Blind to Text, Unfaithful to Principle

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 Amendment.

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 to maintain.

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 the second.

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 is:

[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 United States.

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 such niceties.

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, Yeshiva University.


2001 The Federalist Society