NORTH CAROLINA LAW REVIEW Volume 81 | Number 5 Article 4 6-1-2003 The aP rticularly Dubious Case of Hans v. Louisiana: An Essay on Law, Race, History, and Federal Courts Edward A. Purcell Jr. Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Edward A. Purcell Jr., The Particularly Dubious Case of Hans v. Louisiana: An Essay on Law, Race, History, and Federal Courts, 81 N.C. L. Rev. 1927 (2003). Available at: http://scholarship.law.unc.edu/nclr/vol81/iss5/4 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. THE PARTICULARLY DUBIOUS CASE OF HANS V. LOUISIANA: AN ESSAY ON LAW, RACE, HISTORY, AND "FEDERAL COURTS" EDWARD A. PURCELL, JR.* In a number of striking decisions the Rehnquist Court has limited the powers of Congress and substantially insulated the states from federal authority. In doing so, it has repeatedly and explicitly based its jurisprudence on Hans v. Louisiana, an 1890 decision in which the Court held that the Eleventh Amendment barred citizens from suing their own states in the federal courtsfor money due on the states' bonds. Hans asserted that the Eleventh Amendment, despite its narrow language, was intended to recognize a broad principle of state sovereign immunity which prohibited suits againststates absent their consent. Whether or not the Rehnquist Court's decisions are wise or desirable in the early twenty-first century, the Court's reliance on Hans is neither. Although Hans invoked the history of the Eleventh Amendment's drafting and ratification,its reasoning and conclusion do not reflect the intent of the amendment's framers but the purposes of the post-Reconstruction settlement. That informal but well understood agreement among white Americans, driven in part by racism, allowed the South a special and limited independence in imposing white rule and repudiating its state debts in exchange for nationalreconciliation and unity. Thus, as a matter of history, Hans gave voice not to the intent of the 1790s but to the compromise of the 1890s. * Joseph Solomon Distinguished Professor of Law, New York Law School. A.B., 1962, Rockhurst College; M.A., 1964, The University of Kansas; Ph.D., 1968, The University of Wisconsin; J.D., 1979, Harvard Law School. A short version of this Article was given as the Solomon Lecture at New York Law School on April 24,2002. The author wishes to thank Robert Blecker, David Chang, Sydney M. Cone, III, Donald L. Doernberg, Barry Friedman, Annette Gordon-Reed, Alfred S. Konefsky, William P. LaPiana, Jethro K. Lieberman, Richard A. Matasar, Carlin Meyer, Denise Morgan, Frank Munger, Jr., James F. Simon, Rachel Vorspan, Harry H. Wellington, and Donald Zeigler as well as Professor John Leubsdorf and the members of the faculty colloquium at the Rutgers-Newark Center for Law and Justice for helpful comments and suggestions on an early draft. He also wishes to thank Robin Dingle, Lisa Ornest, and Scott Woller for their assistance in preparing the manuscript. 1928 NORTH CAROLINA LAW REVIEW [Vol. 81 Considered in the light of its own history, then, Hans, properly merits no authority as a constitutional precedent for three interrelated reasons. First,it was a decision of expedience, not of principle. An examination of the Court's jurisdictionaldecisions in the late nineteenth century shows that Hans was typical of the pervasive jurisdictional instrumentalism that marked the Court's work across the board as well as in cases construing the Eleventh Amendment itself Second, as an instrument of the post- Reconstruction settlement and an integral part of the Court's general abandonment of southern blacks, Hans was both the product and tool of a pervasive racism among white Americans, North as well as South. Third, and legally pivotal, Hans was premised on early nineteenth-centuryprocedural assumptions that the Court had already rejected and, decisively, on antebellum jurisdictional and constitutional assumptions that the Fourteenth Amendment had repudiated. Thus, Hans was a decision of mere temporary expedience, an instrument of racism and betrayal, and the product of an outmoded and rejected constitutional jurisprudence. As such, it has no claim to enduring authority as a constitutionalprecedent. Four of the Justices on the Rehnquist Court who have repeatedly relied on Hans to expand the Eleventh Amendment should agree that those grounds are sufficient to require its repudiation. Only three years ago, in a case involving the Establishment Clause, they maintained that a constitutional doctrine "born of bigotry" should be "buried." So, now, should Hans be buried. INTRO D U CTIO N .....................................................................................1929 1. H A NS ............................................................................................1934 II. THE DUBIOUS NATURE OF HANS ............................................1939 A. Considerationsof Law: Text, Reason, and Precedent ....1939 B. Considerationsof History: Reconstruction and Southern Repudiationism ...................................................1944 C. On the Importance of the Judicial "Vantage Point"........ 