|OF SOVEREIGNTY AND FEDERALISM|
96 Yale Law Journal 1425 (presented for educational purposes)
Akhil Reed Amar [FNp]
Victims of government-sponsored lawlessness have come to dread the word 'federalism.' Whether emblazoned on the simple banner of 'Our Federalism' [FN1] or invoked in some grander phrase, [FN2] the word is now regularly deployed to thwart full remedies for violations of constitutional rights. Consider, for example, the Burger Court. Rallying under flags of federalism, the Justices pushed back remedies for segregation in public schools, [FN3] denied relief to citizens threatened by racially discriminatory police brutality, [FN4] cut back federal habeas corpus for state prisoners convicted in tainted trials, [FN5] and forced lower federal courts to dismiss a broad range of suits challenging unconstitutional state conduct. [FN6]
So too, 'sovereignty' has become an oppressive concept in our courts. A state government that orders or allows its officials to violate citizens' federal constitutional rights can invoke 'sovereign' immunity from all liability--even if such immunity means that the state's wrongdoing will go partially or wholly unremedied. [FN7] When the national government invades constitutionally protected zones, 'sovereign' immunity is once again wheeled out to defeat the remedial imperative. [FN8]
To be sure, our Constitution does embody structural principles of federalism and sovereignty. Yet that same document also guarantees certain fundamental individual rights against government. Is the Constitution therefore divided against itself? Is the way in which it constitutes political bodies at war with the legal rights that it constitutionalizes?
In this essay, I hope to offer a neo-Federalist answer--one that allows us to see how the Constitution's political structure of federalism and sovereignty is designed to protect, not defeat, its legal substance of individual rights. [FN9] I seek to counter the Supreme Court's version of federalism and sovereignty with the framers' version--to replace 'Our Federalism' with their federalism, and government sovereignty with popular sovereignty.
Section I of this essay revives the Federalist ideas that true sovereignty in our system lies only in the People of the United States, and that all governments are thus necessarily limited. These ideas pervade the Constitution and inform its structure of federalism. In the martial language of the eighteenth century, each limited government, state and national, can serve as a 'sentinel' to 'check' the other's 'encroachments' on the constitutional rights reserved by the sovereign People. [FN10] Guided by emerging principles of agency law and organization theory, the Federalists consciously designed a dual-agency governance structure in which each set of government agents would have incentives to monitor and enforce the other's compliance with the corporate charter established by the People of America. [FN11]
Some of the terrain explored in Section I should be familiar ground to students of constitutional law today. Indeed, it is precisely the familiarity of that section's basic ideas that sharpens my neo-Federalist critique of current legal ideas in subsequent sections of this essay. Although judges and scholars often chant the mottoes of popular sovereignty and limited government, they have developed specific legal doctrines and thought patterns that misapply these basic ideas. In Sections II and III, I examine two areas of misapplication, involving governmental immunities and constitutional remedies.
In Section II, I argue that no government entity can enjoy plenary 'sovereign' immunity from a suit alleging a violation of constitutional right. 'We the People of the United States,' through the Constitution, have delegated limited 'sovereign' powers to various organs of government; but whenever a government entity transgresses the limits of its delegation by acting ultra vires, it ceases to act in the name of the sovereign, and surrenders any derivative 'sovereign' immunity it might otherwise possess. Simply put, governments have neither 'sovereignty' nor 'immunity' to violate the Constitution. Whenever they do act unconstitutionally, they must in some way undo the violation by ensuring that victims are made whole. In many cases, only governmental liability can provide this assurance. [FN12]
In Section III, I argue that a healthy competition among limited governments for the hearts of the American People can protect popular sovereignty and spur a race to the high ground of constitutional remedies. Each government can act as a remedial cavalry of sorts, eager to win public honor by riding to the rescue of citizens victimized by another government's misconduct. This argument both invokes and inverts conventional thinking about 42 U.S.C. section 1983, which provides a federal cause of action--a legal 'sword' [FN13] --to victims of unconstitutional state conduct. [FN14] We are quick to see the many ways in which the national government can bid for its citizens' political affections by aiding those whose constitutional rights have been, or are about to be, invaded by persons acting under color of state law. Yet we often fail to note that federalism cuts both ways--that states can gain political goodwill by arming their citizens with remedies for constitutional wrongs threatened or perpetrated by federal officials. Perhaps this failure stems from the fact that no state has ever adopted a general 'converse-1983' [FN15] cause of action expressly allowing suit against any federal agent who acts unconstitutionally. Yet state 'private law' protections of liberty and property have historically furnished countless occasions for vindicating complementary constitutional 'public law' protections of liberty and property against the federal government. For example, until the 1971 case of Bivens v. Six Unknown Federal Agents, [FN16] the only general damage remedy for a citizen victimized by federal violations of the Fourth Amendment derived from state trespass law. Moreover, if a single state were tomorrow to adopt a suitably worded converse-1983 statute--and the federal judiciary were to uphold the statute (as it should, I shall argue)--then competitive pressures among states might well goad other states to join the remedial campaign and enact like statutes. This interstate dynamic bears some similarity to the 'race to the top' posited by many corporate law scholars. [FN17]
Properly understood, federalism and sovereignty need not stand as cruel bars to full redress for unconstitutional conduct. Rather, they were originally understood to be, often have been, and can become once again, the very tools to right government wrongs. If federalism and sovereignty seem perverse today, it is only because our jurisprudence has perverted them, clumsily attempting to hammer legal devices for abused citizens into doctrinal defenses for abusive governments.
A full constitutional account of sovereignty and federalism calls for two complementary inquiries. One inquiry is rather formal: We must examine the compact set of words that we call the Constitution. The other inquiry is broader: We must come to terms with some of the great historical events and symbols lying beyond and behind the words themselves--events and symbols that constitute the shared historical legacy of twentieth century Americans, and that have constituted us as the People that we are today. [FN18] In particular, we must confront the momentous constitutional issues at the heart of the American Revolution and the Civil War. Each of these epic military and political struggles can be seen as part of a constitutional debate about sovereignty and federalism. In the Revolution and its wake, constitutional debate focused on whether sovereignty resided in government or in the People, and on how federalism should operate within Empire and Confederation. The Federalist Constitution responded to this debate with its own distinct vision of sovereignty and federalism. Yet that vision did not go unchallenged, and ratification did not end constitutional debate. Instead, extreme states' rights theorists, intellectual heirs of Anti-Federalist opponents of the Constitution, waged an increasingly fierce debate with the keepers of the Federalist flame over constitutional first principles. That debate, culminating in the Civil War, focused on whether sovereignty resided in the People of each state or in the People of the United States as a whole, and on how federalism should operate within Union. [FN19] The struggle ended with a reaffirmation and strengthening of the Federalist vision in the Reconstruction Amendments.
Ideas mattered to our revolutionary forebears. Colonial leaders took up arms in 1776 not simply because they found Parliament's actual policies during the 1760's and 1770's intolerable in fact, but also because--as a matter of principle--they could not accept the British idea that Parliament had legitimate authority to do anything it wanted to the colonies. Even worse than what Parliament had done in the past was what Britons claimed it could in theory lawfully do in the future. [FN21] In the war of ideas between Britain and America that preceded and inspired the military struggle over independence--an intellectual war whose battle lines were drawn over concepts of 'imperium' and 'empire'--a distinctly American vision of sovereignty and federalism began to crystallize.
