John F. Manning, The Eleventh Amendment and the Reading of
Precise Constitutional Texts, 113 YALE L.J. 1663 (2004).
(Abstract prepared by Yale Law Journal)
In recent years, the Supreme Court has become stricter about
enforcing precisely worded statutes as written. The Court
recognizes that the legislative process frequently involves
unrecorded compromises, and that enforcing a statute’s spirit or
purpose rather than its clear text displaces such compromise.
This premise would seem to apply equally to precisely worded
constitutional texts. Yet the Court has long deviated from the
carefully drawn text of the Eleventh Amendment in order to
implement what it views as the Amendment’s broader spirit or
purpose, and continues to do so. Though the Amendment in exact
terms withdraws federal jurisdiction over suits against states by
out-of-state individuals, the Court has read the text in light of its
apparent purpose to adopt comprehensive state sovereign
immunity. Although this approach differs from the modern
approach to statutes, one might of course ascribe the disparity to
the traditional premise that courts enjoy greater flexibility in
interpreting the Constitution.
This Article argues, however,
that the traditional assumption is misplaced. The Article V
process conditions amendments upon multitiered supermajority
requirements, giving a small minority of political society the
power to veto constitutional change or insist on compromise as
the price of assent. When a constitutional amendment is precisely
worded, it is crucial to respect its boundaries in order to preserve
whatever compromise the Article V process may have fostered.
This Article also explores whether the specific terms of the
Eleventh Amendment carry a negative implication precluding
judicial recognition of broader sovereign immunity under general
authority emanating from Article III or the constitutional
structure. An ancient maxim provides that a specific statute
governs a general one on the same question. The "specificity
canon" seeks to safeguard the lawmaking process by preventing a
compromise struck by a specific statute from being submerged by
the invocation of more general statutory authority. Like any other
principle of negative implication, the specificity canon is
intelligible only in context. Although the question is close, in
historical context it appears that the Eleventh Amendment
provided a carefully circumscribed answer to the broad question
of how far state sovereign immunity should extend in federal
court. If so, the Court may wish to decline to answer that question
differently under alternative sources of general authority.