A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather Than a Prohibition against Jurisdiction

Abstract

Chisholm involved a form of party-based jurisdiction. A South Carolina citizen brought suit against the state of Georgia under a constitutional grant of federal judicial power over "controversies... between a State and Citizens of another State. .. ."' For ease of reference, we may call this form of party-based jurisdiction "statecitizen diversity" in order to distinguish it from the more familiar citizen-citizen diversity jurisdiction. In Chisholm, the Court held that this state-citizen diversity clause conferred jurisdiction to hear Chisholm's damage action against Georgia and that the clause abrogated any sovereign immunity defense to the suit that Georgia might otherwise have had. The eleventh amendment was passed immediately thereafter in order to overturn this result. The conventional modern view of the eleventh amendment is that it prohibits federal courts from exercising both party-based and subject matter-based jurisdiction over private citizens' suits against the states. This article suggests that the amendment originally had a more modest purpose: It was intended to require that the state-citizen diversity clause of article III be construed to confer federal jurisdiction only over disputes in which the state was a plaintiff. So construed, the clause was a more limited grant of jurisdiction than the Court in Chisholm had construed it to be. And so understood, the eleventh amendment forbade nothing, but merely required this limiting construction on the jurisdiction granted by the state-citizen diversity clause. This interpretation of the amendment is both strikingly simple and remarkably congruent with the available evidence concerning the circumstances surrounding the amendment and its passage. But the interpretation does not indicate whether state sovereign immunity to private suit in federal court exists under the Constitution viewed as a whole. Indeed, the interpretation eliminates what the Court has traditionally thought to be a partial answer provided by the amendment-that the amendment explicitly forbids suits brought against the states by out-of-state citizens. Thus, if the interpretation of the amendment suggested here is correct, it makes the question of state sovereign immunity to private suit more subtle, for 6. U.S. CONST. art. III, § 2, cl. I ("The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Law of the United States, and Treaties made, or which shall be made, under their authority .); see also 28 U.S.C. § 1331 (Supp. V 1981). 7. U.S. CONST. art. III, § 2, cl. I. a State to sue their own state in the federal courts, whilst the idea ofsuits by citizens of other states, or of foreign states, was indignantly repelled? Suppose that Congress, when proposing the Eleventh Amendment, had appended to it a proviso that nothing therein contained should prevent a State from being sued by its own citizens in cases arising under the Constitution or laws of the United States: can we imagine that it would have been adopted by the States? The supposition ...

Marbury, Section 13, and the Original Jurisdiction of the Supreme Court

“…In addition, I sought to root this textual claim in the context of broader reaching structural, historical, and doctrinal arguments. See generally Richard H. Fallon, Jr., A Constructive Coherence Theory of Constitutional Interpretation, 100 Harv L Rev 1189 (1987). For other illustrations of this non-clause bound textual strategy, see Amar,102 Harv L Rev at 716-18 (cited in note 39) (discussing possible distinction between "cases" and "controversies"); text at notes 102-03 (discussing contrast between phrasing of Original and Appellate Jurisdiction Clauses of Article III); McCulloch v Maryland, 17 US (4 Wheat) 316, 414-15 (1816) (discussing contrast between "necessary and proper" clause of Article I, § 8, and "absolutely necessary" clause of Art I, § 10); Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U Chi L Rev 1043 (1988) (noting a pattern in the Constitution's reference to "the people").…”

Comments on R. Harrison Wagner’sWar and the State: The Theory of International Politics

“…To assess Wagner’s argument properly, a bargaining model with both commitment problems concerning settlements and private information or irrational overoptimism is required. The model in Fearon (2008) has these features (i.e. private information about relative power, and any negotiated settlement must be self-enforcing).…”

“… 6 I consider some other advantages and disadvantages of the inconsistent beliefs and discuss alternatives to it in Fearon (2008). …”