The conventional British position understood 'sovereignty' as that indivisible, final, and unlimited power that necessarily had to exist somewhere in every political society. A single nation could not operate with two sovereigns any more than a single person could operate with two heads; some single supreme political will had to prevail, and the only limitations on that sovereign will were those that the sovereign itself voluntarily chose to observe. To try to divide or limit sovereignty in any way was to create the 'political monster' or 'hydra' of 'imperium in imperio'--'the greatest of all political solecisms.' [FN22] But where did this sovereignty reside in Britain? In the crown, of course, argued royal absolutists in the early seventeenth century. [FN23] God Almighty--the indivisible, unlimited sovereign of the universe-- had vested indivisible, unlimited temporal authority in the King, God's sovereign agent on earth. [FN24] After the English Civil War of the 1640's and the Glorious Revolution of 1688, however, few in England embraced royal supremacy. According to the new understanding, ultimate political authority derived not from the divine right of kings, but from the consent of the governed. Legitimacy flowed up from the People, not down directly from God. [FN25] Yet the unorganized polity at large could not effectively wield sovereign power on a day-to-day basis in fashioning and administering laws. At best, the People could assert their power in those rare meta-legal moments, like the Glorious Revolution itself, when one monarch was ousted and another consented to. In ordinary times, then, where did effective sovereignty lie? By the eighteenth century, the answer in Britain seemed clear: Sovereignty resided in the King-in-Parliament, that indivisible entity consisting of King, Lords, and Commons. Since all three 'estates,' or social orders, of the realm-- the one, the few, and the many--were 'virtually represented,' the King-in- Parliament became the virtual embodiment of the abstract sovereignty of the People. [FN26]
For Britons, the beauty of the system lay in its perfect symmetry and balance. Although the theoretical power of the King-in-Parliament was necessarily boundless--as Samuel Johnson put it, 'In sovereignty, there are no gradations. . . . [T]here can be no limited government' [FN27]--in practice the balance of competing forces within the mixed system of government would preserve liberty. No law could be enacted without the approval of all three orders of society, and thus no one estate could tyrannize the others. The excellence of the British Constitution lay in the way in which it constituted the King-in-Parliament; by blending all three classical forms of government--monarchy, aristocracy, and democracy--the British Constitution achieved an Aristotelian 'mean of means' that would avert the degeneration to which each pure 'unmixed' form of government was vulnerable. [FN28]
Rather different ideas were brewing on the other side of the Atlantic. During the 1760's and 1770's, many colonial leaders argued that various parliamentary enactments were void because they violated higher principles of the British Constitution reflected in reversed texts like Magna Charta, and in fundamental unwritten and common law traditions. These colonists came to define the British Constitution not merely as the structure and arrangement of governmental institutions, but also as a set of substantive legal principles limiting the legitimate exercise of government power. [FN29] The British found such colonial notions curious at best. Since the King-in-Parliament was itself the virtual embodiment of the British Constitution and the British People, how could any principle, however venerable, supersede that body's sovereign will? Talk of 'void' parliamentary enactments was nonsense--or treason. [FN30]
The colonial experience during the seventeenth and eighteenth centuries had prepared the ground for revolutionary ideas. In many colonies, written 'constitutions' prescribed substantive limits on the powers of the colonial government. [FN31] Several of these colonial 'constitutions' had originally been designed as corporate charters. The original Massachusetts Bay Company Charter, for example, provided for a 'governor,' a 'deputy governor,' eighteen 'assistants,' and regular 'general court s ' of freemen of the company--corresponding to what we would today refer to as a 'private' corporation's president, vice-president, board of directors, and shareholder meetings, respectively. [FN32] The colonists generally came to understand these corporate charters as 'constitutions' in the modern American sense-- foundational political instruments constituting and limiting governmental power. The people of Massachusetts saw their charter not simply as prescribing the governance structure of a profit-seeking entity, but as establishing the framework of colonial mixed government, blending powers of the one (the 'governor'), the few (the 'assistants') and the many (the 'freemen'). [FN33]
Ordinary language eased this assimilation. Like Magna Charta itself, the Massachusetts document was a 'great charter'--it was a written 'compact' or 'contract' among early inhabitants creating the 'corporate' entity of the colonial 'body politic.' Contemporary corporate law also emphasized the basic continuity between 'municipal' and 'private' corporations, entities that might today be seen as sharply distinct. [FN34] No general incorporation laws existed then. Each corporation came into being only by special act of the sovereign; each corporate charter--whether incorporating a profit-seeking joint venture, a charitable organization, [FN35] a municipality, or a colonial government--was a tailor-made and limited grant of special sovereign privileges. As James Iredell wrote in 1793:
The word 'corporations,' in its largest sense, has a more extensive meaning than people generally are aware of. Any body politic (sole or aggregate) whether its power be restricted or transcendent, is in this sense 'a corporation.' . . . In this extensive sense, not only each State singly, but even the United States may without impropriety be termed 'corporations.' [FN36]
The analogy between corporate charters and political constitutions had profound implications. Not all of these implications were universally perceived by colonial leaders, even as late as 1776. But slowly, subtly, the corporate analogy seeped deep into the thought patterns of the men who would eventually label themselves Federalists in 1787.
First, the analogy suggested that government power could be strictly bounded by its 'charter.' Just as corporate officials lacked lawful authority to go beyond the scope of their corporate charter, so conduct by government officials that transgressed substantive 'constitutional' limitations was null and void. Herein lay fertile seeds of limited government--of the American conception of a constitution as a fence around, and not merely the frame of, government. [FN37]
Second, the fence could be maintained by judges following an emerging body of agency law doctrine. Like corporate officers, government officials were merely agents of principals who had prescribed limits on the agents' power in the founding charter. Judges could enforce these limits by denying legal effect to the constitutionally unauthorized acts of government agents. Thus were laid the foundations of judicial review. Note how agency principles carry the bulk of the argument in the key passages of The Federalist No. 78's classic defense of judicial review:
There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid. . . . [T]he Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. [FN38]
Finally, the corporate analogy helped to revolutionize the concept of 'sovereignty' itself. Colonial governments undeniably fashioned and applied legal rules that directly regulated day-to-day life in the colonies. In this sense, they seemed to wield sovereign power. Yet the very notion of sovereignty as then understood in Britain suggested that sovereignty was unlimited. How, then, could the power of colonial governments be legally limited if the sovereign was by definition above the law? The ultimate American answer, in part, lay in a radical redefinition of governmental 'sovereignty.' Just as a corporation could be delegated limited sovereign privileges by the King-in-Parliament, [FN39] so governments could be delegated limited powers to govern. Within the limitations of their charters, governments could be sovereign, but that sovereignty could be bounded by the terms of the delegation itself. Yet Americans' redefinition of governmental sovereignty was only part of the answer, for they continued to subscribe to the British view that the source of delegated power--the true sovereign--must necessarily enjoy the essential attributes of indivisible, final, and unlimited authority. [FN40] Who, then, was the ultimate unlimited sovereign whose limited delegations both created and bounded government power? The American answer was at once traditional and arresting: True sovereignty resided in the People themselves. It was traditional, because one strand of Lockean thought had long recognized the inalienable (i.e., non-delegable) right of the People to alter or abolish their government through the exercise of the transcendent right of revolution-- a right that the British People had exercised in the seventeenth century, and that Americans invoked in 1776. [FN41] It was arresting, because eighteenth- century British theorists like William Blackstone had blunted the possible radical implications of Locke by insisting that the King-in-Parliament--the government--virtually embodied the sovereignty of the People. [FN42] In dramatic contrast, the American understanding drove an analytic wedge between the government and its People, relocating sovereignty from the former to the latter. Government officials were 'representatives,' 'agents,' 'delegates,' 'deputies,' and 'servants' of the People--but they were not the People themselves, virtually or otherwise. Therefore, government entities were sovereign only in a limited and derivative sense, exercising authority only within the boundaries set by the sovereign People. By thus relocating true sovereignty in the People themselves--'that pure, original fountain of all legitimate authority' [FN43]--Americans domesticated government power and decisively repudiated British notions of 'sovereign' governmental omnipotence. [FN44]
The relocation of sovereignty from governments to the People raised three knotty and related questions. First, how could the People truly be sovereign given their obvious inability to collectively govern day-to-day affairs? Second, how could governments that lacked ultimate sovereignty legitimately command obedience? Finally, was not the creation of 'limited' government a nonsensical attempt to divide necessarily indivisible sovereignty, thereby producing the solecism of imperium in imperio? Once again, agency principles furnished Americans with the critical tools of analysis. As sovereign, the People need not wield day-to-day power themselves, but could act through agents on whom they conferred limited powers. Within the sphere of these delegated powers, government agents could legitimately compel obedience in the name of their sovereign principal, but those agents lacked authority to go beyond the scope of their agency. So long as the People at all times retained the ability to revoke or modify their delegations, such agency relationships were in no sense a surrender or division of ultimate sovereignty. [FN45]
This change in thinking did not occur overnight. Considerable noise, literally and figuratively, punctuated the great constitutional debates between 1763 and 1789. Old words took on new meanings, as patriots struggled to build an intellectual framework that would order their thinking, affirm their deepest values, and make sense of the ideological spinning--the ideological revolution [FN46]--around them. Some, like James Wilson who ' m ore boldly and fully than anyone else . . . developed the argument that would eventually become the basis of all Federalist thinking' [FN47] about sovereignty, evolved a careful and precise vocabulary in which government only had 'power' but never 'sovereignty.' [FN48] Others, like Alexander Hamilton, James Madison, John Marshall, and James Iredell, used different words to the same effect. When they spoke of government as sovereign they meant sovereign in a necessarily limited sense. By definition, government's sovereignty was bounded; government was sovereign within its sphere of delegated power, and powerless beyond.
