Principle and compromise in constitutional adjudication: The eleventh amendment and state sovereign immunity

Notre Dame Law Review

Volumn 75, Issue 3, 2000, Pages 953-1010

  Jackson, Vicki C ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 33746412703     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (210)

1. For an additional analysis and critique of last Term's sovereign immunity decisions, see Vicki C. Jackson, Seductions of Coherence, State Sovereign Immunity and the Denationalization of Federal Law, 31 RUTGERS L.J. (forthcoming 2000).
2. 517 U.S. 44 (1996).
3. 119 S. Ct. 2240 (1999).
4. For a thoughtful discussion of the competing constitutional traditions and interests, see Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1733 (1991).
5. See John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 YALE L.J. 87 (1999) (arguing that the qualified immunity doctrine for government officials is necessary to avoid over-deterring official action and to allow room for the development and evolution of legal standards governing their conduct).
6. U.S. CONST, preamble; see also John Paul Stevens, Is Justice Irrelevant?, 87 Nw. U. L. REV. 1121 (1993).
7. See Carlos Manuel Vázquez, Eleventh Amendment Schizophrenia, 75 NOTRE DAME L. REV. 859 (2000).
8. See Ann Woolhandler, Old Property, New Property, and Sovereign Immunity, 75 NOTRE DAME L. REV. 919 (2000).
9. U.S. CONST, amend XIV, § 5.
10. 134 U.S. 1 (1890).
11. 517 U.S. 44 (1996).
12. See, e.g., Daniel J. Meltzer, State Sovereign Immunity: Five Authors in Search of a Theory, 75 NOTRE DAME L. REV. 1011 (2000). After the AALS panel for which this Article was prepared, the Court decided Kimel v. Florida Board of Regents, 120 S. Ct. 631 (2000), holding that the Age Discrimination in Employment Act, 29 U.S.C §§ 621-34 (1994) (ADEA) was not a valid exercise of Congress's power to enforce the 14th Amendment and thus could not constitutionally abrogate states' immunity from suit. While I do not address Kimel here, note that because the ADEA's extension to the states has been upheld under the Commerce Clause, the ADEA now appears to be like the Fair Labor Standards Act, 29 U.S.C. § 216(b) (1994), and the patent laws: it is a valid federal statute validly applied to cover activities of state governments but only partially enforceable as against those state governments.
13. 119 S. Ct. 2199 (1999).
14. But see id. at 2209-10 (suggesting that negligent infringements would not be treated as "deprivations"). For a critical discussion, see Meltzer, supra note 12, at 1056-61.
15. See Florida Prepaid, 119 S. Ct. at 2207 (characterizing the underlying conduct as "state infringement of patents and the use of sovereign immunity to deny patent owners compensation for the invasion of their patent rights"); id. at 2209 n.9 (noting that Florida "provides remedies" for patent infringements by the state through "a claims bill" in the state legislature or a judicial remedy for takings or conversion).
16. Id. at 2207 ("Congress identified no pattern of patent infringements by states, let alone a pattern of constitutional violations.").
17. See id. at 2207-10.
18. 521 U.S. 507, 519-20 (1997) (stating that in using its Section 5 power prophylactically to prohibit conduct that does not itself violate Section 1 of the 14th Amendment, Congress must choose means that are proportional and congruent with the Section 1 violations it seeks to remedy or prevent). For my earlier discussions of Flores, see Vicki C. Jackson, Ambivalent Resistance and Comparative Constitutionalism: Opening Up the Conversation on "Proportionality," Rights and Federalism, 1 U. PA. J. CONST. L. 583, 623-34 (1999) (arguing that a proportionality standard, deferentially applied to identify instances of gross disproportionality between purported ends and chosen means, might function as a milder form of "pretext" examination of congressional purpose), and Jackson, supra note 1 (arguing that Florida Prepaid was a significant extension of the rigor with which the Flores proportionality standard was applied).
19. See William A. Fletcher, The Eleventh Amendment: Unfinished Business, 75 NOTRE DAME L. REV. 843 (2000).
20. See Jackson, supra note 1.
21. But cf. Florida Prepaid, 119 S. Ct. at 2215 n.9 (Stevens, J., dissenting) (noting bases on which to distinguish and uphold the Copyright Remedy Clarification Act's abrogation of immunity).
22. Professor Vázquez argues that, given the Court's view that remedies other than monetary suits against states are sufficient to protect the interests of the federal government in the supremacy of federal law, it will be almost impossible to meet the standard he believes the Court has provided for 14th Amendment abrogations - that abrogation of immunity be "genuinely necessary." Vázquez, supra note 7, at 862, 897-900 (quoting College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219, 2225 (1999)). Vázquez reads this sentence - correctly, in a grammatical sense - to suggest a requirement that, even if Section 1 violations are established, the particular remedy must be ́genuinely necessary.́ Id. He appears to interpret this, in turn, to mean something like ́absolutely necessarý - that is, along the lines of the interpretation of the Necessary and Proper Clause advocated by the State of Maryland in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), which was rejected by the Court. Given these interpretations, Vázquez goes on to argue that the Court might find that so long as such other remedies as the Ex parte Young, 209 U.S. 123 (1908), injunction or the possibility of suit by the United States exists, no such absolute or "genuine" necessity can be established, and hence, Congress would never have power to abrogate immunity. See Vázquez, supra note 7, at 898. However, it is not clear to me that this is the best or most likely reading of this portion of College Savings Bank, though given Professor Vázquez's past success in reading the tea leaves of the Court's opinions, see Carlos Manuel Vázquez, What Is Eleventh Amendment Immunity?, 106 YALE L.J. 1683, 1714-22 (1997), there is no doubt reason for concern. But I would suggest an alternative interpretation of this language. Recall that in College Savings Bank (unlike in Florida Prepaid) the Court found that the first predicate for a Section 1 violation - that the Lanham Act protected a "property interest" - did not exist. See College Sav. Bank, 119 S. Ct. at 2224. The "genuinely necessary" language may, then, hark back to a Boerne v. Flores issue - of whether there are any, or enough, "genuine" (in the Court's view) violations of Section 1 to authorize any prophylactic use of the Section 5 power: if there are no violations of the 14th Amendment, Congress's invocation of the Section 5 power may not be "genuine." I fully agree with Professor Vázquez that the Court's narrow interpretations here are in part motivated by its desire to avoid "undermining" Seminole Tribe by allowing Congress to protect rights created under Article I statutes through the 14th Amendment. While Professor Vázquez appears to find this effort appropriate, or at least tolerable, see Vázquez, supra, at 1744 (characterizing the use of the 14th Amendment powers to authorize remedies against states for violating rights created under legislation under Article I as threatening to "reduce Seminole Tribe's . . . holding to nothing"), I do not. I believe that this effort to deliberately trim Congress's powers under Section 5 of the 14th Amendment undervalues the intended nationalizing effect of the 14th Amendment on the protection of federally derived rights. (Given the inventiveness of lawyers, and the possibilities for flexibility offered by our system of common law constitutional adjudication, however, questions about the scope of the 14th Amendment in securing national rights against state action may now proceed to be litigated in connection with the Privileges and Immunities Clause, after Saenz v. Roe, 119 S. Ct. 1518, 1526 (1999)). Finally, while I share Professor Vázquez's concerns about the effect of the Court's decisions on the protection of "countermajoritarian" constitutional rights under the 14th Amendment, see Vázquez, supra note 7, at 898-90, I am not so convinced that this Term's decisions render Section 5 a nullity - though they do significantly impair its reach.
23. See, e.g., MERRILL JENSEN, THE NEW NATION: A HISTORY OF THE UNITED STATES DURING THE CONFEDERATION 1781-1789, at 400-06 (Northeastern Classics ed. 1981) (arguing that while state legislation on foreign trade was effective, "American merchants wanted a uniformity which only centralized control could provide"); JACK RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 26-27 (1997). I do not mean to suggest that the Constitution was designed only to better protect commercial interests, but that this was one of its important purposes.
24. See, e.g., MERRILL JENSEN, THE NEW NATION: A HISTORY OF THE UNITED STATES DURING THE CONFEDERATION 1781-1789, at 400-06 (Northeastern Classics ed. 1981) (arguing that while state legislation on foreign trade was effective, "American merchants wanted a uniformity which only centralized control could provide"); JACK RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 26-27 (1997). I do not mean to suggest that the Constitution was designed only to better protect commercial interests, but that this was one of its important purposes.
25. See, e.g., Parden v. Terminal Ry., 377 U.S. 184, 190-92 (1964), overruled by College Sav. Bank, 119 S. Ct. at 2228; cf. Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275 (1959).
26. See, e.g., Briscoe v. Bank of Ky., 36 U.S. (11 Pet.) 257 (1837); Bank of the United States v. The Planters' Bank, 22 U.S. (9 Wheat.) 904 (1824). The question of whether the Florida Prepaid Fund was an arm of the state had been litigated in the lower courts and was not before the Supreme Court. See infra note 35.
27. See College Sav. Bank, 119 S. Ct at 2230-33 & n.4.
28. See Jackson, supra note 1.
29. See Florida Prepaid, 119 S. Ct. at 2209-11 & n.9.
30. Cf. Ann Althouse, The Alden Trilogy: Still Searching for a Way to Enforce Federalism, 31 RUTGERS L.J. (forthcoming 2000) (arguing that the Court's decisions provide both Congress and the states opportunities in the future to prove their trustworthiness in design and administration of federal rights, including for states the opportunity to provide appropriate relief in state courts for infringements of patents).
31. 119 S. Ct. 2219 (1999).
32. See generally Woolhandler, supra note 8.
33. 377 U.S. 184 (1964).
34. For example, all 50 states currently offer either a prepaid tuition and/or tuition savings plan. See State of the States: State College Savings Plan Overview (visited Jan. 10, 2000) 〈http://www.collegesavings.org/state-table.htm〉; see also J. Timothy Philipps & Ed R. Haden, It's Not Love, But It's Not Bad: A Response to Critics of Prepaid College Tuition Plans, 26 U. RICH. L. REV. 281, 309-310 (1992) (asserting that state plans allow the middle class to save for college without being sophisticated investors); Amy Remus Scott, Note, A Commerce Clause Challenge to New York's Tax Deduction for Investment in Its Own Tuition Savings Program, 25 U. MICH. J.L. REFORM 379, 379 (1999) (finding that these programs provide attractive alternatives to private investment because they "offer significant federal tax benefits to individuals who invest in the programs"). Patents have been issued to state universities, presumably for competitive use in such fields as biomedical technology. See Florida Prepaid, 119 S. Ct. at 2215 & n.8 (Stevens, J., dissenting); see also Rebecca Eisenberg, Public Research and Private Development: Patents and Technology Transfer in Government-Sponsored Research, 82 VA. L. REV. 1663 (1996). At least 38 states use lotteries for the raising of state revenue, but Nevada does not permit a state lottery, "[p]erhaps [because] this would be seen as competing with one of the states' major industries." NATIONAL SURVEY OF STATE LAWS 511 (Richard A. Leiter ed., 2d ed. 1997). Commercial aviation also appears to face competition from government entities that receive "payment for commercial air services while at the same time claiming exemption from most regulations administered by the FAA as 'public aircraft.'" Lorraine B. Halloway, New Challenge for the Private Sector: Competition from "Public Aircraft," 8-SPG AIR & SPACE LAW 1 (1994) (arguing that, by claiming exemptions from regulation, government operated public aircraft are able to operate at lower costs than commercial aircraft). In addition, investment of public pension funds gives states considerable influence in the private sector. "For firms, public pension systems can represent both a source of more than $1.7 trillion in investment funds and an occasional meddlesome voice in corporate governance." Steven L. Willborn, Public Pensions and the Uniform Management of Public Employee Retirement Systems Act, 51 RUTGERS L. REV. 141, 142 (1998); see also Roberta Romano, Public Pension Fund Activism in Corporate Governance Reconsidered, 93 COLUM. L. REV. 795 (1993).
35. For example, all 50 states currently offer either a prepaid tuition and/or tuition savings plan. See State of the States: State College Savings Plan Overview (visited Jan. 10, 2000) 〈http://www.collegesavings.org/state-table.htm〉; see also J. Timothy Philipps & Ed R. Haden, It's Not Love, But It's Not Bad: A Response to Critics of Prepaid College Tuition Plans, 26 U. RICH. L. REV. 281, 309-310 (1992) (asserting that state plans allow the middle class to save for college without being sophisticated investors); Amy Remus Scott, Note, A Commerce Clause Challenge to New York's Tax Deduction for Investment in Its Own Tuition Savings Program, 25 U. MICH. J.L. REFORM 379, 379 (1999) (finding that these programs provide attractive alternatives to private investment because they "offer significant federal tax benefits to individuals who invest in the programs"). Patents have been issued to state universities, presumably for competitive use in such fields as biomedical technology. See Florida Prepaid, 119 S. Ct. at 2215 & n.8 (Stevens, J., dissenting); see also Rebecca Eisenberg, Public Research and Private Development: Patents and Technology Transfer in Government-Sponsored Research, 82 VA. L. REV. 1663 (1996). At least 38 states use lotteries for the raising of state revenue, but Nevada does not permit a state lottery, "[p]erhaps [because] this would be seen as competing with one of the states' major industries." NATIONAL SURVEY OF STATE LAWS 511 (Richard A. Leiter ed., 2d ed. 1997). Commercial aviation also appears to face competition from government entities that receive "payment for commercial air services while at the same time claiming exemption from most regulations administered by the FAA as 'public aircraft.'" Lorraine B. Halloway, New Challenge for the Private Sector: Competition from "Public Aircraft," 8-SPG AIR & SPACE LAW 1 (1994) (arguing that, by claiming exemptions from regulation, government operated public aircraft are able to operate at lower costs than commercial aircraft). In addition, investment of public pension funds gives states considerable influence in the private sector. "For firms, public pension systems can represent both a source of more than $1.7 trillion in investment funds and an occasional meddlesome voice in corporate governance." Steven L. Willborn, Public Pensions and the Uniform Management of Public Employee Retirement Systems Act, 51 RUTGERS L. REV. 141, 142 (1998); see also Roberta Romano, Public Pension Fund Activism in Corporate Governance Reconsidered, 93 COLUM. L. REV. 795 (1993).