1948 III. THE PARTICULARLY DUBIOUS NATURE OF HANS, I: THE SUPREME COURT AND THE PRACTICE OF JURISDICTIONAL INSTRUMENTALISM .....................................1954 A. Jurisdictional Instrumentalism inthe Late Nineteenth C en tury .................................................................................1956 B. Jurisdictional Instrumentalism and the Eleventh A m endm ent ..........................................................................1962 2003] HANS V. LOUISIANA 1929 IV. THE PARTICULARLY DUBIOUS NATURE OF HANS, II: JURISDICTIONAL INSTRUMENTALISM AND THE POST- RECONSTRUCTION SETTLEMENT ............................................ 1975 A. The Resonance of the Southern State Bond L itigations............................................................................ 1975 B. Law, Politics,and Race....................................................... 1981 1. The Post-Reconstruction Era, 1877-1890 .................. 1981 2. 1890 .................................................................................1994 C. The Driving Power of Race and Racism ........................... 2001 1. The Intensification of Racism in the Late N ineteenth Century ...................................................... 2001 2. Racism and Its Influence on the Legal Profession and the Judiciary ........................................................... 2006 3. Racism and the Hans Court ......................................... 2014 4. Hans and Its Author: Justice Joseph P. Bradley and the Acquiescent Turn ............................................ 2021 D. Hans, Racism, and the Post-Reconstruction Settlem ent .............................................................................2028 V. THE PARTICULARLY DUBIOUS NATURE OF HANS, III: A BYGONE JURISPRUDENCE AND THE RECONCEPTUALIZATION OF THE FOURTEENTH A M END M ENT .............................................................................. 2039 CONCLUSION: A PLACE FOR HISTORIANS' HISTORY .................... 2056 INTRODUCTION What is called the "law of federal courts" has been established through a process that filters, purifies, redesigns, and largely erases decisive historical phenomena-social conflict, politics, racism, sexism, and, of course, change itself. Examples abound. The well- known case of Railroad Commission v. Pullman Co.,1 for one, centered on a fascinating and even lurid episode in American history that involved not only corporations, government, unions, power, and money but also fear, race, gender, the outbreak of world war, and the frightening specter of rape and rampant interracial sexual 1. 312 U.S. 496 (1941). The case involved a suit by railroad interests attacking the constitutionality of a rule of the Texas Railroad Commission that required white conductors aboard all Pullman sleeping cars, each of which was staffed by a black porter. Id. at 497-98. Both the conductors and porters intervened, the former supporting the rule and the latter attacking it. Id. at 498. With World War II looming, the Court found it advisable to postpone decision on such a potentially explosive domestic issue. See id. at 501-02. 1930 NORTH CAROLINA LAW REVIEW [Vol. 81 encounters.2 The purification process, however, transformed the case into an authority for an abstruse "doctrine of abstention."3 As a matter of "law," Pullman now stands for the proposition that federal courts will not decide a case which contains an unsettled issue of state law when resolution of the state-law issue by a state court could obviate the need to decide a question of federal constitutional law. Between the original historical episode and the subsequent legal doctrine it does seem that something of significance has been lost. On one level, of course, this purification process makes perfect sense and is essential in developing a system of law based on rationalized sets of general rules and principles. On another level, however, the process creates an insidious problem. Purifying life and sterilizing the past can strip decisions of their animating purposes and underlying values, thus denying the authentic meanings and practical truths they embody. If purification and