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The Eleventh Amendment and the Nature of the Union

Bradford R. Clark

George Washington University Law School

June 1, 2010

Harvard Law Review, Vol. 123, No. 8, p. 1817, 2010
GWU Legal Studies Research Paper No. 516
GWU Law School Public Law Research Paper No. 516

Leading theories of the Eleventh Amendment start from the premise that its text makes no sense. These theories regard the Amendment as either under-inclusive, over-inclusive, or an incoherent compromise because it prohibits federal courts from hearing "any suit" against a state by out-of-state citizens, but does not prohibit suits against a state by its own citizens. Two of these theories would either expand or contract the immunity conferred by the text of the Amendment in order to avoid this absurd or anomalous result. This Article suggests that the Eleventh Amendment made sense as written when understood in its full historical context. In particular, the Articles of Confederation empowered Congress to require states to supply men, money, and supplies, but gave Congress no power to enforce its own commands. Prominent Founders initially argued that the only way to fix the Articles was to give Congress coercive power over states. But the Convention, and the ratifiers, ultimately rejected this idea because they feared that the introduction of such power would lead to a civil war. To avoid this danger, the Founders designed the Constitution to give Congress legislative power over individuals rather than states. This novel approach eliminated the need for coercive power over states, and provided Federalists with a key argument for adopting the Constitution rather than amending the Articles. Anti-federalists threatened to undermine this case for the Constitution by arguing that the state-citizen diversity provisions of Article III - authorizing suits "between" states and out-of-state citizens - could be construed to permit suits against states (and thus imply federal power to enforce any resulting judgments against states). Although Federalists denied this construction, the Supreme Court proceeded to read Article III to permit out-of-state citizens to sue states. Federalists and Anti-federalists quickly joined forces to restore their preferred construction of Article III. In adopting the Eleventh Amendment, they saw no anomaly in prohibiting "any suit" against a state by out-of-state citizens because they did not understand the Constitution to authorize any suits against states by in-state citizens. Federal question jurisdiction did not expressly authorize such suits, and the Founders likely would not have perceived any real need for such jurisdiction given their understanding that the Constitution conferred neither legislative nor coercive power over states. Because the Eleventh Amendment, as written, made sense in light of the nature of the Union, the absurdity doctrine cannot justify departing from the terms of the Amendment.

Number of Pages in PDF File: 103

Keywords: Eleventh Amendment, sovereign immunity, Chisholm v. Georgia, Vassall v. Massachusetts, Articles of Confederation, Article III, ratification, the nature of the union, textualism, coercive power, federal power over states, Garcia, National League of Cities,Usery, Madison, Hamilton, Marshall

JEL Classification: K10, K40

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Date posted: October 9, 2010  

Suggested Citation

Clark, Bradford R., The Eleventh Amendment and the Nature of the Union (June 1, 2010). Harvard Law Review, Vol. 123, No. 8, p. 1817, 2010; GWU Legal Studies Research Paper No. 516; GWU Law School Public Law Research Paper No. 516. Available at SSRN: http://ssrn.com/abstract=1688564

Contact Information

Bradford R. Clark (Contact Author)
George Washington University Law School ( email )
2000 H Street, N.W.
Washington, DC 20052
United States
202-994-2073 (Phone)
202-994-9446 (Fax)
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