On Monday, in Franchise Tax Board of California v. Hyatt, an ideologically divided Supreme Court narrowly adopted a principle found nowhere in the Constitution’s text, because, as Justice Clarence Thomas wrote for the majority, “the Founders did not state every postulate on which they formed our Republic.” Accordingly, the Court overruled a forty-year-old precedent and announced that the Constitution confers on states sovereign immunity against lawsuits in the courts of their sister states. Although the majority opinion repeatedly invoked Founding-era sources, as I shall explain in this column, it nonetheless departed sharply from the brand of originalism that Justice Thomas and his fellow conservatives purport to favor.
A Very Brief History of State Sovereign Immunity in Constitutional Law
Article III of the Constitution provides: “The judicial Power shall extend . . . to Controversies . . . between a State and Citizens of another State.” Just four years after the Constitution’s adoption, the Supreme Court construed this language to allow a citizen of South Carolina to sue the state of Georgia. The 4-1 ruling in Chisolm v. Georgia can be boiled down to two principles endorsed by the justices in the majority (who, in those early days, each wrote separately): first, that immunity to private lawsuits was a characteristic of royal prerogative and thus not enshrined in the US Constitution, which is republican in character; and second, that Article III’s language means what it says.
Chisolm was broadly unpopular (partly because it implied that British subjects could also sue states) and quickly led to the adoption of the Eleventh Amendment. That amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The way in which that language mirrors the language of Article III suggests that the Eleventh Amendment simply removes from federal court jurisdiction one category of cases—namely, lawsuits by private parties against states in which state law supplies the rule of decision. After all, a separate provision of Article III authorizes jurisdiction in cases arising under federal law.
Nonetheless, in the 1890 case of Hans v. Louisiana, the Supreme Court made two fateful decisions. First, it held that the Eleventh Amendment bars federal court suits against states even in so-called federal question cases. Second, and more perplexingly, the Hans Court ruled that the amendment—which specifically refers only to suits by citizens of “another” state—bars suits by a citizen of the same state as well.
The crucial analytical move was the Hans Court’s decision to reject an appeal to “the letter” of the Eleventh Amendment, rather than what the justices took to be the intentions and expectations of its framers and ratifiers. It is “almost an absurdity on its face,” Justice Bradley wrote for the Court, to suppose that the states would have accepted the Eleventh Amendment if they had known it would allow federal suits against them by their own citizens.
Sovereign Immunity and Original Meaning
The approach of Hans ought to be anathema to modern originalists. After all, the Hans Court did not say that the original public meaning of the words of the Eleventh Amendment conferred broad sovereign immunity. Rather, the Court relied on the unenacted (and presumed) intentions and expectations of the amendment’s framers and ratifiers. Accordingly, principled textualists and originalists (like current Harvard Law School Dean John Manning writing in a 2004 Yale Law Journal article) have decried the approach of Hans.
Unfortunately, when it comes to state sovereign immunity, the self-described textualists and originalists on the Supreme Court do not display quite the same attachment to principle. While it would be one thing to accept the holdings of Hans on stare decisis grounds, the Rehnquist and now Roberts Courts have not just accepted Hans but extended it.
For present purposes, the critical decision came in the 1999 case of Alden v. Maine. There the Supreme Court held that the Constitution affords states immunity in state courts as well as federal ones. From that conclusion, it was a relatively small step to Monday’s ruling in Hyatt—albeit one that did require the overruling of a well-reasoned 1979 precedent holding that principles of comity, not sovereign immunity, govern the permissibility of suits against a state in the courts of a sister state.
Yet even if Hyatt can perhaps be barely justified as an application of Alden, Alden itself is highly problematic. As used in both Article III and the Eleventh Amendment, the term “judicial power” of the United States unequivocally refers to federal courts but not to state courts. How did the 5-4 majority in Alden get around that obstacle?