36. For example, all 50 states currently offer either a prepaid tuition and/or tuition savings plan. See State of the States: State College Savings Plan Overview (visited Jan. 10, 2000) 〈http://www.collegesavings.org/state-table.htm〉; see also J. Timothy Philipps & Ed R. Haden, It's Not Love, But It's Not Bad: A Response to Critics of Prepaid College Tuition Plans, 26 U. RICH. L. REV. 281, 309-310 (1992) (asserting that state plans allow the middle class to save for college without being sophisticated investors); Amy Remus Scott, Note, A Commerce Clause Challenge to New York's Tax Deduction for Investment in Its Own Tuition Savings Program, 25 U. MICH. J.L. REFORM 379, 379 (1999) (finding that these programs provide attractive alternatives to private investment because they "offer significant federal tax benefits to individuals who invest in the programs"). Patents have been issued to state universities, presumably for competitive use in such fields as biomedical technology. See Florida Prepaid, 119 S. Ct. at 2215 & n.8 (Stevens, J., dissenting); see also Rebecca Eisenberg, Public Research and Private Development: Patents and Technology Transfer in Government-Sponsored Research, 82 VA. L. REV. 1663 (1996). At least 38 states use lotteries for the raising of state revenue, but Nevada does not permit a state lottery, "[p]erhaps [because] this would be seen as competing with one of the states' major industries." NATIONAL SURVEY OF STATE LAWS 511 (Richard A. Leiter ed., 2d ed. 1997). Commercial aviation also appears to face competition from government entities that receive "payment for commercial air services while at the same time claiming exemption from most regulations administered by the FAA as 'public aircraft.'" Lorraine B. Halloway, New Challenge for the Private Sector: Competition from "Public Aircraft," 8-SPG AIR & SPACE LAW 1 (1994) (arguing that, by claiming exemptions from regulation, government operated public aircraft are able to operate at lower costs than commercial aircraft). In addition, investment of public pension funds gives states considerable influence in the private sector. "For firms, public pension systems can represent both a source of more than $1.7 trillion in investment funds and an occasional meddlesome voice in corporate governance." Steven L. Willborn, Public Pensions and the Uniform Management of Public Employee Retirement Systems Act, 51 RUTGERS L. REV. 141, 142 (1998); see also Roberta Romano, Public Pension Fund Activism in Corporate Governance Reconsidered, 93 COLUM. L. REV. 795 (1993).
37. For example, all 50 states currently offer either a prepaid tuition and/or tuition savings plan. See State of the States: State College Savings Plan Overview (visited Jan. 10, 2000) 〈http://www.collegesavings.org/state-table.htm〉; see also J. Timothy Philipps & Ed R. Haden, It's Not Love, But It's Not Bad: A Response to Critics of Prepaid College Tuition Plans, 26 U. RICH. L. REV. 281, 309-310 (1992) (asserting that state plans allow the middle class to save for college without being sophisticated investors); Amy Remus Scott, Note, A Commerce Clause Challenge to New York's Tax Deduction for Investment in Its Own Tuition Savings Program, 25 U. MICH. J.L. REFORM 379, 379 (1999) (finding that these programs provide attractive alternatives to private investment because they "offer significant federal tax benefits to individuals who invest in the programs"). Patents have been issued to state universities, presumably for competitive use in such fields as biomedical technology. See Florida Prepaid, 119 S. Ct. at 2215 & n.8 (Stevens, J., dissenting); see also Rebecca Eisenberg, Public Research and Private Development: Patents and Technology Transfer in Government-Sponsored Research, 82 VA. L. REV. 1663 (1996). At least 38 states use lotteries for the raising of state revenue, but Nevada does not permit a state lottery, "[p]erhaps [because] this would be seen as competing with one of the states' major industries." NATIONAL SURVEY OF STATE LAWS 511 (Richard A. Leiter ed., 2d ed. 1997). Commercial aviation also appears to face competition from government entities that receive "payment for commercial air services while at the same time claiming exemption from most regulations administered by the FAA as 'public aircraft.'" Lorraine B. Halloway, New Challenge for the Private Sector: Competition from "Public Aircraft," 8-SPG AIR & SPACE LAW 1 (1994) (arguing that, by claiming exemptions from regulation, government operated public aircraft are able to operate at lower costs than commercial aircraft). In addition, investment of public pension funds gives states considerable influence in the private sector. "For firms, public pension systems can represent both a source of more than $1.7 trillion in investment funds and an occasional meddlesome voice in corporate governance." Steven L. Willborn, Public Pensions and the Uniform Management of Public Employee Retirement Systems Act, 51 RUTGERS L. REV. 141, 142 (1998); see also Roberta Romano, Public Pension Fund Activism in Corporate Governance Reconsidered, 93 COLUM. L. REV. 795 (1993).
38. For example, all 50 states currently offer either a prepaid tuition and/or tuition savings plan. See State of the States: State College Savings Plan Overview (visited Jan. 10, 2000) 〈http://www.collegesavings.org/state-table.htm〉; see also J. Timothy Philipps & Ed R. Haden, It's Not Love, But It's Not Bad: A Response to Critics of Prepaid College Tuition Plans, 26 U. RICH. L. REV. 281, 309-310 (1992) (asserting that state plans allow the middle class to save for college without being sophisticated investors); Amy Remus Scott, Note, A Commerce Clause Challenge to New York's Tax Deduction for Investment in Its Own Tuition Savings Program, 25 U. MICH. J.L. REFORM 379, 379 (1999) (finding that these programs provide attractive alternatives to private investment because they "offer significant federal tax benefits to individuals who invest in the programs"). Patents have been issued to state universities, presumably for competitive use in such fields as biomedical technology. See Florida Prepaid, 119 S. Ct. at 2215 & n.8 (Stevens, J., dissenting); see also Rebecca Eisenberg, Public Research and Private Development: Patents and Technology Transfer in Government-Sponsored Research, 82 VA. L. REV. 1663 (1996). At least 38 states use lotteries for the raising of state revenue, but Nevada does not permit a state lottery, "[p]erhaps [because] this would be seen as competing with one of the states' major industries." NATIONAL SURVEY OF STATE LAWS 511 (Richard A. Leiter ed., 2d ed. 1997). Commercial aviation also appears to face competition from government entities that receive "payment for commercial air services while at the same time claiming exemption from most regulations administered by the FAA as 'public aircraft.'" Lorraine B. Halloway, New Challenge for the Private Sector: Competition from "Public Aircraft," 8-SPG AIR & SPACE LAW 1 (1994) (arguing that, by claiming exemptions from regulation, government operated public aircraft are able to operate at lower costs than commercial aircraft). In addition, investment of public pension funds gives states considerable influence in the private sector. "For firms, public pension systems can represent both a source of more than $1.7 trillion in investment funds and an occasional meddlesome voice in corporate governance." Steven L. Willborn, Public Pensions and the Uniform Management of Public Employee Retirement Systems Act, 51 RUTGERS L. REV. 141, 142 (1998); see also Roberta Romano, Public Pension Fund Activism in Corporate Governance Reconsidered, 93 COLUM. L. REV. 795 (1993).
39. For example, all 50 states currently offer either a prepaid tuition and/or tuition savings plan. See State of the States: State College Savings Plan Overview (visited Jan. 10, 2000) 〈http://www.collegesavings.org/state-table.htm〉; see also J. Timothy Philipps & Ed R. Haden, It's Not Love, But It's Not Bad: A Response to Critics of Prepaid College Tuition Plans, 26 U. RICH. L. REV. 281, 309-310 (1992) (asserting that state plans allow the middle class to save for college without being sophisticated investors); Amy Remus Scott, Note, A Commerce Clause Challenge to New York's Tax Deduction for Investment in Its Own Tuition Savings Program, 25 U. MICH. J.L. REFORM 379, 379 (1999) (finding that these programs provide attractive alternatives to private investment because they "offer significant federal tax benefits to individuals who invest in the programs"). Patents have been issued to state universities, presumably for competitive use in such fields as biomedical technology. See Florida Prepaid, 119 S. Ct. at 2215 & n.8 (Stevens, J., dissenting); see also Rebecca Eisenberg, Public Research and Private Development: Patents and Technology Transfer in Government-Sponsored Research, 82 VA. L. REV. 1663 (1996). At least 38 states use lotteries for the raising of state revenue, but Nevada does not permit a state lottery, "[p]erhaps [because] this would be seen as competing with one of the states' major industries." NATIONAL SURVEY OF STATE LAWS 511 (Richard A. Leiter ed., 2d ed. 1997). Commercial aviation also appears to face competition from government entities that receive "payment for commercial air services while at the same time claiming exemption from most regulations administered by the FAA as 'public aircraft.'" Lorraine B. Halloway, New Challenge for the Private Sector: Competition from "Public Aircraft," 8-SPG AIR & SPACE LAW 1 (1994) (arguing that, by claiming exemptions from regulation, government operated public aircraft are able to operate at lower costs than commercial aircraft). In addition, investment of public pension funds gives states considerable influence in the private sector. "For firms, public pension systems can represent both a source of more than $1.7 trillion in investment funds and an occasional meddlesome voice in corporate governance." Steven L. Willborn, Public Pensions and the Uniform Management of Public Employee Retirement Systems Act, 51 RUTGERS L. REV. 141, 142 (1998); see also Roberta Romano, Public Pension Fund Activism in Corporate Governance Reconsidered, 93 COLUM. L. REV. 795 (1993).
40. For example, all 50 states currently offer either a prepaid tuition and/or tuition savings plan. See State of the States: State College Savings Plan Overview (visited Jan. 10, 2000) 〈http://www.collegesavings.org/state-table.htm〉; see also J. Timothy Philipps & Ed R. Haden, It's Not Love, But It's Not Bad: A Response to Critics of Prepaid College Tuition Plans, 26 U. RICH. L. REV. 281, 309-310 (1992) (asserting that state plans allow the middle class to save for college without being sophisticated investors); Amy Remus Scott, Note, A Commerce Clause Challenge to New York's Tax Deduction for Investment in Its Own Tuition Savings Program, 25 U. MICH. J.L. REFORM 379, 379 (1999) (finding that these programs provide attractive alternatives to private investment because they "offer significant federal tax benefits to individuals who invest in the programs"). Patents have been issued to state universities, presumably for competitive use in such fields as biomedical technology. See Florida Prepaid, 119 S. Ct. at 2215 & n.8 (Stevens, J., dissenting); see also Rebecca Eisenberg, Public Research and Private Development: Patents and Technology Transfer in Government-Sponsored Research, 82 VA. L. REV. 1663 (1996). At least 38 states use lotteries for the raising of state revenue, but Nevada does not permit a state lottery, "[p]erhaps [because] this would be seen as competing with one of the states' major industries." NATIONAL SURVEY OF STATE LAWS 511 (Richard A. Leiter ed., 2d ed. 1997). Commercial aviation also appears to face competition from government entities that receive "payment for commercial air services while at the same time claiming exemption from most regulations administered by the FAA as 'public aircraft.'" Lorraine B. Halloway, New Challenge for the Private Sector: Competition from "Public Aircraft," 8-SPG AIR & SPACE LAW 1 (1994) (arguing that, by claiming exemptions from regulation, government operated public aircraft are able to operate at lower costs than commercial aircraft). In addition, investment of public pension funds gives states considerable influence in the private sector. "For firms, public pension systems can represent both a source of more than $1.7 trillion in investment funds and an occasional meddlesome voice in corporate governance." Steven L. Willborn, Public Pensions and the Uniform Management of Public Employee Retirement Systems Act, 51 RUTGERS L. REV. 141, 142 (1998); see also Roberta Romano, Public Pension Fund Activism in Corporate Governance Reconsidered, 93 COLUM. L. REV. 795 (1993).
41. For example, all 50 states currently offer either a prepaid tuition and/or tuition savings plan. See State of the States: State College Savings Plan Overview (visited Jan. 10, 2000) 〈http://www.collegesavings.org/state-table.htm〉; see also J. Timothy Philipps & Ed R. Haden, It's Not Love, But It's Not Bad: A Response to Critics of Prepaid College Tuition Plans, 26 U. RICH. L. REV. 281, 309-310 (1992) (asserting that state plans allow the middle class to save for college without being sophisticated investors); Amy Remus Scott, Note, A Commerce Clause Challenge to New York's Tax Deduction for Investment in Its Own Tuition Savings Program, 25 U. MICH. J.L. REFORM 379, 379 (1999) (finding that these programs provide attractive alternatives to private investment because they "offer significant federal tax benefits to individuals who invest in the programs"). Patents have been issued to state universities, presumably for competitive use in such fields as biomedical technology. See Florida Prepaid, 119 S. Ct. at 2215 & n.8 (Stevens, J., dissenting); see also Rebecca Eisenberg, Public Research and Private Development: Patents and Technology Transfer in Government-Sponsored Research, 82 VA. L. REV. 1663 (1996). At least 38 states use lotteries for the raising of state revenue, but Nevada does not permit a state lottery, "[p]erhaps [because] this would be seen as competing with one of the states' major industries." NATIONAL SURVEY OF STATE LAWS 511 (Richard A. Leiter ed., 2d ed. 1997). Commercial aviation also appears to face competition from government entities that receive "payment for commercial air services while at the same time claiming exemption from most regulations administered by the FAA as 'public aircraft.'" Lorraine B. Halloway, New Challenge for the Private Sector: Competition from "Public Aircraft," 8-SPG AIR & SPACE LAW 1 (1994) (arguing that, by claiming exemptions from regulation, government operated public aircraft are able to operate at lower costs than commercial aircraft). In addition, investment of public pension funds gives states considerable influence in the private sector. "For firms, public pension systems can represent both a source of more than $1.7 trillion in investment funds and an occasional meddlesome voice in corporate governance." Steven L. Willborn, Public Pensions and the Uniform Management of Public Employee Retirement Systems Act, 51 RUTGERS L. REV. 141, 142 (1998); see also Roberta Romano, Public Pension Fund Activism in Corporate Governance Reconsidered, 93 COLUM. L. REV. 795 (1993).
42. For example, all 50 states currently offer either a prepaid tuition and/or tuition savings plan. See State of the States: State College Savings Plan Overview (visited Jan. 10, 2000) 〈http://www.collegesavings.org/state-table.htm〉; see also J. Timothy Philipps & Ed R. Haden, It's Not Love, But It's Not Bad: A Response to Critics of Prepaid College Tuition Plans, 26 U. RICH. L. REV. 281, 309-310 (1992) (asserting that state plans allow the middle class to save for college without being sophisticated investors); Amy Remus Scott, Note, A Commerce Clause Challenge to New York's Tax Deduction for Investment in Its Own Tuition Savings Program, 25 U. MICH. J.L. REFORM 379, 379 (1999) (finding that these programs provide attractive alternatives to private investment because they "offer significant federal tax benefits to individuals who invest in the programs"). Patents have been issued to state universities, presumably for competitive use in such fields as biomedical technology. See Florida Prepaid, 119 S. Ct. at 2215 & n.8 (Stevens, J., dissenting); see also Rebecca Eisenberg, Public Research and Private Development: Patents and Technology Transfer in Government-Sponsored Research, 82 VA. L. REV. 1663 (1996). At least 38 states use lotteries for the raising of state revenue, but Nevada does not permit a state lottery, "[p]erhaps [because] this would be seen as competing with one of the states' major industries." NATIONAL SURVEY OF STATE LAWS 511 (Richard A. Leiter ed., 2d ed. 1997). Commercial aviation also appears to face competition from government entities that receive "payment for commercial air services while at the same time claiming exemption from most regulations administered by the FAA as 'public aircraft.'" Lorraine B. Halloway, New Challenge for the Private Sector: Competition from "Public Aircraft," 8-SPG AIR & SPACE LAW 1 (1994) (arguing that, by claiming exemptions from regulation, government operated public aircraft are able to operate at lower costs than commercial aircraft). In addition, investment of public pension funds gives states considerable influence in the private sector. "For firms, public pension systems can represent both a source of more than $1.7 trillion in investment funds and an occasional meddlesome voice in corporate governance." Steven L. Willborn, Public Pensions and the Uniform Management of Public Employee Retirement Systems Act, 51 RUTGERS L. REV. 141, 142 (1998); see also Roberta Romano, Public Pension Fund Activism in Corporate Governance Reconsidered, 93 COLUM. L. REV. 795 (1993).
