Formalism, Pragmatism, and the Conservative Critique of the Eleventh Amendment

For many years the Second Amendment to the constitution was construed by most authorities to grant a communal right to bear arms, through state militias and the like. Some years ago Sanford Levinson labeled this interpretation “embarrassing” to liberal scholars. That characterization was deserved, Levinson argued, since liberal academics had been eager to defend expansive interpretations of other rights-granting provisions of the Constitution. But they failed to do so when it came to language in the Second Amendment, which could be plausibly construed to grant an individual right to bear arms. The failure might be attributed, in part, to the conservative, anti-gun-control agenda that such an interpretation might serve. A similar dynamic is at work for conservative scholars and the Eleventh Amendment. Read literally, without the nuances of history and case law, the Amendment might be read as a mundane house-keeping measure for federal courts. On its face, it just prohibits suits in federal court against a state by citizens of another state, or those of a foreign state. But the Amendment has not been read literally: today its reach extends to any suit in federal court for damage relief by any citizen against an unconsenting state, with only a limited opportunity for Congress to statutorily authorize such suits. And by analogy, the penumbra of the Amendment extends to lawsuits for damages based on violations of federal law against states in their own courts. These interpretations should be embarrassing to conservatives, since they are at war with the text of the Amendment, and draw little support from history or what we know of the intent of the framers and ratifiers of the Amendment. Yet many conservatives cheer on – or do not criticize – the Rehnquist Court’s Eleventh Amendment jurisprudence, perhaps because it resonates with a pro-federalism policy agenda. One conservative who is embarrassed by the Eleventh Amendment jurisprudence is Judge John Noonan, as revealed in his recent monograph, Narrowing the Nation’s Power. Judge Noonan comes to the topic with impeccable scholarly and conservative credentials. A multidegree graduate of Harvard, he served on the law faculties of Notre Dame and Boalt Hall, published numerous books and articles on religion, ethics, and constitutional law, and was appointed to the Ninth Circuit by President Reagan in 1985. He is now on senior status in that court. Judge Noonan’s sharp critique of the Rehnquist Court’s federalism jurisprudence in general, and the Eleventh Amendment cases in particular, has drawn notice and praise in the mainstream media. The Senate Judiciary Committee even held a hearing on the book.