Ideas Interrupted

Every once and a while, I start to make a blog post, get interrupted, and it ends up with some links and some half finished analysis in my blogs collection of draft posts. The analysis is often unsalvagable, either because it was too fragmented, or because it was topical and now untimely, but the links are often worthwhile references, so I don't delete the draft posts. In an effort to clear my backlog of draft posts, here are some interesting links that I collected and might have blogged about over the last few years, that didn't make it to the front page. Think of it as a director's cut.

* A Gallup Survey looks at who identifies as a Republican and looks at eight year trends as of May 2009. At that low point, the Republican party was older, more conservative and more religious than it had been in the past. The young, liberals, moderates, the less affluent and more secular voters left it in droves.

* The removal of the President of Hondorus in 2009 may have had sound legal justification.

*"The U.S. Court of Appeals on Wednesday released a ruling in favor of a group of zombies who say they were wrongfully arrested while protesting consumerism during the 2006 Aquatennial." From here (ruling here).

* Tampa cops apparently don't like clowns any more than Minneapolis cops like zombies.

* "Leading theories of the Eleventh Amendment start from the premise that its text makes no sense." From here.

If you have been taught that the United States Constitution was a document of near perfection, you haven't studied enough constitutional law. The Eleventh Amendment is a good example of both this truth, and of the limits of a "plain text" understanding of the document.

Leading theories of the Eleventh Amendment start from the premise that its text makes no sense.

From here.

The text of the Eleventh Amendment reads:

The judicial power of the United States shall not be construed to extent 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.

It amends the following language of Article III, Section 2 of the United States Constitution (language naiively modified by the Eleventh Amendment emphasized):

The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and counsuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state, claiming lands under grants of different states; and between a state or citizens thereof and foreign states, citizens and subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction.

The Eleventh Amendment has been read by prevailing constitutional law to include not just the edits to Article III that its plain text encompasses (shown above), but also to establish a substantive doctrine of sovereign immunity for state governments, with selected exceptions, and embellished with permissible strategies to avoid the limitation.

For example, while local government are treated as part of the state government for most purposes, many local governments and independent governmental agencies as distinct from the state government for Eleventh Amendment purposes. Also, the case law permits suits against governmental officials for actions that they have taken in their official capacity, rather than seeing them as benefiting fully from sovereign immunity from suits against states in federal trial courts. State permission is inferred when states are parties to bankruptcy cases (or alternately, state sovereign immunity is abrogated in those cases). In practice, the exceptions swallow the rule, which has been narrowed to prohibiting in practice only suits for money damages against the parts of state governments which are financed with tax money.

More particularly, going beyond the express terms of the Eleventh Amendment, the Eleventh Amendment has been held to prohibit citizens of a state from suing their own state on a federal question theory in federal court, despite the fact that this isn't clearly prohibited by the terms of the U.S. Constitution, if the suit is commenced in the U.S. Supreme Court, and the Eleventh Amendment is routinely applied in this way.

The Eleventh Amendment is, in fact, applied to limit the authority of the federal government to sue states, since allowing citizens of a state, but not non-citizens of a state to sue a state in federal court on a federal question seems absurd, even though this is not expressly banned by the Eleventh Amendment.

The Eleventh Amendment, by its terms, also does not apply to admiralty suits, as opposed to those arising "in law and equity," although the case law does not draw such a clear line, as the U.S. Supreme Court explained in California v. Deep Sea Research, Inc., 118 S.Ct. 1464 (1998).

The article linked explains this situation:

Anti-federalists threatened to undermine this case for the Constitution by arguing that the state-citizen diversity provisions of Article III — authorizing suits "between" states and out-of-state citizens — could be construed to permit suits against states (and thus imply federal power to enforce any resulting judgments against states). Although Federalists denied this construction, the Supreme Court proceeded to read Article III to permit out-of-state citizens to sue states. Federalists and Anti-federalists quickly joined forces to restore their preferred construction of Article III.

In adopting the Eleventh Amendment, they saw no anomaly in prohibiting “any suit” against a state by out-of-state citizens because they did not understand the Constitution to authorize any suits against states by in-state citizens. Federal question jurisdiction did not expressly authorize such suits, and the Founders likely would not have perceived any real need for such jurisdiction given their understanding that the Constitution conferred neither legislative nor coercive power over states. Because the Eleventh Amendment, as written, made sense in light of the nature of the Union, the absurdity doctrine cannot justify departing from the terms of the Amendment.

In other words, this author too finds that the Founders didn't really believe that Article III really meant what it actually says.

Since suits against states in federal courts other than the U.S. Supreme Court are prohibited by the clear language of Article III, it would have been possible, and probably more desirable from the point of view of matching case law to the actual language of the U.S. Connstitution, for the U.S. Supreme Court to simply adopt of refusing to exercise its power to hear suits between private parties and states in non-admiralty cases on forum non conveniens grounds, rather than jurisdictional grounds, rather than creating the expansive concept of state sovereign immunity. But, this isn't how the doctrine has evolved.