43. See Fletcher, supra note 19, at 849.
44. In the district court, College Savings Bank argued, unsuccessfully, that Florida Prepaid should not be treated as an "arm of the state" entitled to share in the state's 11th Amendment immunity. Despite the fact that the fund had not been supported by state taxes and had its own liability insurance, the district court, applying the Third Circuit's multi-factor test, found that it was an arm of the state because, inter alia, Florida statutory law extends immunity to all state agencies and requires appropriations to pay judgments against those agencies. See College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 948 F. Supp. 400, 411 (D.N.J. 1996). It would not be surprising if one response to College Savings Bank and Florida Prepaid in the future were a restriction on the circumstances in which 11th Amendment doctrine would allow states to shelter commercial enterprises with the states' constitutional immunity.
45. See Brief for the United States at 21, College Sav. Bank (No. 98-149) (limiting constructive waiver argument so as not to extend to "activities [the state] cannot realistically choose to abandon, such as the operation of a police force"). The proposed constraint would reinvigorate a concept close to the rejected "traditional state functions" concept developed in National League of Cities v. Usery, 426 U.S. 833 (1976) and rejected as unworkable in San Antonio Metropolitan Transit Authority v. Garcia, 469 U.S. 528 (1985). Some version of this concept is, however, likely to emerge from the current Court's federalism jurisprudence. See, e.g., Printz v. United States, 521 U.S. 898, 931-33 (1997) (suggesting a distinction between laws targeting states and laws having incidental effect on state activities, with the latter subject to review of various factors concerning whether it "excessively interfered" with state government functioning). Moreover, as both Deborah Merritt and I have argued, albeit on somewhat different grounds, the Constitution itself provides guidance on what the core functions are. See Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2246-55 (1998); Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1 (1988). Were the United States government's theory adopted, for example, it would not be proper to treat the convening of a state legislature as a "constructive consent" to application of any and all federal statutory standards that might by terms apply. If the Court were to adhere to its full-blown version of state sovereign immunity, the theory of constructive consent as applied to states' commercial activities might become a workable and useful constitutional doctrine. But as set forth in Part III.D, infra, there may be better doctrinal alternatives than immunity to safeguard important constitutional interests in the continued constitutional role of the states.
46. See Brief for the United States at 21, College Sav. Bank (No. 98-149) (limiting constructive waiver argument so as not to extend to "activities [the state] cannot realistically choose to abandon, such as the operation of a police force"). The proposed constraint would reinvigorate a concept close to the rejected "traditional state functions" concept developed in National League of Cities v. Usery, 426 U.S. 833 (1976) and rejected as unworkable in San Antonio Metropolitan Transit Authority v. Garcia, 469 U.S. 528 (1985). Some version of this concept is, however, likely to emerge from the current Court's federalism jurisprudence. See, e.g., Printz v. United States, 521 U.S. 898, 931-33 (1997) (suggesting a distinction between laws targeting states and laws having incidental effect on state activities, with the latter subject to review of various factors concerning whether it "excessively interfered" with state government functioning). Moreover, as both Deborah Merritt and I have argued, albeit on somewhat different grounds, the Constitution itself provides guidance on what the core functions are. See Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2246-55 (1998); Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1 (1988). Were the United States government's theory adopted, for example, it would not be proper to treat the convening of a state legislature as a "constructive consent" to application of any and all federal statutory standards that might by terms apply. If the Court were to adhere to its full-blown version of state sovereign immunity, the theory of constructive consent as applied to states' commercial activities might become a workable and useful constitutional doctrine. But as set forth in Part III.D, infra, there may be better doctrinal alternatives than immunity to safeguard important constitutional interests in the continued constitutional role of the states.
47. 119 S. Ct 2240 (1999).
48. The Court also places weight on the fact that the United States can constitutionally bring an enforcement action, collect the past due amounts, and pay them over to Alden. See Alden, 119 S. Ct. at 2268. While the Court argued that this, together with the prospective injunction, will be adequate to secure the effective enforcement of federal law and implied that the failure of the United States to itself assert Alden's claim suggests its relative unimportance, the Court seems profoundly misguided here: For it is at once a protection of liberty, an integral part of the broader jurisprudence of Article III jurisdiction, and a feature of effective enforcement of laws designed to protect specific beneficiaries for those beneficiaries themselves - the actually injured individual parties - to be able to bring an action.
49. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 162-63 (1803) (asserting that the protection of "vested legal rights" is in its nature judicial).
50. There can be no doubt that the Court had an "open" choice. Indeed, the Court devotes a lengthy section of its opinion to explaining why, despite cases like Hilton v. South Carolina Public Railways Commission, 502 U.S. 197, 204-05 (1991) (holding that the state could be sued on a federal Jones Act claim in state court even though the suit was barred in federal court by the 1th Amendment), and Nevada v. Hall, 440 U.S. 410, 418-21 (1979) (rejecting the state's claim of immunity from suit in a sister state court because the 11th Amendment does not apply other than in federal court) the question of state sovereign immunity to federal claims in state court was still undecided. See Alden, 119 S. Ct. 2257-60 (concluding, after distinguishing these and other cases, that Congress's authority under Article I to abrogate state immunity from suit in its own court is "a question of first impression").
51. It may be that this rule-of-law objection merges with the objection from justice. Immunity rules are more generally in some tension with "rule of law" ideas as applied to claims against governments and government officers, and I do not argue against all immunity doctrines. But I note this objection separately, for it is worth remembering the costs of immunity doctrines, as well as their justifications.
52. 330 U.S. 386 (1947).
53. Id. at 394.
54. See infra notes 160, 162 (quoting at length from the government's brief in Alden and from the Court's response to that argument). Under Maine's minimum wage law, however, public employees were not entitled to increased pay for overtime (which was the subject of the federal FLSA claim). Maine argued that it was its ban on overtime pay that was most analogous to the federal claim and that, since the state courts did not hear state overtime claims against the state, its courts did not discriminate in refusing to hear the federal overtime claim. See Brief for Respondents at 8, Alden (No. 98-436).
55. Alden, 119 S. Ct. at 2268; see also infra text accompanying notes 160-61.
56. See Jackson, supra note 1.
57. See Alden, 119 S. Ct. at 2264.
58. See id. at 2255-60, 2266 ("We are aware of no constitutional precept that would admit of a congressional power to require state courts to entertain federal suits which are not within the judicial power of the United States . . . ."). Note too that Seminole Tribe and the 11th Amendment are the first authorities cited in the Court's reasoning in Alden. See 119 S. Ct. at 2246-47.
59. See Jackson, supra note 1.
60. See Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 274 (1997) (Kennedy, J., joined by Rehnquist, C.J.).
61. The Court's fundamental argument - that sovereign immunity was an important constitutional principle, implicit in the original Constitution, and reflected (but not created) by the 11th Amendment - is inconsistent with older cases predating Hans v. Louisiana, 134 U.S. 1 (1890). For 19th century cases reflecting the assumption that federal courts could exercise jurisdiction over actions by diverse citizens against states until ratification of the 11th Amendment, see United States v. Louisiana, 123 U.S. 32, 35 (1887) (describing Article III's listings of heads of jurisdiction as "modified by the Eleventh Amendment"), New Hampshire v. Lousiana, 108 U.S. 76, 91 (1883) (holding that one state could not sue another on behalf of its citizens and reasoning that "[u]nder the Constitution, as it was originally construed, a citizen of one State could sue another State in the courts of the United States for himself," that there was thus "no necessity for power in his State to sue in his behalf," and that it was not "the intention of the framers of the Constitution to allow both remedies in such a case;" "the giving of the direct remedy to the citizen himself was equivalent to taking away any indirect remedy he might otherwise have claimed, through the intervention of his State, upon any principle of the law of nations. It follows that when the amendment took away the special remedy there was no other left"), Briscoe v. Bank of Kentucky, 36 U.S. (11 Pet.) 257, 285 (1837) (argument of counsel) (assuming that at the founding states could be sued by diverse citizens but not their own), id. at 327-28 (Thompson, J., concurring) (making same assumption), and Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 139 (1810) (Marshall, C.J.) (alluding to a difference between the Constitution as passed and after the 11th Amendment was ratified). See also Hans, 134 U.S. at 21 (1890) (Harlan, J., concurring) (disagreeing with the Court's implications that Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), had been incorrectly decided). On the Court's reasoning in Seminole Tribe, these older cases would be better evidence of correct readings of the Constitution than Hans. See Seminole Tribe, 517 U.S. at 69 (suggesting that Hans's analysis of the original understandings of the Constitution was superior to that of Justice Souter's dissent because the Hans Court was closer in time to original events).
62. But see, e.g., Jonathan R. Macey, The Internal and External Costs and Benefits of Stare Decisis, 65 CHI.-KENT L. REV. 93, 111 (1989) (suggesting that stare decisis "permits judges to free-ride" on earlier efforts by other judges and thus "avoid the extremely difficult task of constructing" law). In contrast to those who criticize stare decisis as encouraging a kind of judicial mindlessness, I see it instead as a doctrine that reinforces what I would call procedures for accountability in judicial decisionmaking.
63. For critical commentary on Seminole Tribe, see Vicki C. Jackson, Seminole Tribe, the Eleventh Amendment and the Potential Evisceration of Ex parte Young, 72 N.Y.U. L. REV. 495 (1997), Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, and Henry Paul Monaghan, Comment: The Sovereign Immunity "Exception," 110 HARV. L. REV. 102, 121, 133 (1996) (suggesting that the Court "rejected clear constitutional text in preference to unarticulated and debatable historical explanations because of the power of symbolism, thus perpetuating a questionable doctrine"). For critique from a separation of powers point of view, see Laura S. Fitzgerald, Beyond Marbury: Jurisdictional Self-Dealing in Seminole Tribe, 52 VAND. L. REV. 407 (1999). Not all scholarship has been so disapproving. See, e.g., David P. Currie, Ex parte Young after Seminole Tribe, 72 N.Y.U. L. REV. 547 (1997); Richard H. Seamon, The Sovereign Immunity of States in Their Own Courts, 37 BRANDEIS L.J. 319 (1998); John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311 (1997). Fortunately, Seminole Tribe has not deterred legal scholars from pursuing deeper historical understandings of the 11th Amendment. See James E. Pfander, History and State Suability: An "Explanatory" Account of the Eleventh Amendment, 83 CORNELL L. REV. 1269 (1998).
64. For critical commentary on Seminole Tribe, see Vicki C. Jackson, Seminole Tribe, the Eleventh Amendment and the Potential Evisceration of Ex parte Young, 72 N.Y.U. L. REV. 495 (1997), Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, and Henry Paul Monaghan, Comment: The Sovereign Immunity "Exception," 110 HARV. L. REV. 102, 121, 133 (1996) (suggesting that the Court "rejected clear constitutional text in preference to unarticulated and debatable historical explanations because of the power of symbolism, thus perpetuating a questionable doctrine"). For critique from a separation of powers point of view, see Laura S. Fitzgerald, Beyond Marbury: Jurisdictional Self-Dealing in Seminole Tribe, 52 VAND. L. REV. 407 (1999). Not all scholarship has been so disapproving. See, e.g., David P. Currie, Ex parte Young after Seminole Tribe, 72 N.Y.U. L. REV. 547 (1997); Richard H. Seamon, The Sovereign Immunity of States in Their Own Courts, 37 BRANDEIS L.J. 319 (1998); John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311 (1997). Fortunately, Seminole Tribe has not deterred legal scholars from pursuing deeper historical understandings of the 11th Amendment. See James E. Pfander, History and State Suability: An "Explanatory" Account of the Eleventh Amendment, 83 CORNELL L. REV. 1269 (1998).
65. For critical commentary on Seminole Tribe, see Vicki C. Jackson, Seminole Tribe, the Eleventh Amendment and the Potential Evisceration of Ex parte Young, 72 N.Y.U. L. REV. 495 (1997), Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, and Henry Paul Monaghan, Comment: The Sovereign Immunity "Exception," 110 HARV. L. REV. 102, 121, 133 (1996) (suggesting that the Court "rejected clear constitutional text in preference to unarticulated and debatable historical explanations because of the power of symbolism, thus perpetuating a questionable doctrine"). For critique from a separation of powers point of view, see Laura S. Fitzgerald, Beyond Marbury: Jurisdictional Self-Dealing in Seminole Tribe, 52 VAND. L. REV. 407 (1999). Not all scholarship has been so disapproving. See, e.g., David P. Currie, Ex parte Young after Seminole Tribe, 72 N.Y.U. L. REV. 547 (1997); Richard H. Seamon, The Sovereign Immunity of States in Their Own Courts, 37 BRANDEIS L.J. 319 (1998); John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311 (1997). Fortunately, Seminole Tribe has not deterred legal scholars from pursuing deeper historical understandings of the 11th Amendment. See James E. Pfander, History and State Suability: An "Explanatory" Account of the Eleventh Amendment, 83 CORNELL L. REV. 1269 (1998).
66. For critical commentary on Seminole Tribe, see Vicki C. Jackson, Seminole Tribe, the Eleventh Amendment and the Potential Evisceration of Ex parte Young, 72 N.Y.U. L. REV. 495 (1997), Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, and Henry Paul Monaghan, Comment: The Sovereign Immunity "Exception," 110 HARV. L. REV. 102, 121, 133 (1996) (suggesting that the Court "rejected clear constitutional text in preference to unarticulated and debatable historical explanations because of the power of symbolism, thus perpetuating a questionable doctrine"). For critique from a separation of powers point of view, see Laura S. Fitzgerald, Beyond Marbury: Jurisdictional Self-Dealing in Seminole Tribe, 52 VAND. L. REV. 407 (1999). Not all scholarship has been so disapproving. See, e.g., David P. Currie, Ex parte Young after Seminole Tribe, 72 N.Y.U. L. REV. 547 (1997); Richard H. Seamon, The Sovereign Immunity of States in Their Own Courts, 37 BRANDEIS L.J. 319 (1998); John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311 (1997). Fortunately, Seminole Tribe has not deterred legal scholars from pursuing deeper historical understandings of the 11th Amendment. See James E. Pfander, History and State Suability: An "Explanatory" Account of the Eleventh Amendment, 83 CORNELL L. REV. 1269 (1998).
67. For critical commentary on Seminole Tribe, see Vicki C. Jackson, Seminole Tribe, the Eleventh Amendment and the Potential Evisceration of Ex parte Young, 72 N.Y.U. L. REV. 495 (1997), Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, and Henry Paul Monaghan, Comment: The Sovereign Immunity "Exception," 110 HARV. L. REV. 102, 121, 133 (1996) (suggesting that the Court "rejected clear constitutional text in preference to unarticulated and debatable historical explanations because of the power of symbolism, thus perpetuating a questionable doctrine"). For critique from a separation of powers point of view, see Laura S. Fitzgerald, Beyond Marbury: Jurisdictional Self-Dealing in Seminole Tribe, 52 VAND. L. REV. 407 (1999). Not all scholarship has been so disapproving. See, e.g., David P. Currie, Ex parte Young after Seminole Tribe, 72 N.Y.U. L. REV. 547 (1997); Richard H. Seamon, The Sovereign Immunity of States in Their Own Courts, 37 BRANDEIS L.J. 319 (1998); John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311 (1997). Fortunately, Seminole Tribe has not deterred legal scholars from pursuing deeper historical understandings of the 11th Amendment. See James E. Pfander, History and State Suability: An "Explanatory" Account of the Eleventh Amendment, 83 CORNELL L. REV. 1269 (1998).
