannot rest with a mere literal application of the words"
of the Constitution, for "[b]ehind the words of constitutional
provisions are postulates which limit and control." Id. at
1129. Getting behind those pesky words of the Constitution, the
majority was able to find the "fundamental jurisprudence of
all civilized nations," id. at 1130, and, with that assuredly
more enlightened perspective, the Court affirmed that the Eleventh
Amendment "embodie[s]" a "background principle of
state sovereign immunity," id. at 1131. This "background
principle" was then enforced by overruling precedent and --
for the first time in the Nation's history -- holding a congressional
statute unconstitutional on the basis of the Eleventh Amendment.
If the reasoning of Seminole Tribe sounds disturbingly familiar
to conservatives, it should. It is of the same ilk as that found
in Justice Douglas's opinion for the Court in Griswold v. Connecticut,
381 U.S. 470, 484 (1965), which discovered that the "specific
guarantees in the Bill of Rights have penumbras, formed by emanations
from those specific guarantees that help give them life and shape."
The Seminole majority found "presuppositions" and "background
principles," but these are just other words for Griswold's
"penumbras" and "emanations" that, as the Warren
Court assured us, were also "older than" our written Constitution.
Griswold, 381 U.S. at 486. And the Seminole majority followed the
familiar pattern for what happens when judges go "behind"
the words of the law into the shadowland of penumbras and emanations:
They see only goodness and fundamental values -- indeed the "fundamental
jurisprudence of the all civilized nations" -- waiting for
judicial protection, but they are blind to both the danger of judicial
tyranny and the uncanny agreement between their own preferences
and the results supposedly enshrined in the unwritten Constitution.
Griswold, of course, was interpreting the Fourteenth, not the Eleventh,
Amendment, but this difference makes an appeal to nontextual decisionmaking
seem less appropriate. The Eleventh Amendment is not, as Justice
Souter noted in dissent, one of the "Delphic" provisions
of the Constitution. The language "Citizens of another State,
or by Citizens or Subjects of any Foreign State" has a definite
legal meaning that cannot be reconciled with the Seminole majority's
interpretation of the Amendment.
To overcome the text of the Eleventh Amendment, champions of a
broad, atextual sovereign immunity doctrine (such as Mr. Gede) typically
rely on two arguments -- the first based on prior Supreme Court
precedent (specifically, Hans v. Louisiana, 134 U.S. 1 (1890)),
and the second based on history. Though neither argument is anywhere
near compelling enough to overcome the textual limitations of the
Eleventh Amendment, the first argument seems particularly curious.
1. Precedent and Hans: It is certainly true that, out of the universe
of relevant legal materials, the Court's decision in Hans does,
when considered in isolation, provide some support for the result
in Seminole. Yet Hans is not part of the Constitution itself, but
only a judicial decision purporting to interpret the Constitution.
Any argument that Hans should be pursued to its logical ends is
an argument in favor of stare decisis, and herein lies the most
basic problem with relying on Hans: Seminole Tribe was not respecting
stare decisis; it was overruling prior precedent, specifically Union
Gas. And that is only the beginning of the difficulties.
The claim that Hans compels the result in Seminole Tribe rests
on the assertion that Union Gas "deviated sharply" from,
and "essentially eviscerated" Hans. See 116 S. Ct. at
1127. But is this true? Quite clearly no. First, there is the most
basic difficulty with the claim -- that, prior to Seminole Tribe,
no Supreme Court decision had ever held a federal statute unconstitutional
on Eleventh Amendment grounds. Thus, at best, the claim could be
only that Union Gas deviated from logical implications or extensions
of Hans and its progeny. But even this mild proposition is hard
Hans held that, despite the apparently narrow implications of its
text, the Eleventh Amendment in fact confirmed a broad background
principle of State sovereign immunity that protects a State even
in a federal question suit brought by a Citizen of that State. In
Hans, however, Congress had not attempted to abrogate this background
principle of State sovereignty by creating a cause of action against
a State -- as was the case in Union Gas. In fact, Hans specifically
interpreted the 1875 statute conferring federal question jurisdiction
not to encompass suits by individuals against States because Congress,
by conferring jurisdiction "concurrent with the courts of the
several States," did not intend to confer jurisdiction over
a class of cases that "the state courts have no power to entertain."
