GW Law Faculty Publications & Other Works Faculty Scholarship 2010 The Eleventh Amendment and the Nature of the Union Bradford R. Clark George Washington University Law School, [email protected] Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817 (2010). This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. VOLUME 123 JUNE 2010 NUMBER 8 © 2010 by The Harvard Law Review Association ARTICLES THE ELEVENTH AMENDMENT AND THE NATURE OF THE UNION Bradford R. Clark TABLE OF CONTENTS I. INTRODUCTION .................................................................................................................. 1819 II. CURRENT THEORIES OF THE ELEVENTH AMENDMENT ...................................... 1825 A. The Immunity Theory .................................................................................................... 1826 B. The Diversity Theory ...................................................................................................... 1830 C. The Compromise Theory ................................................................................................ 1832 D. The Inadequacy of Current Theories ............................................................................ 1835 III. THE LOST HISTORICAL CONTEXT OF THE ELEVENTH AMENDMENT ............ 1838 A. The Articles of Confederation ........................................................................................ 1839 B. The Constitutional Convention ..................................................................................... 1843 C. The Ratification Debates ............................................................................................... 1853 D. Article III and State Suability ..................................................................................... 1862 1. State-Citizen Diversity Jurisdiction ........................................................................ 1863 2. Federal Question Jurisdiction .................................................................................. 1870 3. Suits Between a State and Another State or a Foreign State ............................. 1873 IV. THE ADOPTION OF THE ELEVENTH AMENDMENT ................................................ 1875 A. The Chisholm Decision .................................................................................................. 1876 B. The Aftermath of Chisholm ............................................................................................ 1886 C. The Adoption of the Eleventh Amendment .................................................................. 1891 V. T HE TEXT IN HISTORICAL CONTEXT ......................................................................... 1894 A. An Explanatory Amendment ......................................................................................... 1896 B. Reassessing the Article III Anomaly ............................................................................ 1899 1. Article III and the Eleventh Amendment in Historical Context. ......................... 1900 2. The Constitution. ....................................................................................................... 1903 3. The Laws of the United States. ................................................................................ 1908 4. Treaties. ....................................................................................................................... 1909 VI. IMPLICATIONS FOR MODERN JURISPRUDENCE ........................................................ 1911 VII. CONCLUSION ....................................................................................................................... 1917 1817 Electronic copy available at: http://ssrn.com/abstract=1688564 THE ELEVENTH AMENDMENT AND THE NATURE OF THE UNION Bradford R. Clark∗ Leading theories of the Eleventh Amendment start from the premise that its text makes no sense. These theories regard the Amendment as either underinclusive, overinclusive, or an incoherent compromise because it prohibits federal courts from hearing “any suit” against a state by out-of-state citizens, but does not prohibit suits against a state by its own citizens. Two of these theories would either expand or contract the immunity conferred by the text of the Amendment in order to avoid this absurd or anomalous result. This Article suggests that the Eleventh Amendment made sense as written when understood in its full historical context. In particular, the Articles of Confederation empowered Congress to require states to supply men, money, and supplies, but gave Congress no power to enforce its own commands. Prominent Founders initially argued that the only way to fix the Articles was to give Congress coercive power over states. But the Convention and the ratifiers ultimately rejected this idea because they feared that the introduction of such power would lead to a civil war. To avoid this danger, the Founders designed the Constitution to give Congress legislative power over individuals rather than states. This novel approach eliminated the need for coercive power over states, and provided Federalists with a key argument for adopting the Constitution rather than amending the Articles. Antifederalists threatened to undermine this case for the Constitution by arguing that the state-citizen diversity provisions of Article III — authorizing suits “between” states and out-of-state citizens — could be construed to permit suits against states (and thus imply federal power to enforce any resulting judgments against states). Although Federalists denied this construction, the Supreme Court proceeded to read Article III to permit out-of-state citizens to sue states. Federalists and Antifederalists quickly joined forces to restore their preferred construction of Article III. In adopting the Eleventh Amendment, they saw no anomaly in prohibiting “any suit” against a state by out-of-state citizens because they did not understand the Constitution to authorize any suits against states by in-state citizens. Federal question jurisdiction did not expressly authorize such suits, and the Founders likely would not have perceived any real need for such jurisdiction given their understanding that the Constitution conferred neither legislative nor coercive power over states. Because the Eleventh Amendment, as written, made sense in light of the nature of the Union, the absurdity doctrine cannot justify departing from the terms of the Amendment. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ William Cranch Research Professor of Law, The George Washington University Law School. For insightful comments, I thank A.J. Bellia, Curtis Bradley, Evan Caminker, Andy Coan, Dick Fallon, Philip Hamburger, Joan Larsen, John Manning, Maeva Marcus, Jon Molot, Henry Monaghan, Jim Pfander, Jeff Powell, Gil Seinfeld, Jon Siegel, Jeff Sutton, Ed Swaine, Amanda Tyler, Carlos Vázquez, and workshop participants at the George Washington, Michigan, Northwestern, and Notre Dame Law Schools. I also thank Jonathan Bond, John Kammerer, Ja- son Karasik, Max Kosman, Brittany Lewis-Roberts, Ryan Watson, Brian Wesoloski, and William Zapf for excellent research assistance. 1818 Electronic copy available at: http://ssrn.com/abstract=1688564 2010] THE ELEVENTH AMENDMENT 1819 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 I. INTRODUCTION eading theories of the Eleventh Amendment place surprisingly lit- Ltle emphasis on the words of the Amendment. In fact, according to one prominent observer, “the [E]leventh [A]mendment is universally taken not to mean what it says.”2 The reason is that most courts and commentators regard the Amendment as either grossly under- or over- inclusive. In their view, the best way to understand and apply the Amendment is to look past its terms to its underlying purpose (as they define it). Modern theorists feel justified in expanding or contracting the immunity conferred by the text because they believe that following the Amendment as written would produce the anomalous — or even absurd — result of barring out-of-state citizens from suing states in federal court while leaving in-state citizens free to do so. As a result, leading theories of the Amendment tend to focus on why the Amend- ment cannot mean what it says. This Article offers a novel account of why the Eleventh Amend- ment made sense at the time it was adopted and simultaneously pro- vides insight into the Founders’ understanding of the nature of the Union. The Articles of Confederation authorized Congress to exercise legislative power over states rather than individuals, but provided no means of enforcement. The Founders concluded that the Articles could be made effective only by authorizing Congress to employ coer- cive military force against states who refused to comply with its affir- mative commands. The Founders rejected proposals to introduce coercive force, however, because they feared that the use of such pow- er would