After declaring independence in 1776, each individual colony faced the immediate challenge of forging a new constitutional regime to fill the legal void created by separation from Britain. Unevenly and tentatively at first, but with increasing confidence and clarity. Americans began to put ideas of popular sovereignty into practice by giving concrete legal meaning and institutional substance to the emerging theoretical distinction between the People and their representatives. North Carolina's new constitution, adopted in late 1776, began with a bold declaration of rights limiting the power of state officials. The declaration's opening words are noteworthy yet unsurprising: '[A]ll political power is vested in and derived from the people only.' [FN50] A decade later, only a year before the North Carolina Supreme Court definitively construed the document to provide for judicial review of state legislation, James Iredell underscored his state's rejection of the British parliamentary model:
It was, of course, to be considered how to impose restrictions on the legislature . . . [to] guard against the abuse of unlimited power, which was not to be trusted, without the most imminent danger, to any man or body of men on earth. We had not only been sickened and disgusted for years with the high and almost impious language from Great Britain, of the omnipotent power of the British parliament, but had severely smarted under its effects. We . . . should have been guilty of . . . the grossest folly, if in the same moment when we spurned at the insolent despotism of Great Britain, we had established a despotic power among ourselves. [FN51]
Iredell elaborated this theme in a later speech: 'Our government is founded on much nobler principles. The people are known with certainty to have originated it themselves. Those in power are their servants and agents; and the people, without their consent, may new-model their government whenever they think proper . . ..' [FN52] In Massachusetts, the ratification process itself dramatized the new American understanding of popular sovereignty. The proposed state constitution of 1778 went down to defeat in a popular referendum in part because of the symbolic point that it had been framed by the legislature--the government--and not by a specially elected constitutional convention of the People themselves. [FN53] Two years later, a new draft constitution emerged from a special convention and won popular approval. Equally dramatic was the constitution's language:
'All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive or judicial, are their . . . agents, and are at all times accountable to them.' [FN54]
Similar dramas were played out in other states as the former colonists framed new constitutions during the decade after the Declaration. [FN55] The details vary from state to state, but it is enough to note here that various local dress rehearsals (for so they appear in retrospect) set the stage for the great act of popular sovereignty that was the framing and ratification of the Federalist Constitution.
The constitutional Convention of 1787 drew delegates from twelve states to Philadelphia to ponder anew the fate of the continent. Four main tasks faced the men who met there: creating a strong but limited central government, protecting individual rights against the states, dividing power within the central government, and dividing power between local and central officials. To perform each of these tasks, the Federalists leaned upon their new understanding of the sovereignty of the People. Indeed, this single idea informs every article of the Federalist Constitution, from the Preamble to Article VII. [FN56] It was thus no happenstance that the Federalists chose to introduce their work with words that ringingly proclaimed the primacy of that new understanding: 'We the People of the United States . . . do ordain and establish this Constitution for the United States of America.' James Wilson, who as a member of the Philadelphia Committee of Detail himself penned what became the Constitution's famous first three words, later explained:
To the Constitution of the United States, the terms SOVERELIGN, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves 'SOVEREIGN' people of the United States [sic]. . . . [FN57]
The Federalists' first job was to build a new central government that would be strong yet bounded. Under the discarded British understanding, the task seemed impossible by definition. If the national government were sovereign, how could its powers be limited? If not, how could it enjoy any legitimate authority to enforce its will? The Federalists dissolved the dilemma by crafting the Constitution as a set of broad yet bounded delegations of sovereign power from the sovereign People to various agents who would constitute the new central government. The limitations on that new government took the form of both express prohibitions--as in Article I, section 9 and the later Bill of Rights--and finite delegations. By carefully enumerating the powers granted, the framers made clear that the new government would enjoy no other general 'sovereign' powers. Under the well-established rule of construction, expressio unius est exclusio alterius, the People retained all powers not expressly or impliedly delegated by enumeration--powers they could either give to other government agents in individual states, or withhold from all governments. [FN58] This structural canon of retained nondelegated powers was later made explicit by the text of the Tenth Amendment.
The Federalists also worked to forge a strong set of federally enforceable individual rights against states--in Madison's words, to correct 'the abuses committed within the individual states . . . by interested or misguided majorities.' [FN59] The 'multiplicity,' 'mutability,' and 'injustice' of extant state laws constituted a 'dreadful class of evils' requiring a federal 'remedy.' [FN60] Indeed, Madison wrote Thomas Jefferson that 'the evils issuing from these sources contributed more to that uneasiness which produced the Convention, and prepared the Public mind for a general reform, than those which accrued to our national character and interest from the inadequacy of the Confederation to its immediate objects.' [FN61]
Once again, the sovereignty of the People lay at the heart of the Federalist solution. By ratifying the new Constitution, the People themselves could impose limitations on powers previously exercised by state governments. To deny this would be to deny the right of the principal to modify or revoke a power previously delegated to an agent, and to interfere with the sovereign right of the People to 'alter or abolish' their governments at any time. But only direct ratification by the People in convention, [FN62] as proposed by the new Constitution, could securely limit state governments. The Articles of Confederation had not attempted to impose 'internal' limitations on the power of each state government towards its own citizens--that was one of the document's chief flaws, in Federalist eyes [FN63]--but any effort to impose such restrictions might well have been illusory. Having been ratified only by state legislatures, how could the Articles have imposed any binding restrictions on those bodies in favor of individual rights? What a majority in one state legislature had done by ratification, a subsequent legislature could arguably undo by a similar majority. Only a document emanating from a higher source than a state legislature itself could undeniably bind that body. [FN64] Although the Constitution's most sweeping assertions of federal power on behalf of individual rights lay three-quarters of a century and a Civil War away, the Federalists at Philadelphia succeeded in imposing significant federal restrictions on state power. Federal courts would prevent states from passing bills of attainder or ex post facto laws, coining money or emitting bills of credit, denying the privileges and immunities of out-of-staters, or impairing the obligation of contract; Congress would guarantee citizens of each state a republican state government by refusing to seat representatives from anti- republican regimes, and by helping to put down attempted insurrections and coups; and the President would retain ultimate command of state militias when they were called into national service.
