Justice Stevens is one of the most famous and persistent critics of the Supreme Court’s broad view of state sovereign immunity. So it was no surprise when his 2014 book Six Amendments proposed a constitutional amendment on this subject. Yet there is something quite surprising about Stevens’s proposal: if read according to its terms, it might not have any significant effect at all. Exploring this possibility turns out to be an interesting way of testing our intuitions about text and purpose in this area.
The story of state sovereign immunity typically starts with Chisholm v. Georgia and the Eleventh Amendment. Chisholm was an early Supreme Court decision that rejected an assertion of state sovereign immunity, and supporters of the Eleventh Amendment sought to override that unpopular holding. Here’s the Amendment’s text:
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.
On its face, this text addresses only those unusual lawsuits that arise between a citizen of one state and a separate state altogether. Acknowledging that textual point, the justices have repeatedly said that “we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms.”
But how can a “presupposition” qualify as law?
Professor Stephen Sachs recently suggested a possible answer to that question as part of his account of constitutional “backdrops.” To summarize, Sachs posits the following basic chronology:
- Before the Constitution, the would-be founders recognized a settled legal principle of sovereign immunity derived from British law.
- The Constitution changed many aspects of the law, but it didn’t reject the preexisting principle of sovereign immunity.
- Whatever else it did, the Eleventh Amendment didn’t reject the preexisting principle of sovereign immunity.
Given all that, sovereign immunity continues to be the law. And while the Constitution may have empowered Congress to eliminate sovereign immunity, any such claim must rest on the proper understanding of Congress’s legislative powers. (For details, see Sachs’s paper.)
Now consider Justice Stevens’s proposed amendment on sovereign immunity:
Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.
By its terms, this proposed amendment addresses whether “any . . . provision” of the Constitution “provide[s]” sovereign immunity.
But if we assume that state sovereign immunity is a “presupposition” or a “backdrop” principle, then it could very well be the law even though no provision of the Constitution provides for it. True, Justice Stevens’s proposal would override all textual forms of state sovereign immunity, but it would ironically leave atextual varieties intact.
Now, at this point you’re bound to object: the entire point of Justice Stevens’s proposal is to override the Court’s state sovereign immunity decisions, so how could anyone possibly read Stevens’s proposal as having failed to achieve that goal?
That’s a very fair question—but it has interesting implications.
Apart from Sachs’s “backdrop” view, another standard argument for state sovereign immunity is that the people who enacted the Eleventh Amendment expressly intended to restore the broad doctrine of sovereign immunity rejected in Chisholm. In parrying that purposive argument, many judges and constitutional scholars have argued in part that unenacted purposes simply do not qualify as law. On that view, the Eleventh Amendment must be judged by its text alone.
The parallels here are remarkable. Both the Eleventh Amendment and Justice Stevens’s proposal were explicitly designed to reverse disfavored Supreme Court decisions. Yet both texts were written in a way that didn’t speak directly to whether sovereign immunity would be the law. As a result, in both situations there’s a tension between the relative narrowness of the text and the potential breadth of the purpose.
Despite these strong parallels, I suspect that at least some readers of this post will be tempted to treat these two contexts differently.
Many of us are used to thinking about text and purpose in debates over the Eleventh Amendment. Justice Stevens’s proposal tests whether we would stick to our guns if those issues arose in a more familiar present-day context, with flipped policy implications.
First posted on Prawfs.