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New Yale Scholarship: The 11th Amendment and Precise Constitutional Texts
Posted by James Grimmelmann on Friday, August 13 @ 00:55:00 EDT Scholarship
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.

 
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