Article III as a constitutional compromise: modern textualism and state sovereign immunity

Notre Dame Law Review

Volumn 84, Issue 3, 2009, Pages 1135-1194

  Menashr, Steven ^a  

^a DARTMOUTH COLLEGE   (United States)

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EID: 67649553210     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (360)

1. John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47, 47 (1998) (footnote omitted).
2. Vicki C. Jackson, Principle and Compromise in Constitutional Adjudication: The Eleventh Amendment and State Sovereign Immunity, 75 NOTRE DAME L. REV. 953, 953 (2000);
3. see also James E. Pfander, Once More unto the Breach: Eleventh Amendment Scholarship and the Court, 75 NOTRE DAME L. REV. 817, 819 (2000) (noting extensive scholarly criticism of the Court and expressing hope "that responsible professional comment and criticism may yet... restrain judicial arbitrariness at the highest level").
4. 527 U. S. 627, 647-48 (1999) (invalidating Congress' abrogation of state sovereign immunity from suit under a provision of the Patent and Plant Variety Protection Remedy Clarification Act).
5. 527 U. S. 666, 691 (1999) (invalidating Congress' abrogation of state sovereign immunity from suit under a provision of the Lanham Act).
6. 527 U. S. 706, 754 (1999) (holding that state sovereign immunity protects states from suit by private persons in the states' own courts on federal causes of action).
7. Erwin Chemerinsky, Against Sovereign Immunity, 53 STAN. L. REV. 1201, 1201-03 (2001) ("The [sovereign immunity] doctrine conflicts with too many basic constitutional principles to survive.").
8. Daniel J. Meltzer, State Sovereign Immunity: Five Authors in Search of a Theory, 75 NOTRE DAME L. REV. 1011, 1067 (2000) ("[T]he Court's attempt to cling to conceptions of state sovereign immunity is not stable [and] history casts serious doubt on the capacity of the Court to stand against the current of the national political process in any sustained way."). But see id. ("Such a prediction... is more likely eventually to be proven correct if repeated with sufficient frequency.").
9. Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L. J. 1425, 1480 (1987).
10. See, e.g., Seminole Tribe v. Florida, 517 U. S. 44, 100 (1996) (Souter, J., dissenting, joined by Breyer and Ginsburg, JJ.);
11. id. at 76 (Stevens, J., dissenting);
12. Welch v. Tex. Dep't of Highways and Pub. Transp., 483 U. S. 468, 496 (1987) (Brennan, J., dissenting, joined by Marshall, Blackmun, and Stevens, JJ.).
13. See, e.g., Seminole Tribe, 517 U. S. at 68 (majority opinion) ("The dissent, to the contrary, disregards our case law in favor of a theory cobbled together from law review articles and its own version of historical events.");
14. Welch, 483 U. S. at 478-79 (majority opinion) ("Today, for the fourth time in little more than two years, four Members of the Court urge that we overrule Hans v. Louisiana and the long line of cases that has followed it. The rule of law depends in large part on adherence to the doctrine of stare decisis.... Despite these time-honored principles, the dissenters-on the basis of ambiguous historical evidence-would flatly overrule a number of major decisions of the Court, and cast doubt on others. Once again, the dissenters have placed in issue the fundamental nature of our federal system." (footnote and citations omitted)).
15. See Andrew B. Coan, Text as Truce: A Peace Proposal for the Supreme Court's Costly War over the Eleventh Amendment, 74 FORDHAM L. REV. 2511, 2518 (2006) ("The bottom line is this: The history of the Eleventh Amendment is fundamentally inconclusive.").
16. CLYDE E. JACOBS, THE ELEVENTH AMENDMENT AND SOVEREIGN IMMUNITY 160 (1972);
17. cf. David E. Engdahl, Book Review, 18 AM. J. LEGAL HIST. 256, 259 (1974) (reviewing JACOBS, supra) ("[A] somewhat more penetrating study would have demonstrated that the contemporary doctrine is indefensible also upon historical and legal grounds.").
18. Jackson, supra note 2, at 956.
19. Chemerinsky, supra note 6, at 1202.
20. Amar, supra note 8, at 1426 (asking also, "[i]s the way in which it constitutes political bodies at war with the legal rights that it constitutionalizes?").
21. THE FEDERALIST NO. 37, at 229-30 (James Madison) (Clinton Rossiter ed., 1961).
22. Id. at 230.
23. See id. ("Would it be wonderful if, under the pressure of all these difficulties, the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination?");
24. cf. THE FEDERALIST NO. 39 (James Madison), supra note 16, at 246 (noting that the proposed Constitution "is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national").
25. THE FEDERALIST NO. 39 (James Madison), supra note 16, at 245 ("On trying the Constitution by this criterion, it falls under the national not the federal character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps unavoidable in any plan....").
26. See infra Part I. B.
27. See John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 YALE L. J. 1663, 1735-36, 1749-50 (2004);
28. see also Randy E. Barnett, The People or the State?: Chisholm v. Georgia and Popular Sovereignty, 93 VA. L. REV. 1729, 1747 (2007) ("To interpret the Amendment more broadly than the language that was actually proposed and ratified is to run a serious risk of overriding the desires of either a majority or a potential ratification-blocking minority who would never have consented to a broader claim of state power.");
29. Jackson, supra note 2, at 1000 (arguing that the Eleventh Amendment should be treated as a "compromise or concession" rather than a "principle" because " [t] he precision and specificity of its language lend themselves to (though they do not compel) a narrow reading");
30. Lawrence C. Marshall, Fighting the Words of the Eleventh Amendment, 102 HARV. L. REV. 1342, 1353-56 (1989) (arguing that the Eleventh Amendment reads as if it "embod[ies] a balance between the competing values of state immunity from federal suit and accountability to the new federal system").
31. Manning, supra note 21, at 1750.
32. Even among those who accept this principle, however, there is no agreement on what the precise text of the Eleventh Amendment means. See Manning, supra note 21, at 1680-81 n. 68 (noting that both the diversity theory and the literal theory "represent a plausible reading of the Amendment's text");
33. Jackson, supra note 2, at 1000 n. 151 ("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.");
34. Marshall, supra note 21, at 1347-48 (arguing that diversity and congressional abrogation theories "completely... ignore the operative words of the amendment");
35. see also William A. Fletcher, The Diversity Explanation of the Eleventh Amendment: A Reply to Critics, 56 U. CHI. L. REV. 1261, 1276-78 (1989) ("The problem is that the text does not clearly mean what Professors Marshall and Massey think it does.");
36. Calvin R. Massey, State Sovereignty and the Tenth and Eleventh Amendments, 56 U. CHI. L. REV. 61, 115 (1989) ("[T]hose who construe the amendment as only a narrow limitation upon Article Ill's diversity jurisdiction are required to amend its text in order to deliver their desired meaning.").
37. THE FEDERALIST NO. 37 (James Madison), supra note 16, at 229.
38. Id.
39. U. S. CONST, art. Ill, § 2 (emphasis added).
40. See infra Part II. B; see also JACOBS, supra note 12, at 21 ("Textual analysis of various provisions of Article III, then, suggests contradictory answers as to whether the states were to retain immunity from suit by individuals; that is, the language of that provision, by itself, yields no answer.").
41. See, e.g., 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 527 (JONATHAN ELLIOT ED., PHILA., J. B. LIPPINCOTT CO. 2D ED. 1891) [HEREINAFTER ELLIOT'S DEBATES] (statement of George Mason) ("Is this state to be brought to the bar of justice like a delinquent individual? Is the sovereignty of the state to be arraigned like a culprit, or private offender? Will the states undergo this mortification?");
42. see also Martha A. Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. PA. L. REV. 515, 527-36 (1978) (examining the debates over the status of sovereign immunity when the Constitution was ratified) ;
43. William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033, 1045-54 (1983) (detailing the ratification debates, including alternative proposals for the state-citizen diversity clause of Article III);
44. Alfred Hill, In Defense of Our Law of Sovereign Immunity, 42 B. C. L. Rev. 485, 494 (2001) ("The debate among the leading statesmen of the time centered almost exclusively on whether the states, without their consent, were suable in the federal courts, in light of the provision in Article III extending the federal judicial power to controversies 'between a State' and Citizens of another State... and between a State... and foreign States, Citizens or Subjects.'" (alteration in original) (quoting U. S. Const, art. Ill, § 2, cl. !)).
