Constitutional Law

Supreme Court Majority Speaks Against "Ahistorical Literalism"

From today's opinion by Justice Thomas, for the five more conservative members of the Court, in Franchise Tax Board v. Hyatt.

|The Volokh Conspiracy |

Hyatt argues that we should find no right to sovereign immunity in another State's courts because no constitutional provision explicitly grants that immunity. But this is precisely the type of "ahistorical literalism" that we have rejected when "interpreting the scope of the States' sovereign immunity since the discredited decision in Chisholm." Alden, 527 U.S., at 730; see id., at 736 ("[T]he bare text of the Amendment is not an exhaustive description of the States' constitutional immunity from suit"). In light of our constitutional structure, the historical understanding of state immunity, and the swift enactment of the Eleventh Amendment after the Court departed from this understanding in Chisholm, "[i]t is not rational to suppose that the sovereign power should be dragged before a court." Elliot's Debates 555 (Marshall).

Indeed, the spirited historical debate over Article III courts and the immediate reaction to Chisholm make little sense if the Eleventh Amendment were the only source of sovereign immunity and private suits against the States could already be brought in "partial, local tribunals." Elliot's Debates 532 (Madison). Nor would the Founders have objected so strenuously to a neutral federal forum for private suits against States if they were open to a State being sued in a different State's courts. Hyatt's view thus inverts the Founders' concerns about state-court parochialism. Hall, supra, at 439 (Rehnquist, J., dissenting).

Moreover, Hyatt's ahistorical literalism proves too much. There are many other constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice—including, for example, judicial review, Marbury v. Madison, 1 Cranch 137, 176–180 (1803); intergovernmental tax immunity, McCulloch, 4 Wheat., at 435–436; executive privilege, United States v. Nixon, 418 U.S. 683, 705–706 (1974); executive immunity, Nixon v. Fitzgerald, 457 U.S. 731, 755–758 (1982); and the President's removal power, Myers v. United States, 272 U.S. 52, 163–164 (1926). Like these doctrines, the States' sovereign immunity is a historically rooted principle embedded in the text and structure of the Constitution.

I have no firm opinion on the proper scope of constitutional sovereign immunity, and it may be that the dissent has the better view of that scope than the majority does. But I wanted to quote this passage, because it's a reminder that none of the Justices on the Court is a pure textualist: They all consider at least the text, the original meaning, and "historical practice." And that is in large part because the Constitution is widely understood as having been enacted against a backdrop of established law and practice, and therefore in some measure implicitly adopting aspects of that law and practice, rather than being limited to what is within the four corners of the document.

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  1. >established law and practice,

    It’s especially striking here given the case overruled another SCOTUS case. Wouldn’t ‘established law and practice’ point the other direction?

    1. The relevant “established law and practice” is as of the date of ratification. The reversed Supreme Court decision would not have been part of the established law and practice in 1789.

      1. Ugh. Not 1789. 1795.

        1. Fotgiven.

      2. That would seem to imply that no SCOTUS precedent could ever be overruled – and I’m reasonably certain no one agrees with that.

  2. “are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice—including, for example, judicial review”

    I suppose even a stalwart like Thomas likes the power this gives judges instead of the soveriegn people. Sad.

    1. This seems unfair to Thomas. He may sincerely believe that judicial review is supported by historical implication, and not just because he’s a power hungry villain. That seems more likely, since there are plenty of times when Thomas has adopted constitutionally imposed limits on his own power.

    2. Not all who disagree with you do so in bad faith, Bob.

      1. Even liberals understand the true reason for Marbury:

        “The Supreme Court’s conservative majority on Wednesday appeared likely to execute what Justice Stephen Breyer described as the “greatest judicial power grab” since its 1803 decision holding that federal courts have the power to declare laws unconstitutional.”

        1. Oh, I don’t like the decision. I think sovereign immunity is bad policy we should have left behind when we left our sovereign behind.

          But that doesn’t mean I think text alone is all you need to interpret the Constitution.

          A fine principle, badly applied.

          1. I do not mind this decision. Its approach may be handy when the five justices in today’s majority are authoring indignant dissents in a series of 6-5 decisions.

            1. That’s what I’m afraid of, and that they’ll be writing those dissents in cases about the Native and Sedition Acts of ‘23.

  3. ” And that is in large part because the Constitution is widely understood as having been enacted against a backdrop of established law and practice, and therefore in some measure implicitly adopting aspects of that law and practice, rather than being limited to what is within the four corners of the document.”

    In recent history, it was the Conservatives who complained when things were found in the Constitution that weren’t there in black and white, but only by implication. Suddenly, it’s OK to do that, I guess.

    1. Yes, looks like we are switching the activist hat.

    2. “…but only by implication.”

      If the Court relied only on things expressly written in the Constitution, which constitutional provision would entitle Hyatt to the damages he seeks?

      1. You’re confusing my observation for something it isn’t. I’m amused by the about-face, not critical of it.

      2. Wasn’t that the status quo ante in Nevada? You can hale CA into your courts, but go ahead and try to enforce that judgement (of course, CA probably does own buildings in NV, so those could just be seized).

  4. Seems to me looking at the “backdrop” is a conservative approach akin to “original public meaning.”

  5. It has been a long time since Civ Pro and Federal Courts, but isn’t the 11th Amendment interpreted to mean the exact opposite of what it literally says?

