Text as Truce: A Peace Proposal for the Supreme Court's Costly War Over the Eleventh Amendment

30 Pages Posted: 8 Sep 2006

See all articles by Andrew Coan

Andrew Coan

University of Arizona, James E. Rogers College of Law


Debate over the original meaning of the Eleventh Amendment has raged for more than 100 years but this debate has a peculiar characteristic: It has virtually ignored the text of the Amendment. That text, read literally, extinguishes federal jurisdiction over all suits against states by citizens of another state, while leaving intact jurisdiction over suits arising under the Constitution or federal laws where the parties are not so aligned - most notably, suits by citizens against their own states. Neither the presently dominant nor the main competing interpretation of the Eleventh Amendment reads the Amendment in this way, however, or even bothers to explain why. The currently ascendant judicial interpretation of the Eleventh Amendment holds that the Amendment stands not so much for what it says as for the presupposition it confirms - that states are not amenable to suits by individuals without their consent. The main competing interpretation holds that the Eleventh Amendment does not limit federal question jurisdiction at all; rather, it limits the citizen-state diversity head of jurisdiction to cases where states are plaintiffs. The historical debate between proponents of these two interpretations has been vigorous but ultimately inconclusive. The result is a legal doctrine rife with internal inconsistencies and a Supreme Court divided for two decades along transparently political lines, creating the appearance that the Court's Eleventh Amendment jurisprudence is driven more by the personal views of the Justices than constitutional principle. Given the Amendment's irresolvably ambiguous history, it is simply not productive for the Court to maintain its present course. By adopting a textualist interpretation of the Eleventh Amendment, as a kind of truce, the Court can achieve a more coherent doctrine and restore the appearance that its decisions are grounded in principle rather than politics.

Keywords: Eleventh Amendment, Sovereign Immunity, Federalism, Textualism, Textualist, Jurisdiction, Federal Courts, Constitutional Theory, Constitutional Interpretation

Suggested Citation

Coan, Andrew, Text as Truce: A Peace Proposal for the Supreme Court's Costly War Over the Eleventh Amendment. Fordham Law Review, Vol. 74, p. 2511, 2006, Stanford Public Law Working Paper No. 929010, Available at SSRN: https://ssrn.com/abstract=929010

Andrew Coan (Contact Author)

University of Arizona, James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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