Justice Scalia, sovereign immunity, textualism, and originalism - some notes.

Justice Scalia is a guest on Uncommon Knowledge this week; you can find part 1 here and part 2 here. In Part 2, Robinson poses a question to Scalia that I must admit to finding perplexing. Robinson wants to know, essentially: how much stock can we place in the original understanding when the founding generation disagreed vehemently over the constitutionality of the Bank of the United States? That's a strange question, it seems to me. At most, the dispute over the Constitutionality of the bank of the United States proves that the Constitution and its original meaning is unclear on this point, and that respectable arguments could be made either way (or, perhaps, that then as much as now, people hid their policy preferences behind Constitutional rhetoric).

It might even be the case that the Constitution doesn't answer the question - but so what? It has never been the claim of originalism - and it has rarely been the claim of originalism's proponents, except in the most abstractly rhetorical sense - that the original meaning is fully determinative of every Constitutional question. There are some questions on which the Constitution is simply silent, and yet controversies range today about what the Constitution requires in regard to those subjects; there are also some questions which are, frankly, close today and were close back then. What to do with the underdeterminacy problem (roughly, "if the original meaning of the relevant constitutional provision has been discerned and it doesn't resolve the relevant question") is an interesting and important debate, but one that is beyond the purview of originalism, and thus originalists disagree among ourselves on the answer. (This is what I have meant when saying in past comments and posts that originalism is not a complete judicial philosophy in and of itself; one cannot just be an originalist. It is necessary to have developed a sense of what to do when the original meaning is underdeterminate.) And in any event, the fact that some provisions are underdeterminate as applied to particular questions in no way invalidates or casts doubt on the method when the original meaning of the same provision (or when that of another provision) is determinative of a different question. It is never the burden of any theory, jurisprudential any more than scientific, that it must answer every conceivable question.

While we're on the subject of misunderstanding Justice Scalia, I have been slowly working my way through Prof. Ralph Rossum's book about Scalia's jurisprudence, and must register a note of skepticism on one point. Rossum is dubious of Scalia's sovereign immunity jurisprudence, charging Scalia with drifting from his textualist moorings in this area. Quotes such as the famous formulation from Blatchford ("we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the plan of the convention"1) set Rossum's spidey sense tingling. With great respect, however (and I now somewhat regret not attending Rossum's talk at IU FedSoc when the book came out to raise this issue), I think Rossum has misunderstood what's going on in those cases, and in doing so, has missed something important about the interaction between textualism and originalism.

Originalism, recall, is not a challenge or exception to textualism, but rather, a lens we place over an old text to correct for changes in textual meaning wrought by the passage of time. To the extent that textualists are looking for the ring the words would have had in the ear of a reasonable person at the time of the text's adoption,2 that ring may change over the course of time. Thus, it's commonplace for the originalist to look at contemporaneous extrinsic sources for evidence of what the text would have been understood to mean: have the definitions of the words explicitly changed? More commonly, have the assumptions that underpinned the words changed, and what does that import? What was understood to be implicit in these words (for example, that "due process" was coterminous with the venerable concept of "the law of the land," as Justice Black noted in In re Winship, or that the knock and announce rule was part of the original understanding of a reasonable search, as Justice Thomas noted in Wilson v. Arkansas).

It is also important to be clear that sovereign immunity and the Eleventh Amendment are not the same thing. As the Supreme Court said in Alden v. Maine, while it has "sometimes referred to the States’ immunity from suit as 'Eleventh Amendment immunity,'" that phrase is a "convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution’s structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today ... except as altered by the plan of the Convention or certain constitutional Amendments."3

The Eleventh Amendment's text, I think all agree with Rossum, has a very narrow reach. Where I part ways with him is what I take to be his view that the court is reading the text in an improperly expansive fashion. To my way of thinking about these cases -- and I had thought it was Justice Scalia's way of thinking about it, too -- most of the court's high profile sovereign immunity aren't actually about the Eleventh Amendment. They aren't construing the Eleventh Amendment at all, text, or anything else. It isn't that the court is reading the Eleventh Amendment's text expansively; rather, the sovereign immunity cases use the Eleventh Amendment's text and the circumstances of its adoption as evidence of the original meaning of a completely different piece of Constitutional text. It is the original meaning of "the judicial power" conferred by the text of Article III that is the true subject of the inquiry in those cases; the Eleventh Amendment is simply used to throw light on how the text of Article III was understood when adopted.4 That's what Scalia is getting at in Blatchford, I think, it is certainly what Alden looks toward, and frankly, it's what Justice Frankfurter was talking about in a different context in Coleman v. Miller. Seen this way, to criticize the court for applying sovereign immunity far beyond the textual limits of the Eleventh Amendment quite simply misses the point.

1. 1. 501 U.S., at 779 (internal quotation marks and citations omitted).
2. 2. See Easterbrook, The Role of Original Intent in Statutory Construction 11 Harv. J.L. & P.P. 59, 61 (1988); Wisconsin ex rel. Kalal v. Circuit Court for Dane County, 271 Wis. 2d 633, 681 N.W.2d 110 (Wisc. 2004) (per Sykes, J.) ("It is the enacted law, not the unenacted intent, that is binding on the public. Therefore, the purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect. ¶ Thus, we have repeatedly held that statutory interpretation begins with the language of the statute.... Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning" (internal quotation marks omitted)).
3. 3. 527 U.S., at 713 (but read Justice Souter's dissenting opinion in that case).
4. 4. And, of course, that of Article I in cases like Alden.