68. For critical commentary on Seminole Tribe, see Vicki C. Jackson, Seminole Tribe, the Eleventh Amendment and the Potential Evisceration of Ex parte Young, 72 N.Y.U. L. REV. 495 (1997), Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, and Henry Paul Monaghan, Comment: The Sovereign Immunity "Exception," 110 HARV. L. REV. 102, 121, 133 (1996) (suggesting that the Court "rejected clear constitutional text in preference to unarticulated and debatable historical explanations because of the power of symbolism, thus perpetuating a questionable doctrine"). For critique from a separation of powers point of view, see Laura S. Fitzgerald, Beyond Marbury: Jurisdictional Self-Dealing in Seminole Tribe, 52 VAND. L. REV. 407 (1999). Not all scholarship has been so disapproving. See, e.g., David P. Currie, Ex parte Young after Seminole Tribe, 72 N.Y.U. L. REV. 547 (1997); Richard H. Seamon, The Sovereign Immunity of States in Their Own Courts, 37 BRANDEIS L.J. 319 (1998); John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311 (1997). Fortunately, Seminole Tribe has not deterred legal scholars from pursuing deeper historical understandings of the 11th Amendment. See James E. Pfander, History and State Suability: An "Explanatory" Account of the Eleventh Amendment, 83 CORNELL L. REV. 1269 (1998).
69. For critical commentary on Seminole Tribe, see Vicki C. Jackson, Seminole Tribe, the Eleventh Amendment and the Potential Evisceration of Ex parte Young, 72 N.Y.U. L. REV. 495 (1997), Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, and Henry Paul Monaghan, Comment: The Sovereign Immunity "Exception," 110 HARV. L. REV. 102, 121, 133 (1996) (suggesting that the Court "rejected clear constitutional text in preference to unarticulated and debatable historical explanations because of the power of symbolism, thus perpetuating a questionable doctrine"). For critique from a separation of powers point of view, see Laura S. Fitzgerald, Beyond Marbury: Jurisdictional Self-Dealing in Seminole Tribe, 52 VAND. L. REV. 407 (1999). Not all scholarship has been so disapproving. See, e.g., David P. Currie, Ex parte Young after Seminole Tribe, 72 N.Y.U. L. REV. 547 (1997); Richard H. Seamon, The Sovereign Immunity of States in Their Own Courts, 37 BRANDEIS L.J. 319 (1998); John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311 (1997). Fortunately, Seminole Tribe has not deterred legal scholars from pursuing deeper historical understandings of the 11th Amendment. See James E. Pfander, History and State Suability: An "Explanatory" Account of the Eleventh Amendment, 83 CORNELL L. REV. 1269 (1998).
70. For critical commentary on Seminole Tribe, see Vicki C. Jackson, Seminole Tribe, the Eleventh Amendment and the Potential Evisceration of Ex parte Young, 72 N.Y.U. L. REV. 495 (1997), Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, and Henry Paul Monaghan, Comment: The Sovereign Immunity "Exception," 110 HARV. L. REV. 102, 121, 133 (1996) (suggesting that the Court "rejected clear constitutional text in preference to unarticulated and debatable historical explanations because of the power of symbolism, thus perpetuating a questionable doctrine"). For critique from a separation of powers point of view, see Laura S. Fitzgerald, Beyond Marbury: Jurisdictional Self-Dealing in Seminole Tribe, 52 VAND. L. REV. 407 (1999). Not all scholarship has been so disapproving. See, e.g., David P. Currie, Ex parte Young after Seminole Tribe, 72 N.Y.U. L. REV. 547 (1997); Richard H. Seamon, The Sovereign Immunity of States in Their Own Courts, 37 BRANDEIS L.J. 319 (1998); John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311 (1997). Fortunately, Seminole Tribe has not deterred legal scholars from pursuing deeper historical understandings of the 11th Amendment. See James E. Pfander, History and State Suability: An "Explanatory" Account of the Eleventh Amendment, 83 CORNELL L. REV. 1269 (1998).
71. Query: If Seminole Tribe had been correctly decided (to uphold federal jurisdiction over federal statutory claims against states where Congress speaks clearly and has substantive legislative power), would state courts have to hear federal claims whose state law analogues are barred by state sovereign immunity? Absent discriminatory applications of state sovereign immunity law, must a state court entertain a federal cause of action against a state when the federal courts are open to it? One could read the Supremacy Clause to require this result, especially in light of the Madisonian Compromise which, as conventionally understood, does not require creation of inferior federal courts. But one might also reason that, so long as the availability of a federal forum permits holding governments accountable to law and vindicating the supremacy of federal law, the interests of states in controlling the jurisdiction of their own judiciaries would be stronger than any need to require a state court without jurisdiction over analogous state law claims to hear federal claims against the state. Cf. Martinez v. California, 444 U.S. 277, 282 (1980) (balancing the "[s]tate's interest in fashioning its own rules of tort law" against the "discernible federal interest" in due process to uphold the constitutionality of state sovereign immunity bar to state wrongful death claim). Under those hypothetical circumstances, the federal system might be adequately protected through the discrimination prong of Testa v. Katt, 330 U.S. 386 (1947). In light of Seminole Tribe, however (and in light of Maine's waiver of immunity to state minimum wage claims), I believe that the decision in Alden is unsupportable. As a matter of the policies of judicial federalism, much can be said in favor of any of three regimes: (1) a regime that permits federal courts, but does not require state courts, to hear claims against their states; (2) a regime that forbids federal courts, but requires state courts, to hear such claims; and (3) a regime that both permits federal courts and requires state courts to hear such claims. For a brief discussion, see Vicki C. Jackson, The Supreme Court, the Eleventh Amendment and State Sovereign Immunity, 98 YALE L.J. 1, 73-74, 86-88 & nn.347, 349 (1988) (discussing the idea of complementarity of jurisdiction). What is insupportable, however, is the regime we presently have, in which federal courts are prohibited to hear such claims and state courts are free to deny jurisdiction as well. For a related discussion, see Meltzer, supra note 12, at 1035-37.
72. 481 U.S. 1 (1989).
73. 377 U.S. 184 (1964).
74. Alden, 119 S. Ct. at 2266; see also Florida Prepaid, 119 S. Ct. at 2209 n.9 (implying that the possibility of a private bill from the legislature was relevant to the due process analysis).
75. See Alden, 119 S. Ct. at 2266-68.
76. Cf. Meltzer, supra note 12, at 1023 (noting tension between the Court's arguments that federal enforcement will not suffer and that private suits are particularly intrusive).
77. Cf. Payne v. Tennessee, 501 U.S. 808, 828-30 (1991) (arguing that stare decisis should play a smaller role where issues are ones of procedure).
78. I advanced this argument in 1997, see Jackson, supra note 53, at 544-45 & n.177, and again on January 8, 2000, at the AALS Federal Courts panel. Three days later the Court issued its decision in Kimel v. Florida Board of Regents, 120 S. Ct. 631 (2000). Justice Stevens, writing for four dissenters, asserted that it would be wrong to accord stare decisis effect to Seminole Tribe and its progeny. See id. at 653. I agree with the dissenters.
79. See, e.g., Seminole Tribe, 517 U.S. at 68 (noting that Justice Souter's dissent was "cobbled together" from nothing more than law journal articles).
80. See Ruth Bader Ginsburg, Informing the Public About the U.S. Supreme Court's Work, 29 LOY. U. CHI. L.J. 275, 283 (1998) (asserting that most judges read "legal commentaries and law reviews" for "enlightenment on decisions, past, present and future"); see also Learned Hand, Have the Bench and Bar Anything to Contribute to the Teaching of Law?, 24 MICH. L. REV. 466, 480 (1926) (arguing that law teacher and judge are "necessary to the other [and that] each must understand, respect and regard the other, or both will fail"); cf. MARY ANN GLENDON ET AL., COMPARATIVE LEGAL TRADITIONS: TEXT, MATERIALS AND CASES 209 (2d ed. 1994) (describing the role of legal scholarship as a form of doctrinal authority in civil law systems and noting that "learned writing" exerts most influence where the law is unsettled and where learned writing is in consensus, sometimes even prompting abandonment of prior decisions).
81. See Ruth Bader Ginsburg, Informing the Public About the U.S. Supreme Court's Work, 29 LOY. U. CHI. L.J. 275, 283 (1998) (asserting that most judges read "legal commentaries and law reviews" for "enlightenment on decisions, past, present and future"); see also Learned Hand, Have the Bench and Bar Anything to Contribute to the Teaching of Law?, 24 MICH. L. REV. 466, 480 (1926) (arguing that law teacher and judge are "necessary to the other [and that] each must understand, respect and regard the other, or both will fail"); cf. MARY ANN GLENDON ET AL., COMPARATIVE LEGAL TRADITIONS: TEXT, MATERIALS AND CASES 209 (2d ed. 1994) (describing the role of legal scholarship as a form of doctrinal authority in civil law systems and noting that "learned writing" exerts most influence where the law is unsettled and where learned writing is in consensus, sometimes even prompting abandonment of prior decisions).
82. See Ruth Bader Ginsburg, Informing the Public About the U.S. Supreme Court's Work, 29 LOY. U. CHI. L.J. 275, 283 (1998) (asserting that most judges read "legal commentaries and law reviews" for "enlightenment on decisions, past, present and future"); see also Learned Hand, Have the Bench and Bar Anything to Contribute to the Teaching of Law?, 24 MICH. L. REV. 466, 480 (1926) (arguing that law teacher and judge are "necessary to the other [and that] each must understand, respect and regard the other, or both will fail"); cf. MARY ANN GLENDON ET AL., COMPARATIVE LEGAL TRADITIONS: TEXT, MATERIALS AND CASES 209 (2d ed. 1994) (describing the role of legal scholarship as a form of doctrinal authority in civil law systems and noting that "learned writing" exerts most influence where the law is unsettled and where learned writing is in consensus, sometimes even prompting abandonment of prior decisions).
83. Professor Vázquez's work can be seen to raise a tension between coherence and justice as constitutional aspirations. See Vázquez, supra note 22, at 1692, 1777-90 (arguing that jurisprudence on due process, sovereign immunity, and the 11th Amendment can be rendered coherent by understanding that constitutionally required remedies are against individuals, be those Ex parte Young actions or damages actions, and that states have choices whether to indemnify or substitute themselves as parties for the officers). In that piece, he advances interpretations of the Court's decisions to make more "coherent" the Seminole Tribe and McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18 (1990), decisions, one being that states possess a constitutional immunity from suit but that the Constitution requires that remedies be available against state officers, possibly without regard to official immunities. See Vázquez, supra note 22, at 1805. I would agree that if individual liability of state officials were expanded and the protections of the "clearly established" law rule loosened, rule of law concerns raised by expansions of immunity would be mitigated, and greater coherence in formal doctrine might be obtainable. But the likelihood of Congress, or the Court, insisting on such strict personal liability seems remote; and adoption of the immunity justifying theory may simply result in an overall contraction of the availability of individual redress to victims of government wrongdoing. For further discussion, see infra text accompanying notes 115-23.
84. See Woolhandler, supra note 8, at 920 (noting that the "Court has stuck close to an individual liability model even when it has permitted abrogation of state immunity").
85. See Carlos Manuel Vázquez, Sovereign Immunity, Due Process, and the Alden Trilogy, 109 YALE L.J (forthcoming June 2000); see also Vázquez, supra note 7 at 860-61.
86. See Woolhandler, supra note 8, at 932-51.
87. See Vázquez, supra note 66.
88. See Vázquez, supra note 7, at 893-900.
89. Professor Woolhandler's analysis does not explicitly distinguish between cases decided before and after the ratification of the 14th Amendment; yet one might think that if the courts were faithfully interpreting that Amendment, one would see some difference in the pre and post-ratification cases that would be relevant.
90. Both Vázquez and Woolhandler downplay the importance of "good faith" or qualified immunity defenses in their modern form in evaluating the role of history. In its modern form the "qualified immunity" defense allows bad faith behavior to be immunized that, under older formulations apparently would not have been. Compare Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804) (holding that a ship captain was liable for damages in carrying out a presidential order that exceeded statutory authorization even though the ship captain acted in good faith), with Mitchell v. Forsyth, 472 U.S. 511 (1985) (ruling that although an Attorney General did not have authority to authorize the conduct of warrantless search, he was immune from damages because his lack of authority was not "clearly established"), and Anderson v. Creighton, 483 U.S. 635 (1987) (holding that although the right to be free from warrantless searches absent exigent circumstances and probable cause was clearly established, the relevant question for immunity of police officer sued for warrantless search was whether in light of particular facts a reasonable officer could have believed the search to be constitutional) (citing Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)). And while the Court's modern reformulation of the doctrine of official immunities might be understood to be aimed at maximizing appropriate levels of deterrence, see Vázquez, supra note 7, at 877-79, neither Vázquez nor Woolhandler considers whether the doctrine is so inadequate in providing compensation or vindication of plaintiffs' interests that it fails to fulfill the goals of a remedial system (with consequent adverse effects on citizens' trust of their government).
91. Compare City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (holding that a person who had been subject to a choke hold lacked standing to seek an injunction against future use of choke holds by the police), with Allee v. Medrano, 416 U.S. 802 (1974) (affirming the grant of an injunction against certain abusive police practices).
92. See Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 HARV. L. REV. 1 (1963).
93. See, e.g., Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 68 n.20 (1982) (plurality) (Brennan, J.) (stating that the rationale for public rights cases lies "not in political theory, but rather in Congress's and the Court's understanding of what power was reserved to the Judiciary by the Constitution as a matter of historical fact").
94. See Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189 (1987); David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996); Woolhandler, supra note 8, at 919.
95. See Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189 (1987); David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996); Woolhandler, supra note 8, at 919.
96. 258 U.S. 34 (1922). Burrill is discussed in Ann Woolhandler, The Common Law Origins of Constitutionally Compelled Remedies, 107 YALE L.J. 77, 138-44 (1997).
97. Burrill, 258 U.S. at 38.
98. See Woolhandler, supra note 8, at 921-24; see also Woolhandler, supra note 76, at 148-62.
99. 19 U.S. (6 Wheat.) 264 (1821). For a detailed discussion, see Jackson, supra note 54, at 13-25.
100. That sovereign immunity issues were treated similarly by the Court in both state and federal court cases involving federal claims, as Woolhandler suggests, would not be inconsistent with the "diversity repeal" view of the 11th Amendment that I and others have argued for. If sovereign immunity is recognized as a common law doctrine, it would not be surprising at all that federal and state courts in the 19th century would come to similar conclusions. And if the 11th Amendment were understood to repeal heads of jurisdiction based on party status, it would be irrelevant to Congress's powers to abrogate common law immunities to vindicate federal law in federal question cases. See Jackson, supra note 53, at 39-104; see also Seminole Tribe, 517 U.S. at 130-59 (Souter, J., dissenting); id. at 82-95 (Stevens, J., dissenting).
101. See Hilton v. South Carolina Pub. Ry. Comm'n, 502 U.S. 197 (1991); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238-39 n.2 (1985); see also Nevada v. Hall, 440 U.S. 410 (1979).