45. See infra Part II. C; see also Alden v. Maine, 527 U. S. 706, 716 (1999) ("The leading advocates of the Constitution assured the people in no uncertain terms that the Constitution would not strip the States of sovereign immunity.");
46. Seminole Tribe v. Florida, 517 U. S. 44, 70-71 and n. 13 (1996) ("[W]hat is notably lacking in the Framers' statements is any mention of Congress' power to abrogate the States' immunity.");
47. Principality of Monaco v. Mississippi, 292 U. S. 313, 323-24 (1934) (explaining Madison's view that the purpose of the Eleventh Amendment was "to provide for adjudication in such cases if consent should be given but not otherwise");
48. Hans v. Louisiana, 134 U. S. 1, 12-14 (1890) (offering statements from Hamilton and Madison).
49. Chisholm v. Georgia, 2 U. S. (2 Dall.) 419, 452 (1793) (opinion of Blair, J.) ("[W]hen a State, by adopting the Constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty.");
50. id. at 476 (opinion of Jay, C. J.) ("If the Constitution really meant to extend these powers only to those controversies in which a State might be Plaintiff to the exclusion of those in which citizens had demands against a State, it is inconceivable that it should have attempted to convey that meaning in words, not only so incompetent, but also repugnant to it....").
51. See Hans, 134 U. S. at 11 (noting that Chisholm "created such a shock of surprise throughout the country that, at the first meeting of Congress thereafter, the eleventh amendment to the Constitution was almost unanimously proposed, and was in due course adopted by the legislatures of the states").
52. U. S. CONST, amend. XI ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.");
53. see also Gordon C. Post, Book Review, ANNALS AM. ACAD. POL. and SOC. SCI., Sept. 1973, at 206, 206 ("The Constitution being a document of many ambiguities-a source of its strength-one ambiguity was replaced with another.").
54. 2 U. S. (2 Dall.) 419 (1793).
55. Seminole Tribe, 517 U. S. at 72 (recognizing a "background principle of state sovereign immunity embodied in the Eleventh Amendment");
56. see also Blatchford v. Native Vill. of Noatak, 501 U. S. 775, 779 (1991) ("Despite the narrowness of its terms, since Hans v. Louisiana, we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty; and that a State will therefore not be subject to suit in federal court unless it has consented to suit...." (citations omitted));
57. Hill, supra note 28, at 489-90 ("[T]he Eleventh Amendment, in the cases to which it applies, is merely an embodiment of the original understanding underlying the Constitution....");
58. cf. Alden, 527 U. S. at 728 ("These holdings reflect a settled doctrinal understanding, consistent with the views of the leading advocates of the Constitution's ratification, that sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself." (citing Idaho v. Coeur d'Alene Tribe, 521 U. S. 261, 267-68 (1997))).
59. Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 HARV. L. REV. 1559, 1566 (2002) ("When given its most natural reading, the Eleventh Amendment creates a second type of sovereign immunity, which sounds in subject matter jurisdiction and which therefore cannot be waived.");
60. see also KARL SINGEWALD, THE DOCTRINE OF NON-SUABILITY OF THE STATE IN THE UNITED STATES 30 (1910) ("The effect [of the Eleventh Amendment] was just as if the judicial power had never been extended to such cases. It would seem clear, therefore, that consent of the States cannot confer jurisdiction. ") ;
61. William D. Guthrie, The Eleventh Article of Amendment to the Constitution of the United States, 8 COLUM. L. REV. 183, 188 (1908) ("[I]t is difficult to perceive how the consent or waiver of a State can, in any case and under any circumstances, confer upon the federal courts jurisdiction of a suit against it by a citizen of another State or a citizen or subject of a foreign State in the face of the imperative mandate of the amendment....");
62. cf. Employees of the Dep't of Pub. Health and Welfare v. Dep't of Pub. Health and Welfare, 411 U. S. 279, 321 (1973) (Brennan, J., dissenting) ("I had always supposed that jurisdictional power to entertain a suit was not capable of waiver and could not be conferred by consent.").
63. United States v. Union Gas Co., 832 F.2d 1343, 1354 (3d Cir. 1987), aff'd sub nom. Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989) ("The eleventh amendment reflects our system of checks and balances by limiting the power to abrogate sovereign immunity to the freely elected legislative branch, ");
64. JOHN HART ELY, DEMOCRACY AND DISTRUST 228 n. 89 (1980) ("[T]he Eleventh Amendment was intended merely to make clear that Article III did not by itself grant federal courts jurisdiction in cases where states were defendants, not to bar Congress from creating such jurisdiction. ") ;
65. Martha A. Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Congressional Imposition of Suit upon the States, 126 U. PA. L. REV. 1203, 1279 (1978) ("Historical materials suggest that the correct interpretation is that the established doctrine of sovereign immunity survived the adoption of the Constitution and of the eleventh amendment, but that the doctrine is not constitutionally required.");
66. see also John E. Nowak, The Scope of Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments, 75 COLUM. L. REV. 1413, 1422-30 (1975) (arguing that the history of Article III and the Eleventh Amendment reveals the Federalists' belief that Congress could abrogate sovereign immunity);
67. Laurence H. Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regulation: Separation of Powers Issues in Controversies About Federalism, 89 HARV. L. REV. 682, 693-99 (1976) (arguing that the congressional abrogation theory is "[t]he only satisfying reconciliation of the [Supreme Court] cases").
68. See Seminole Tribe, 517 U. S. at 110 (Souter, J., dissenting);
69. Welch v. Tex. Dep't of Highways and Pub. Transp., 483 U. S. 468, 497 (1987) (Brennan, J., dissenting);
70. Atascadero State Hosp. v. Scanlon, 473 U. S. 234, 259 (1985) (Brennan, J., dissenting) ("There simply is no constitutional principle of state sovereign immunity, and no constitutionally mandated policy of excluding suits against States from federal court.");
71. Amar, supra note 8, at 1475 ("The party alignments specified by the Eleventh Amendment would no longer provide an independent basis for jurisdiction (as they had in Chisholm), but the existence of such an alignment would not ourt jurisdiction that was independently grounded-for example, in federal question or admiralty cases.");
72. Fletcher, supra note 28, at 1130;
73. John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889, 2004 (1983) ;
74. Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 YALE LJ. 1, 44-51 (1988).
75. See Barnett, supra note 21, at 1743; Manning, supra note 21, at 1680 n. 68; Marshall, supra note 21, at 1346-47 8c n, 14. As noted, supra note 23, Manning explicitly reserves judgment as to whether the literalist or diversity reading is best-but his textualist methodology justifies his inclusion here. These authors might also appropriately be grouped with those in note 35, supra, since their textualist approach would presumably lead them to conclude that the Eleventh Amendment represents a mandatory limit on subject matter jurisdiction. Yet while Manning and Marshall consider the possibility that Eleventh Amendment immunity is not waivable, neither endorses the idea. See Manning, supra note 21, at 1745 n. 314; Marshall, supra note 21, at 1348 n. 26. More importantly, these authors ascribe to the Eleventh Amendment a negative implication, such that it exhaustively specifies the available classes of state sovereign immunity in federal court and displaces any residual authority to develop further jurisdictional sovereign immunity principles. See Barnett, supra note 21, at 1746; Manning, supra note 21, at 1723-24; Marshall, supra note 21, at 1347. This distinguishes their views from those of Nelson and Singewald, who argue that the Eleventh Amendment's nonwaivable immunity added to-but did not displace-an already extant waivable immunity acknowledged in Article III and incorrectly ignored by the Chisholm Court. See Nelson, supra note 34, at 1580-92. For Manning, Barnett, and Marshall, the Amendment represents a political decision on the extent to which states should be protected from suit, made against the legal baseline of Chisholm. See also Calvin R. Massey, State Sovereignty and the Tenth and Eleventh Amendments, 56 U. CHI. L. REV. 61, 65-67 (1989) (arguing that the Eleventh Amendment represents an " 'unflinchingly political'" decision "to create a party based denial of jurisdiction to the federal courts that sweeps across all the jurisdictional heads of Article III" and not a "broad grant of immunity" (quoting Gibbons, supra note 37, at 2003)).
