A Dialogic Defense of Alden

Jay Tidmarsh, Notre Dame Law School


I find myself in the odd position of arguing that Alden v. Maine' is right, or at least not wrong. Do not misunderstand-I do not like the result in Alden any more than the next guy. But to not like the result and to argue that Alden is wrong as a matter of constitutional principle are two different matters. I am willing to argue that Alden is consistent with, albeit not compelled by, constitutional principle. Implicit in the last sentence is the assumption that, had Alden been decided in accordance with Justice Souter's rather than Justice Kennedy's views, it would still have been consistent with constitutional principle. This assumption may seem impossible to maintain, since Alden appears to be a decision about the scope of Article III and the Eleventh Amendment, and the views of Justice Souter and his three fellow dissenters on the scope of the constitutional immunity of states appear flatly at odds with the views of Justice Kennedy's majority. To suggest that both views can be maintained is to say that Alden is not a constitutional decision, but rather a prudential decision about the best way to give effect to the fundamental structure of the Constitution. Implicit in this suggestion is the further proposition that, as a prudential decision, Alden is subject to modification, or even reversal, at some future point.