102. See Smith v. Reeves, 178 U.S. 436 (1900).
103. See id. at 445.
104. See Woolhandler, supra note 8, at 924.
105. See, e.g., Michigan v. Long, 463 U.S. 1032, 1041 (1983); Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935).
106. See Jackson, supra note 54, at 36-37.
107. See generally RICHARD H. FALLON, JR. ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1216-22, 1230-1308 (4th ed. 1996) (describing, e.g., "Younger" abstention, Pullman abstention, Burford abstention, and the case law relating to Tax Injunction Act).
108. 521 U.S. 261, 271-74 (1997) (Kennedy, J., joined by Rehnquist, C.J.). See generally supra text accompanying notes 48-51.
109. See Vazquez, supra note 66.
110. 330 U.S. 386 (1947).
111. See Woolhandler, supra note 8, at 921-29; Woolhandler, supra note 76, at 99-110, 135-37; see also Vázquez, supra note 22, at 1774-76 (emphasizing remedial trends based on relief against state officers, though minimizing purported distinction between contract and tort). I am not yet persuaded by the argument that the Due Process Clause of the 14th Amendment could always be satisfied with relief against officers. The 14th Amendment is, after all, addressed to the state itself; and the Due Process Clause itself might well impose limits on the degree to which state law could assign to its officers the financial responsibility of providing redress for harms caused by a policy insisted on by the state itself.
112. Woolhandler appears to frame her discussion as follows: Given the Court's ruling in Seminole Tribe, it is sensible for the Court to interpret the 14th Amendment in a way that does not permit Congress simply to exercise the power to enforce the Due Process Clause as a basis for enforcing Article I rights against the states; to do otherwise would be to allow circumvention of the rule of Seminole Tribe. Professor Woolhandler's argument, which others make as well, makes assumptions about the limited breadth of the 14th Amendment that I believe should not pass unnoticed or unchallenged - history may teach that the 14th Amendment, and especially the Privileges and Immunities Clause, was indeed intended to have a substantial nationalizing effect.
113. As Woolhandler herself recognizes, the boundaries between state and federal law were far less clearly articulated in older cases than today. See Woolhandler, supra note 76, at 108-11.
114. See, e.g., Beers v. Arkansas, 61 U.S. (20 How.) 527 (1857). The Court there said, It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals, or by another State. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it. Id. at 529. Note that Beers's description of sovereign immunity departs substantially from what the modern Court has said about the sovereign immunity of the states: First, states do not possess sovereign immunity with respect to claims by other states or by the United States. Second, they may not prescribe the terms and conditions entirely, since they cannot preclude Supreme Court review of cases heard in the state courts. For Woolhandler's treatment of Beers, see Woolhandler, supra note 8, at 925 n.35, and Woolhandler, supra note 76, at 114 n.185.
115. See Fong Yue Ting v. United States, 149 U.S. 698, 700 n.1 (1893) (upholding a statute requiring the exclusion of persons of Chinese descent and requiring testimony of "at least one credible white witness" to establish proof of entitlement of Chinese laborers to remain in the country). The majority of the Court asserted the "inherent and inalienable right of every sovereign and independent nation" in support of its conclusion. Id. at 711. Justices Brewer and Field argued in vigorous dissents that the practice of other nations or claims about inherent rights of sovereignty were irrelevant to the powers of this government under the Constitution. See id. at 737 (Brewer, J., dissenting); id. at 757 (Field, J., dissenting). Whatever power the federal government today would or would not have to discriminate based on race in immigration and naturalization policy, it surely would lack power to discriminate based on race among those whose testimony could be heard on disputed questions of fact. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (holding that any use of race must meet compelling interest standard).
116. See, e.g., Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738 (1824); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821).
117. 106 U.S. 196, 204-08 (1882) (noting that "the principle [of sovereign immunity] has never been discussed or the reasons for it given, but it has always been treated as an established doctrine").
118. On the Court's willingness to sustain sovereign immunity defenses on contracts claims, see for example, Hans v. Louisiana, 134 U.S. 1 (1890) (holding suit against state to recover amounts due on bonds barred by the 11th Amendment), In re Ayers, 123 U.S. 443 (1887) (holding suit against a state Attorney General to "compel the specific performance" of bond contracts barred by 11th Amendment). For contrasting approaches to other kinds of claims against sovereign government officers, compare Atchison Topeka & Santa Fe Railway v. O'Connor, 223 U.S. 280 (1912) (permitting suit against a state tax collector to recover taxes claimed to violate the Commerce Clause which, according to state law, would be paid through a state auditor's "warrant for refunding of the tax"), Poindexter v. Greenhow, 114 U.S. 270 (1885) (permitting suit against a state officer to recover property seized for failure to pay taxes when the state's insistence on payment of taxes in a particular way itself violated the Contracts Clause), and United States v. Lee, 106 U.S. 196 (1882) (rejecting sovereign immunity defense in suit against federal army officers to eject them from land purportedly owned by the plaintiff), with Breard v. Greene, 523 U.S. 371 (1998) (relying on the 11th Amendment as an additional bar to federal jurisdiction over suit against a state officer to restrain execution of foreign national following arrest in violation of Treaty and subsequent conviction and death sentence), Idaho v. Coeur d'Alene Tribe, 521 U.S. 261 (1997) (holding that the 11th Amendment barred suit against state officers to prohibit their use of submerged river beds in violation of tribe's claimed federal right of ownership), and Edelman v. Jordan, 415 U.S. 651 (1974) (holding that the 11th Amendment barred suit against a state officer to recover past due welfare benefits under federal spending program).
119. See Woolhandler, supra note 8, at 921, 932-33, 940-42 (treating the Court as distinguishing statutory from constitutional violations and as providing damages remedies for old but not new property). As Professor Vázquez argues, the Court did not purport to be distinguishing between new and old property. In College Savings Bank it said that the interests protected by the Lanham Act were not property at all. See Vázquez, supra note 66. It is unclear whether Professor Woolhandler's position is that this holding was correct, and accordingly due process requires no remedy at all to protect those interests, or whether her position is that what the Court should have said is that the Lanham Act interests are a form of "new property" with respect to which the Due Process Clauses should be understood to require fewer remedies (e.g., only prospective relief). (Note too, that even for old property, Professor Woolhandler's reading is that the Constitution does not really require remedies against the state but is satisfied with remedies against officers. See Woolhandler, supra note 8, at 929-32; see also Woolhander, supra note 76, at 125 & n.244.) The Court has indicated that prospective injunctive relief against state officers to enforce federal law is generally still available. See, e.g., Seminole Tribe, 517 U.S. at 71 n.14. I am unsure whether Professor Woolhandler would see this as resulting from the Supremacy Clause or the Due Process Clause.
120. See generally Vázquez, supra note 22, at 1748 n.289 (arguing that efforts to distinguish Lanham Act claims from interests recognized as "property" is unpersuasive); Vázquez, supra note 66 (elaborating on this argument). For Professor Woolhandler's argument, see supra note 8, at 940-42.
121. See 35 U.S.C. §§ 101-03 (1994). See generally ERNEST BAINBRIDGE LIPSCOMB III, LIPSCOMB'S WALKER ON PATENTS (3d ed. 1991).
122. See id. at 35.
123. 223 U.S. 280 (1912).
124. See Woolhandler, supra note 76, at 136-37 & n.300; Woolhandler, supra note 8, at 925-26.
125. O'Connor, 223 U.S. at 287.
126. Great N. Life Ins. Co. v. Read, 322 U.S. 47, 50 (1944) (distinguishing Smith v. Reeves, 178 U.S. 436, from O'Connor on grounds that Smith was instituted "against the defendant 'as Treasurer of the State of California' to recover taxes assessed against and paid," pursuant to a state statute that authorized "suit against the State Treasurer for the recovery of taxes which were illegally exacted," while O'Connor was a suit "to recover personally from a tax collector money wrongfully exacted by him under color of state law"). But like the state statute described in O'Connor, the California law, described in Smith, provided that "[i]f the final judgment was against the Treasurer, the Comptroller of the state was directed to draw his warrant on state funds for its satisfaction." Id. at 50. What was different, apparently, was the caption - whether the defendant was sued "as Treasurer." Cf. Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738 (1824) (party of record rule). But cf. David P. Currie, Sovereign Immunity and Suits Against Government Officers, 1984 SUP. CT. REV. 149, 167 (noting that the Constitution is not amended to change captions on complaints).
127. While Woolhandler's descriptions of cases are meticulously careful, it is her effort to cast the more recent cases as resting on remedial assumptions similar to those of the 19th Century cases that I find unpersuasive.
128. 415 U.S. 651 (1974).
129. See Jackson, supra note 54, at 69 n.284. My point here is that the distinction between states being able to keep (or expend for other purposes) money that is in some sense not theirs and pure "expectations" based claims does not explain the distinctions in those forms of relief against officers that will and will not be treated as claims against the state under the Court's current approach. Edelman involved a federally funded "entitlement" program; each individual's claim for past due payments is for discrete, limited, and easy to ascertain amounts, and as the lower court found, could readily have been understood as a claim for "restitution" of benefits. See Weaver v. Jordan, 472 F.2d 985, 993 (7th Cir. 1973), rev'd, 415 U.S. 651, 665-66 (1974).
130. Woolhandler, supra note 8, at 928 n.52.
131. See Richard Briffault, "What About the 'Ism'"? Normative and Formal Concerns in Contemporary Federalism, 47 VAND. L. REV. 1303, 1336 (1994).
132. See Alden, 119 S. Ct. at 2247 (noting "textual provisions of the Constitution [that] assume the States' continued existence and active participation in the fundamental processes of governance"); Texas v. White, 74 U.S. (7 Wall.) 700, 725-26 (1868) (noting the role of states in the "perpetual union"); see also Printz v. United States, 521 U.S. 898, 919 (1997); Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). See generally Jackson, supra note 35, at 2264-47. The first Constitution of the United States was denoted "Articles of Confederation and Perpetual Union," and reference to the "perpetual union" was common in the 19th century. See, e.g., The Civil Rights Cases, 109 U.S. 3, 50-51 (1883) (Harlan, J., dissenting).
133. See Vázquez, supra note 7, at 863-88. Note that even on Vázquez's view of this "supremacy" strain, the current state of affairs imposes some "real" costs in terms of actual gaps in remedies, see id. at 880, that would require multifold changes in doctrine to fix. Although Professor Vázquez has been critical of the distinction between contract and tort claims in this area, his emphasis on the remedy of suits against state officers might not - absent change in substantive doctrine - permit recovery against state officers on pure contract claims against a state (unless the contract were specifically to make an officer a guarantor or otherwise co-liable on the state's contracts), given what I understand is an accepted rule that a disclosed agent is not ordinarily liable for performing the principal's contract. See RESTATEMENT (SECOND) OF AGENCY §§ 320, 328 (1957).
134. See Vázquez, supra note 7, at 888-93. For my further discussion of the "principle" of immunity, see infra Part III.
135. See Vázquez, supra note 7, at 902.
136. See id. at 903; see also John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47 (1998).
137. See Woolhandler, supra note 8, at 921; see also Jeffries, supra note 116, at 53-54 ("[C]onstitutional tort regime based on fault is wise policy" and "[t]o that extent, . . . the law of the Eleventh Amendment and Section 1983 [is] fundamentally sound, despite rococo doctrine and occasional nuttiness. . . . [V]iewing the Eleventh Amendment and Section 1983 as an integrated liability regime . . . show[s] the hidden sense in current law."); Jeffries, supra note 5, at 99-100 (asserting that the qualified immunity concept protecting officers from personal liability without fault has the advantage of allowing the development of new law).
138. See Cornelia T.L. Pillard, Taking Fiction Seriously: The Strange Results of Public Officials' Individual Liability Under Bivens, 88 GEO. L.J. 65, 78, 96-97 (1999) (arguing principally that Bivens suits underdeter and underremediate but noting that "residual uncertainty" about indemnification and uncertainty about the scope of immunity may cause concern for individual officers). One wonders, for example, whether, if the remedial system for public officer wrongdoing were well-calibrated, one would see the number of well-publicized episodes of alleged police brutality against minority group members in custody that we have in recent years.
139. See Vázquez, supra note 7, at 904.
140. See PETER SCHUCK, SUING GOVERNMENT: CITIZEN REMEDIES FOR OFFICIAL WRONGS 98 (1984) ("[M]uch wrongdoing is rooted in organizational conditions and can only be organizationally deterred."); see also id. at 5-12 (describing conditions pertaining to law compliance and the need for the government entity to identify, and communicate, legal norms, and change practices to minimize violations of law); Meltzer, supra note 12, at 1020-23. There is law and economics literature arguing that under some conditions regimes allocating liability to individual employees produce identical results to regimes of entity liability. See, e.g., Reinier H. Kraakman, Corporate Liability Strategies and the Costs of Legal Controls, 93 YALE L.J. 857 (1984); Larry Kramer & Alan O. Sykes, Municipal Liability Under § 1983: A Legal and Economic Analysis, 1987 SUP. CT. REV. 249; Christopher D. Stone, The Place of Enterprise Liability in the Control of Corporate Conduct, 90 YALE L.J. 1 (1980). But these conditions are typically not met in public employment settings, where, for example, the sued employee's assets are likely to be small relative to the injuries complained of (and the assets of the entity). See, e.g., Kramer & Sykes, supra, at 272, 276-87 (exploring effects of different regimes where the individual employee is judgment proof).
141. See PETER SCHUCK, SUING GOVERNMENT: CITIZEN REMEDIES FOR OFFICIAL WRONGS 98 (1984) ("[M]uch wrongdoing is rooted in organizational conditions and can only be organizationally deterred."); see also id. at 5-12 (describing conditions pertaining to law compliance and the need for the government entity to identify, and communicate, legal norms, and change practices to minimize violations of law); Meltzer, supra note 12, at 1020-23. There is law and economics literature arguing that under some conditions regimes allocating liability to individual employees produce identical results to regimes of entity liability. See, e.g., Reinier H. Kraakman, Corporate Liability Strategies and the Costs of Legal Controls, 93 YALE L.J. 857 (1984); Larry Kramer & Alan O. Sykes, Municipal Liability Under § 1983: A Legal and Economic Analysis, 1987 SUP. CT. REV. 249; Christopher D. Stone, The Place of Enterprise Liability in the Control of Corporate Conduct, 90 YALE L.J. 1 (1980). But these conditions are typically not met in public employment settings, where, for example, the sued employee's assets are likely to be small relative to the injuries complained of (and the assets of the entity). See, e.g., Kramer & Sykes, supra, at 272, 276-87 (exploring effects of different regimes where the individual employee is judgment proof).
142. See PETER SCHUCK, SUING GOVERNMENT: CITIZEN REMEDIES FOR OFFICIAL WRONGS 98 (1984) ("[M]uch wrongdoing is rooted in organizational conditions and can only be organizationally deterred."); see also id. at 5-12 (describing conditions pertaining to law compliance and the need for the government entity to identify, and communicate, legal norms, and change practices to minimize violations of law); Meltzer, supra note 12, at 1020-23. There is law and economics literature arguing that under some conditions regimes allocating liability to individual employees produce identical results to regimes of entity liability. See, e.g., Reinier H. Kraakman, Corporate Liability Strategies and the Costs of Legal Controls, 93 YALE L.J. 857 (1984); Larry Kramer & Alan O. Sykes, Municipal Liability Under § 1983: A Legal and Economic Analysis, 1987 SUP. CT. REV. 249; Christopher D. Stone, The Place of Enterprise Liability in the Control of Corporate Conduct, 90 YALE L.J. 1 (1980). But these conditions are typically not met in public employment settings, where, for example, the sued employee's assets are likely to be small relative to the injuries complained of (and the assets of the entity). See, e.g., Kramer & Sykes, supra, at 272, 276-87 (exploring effects of different regimes where the individual employee is judgment proof).