76. See Coan, supra note 11, at 2511 ("Courts and commentators have debated the original meaning of the Eleventh Amendment for more than 100 years. This debate has a peculiar characteristic, however. It has paid remarkably little attention to the text of the Eleventh Amendment.").
77. Marshall, supra note 21, at 1353.
78. See John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2388, 2408-19 (2003) (discussing the intersection of modern textualism and public choice theory);
79. see also DANIEL A. FARBER and PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE 88-115 (1991) (examining possible applications of public choice theory to problems of statutory interpretation) ;
80. Frank H. Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev. 533, 544-47 (1983) [hereinafter Easterbrook, Statutes' Domains] (same) ;
81. Frank H. Easterbrook, The Court and the Economic System, 98 HARV. L. REV. 4, 15 (1984) [hereinafter Easterbrook, Economic System] (same) ;
82. William N. Eskridge, Jr., Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 VA. L. REV. 275, 276-77 (1988) (same) ;
83. William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 641-44 (1990) (same).
84. Manning, supra note 41, at 2408; see also Easterbrook, Statutes' Domains, supra note 41, at 547 ("Because legislatures comprise many members, they do not have 'intents' or 'designs, 'hidden yet discoverable. Each member may or may not have a design. The body as a whole, however, has only outcomes.").
85. See generally KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES 2-8 (2d ed. 1963) (introducing his theorem on "passing from a set of known individual tastes to a pattern of social decision-making");
86. WILLIAM N. ESKRIDGE, JR., DYNAMIC: STATUTORY INTERPRETATION 34-38 (1994) ("[E]ven text-based interpretation is hard to link up with majority preferences because there may be several equally plausible majoritybased preferences in the legislature.");
87. FARBER and FRICKEY, supra note 41, at 38-42 (discussing Arrow's Theorem);
88. AMARTVA K, SEN, COLLECTIVE CHOICE AND SOCIAL WELFARE 161-72 (1970) (discussing the problem of cyclical majorities).
89. Jerry L. Mashaw, The Economics of Politics and the Understanding of Public Law, 65 CHI.-KENT L. REV. 123, 126-27 (1989) ("[Arrovian public choice] suggests that the outcomes of collective decisions are probably meaningless because it is impossible to be certain that they are not simply an artifact of the decision process that has been used.").
90. Easterbrook, Statutes' Domains, supra note 41, at 547; see also Michael E. Levine and Charles R. Plott, Agenda Influence and Its Implications, 63 VA. L. REV. 561, 561 (1977) ("[T]here probably is no single nondictatorial method of aggregating the preferences of an electorate that will reliably produce a choice which satisfies minimal consistency and rationality standards.").
91. Easterbrook, Statutes' Domains, supra note 41, at 548 ("[W]hen logrolling is at work the legislative process is submerged and courts lose the information they need to divine the body's design. ").
92. Easterbrook, Economic System, supra note 41, at 15 ("One of the implications of modern economic thought is that many laws are designed to serve private rather than public interests.").
93. Manning, supra note 41, at 2411.
94. Manning, supra note 21, at 1689-90.
95. Hrubec v. Nat'l R. R. Passenger Corp., 49 F.3d 1269, 1270 (7th Cir. 1995).
96. Easterbrook, Economic System, supra note 41, at 46.
97. Id. at 15.
98. U. S. CONST. art. I, § 7.
99. Manning, supra note 41, at 2437.
100. Id. at 2392-93; see also Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION 3, 23-24 (Amy Gutmann ed., 1997) ("Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute.... A text should not be construed strictly, and it should not be construed leniendy; it should be construed reasonably, to contain all that it fairly means.... [T]he good textualist is not a literalist....").
101. Manning, supra note 41, at 2396-97; see also JEREMY WALDRON, LAW AND DISAGREEMENT 129 (1999) (arguing that legislatures approve statutory language on the assumption that "members of [the] community commonly use such words to produce a certain effect or response in their audience").
102. United States v. Kirby, 74 U. S. (7 Wall.) 482, 487 (1869);
103. see also Manning, supra note 41, at 2461-62 ("[UJnder a modern understanding of textual interpretation, dismissing the charges against [a] surgeon [in this situation] would comport with the ordinary meaning of the statute in context.").
104. Manning, supra note 41, at 2461-62 (noting that "a modern textualist... would place different glosses on the phrase 'drew blood' in different contexts");
105. see also Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J. L. and PUB. POL'Y 61, 61 (1994) ("Words take their meaning from contexts, of which there are many-other words, social and linguistic conventions, the problems the authors were addressing. Texts appeal to communities of listeners, and we use them purposively. The purposes, and so the meaning, will change with context, and over time.").
106. See Manning, supra note 41, at 2398 ("[T]he Court's plain meaning presumption is best understood as an evidentiary rule of thumb. Specifically, if a statutory text is clear by virtue of a perceived social consensus about the meaning of its words in context, that conventional meaning may supply the most reliable evidence of what a multimember legislative body collectively 'intended.'").
107. Id. at 2465.
108. Id. at 2470; see also WALDRON, supra note 56, at 129 n. 33 ("Legislation may also rely on certain quasi-linguistic conventions common to legislative draftsmen and the legal/judicial community.").
109. Manning, supra note 41, at 2465-66; see also Staples v. United States, 511 U. S. 600, 605 (1994) ("[W]e must construe the statute in light of the background rules of the common law, in which the requirement of some mens rea for a crime is firmly embedded." (citation omitted)).
110. Manning, supra note 41, at 2471; see also Wis. Dep't of Revenue v. William Wrigley, Jr. Co., 505 U. S. 214, 231 (1992) ("[T]he venerable maxim de minimis non curat lex ('the law cares not for trifles') is part of the established background of legal principles against which all enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept.").
111. See Harlow v. Fitzgerald, 457 U. S. 800, 806-07 (1982).
112. See, e.g., Richard A. Posner, Economics, Politics, and the Reading of Statutes and the Constitution, 49 U. CHI. L. REV. 263, 282 (1982) ("[Virtually everyone who writes on the question thinks that constitutional provisions should not be construed as strictly as statutory provisions."). But see Scalia, supra note 55, at 37 (noting that constitutional interpretation is distinctive "not because special principles of interpretation apply, but because the usual principles are being applied to an unusual text").
113. See McCulloch v. Maryland, 17 U. S. (4 Wheat.) 316, 407 (1819) (emphasis added).
114. U. S. CONST. art. V.
115. Manning, supra note 21, at 1718.
116. Henry Paul Monaghan, We the People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121, 129-30 (1996) ("Article V was a vital part of a larger design that ensured that, in the new constitutional order, the individual states would remain independent and important political communities, and that the terms of their union with one another could be altered only if substantial obstacles were overcome.").
117. See id. at 156 (noting Patrick Henry's observation that "a 'bare majority' in 'four small States' containing 'one-twentieth part of the American people'" might prevent constitutional amendment (quoting Patrick Henry, Remarks at the Virginia Convention (June 5, 1788), in 9 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 943, 956 (John P. Kaminski and Gaspare J. Saldino eds., 1984))).
