Allen v. Cooper Revisited: Part II – That Damned Eleventh Amendment

(NOTE: This post relies on information presented in Part I.)

In my first post in this series, I tried to summarize (albeit in nearly 3,000 words) the reasons why the states, and arms of the states, may freely infringe intellectual property without fear of being sued for monetary damages. I referred to the Eleventh Amendment as a pain in the neck, but also mentioned that the man usually credited for its existence, Justice James Iredell, is an interesting figure. This is because I like stories about the conceptual dichotomies tugging at one another during the founding period of the United States, especially when those tensions are manifest in a single individual.

As a Justice of the Supreme Court, Iredell wrote the singular, dissenting opinion that resulted in the most acute expression of states’ rights in the Constitution. But he was also a passionate advocate of the federal plan at a time and place when the audacity of those men in Philadelphia, initially tasked with fixing the Articles of Confederation, was a source of considerable irritation among many Americans.

In July of 1788, when some 300 county delegates of the State of North Carolina met in Hillsborough to decide whether to join the ten states that had already ratified the Constitution, Iredell was among the minority of those who favored the plan of the Convention. In fact, most of North Carolina’s representatives were already so sure of their intent to reject the Union, that they moved to vote immediately on the matter and return home. And it was Iredell who rose to make an impassioned plea for a section-by-section debate on the text of the document. Acknowledging his inclination toward adoption, he declared …

“My constituents did me the honor to elect me unanimously, without the least solicitation on my part. They probably chose me because my sentiments were the same with their own. But highly as I value this honor, and much as I confess my ambition prompted me to aspire to it, had I been told that I should not be elected unless I promised to obey their directions, I should have disdained to serve on such dishonorable terms. Sir, I shall vote perfectly independent, and shall certainly avow a change of my present opinion, if I can be convinced it is a wrong one.”

So, after nearly three days of debate as to whether there should be a debate, Mr. David Caldwell rose near the start of Day Four to ask whence the Convention delegates derived the authority (i.e. the arrogance) to begin their preamble with We the people…. Iredell must have been among those who thought to himself, “This is going to be a long bloody meeting,” while patiently listening to Archibald Maclaine (who would later help draft the Bill of Rights) explain that if the Constitution were adopted, it would become North Carolina’s law as well, and thus, the citizens of the state would be represented by the words We the people. I mention this not only because it’s funny, but to emphasize the atmosphere of distrust that existed with regard to the allegedly insidious Constitution.

Throughout the substantive debate on the various articles and clauses, Iredell was, of course, not the only advocate of the federal plan. William Davie, who served as a delegate at Philadelphia, naturally argued the cause of ratification. But it is notable that Iredell, who, in February of 1890, will be nominated by Washington as one of the nation’s first Supreme Court Justices, consistently plays the role of interpreter at Hillsborough. He intermittently defends the principles of a contested paragraph or section, principally by explaining how the delegates who express concern have misread the meaning of the text. In short, Iredell emerges as the jurist in the room.

North Carolina ratified the Constitution on November 21, 1789, making it the twelfth state to join the Union, and, like the straggler Rhode Island, its delegates had principally delayed on the grounds that they wanted a bill of rights added to the general legislature. As many of us were taught in school, there were founders who argued that an affirmative statement of rights was dangerous because it meant that all rights not named were impliedly not protected. Iredell, a member of this latter camp; inveighed against a bill of rights, declaring …

“…when it is evident that the exercise of any power not given up would be a usurpation, it would be not only useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation; and it would be impossible to enumerate every one.”

This was during the fairly heated debate on Article III, establishing the federal judiciary, which stoked the anxieties of many delegates, fearing that certain rights, like trial by jury, were not expressly guaranteed in the federal plan. Although the subject of state immunity from suit was not raised at Hillsborough, the issue of “diversity” was discussed. Article III, Section 2 contains what are known as the Diversity Clauses, which were meant to alleviate fears of “home-court advantage,” where state courts may be prejudiced against suits brought by residents of foreign states. Hence, the need for uniform (i.e. federal) remedies, which Iredell explained thus:

“A man in North Carolina, for instance, if he owed £100 here, and was compellable to pay it in good money, ought to have the means of recovering the same sum, if due to him in Rhode Island, and not merely the nominal sum, at about an eighth or tenth part of its intrinsic value. To obviate such a grievance as this, the Constitution has provided a tribunal to administer equal justice to all.”

