Vol. 12 No. 12 (December 2002)

NARROWING THE NATION’S POWER: THE SUPREME COURT SIDES WITH THE STATES by John T. Noonan, Jr. Berkeley: University of California Press, 2002. 203pp. Cloth $24.95.  ISBN: 0520235746.

George Thomas, Department of Political Science, University of Oklahoma.

The enigma of the Eleventh Amendment was once the abstruse and dusty domain of legal historians. The Rehnquist Court, however, has dusted off the amendment and made it the foundation for the most novel development in constitutional doctrine in decades. In a series of cases in the1990s, the Rehnquist Court extended the scope of state sovereign immunity and provoked a debate about the nature of our federal system, indeed, a debate about the very nature and meaning of sovereignty under our Constitution. 

In NARROWING THE NATION’S POWER, Judge John Noonan contends that this development threatens to inflict real harm on the nation, inviting comparisons with such freighted cases as DRED SCOTT, LOCHNER, and those striking down the New Deal (pp.13, 135). Echoing the dissenting opinions in these sharply divided cases (they are all 5-4 decisions),  Noonan insists this is no idle constitutional debate of esoteric interest to a handful of scholars, but one with serious consequences for the nation. This short and eloquent book is for the concerned citizen as well as the serious scholar. And the urgency of Noonan’s book speaks to its unusual nature: it is written by a sitting senior judge on the Ninth Circuit Court of Appeals and takes direct aim at the current Supreme Court, accusing it of inventing doctrine in an act of will and accreting power to itself. As Noonan puts it: “The results I criticize were reached largely, although not wholly, by means of the doctrinal devices—state sovereign immunity, congruence and proportionality of legislation, and a record of evils to be eradicated—that have no footing in the constitution. Remove these obfuscations; it will be clear that the court’s decisions do not survive the test of serving constitutional purposes” (p. 12). Noonan persuasively situates sovereign immunity as a piece of the Court’s persistent insistence upon judicial supremacy, where it has taken up the role of policing the federal system and, in its view, protecting the constitutional prerogatives of the states against national encroachment. NARROWING THE NATION’S POWER is a devastating critique of the Court’s sovereign immunity jurisprudence, revealing it to be a “contradiction in terms,” a “principle without a rationale” (p. 10), and a powerful indictment of the Court’s narrow view of Congress’ Section 5 power under the Fourteenth Amendment as well. My praise, though, is tempered by the fact that Noonan’s central claim—that the Court has dangerously undermined national power—is far from clear.

Judge Noonan’s greatest contribution is dismantling the very notion of sovereign immunity, which he does in two early chapters. In the chapters that follow, he draws our eye to the myriad ways in which this doctrine strips persons of legal protection against the states and thereby denies them constitutional rights. While these latter chapters focus on the current Court, Noonan’s critique goes far beyond the current Court’s innovation. In an early chapter, Noonan imagines a dialogue between a sitting judge (named Simple) and his urbane law clerks—with names like Harvardman and Yalewoman—to penetrate the vagaries of sovereign immunity as a legal concept. Simple continues the dialogue in the next chapter with an old law firm partner and then some friends from graduate school (making a nod to the contributions of historians and even political scientists) to draw out the historical roots of the doctrine. The dialogue form feels a bit pretentious at first, but it actually works to great (and often very amusing) affect, revealing the tattered and at times absurd state of Eleventh Amendment jurisprudence. The judge’s clerks school him, for example, in the numerous exceptions to sovereign immunity: while states are granted immunity from suit, one may still sue a state officer acting on behalf of the state, unless the suit is for money damages, in which case the officer is cloaked with official immunity. Noonan’s Yalewoman relishes the illogic, “So, in the same case, a person is considered for legal purposes to be the state and is considered for legal purposes not to be the state” (p. 47).  The trouble, for Noonan, is the very nature of sovereign immunity.