143. See PETER SCHUCK, SUING GOVERNMENT: CITIZEN REMEDIES FOR OFFICIAL WRONGS 98 (1984) ("[M]uch wrongdoing is rooted in organizational conditions and can only be organizationally deterred."); see also id. at 5-12 (describing conditions pertaining to law compliance and the need for the government entity to identify, and communicate, legal norms, and change practices to minimize violations of law); Meltzer, supra note 12, at 1020-23. There is law and economics literature arguing that under some conditions regimes allocating liability to individual employees produce identical results to regimes of entity liability. See, e.g., Reinier H. Kraakman, Corporate Liability Strategies and the Costs of Legal Controls, 93 YALE L.J. 857 (1984); Larry Kramer & Alan O. Sykes, Municipal Liability Under § 1983: A Legal and Economic Analysis, 1987 SUP. CT. REV. 249; Christopher D. Stone, The Place of Enterprise Liability in the Control of Corporate Conduct, 90 YALE L.J. 1 (1980). But these conditions are typically not met in public employment settings, where, for example, the sued employee's assets are likely to be small relative to the injuries complained of (and the assets of the entity). See, e.g., Kramer & Sykes, supra, at 272, 276-87 (exploring effects of different regimes where the individual employee is judgment proof).
144. 6 U.S. (2 Cranch) 170 (1804).
145. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800 (1982). The Harlow standard is applied as well to § 1983 actions against state or local officials. See, e.g., Anderson v. Creighton, 483 U.S. 635 (1987).
146. A further question raised by Professor Vázquez's argument is its effects on official immunity for federal officers. At least since Harlow the Court has applied identical immunities to federal, state, and local officers. See supra note 122. Under current law, Congress has power to waive the federal government's immunity from suit on any kind of claim but lacks power to abrogate states' immunity except when acting under Section 5 of the 14th Amendment or possibly other post-11th amendments. Where Congress cannot abrogate state immunity, it may well have good cause to substantially narrow the range of officer immunity for state officers, while regarding the federal government's consent to be sued as obviating the need to do so for federal officers.
147. But see Vázquez, supra note 7, at 877-78 (arguing that the Court views individual officer liability as a more effective deterrent than entity liability). Professor Vázquez cites FDIC v. Meyer, 510 U.S. 471 (1994), in support, which in turn explains first, that the individual officer remedy against federal officers recognized in Bivens (a remedy that parallels the § 1983 remedy against state officers) was created because sovereign immunity barred the remedy against the entity - and, by implication, not because it was deemed more effective. Later, the opinion quotes from Carlson v. Green, 446 U.S. 14 (1980), in which the Court noted that a Bivens remedy runs against individual officers, and is thus a more effective deterrent than the Federal Tort Claims Act, Pub. L. No. 79-601, 60 Stat. 842 (1946) (codified as amended in scattered sections of 28 U.S.C.) (FTCA) remedy, which runs against the United States. This statement in Green is ambiguous, suggesting that the greater effectiveness might have depended on who the defendant was or on the limitations of the FTCA remedy: FTCA claims are hedged by a number of limitations and procedures not applicable to the Bivens cause of action. A reading of the entire passage in Meyerdoes not support the view that the Court, in recognizing suits against officers, was primarily motivated by the view that such actions were better deterrents than actions against the government itself - at the time Bivens was created, suits against the United States itself were regarded as barred by the federal government's sovereign immunity.
148. 465 U.S. 89 (1984).
149. See id. at 105-06; see also Jackson, supra note 54, at 60-62 (criticizing the Court for shifting away from justifications based on remedial traditions).
150. See United States v. Lee, 106 U.S. 196, 206 (1882) ("[I]t is difficult to see on what solid foundation of principle the exemption from liability to suit rests."); see also Seminole Tribe, 517 U.S. at 68-69 (offering historical claims that sovereign immunity existed and was important, but not reasons in principle). For one possible exception, see Alden, 119 S. Ct. at 2264-66, where the Court suggests that sovereign immunity is consistent with self-governance. The Court fails, however, to explain why self-governance of the nation, when Congress acts within an enumerated power to abrogate a state's immunity, see Daniel A. Farber, Pledging A New Allegiance: An Essay on Sovereignty and the New Federalism, 75 NOTRE DAME L. REV. 1133, 1143 (2000) (describing Alden as struggling "in vain to find some practical function for sovereign immunity"), would not support precisely the contrary result - raising the unanswered question, on what basis did the Court choose to value state self-governance over national self-governance notwithstanding the Supremacy Clause?
151. Alden, 119 S. Ct. at 2257.
152. See Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738 (1824).
153. See Farber, supra note 127 at 1135-37 (noting the majority's "reverential language toward the states"); Meltzer, supra note 12, at 1032-37 & n.110 (noting the "seemingly relentless expansion of state sovereign immunity"); Vázquez, supra note 7 at 888-91.
154. See Vázquez, supra note 7, at 860, 888-90 (discussing the "increasing prominence" of "state sovereignty" concerns in, for example, Coeur d'Alene, Alden, and College Savings Bank). For a similar argument predating this Term's trilogy, see Vicki C. Jackson, Coeur d'Alene, Federal Courts and the Supremacy of Federal Law: The Competing Paradigms of Chief Justices Marshall and Rehnquist, 15 CONST. COMMENTARY 301 (1998).
155. See Currie, supra note 106, at 167.
156. See Osborn, 22 U.S. at 738 (asserting that if the state could have been pleaded as a party defendant it should have been, but if not, the party of record rule would apply to permit suit to proceed against the state officers); see also Woolhandler, supra note 76, at 130-32, 136-37; see also supra text accompanying notes 103-07 (discussing O'Connor).
157. For a thoughtful explication of the reasons for the resurgence of the 11th Amendment and state sovereign immunity, see Fletcher, supra note 19, at 843; for my own earlier thoughts on this, see Jackson, supra note 1. For a perceptive description of the new constitutional faith informing these and other decisions, see Farber, supra note 127, at 1133.
158. Alden, 119 S. Ct. at 2246. If the Amendment were merely clarificatory of a deep understanding that states were immune from suit by any one, it is odd that it is not more clear in expressing this understanding. For an alternative explanation of what the Amendment was clarifying that supports the "diversity repeal" view, see Pfander, supra note 53, at 1355-56 (arguing that the Constitution was not intended to change liability rules for debts incurred by states prior to enactment of the Constitution and that the 11th Amendment was intended as a narrow correction to Chisholm, which had entertained an action to enforce such a debt under a diverse-party head of jurisdiction).
159. Alden, 119 S. Ct. at 2254 (quoting Principality of Monaco v. Mississippi, 292 U.S. 313, 322 (1934)).
160. 377 U.S. 533 (1964).
161. Id. at 560-62.
162. Id. at 573-75.
163. As is clear from the quotation in text above, the Court provides an additional reason why the compromise represented by the Senate should not be extended: that the subdivisions of the states were never independent sovereigns. See id. at 575. Passing the point that it is not at all clear that the states were ever fully independent sovereigns, see Jack Rakove, Making a Hash of Sovereignty, Part I, 2 GREEN BAG 2d. 35, 39-43 (1998), functional differences between local governments and the states under the Constitution might support the Court's refusal to extend the principle of the Senate: while Congress is prohibited from manipulating state boundaries, no such federal constitutional limit applies to the states' powers to manipulate the boundaries of its internal divisions, see Briffault, supra note 111, at 1335-36. This power to manipulate coupled with a power to establish non-population based units of representation might have been seen as opening the door to too much in the way of anti-democratic possibilities. The Reynolds Court could be taken to say that the "principle" for which the Senate stands is that the states had some form of sovereignty but not necessarily the power to decide on a principle of internal representation that deviates from one-person one-vote. By a similar argument, the 11th Amendment might be taken to stand, not for the principle of state sovereign immunity, but for the principle that states were sovereign to some extent - that is, at a level of generality about the principle at hand that would not resolve (at least not in the Court's direction) the question of state immunity on federal-question claims by a state's own citizens. For one discussion of the problem of levels of generality, see Laurence H. Tribe & Michael Dorf, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057 (1990).
164. As is clear from the quotation in text above, the Court provides an additional reason why the compromise represented by the Senate should not be extended: that the subdivisions of the states were never independent sovereigns. See id. at 575. Passing the point that it is not at all clear that the states were ever fully independent sovereigns, see Jack Rakove, Making a Hash of Sovereignty, Part I, 2 GREEN BAG 2d. 35, 39-43 (1998), functional differences between local governments and the states under the Constitution might support the Court's refusal to extend the principle of the Senate: while Congress is prohibited from manipulating state boundaries, no such federal constitutional limit applies to the states' powers to manipulate the boundaries of its internal divisions, see Briffault, supra note 111, at 1335-36. This power to manipulate coupled with a power to establish non-population based units of representation might have been seen as opening the door to too much in the way of anti-democratic possibilities. The Reynolds Court could be taken to say that the "principle" for which the Senate stands is that the states had some form of sovereignty but not necessarily the power to decide on a principle of internal representation that deviates from one-person one-vote. By a similar argument, the 11th Amendment might be taken to stand, not for the principle of state sovereign immunity, but for the principle that states were sovereign to some extent - that is, at a level of generality about the principle at hand that would not resolve (at least not in the Court's direction) the question of state immunity on federal-question claims by a state's own citizens. For one discussion of the problem of levels of generality, see Laurence H. Tribe & Michael Dorf, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057 (1990).
165. See generally Bruce Ackerman, Taxation and the Constitution, 99 COLUM L. REV. 1 (1999). Ackerman describes how one leading "states-rights" member of the Convention responded as a Supreme Court Justice to the first challenge to a federal tax as violating the rule on direct taxes: While Paterson ultimately endorsed the Constitution, he should be viewed as the leading Founder committed to states' rights, and so his view should be considered with special care: On the part of the plaintiff in error, it has been contended, that the rule of apportionment is to be favored, rather than the rule of uniformity; and, of course, that the instrument is to receive such a construction, as will extend the former, and restrict the latter. I am not of that opinion. The constitution has been considered as an accommodating system; it was the effect of mutual sacrifices and concessions; it was the work of compromise. The rule of apportionment is of this nature; it is radically wrong; it cannot be supported by any solid reasoning. Why should slaves, who are a species of property, be represented more than any other property? The rule, therefore, ought not to be extended by construction. Again, numbers do not afford a just estimate or rule of wealth. It is, indeed, a very uncertain and incompetent sign of opulence. This is another reason against the extension of the principle laid down in the Constitution. Id. at 22-23 (quoting Hylton v. United States, 3 U.S. (3 Ball.) 171, 177 (1796)). This is a candid argument that the rule of apportionment was a "work of compromise" and "ought not to be extended by construction." Id.
166. See Ackerman, supra note 141, at 22 (approving of the Court's unanimous rejection of an early "effort to transform a narrow bargain with slavery into a grand principle of federalism that would cripple [federal] taxing powers"); id. at 51 (arguing that, other than to strike down a classic "capitation tax," the Court should not "expand the direct tax provisions beyond this textually enshrined example in obedience to a deal with slavery that America has otherwise abrogated"). On my view the 11th Amendment should not be "expanded" beyond its text, which should be read as barring federal courts from exercising "diversity" based jurisdiction over claims against states (with possible implications as well for supplemental jurisdiction). See Jackson, supra note 54, at 55-59; see also id. at 72-104 (arguing that sovereign immunity can help shape federal common law of remedies without precluding congressional abrogation).
167. See, e.g., Wiktor Osiatynski, The Constitution-Making Process in Poland, 13 LAW & POLICY 125 (1991), reprinted in Vicki C. JACKSON & MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW 288-93 (1999).
168. See, e.g., Wiktor Osiatynski, The Constitution-Making Process in Poland, 13 LAW & POLICY 125 (1991), reprinted in Vicki C. JACKSON & MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW 288-93 (1999).
169. For an excellent discussion of the difficulties entailed in efforts to determine the intent of a legal text that is produced by a multi-member body, see WILLIAM N. ESKRIDGE, JR. ET AL., LEGISLATION AND STATUTORY INTERPRETATION 214-22 (2000). For an effort to ground a theory of statutory interpretation in the desire to constrain the effect of narrow interest group bargains towards more public-regarding results, see Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223 (1986) (arguing that the Court should not seek to discern and give effect to a "deal" behind legislation but rather should be limited by the enacted text in order to raise the costs and constrain non-public-regarding of legislative deal-making). Although the difficulties of distinguishing "private deals" from "public regarding" statutes are legion, many students of the legislative process still behave as though these differences are discernible. See, e.g., ESKRIDGE ET AL., supra, at 355-56 (discussing the Court's narrow construction of some public grants as reflecting a suspicion of the legislative allocation of "public benefits to narrow interests" and its willingness to construe public grants more liberally when the grant "clearly promotes a public value" or "the costs and benefits of the grant are spread widely across the public").
170. For an excellent discussion of the difficulties entailed in efforts to determine the intent of a legal text that is produced by a multi-member body, see WILLIAM N. ESKRIDGE, JR. ET AL., LEGISLATION AND STATUTORY INTERPRETATION 214-22 (2000). For an effort to ground a theory of statutory interpretation in the desire to constrain the effect of narrow interest group bargains towards more public-regarding results, see Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223 (1986) (arguing that the Court should not seek to discern and give effect to a "deal" behind legislation but rather should be limited by the enacted text in order to raise the costs and constrain non-public-regarding of legislative deal-making). Although the difficulties of distinguishing "private deals" from "public regarding" statutes are legion, many students of the legislative process still behave as though these differences are discernible. See, e.g., ESKRIDGE ET AL., supra, at 355-56 (discussing the Court's narrow construction of some public grants as reflecting a suspicion of the legislative allocation of "public benefits to narrow interests" and its willingness to construe public grants more liberally when the grant "clearly promotes a public value" or "the costs and benefits of the grant are spread widely across the public").
171. See City of Boerne v. Flores, 521 U.S. 507, 520-24 (1997). In evaluating the accuracy of the Court's history of the 14th Amendment as a compromise between these purposes, see the work of historian ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877, at 251-61 (1988) (suggesting that the revision of Bingham's initial proposal reflected a desire to strengthen the Constitution's protections of rights by securing them against congressional weakening should Democrats take over Congress after the Amendment was ratified by assuring that the courts could directly enforce the guarantees of Section 1 without Congress).
172. Recognizing the evolution of constitutional understandings marks me as neither a "pure originalist" nor as someone who believes that history and original understandings have only indeterminacy to offer. On constitutional interpretation, I find much to admire in the complexity and nuance of such works as Fallon, supra note 75, at 1194-1209, Barry Friedman & Scott B. Smith, The Sedimentary Constitution, 147 U. PA. L. REV. 1 (1998), and David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996) as well as in Professor Dworkin's work, infra note 147.
173. Recognizing the evolution of constitutional understandings marks me as neither a "pure originalist" nor as someone who believes that history and original understandings have only indeterminacy to offer. On constitutional interpretation, I find much to admire in the complexity and nuance of such works as Fallon, supra note 75, at 1194-1209, Barry Friedman & Scott B. Smith, The Sedimentary Constitution, 147 U. PA. L. REV. 1 (1998), and David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996) as well as in Professor Dworkin's work, infra note 147.
