Seminole speaks to sovereign immunity and Ex parte Young

St. John's Law Review, Fall 1997 by Baker, Wayne L

To a legal novice it would strain credulity to imagine a constitutional amendment, subject to two centuries of interpretation, resulting in variegated viewpoints amongst Supreme Court Justices. Unfortunately, this decision reinforces the Eleventh Amendment's recondite reputation.49 One should not be misguided by the unequivocal language of the amendment.50 Three distinct interpretations have developed51 from statutory enactments52 and judicial decisions.53 Even the history of the amendment's ratification reveals disparate interpretations amongst the Framers.54

1. Limiting the Coverage of the Eleventh Amendment: Justice

Stevens' Dissent

Justice Stevens disagreed with the majority's reasoning on numerous fronts. Questioning the Court's conclusions as illogical, Justice Stevens warned against the decision's far-reaching implication of "prevent[ing] Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy."55 These concerns have been shared by commentators56 and courts"57 alike. According to Justice Stevens, the

Eleventh Amendment may raise concerns over Congressional power to ensure enforceability in a federal forum, but it does not stand as a jurisdictional bar to Congressional authority.58 Justice Stevens embraced Justice Brennan's interpretation of the Eleventh Amendment as a restriction applying only to suits premised on diversity jurisdiction.59 The majority's reliance upon Hans was misguided in Justice Stevens' opinion, and Hans' precedential value should be limited to its facts, a contractual litigation between a citizen of a state and that state. Justice Stevens' analysis supports constitutional supremacy, thus "in all cases to which the judicial power does not extend-either because they are not within any category defined in Article III or because they are within the category [explicitly] withdrawn from Article III by the Eleventh Amendment-Congress lacks the power to confer jurisdiction on the federal courts,"60 otherwise, the plenary powers of Congress are paramount. There is no rationale, therefore, for the majority's distinction between statutes enacted pursuant to the power granted Congress in Article I or those enacted to enforce the provisions of the Fourteenth Amendment.61

2. Historical Analysis of the Eleventh Amendment: Justice Souter's Dissent

Justice Souter's scholarly and thorough62 dissent, joined by Justices Ginsburg and Breyer, attempts to dispel the historical myth of the Eleventh Amendment. The history of "the debate addressed only the question whether ratification of the Constitution would, in diversity cases and without more, abrogate the state sovereign immunity .... [T]here was no textual support for contending that Article III or any other provision would 'constitutionalize' state sovereign immunity ,63 Countering the revisionist conclusions surrounding the reaction to Chisholm v. Georgia,64 Justice Souter suggests the decision was reasonable, and the legislatures' reaction was not a "shock of surprise" leading to the immediate proposal and adoption of the Eleventh Amendment.65