See Hans, 134 U.S. at 18-19. Hans thus involved a situation where
statutory law reinforced the background principle of sovereign immunity.
The distinction between Hans and Union Gas is not hard to fathom,
and even before Union Gas was decided, every court of appeals to
consider the issue had held that Congress could, pursuant to its
enumerated powers, create federal causes of action against States.
See Union Gas, 491 U.S. at 19-20 (collecting cases from five circuits).
On the list of courts so holding were unanimous panels of the Fifth
and Seventh Circuits that included conservative Judges Flaum, Posner,
and Higginbotham. See Peel v. Florida Dept. of Transportation, 600
F. 2d 1070 (CA5 1979); In re McVey Trucking, Inc., 812 F. 2d 311
(CA7), cert. denied, 484 U.S. 895 (1987). These courts understood
that, while Hans recognized a background principle of State sovereign
immunity, that immunity "was not absolute" because "the
states have delegated some of their sovereign powers to the national
government." McVey, 812 F.2d at 319; see also Peel, 600 F.2d
at 1080 (similar). When Congress acts under its enumerated powers,
State sovereignty must yield and the background immunity recognized
by Hans can be displaced. Thus, Hans and Union Gas are easily reconciled
along lines that were found not only plausible, but persuasive by
prior federal courts.
Relying on the precedential force of Hans to overrule Union Gas
also creates another embarrassment: Hans itself was created only
by disregarding prior precedent. In Cohens v. Virginia, 19 U.S.
(6 Wheat.) 264 (1821), Chief Justice Marshall squarely held that,
because the case did not involve a suit between a State and "a
citizen of another State" or "of any foreign state,"
the Eleventh Amendment had no application to the case. Id. at 412.
(Thus, Chief Justice Marshall is at least one member of the Founding
generation who "imagined" or "dreamed" that
the Amendment should be interpreted literally.) Cohens arose under
federal question jurisdiction which, Marshall assured, extends "to
all cases arising under the Constitution or laws of the United States,
without respect to parties." Id. (emphasis added).
Hans acknowledged that this passage ran counter to its holding,
but argued that the passage "was unnecessary to the decision,
and in that sense extra judicial." 134 U.S. at 20. Here, Hans
was bending the truth past the breaking point. True enough, Marshall
spent most of the jurisdictional discussion in Cohens attempting
to prove the broader proposition that the Eleventh Amendment had
no application to the Supreme Court's appellate jurisdiction. At
the end of that discussion, however, Marshall hedged, stating "[b]ut
should we in this be mistaken, the error does not affect the case
now before the Court." 19 U.S. at 412. Marshall at that point
gave the other reason that the Amendment had no application -- that
the Amendment does not apply to cases falling outside its literal
language. See id. Hans's characterization of this second reason
as "unnecessary" to Cohens thus seems disingenuous since,
as between the two reasons for denying Eleventh Amendment immunity,
Cohens expressed some reservations on the first, but none as to
Perhaps all this could be overlooked if Hans contained some compelling
legal analysis to support its result, but it does not. The core
of Hans's "reasoning" consists of mere ipse dixit: The
Court asks "Can we suppose that" the Eleventh Amendment
would have been ratified if it barred only one class of suits against
States, but not all others? Without any historical analysis of the
adoption of the Amendment (and certainly no first hand knowledge
such as Marshall would have had), the Court simply concludes "[t]he
supposition that it would is almost an absurdity on its face."
Had the Hans Court actually done its homework, it would have discovered
that the Framers of the Eleventh Amendment did have the opportunity
to enact a broader text, but they opted for the narrow. See infra
(discussing Rep. Segwick's first proposed text for the Amendment).
A generous view of Supreme Court precedent prior to Seminole Tribe
rallies at best a tie for the champions of broad State immunity:
Hans on one side; Cohens and Union Gas on the other. Hans was certainly
older than Union Gas, but Cohens is older still. Union Gas may have
devalued Hans as a practical matter for the States, but undeniably
Hans and Union Gas were distinguishable in legal terms well understood
by the legal community even before Union Gas. At this point, even
if the Court felt obliged to reconsider its Eleventh Amendment jurisprudence,
it is senseless to rely selectively on the reasoning from some parts
of that jurisprudence to overrule other parts. That is a swamp.