118. Manning, supra note 21, at 1719.
119. Id. at 1701-02.
120. Id. at 1702 n. 143.
121. See U. S. Const, art. VII.
122. Manning, supra note 21, at 1702 ("Given the relevant similarity between Articles V and VII, I rely below on both the original provisions of the Constitution and its amendments to illustrate the role of compromise in reading constitutional texts.").
123. Id. at 1715 ("[I]t seems quite likely that the adoption of constitutional texts, like the enactment of statutes, entails bargaining and compromise over the reach and structure of the policy under consideration. "). "This conclusion holds, moreover, whether or not the text represents, at one extreme, a closely divided legislative vote over a matter of economic self-interest or, at the other, a broad social consensus over a question of high constitutional principle." Id. at 1715 n. 190.
124. Marshall, supra note 21, at 1353 (footnote omitted).
125. MAX FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES 201 (1913);
126. see also JACK N. RAKOVE, ORIGINAL MEANINGS 15 (1996) (characterizing the constitutional convention as "a process of bargaining and compromise" rather than an "advanced seminar in constitutional theory") ;
127. R. L. Schuyler, Agreement in the Federal Convention, 31 POL. SCI. Q. 289, 289 (1916) ("Every American schoolboy has learned about the 'compromises' of the Constitution, for they are set forth in every elementary text-book of American history.").
128. FARRAND, supra note 78, at 200-01; see also Max Farrand, Compromises of the Constitution, 9 AM. HIST. REV. 479, 482 (1904) ("[I]n that part of the plan of government which provided for the organization of a federal judiciary, the provision that 'Congress may... establish' inferior courts was phrased in this way to render it acceptable to those who favored the establishment of such courts, and to those who insisted that such tribunals would interfere with the rightful jurisdiction of the state courts" (quoting U. S. CONST. art. Ill, § 1));
129. cf. Michael C. Dorf, Legal Indeterminacy and Institutional Design, 78 N. Y. U. L. REV. 875, 933 n. 220 (2003) (describing "the public choice account of lawmaking, in which the law is rarely more than an incoherent bundle of compromises").
130. See WALDRON, supra note 56, at 124-29; see also Schuyler, supra note 78, at 289 (observing that many constitutional provisions "which are seemingly straightforward and artless rest in reality upon compromises, often labored and tortuous").
131. See, e.g., Frank H. Easterbrook, Textualism and the Dead Hand, 66 GEO. WASH. L. REV. 1119, 1125 (1998) ("The Constitution itself is not based on a unitary theory; the Framers did not share a single vision but reached a complex compromise.");
132. Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 861 (1989) (describing the Constitution as an imperfect "political compromise").
133. See Easterbrook, Economic System, supra note 41, at 16 ("One way to approach the problem is to ask whether the statute is specific or general. The more detailed the law, the more evidence of interest-group compromise and therefore the less liberty judges possess. General-interest statutes, on the other hand, are designed to vest discretion in courts, to transfer the locus of decision....").
134. Manning, supra note 21, at 1736.
135. See Scalia, supra note 55, at 37 (noting that" [i] n textual interpretation, context is everything, and the context of the Constitution" is distinctive).
136. See Jackson, supra note 2, at 997 ("Since the entire Constitution of 1787 was in a sense founded on compromises, the effort to distinguish among its provisions and associated amendments on such a basis fas the distinction between compromise and principle] may be one doomed to failure.").
137. And this understanding may depend, for that matter, on an original understanding of how Chisholm affected Article III. See infra Part III.
138. See Coan, supra note 11, at 2519 n. 52 ("Widely held political and philosophical presuppositions are often more significant determinants of meaning than dictionary definitions. Thus, especially in interpreting historically remote constitutional provisions, it makes little sense to accord text the kind of presumptive weight that Marshall and Manning argue for.").
139. See Jackson, supra note 2, at 998 ("Compromise is important; compromise between competing principles is often essential to constitution making and maintenance; security in enforcement of compromises may be important for future bargaining; and compromises may have become embedded in a legal landscape and require continued enforcement in order to promote stability and coherence.").
140. See, e.g., RAKOVE, supra note 78, at 6 ("Both the framing of the Constitution in 1787 and its ratification by the states involved processes of collective decision-making whose outcomes necessarily reflected a bewildering array of intentions and expectations, hopes and fears, genuine compromises and agreements to disagree.").
141. JOHN V. ORTH, THE JUDICIAL POWER OF THE UNITED STATES 28 (1987).
142. See Marshall, supra note 21, at 1346.
143. Gibbons, supra note 37, at 1895; see also ORTH, supra note 90, at 28 ("The safest course would seem to be to accept the plain meaning of the language used.");
144. Amar, supra note 8, at 1469 (calling the Chisholm Court's interpretation of Article III "impeccable");
145. Jackson, supra note 37, at 49 ("Chisholm was in all likelihood correctly decided as to the question of jurisdiction....").
146. Manning, supra note 41, at 2470.
147. Kent Greenawalt, How Law Can Be Determinate, 38 UCLA L. REV. 1, 10 (1990).
148. Manning, supra note 41, at 2468.
149. Brogan v. United States, 522 U. S. 398, 406 (1998).
150. Marshall, supra note 21, at 1347.
151. See, e.g., Coan, supra note 11, at 2534 (calling federal sovereign immunity "a doctrine with an impeccable historical pedigree that is very rarely questioned by courts").
152. THE FEDERALIST NO. 81 (Alexander Hamilton), supra note 16, at 487-88.
153. Id.
154. See, e.g., THE FEDERALIST NO. 9 (Alexander Hamilton), supra note 16, at 76 (arguing that the Constitution "leaves in [the states'] possession certain exclusive and very important portions of sovereign power");
155. THE FEDERALIST NO. 32 (Alexander Hamilton), supra note 16, at 198 ("[A]s the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.");
156. THE FEDERALIST NO. 39 (James Madison), supra note 16, at 245 ("[Federal] jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.").
157. See, e.g., Atascadero State Hosp. v. Scanlon, 473 U. S. 234, 302 (1985) (Brennan, J., dissenting) (characterizing state sovereign immunity as "an anachronistic and unnecessary remnant of a feudal legal system");
158. Chisholm v. Georgia, 2 U. S. (2 Dall.) 419, 454 (1793) (opinion of Wilson, J.) ("To the Constitution of the United States the term SOVEREIGN, is totally unknown. ");
159. Amar, supra note 8, at 1480 ("[T]he Supreme Court's vision of state sovereign immunity warps the very notion of government under law.");
160. Barnett, supra note 21, at 1758 ("If nothing else, Chisholm teaches that the concept of sovereignty as residing in the body of the people, as individuals, was alive at the time of the founding....");
161. Chemerinsky, supra note 6, at 1201 ("Sovereign immunity is an anachronistic relic and the entire doctrine should be eliminated from American law.").
162. See Nelson, supra note 35, at 1584 and n. 115.
163. Chisholm, 2 U. S. (2 Dall.) at 452 (opinion of Blair, J.) ("[W]hen a State, by adopting the Constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty.").
164. See THE FEDERALIST NO. 39 (James Madison), supra note 16, at 246.
165. Amar, supra note 8, at 1477.
166. Christopher T. Graebe, The Federalism of James Iredell in Historical Context, 69 N. C. L. REV. 251, 256 (1990).
167. Chisholm, 2 U. S. (2 Dall.) at 423 (argument of counsel).
168. Id. at 425.
169. Id. at 423.
170. Id. at 421-22.
171. Id. at 422.
172. Id. at 423 (emphasis added).
173. Id. at 421.
174. Id. at 449-50 (opinion of Iredell, J.) ("So far as this great question affects the Constitution itself, if the present afforded, consistently with the particular grounds of my opinion, a proper occasion for a decision upon it, I would not shrink from its discussion. But it is of extreme moment that no Judge should rashly commit himself upon important questions, which it is unnecessary for him to decide. My opinion being, that even if the Constitution would admit of the exercise of such a power, a new law is necessary for the purpose, since no part of the existing law applies, this alone is sufficient to justify my determination in the present case.").
