Steven Menashi


This Article challenges the scholarly consensus that a textualist reading of the Constitution cannot support a broad constitutional principle of state sovereign immunity. In doing so, it develops a fuller account of textualist constitutional interpretation, recognizing that the original public meaning of a text may be informed by commonly held philosophical presuppositions or background political principles. Legislative compromise, moreover, pervaded the whole constitutional design, whether it took the form of precisely worded provisions that enact particular policies or imprecisely worded provisions that invoke abstract political principles. The ratification of Article III contained just such a legislative compromise over abstract principles of state sovereign immunity. A potentially ratification-blocking minority of Antifederalists opposed granting federal courts jurisdiction over suits by individuals against states. In order to win ratification of the Constitution, Federalists gave to Article III a construction that incorporates a background principle of state sovereign immunity. That construction formed the original public understanding of Article III and the compromise struck at ratification. A textualist approach should honor that compromise. The ratification process gave political minorities the right to insist on such a compromise, so it would violate the process values underlying the Constitution to conclude, as most scholars do, that Federalist assurances respecting state sovereign immunity formed no part of the constitutional bargain. While many scholars have long criticized the Supreme Court's state sovereign immunity jurisprudence as inconsistent with other constitutional values, modern textualism and public choice theory recognize the centrality of compromise in the lawmaking process. The Constitution, too, was the product of a ratification process that involved political compromises. This insight, however, has been applied to constitutional interpretation in only a limited way. The few scholars who have applied the insights of public choice theory to constitutional interpretation have argued that a textualist approach to state sovereign immunity would read the Eleventh Amendment narrowly in order to respect a possible legislative compromise embedded in its precise text. But the limited textualism of scholars such as John Manning and Lawrence Marshall leads to a strained and implausible reading of the Eleventh Amendment because it fails to recognize the original understanding of the initial bargain embedded in Article III. Reprinted by permission of the publisher.



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