The Volokh Conspiracy

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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.


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.