The third job confronting the framers was to allocate authority within the new central government. Once again, the Federalists consciously broke with British Blackstonian orthodoxy. Far from seeking to create an indivisible central organ to wield all national power, the Federalists labored to divide power among distinct agencies. To them, '[t]he accumulation of all powers . . . in the same hands . . . may justly be pronounced the very definition of tyranny.' [FN65] They viewed the Congress created under the Articles of Confederation as dangerous precisely because it was a single body invested with all powers conferred by that instrument. The only thing saving such a wretched system, they argued, was the skimpiness of the national powers delegated. The unicameral assembly created by the Articles lacked power to regulate commerce; to levy duties; to legislate directly upon, and directly tax, individuals; to nullify unjust internal state laws; to enact laws incidental to, or implied by, express enumerations; to nationalize state militias; to directly raise an army and navy; to appoint all military officers; to suppress internal insurrections, coups, and anti-republican governments; to directly execute its own enactments; to set up a general system of national courts; and to insist on observance of the Articles and its own enactments thereunder as supreme law overriding even state constitutions. Because the Federalists proposed to add all of these grand powers, and more, to the central government, they needed to effect a radical redesign of its internal architecture. [FN66] The evil to be avoided was plain enough: an indivisible national assembly that might view itself as the virtual embodiment of the People, unlimited in its powers--in short, Blackstone's Parliament:
The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter . . .. [FN67] The legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex. . . . [I]t is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. [FN68]
The Federalists' strategy for avoiding legislative tyranny was twofold. First, divide the legislature itself into two separate houses chosen in different ways and holding different terms of office. Each house would have strong institutional incentives to deny any grandiose claim made by the other that it alone was the true embodiment of the People. [FN69] Second, diffuse power further by creating independent national executive and judicial branches. Under the Articles, central executive and judicial officers were pitiful creatures of Congress, dependent on its pleasure for their place, tenure, salary, and power. In sharp contrast, the Federalist Constitution mandated the existence of a national executive and judiciary; rigidly fixed the tenure of the President and federal judges (qualified only by the possibility of removal upon impeachment and conviction for grave misconduct); guaranteed those officers' salaries; and vested them with large portions of power beyond legislative control. [FN70] Although their methods of selection and tenures of office varied, all national officials ultimately derived their authority from the People. The President and federal judges were as much agents of the People as the legislators were; each branch--each agency--was equal and co- ordinate. [FN71] And each agency would have incentives to win the trust and affection of the principal (the People) by exposing and resisting ultra vires acts of less faithful agencies. Lest management come to act as if it owned the corporation, the shareholders of America [FN72] created several sets of managers to keep an eye on each other as they minded the national store. [FN73] The classic formulation of the point is Madison's The Federalist No. 51:
[T]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition. . . .
This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. . . . [T]he private interest of every individual may be a sentinel over the public rights. [FN74]
The parallels between Madison's model of political competition and Adam Smith's (then new) model of economic competition are both self-conscious [FN75] --witness Madison's reference to 'private as well as public' incentive systems--and powerful. Both models rely on overarching incentive structures to harness individual self-interest (whether ambition or avarice) in a way that promotes some larger public good (whether 'public rights' or national wealth). Both models depend on competition to further liberty and forestall undesirable concentrations of power (whether tyranny or monopoly).
Finally, the Federalists faced the problem of allocating power vertically between central and local officils--the problem of federalism. The issue was notoriously difficult. In the mid-1770's, it had cracked open the British Empire. A decade later, and for different reasons, it was threatening to dissolve the existing confederacy of states. Yet again, the emerging Federalist principles of popular sovereignty and agency theory allowed a new constitutional solution.
Until quite late in the revolutionary debate, the colonists had been willing to concede, as a practical matter, parliamentary authority to regulate a small but important set of matters of truly imperial scope, such as foreign affairs and trade among different parts of the Empire. After all, someone had to have power to make these trans-colonial decisions if the Empire were to remain a viable entity, and Parliament seemed as good a choice as any. Yet the colonists categorically denied that an unrepresentative central assembly sitting months away in England should also have plenary control over truly internal affairs of colonial government like everyday taxation and legislation. Such domestic affairs should be exclusively regulated by local bodies. In short, the colonists were willing to refine and codify the rough de facto allocation of decisionmaking responsibility that had prevailed in the colonies before 1763. [FN76]
The British found the Americans' first proposals to constitutionalize federalism--for so we should view them with hindsight--theoretically incoherent. Perhaps a working balance between central and local authority had been achieved during the colonies' first century and a half, but local autonomy was purely a matter of parliamentary grace, not constitutional right. [FN77] Either Parliament or each colonial assembly was sovereign. If the former, Parliament enjoyed all power over all affairs, no matter how 'internal.' If the latter, then Parliament had no authority whatsoever, even to regulate imperial affairs, and a raw state of nature existed between Great Britain and America. The colonists' proposed constitutional division of authority was a nonsensical imperium in imperio; like sovereignty, the Empire was legally an all or nothing concept. Take it or leave it. [FN78] Faced with this choice, the colonists left it. [FN79] Yet there remained the problem of weaving a new cloak of federalism to replace the imperial one cast off.
In relocating sovereignty from the government to the People, the revolutionary generation initially seemed to have in mind the People of each state, and not the People of the United States as a whole. The colonies united to declare their independence, but their Declaration proclaimed them to be 'free and independent states' [FN80]--independent even of each other, save as they chose to concert their action. [FN81] In short, they were united states, not a unitary state; they were thirteen Peoples, not (yet) one People. Thus the sovereignty of the People--a concept that the colonists had wielded so skillfully as various newly-independent states adopted their own internal constitutions--proved a blunt instrument when the revolutionary generation turned to matters of inter-state governance. Their first formal instrument--the Articles of Confederation--was therefore strikingly traditional.
Under traditional jurisprudence, sovereign states could enter into treaties with one another, and might even join together in a perpetual federation, or league, without losing their sovereign status. [FN82] Such a federation would in no sense be an internal government exercising sovereign coercive powers over individuals; rather, it was an association of states, a 'society of societies,' [FN83] that could coordinate joint action by its 'sovereign' members. This sort of federation by mutual treaty was exactly what the Revolutionaries had in mind when they created the Articles. The document was not styled as a 'constitution' (as were the new charters within each state) but as a 'confederacy,' a 'firm league of friendship' entered into by 'different states,' each of which would 'retain its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.' [FN84] The central organ created was not so much a national 'legislature' (that word appears only in the document's reference to individual state governments) as an international assembly of ambassadors. The very word chosen to describe the cental assembly, 'Congress,' suggested its inter-sovereign character, [FN85] and so did its organizational structure. Each state legislature would appoint a 'delegat ion ' of between two and seven members, with each delegation to vote as a bloc casting one vote, regardless of its size or its state's population; delegations were to be paid by state governments which could alter salaries at will to keep delegates in line; state governments expressly retained the right to 'recall' and replace their ambassadorial delegates 'at any time'; and each delegate was guaranteed a sort of diplomatic immunity from state arrest and imprisonment. [FN86] Finally, to prevent delegates from developing unduly strong attachments to the union, each was to be elected annually, was forbidden to hold 'any' [FN87] remunerative 'office under the United States' (there was no similar proscription against holding other state offices), and was ineligible to serve in Congress for more than three out of any six consecutive years. Although the Congress enjoyed some important powers on paper, it had no means of carrying them out or of compelling compliance. It could not directly tax or legislate upon individuals; it had no explicit 'legislative' or 'governmental' power to make binding 'law' enforceable as such in state courts; it lacked authority to set up its own general courts; and it could raise troops and money only by 'requisitioning' contributions from each state. On paper, such requisitions were 'binding.' In fact, they were mere requests. As one contemporary writer put it, Congress 'may declare every thing, but do nothing.' [FN88]
By the time of the Philadelphia Convention, the Confederation was in shambles. Various states refused to honor requisitions, flouted official judgments in the very limited category of controversies committed to central courts, enacted laws repudiating earlier treaties entered into by Congress, waged unauthorized local wars against Indian tribes, conducted negotiations with foreign nations independently of Congress, and maintained standing armies without congressional permission--all in clear contravention of the Articles. [FN89] In short, the 'United States' in 1787 was not much more than the 'United Nations' is in 1987: a mutual treaty conveniently dishonored on all sides. Indeed, it was precisely the Articles' status as a fallen treaty that Madison seized on to justify the Philadelphia Convention's bold declaration that its new Constitution would go into effect among any nine states that chose to ratify it--notwithstanding the Articles' clear requirement that all amendments to it be unanimously adopted:
A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the multiplied and important infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate. [FN90]
The Philadelphia delegates thus had the benefit of two previous efforts to achieve a theoretically acceptable and practically workable federalism. The imperial model had proved unacceptable because it centralized all power, denying individual state governments any role as independent centers of authority. In the language of the time, it was a pure 'consolidation' that 'melted down' all states into one monstrous 'common mass.' [FN91] It was too 'national.' The Articles of Confederation, on the other hand, had failed because there was insufficient gravitational pull from the center to counter the centrifugal tendencies of each state. The system was too 'federal.' [FN92] What America needed, then, was some third model that balanced centripetal and centrifugal political forces--a harmonious Newtonian solar system in which individual states were preserved as distinct spheres, each with its own mass and pull, maintained in their proper orbit by the gravitational force of a common central body. [FN93] It was exactly such a system--'in strictness, neither a national nor a federal Constitution, but a composition of both' [FN94]--that the Federalists conceived in Philadelphia.