The only principled approach is to go back to the original Eleventh
Amendment, without the encrusted case law. And, of course, the starting
point would be the Amendment's text.
2. History. The second argument used by defenders of broad sovereign
immunity is based on history, and indeed Mr. Gede opens his article
with a quote from James Madison which is among the most favorable
pieces of evidence for the States' position. Unfortunately, it is
not as favorable as Mr. Gede would have it. Madison was not speaking
about "the proposed federal jurisdiction" -- words that
Mr. Gede inserts into the quote. A more complete quote of Madison
[J]urisdiction in controversies between a state and citizens of
another state is much objected to, and perhaps without reason. It
is not in the power of individuals to call any state into court.
The only operation it can have, is that, if a state should wish
to bring a suit against a citizen, it must be brought before the
federal courts. . . .
The "it" in the third sentence refers to State-Citizen
diversity jurisdiction. Nothing in Madison's quote addresses the
effect of federal question jurisdiction; and nothing addresses whether
Congress's enumerated powers limited State sovereignty so that Congress
could override State immunity by a proper exercise of those powers.
Madison's quote is a highlight for the champions of Seminole Tribe
because, while not exactly on point, it at least does not support
the other side. Things deteriorate from there.
In a passage from the Federalist Papers that all recognize as crucial
-- each side of the divided Seminole Court referred to it repeatedly,
see, e.g., 116 S. Ct. 1122, 1130, & 1131 n.13; and at 1166-68
(Souter, J., dissenting) -- Hamilton explained:
It is inherent in the nature of sovereignty not to be amenable
to the suit of an individual without its consent. . . . [T]he exemption,
as one of the attributes of sovereignty, is now enjoyed by the government
of every State in the Union. Unless, therefore, there is a surrender
of this immunity in the plan of the convention, it will remain with
the States and the danger intimated [by the opponents of ratification]
must be merely ideal. The circumstances which are necessary to produce
an alienation of State sovereignty were discussed in considering
the article of taxation and need not be repeated here.
Federalist No. 81, at 487-88 (C. Rossiter ed. 1961). Even though
he was trying to quiet fears that the States would lose sovereign
immunity, Hamilton nevertheless acknowledged that the immunity could
be compromised under "the plan of the convention" in those
circumstances where there was "an alienation of State sovereignty."
Four Justices of the Seminole majority had previously attempted
to reconcile this passage with a broad view of State sovereign immunity
by asserting (as Mr. Gede does) that Hamilton's "plan of the
convention" exceptions are confined to (1) suits brought by
the United States and (2) suits brought by other States. See Union
Gas, 491 U.S. at 33 (Scalia, J., dissenting). But this interpretation
of Federalist No. 81 is impossible. Hamilton's conception of sovereign
immunity was expressly limited to suits against a State by "an
individual." By recognizing exceptions to that immunity, Hamilton
was acknowledging that, under the original Constitution, States
might be sued by individuals "under the plan of the convention"
-- a result that the doctrine of the Seminole majority never permits.
Thus, under Seminole Tribe, there are no "plan of the convention"
exceptions to sovereign immunity of the sort that Hamilton envisioned.
Mr. Gede argues that, in the rest of the passage, Hamilton reassured
the States that the plan of the convention did not encompass the
possibility of damage actions by individuals, but the passage does
not say that. Hamilton stated that nothing in the plan of the convention
"divested [the States] of the privilege of paying their own
debts in their own way." The relevant issue in Union Gas and
Seminole Tribe, under Hamilton's analysis, would be whether the
plan of the convention divested the States of the privilege to regulate
Interstate and Indian Commerce in their own way. Once that question
is answered in the affirmative, there is not a shred of evidence
in Hamilton's writings or in other historical materials for allowing
States to be sued only by other States and the United States, but
not by individuals.
A further problem for the result in Seminole Tribe comes from the
historical record of the Amendment's adoption, which undermines
any speculation that the Framers were unable to grasp the implications
of the text. As Justice Souter explains, the first proposal for
the text of the Amendment, made by Representative Theodore Sedgwick,
was as follows:
[N]o state shall be liable to be made a party defendant, in any
of the judicial courts, established, or which shall be established
under the authority of the United States, at the suit of any person
or persons, whether a citizen or citizens, or a foreigner or foreigners,
or of any body politic or corporate, whether within or without the
116 S. Ct. at 1150 (Souter, J., dissenting, quoting Gazette of
the United States 303 (Feb. 20, 1793)). This language would support
comprehensive State sovereign immunity, but it was not adopted.
