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Tuesday, April 07, 2015

The Irony of Justice Stevens’s Immunity Amendment

Justice Stevens is one of the most famous and persistent critics of the Supreme Court’s broad view of state sovereign immunity. So it was no surprise when his 2014 book Six Amendments proposed a constitutional amendment on this subject. Yet there is something quite surprising about Stevens’s proposal: if read according to its terms, it might not have any significant effect at all. Exploring this possibility turns out to be an interesting way of testing our intuitions about text and purpose in this area.

The story of state sovereign immunity typically starts with Chisholm v. Georgia and the Eleventh Amendment. Chisholm was an early Supreme Court decision that rejected an assertion of state sovereign immunity, and supporters of the Eleventh Amendment sought to override that unpopular holding. Here’s the Amendment’s text:

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.

On its face, this text addresses only those unusual lawsuits that arise between a citizen of one state and a separate state altogether. Acknowledging that textual point, the justices have repeatedly said that “we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms.”

But how can a “presupposition” qualify as law?

Professor Stephen Sachs recently suggested a possible answer to that question as part of his account of constitutional “backdrops.” To summarize, Sachs posits the following basic chronology: 

  1. Before the Constitution, the would-be founders recognized a settled legal principle of sovereign immunity derived from British law.
  2. The Constitution changed many aspects of the law, but it didn’t reject the preexisting principle of sovereign immunity.
  3. Whatever else it did, the Eleventh Amendment didn’t reject the preexisting principle of sovereign immunity.

Given all that, sovereign immunity continues to be the law. And while the Constitution may have empowered Congress to eliminate sovereign immunity, any such claim must rest on the proper understanding of Congress’s legislative powers. (For details, see Sachs's paper.)

Now consider Justice Stevens’s proposed amendment on sovereign immunity:

Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.

By its terms, this proposed amendment addresses whether “any . . . provision” of the Constitution “provide[s]” sovereign immunity.

But if we assume that state sovereign immunity is a “presupposition” or a “backdrop” principle, then it could very well be the law even though no provision of the Constitution provides for it. True, Justice Stevens’s proposal would override all textual forms of state sovereign immunity, but it would ironically leave atextual varieties intact.

Now, at this point you’re bound to object: the entire point of Justice Stevens’s proposal is to override the Court’s state sovereign immunity decisions, so how could anyone possibly read Stevens’s proposal as having failed to achieve that goal?

That’s a very fair question—but it has interesting implications.

Apart from Sachs’s “backdrop” view, another standard argument for state sovereign immunity is that the people who enacted the Eleventh Amendment expressly intended to restore the broad doctrine of sovereign immunity rejected in Chisholm. In parrying that purposive argument, many judges and constitutional scholars have argued in part that unenacted purposes simply do not qualify as law. On that view, the Eleventh Amendment must be judged by its text alone.

The parallels here are remarkable. Both the Eleventh Amendment and Justice Stevens’s proposal were explicitly designed to reverse disfavored Supreme Court decisions. Yet both texts were written in a way that didn’t speak directly to whether sovereign immunity would be the law. As a result, in both situations there’s a tension between the relative narrowness of the text and the potential breadth of the purpose.

Despite these strong parallels, I suspect that at least some readers of this post will be tempted to treat these two contexts differently.

Many of us are used to thinking about text and purpose in debates over the Eleventh Amendment. Justice Stevens’s proposal tests whether we would stick to our guns if those issues arose in a more familiar present-day context, with flipped policy implications.

Posted by Richard M. Re on April 7, 2015 at 08:34 AM | Permalink


It seems to me the key word in Justice Steven's amendment is the word "construed". Maybe it depends on how one construes "construed" the same as what one's definition of is is. If one views construing a constitutional as simply textual interpenetration then Re's comment has merit. But I suspect that Justice Steven's himself would claim that construing a constitutional provision by necessity means interpenetrating its atextal dimension.

Perhaps the real important lesson here is that dafters of constitutional provisions implicitly (and perhaps unconsciously) assume that their texts will be interpreted by the courts in the line with the drafter's own intentions rather than in line with the judge's underlying legal philosophy.

Posted by: Daniel | Apr 9, 2015 8:41:30 PM

What are you talking about? The Supreme Court read sovereign immunity from suit from a state's own citizens into the 11th immunity.

Posted by: anon | Apr 8, 2015 10:08:04 AM

Well, even state borders are affected by the choice of *a* federal system in the first place. No federal system, no state borders. Maybe the specifics don't matter but they're still an inference from something in the Constitution, or at least depend on something in the Constitution. Even federal sovereign immunity depends on the existence of a federal sovereign in the Constitution, but I don't think we'd say that the Constitution has been construed to provide for federal sovereign immunity, just because it created something that's a necessary predicate for it.

Posted by: Asher | Apr 7, 2015 3:41:47 PM

I would think backdrop assumptions about state borders aren't likely to be affected by what kind of federal system turns out to be established by the Constitution, but assumptions about the extent of sovereign immunity are very likely to be affected by the choice of a particular federal regime.

Posted by: New Yorker | Apr 7, 2015 2:13:14 PM

"Isn't sovereign immunity more like that latter case?"

I would have thought it's a great deal more like the former case.

Posted by: Asher | Apr 7, 2015 1:10:03 PM

The argument of the dissenters (like Stevens) is that the text AND purpose of the 11A does not justify the current jurisprudence at issue. Others disagree, but Stevens et. al. doesn't rest merely on text here. So, a "correct" application of context in both cases would lead to the "right" result.

Anyway, the additional text seems to make the alleged implicit immunity argument that much harder. I'm open to unexpected consequences, but it should help the cause Stevens is supporting here at least somewhat.

Posted by: Joe | Apr 7, 2015 11:44:05 AM

Isn't there a difference between a backdrop assumption that simply wasn't altered by the Constitution and a principle that, while it may correspond to such an assumption, is also affirmatively inferrable from the Constitution's structure? Sachs mentions rules about state borders as a pure backdrop assumption left unmentioned in, but not altered by, the Constitution. By contrast, the political question doctrine would have to be inferred from the Constitution: it might correspond to assumptions we'd expect the Framers to have had about judicial powers, but we only "know" that the federal judicial power is actually subject to that limitation from an interpretation of the entire actually adopted text. Isn't sovereign immunity more like that latter case? And if it is, doesn't Justice Stevens's proposed amendment essentially say, "You can't use any part of the Constitution's text, or all of it, to support an inference that sovereign immunity was a backdrop assumption left in place by the Constitution"?

Posted by: New Yorker | Apr 7, 2015 11:39:52 AM

Good post, Richard -- and clever too.

But I wonder whether it's a bit too clever in parts. Maybe, just maybe, the equation of the 11th Amendment and Justice Stevens's proposal doesn't work. Why? Perhaps because the 'purpose' in the latter is clearer than in the former. It's obvious what JPS is up to; it's substantially less clear what folks were doing, or trying to do, with the 11th Amendment.

Even more, and more powerfully, perhaps because JPS's proposal doesn't fall into the neat Sachs-ian black hole you suggest. Whether it was ever a background principle or not -- a point we needn't hash out here -- state sovereign immunity stopped lurking in the background after Chisholm. It was, in a word, constitutionalized. So maybe when JPS pushes against it, he doesn't have to worry about the background principle returning too?

Posted by: Gloober | Apr 7, 2015 11:24:20 AM

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