The Volokh Conspiracy

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Hyatt, the Constitution, and the Common Law

A new decision on sovereign immunity, and what it means for originalists.


Today the Court decided FTB v. Hyatt, overruling Nevada v. Hall and declaring that states have sovereign immunity in other states' courts. The majority opinion has gotten some rather pointed criticism—largely because it didn't rely on any particular clause of the Constitution, but rather on general structural concerns.

In my view, Hyatt is an unfortunate opinion—not just because some of its reasoning might be questioned, but because it makes the job of defending originalist doctrine harder. At the same time, though, it may have a silver lining: encouraging a slow, possibly generational shift in legal conservatives' position on the common law.

A fair amount of what the Court says about the history seems correct. On the Court's view, states enjoyed sovereign immunity at the Founding; at common law and under the law of nations, they weren't amenable to judicial process without their consent. While the Constitution abrogated some of that that immunity in federal court (eg, original-jurisdiction suits between states), it didn't abrogate it entirely (which Chisholm misunderstood, and which the Eleventh Amendment reconfirmed). State sovereign immunity largely survived Article III.

So far, so good. But note that none of this addresses whether another state, like Nevada, can abrogate California's immunity in its courts, just as it might abrogate any other rule of common law. As Will Baude and I argued in our brief, if the immunity really is a rule of common law and the law of nations—left intact by Article III, and maybe even beyond the limited powers of Congress to alter—a Nevada court would still have to obey a Nevada statute.

That said, though the Constitution lacked any substantive rule on this point, it did offer a powerful procedural protection: the forum state's inability to get its judgments enforced in other courts. For the first hundred years of the Republic, federal and state courts routinely enforced the common-law and law-of-nations limits on personal jurisdiction and amenability to suit—not by inventing some affirmative constitutional bar, but simply by disregarding judgments that broke the rules (as the Full Faith and Credit Clause permits).

The Hyatt Court didn't see it that way. Instead, it held that "the Constitution affirmatively altered the relationships between the States." Because each state retains its "equal dignity and sovereignty," the Constitution "embeds interstate sovereign immunity within the constitutional design." The Court also cited a grab-bag of obligations imposed on the states (privileges and immunities, full faith and credit, the denial of war powers or embargoes, etc.), "confirming that [the states] are no longer fully independent nations." But none of this speaks to the specific question at hand, which is about whether they can abrogate the immunity of other states along with their own. Indeed, it may be less reminiscent of the Court's recent moves toward textualism, and more reminiscient of earlier efforts to locate constitutional rules in any of a number of clauses at once.

I happen to disagree with the Court's analysis in Hyatt on the merits, but that isn't really the point. (The line between 'Nevada may not hale California into its courts' and 'Nevada can go ahead and try, but everyone will just ignore their judgment at the enforcement stage, and also federal courts might be able to enjoin enforcement in appropriate circumstances' is pretty thin, and courts have mishandled more obvious and consequential distinctions before.) My worry is that a decision like this one, which attributes implicit rules to the Constitution that no one at the Founding seems to have found there, does more to bring careful methodology into disrepute than a variety of less serious errors that courts might make.

Sovereign immunity is really hard; it involves plenty of precise distinctions between what was settled by the text and what was left up to preexisting rules. And because it involves so many preexisting rules, it's easy to caricature the doctrine as "conservatives making things up outside the text."  As someone who thinks the Court ought to pay a lot of attention to text, but also that they've mostly been right about sovereign immunity doctrine thus far—a "rara avis," like David Currie or Will Baude—taking care with these distinctions is especially important.

So why were the right-leaning members of the Court willing to write (or sign off on) a relatively un-textualist opinion? I don't think it's as reductionist or conspiratorial as "conservatives like sovereign immunity and liberals don't." I think the Justices in the majority joined the opinion because they believe it to be correct. Consider an extended passage toward the end of the opinion, which described the many interstate cases in which no state has power to conclude the claims of another (border disputes, water rights, etc.). Surely something provides that states can't declare by statute that they own New Jersey, or have better water rights than their neighbors, and so on. Why wouldn't that same something prevent Nevada from concluding California's claims here? If structural inferences are ever justified—and sometimes they are—why would they be unjustified when it comes to doctrines of sovereign immunity, in which the Founders also believed?

Of old, the mysterious "something" in all this would have been doctrines of general law—rules of common law, equity, the law of nations, conflict of laws, and so on, which governed matters as to which federal law was absent and no state was competent to legislate. These included, among other things, the rules of personal jurisdiction and judgment recognition that would have kept the states 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, etc.)

As it happens, we've had 80 years of Erie trying to persuade us that general law can't exist, and that unwritten law generally is the preserve of willful judges—whether as a matter of "federal common law" invented by federal judges, or of state common law invented by state judges, for "there can be no other law." So it's not surprising that, faced with a problem to which the Founders obviously had some answer, and deprived of the relatively straightforward and intuitive vocabulary in which that answer might originally have been framed, we get structural reasoning instead.

The silver lining in all this, though, is that this view may be starting to recede. The scholarly consensus against Erie seems to be building. The younger generation of originalists, textualists, etc., seems increasingly comfortable with our historical reliance on general law, and increasingly attentive to the role that this law plays in a divided system of federal and state courts. Decisions like Hyatt might, in the end, be some of the last of their kind: if the alternative is an unwritten "equal dignity" clause, general law starts to look pretty good.