Kurt T. Lash (Loyola Law School Los Angeles) has poted Leaving the Chisholm Trail: The Eleventh Amendment and the Background Principle of Strict Construction on SSRN. Here is the abstract:
Most scholars and courts assume that the Eleventh Amendment emerged from a sudden ‘shocked’ public reaction to the Supreme Court’s decision in Chisholm v. Georgia. The Supreme Court’s decision in Hans v. Louisiana has been subject to particular criticism for extending the doctrine of sovereign immunity beyond the text of the amendment and the particular subject matter before the Court in Chisholm. This article contends that the modern emphasis on Chisholm v. Georgia as the generative source of the Eleventh Amendment is historically incorrect. Public debate regarding the key issues behind the Eleventh Amendment had been underway long before the Court handed down its decision in Chisholm and the actual opinions had little impact on public discussion due to their being generally unavailable until months after the decision was handed down. The critical issue involved the concept of compelling a state to defend itself in federal court at the behest of an individual. That debate preceded Chisholm and would not reach critical mass until the state of Massachusetts responded to its own suit in Vassal.
All sides in this debate accepted the idea that the national government could invoke sovereign immunity against similar suits. Denying states the same immunity called into question whether they remained sovereign entities and retained the non-delegated sovereign rights and powers that Federalists had promised in the state ratifying conventions. More was at stake than mere betrayal, or even fiscal liability. Whether the states remained sovereign entities under the Constitution affected the basic rules of constitutional construction for, according to the Law of Nations, delegations of power from a sovereign are to be strictly construed. Allowing suits against states thus implicated the principle of limited federal power across all areas of delegated authority. The key to understanding the Eleventh Amendment is the text’s focus on the proper judicial construction of delegated power in Article III – a demand that federal courts respect the retained rights of the people in the states and apply the background rule of strict construction.
And a bit more from the text:
Scholars have repeatedly parsed the text of the Eleventh Amendment, seeking clues regarding its scope and intended meaning. One of the problems with much of this literature, however, has been its assumption (expressly stated or tacitly assumed) that the amendment imposed a substantive change on the original scope of federal power delegated under Article III. Under this assumption, the textual scope of the amendment becomes critical indeed, for it leaves federal power otherwise untouched and subject to the same broad constructions generally granted to other national powers. The historical evidence presented in this article, however, suggests a very different meaning of, and different approach to, the text of the Eleventh Amendment. The text itself is fairly clear—it forbids any construction that extends federal judicial power to suits brought by out of state individuals against a state. As neo-revisionists have argued (persuasively in my mind), the text makes no exception for suits based on so called “federal questions,” whether involving domestic federal rights or rights established by treaty. Given that everyone at the time knew the issue of state suability involved the potential enforcement of federal treaties, and given the express rejection of language which would have excepted treaties from the text of the amendment, it seems reasonable to allow the text full value as applying to both federal questions and diversity cases involving questions of state law.
Highly recommended. Download it while its hot!