174. Provisions reflecting more specific and narrow language may, for example, reflect more specific and narrow purpose than others. General language may be suggestive of agreement on a general principle; more detailed, specific language may reflect either a narrower principle or a carefully crafted compromise by the drafters. Compare, e.g., U.S. CONST, amend. XII (establishing voting rules for presidential selection in the House of Representatives), with U.S. CONST, amend. XIV (guaranteeing "equal protection"). Cf. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 131-49 (1977); Ronald Dworkin, The Forum of Principle, 56 N.Y.U. L. REV. 469, 477-78, 488-97 (1981) (distinguishing general proposition or concepts from more specific "conceptions" and discussing the differences between "abstract and concrete" intentions).
175. Provisions reflecting more specific and narrow language may, for example, reflect more specific and narrow purpose than others. General language may be suggestive of agreement on a general principle; more detailed, specific language may reflect either a narrower principle or a carefully crafted compromise by the drafters. Compare, e.g., U.S. CONST, amend. XII (establishing voting rules for presidential selection in the House of Representatives), with U.S. CONST, amend. XIV (guaranteeing "equal protection"). Cf. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 131-49 (1977); Ronald Dworkin, The Forum of Principle, 56 N.Y.U. L. REV. 469, 477-78, 488-97 (1981) (distinguishing general proposition or concepts from more specific "conceptions" and discussing the differences between "abstract and concrete" intentions).
176. This process of categorization may take place with respect to particular provisions or with respect to claims of extratextual understandings (such as that equality of treatment is a bedrock requirement for both state and federal governments, see, e.g., Bolling v. Sharpe, 347 U.S. 497 (1954), notwithstanding the existence of slavery at the time the Fifth Amendment's Due Process Clause was adopted). Identifying what the principles are and, in the event of a conflict between different versions of a principle, which version is "right" or "fits best" is a major task of constitutional interpretation. For a brief discussion of how to characterize the "principle" of the Eleventh Amendment (if it were viewed as a principle and not a compromise), see infra note 150.
177. One possibility is that this difference should have no effect - that once a Constitution is ratified, its parts should all be treated as "law" by the courts and no part should be favored; the task of rendering judgment requires the Court to take a neutral stance with respect to whether particular provisions were included as a result of agreements in principle, unresolved compromises, or adventitious events - all of the Constitution is equally "law." Frank Michelman writes, for example, that while compromise in writing or amending a constitution is inevitable and is accepted as legitimate, once a text is ratified the "conventional wisdom" is that the Supreme Court Justices are to be "faithful servants" of that constitutional law. See Frank Michelman, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337, 1340-44 (1990). But while in form it might seem possible to say, treat the entire Constitution in all its provisions as equally "law" and interpret each according to the same methodology, in practice it is not. The human search for meaning and the inevitable carrying-on (and transmutation of) understandings of the breadth of the principle for which a provision (or a Constitution) stands will necessarily be subject to dispute, contention, and resort to claims of both original understandings and overall structure. Michael Dorf has suggested a different problem in comments on this idea: he argues that history suggests that to the extent the Court sees a portion of the Constitution as involving a compromise, it will be inclined vigorously to enforce its terms despite the evil or lack of justice in so doing. See Michael Dorf, No Federalists Here: Anti-Federalism and Nationalism on the Rehnquist Court, 31 RUTGERS L.J. (forthcoming 2000). His example is Dred Scott, 60 U.S. (19 How.) 393 (1856). But in Dred Scott, the Court was enforcing what it saw as a constitutional principle that slaves were property, a principle barring Congress from interfering with the growth of slavery as an institution. Ignoring the compromise reflected in the Constitution's text (i.e., the absence of the word "slave," the fact that slaves counted as three-fifths of persons for representation and taxing purposes, that Congress was prohibited to regulate the slave trade but only for 20 years, etc.), the Court adopted a controversial interpretation that one could say either was based on a principle nowhere spelled out in the Constitution, or alternatively, an interpretation designed (to borrow from the field of statutory interpretation) to give slaveholders the full benefit of a quite different bargain, a predicate of which was that there would be no federal interference with slavery's growth, a "bargain" or "principle" not reflected in constitutional text. See DON E. FEHRENBACHER, THE DRED SCOTT CASE 21-27 (1978); cf. Macey, supra note 144, at 226-27, 261-66 (suggesting that courts should not, in statutory context, attempt to give benefit of bargain beyond terms set forth in authoritative legal document in order to promote public-regarding process). Commentary on Dred Scott disagrees on whether the decision should be regarded as mistaken because it was immoral, or because it relied too much on "intentionalist" or originalist reasoning, or because it did a poor job of identifying those intentions, or even whether it was a correct reading of the Constitution as it then stood. (I believe it was not.) See generally Mark Graber, Desperately Ducking Slavery: Dred Scott and Contemporary Constitutional Theory, 14 CONST. COMMENTARY 271, 273 (1997) (describing as "fruitless" different contemporary efforts to describe, within particular theories, what was wrong with Dred Scott). I believe that it was the elevation of a compromise into a single-minded principle, and/or the misidentification of principle, that was at least part of the problem in Dred Scott. On this reading, Dred Scott's well-deserved infamy is not inconsistent with my argument that the Court's jurisprudence would be helpfully mitigated by its viewing the 11th Amendment as the product of a narrow compromise rather than a great principle.
178. One possibility is that this difference should have no effect - that once a Constitution is ratified, its parts should all be treated as "law" by the courts and no part should be favored; the task of rendering judgment requires the Court to take a neutral stance with respect to whether particular provisions were included as a result of agreements in principle, unresolved compromises, or adventitious events - all of the Constitution is equally "law." Frank Michelman writes, for example, that while compromise in writing or amending a constitution is inevitable and is accepted as legitimate, once a text is ratified the "conventional wisdom" is that the Supreme Court Justices are to be "faithful servants" of that constitutional law. See Frank Michelman, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337, 1340-44 (1990). But while in form it might seem possible to say, treat the entire Constitution in all its provisions as equally "law" and interpret each according to the same methodology, in practice it is not. The human search for meaning and the inevitable carrying-on (and transmutation of) understandings of the breadth of the principle for which a provision (or a Constitution) stands will necessarily be subject to dispute, contention, and resort to claims of both original understandings and overall structure. Michael Dorf has suggested a different problem in comments on this idea: he argues that history suggests that to the extent the Court sees a portion of the Constitution as involving a compromise, it will be inclined vigorously to enforce its terms despite the evil or lack of justice in so doing. See Michael Dorf, No Federalists Here: Anti-Federalism and Nationalism on the Rehnquist Court, 31 RUTGERS L.J. (forthcoming 2000). His example is Dred Scott, 60 U.S. (19 How.) 393 (1856). But in Dred Scott, the Court was enforcing what it saw as a constitutional principle that slaves were property, a principle barring Congress from interfering with the growth of slavery as an institution. Ignoring the compromise reflected in the Constitution's text (i.e., the absence of the word "slave," the fact that slaves counted as three-fifths of persons for representation and taxing purposes, that Congress was prohibited to regulate the slave trade but only for 20 years, etc.), the Court adopted a controversial interpretation that one could say either was based on a principle nowhere spelled out in the Constitution, or alternatively, an interpretation designed (to borrow from the field of statutory interpretation) to give slaveholders the full benefit of a quite different bargain, a predicate of which was that there would be no federal interference with slavery's growth, a "bargain" or "principle" not reflected in constitutional text. See DON E. FEHRENBACHER, THE DRED SCOTT CASE 21-27 (1978); cf. Macey, supra note 144, at 226-27, 261-66 (suggesting that courts should not, in statutory context, attempt to give benefit of bargain beyond terms set forth in authoritative legal document in order to promote public-regarding process). Commentary on Dred Scott disagrees on whether the decision should be regarded as mistaken because it was immoral, or because it relied too much on "intentionalist" or originalist reasoning, or because it did a poor job of identifying those intentions, or even whether it was a correct reading of the Constitution as it then stood. (I believe it was not.) See generally Mark Graber, Desperately Ducking Slavery: Dred Scott and Contemporary Constitutional Theory, 14 CONST. COMMENTARY 271, 273 (1997) (describing as "fruitless" different contemporary efforts to describe, within particular theories, what was wrong with Dred Scott). I believe that it was the elevation of a compromise into a single-minded principle, and/or the misidentification of principle, that was at least part of the problem in Dred Scott. On this reading, Dred Scott's well-deserved infamy is not inconsistent with my argument that the Court's jurisprudence would be helpfully mitigated by its viewing the 11th Amendment as the product of a narrow compromise rather than a great principle.
179. One possibility is that this difference should have no effect - that once a Constitution is ratified, its parts should all be treated as "law" by the courts and no part should be favored; the task of rendering judgment requires the Court to take a neutral stance with respect to whether particular provisions were included as a result of agreements in principle, unresolved compromises, or adventitious events - all of the Constitution is equally "law." Frank Michelman writes, for example, that while compromise in writing or amending a constitution is inevitable and is accepted as legitimate, once a text is ratified the "conventional wisdom" is that the Supreme Court Justices are to be "faithful servants" of that constitutional law. See Frank Michelman, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337, 1340-44 (1990). But while in form it might seem possible to say, treat the entire Constitution in all its provisions as equally "law" and interpret each according to the same methodology, in practice it is not. The human search for meaning and the inevitable carrying-on (and transmutation of) understandings of the breadth of the principle for which a provision (or a Constitution) stands will necessarily be subject to dispute, contention, and resort to claims of both original understandings and overall structure. Michael Dorf has suggested a different problem in comments on this idea: he argues that history suggests that to the extent the Court sees a portion of the Constitution as involving a compromise, it will be inclined vigorously to enforce its terms despite the evil or lack of justice in so doing. See Michael Dorf, No Federalists Here: Anti-Federalism and Nationalism on the Rehnquist Court, 31 RUTGERS L.J. (forthcoming 2000). His example is Dred Scott, 60 U.S. (19 How.) 393 (1856). But in Dred Scott, the Court was enforcing what it saw as a constitutional principle that slaves were property, a principle barring Congress from interfering with the growth of slavery as an institution. Ignoring the compromise reflected in the Constitution's text (i.e., the absence of the word "slave," the fact that slaves counted as three-fifths of persons for representation and taxing purposes, that Congress was prohibited to regulate the slave trade but only for 20 years, etc.), the Court adopted a controversial interpretation that one could say either was based on a principle nowhere spelled out in the Constitution, or alternatively, an interpretation designed (to borrow from the field of statutory interpretation) to give slaveholders the full benefit of a quite different bargain, a predicate of which was that there would be no federal interference with slavery's growth, a "bargain" or "principle" not reflected in constitutional text. See DON E. FEHRENBACHER, THE DRED SCOTT CASE 21-27 (1978); cf. Macey, supra note 144, at 226-27, 261-66 (suggesting that courts should not, in statutory context, attempt to give benefit of bargain beyond terms set forth in authoritative legal document in order to promote public-regarding process). Commentary on Dred Scott disagrees on whether the decision should be regarded as mistaken because it was immoral, or because it relied too much on "intentionalist" or originalist reasoning, or because it did a poor job of identifying those intentions, or even whether it was a correct reading of the Constitution as it then stood. (I believe it was not.) See generally Mark Graber, Desperately Ducking Slavery: Dred Scott and Contemporary Constitutional Theory, 14 CONST. COMMENTARY 271, 273 (1997) (describing as "fruitless" different contemporary efforts to describe, within particular theories, what was wrong with Dred Scott). I believe that it was the elevation of a compromise into a single-minded principle, and/or the misidentification of principle, that was at least part of the problem in Dred Scott. On this reading, Dred Scott's well-deserved infamy is not inconsistent with my argument that the Court's jurisprudence would be helpfully mitigated by its viewing the 11th Amendment as the product of a narrow compromise rather than a great principle.
180. See supra text accompanying notes 137-40 (discussing Reynolds v. Sims). As noted earlier, the formulation of "compromise" and "principle" may be misleading: one might alternatively consider the "level of generality" at which to identify the "principle" or principles embodied in particular provisions. The "principle" of the Senate may be best understood by seeing the Congress as a whole as mediating between principles of equality of persons in representation and the sovereign status of the states. The 11th Amendment could be seen as mediating between principles that the judicial power should be as broad as the legislative under the federal question jurisdiction but that states as sovereign should not be subject to suit, without consent, on obligations incurred under their own laws or (phrased differently) as standing for the principle that states are quasi-sovereign permanent polities in the federal Union (and as such, have to be able not only to make but to control the enforcement of their own state laws against themselves, free from the jurisdiction of the federal courts).
181. See Lawrence C. Marshall, Fighting the Words of the Eleventh Amendment, 102 HARV L. REV. 1342, 1349-71 (1989) (arguing that "literal" meaning of the 11th Amendment's words should be applied to bar all suits against states by out of state citizens but not suits by in-staters, nor by foreign governments, and developing at length an argument that 11th Amendment language reflected a compromise designed to address narrow situations). Although diversity theorists differ from Marshall on whether the Amendment bars out-of-state citizens from suing a state in federal court under the "federal question" jurisdiction, both theories read the Amendment (far more narrowly than does the Court) not to bar suits by in-staters or by foreign states.
182. As my colleague Carlos Vázquez has recently reminded us, at least some number of the justices in the five-justice majority in Seminole Tribe and this year's trilogy found the question whether to overrule Hans a close one and ultimately decided to adhere to Hans for reasons of stare decisis; under these circumstances, he argues, "a doctrine whose reason for being is merely that the matter has already been so decided is clearly not a doctrine that warrants expansion." Carlos Manuel Vázquez, Night and Day: Coeur d'Alene, Breard, and the Unraveling of the Prospective-Retrospective Distinction in Eleventh Amendment Doctrine, 87 GEO. L.J. 1, 86-88 (1998) (noting that "Justice Scalia did not defend the correctness of Hans so much as conclude that overruling precedent was not justified," that few commentators affirmatively defend the Hans holding, and that "it is difficult to defend a regime in which federal law validly imposes obligations on the states but federal courts lack the power to entertain suits against the states to enforce those obligations").
183. In addition to the works in the 1980s by Judge Gibbons and then-Professor William Fletcher, see Pfander, supra note 53.
184. One possibility is that my effort here wrongly assumes the independence of one's view of the Amendment as a compromise (or as a relatively narrow principle) and one's view that the Amendment affects "federal question" jurisdiction at all. That is, one might think that the only way reasonable minds could conclude that the Amendment stands for no federal question jurisdiction in suits by private persons or entities against states in federal courts (as Seminole Tribe holds) is to view its enactment as emblematic of a deep constitutional principle, in which case, one would not be prepared to see this as a compromise. However, at least one member of the current majority at one time found the question of determining what the Eleventh Amendment meant, and whether Hans was correctly decided, to be quite difficult, see Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468, 496 (1987) (Scalia, J., concurring), and another wrote for the Court in Hilton v. South Carolina Railways, 502 U.S. 197 (1991) (Kennedy, J.,), on the apparent assumption that the State's constitutional immunity from suit in federal court did not apply in the state courts (although the issue was whether the statute created a cause of action against the State, the State not having asserted sovereign immunity as such). See id. at 201-07.