Aside from its questionable appeal to a nontextual judicial methodology,
Seminole Tribe also has trouble with internal consistency. At least
in a case such as Griswold, the Court did not try simultaneously
to claim that it was both not bound and bound by the text. Once
the Court departed from the precise words of the Constitution, it
did not attempt a return to fill gaps in its reasoning with a technical
parsing of isolated snippets. The Seminole majority observed no
One of the difficulties faced by the Seminole majority was that,
although some statements made at the time of the Framing might support
a "background principle" of State sovereign immunity,
none gives any support to the view that Congress lacks authority
to abrogate this immunity when it exercises its sovereign powers.
(Indeed, Hamilton's statements in Federalist 81 support the contrary
view.) This was an enormous problem for the majority because congressional
abrogation was in fact the legal issue presented in the case, and
the only Supreme Court precedent directly on point (Union Gas) went
the other way.
The majority solved this problem only with brute force. Congress
cannot tinker with State sovereign immunity doctrine because, the
majority reasons, that doctrine "limits the federal courts'
jurisdiction under Article III." 116 S. Ct. at 1127. It certainly
has been true since Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803),
that Congress cannot expand the limits of Article III. But how does
the majority prove that the nontextual State sovereign immunity
doctrine should be viewed as a limit on judicial power, rather than
a background common-law immunity (as Justice Souter was contending)?
Well, the majority explains, "[t]he text of the Amendment itself
is clear enough on this point: `The Judicial power of the United
States shall not be construed to extend to any suit . . . .'"
116 S. Ct. at 1127. Incredibly, that final ellipsis was inserted
by the Court, and it covers over the very words in the Amendment
foreclosing the result reached in the case. The majority was thus
simultaneously appealing to a technical parsing of constitutional
text and blotting out undesired language in the same sentence. There
may be more destructive judicial alterations to our Constitution,
but none so naked.
No evaluation of Seminole Tribe would be complete without mention
of the unfortunate fact that the result in the case was reached
with a majority of Justices who have otherwise been very attentive
to the text of the Constitution. Thus, for example, Justice Thomas
has correctly admonished that "[t]he Constitution is a written
instrument. As such its meaning does not alter." McIntyre v.
Ohio Elections Comm'n, 115 S. Ct. 1511, 1525 (1995) (internal quotations
omitted). He has followed that principle in, for example, arguing
for a narrow interpretation of the Eighth Amendment based on (inter
alia) dictionary definitions of the term "punishment."
See Helling v. McKinney, 113 S. Ct. 2475, 2483 (1993) (Thomas, J.,
dissenting). Similarly, Justice Kennedy (joined by the Chief Justice
and Justice O'Connor) has declared that "[i]t is improper for
this Court to arrogate to itself the power to adjust a balance settled
by the explicit terms of the Constitution." Public Citizen
v. Department of Justice, 491 U.S. 440, 486 (1989) (Kennedy, J.,
concurring). And finally, the Chief Justice has decried the process
in constitutional decisionmaking whereby judicially created "aphorisms
. . . are used as substitutes for the text itself" so that
the "resemblance to the actual text of the Constitution grows
increasingly remote" and "the connection between the original
provision in the Constitution and the application in a particular
case is all but incomprehensible." Snead v. Stringer, 454 U.S.
988, 989 (1981) (Rehnquist, J., dissenting from denial of certiorari).
Herein lies the true importance of Seminole Tribe to legal conservatives.
For if the Justices in the Seminole majority can accept the Eleventh
Amendment "not so much for what it says" but for some
capacious, unwritten "presupposition . . . which it confirms,"
then they lose a principled basis for criticizing other Court decisions
that find broad, enforceable principles "[b]ehind the words"
of the Constitution. That loss is a grave loss to the friends of
the written Constitution, and an unfortunate victory for the disciples
of the view that the document means whatever five Justices of the
Court say it means.
* Assistant Professor of Law, Benjamin N. Cardozo School of Law,