175. Id. at 433.
176. See Manning, supra note 21, at 1689-90 (noting that textualists "emphasize that a seeming lack of fit may reflect the fruits of an unrecorded legislative compromise or the byproduct of complicated legislative bargaining, rather than a reflection of imprecisely expressed legislative intent").
177. James Iredell, Observations on "this great Constitutional Question" (Feb. 18, 1793), in 5 THE DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789-1800, at 186, 186-87 (Maeva Marcus ed., 1994) [hereinafter THE DOCUMENTARY HISTORY]. Iredell may have read this draft opinion from the bench. Id. at 186 n. AD. This source shows the original text and replicates Justice Iredell's editing marks on that text. The quotes from this source in this Article omit the editing marks; instead, the quotes reflect the final text Justice Iredell intended, as evidenced by his edits.
178. Id. at 188-89 (emphasis removed) (footnotes omitted).
179. Id. at 189-90 (fifth alteration in original) (emphasis removed) (footnotes omitted).
180. Id. at 191.
181. Id. at 190 (emphasis removed) (footnotes omitted). Note that Iredell, responding to Randolph's concern that states may violate individual rights, imagines that federal jurisdiction can only reach a "State doing injury to the Citizens of other States or Foreigners" and does not include citizens of their own states. Id.
182. Chisholm v. Georgia, 2 U. S. (2 Dall.) 419, 422 (1793) (argument of counsel).
183. Hrubec v. Nat'l R. R. Passenger Corp., 49 F.3d 1269, 1270 (7th Cir. 1995).
184. Iredell, supra note 118, at 190.
185. Chisholm, 2 U. S. (2 Dall.) at 419, 420-21.
186. See 3 ELLIOT'S DEBATES, supra note 28, at 533 (statement of James Madison) (arguing that jurisdiction "will not go beyond the cases where they may be parties");
187. Charles Jarvis's Speech in the Massachusetts House of Representatives, INDEP. CHRON. (Boston), Sept. 23, 1793, reprinted in 5 THE DOCUMENTARY HISTORY, supra note 118, at 436, 437 ("Is it not then most natural to infer, that the Constitution was not intended to create occasions upon which its power was to be exerted, but to operate simply upon those which had an actual existence.").
188. Nelson, supra note 35, at 1565-66.
189. Manning, supra note 41, at 2393.
190. ARTICLES OF CONFEDERATION art. IX, cl. 2 (U. S. 1781);
191. see also 3 ELLIOTS DEBATES, supra note 28, at 532 (statement of James Madison) ("The next case, where two or more states are the parties, is not objected to. Provision is made for this by the existing Articles of Confederation, and there can be no impropriety in referring such disputes to this tribunal."). Suits between sovereignties also seem to have been understood differently than suits by individuals against sovereigns. See, e.g., Letter from James Madison to Spencer Roane (May 6, 1821), in 3 LETTERS AND OTHER WRITINGS of JAMES MADISON 217, 221 (Phil., J. B. Lippincott and Co. 1865) (expressing wonder that the Supreme Court determined that "the dignity of a State was not more compromitted by being made a party against a private person than against a co-ordinate Party").
192. Chisholm, 2 U. S. (2 Dall.) at 423 (argument of counsel).
193. Id. at 449-50 (opinion of Iredell, J.).
194. See supra notes 107-14 and accompanying text.
195. See, e.g., 3 ELLIOT'S DEBATES, supra note 28, at 533 (statement of James Madison) ("A subject of a foreign power, having a dispute with a citizen of this state, may carry it to the federal court; but an alien enemy cannot bring suit at all.").
196. See JACOBS, supra note 12, at 21.
197. In an analogous case, the Court has inferred that "the jurisdiction conferred by the constitution upon this court, in cases to which a state is a party, is limited to controversies of a civil nature" not only from the use of "cases" and "controversies" as terms of art, but also from the background common law doctrine that one state does not enforce the penal law of a foreign state. Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 287-89, 297 (1888) (holding that "notwithstanding the comprehensive words of the constitution, the mere fact that a state is the plaintiff is not a conclusive test that the controversy is one in which this court is authorized to grant relief against another state or her citizens" and that the grant of "judicial power" is limited by "settled principles of public and international law");
198. see also Huntington v. Attrill, 146 U. S. 657, 666 (1892) (citing "the fundamental maxim of international law... 'The courts of no country execute the penal laws of another'"). Pelican has been partially overruled on the grounds that "the obligation to pay taxes is not penal." Milwaukee County v. M. E. White Co., 296 U. S. 268, 271 (1935). See generally Anthony J. Belliajr., Congressional Power and State Court Jurisdiction, 94 Geo. L. J. 949, 961 (2006) (discussing the "sovereign prerogative of a state to exclusively enforce its own penal laws").
199. In addition to the assumptions of modern textualism, Iredell's reading could be justified by reference to rules of construction given by the Ninth and Tenth Amendments. See Kurt T. Lash, A Textual-Historical Theory of the Ninth Amendment, 60 STAN. L. REV. 895, 919 (2008) ("Embedded in text of the Ninth, thus, are two separate forbidden rules of construction: First, the fact of enumeration must not be read to imply the necessity of enumeration. Second, the fact of enumeration must not be read to suggest the superiority of enumeration. ").
200. Marshall, supra note 21, at 1346.
201. See Manning, supra note 21, at 1690; Marshall, supra note 21, at 1353-54.
202. See, e.g., Alden v. Maine, 527 U. S. 706, 716-18 (1999) (citing Hamilton, Madison, and Marshall as evidence of the importance of state sovereign immunity to the ratification of the Constitution);
203. Seminole Tribe v. Florida, 517 U. S. 44, 70-71 and n. 13 (1996) (citing Madison and Hamilton as evidence of the intent to include state sovereign immunity in the Constitution);
204. Monaco v. Mississippi, 292 U. S. 313, 323-24 (1934) (outlining the clear intentions of Hamilton, Madison, and Marshall with regard to sovereign immunity);
205. Hans v. Louisiana, 134 U. S. 1, 12-14 (1890) (same).
206. THE FEDERALIST NO. 81 (Alexander Hamilton), supra note 16, at 487-88 ("It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal.").
207. 3 ELLIOT'S DEBATES, supra note 28, at 533 (statement of James Madison) (emphasis added).
208. Id.
209. Id. at 555-56 (statement of John Marshall) (emphasis added).
210. Id. at 557.
211. Gibbons, supra note 37, at 1906.
212. Jackson, supra note 37, at 47.
213. Marshall, supra note 21, at 1371.
214. Manning, supra note 21, at 1674.
215. Id. at 1674 n. 42.
216. See supra note 100 and accompanying text.
217. See RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION 98-99 (2004) (explaining that the "public meaning of the words of the Constitution, as understood by the ratifying conventions and the general public" should prevail over the intentions of the framers);
218. Scalia, supra note 55, at 38 (explaining that the writings of framers are probative as indications of original understanding, not of intent).
219. Manning, supra note 21, at 1671.
220. Id. at 1702 n. 143.
221. Cf. id. at 1720 ("At a minimum, before ascribing a broader legally effective intention to the carefully drawn language of the Eleventh Amendment, the Court must ask whether it is conceivable that one-third of either house (or, less likely, onequarter of the state legislatures) might have preferred the narrower immunity embedded in the text.").
222. Monaghan, supra note 69, at 148-49 (some alterations in original) (emphasis added) (footnotes omitted) (internal quotation marks omitted).
223. HERBERT J. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR 12 (Murray Dry ed., 1981).
224. See supra note 18.
225. Herbert J. Storing, The'Other'Federalist Papers: A Preliminary Sketch, in TOWARD A MORE PERFECT UNION 77, 84-85 (Joseph M. Bessette ed., 1995).
