One of the most difficult issues for the originalists on the Supreme Court has been state sovereign immunity. While these originalists usually argue against interpretations that do not derive from the constitutional text, in the area of sovereign immunity they have written and joined opinions that strangely rely on techniques that bring to mind Griswold v. Connecticut’s “penumbras and emanations.” In other words, these originalists appear to be acting in a hypocritical manner.
The challenge for originalists is whether they can justify state sovereign immunity using originalist interpretive techniques. I tried my hand at this 20 years ago. In 1999, I wrote an article entitled “Reconciling Textualism and Federalism: The Proper Textual Basis of the Supreme Court’s Tenth and Eleventh Amendment Decisions.” The article argued that the reasoning of the sovereign immunity decisions (as well as other state immunity decisions, such as those prohibiting commandeering) was inconsistent with textualism and originalism. But I argued there was an originalist way to justify those decisions—by rooting them in the term “State” in the Constitution.
The article argued that at the time of the Constitution, the term state referred to an independent country with full sovereignty. The term had been used that way in the Constitution itself as well as in other founding documents, such as the Declaration of Independence. Thus, we should understand that the Constitution used the term to indicate entities with sovereignty. Of course, the Constitution had taken away certain sovereign privileges from the states in a variety of ways, such as denying them the power to make war and allowing the federal government to pass laws that governed their citizens. But the Constitution should not be understood as depriving the states of core notions of their sovereignty, especially if the language of the Constitution did not expressly or at least clearly indicate such sovereignty was eliminated.
One way of understanding the argument is that the Constitution contained potentially conflicting terms—the powers of the federal government and the meaning of the term “state.” When provisions conflict, traditional interpretive canons require that one reconcile the provisions so as to do the least damage to their respective meanings. One way of doing that is to respect the explicit or clear powers of the federal government, while continuing to respect the core notions of state sovereignty when they otherwise conform to the structure of the Constitution. My article argued that respecting certain traditional state immunities, including sovereign immunity, was the correct way of reconciling these conflicting provisions.
In the recent case of Franchise Tax Board of California v. Hyatt, the Supreme Court once again wrestled with sovereign immunity. While there is much to criticize in Hyatt, one happy result is that the Supreme Court is improving the textual basis for its decisions in the area. In Hyatt, the Supreme Court appeared to adopt my use of the term “State” as a basis for sovereign immunity. After discussing the immunities that states enjoyed at the time of the Constitution, Justice Thomas wrote:
In short, at the time of the founding, it was well settled that States were immune under both the common law and the law of nations. The Constitution’s use of the term “States” reflects both of these kinds of traditional immunity. [emphasis added] And the States retained these aspects of sovereignty, “except as altered by the plan of the Convention or certain constitutional Amendments.”
Thus, the Court employed the Constitution’s use of the term “States” as a textual indication that the states continued to enjoy certain traditional immunities.
Unfortunately, the Court did not cite my article, which they certainly knew about since it was quoted and cited in one of the amicus briefs arguing for constitutional sovereign immunity. When I wrote the article back in the late 1990s, I was not sure whether I thought it was the correct original meaning of the Constitution or simply the best argument for the Court’s decisions. Over time, I have moved closer towards the latter interpretation.
But even at the time I wrote the article, I believed that the strongest argument for the results in those cases would come from a combination of the term “State” and the Necessary and Proper Clause.
Will Baude has recently developed an argument for sovereign immunity based on the limits of the Necessary and Proper Clause. Baude argues that sovereign immunity was part of the general common law at the time of the Constitution and the federal government does not have the authority to displace such sovereign immunity under the Necessary and Proper Clause. Baude contends that the Necessary and Proper Clause cannot be used to exercise a great power (as opposed to an incidental or lesser power) and abrogating state sovereign immunity might be a great power.
The argument for state sovereign immunity based on the Necessary and Proper Clause, however, would be made even stronger by the proper understanding of the term “state.” If the Constitution recognizes the sovereignty of the states, then that makes it more likely that only a great power could eliminate a key aspect of that sovereignty. Moreover, one might conclude that Congress does not have the authority to eliminate state sovereign immunity even if doing so is not a great power. If one needs to reconcile the Necessary and Proper Clause and the term “State,” one might conclude that reading the former not to authorize abrogations of state sovereign immunity was the best way of reconciling them.
While I find these arguments about the Necessary and Proper Clause to be quite plausible, unfortunately the Court’s decision in Hyatt does not involve that Clause. Instead, the case involved the question whether one state had to recognize the sovereign immunity of another state in the first state’s courts. The Necessary and Proper Clause was thus not implicated. And Will Baude and Steven Sachs argue that the Constitution leaves this question to the states decide on their own. One way, if not the only way, to protect state sovereign immunity in this context is through the term State and thus it may not be surprising that the court invoked it here.