The Eleventh Amendment and the Nature of the Union

TABLE OF CONTENTS I. INTRODUCTION 1819 II. CURRENT THEORIES OF THE ELEVENTH AMENDMENT 1825 A. The Immunity Theory 1826 B. The Diversity Theory 1830 C. The Compromise Theory 1832 D. The Inadequacy of Current Theories 1835 III. THE LOST HISTORICAL CONTEXT OF THE ELEVENTH 1838 AMENDMENT A. The Articles of Confederation 1839 B. The Constitutional Convention 1843 C. The Ratification Debates 1853 D. Article III and State Suability 1862 1. State-Citizen Diversity Jurisdiction 1863 2. Federal Question Jurisdiction 1870 3. Suits Between a State and Another State or a Foreign 1873 State IV. THE ADOPTION OF THE ELEVENTH AMENDMENT 1875 A. The Chisholm Decision 1876 B. The Aftermath of Chisholm 1886 C. The Adoption of the Eleventh Amendment 1891 V. THE TEXT IN HISTORICAL CONTEXT 1894 A. An Explanatory Amendment 1896 B. Reassessing the Article III Anomaly 1899 1. Article III and the Eleventh Amendment in Historical 1900 Context 2. The Constitution 1903 3. The Laws of the United States 1908 4. Treaties 1909 VI. IMPLICATIONS FOR MODERN JURISPRUDENCE 1911 VII. CONCLUSION 1917 I. INTRODUCTION Leading theories of the Eleventh Amendment place surprisingly little emphasis on the words of the Amendment. In fact, according to one prominent observer, "the [E]leventh [A]mendment is universally taken not to mean what it says." (2) The reason is that most courts and commentators regard the Amendment as either grossly under- or overinclusive. In their view, the best way to understand and apply the Amendment is to look past its terms to its underlying purpose (as they define it). Modern theorists feel justified in expanding or contracting the immunity conferred by the text because they believe that following the Amendment as written would produce the anomalous--or even absurd--result of barring out-of-state citizens from suing states in federal court while leaving in-state citizens free to do so. As a result, leading theories of the Amendment tend to focus on why the Amendment cannot mean what it says. This Article offers a novel account of why the Eleventh Amendment made sense at the time it was adopted and simultaneously provides insight into the Founders' understanding of the nature of the Union. The Articles of Confederation authorized Congress to exercise legislative power over states rather than individuals, but provided no means of enforcement. The Founders concluded that the Articles could be made effective only by authorizing Congress to employ coercive military force against states who refused to comply with its affirmative commands. The Founders rejected proposals to introduce coercive force, however, because they feared that the use of such power would lead to a civil war. They abandoned the Articles in favor of a Constitution specifically designed to authorize Congress to exercise legislative power solely over individuals rather than states. This approach obviated the need for the introduction of coercive power over states. To be sure, the Constitution imposed important negative prohibitions on states, but these provisions could be enforced in suits between individuals or as federal defenses to enforcement actions brought by states. …