A textual defense of the diversity theory of the 11th Amendment

Eric Segall discusses everything wrong with the Court's 11th Amendment/sovereign immunity jurisprudence, discussing its evolution and incoherence. I agree with just about everything, particularly the point that states should not have sovereign immunity from federal-question actions because states are not sovereign as to federal law.

I depart on one point: Eric argues that the only truly "textualist" interpretation is that the 11th Amendment prohibits all suits against a state by a citizen of another state, regardless of the nature of the case, but is silent as to suits against a state by its own citizens, regardless of the nature of the case. He argues that the diversity theory--a state cannot be sued by a citizen of another state on diversity, but could be sued on some other basis, such as federal question--is not textualist. This makes Gorsuch, who adopted that view in PennEast, is a "fake textualist."

I disagree with Eric at my peril. But I want to try to make a textualist defense of the diversity theory.

There are two key issues here. One is whether textualism requires us to read all relevant provisions or one provision in isolation, especially when dealing with amendments--do we read the 11th Amendment alone or must we also look at the text of Article III § 2, which was the target of the amendment. The other is how we understand a constitutional amendment--how much of the prior provision does it amend and do we look to a specific clause within a provision or to the provision as a whole in figuring that out.

Article III § 2 enumerates the jurisdiction that federal courts can exercise if authorized by Congress. Each basis for jurisdiction stands alone as a distinct and independent ground for a federal court to hear a case; a case need only satisfy one ground, although it could satisfy more than one. The list includes controversies "between a State and Citizens of another State" and between "a State . . . and foreign States, Citizens or Subjects." These provisions grant diversity or alienage jurisdiction--jurisdiction over the controversy because of the identity of the parties. These  grants are distinct from the grants earlier in § 2 to hear "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States" or to hear "Cases of Admiralty."

Thus imagine a suit by a citizen of South Carolina against Georgia for violating a federal statute. Prior to 1795, a federal court would have had two constitutional bases for exercising jurisdiction over that case--it arises under the Laws of the United States and it is between a State and a Citizen of another State.

The Eleventh Amendment strips courts of jurisdiction over "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." The amendment's text copies the text of the diversity and alienage clauses of § 2, carving out one half of those grants. Given the linguistic overlap, we can read the 11th Amendment as amending the diversity clause, but not all of Article III. For example, the diversity clause and the 11tm Amendment together say the judicial power extends to "controversies between a State and Citizens of another State, but not to a suit commenced or prosecuted against one of the United States by Citizens of another State." (This is a long way of saying the grant of judicial power in diversity cases is limited to controversies commenced by a State against Citizens of another State). But the diversity clause is one part of § 2, independent of the other, unamended jurisdictional grants, such as the grant of federal-question jurisdiction or the grant of admiralty jurisdiction.

So return to the suit by a citizen of South Carolina against Georgia for violating a federal statute. After the 11th Amendment, there is no diversity jurisdiction, because this case falls within the 11th Amendment's exception to the diversity clause (stated differently, the case no longer falls within the amended clause granting diversity jurisdiction). But the case still satisfies a distinct-and-independent jurisdictional grant, in that it arises under the Laws of the United States. The 11th Amendment did not amend that clause of Article III, which provides a  stand-alone basis for the court to hear this case. By its plain terms, the amendment jurisdiction because the suit is one "commenced or prosecuted against one of the United States by a citizens of another State," but is silent as to another basis for jurisdiction (such as arising under).

It seems to me this reading is not atextual or fake-textual. It relies on the text the 11th Amendment, read in conjunction with the text of the clause it amended, without pulling in extra-textual historical, purpose, or policy considerations.