If Iredell’s sentiments, which I have barely skimmed here, do not quite sound like a those of a man who would have asserted that Congress, under its Article I powers, could never have the authority to abrogate state immunity, this is because most evidence points to the conclusion that he believed no such thing. In fact, according to Justices Souter and Stevens, in their dissents in Seminole Tribe, Iredell does not even articulate this view in his dissent in Chisolm v. Georgia, which provided the blueprint for the Eleventh Amendment. Stevens writes …

“Justice Iredell relied on the text of the Judiciary Act of 1789, not the State’s assertion that Article III did not extend the judicial power to suits against unconsenting States. For Justice Iredell, then, it was enough to assume that Article III permitted Congress to impose sovereign immunity as a jurisdictional limitation; he did not proceed to resolve the further question whether the Constitution went so far as to prevent Congress from withdrawing a State’s immunity.”

What I find compelling about the Stevens and Souter dissents in Seminole (especially Souter’s) is the scope and depth of historical evidence presented to support the conclusion that the majority erred in Seminole, when it held that the Eleventh Amendment bars Congress from abrogating state immunity under its Article I powers. First, Souter maintains, that the majority rested its opinion on a flawed reading of a case from 1890 (Hans v. Louisiana), about which he writes …

“The Court [in Hans] elected, to recognize a broader immunity doctrine, despite the want of any textual manifestation….Because no federal legislation purporting to pierce state immunity was at issue, it cannot fairly be said that Hans held state sovereign immunity to have attained some constitutional status immunizing it from abrogation….the Court today simply compounds the already serious error in taking Hans the further step of investing its rule with constitutional inviolability against the considered judgment of Congress to abrogate it.

Souter presents a compelling, in-depth narrative to argue that interpreting the Eleventh Amendment as blanket immunity for states is untethered from its intent in 1795 and more broadly asserts “that American political thought [at the founding period] had so revolutionized the concept of sovereignty itself that calling for the immunity of a State as against the jurisdiction of the national courts would have been sheer illogic.”

More specifically, Souter cites Justice Marshall in Cohens v. Virginia (1821), stating, “The point of the Eleventh Amendment, according to Cohens, was to bar jurisdiction in suits at common law by Revolutionary War debt creditors, not ‘to strip the government of the means of protecting, by the instrumentality of its Courts, the constitution and laws from active violation.’”

Like many of you, I finally saw Hamilton over the Independence Day weekend on Disney+, and I was very amused by the portrayal of Jefferson as a rock-star dilettante, especially when he debates, in rap-battle-style, Hamilton’s plan to assume state debts and establish a national bank. War debts were a profoundly sensitive matter at the time, especially when the debtor was a state that owed money to a citizen of another state, as was the case in Chisolm (and again in Hans after the Civil War). Hence, there is ample historic evidence to recommend Souter’s interpretation of the intent of the Eleventh Amendment.

Souter and Stevens maintain that the Eleventh Amendment was narrowly written to “constrict the scope” of the Diversity Clauses of Article III. In a nutshell, if a plaintiff’s ONLY plea to trial in federal court, when suing a state, is fear of bias, the amendment prohibits the lawsuit. As Souter writes, “The best explanation for our practice belongs to Chief Justice Marshall:  the Eleventh Amendment bars only those suits in which the sole basis for federal jurisdiction is diversity of citizenship.” [Emphasis added]

And perhaps most pointedly, Souter invokes Iredell in Chisolm, stating “[t]he United States are sovereign as to all the powers of government actually surrendered: each State in the Union is sovereign, as to all the powers reserved.” So unless some scholar wants to unravel the body of evidence Souter brings to the table, one must accept his argument that nowhere in the record is there any evidence that the intent of the framers was to “affirmatively guarantee state sovereign immunity against any congressional action to the contrary.”

Despite the fact that the Souter dissent provides a far more scholarly case for its interpretation of the Eleventh Amendment than the reasoning presented by the majority in Seminole, the former is not the holding that prevails. Anyone who may have grounds to bring civil federal claims against a state, or state actor, is barred from doing so in nearly all instances. Not just copyright and other intellectual property complaints.

As described in this post, there are some quirky coincidences associated with the Allen v. Cooper case, and among these is the fact that this epic tale of state sovereign immunity begins and ends (for now) in North Carolina. After all, documentary filmmaker Rick Allen is a citizen of North Carolina, who sued his home state for infringement of his audio-visual works. So, a plain reading of the Eleventh Amendment might lead one to think that this automatically qualifies him to sue, given the textual certainty of the words, “…against one of the United States by citizens of another state.” Yet, it was the Hans decision—130 years ago—that magically erased the citizens of another state condition and, according to Souter’s dissent in Seminole, erased all historic context to go with it.

© 2020, David Newhoff. All rights reserved.

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