185. 330 U.S. 386 (1947).
186. The question I am addressing here is whether the Supremacy Clause simpliciter requires a state court to hear a federal claim against the state, and not whether, if the state court hears some arguably analogous claims against the state, the anti-discrimination principle of the Supremacy Clause requires that the state court hear the federal claim. See Brief for the United States, Alden (No. 98-436) (identifying "Questions Presented"); see also infra notes 160-62.
187. 496 U.S. 356 (1990).
188. 209 U.S. 211 (1908).
189. Professor Woolhandler dismisses General Oil Co. v. Grain far too easily on these grounds, however, see Woolhandler, supra note 76, at 150-51, since the Court's opinion - befuddled as it is in light of Ex parte Young - proceeded on the assumption that the suit against the state officer would have been barred in federal court and, on this assumption, held that the Constitution required the state court to hear the claim. See General Oil, 209 U.S. at 226.
190. See Reply Brief for the United States at 4-5, Alden (No. 98-436) (explaining that the state courts entertain actions against private employers under the FLSA and "entertain[] suits against the State for monetary relief, including suits seeking wages that have been withheld in violation of state law"). As the United State's Reply Brief went on to argue, Because those claims unquestionably are of the same general type as the claim asserted by petitioners in this case under any plausible view of such a test, the State's refusal to entertain petitioners' claim "flatly violates the Supremacy Clause." Indeed, this case illustrates the extent to which, under the State's analysis, a State's assertion of sovereign immunity can be used to discriminate against federal law. Maine law permits state employees to bring an action in Superior Court to recover unpaid wages. Thus, an hourly worker who works more than 40 hours in a week, but is not paid by the State for those additional hours of work, may bring suit to recover unpaid wages. The only issue, then, is what substantive law should control the amount of recovery - i.e., the specific hourly wage to which employees are entitled. Are employees entitled to recover time and a half, in accordance with federal law, or are they limited to straight time, as provided under state law? Id. (citations omitted) (citing Howlett, 496 U.S. at 381, and ME. REV. STAT. ANN. tit. 26, §§ 621(2), 626-A, 663(10), 670 (West 1988 & Supp. 1998).
191. See Testa, 330 U.S. at 386 (holding that since state courts had entertained double damage claims under similar statutes, they had adequate jurisdiction to entertain an "analogous" federal claim under a different statute providing for award of treble damages).
192. The Alden Court gave the discrimination claim extremely short shrift. In a section addressed to "[t]he sole remaining question . . . , whether Maine waived its immunity," Alden, 119 S. Ct. at 2268, the Court apparently limits the Testa v. Kalt principle of nondiscrimination to contexts in which the state is not the party defendant (or in which there is no question of state immunity). Although petitioners contend the State has discriminated against federal rights by claiming sovereign immunity from this FLSA suit, there is no evidence that the State has manipulated its immunity in a systematic fashion to discriminate against federal causes of action. To the extent Maine has chosen to consent to certain classes of suits, while maintaining its immunity from others, it has done no more than exercise a privilege of sovereignty concomitant to its constitutional immunity from suit. The State, we conclude, has not consented to suit. Id. It is, I suppose, possible to read this passage to mean that even in state court actions against private persons, state courts are free to discriminate against federal claims as long as they do not do so systematically. A far more plausible reading, however, is that the requirement of "systematic discrimination" applies (if it applies at all) only to claims against the state itself. As so understood, however, it is bad enough, apparently countenancing some relatively clear discrimination against federal claims as long as it is not too widespread.
193. Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 YALE L.J. 1220, 1286 (1999).
194. Id. at 1229. Tushnet points to the "bricolage" found in several periods of constitution drafting, including our own, to challenge the links often assumed between what he calls "rationalized textualism" and "originalism": Thinking about constitution-making as a process of "bricolage" casts doubt on a form of textualism that attributes to the constitution's writers a purpose of creating a tightly integrated document governed by a form of conceptual determinism. The compromises and sheer randomness found in the constitution-making process suggest that it would be wrong to think of the writers as having so highly rationalized an understanding of their work as this form of textualism attributes to them. Id. at 1300.
195. Id. at 1286.
196. The idea of "bricolage" may be more radically indeterminate in its capacity to challenge interpretive strategies built on any form of intentionalism; while one might say that the Amendment represented no more than a hasty political compromise responding to an immediate problem, one might alternatively say that the language, while narrow, was the best that could be done at the time to express a deeper principle. Other constitutional structures and principles can assist in reaching the best reading. See Jackson, supra note 54, at 44-51.
197. Since Justice Scalia in 1987 found the question whether to overrule Hans uncharacteristically difficult, see Welch v. Texas Dep't of Highway & Pub. Transp., 483 U.S. 468 (1987), and ultimately voted to adhere to Hans in large part for reasons of stare decisis, see Pennsylvania v. Union Gas Co., 491 U.S. 1, 30-36 (1989) (Scalia, J., dissenting), one might have thought the current majority would have been reluctant to "extend the precedent" in the way it has. See Carlos Manuel Vázquez, Breard, and the Federal Power to Require Compliance with ICJ Orders of Provisional Measures, 92 AM. J. INT'L L. 683, 690 (1998)
198. See Marshall, supra note 151, at 1349-71 (arguing that the 11th Amendment was a compromise and its text should be given very literal reading). Note also that sovereign immunity on federal claims is in conflict with the "political axiom" that "the judicial power of every well constituted government must be coextensive with the legislative." Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 383-84 (1821).
199. See, e.g., Hammer v. Dagenhart, 247 U.S. 251 (1918) (holding unconstitutional a federal prohibition on the interstate movement of goods produced in violation of restrictions on child labor), overruled by United States v. Darby, 312 U.S. 100, 116-17 (1941); Carter v. Carter Coal Co., 298 U.S. 238 (1936) (invalidating federal Bituminous Coal Conservation Act of 1935 on the grounds that production such as coal mining can only be regulated by the states), distinguished by NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (upholding a federal regulation of wages and hours in the production of steel and essentially rejecting Carter's reasoning).
200. The record of the 104th Congress should give pause to those who say that the political process does not protect interests of states. See Unfunded Mandates Reform Act of 1995, 2 U.S.C. §§ 1501-71 (1994 & Supp. 1997). So too, as Professor Meltzer points out, does the recently re-issued Executive Order on Federalism, see Meltzer, supra note 12, at 1024-25, and the substantial attention being given in Congress to the pending Federalism Accountability Act.
201. See 29 U.S.C. §§ 203(e)(2)(A)-(C); 203 (e)(4)(A)-(B); 213 (b)(20) (1994 & Supp. 1997).
202. For further elaboration, see Jackson, supra note 1. Such a presumption might operate both at the level of constitutional law, that is, as a guide to determining whether a statute can constitutionally be applied to the states as against a federalism challenge, and as a guide to interpreting ambiguous statutes.
203. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954). For a more extreme version, see JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980). For an excellent contemporary overview, see DAVID SHAPIRO, FEDERALISM: A DIALOGUE (1995), and for an illuminating analysis of how the operation of political parties, organized through state-by-state organizations, facilitate national attention to state problems, see Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485 (1994). I want to resist arguments from the abolition of state legislative selection of the Senators that suggest that the national government will no longer, if once it did, reflect appropriately the interests of the states. See, e.g., id. at 1508 (asserting that "direct representation in this body was the chief protection afforded to state institutions in the original plan of the Constitution" and that "this protection basically evaporated with the adoption of the Seventeenth Amendment"). First, note the fundamental ambiguity in the 10th amendment whether the rights being protected are those of the "states" or the "people." Now, consider that the 17th Amendment was intended to change the Constitution, and to do so in the direction of giving the views of the people in the states more weight in the national legislature than the views of the state legislatures. To the extent that the views of the state governments have less weight now than they did before, this is as a consequence of lawful constitutional change and should be accepted as such, rather than being relied on to justify the new judicial activism of the Rehnquist Court's federalism revival. Federal Senators and Representatives still have to run for office from districts bounded by state lines, and still frequently emerge from prior experience in local and state office. See id at 1509-11. The Gingrich Congress illustrated that if the people want to devolve powers from the federal to the state governments, the political process provides mechanisms to do so. See supra note 170.
204. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954). For a more extreme version, see JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980). For an excellent contemporary overview, see DAVID SHAPIRO, FEDERALISM: A DIALOGUE (1995), and for an illuminating analysis of how the operation of political parties, organized through state-by-state organizations, facilitate national attention to state problems, see Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485 (1994). I want to resist arguments from the abolition of state legislative selection of the Senators that suggest that the national government will no longer, if once it did, reflect appropriately the interests of the states. See, e.g., id. at 1508 (asserting that "direct representation in this body was the chief protection afforded to state institutions in the original plan of the Constitution" and that "this protection basically evaporated with the adoption of the Seventeenth Amendment"). First, note the fundamental ambiguity in the 10th amendment whether the rights being protected are those of the "states" or the "people." Now, consider that the 17th Amendment was intended to change the Constitution, and to do so in the direction of giving the views of the people in the states more weight in the national legislature than the views of the state legislatures. To the extent that the views of the state governments have less weight now than they did before, this is as a consequence of lawful constitutional change and should be accepted as such, rather than being relied on to justify the new judicial activism of the Rehnquist Court's federalism revival. Federal Senators and Representatives still have to run for office from districts bounded by state lines, and still frequently emerge from prior experience in local and state office. See id at 1509-11. The Gingrich Congress illustrated that if the people want to devolve powers from the federal to the state governments, the political process provides mechanisms to do so. See supra note 170.
205. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954). For a more extreme version, see JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980). For an excellent contemporary overview, see DAVID SHAPIRO, FEDERALISM: A DIALOGUE (1995), and for an illuminating analysis of how the operation of political parties, organized through state-by-state organizations, facilitate national attention to state problems, see Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485 (1994). I want to resist arguments from the abolition of state legislative selection of the Senators that suggest that the national government will no longer, if once it did, reflect appropriately the interests of the states. See, e.g., id. at 1508 (asserting that "direct representation in this body was the chief protection afforded to state institutions in the original plan of the Constitution" and that "this protection basically evaporated with the adoption of the Seventeenth Amendment"). First, note the fundamental ambiguity in the 10th amendment whether the rights being protected are those of the "states" or the "people." Now, consider that the 17th Amendment was intended to change the Constitution, and to do so in the direction of giving the views of the people in the states more weight in the national legislature than the views of the state legislatures. To the extent that the views of the state governments have less weight now than they did before, this is as a consequence of lawful constitutional change and should be accepted as such, rather than being relied on to justify the new judicial activism of the Rehnquist Court's federalism revival. Federal Senators and Representatives still have to run for office from districts bounded by state lines, and still frequently emerge from prior experience in local and state office. See id at 1509-11. The Gingrich Congress illustrated that if the people want to devolve powers from the federal to the state governments, the political process provides mechanisms to do so. See supra note 170.
206. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954). For a more extreme version, see JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980). For an excellent contemporary overview, see DAVID SHAPIRO, FEDERALISM: A DIALOGUE (1995), and for an illuminating analysis of how the operation of political parties, organized through state-by-state organizations, facilitate national attention to state problems, see Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485 (1994). I want to resist arguments from the abolition of state legislative selection of the Senators that suggest that the national government will no longer, if once it did, reflect appropriately the interests of the states. See, e.g., id. at 1508 (asserting that "direct representation in this body was the chief protection afforded to state institutions in the original plan of the Constitution" and that "this protection basically evaporated with the adoption of the Seventeenth Amendment"). First, note the fundamental ambiguity in the 10th amendment whether the rights being protected are those of the "states" or the "people." Now, consider that the 17th Amendment was intended to change the Constitution, and to do so in the direction of giving the views of the people in the states more weight in the national legislature than the views of the state legislatures. To the extent that the views of the state governments have less weight now than they did before, this is as a consequence of lawful constitutional change and should be accepted as such, rather than being relied on to justify the new judicial activism of the Rehnquist Court's federalism revival. Federal Senators and Representatives still have to run for office from districts bounded by state lines, and still frequently emerge from prior experience in local and state office. See id at 1509-11. The Gingrich Congress illustrated that if the people want to devolve powers from the federal to the state governments, the political process provides mechanisms to do so. See supra note 170.
207. The statute under which the plaintiff in Florida Prepaid sued provided that states and state entities "shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity." 35 U.S.C. § 271(h) (1994 & Supp. 1997). Compare 35 U.S.C. §§ 283-85 (1994 & Supp. 1997) (containing the general provisions of the patent laws, which authorize injunctions, damages including treble damages, and in exceptional cases attorneys fees), with 28 U.S.C. § 1498 (1994 & Supp. 1997) (providing that infringement actions against the United States shall be brought in the United States Court of Federal Claims for recovery of "reasonable and entire compensation," and authorizing attorney fees in suits by particular plaintiffs only and subject to defense by the United States that its position was substantially justified, but not authorizing injunctive relief). For dueling descriptions of the magnitude of these differences in the majority and dissenting opinions, see Florida Prepaid, 119 S. Ct. at 2216 n.11, and id at 2218 n.15 (Stevens, J., dissenting). Note that Justice Stevens seeks to justify the unavailability of injunctions on "uniquely federal" grounds, that they would interfere with military procurement. See id. Whether this would justify the differential remedial treatment of the state and federal governments as against a claimed burden on state sovereignty, should my proposed alternative doctrine be adopted, is a question for another day.
208. The difficulties arise because there are a number of arguably legitimate reasons for Congress to extend remedies against states and not to the national government - for example, if states engage in a particular commercial activity, e.g., college savings funds, or community health care - that the federal government does not. Cf. supra note 174 (noting asserted military justification for limiting patent remedies against the federal government). Where the presumption described above is not met - that is, where states are subject to remedies under Article I statutes that do not apply to the federal government - the states' objections would need to be evaluated in a contextually sensitive and sensible way. It may be unavoidable in such an analysis to revisit some version of the "traditional government functions" test disavowed by the Court in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). Since the Court has implied that some sort of contextualized balancing may be appropriate in deciding whether "generally applicable" laws such as the Fair Labor Standards Act can be applied to the states, this may not be so great a drawback. See Printz v. United States, 521 U.S. 898, 932 (1997) (citing with apparent approval National League of Cities v. Usery, 426 U.S. 833 (1976)).
209. In law reviews, however, at least two current Supreme Court Justices have invoked justice as a basis for serious reexamination of sovereign immunity doctrines. In 1993, three years before Seminole Tribe overruled Union Gas to begin the current expansionary wave immunizing states from private liabilities for violations of federal law, Justice Stevens wote, In suggesting a broader examination of the entire doctrine of sovereign immunity, I endorse the views expressed in an unusually perceptive article written by an associate professor of law at the University of Virginia in 1970 . . . referring to an area in which he thought that the doctrine of federal sovereign immunity had "made its most blatant affront to the basic precepts of justice." Stevens, supra note 6, at 1129 (quoting Antonin Scalia, Sovereign Immunity and Nonstatutory Review of Federal Administrative Action: Some Conclusions from the Public Lands Cases, 68 MICH. L. REV. 867, 868 (1970)).
210. Cf. Robin West, Toward Humanistic Theories of Legal Justice, 10 CARDOZO STUD. L. & LIT. 147 (1998) (noting influence of Justice Holmes's comment that "when lawyers in his courtroom make appeal to justice, he stops listening").