Formalism, Pragmatism, and the Conservative Critique of the Eleventh Amendment

Abstract:     
This essay reviews John T. Noonan, Jr., Narrowing the Nation's Power: The Supreme Court Sides With the States (Berkeley, University of California Press 2002). Judge Noonan's monograph is a critical review, by a well-known jurist, considered conservative in most circles, of the federalism decisions of the Rehnquist Court. Part I of the essay surveys Noonan's arguments, focusing mainly on his critique of the Eleventh Amendment cases. Liberal academics have been sharply critical of those cases. Part II considers what the position of conservatives has been, or should be, on those cases, especially given that the cases largely ignore interpretative methodologies favored by conservatives in other cases. The first two parts of the essay are mainly concerned with formalist arguments. Drawing on arguments made by Noonan, the third and fourth parts engage in a more pragmatic critique of the cases. Part III considers why the Rehnquist Court has seemingly decided so many cases raising Eleventh Amendment issues, and suggests that one of the reasons is the activism of state attorneys general in aggressively litigating the cases, as parties amici curiae, in the Supreme Court. An empirical study of the states' amicus-activity in such cases is presented. Part IV revisits additional rationales for, and empirical effects of, the Eleventh Amendment cases. With regard to the former, the essay addresses whether current doctrine has some functional justifications. With regard to the latter, the essay revisits claims that gaping exceptions to the doctrine, taken together with the purported availability of state law remedies, considerably ameliorates the supposed negative effects of the doctrine on the enforcement of federal law. The essay's conclusion briefly outlines an alternative path the conservative Justices could have, and perhaps should have, taken in shaping Eleventh Amendment doctrine.

Keywords: Federalism, Eleventh Amendment

JEL Classifications: K40

Accepted Paper Series