Once again, the heart of the issue was sovereignty. The Articles had crumbled because they had been erected on the uneven and shifting foundation of the sovereignty of the People in each state. The imperial model had failed because it asserted the omnipotent sovereignty of the central assembly, Parliament. Yet to state the matter this way was to glimpse a third and more promising alternative: Sovereignty must be vested in the People of the United States as a whole. Such a system could shore up the inherent instability of the Articles of Confederation. It could also avoid the monumental centralism of the imperial model by relocating sovereignty from the national assembly to the People of the nation. The People could limit the delegated authority of the national government and stipulate that certain powers be reserved for the government of each state.
Agency theory helped the Federalists conceptualize such a system in legal terms. Consider, for example, Madison's The Federalist No. 46:
The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other.
These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone . . .. [FN95]
As with separation of powers, federalism enabled the American People to conquer government power by dividing it. Each government agency, state and national, would have incentives to win the principal's affections by monitoring and challenging the other's misdeeds.
It is tempting here simply to invoke the Constitution's famous first seven words--'We the People of the United States'--and be done with it. For at first blush, they seem to furnish irrebuttable proof that the sovereignty of one united People, instead of thirteen distinct Peoples, provided the new foundation of the Federalist Constitution. The temptation is all the greater because of the (quite literal) primacy of these words in the text itself, their centrality in the minds of both pro- and anti-ratification leaders in the various state conventions, [FN96] and their prominence in the early landmark opinions of the Supreme Court. [FN97] Yet while the best reading of the Constitution supports the unitary People thesis, [FN98] we must resist the temptation to place exclusive reliance on the Preamble's opening phrase. Any argument based solely on these words proves too much. The Declaration of Independence was made 'in the Name, and by the Authority of the good People not Peoples of these colonies,' and the Articles of Confederation spoke of 'the people again singular of the different states in the union.' [FN99] Yet, as we have seen, neither of these documents, taken as a whole, is best understood as proclaiming that Americans were one sovereign People. [FN100] Nor is the question of which People were sovereign a purely pedantic one whose nuances we need not ponder. On this question hinges nothing less than a proper understanding of the most momentous issues in the subsequent history of American federalism--issues framed by the great antebellum debate between states' rightists and nationalists.
The ratification of the Federalist Constitution both reflected and reinforced the emerging American consensus that the People were sovereign and that governments were therefore necessarily limited. [FN101] On this point, men who agreed on little else--Thomas Jefferson and Alexander Hamilton, [FN102] Spencer Roane and John Marshall, [FN103] John C. Calhoun and Joseph Story [FN104] --spoke with one voice. Yet if, to quote Jefferson's first inaugural address, Americans were 'all republicans . . . all federalists' [FN105] on the issue of the sovereignty of the People, the two parties had very different 'Peoples' in mind. [FN106]
To states' rightists (the Anti-Federalists and Republicans of the early antebellum period, the Confederates of the 1860's), the People of each state were sovereign. Each People had their own unique set of government agents (state government) and a set of agents in common with the Peoples of other states (the federal government). [FN107] The Constitution was a purely federal compact among thirteen sovereign principals to coordinate certain joint activities by employing a common agency. To these states' rightists, the Constitution marked no sharp break with the sovereignty structure of the Articles of Confederation. [FN108] At most the Constitution simply made clear that sovereignty did not reside in state legislatures, as the Articles could have been (mis)interpreted as implying, but in state Peoples. [FN109]
To nationalists (the Federalists of the early antebellum era, the Unionists of the 1860's), the People of the United States as a whole were sovereign. The People had a unique set of national agents representing the whole (the federal government) and various sets of local agents representing parts of the whole (state governments). [FN110] The Constitution was not an inter-sovereign compact or treaty, but a supreme statute deriving from the supreme sovereign legislature--the People of the nation. [FN111] These nationalists either argued that the Constitution sharply broke with the pre-existing structure of sovereignty, [FN112] or claimed that ever since the Declaration of Independence, Americans had been one People notwithstanding a purely formal reading of the text of the Articles of Confederation. [FN113]
Nationalists and states' rightists could offer complementary-- indeed, virtually identical--accounts of how the sovereignty of the People enabled the Constitution to empower yet limit federal officers, to impose restrictions on state governments, and to separate and divide power within the federal government. On such questions, it did not much matter which People were sovereign, but only that 'the People' were and that governments were not. On issues of federalism, however, divergent understandings of sovereignty pointed the two parties in opposite directions.
On the level of day-to-day government, the two parties' visions yielded conflicting implications for the scope of federal legislative and judicial power. Consider first the scope of Congress' legislative powers under Article I--the first question of McCulloch v. Maryland. [FN114] If the Constitution was in fact a compact among thirteen sovereign Peoples, then arguably Article I should be strictly construed, in accordance with the traditional rule that treaties generally be interpreted narrowly. Indeed, this was exactly Jefferson's interpretive strategy in arguing against the constitutionality of the first national bank. [FN115] If, however, the Constitution was not a treaty among different Peoples but a grant of power by one People to a special set of national agents, then Hamilton's rejoinder to Jefferson gained weight:
This restrictive interpretation of [Article I] is also contrary to this sound maxim of construction; namely, that the powers contained in a constitution of government, especially those which concern the general administration of the affairs of a country, its finances, trade, defense, etc., ought to be construed liberally in advancement of the public good. [FN116]
Consider next the scope of the Supreme Court's appellate jurisdiction over state courts--the issue in Martin v. Hunter's Lessee. [FN117] States' rightists found it hard to believe that the sovereign People of Virginia had delegated the last word on the meaning of the federal compact (at least as it applied to Virginia) to a federal judiciary beyond their exclusive control. [FN118] Nationalists, however, found it equally implausible that the sovereign People of America had intended to forbid agents of 'the whole' to review judicial decisions about the meaning of the Constitution rendered by agents of a local 'part.' [FN119] Of course, as a logical matter, the question whether the People of the state or of the Union were sovereign did not necessarily dictate the allocation of power between state and federal government. Even if the Constitution was an inter-sovereign compact, it obviously contemplated an exceptionally tight federation whose nature and purposes might warrant deviation from the general rule that treaties be narrowly construed. [FN120] Similarly, there was nothing in the logic of sovereignty that would have prevented the People of Virginia from giving federal judicial agents the last word (vis-a-vis state agents) on constitutional meaning. Conversely, even under the nationalist premise of unitary sovereignty, the existence of local agents with general legislative and judicial jurisdiction might argue against an overly broad reading of the powers of central authorities. Nevertheless, the states' rights vision did at least support a rebuttable interpretive presumption favoring state legislatures over Congress, and state courts over the federal judiciary.