With the help of Cleo, Noonan goes back to James Wilson’s seriatim opinion in CHISHOLM V. GEORGIA, which put the matter squarely: “To the constitution of the United States the term sovereign is totally unknown” (p. 65; CHISHOLM at 454). As Wilson reasoned, “What good purpose could this constitutional provision secure, if a state might pass a law, impairing the obligation of its own contracts; and be amenable, for such a violation of right, to no controlling judiciary power?”(at 465). Wilson was speaking of Article I, Section 10 of the Constitution, which declares that “no state shall pass a law impairing the obligation of contracts” and suggesting that, as a matter of general jurisprudence and constitutional law, if the constitutional provision is to be enforced, citizens must be able to bring suit against the state. Otherwise, a state might alter its own contracts, invoke the privilege of sovereign immunity from suit, and thereby preclude citizens from a legal remedy, rendering a clear constitutional principle without effective meaning. Indeed, such would allow the state to evade the very logic of the Constitution at its will (which is precisely what Noonan contends the current Court is permitting). Wilson’s deeper point touched on the very nature of sovereignty under the Constitution: “As a citizen, I know, the government of that state to be republican; and my short definition of such a government is—one constructed on this principle, that the supreme power resides in the body of the people.” And the people did “not surrender the supreme and sovereign power to” the states (at 457). The state, for Wilson, and Noonan following him, is a creation of popular sovereignty, and cannot therefore claim sovereign immunity and shield itself from suit—denying those who created the state a legal remedy against it.  Yet, in the wake of CHISHOLM, the Eleventh Amendment was ratified, declaring that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by Citizens of another State, or by Citizens or subjects of a foreign state” (p. 61). Did this alter the nature of popular sovereignty, granting the states immunity from suit (even those brought by their own citizens)? To this standard question, Judge Noonan gives a resounding and persuasive “no.” 

The text of Eleventh Amendment, Noonan notes, speaks to the Court itself in a particular class of suits—those brought by citizens of one state against another state. It says not a word about sovereign immunity. This historical and legal corruption—a falling away from constitutional first principles, which leads directly to the illogical attempt to both have and get around sovereign immunity—is symbolized for Noonan by the 1890 case of HANS v. LOUISIANA, where Justice Bradley equated the Eleventh Amendment with state sovereign immunity. “In fact,” Noonan argues, “HANS makes the eleventh amendment superfluous,” as Bradley’s opinion posited that “the suability of a state without consent was a ‘thing unknown to the law’” (p. 74). Oddly, though, HANS treats the Eleventh Amendment as shorthand for sovereign immunity. Thus Chief Justice Rehnquist relies on the logic of HANS in SEMINOLE TRIBE, positing the principle that the “states are immune from suits, without their consent, save where there has been a ‘surrender of this immunity in the plan of the convention’”(at 54). Rehnquist does so, moreover, over the text of the Eleventh Amendment, informing us that we cannot “assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against nonconsenting States”(at 54).  Pushing this logic, the Rehnquist Court has extended sovereign immunity to the likes of state universities and university presses and limited Congress’ power to protect constitutional rights by abrogating state immunity. To protect such rights against the states, the Court has insisted that Congress must “act on a record of establish[ed] . . evil” and “devise a commensurate and proportionate response” (p. 107). Whether there is a persuasive record of denying past rights and whether the legislation is “commensurate and proportionate” is a determination to be made by the Court, demonstrating Noonan’s contention that the Court’s claims to judicial supremacy and its insistence on sovereign immunity are of a piece. This expansion of sovereign immunity, Noonan contends, has at best a tenuous connection to the Eleventh Amendment, a point Justice Kennedy frankly conceded in ALDEN v. MAINE, noting there is no “Eleventh Amendment immunity.” The phrase, rather, “is 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, “the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution”(at 713).   

Drawing on Wilson, as we have seen, and Chief Justice John Marshall (as well as on Hamilton and Madison), Noonan argues against the current Court that the states did not enter the Union with their sovereignty in tact. The principle of sovereign immunity, it turns out, is an archaic relic of the British common law, which recognized the sovereign as a superior being unbound by law. Our Constitution, rooted in popular sovereignty, dispensed with such notions. In his famous lectures on the law, for example, Wilson went so far as to say that “the principles of the constitutions and governments and laws of the United States” are not only different from those of England, but that they “are materially better.”  And they are better, Wilson noted, because of “one great principle, the vital principle I may well call it, which diffuses animation and vigour to all others. The principle I mean is this, that the supreme or sovereign power of the society resides in the citizens at large” (McCloskey, p. 77). Thus, even if the Eleventh Amendment overturned the particular holding of CHISHOLM, Noonan is on solid ground in turning to Wilson’s reasoning to puncture the logic of state sovereign immunity generally.