The short answer is unpersuasively. In his majority opinion in Alden, Justice Anthony Kennedy relied on the Tenth Amendment, a text that seems even less helpful than the Eleventh. After all, the Tenth Amendment simply reserves to the states those powers not given to the federal government; yet in Alden, Congress had exercised its enumerated power to regulate interstate commerce to impose the obligations of the Fair Labor Standards Act on state employers; so there was nothing reserved to the state. Undeterred, the Court in Alden treated both the Tenth and Eleventh Amendments as mere points of departure for protecting state sovereignty.
Is “Structural Inference” Simply Living Constitutionalism in Disguise?
The interpretive method applied by Justice Kennedy in Alden and by Justice Thomas in Hyatt looks suspiciously like living Constitutionalism of the sort that conservatives supposedly abjure. Aware of this criticism, Justice Thomas’s opinion seeks to deflect it by characterizing his methodology as one of inferring principles that are implicit in the Constitution’s structure and history. He lists judicial review, intergovernmental tax immunity, executive privilege, executive immunity, and the president’s removal power as other examples of this supposedly uncontroversial method.
Yet Justice Thomas’s claim that there is nothing to see here fails for three reasons. First, some of his examples are actually rooted in solid constitutional text. For instance, judicial review need not rest on structural inference; Article III expressly gives the courts the power to hear cases that arise under the Constitution; it is difficult to see how they could do that without construing the Constitution.
Second, in none of the examples that Justice Thomas cites did the Court infer a principle from constitutional structure and history when the constitutional text pretty clearly implied the opposite. As then-Professor Manning’s article explains, when the Constitution specifies a precise rule—as it does in the Eleventh Amendment—courts ought not supplement or supplant that rule by adopting a broader open-ended standard. Hans and the modern cases (like Hyatt) that build on it are analogous to a hypothetical Court-fashioned requirement that in order to be eligible to be a member of the Senate, a person must not only be at least 30 years old (as specified by Article I) but must be able to demonstrate sufficient maturity for the post by passing an emotional intelligence test.
Third, and most importantly, inferences from structure and history are often controversial for the very sorts of reasons that lead self-styled originalists like Justice Thomas to criticize the Court for enforcing constitutional rights that are not clearly spelled out in the text: both sorts of cases take decisions away from elected officials without an express authorization for doing so. Consider the inclusion of executive privilege in Justice Thomas’s list of supposedly uncontroversial inferences from structure and history. Although there was no dissent from Chief Justice Warren Burger’s 1974 opinion holding that President Nixon lacked a blanket executive privilege, the lack of any underlying constitutional text enables Congress and President Trump to make wildly divergent claims about the proper scope of the privilege.
If you think that history provides concrete guidance in structure-and-history cases of the sort lacking in cases involving unenumerated individual rights like abortion and same-sex marriage, remember that history does not speak for itself. Justice Thomas and the rest of the Hyatt majority think that history establishes a constitutional principle of sovereign immunity, but four current justices think otherwise. So did four of the five justices who decided Chisolm in 1793. Who were those four? Two (Justices John Blair, Jr. and James Wilson) had been delegates to the 1787 Constitutional Convention in Philadelphia; one (Justice William Cushing) had served as Vice President of the Massachusetts convention that narrowly ratified the Constitution; and the fourth was Chief Justice John Jay, co-author of The Federalist Papers with Alexander Hamilton and James Madison.
To be clear, in pointing out the inconsistency between the methodological commitments the Supreme Court’s conservatives profess when criticizing liberal decisions they dislike and the methodology they employ in reaching ideologically conservative results, I do not mean to endorse the criticisms. Justice Thomas is correct that the Court has drawn inferences from structure and history. That does not mean it made the right call each time, of course; I think the entire sovereign immunity line of cases since Hans is misguided; still, a decision or doctrine ought not to be decried simply because a court infers it from constitutional structure and history.
That said, I do mean to call attention to the perhaps-unwitting hypocrisy of the Court’s conservative majority. Given their willingness to fashion right-leaning doctrine from the murky materials of structure and history, they have no standing to criticize liberal-leaning doctrine based on broad text in rights cases. Keep that in mind the next time the conservative bloc of the Roberts Court denounces what it calls liberal judicial activism.