When we move from the allocation of power between state and federal agents to the allocation of power between federal agents and the People of a state themselves, in convention assembled, [FN121] an even starker contrast emerges. If the People of South Carolina were sovereign, they necessarily retained the inalienable right to judge for themselves whether the federal compact had been breached. [FN122] And if, in convention, the People of South Carolina determined that a material and substantial breach had occurred (regardless of what federal judges or Peoples in other states thought), was it not their sovereign right to withdraw--to secede--from the compact? [FN123] And did not this greater power of legitimate secession subsume the lesser of nonacquiescence in--nullification of--any particular action of federal agents deemed unconstitutional by the popular convention? If, on the other hand, the People of America collectively were sovereign, then, in the words of the states' rightist John C. Calhoun, 'there is an end of the argument. The claimed right for a State People of defending her reserved powers against the General Government, would be an absurdity.' [FN124]
Thus the great constitutional issues of the antebellum era-- congressional power and interposition, McCulloch and Martin, nullification and secession--all turned to some degree on which People were sovereign. And the first seven words of the Constitution only frame, but do not (without more) answer, the all-important question. Indeed, the Constitution's consistent use of the phrase 'the United States' as a plural noun only serves to cast further doubt on the self-evident correctness of the conventional reading of the Preamble's opening phrase. [FN125] However, a closer look at the rest of the Constitution reveals several other provisions that can help the Preamble's overworked opening words bear the argumentative load.
At the outset, let us look at the Preamble's final seven words. What is being ordained and established is a 'Constitution for the United States of America.' Not a 'league,' however 'firm,' not a 'confederacy' or a '(con)federation,' not a 'compact' among states, but a constitution created by a single People for internal government, styled after earlier state prototypes. [FN126] In this light, Chief Justice Marshall's immortal words in McCulloch take on added meaning: ' I t is a constitution we are expounding.' [FN127]
We should also note the ways in which the Preamble subtly but suggestively altered the purposive language of the Articles. Under the earlier instrument, 'the said states' had leagued together 'for their common defense, the security of their Liberties, and their mutual and general welfare.' [FN128] The Federalist Preamble speaks instead of providing for 'the common defense,' promoting 'the general Welfare' (significantly, the word 'mutual' is dropped), and securing 'the Blessings of Liberty.' And it adds references to 'establishing Justice' and 'insur ing domestic Tranquility'--internal matters of government that had lain beyond the limited inter-sovereign scope of the Articles. Truly, the Constitution could hardly be more straightforward in articulating its (literally) primary purpose: the formation of a 'more perfect Union.' [FN129] Finally, we must not neglect the silence roaring between the lines of the Preamble: Nowhere is there any reference to the 'sovereignty' of the People of 'each state' that had been the express animating principle of the Articles. [FN130]
In fact, the word 'sovereignty' never appears in the Constitution, [FN131] not even in the Tenth Amendment, the Federalist Constitution's counterpart of the Confederation's Article II. [FN132] Ironically, that Amendment, today typically seen as a pure states' rights provision, contains language that more strongly supports the unitary People thesis than does the Preamble's seemingly more nationalistic opening phrase. For it is exactly the juxtaposition of the Amendment's plural reference to 'the states, respectively' and its singular reference to 'the People' (and not 'their respective People s ')--a juxtaposition the Preamble lacks [FN133]--that underscores the unity of the American People and strongly confirms that the Preamble means exactly what it seems to mean at first glance.
Between the Preamble and the Tenth Amendment lie various provisions that strengthen the unitary People thesis. The first six articles explicitly establish a national 'government' with 'legislative,' [FN134] 'executive' and 'judicial' powers--all words carefully omitted from the Articles of Confederation's description of its general assembly. The national legislature's pronouncements are expressly described as 'laws' enforceable even in state courts. And the provision authorizing the legislature to pass all laws 'necessary and proper' to implement its enumerated powers purposely reverses the international law spin of the language of the Articles, which explicitly required a narrow interpretation of federal power. [FN135] Moreover, the national government can directly carry out its 'laws' by reliance on its own, rather than state, executive and judicial officers. Indeed, even when state courts sit as original tribunals in cases arising under the Constitution or national laws, the Constitution requires that some national court sit in appellate review. [FN136] The first house of the national legislature is directly elected by individuals who are to be proportionately represented, in sharp contrast to the Confederation's one state, one vote rule; and Congress can directly legislate upon, and tax, these individuals. [FN137] The Constitution defines treason as levying war against, or giving aid or comfort to, enemies of the United States, not any individual state. [FN138] Taken together, all of these provisions tend to suggest that the Federalist Constitution was simply a continental version--deriving from one continental People--of earlier state constitutions (deriving from state Peoples) under the league. The supremacy clause clinches the case. Consider what would happen if the People of South Carolina, having adopted the Federalist Constitution, reconvened at some later time to amend their state constitution. In convention, they adopt an amendment inconsistent with the federal Constitution. In a subsequent lawsuit, which law would a state judge be obliged to follow? If the People of South Carolina were sovereign, the answer would plainly be the state constitution as amended. The sovereign People's right to alter or abolish their government at any time is an inalienable attribute of sovereignty, and the sovereign's judicial agents (state judges) are bound to enforce the sovereign's will even if that will violates an earlier treaty (here, the federal compact) under international law. [FN139] Yet the supremacy clause explicitly compels even state judges to disregard the attempted amendment--a rule plainly inconsistent with the sovereignty of the People of each state. [FN140] It is worthy of special note that when the supremacy clause was first introduced at Philadelphia by the strident Anti-Federalist Luther Martin, it pointedly failed to specify the supremacy of the federal Constitution over its state counterparts. [FN141] Seen through the lens of sovereignty theory, Martin's outrage at the Convention's subsequent modification of the clause is understandable, for the modification decisively repudiated his view that the new Constitution should remain a compact among thirteen sovereign Peoples. [FN142] A more subtle alteration of Martin's language further undercut his purely confederate design: Whereas Martin's proposal spoke of federal statutes as 'the supreme law of the respective States,' [FN143] the Convention proclaimed the Constitution to be 'the supreme law of the land.' [FN144] Once again the implication was continental: one Constitution, one land, one People. [FN145]
But if earlier state constitutions and the Articles had established the sovereignty of the People of 'each state,' how, apart from sheer ipse dixit, did the Constitution derive the sovereignty of one American People? How did thirteen separate sovereign Peoples magically 'consolidate' into one common People? The answer lies in the seventh and final Article: 'The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.'