  6. […] others’ courts. (See also Eugene’s point, about the Court’s reliance on “established law and practice” respecting such topics as judicial review, executive removal, […]

  7. […] others’ courts. (See also Eugene’s point, about the Court’s reliance on “established law and practice” respecting such topics as judicial review, executive removal, […]

  8. […] safe from each others’ courts. (See also Eugene’s point, about the Court’s reliance on “established law and practice” respecting such topics as judicial review, executive removal, […]

  9. […] May 13, 2019 Kimberly Rogers-Brown Supreme Court, WHITE HOUSE Leave a comment Link to original article […]

  10. […] others’ courts. (See also Eugene’s point, about the Court’s reliance on “established law and practice” respecting such topics as judicial review, executive removal, […]

  11. You know what else is a part of that common law backdrop? Stare decisis. Which the Court just plows right over and the Volokh conspirators don’t even mention.

    Indeed, no common law system can work without stare decisis.

    1. Yes, that’s the real concern here. I’ve heard it predicted by the usual leftist saws that this new crop of federalist-society vetted judges are quite a bit more comfortable with radicalism in service of ideology. This would seem to be evidence for that case.

      And though I wouldn’t have thought so a year ago, I expect the core in the Conspiracy will be right along with them.

      1. So they’re actually afraid of being on the receiving end of what they’ve been dishing out for several generations. Rulings like Roe v Wade or Obergefell are just fine, but the thought of comparable rulings in the other direction is terrifying.

        Actually, I hope you’re right. Because stare decisis for one side, and anything goes for the other side, is a sucker’s game. And the only way the left will ever give up on rule by judicial fiat is if they’re bitten by it enough to want the rule of law back.

        1. Brett, stare decisis is for both sides. Note that nobody is trying to overturn Glucksberg, or DaShaney, or Gregg v. Georgia, or Lopez and Printz. There’s plenty of conservative precedents that get stare decisis treatment.

          I really can’t figure out if you are a liar or just completely uneducated. Or maybe insane. But this entire thing of stare decisis being “one way” exists in your own head without having any basis in reality. Perhaps you should take a break from commenting on constitutional law.

      2. Stare decisis doesn’t mean that SCOTUS precedent can never be overturned.

        1. Nobody said it did.

          But it should impose a strong presumption against overturning precedents.

        2. IMO the way Stare should (and usually does) act is you at least need to spend some language justifying why you’re overturning a case, not just treat it as some de novo issue.

  12. The section quoted by Thomas is less about the merits of the given Hyatt case and more about general posturing about states retained rights.

    Thomas is 100% correct that the constitution by it’s structure and common understanding(Thomas’s combination of common meaning, and common understanding of context in which the words were understood in regard to the point at hand) both left intact soverign immunity even while incrementally making certain non-sweeping exceptions to such immunity without throwing it out with the bathwater.

    Unfortunately to me, even legal scholars here seem to have a hard time reading rules made within a defined context to ONLY applying within that context without additional wording extending it beyond the context in which the words were used. However, they also tend to see a sweeping context where the grammar only creates an example context, not a sweeping context (i.e. second ammendment preamble which only names an example, not a specific ‘only’ context)

    Constitution Article III (excerpts with >>> emphasis mine)
    1 The >>judicial Power<>vested in one supreme Court<>judicial Power<< shall extend to all Cases, in Law and Equity, arising under this Constitution, (… list of types cases and law where such power extends to – a defined list, not a "of this general type" )
    NOTE: the capitalization of "Power" makes it a proper noun reference in III.1 so that in III.2.1 where "vest in one" clearly means "not two" .. it means a unique vesting!
    2.2 …. "and those in which a State shall be Party, the supreme Court shall have original Jurisdiction." … Reiterates that when a State is a party only the supreme court of the united states has authority as opposed to others where federal courts (supreme court and its subsidiaries) only have appellate power.

    Here the scholars mistake an apocryphal argument Thomas makes as being a primary source of reasoning for a ruling that does not require that apocryphal reading.

    In my opinion, Thomas only makes that emphasis as a matter of record and a frustration he sees with things that I do too.. it is frustrating that people who see a few exceptions made assume that those exceptions are meant to overturn that which the exceptions were named specifically to protect, the initial meaning rather than abrogate it entirely.

  13. I disfavor a no-holds-barred approach at the Supreme Court (despite the strong likelihood that such a circumstance would benefit my preferences over all but the shortest terms).

    If a series of 5-4 rulings trashes relatively recent decisions, that will indicate conservatives have decided to pull the goalie.

  14. And that is in large part because the Constitution is widely understood as having been enacted against a backdrop of established law and practice, and therefore in some measure implicitly adopting aspects of that law and practice, rather than being limited to what is within the four corners of the document.

    Although typically allergic to academic history, originalists do cherish implicit history. Couldn’t live without it, actually.

    1. The neat thing about implied text is that you can selectively import what the “historical setting and backdrop” actually was, in order to make the case come out the way you want (assuming that is your goal, as it now seems to be for the Conservatives). This spares you the indignity of loudly insisting that original textualism is the only proper way to interpret Constitutional text, and then abandoning original textualism when it gives an unwanted result.

  15. […] does Gorsuch’s approach square with his textualism? Answer: perfectly well. Eugene writes (in the context of the Hyatt decision) […]

  16. […] does Gorsuch’s approach square with his textualism? Answer: perfectly well. Eugene writes (in the context of the Hyatt decision) […]

  17. […] does Gorsuch’s approach square with his textualism? Answer: perfectly well. Eugene writes (in the context of the Hyatt decision) […]

  18. […] does Gorsuch’s approach square with his textualism? Answer: perfectly well. Eugene writes (in the context of the Hyatt decision) […]

  19. […] does Gorsuch’s approach square with his textualism? Answer: perfectly well. Eugene writes (in the context of the Hyatt decision) […]

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