226. CATHY D. MATSON and PETER S. ONUF, A UNION OF INTERESTS 101 (1990).
227. STORING, supra note 157, at 33.
228. See Amar, supra note 8, at 1426-27; cf. Alden v. Maine, 527 U. S. 706, 751 (1999) (noting that the Constitution "'split[] the atom of sovereignty'" (quoting Saenz v. Roe, 526 U. S. 489, 504 n. 17 (1999)));
229. Texas v. White, 74 U. S. (7 Wall.) 700, 725 (1869) ("[T]he preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government.").
230. JACOBS, supra note 12, at 32.
231. Monaghan, supra note 69, at 149 n. 154.
232. JACOBS, supra note 12, at 30.
233. 1 ELLIOT'S DEBATES, supra note 28, at 327-29.
234. Id. at 329.
235. Id.
236. Id. at 336.
237. The Virginia amendment read:
238. That the judicial power of the United States shall be vested in one Supreme Court, and in such courts of admiralty as Congress may from time to time ordain and establish in any of the different states. The judicial power shall extend to all cases in law and equity arising under treaties made, or which shall be made, under the authority of the United States; to all cases affecting ambassadors, other foreign ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, and between parties claiming lands under the grants of different states. In all cases affecting ambassadors, other foreign ministers, and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction; in all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, as to matters of law only, except in cases of equity, and of admiralty, and maritime jurisdiction, in which the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations, as the Congress shall make: but the judicial power of the United States shall extend to no case where the cause of action shall have originated before the ratification of the Constitution, except in disputes between states about their territory, disputes between persons claiming lands under the grants of different states, and suits for debts due to the United States.
239. id. at 660-61; see also 4 id. at 246 (detailing North Carolina's amendment which had minor, nonsubstantive differences).
240. JACOBS, supra note 12, at 38.
241. According to St. George Tucker, Massachusetts and New Hampshire also proposed amendments "dissent [ing]" from state suability, ST. GEORGE TUCKER, View of the Constitution of the United States, in BLACKSTONES COMMENTARIES app. at 352 and n. (St. George Tucker ed., Phila., William Young Birch and Abraham Small 1803), but the text of these amendments seems to have been lost. See Fletcher, supra note 28, at 1052 n. 78.
242. Brutus, INDEP. CHRON. (Boston), July 18, 1793, at 1, reprinted in 5 THE DOCUMENTARY HISTORY, supra note 118, at 392, 392 (noting that the possibility of suits against states by individuals "was apprehended by many of the Members of the Massachusetts Convention, when deliberating on that very clause of the Federal Constitution, respecting the judiciary power, but which apprehensions were said to be groundless by the advocates of the Constitution, and the jealousies of the Members on that subject, were laughed at, and treated as ridiculous by KING and others");
243. Democrat, MASS. MERCURY (Boston), July 23, 1793, at 1, reprinted in 5 THE DOCUMENTARY HISTORY, supra note 118, at 393, 393 ("In convention, when the Federal Constitution was discussed, some of the members who had discernment to discover, and honesty to expose the art used, by the constructors thereof, to gild over an article, which at once destroys the SOVEREIGNTY of the states, and renders them no more than corporate towns. A great civilian rose; and, in an harangue, of two hours length, endeavoured to prove that, the article in debate, could not possibly bear the construction put upon it by gendemen...." (footnotes omitted));
244. Marcus, MASS. MERCURY (Boston), July 16, 1793, at 1, reprinted in 5 THE DOCUMENTARY HISTORY, supra note 118, at 389, 389 ("The power which the Federal Government has, to call into their Courts, a Commonwealth or a State, to answer to the demand of a foreigner... was powerfully opposed in the Convention of this and other Commonwealths and States in the Union. It was debated in our Convention with great strength and propriety.... This power in the Federal Government, would not have been consented to by this commonwealth, but for Rufus King. Esq. who 'pledged his honour, 'in the State Convention, 'that the Convention at Philadelphia never discovered a disposition to infringe on the Government of an individual State....'" (quoting Senator Rufus King));
245. A Republican, The Crisis, No. XIII, INDEP. CHRON., July 25, 1793, at 2, reprinted in 5 THE DOCUMENTARY HISTORY, supra note 118, at 395, 396 ("Every person that attended the debates, knows that this question was agitated in the Convention, and that it was treated as a visionary, antifederal idea; and that both parties mutually and cordially consented, that the 'suability' of the States was not contemplated by the framers of the Constitution; that it never could be exercised, and in fact could never bear that construction. ").
246. Marcus, supra note 173, at 389-90.
247. See JACOBS, supra note 12, at 28 ("In at least six states-Pennsylvania, Massachusetts, Virginia, New York, North Carolina, and Rhode Island-the provision received attention. "). Records of the Pennsylvania convention only contain one speech-by James Wilson-on state suability rather than extended debate. See 2 ELLIOT'S DEBATES, supra note 28, at 515-45 (statement of James Wilson at the Pennsylvania ratifying convention on December 11, 1787). For New Hampshire, where one would also expect such a debate, there are almost no records of the convention; only one speech from the New Hampshire convention has been preserved. See Monaghan, supra note 69, at 151 n. 173.
248. SINGEWALD, supra note 35, at 18; see also JAMES SULLIVAN, OBSERVATIONS UPON THE GOVERNMENT OF THE UNITED STATES OF AMERICA (1791), reprinted in 5 the DOCUMENTARY HISTORY, supra note 118, at 21, 22 ("[T]here were great difficulties, in the minds of many, respecting the construction of the judiciary powers contained in the system then offered to the public. There were, however, men of learning and ingenuity, who gave that part of the Constitution a construction which made many easy with it. It seemed then to be agreed, that the states, as states, were not liable to the civil process of the supreme judicial of the Union....");
249. Letter from an Anonymous Correspondent, INDEP. CHRON. (Boston), Apr. 4, 1793, at 2, reprinted in 5 THE DOCUMENTARY HISTORY, supra note 118, at 228, 228 ("When the persons in opposition to the acceptance of the new Constitution hinged on the article respecting the power of the Judiciary Department being so very extensive and alarming as to comprehend even the State itself, as a party on an action of debt; this was denied perem[p]torily by the Federalists, as an absurdity in terms.").
250. Article VII, of course, does not give New York or Virginia, on their own, a right of veto. But their importance further explains the Federalists' strategic behavior in insisting that state sovereign immunity was implicit in Article III.
251. JACOBS, supra note 12, at 28.
252. Manning, supra note 21, at 1721.
253. SINGEWALD, supra note 35, at 18-19.
254. See supra notes 156-61 and accompanying text. Some Federalists and Framers advanced a state sovereignty view even in conventions that were not highly contentious. See, e.g., 2 ELLIOT'S DEBATES, supra note 28, at 197 (statement of Oliver Elsworth) (arguing before the Connecticut ratifying convention that "[t]his Constitution does not attempt to coerce sovereign bodies, states, in their political capacity" but "acts only upon delinquent individuals"). Ellsworth's view echoes Iredell's notion that laws of the United States operate "upon Individuals and not States." See supra note 122 and accompanying text; see also Letter from James Madison to Spencer Roane, supra note 130, at 222 ("It is particularly incumbent, in taking cognizance of cases arising under the Constitution, and in which the laws and rights of the States may be involved, to let the proceedings touch individuals only."). Iredell, too, was a Federalist and supporter of the Constitution.
255. MATSON and ONUF, supra note 160, at 101.
256. Manning, supra note 21, at 1694.
257. Id. at 1736.
258. See, e.g., Carter v. Carter Coal Co., 298 U. S. 238, 296 (1936) ("It is safe to say that if, when the Constitution was under consideration, it had been thought that any such danger lurked behind its plain words, it would never have been ratified.").