On this score, Judge Noonan’s analysis is a particularly powerful indictment of the Court’s originalists and one he could have spun out more fully. Vesting the state as a superior being, thereby making “we the people” the votaries of state power, owes far more to the common law tradition and even the later legal positivism of Justice Holmes than the originalism (if I may play on that word) of Justice Wilson. As Holmes argued, “One cannot sue the sovereign on ‘the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends’” (p. 78). Drawing on this notion of sovereignty, the Court’s originalists have ignored the very foundation of our constitutional system. This criticism is particularly acute insofar as the most compelling arguments for originalism are grounded in the notion of popular sovereignty: we ought to be bound by the Constitution because it is based on popular consent and therefore judicial departures from it are unjust because they replace the will of the people with the will of the justices (Whittington, 1999). Yet these justices have gone far to undermine this notion, even while attempting to reinvigorate the idea of a limited government of enumerated powers.  Judge Noonan sees this as more than a passing irony. First, a Court that has breathed life into the Tenth Amendment, pointing to its connection with the people and the states, has severely limited the recourse the people have against state power. In the chapters drawing on specific cases, Noonan ably demonstrates how the states may now discriminate against the old and the disabled, as well as violate patent and trademark laws, simply because they are states. Second, a Court critical of the judicial usurpation of democratic power has read the Eleventh Amendment in a fashion that pools its own power (even while the text of the amendment purports to limit judicial power). But this very move should lead us to be skeptical of Noonan’s larger claim. For all the talk of returning power to the states, this move is contingent upon the Supreme Court: it is the national Court, when all is said and done, that determines the contours of state power.

To insist, as Noonan does, that the Rehnquist Court has dramatically undermined the nation’s power masks an important difference between this Court and earlier courts: comparisons to the LOCHNER Court and the New Deal Court are overwrought (or at least premature). The Rehnquist Court has neither consistently thwarted a powerful national agenda nor prevented Congress from achieving politically significant results. Preoccupied by doctrinal innovation and Court pronouncements, Noonan fails to situate the Court within American institutions more generally. The struggle for judicial supremacy has once more begun, but whether the “consequences of the Court’s approach prove anodyne” or destructive, as Justice Breyer recently put it, remains to be seen (FMC v. SOUTH CAROLINA). In passing legislation such as the Violence Against Women Act, an example that Noonan specifically takes up in one chapter, Congress is in part “position taking.” So even when the Court struck down the act in UNITED STATES v. MORRISON (2000), members of Congress had already received their largest benefit—taking a principled (if rhetorical) stand. So long as the Court is not directly thwarting key congressional interests or denying a powerful majority from acting upon central issues (as the Court did in the early years of the New Deal), Congress may tacitly go along. Here Congress, largely for political reasons, appears reluctant to take up its role as an independent interpreter of the Constitution. If this gives the appearance of judicial supremacy, it is a sort of judicial supremacy on the cheap. Moreover, one could applaud the Court’s limiting national power under the commerce clause, while departing from the Court’s sovereign immunity decisions—not all limitations on national power are (constitutionally) equal. If the Court begins to truly “narrow the nation’s power,” in the ensuing struggle Congress should prove able to chasten the Court (assuming it has the political will to do so). It is interesting to note that in his closing chapter on “Sovereign Remedies,” Judge Noonan himself—perhaps having digested the watered-down tenets of judicial supremacy—appears reluctant to call on Congress to boldly insist upon its interpretation of the Constitution against the Court’s.

Still, even if the balance of power in the nation has not been dangerously shifted, Judge Noonan offers us a compelling indictment of sovereign immunity—an archaic doctrine that denies individuals rights and perpetuates injustice, a doctrine, in fact, that is corrosive of the very foundations of our constitutionalism.   

REFERENCES:

McCloskey, Robert. 1967. Editor, THE WORKS OF JAMES WILSON, Volume I. Cambridge: Harvard University Press. 

Whittington, Keith, 1999. CONSTITUITONAL INTERPRETATION: JUDICIAL REVIEW, TEXTUAL MEANING, AND ORIGINAL INTENT. Lawrence: University Press of Kansas.

CASE REFERENCES:

ALDEN v. MAINE, 527 U.S. 706 (1999).

CHISHOLM v. GEORGIA, 2 DALLAS 419 (1793).

FEDERAL MARITIME COMMISSION v. SOUTH CAROLINA STATE  PORTS AUTHORITY (2002). http://supct.law.cornell.edu/supct/html/01-46.ZDI.html. (J. Breyer dissenting.)

HANS v. LOUISIANA, 134 US 1 (1890).

LOCHNER v. NEW YORK, 198 US 45 (1905).

SEMINOLE TRIBE v. FLORIDA, 517 U.S. 44 (1996).

SCOTT v. SANFORD, 60 US 393 (1857).

UNITED STATES v. MORRISON, 529 US 598 (2000).

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Copyright 2002 by the author, George Thomas.