The word 'conventions' is used here as an eighteenth century term of art, denoting a special assembly of the People themselves, convened for the special purpose of expressing direct popular sovereignty. [FN146] Each state's ratifying convention was superior to its ordinary legislature, for the convention was in theory the virtual embodiment of the People of that state. [FN147] It was thus a meta-legal body that could legitimately alter the state's constitution. [FN148] Since the Federalist Constitution would give national officers powers that had previously been vested exclusively in various state agents, or reserved by the People of each state, under various state constitutions, its adoption would require a pro tanto repeal of those constitutions. Such a modification obviously required the assent of the People themselves. [FN149] By ratifying the Federalist Constitution, the People of each state would exercise their primal power to 'alter or abolish' their form of government by withdrawing powers previously delegated to one set of agents and redelegating those powers to a different set. [FN150] Ratifications by state conventions, however, would have far more transcendent consequences. It was by these very acts that previously separate state Peoples agreed to 'consolidate' themselves into a single continental People. Before ratification, the People of each state were indeed sovereign--and for that very reason could not be bound by the new Constitution if they chose not to ratify, no matter what any of the other sovereign Peoples chose to do. [FN151] Thus, although Article VII required only nine states to ratify, it confirmed the pre- existing sovereignty of the People of each state by proclaiming that the Constitution would go into effect only between the nine or more states ratifying. [FN152] The ratifications themselves thus formed the basic social compact by which formerly distinct sovereign Peoples, each acting in convention, agreed to reconstitute themselves into one common sovereignty. The Gettysburg Address notwithstanding, it was in 1788, and not 1776, that 'a new nation' was legally 'brought forth upon this continent.' [FN153]
This reading of Article VII synthesizes the antithetical views of extreme states' rightists like Roane and Calhoun, who argued that Americans never became one People, and ardent nationalists like Story and Lincoln, who suggested that Americans had always been one People after Independence. [FN154] This synthesis is precisely the middle position staked out in various nineteenth century writings of Chief Justice Marshall. [FN155] Perhaps more important, the nation-creating implications of Article VII ratification were evident to Americans during the ratification period itself. Thus The Federalist No. 33 likened state ratification of the Constitution in convention to a social compact among individuals to form one body politic:
If individuals enter into [i.e., form through social compact] a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of [pre-existing] political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government . . ..' [FN156]
By July 4, 1788, ten state conventions had already ratified the Federalist Constitution--enough to put the new document into effect under Article VII. ''Tis done,' wrote Dr. Benjamin Rush on the twelfth anniversary of the Declaration to which he had been a signatory. 'We have become a nation.' [FN157]
This understanding of Article VII is reinforced by comparing it with Article V, which provides that ratification by conventions of three-fourths of the states suffices to amend the Constitution in a way that will bind even nonratifying states. Even as late as July, 1788, the People of New York, as a distinct sovereign entity, were legally free to vote down the new Constitution and refuse to comply with it. [FN158] However, New Yorkers knew that if they ratified the document in convention, they would lose their freedom to disregard any subsequent constitutional proposal agreed to by enough other conventions. Nowhere was the Constitution's break with the Articles of Confederation--and indeed, all other multiple-sovereign, federal regimes [FN159]--more dramatic. [FN160] Simply put, Article VII recognized the pre-existing sovereign right of any non-ratifying state to secede from its sister states; [FN161] Article V prospectively abolished that sovereign right for each state People who joined the Union, thereby melting themselves into the larger common sovereignty of the People of America. [FN162] E Pluribus Unum. [FN163]
The sovereignty of the People of the United States marked a sharp break with the logic of the Articles. Yet the break was not a completely clean one. In several crucial respects, the Federalist Constitution seemed to fall short of perfecting the sovereignty of the People of America. To begin with, many persons, slaves being the most obvious example, found themselves excluded from 'the People' by a definitional fiat that seriously eroded the moral force of the Federalist vision of popular sovereignty. [FN164]
Indeed, the Constitution itself provided no clear definition of national citizenship. Yet if the People of America were sovereign, then one's American citizenship was all-important, and should never have been treated as simply derivative of one's state citizenship under state constitutions, or subject to virtually limitless manipulation by ordinary legislation. [FN165] Additionally, the suggestion of Article V that no state could lose its equal representation in the Senate without its own consent appeared to crimp the sovereign power of the People of the nation to alter their government by constitutional amendment. Harking back to the pure federalism of the Articles' requirement of unanimous amendment, the Senate clause of Article V seemed to deny the sovereign right of the People of America to impose their changed will on a tiny but recalcitrant localized minority. It is remarkable that the Reconstruction Amendments can be seen as perfecting the Federalist Constitution by trimming off its confederate vestiges. For our purposes, the most significant constitutional development of this era was not the general federal guarantee of individual rights against states embedded in the due process and equal protection clauses, provisions that dominate current constitutional scholarship. While of course momentous, these clauses can be seen as simply expanding the substantive scope of the Federalist Constitution's Article I, section 10 catalogue of federally enforceable individual rights against states. Of far greater significance here are the Thirteenth Amendment's abolition of slavery; the Fourteenth's constitutional definition of national birthright citizenship and its prohibition against exclusion by definitional fiat; the Fourteenth and Fifteenth Amendments' specific protections of equality of franchise; and the process of ratification itself, which, as Professor Ackerman has pointed out, swept aside the formal limitations of Article V in order to vindicate the American People's sovereign right to alter their government. [FN166]
Relocating sovereignty in the People of the United States in the late 1780's did not obliterate all state lines; it only established that any power exercised by state Peoples and state governments was ultimately subject to the absolute control of the American People. [FN167] Nothing prevented that sovereign from adopting a constitution that allowed state structures to continue to exist and wield delegated power. [FN168] Such was the design of the Federalist Constitution. For example, Article V itself generally looked to states, rather than individuals, as the unit of measure for tallying ratifications of constitutional amendments. [FN169] Indeed, states were woven into the very fabric of the new national government's political departments. [FN170] Finally, and most importantly for our purposes, the Federalist Constitution preserved the independent lawmaking authority of state governments. The language of the Tenth Amendment simply distilled the underlying structural logic of the original Constitution: Wherever authorized by its own state constitution, a state government can enact any law not inconsistent with the federal Constitution and constitutional federal laws.
Thus, state governments would continue to enjoy power to make law, power derived from the sovereign People. To what extent did that derivative 'sovereignty' also imply a 'sovereign' immunity from legal liability? To that question we now turn.
The sovereignty of 'We the People of the United States' is admittedly an abstraction--an idea. But abstractions often have legal consequences. And the single idea of popular sovereignty generates a powerful set of legal implications covering a vast range of constitutional issues from limited government and judicial review to federalism and separation of powers to nullification and constitutional amendment. In one vital area of contemporary jurisprudence, however, the Supreme Court has fashioned doctrine wholly antithetical to the Constitution's organizing principle of popular sovereignty. By allowing both federal and state governments to invoke 'sovereign immunity' from liability for constitutional violations, the Court has misinterpreted the Federalist Constitution's text, warped its unifying structure, and betrayed the intellectual history of the American Revolution that gave it birth. In effect, the Court has transformed 'sovereignty' into the very tool of government supremacy that our Revolutionary forebears wielded pen and sword to destroy. [FN171]
Although the issue of sovereign immunity for constitutional wrongs implicates both state and federal governments--both are limited under the Constitution--the issue first arose under the Federalist Constitution in Chisholm v. Georgia, a case concerned only with state immunity. [FN172] A detailed review of Chisholm--the first major constitutional case decided by the Supreme Court--will illuminate the text of the Eleventh Amendment, which overruled the case, as well as general structural principles of state and federal sovereign immunity.
In 1792, the executor of a South Carolina merchant brought an assumpsit action in the Supreme Court against the state of Georgia for breach of a war supplies contract. Georgia declined to argue the case at bar and instead filed a written objection asserting the state's 'sovereign' immunity from suit. [FN173] Five Justices heard the case and delivered individual seriatim opinions. Perhaps because Georgia's tactics created an awkward procedural posture requiring the state to present sovereign immunity as a jurisdictional bar rather than a defense on the merits of assumpsit, all five Justices tended to collapse the two distinct questions posed by the case. First, the jurisdictional issue proper: Did the Court have original jurisdiction to entertain the case? Second, the rule of decision question: Did an action in assumpsit lie in federal court for a state's breach of a contract it had made with a citizen? Four Justices answered yes to both questions; Justice Iredell dissented.