259. James Wilson's speech at the Pennsylvania convention is sometimes taken to be a rare example of a Federalist advancing the suability view of Article III, see, e.g., Gibbons, supra note 37, at 1902-03, but-whatever he may have thought about the question-that's not what he says. Wilson only praises the Article for providing a neutral forum for disputes between states and citizens of other states; he does not say which such disputes can arise. 2 ELLIOT'S DEBATES, supra note 28, at 491 ("Impartiality is the leading feature in this Constitution; it pervades the whole. When a citizen has a controversy with another state, there ought to be a tribunal where both parties may stand on a just and equal footing.");
260. cf. Fletcher, supra note 28, at 1051 (arguing that Wilson's "words are probably best understood as referring only to the neutrality of the federal forum, for he made no reference to the clause imposing liability on an unwilling state"). Edmund Randolph seems to be the only advocate of ratification publicly to contemplate Article III as authorizing compulsive suits by individuals against states. See, e.g., Rogers M. Smith, Constructing American National Identity: Strategies of the Federalists, in FEDERALISTS RECONSIDERED 19, 27 (Doron Ben-Atar and Barbara B. Oberg eds., 1998) (stating that Randolph and Wilson "urged ratification while arguing for the suability of the states").
261. See supra notes 175-76 and accompanying text.
262. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. and Constr. Trades Council, 485 U. S. 568, 585 (1988) ("'We have often cautioned against the danger, when interpreting a statute, of reliance upon the views of its legislative opponents. In their zeal to defeat a bill, they understandably tend to overstate its reach. The fears and doubts of the opposition are no authoritative guide to the construction of legislation. It is the sponsors that we look to when the meaning of the statutory words is in doubt.'" (quoting NLRB v. Fruit and Vegetable Packers and Warehousemen, Local 760 (Tree Fruits), 377 U. S. 58, 66 (1964) (internal quotation marks omitted))).
263. Cf. Manning, supra note 41, at 2465-66 ("[M]odern textualists unflinchingly rely on legal conventions that instruct courts, in recurrent circumstances, to supplement the bare text with established qualifications designed to advance certain substantive policies. For example, in the absence of clear congressional direction to the contrary, textualists read mens rea requirements into otherwise unqualified criminal statutes because established judicial practice calls for interpreting such statutes in light of common law mental state requirements.").
264. See Nelson, supra note 35, at 1565-67.
265. This may have been a relatively recent idea. See Graebe, supra note 107, at 257 ("That Hamilton and the Virginia delegates presupposed the sovereign immunity of the states prior to the Constitution is remarkable in light of the scant historical justification for such a belief.").
266. See supra note 170. The contemplation of compulsive suits is apparent if one assumes that "a State shall be a Party" means either plaintiff or defendant, which is what the author of the amendment, George Mason, purported to believe in the context of Article III. But cf. Ex parte New York, 256 U. S. 490, 494 (1921) (applying state sovereign immunity to admiralty proceedings).
267. See Cass R. Sunstein, Incompletely Theorized Agreements, 108 HARV. L. REV. 1733, 1739 (1995) (arguing that "people who accept the principle need not agree on what it entails in particular cases" and vice versa).
268. See Letter from James Madison to Spencer Roane, supra note 130, at 222 ("A liberal and steady course of practice can alone reconcile the several provisions of the Constitution literally at variance with each other....");
269. THE FEDERALIST NO. 37 (James Madison), supra note 16, at 229 ("All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.").
270. 19 U. S. (6 Wheat.) 264 (1821).
271. Manning, supra note 21, at 1723.
272. Id. at 1731.
273. Id. at 1732-33.
274. Id. at 1725. In a footnote, Manning quotes one commentator as saying that the canon " 'properly applies only when in the natural association of ideas in the mind of the reader that which is expressed is so set over by way of strong contrast with that which is omitted that the contrast enforces the affirmative inference.'" Id. at 1725 n. 229 (quoting EARL T. CRAWFORD, THE CONSTRUCTION OF STATUTES 337 (1940)).
275. Id. at 1743.
276. See, e.g., Chisholm v. Georgia, 2 U. S. (2 Dall.) 419, 450-51 (opinion of Blair, J-).
277. Manning, supra note 21, at 1743-44. ("Although Chisholm's facts presented the discrete question whether one could bring a diversity action against a state, the majority opinions reasoned that such suits were permissible because state sovereign immunity had simply not survived the adoption of Article III.... With the issue so framed, a reasonable person would likely have thought of the problem of diversity jurisdiction against states as part and parcel of the larger question of state immunity against Article III jurisdiction more generally.").
278. Id. at 1744.
279. Id. at 1746-47 (second alteration in original) (citations omitted) (quoting state resolutions).
280. See supra Part II. B.
281. Compare Manning, supra note 41, at 2472 n. 312 ("[T]he absurdity doctrine stands in sharp contrast to the more specific and tailored conventions, such as reading established defenses into criminal statutes or applying equitable tolling principles to statutes of limitations. Although those background conventions (like all legal constructs) leave judges with more or less discretion, they at least provide some sense of the range of possibilities and the framework for choosing among them."), with Manning, supra note 21, at 1745 n. 314 ("Given Chisholm's broad reasoning, a reasonable person reading the Amendment's text might well have understood it as a response to the more inclusive question defined by the Court's majority opinions.").
282. John P. Kelsh, The Opinion Delivery Practices of the United States Supreme Court 1790-1945, 77 WASH. U. L. Q. 137, 139 (1999).
283. See A Citizen of the United States, NATL GAZETTE (Phila.), Aug. 10, 1793, at 326, reprinted in 5 the DOCUMENTARY HISTORY, supra note 118, at 231, 232 ("A large pamphlet, price 50 cents, was made of [the opinions], and claimed as a copyright.: Whereas they ought to have been public property, that they might be published in a six-penny pamphlet, and in all the news-papers, in order that the great body of citizens might be informed.").
284. Id. at 232 n. 1 (editorial note indicating that Chief Justice Jay's opinion appeared in Philadelphia's Gazette of the United States in August 1793);
285. see also Veritas, COLUMBIAN CENTINEL (Boston), July 17, 1793, at 1, reprinted in 5 THE DOCUMENTARY HISTORY, supra note 118, at 390, 391 n. l (noting that Justice Cushing's opinion appeared in Boston's Columbian Centinel in July 1793).
286. A Citizen of the United States, supra note 208, at 232.
287. Peter M. Tiersma, The Textualization of Precedent, 82 NOTRE DAME L. REV. 1187, 1225 (2007).
288. See, e.g., Raffles v. Wichelhaus (The Peerless Case), (1864) 159 Eng. Rep. 375, 376 (Exch. Div.) ("There must be judgement for the defendants[.]").
289. Tiersma, supra note 211, at 1216 (omission in original) (quoting Arthur L. Goodhart, Determining the Ratio Decidendi of a Case, 40 YALE L. J. 161, 165, 167 (1930)).
290. Id. at 1223. During Chisholm, Justice Iredell took notes on his colleagues' opinions as they read them, implying he lacked access to any authoritative text. See James Iredell, Notes on the Justices' Opinions, in 5 THE DOCUMENTARY HISTORY, supra note 118, at 214, 214-17.
291. Kelsh, supra note 207, at 143.
292. Tiersma, supra note 211, at 1227.
293. Id. at 1232.
294. See, e.g., Bas v. Tingy, 4 U. S. (4 Dall.) 37, 43 (1800) (opinion of Chase, J.) ("The Judges agreeing unanimously in their opinion, I presumed that the sense of the Court would have been delivered by the president; and therefore, I have not prepared a formal argument on the occasion. ");
295. Georgia v. Brailsford, 2 U. S. (2 Dall.) 415, 417-18 (1793) (opinion of Blair, J.) ("My sentiments have coincided, 'till this moment, with the sentiments entertained by the majority of the Court; but a doubt has just occurred, which I think it my duty to declare.");
296. Georgia v. Brailsford, 2 U. S. (2 Dall.) 402, 407 (1792) (opinion of Wilson, J.) ("I confess that I have not been able to form an opinion which is perfecdy satisfactory to my own mind, upon the points that have been discussed.").
297. Resolution of the Massachusetts General Court (Sept. 27, 1793), reprinted in 5 THE DOCUMENTARY HISTORY, supra note 118, at 440, 440.
298. See Proceedings of a Joint Session of the New Hampshire General Court (Jan. 23, 1794), reprinted in 5 THE DOCUMENTARY HISTORY, supra note 118, at 618, 618 (calling on the state's senators and representatives to procure "such amendments in the Constitution of the United States, as to prevent the possibility of a construction which may justify a decision that a State is compellable to the suit of an individual or individuals in the Courts of the United States");
299. Resolution of North Carolina General Assembly (Jan. 11, 1794), reprinted in 5 THE DOCUMENTARY HISTORY, supra note 118, at 615, 615 (calling on the state's senators and representatives to "obtain such amendments in the Constitution of the United States as will remove or explain any clause or article of the said Constitution which can be construed to imply or justify... a decision that a State is compellable to answer in any suit by an individual or individuals in any Court of the United States");
300. Proceedings of the Maryland House of Delegates (Dec. 27, 1793), reprinted in 5 THE DOCUMENTARY HISTORY, supra note 118, at 611, 611 (calling on the state's senators and representatives to seek such amendments "as will remove any part of the said constitution which can be construed to justify a decision that a state is compellable to answer in any suit by an individual or individuals in any court of the United States");
301. Proceedings of the Virginia House of Delegates (Nov. 28, 1793), reprinted in 5 THE DOCUMENTARY HISTORY, supra note 118, at 338, 338-39 (calling for "such amendments in the
302. Resolution of the Connecticut General Assembly (Oct. 29, 1793), reprinted in 5 THE DOCUMENTARY HISTORY, supra note 118, at 609, 609 (requesting that its congressional delegation secure "an alteration of the Clause or Article in the Constitution of the United States on which the decision of the said Supreme Court, is supposed to be founded so that in future no State can on any Construction be held liable to any such Suit, or to make answer in any Court, on the Suit, of any Individual or Individuals whatsoever").
303. Proceedings of the Virginia House of Delegates, supra note 220, at 338 (footnote omitted).
304. Resolution of North Carolina General Assembly, supra note 220, at 615.
305. Proceedings of the Georgia House of Representatives, AUGUSTA CHRON., Dec. 14, 1792, reprinted in 5 THE DOCUMENTARY HISTORY, supra note 118, at 161, 161-62 (emphasis added).
306. Id. at 162.
307. U. S. CONST. amend. XI ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." (emphasis added)).
308. Manning, supra note 21, at 1744.
309. The New York, South Carolina, and Pennsylvania legislatures drafted resolutions expressing similar ideas, but were stalled by disagreements over wording and procedural factors. See JACOBS, supra note 12, at 65.
310. See supra note 55 and accompanying text.
311. Manning, supra note 21, at 1744.
312. Resolution of the Massachusetts General Court, supra note 219, at 440.
313. Manning, supra note 21, at 1743 (citing W. Va. U. Hosps., Inc. v. Casey, 499 U. S. 83, 98-99 (1991)).
314. Id. at 1748.
315. See supra Part II. B.
316. See Chisholm v. Georgia, 2 U. S. (2 Dall.) 419, 451 (1793) (opinion of Blair, J.) ("After describing, generally, the judicial powers of the United States, the Constitution goes on to speak of it distributively, and gives to the Supreme Court original jurisdiction, among other instances, in the case where a State shall be a party, but is not a State a party as well in the condition of a Defendant as in that of a Plaintiff? And is the whole force of that expression satisfied by confining its meaning to the case of a Plaintiff-State? It seems to me, that if this Court should refuse to hold jurisdiction of a case where a State is Defendant, it would renounce part of the authority conferred, and, consequently, part of the duty imposed on it by the Constitution; because it would be a refusal to take cognizance of a case where a State is a party.").
317. See Nelson, supra note 35, at 1603-04 ("It may have seemed natural for an amendment responding to Chisholm to address the very grants of subject matter jurisdiction on which members of the Chisholm majority had relied.").
318. See supra note 130 and accompanying text.
319. 3 ELLIOT'S DEBATES, supra note 28, at 533 (statement of James Madison) ("It is not in the power of individuals to call any state into court."). But see supra note 100 and accompanying text.
320. See supra note 181.
321. See Seminole Tribe v. Florida, 517 U. S. 44, 69-70 (1996) (" [I] n light of the fact that the federal courts did not have federal-question jurisdiction at the time the Amendment was passed (and would not have it until 1875), it seems unlikely that much thought was given to the prospect of federal-question jurisdiction over the States.").
322. Manning, supra note 21, at 1732.
323. Id. at 1691.
324. See Sunstein, supra note 193, at 1735-38; see also supra notes 50-52 and accompanying text (discussing the use of compromises in lawmaking and judicial action).
325. See Marshall, supra note 21, at 1354.
326. Cohens v. Virginia, 19 U. S. (6 Wheat.) 264, 406 (1821).
327. Id.
328. Marshall, supra note 21, at 1354.
329. ARTICLES OF CONFEDERATION art. IX, cl. 2 (U. S. 1781).
330. See, e.g., 3 ELLIOT'S DEBATES, supra note 28, at 532 (statement of James Madison) ("The next case, where two or more states are the parties, is not objected to. Provision is made for this by the existing Articles of Confederation, and there can be no impropriety in referring such disputes to this tribunal.").
331. See supra notes 219-24 and accompanying text; see also Letter from James Madison to Spencer Roane, supra note 130, at 221 ("Nor is it less to be wondered at that it should have appeared to the court that the dignity of a State was not more compromitted by being made a party against a private person than against a co-ordinate party.").
332. See supra note 55 and accompanying text.
333. Marshall, supra note 21, at 1355.
334. JACOBS, supra note 12, at 70. See generally id. at 69-72 (evaluating the statedebts explanation of the adoption of the Eleventh Amendment).
335. Id. at 69.
336. Id.
337. Id.
338. Id. (footnote omitted).
339. See id. at 70.
340. See Marshall, supra note 21, at 1363-64.
341. Id. at 1364 n. 99.
342. See supra note 170.
343. 3 ELLIOT'S DEBATES, supra note 28, at 527 (statement of George Mason).
344. Marshall, supra note 21, at 1364 (alteration in original).
345. Id. at 1346.
346. Id. at 1367.
347. Id. (alteration in original) (footnotes omitted) (quoting THE FEDERALIST NO. 80 (Alexander Hamilton), supra note 16, at 475-76; id. at 476).
348. Id. (quoting THE FEDERALIST NO. 80 (Alexander Hamilton), supra note 16, at 476);
349. see also supra notes 122-24 and accompanying text.
350. Marshall, supra note 21, at 1369-70.
351. See supra notes 219-24 and accompanying text.
352. Letter from Samuel Adams to the Governors of the States (Oct. 9, 1793), in 5 THE DOCUMENTARY HISTORY, supra note 118, at 442, 442 (emphasis omitted).
353. Proceedings of the Georgia House of Representatives, supra note 223, at 162.
354. Id. at 161.
355. Report of a Joint Committee of the Massachusetts General Court, INDEP. CHRON. (Boston), June 27, 1793, at 2, in 5 THE DOCUMENTARY HISTORY, supra note 118, at 230, 230 (alteration in original) (emphasis omitted).
356. But see Marshall, supra note 21, at 1368-69 (addressing the charge "that preserving federal jurisdiction to promote state accountability is anachronistic").
357. Id. at 1345.
358. See supra notes 39-40 and accompanying text.
359. Cf. David P. Currie, Sovereign Immunity and Suits Against Government Officers, 1984 SUP. CT. REV. 149, 168 ("Sovereign immunity is an unattractive doctrine that does not belong in an enlightened constitution. Unfortunately, however, it is a part of ours.").
360. S. Pac. Co. v. Jensen, 244 U. S. 205, 222 (1917) (Holmes, J., dissenting).