The jurisdictional issue called for close examination of Article III and the Judiciary Act of 1789. The former vests the federal judiciary with jurisdiction over nine separate but overlapping categories of cases. The first three are defined by subject matter; all federal question and admiralty cases, for example, are cognizable in federal court regardless of the identify of the parties to the suit. The last six categories are defined by party status. Federal diversity jurisdiction over controversies 'between citizens of different states' is today probably the best known example, but three other diverse party categories are of special importance in framing the issue of state sovereign immunity: 'Controversies between two or more States;--between a State and Citizens of another State; [and between] . . . a State . . . and foreign States, Citizens or Subjects.' [FN174] Even in the absence of a federal question or admiralty issue, any of these diverse party configurations suffices to confer federal jurisdiction. Indeed, in these three state diversity categories, Article III provides for original jurisdiction in the Supreme Court itself, a grant confirmed by the language of section 13 of the Judiciary Act of 1789. [FN175]
As civil suit brought by a citizen of one state against another state, Chisholm seemed to fall squarely within the language of both Article III and the Judiciary Act. Georgia apparently argued that these texts should be read to confer jurisdiction only where a state brought suit against an out-of-state citizen, but not vice versa. [FN176] Yet as the four majority Justices noted, the text of Article III on its face applies symmetrically to both party alignments. [FN177] The implication of symmetry is even stronger in the language of section 13, [FN178] given that other portions of the Judiciary Act are expressly asymmetric. [FN179]
In response to the contention that Georgia's sovereign status required an extremely narrow reading of the jurisdictional provisions of Constitution and statute--an early version of a strict construction, states' rights, clear statement doctrine--the majority Justices offered two related arguments. First, American states were not 'sovereign' in the same way European governments claimed to be:
In Europe the sovereignty is generally ascribed to the Prince; here it rests with the people; there, the sovereign actually administers the Government; here, never in a single instance; our Governors are the agents of the people. . ..
[Federal jurisdiction] enforces this great and glorious principle, that the people are the sovereign of this country, and consequently that fellow citizens and joint sovereigns cannot be degraded by appearing with each other in their own Courts to have their controversies determined. [FN180]
Second, in adopting the Constitution, the sovereign American People had imposed important limitations on the 'sovereign' powers of state officers, limitations that necessarily implied that states could be sued in federal court. Article III conferred federal jurisdiction in controversies 'between two or more States.' Obviously, one of these states had to be a defendant; the provision was meaningless otherwise. [FN181] Similarly, effective vindication of various individual constitutional rights against states might require a compulsive suit against the state itself in federal court under the Article III grant of federal question jurisdiction. [FN182] These provisions, the majority Justices noted, argued conclusively against any general theory of a state's 'sovereign' immunity from suit in federal court.
Up to this point, the majority's logic was impeccable. Yet upon reaching this analytic juncture, the majority leaped to a conclusion that simply did not follow from its premises, committing what in our post-Erie [FN183] world seems an obvious category mistake. Having established the Court's power to entertain the case (and the suability of Georgia in a jurisdictional sense), the majority proceeded to opine that a cause of action in assumpsit would properly lie (and that the state was properly suable in this substantive sense) notwithstanding any immunity from assumpsit liability under state law. [FN184] Under the common law of Georgia and, apparently, every other state, no cause of action lay for a breach of contract by the state itself. At common law, such contracts, though perhaps morally binding, were not legally enforceable. [FN185]
What, then justified the majority's disregard of Georgia's immunity from liability under her own law? After all, the Tenth Amendment plainly reserves to states the power to fashion any law, common or statutory, not inconsistent with the higher laws of the federal Constitution, congressional statutes, or state constitutions. Indeed, section 34 of the Judiciary Act--the so-called Rules of Decision Act--expressly charges federal courts to follow 'the laws of the several states' as residuary 'rules of decision' in trials at common law. [FN186] We must be clear about what the Court did not say. The majority Justices did not claim that Georgia's common law rule of state immunity violated any higher law, constitutional or statutory. In particular, they did not claim that such a common law rule might violate the Constitution's contracts clause. [FN187] Plaintiff never raised the contracts clause or any other violation of federal right. Jurisdiction rested exclusively on diverse party status. Indeed, had the Court viewed Chisholm as a contracts clause case as well as a diverse party suit, a serious question might have arisen about its appropriateness for the original jurisdiction of the Supreme Court, whose general federal question jurisdiction was only appellate. [FN188]
The majority's only arguments for recognizing an assumpsit cause of action against Georgia were arguments sounding in what would today be labelled 'general common law.' In this respect, Chisholm anticipated Swift v. Tyson, [FN189] which allowed federal courts sitting in diversity cases to disregard state common law as defined by state courts, and instead fashion their own judge-made law. At oral argument in Chisholm, plaintiff argued that assumpsit liability followed automatically from the state's capacity, as a juridical entity, to make a promise. The continental jurist Vattel was the only authority cited for this bold proposition. [FN190] Similarly, Justice Wilson simply invoked 'general principles of right and equality' and 'general jurisprudence' in support of his claim that 'a State, for the breach of a contract, may be liable for damages.' [FN191]
Indeed, the state-citizen diversity case of Chisholm foreshadowed the citizen-citizen diversity suit of Swift in an even more precise way: Whereas Swift established a jurisprudence of general commercial law, Chisholm rested in part upon principles of general corporate law. According to Justice Cushing, '[A]ll states whatever are corporations or bodies politic. The only question is, what are their powers? . . . I think assumpsit will lie, if any suit; provided a state is capable of contracting.' [FN192] A similar general corporate law motif can be heard in Chief Justice Jay's language:
[T]he obvious dictates of justice, and the purposes of society . . . [demand that] in certain cases one citizen may sue forty thousand; for where a corporation is sued, all the members of it are actually sued, though not personally, sued . . .. Will it be said, that the fifty odd thousand citizens in Delaware being associated under a State Government, stand in a rank so superior to the forty odd thousand of Philadelphia, associated under their charter that although it may become the latter to meet an individual on an equal footing in a Court of Justice, yet that such a procedure would not comport with the dignity of the former? [FN193]
Although Justice Iredell dissented, his opinion accepted many of the majority's premises. He wholeheartedly agreed with the majority view that ultimate sovereignty lay in the People; that by adopting the Constitution, the People had imposed important limitations on states; and that states were therefore sovereign only in a limited and derivative sense. [FN194]
Indeed, Iredell even acknowledged that for some purposes, states might usefully be treated as corporations. [FN195] On all these basic points, then, the Chisholm Court was unanimous.
Yet for Iredell these premises did not lead to the majority result of a general federal corporate law of state assumpsit liability. If the majority anticipated Swift v. Tyson's doctrine of a general federal common law, Iredell presaged Erie Railroad Co. v. Tompkins' repudiation of the doctrine. [FN196] The liability of the state in assumpsit, he argued, should be determined not by general federal common law, but by antecedent state law. [FN197] And under a state common law rule of unquestioned constitutionality, no assumpsit lay against Georgia. For Iredell, Georgia's 'sovereign' immunity was therefore exactly coextensive with her derivative 'sovereign' lawmaking capacity: A state could use its lawmaking power to adopt rules immunizing itself from liability, as long as such immunity frustrated no higher-law restrictions on the state's limited sovereignty.
Thus, Iredell carefully limited his discussion to pure diverse party cases against states, in which jurisdiction did not rest upon a substantive federal cause of action based on a congressional statute or the self-executing provisions of the Constitution. The particular question before the Court was for Iredell a narrow one: '[W]ill an action of assumpsit lie against a State? This particular question [must be] . . . abstracted from the general one, viz. Whether, a State can in any instance be sued?' [FN198] Although no assumpsit suit lay against Georgia on principles of 'general jurisprudence,' Iredell conceded that a different result might obtain in a federal question case 'relat ing to the execution of the . . . authorities of the general Government (which it must be admitted are full and discretionary, within the restrictions of the Constitution itself).' In such cases, state 'sovereignty has . . . been . . . delegated to the United States . . . wherein the separate sovereignties of the States are blended in one common mass of supremacy.' [FN199] In closing, Iredell did write that he was inclined to believe that full vindication of congressionally-created and constitutional rights would never require 'a compulsive suit against a State for the recovery of money.' However, he took special pains to make clear that his musings on this 'delicate topic' were pure dicta subject to reconsideration should the issue squarely arise in a subsequent case. [FN200]
The Court's decision in Chisholm provoked a chorus of calls around the country for a constitutional amendment. The text eventually agreed upon--'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 any Foreign State'--was undeniably designed to repudiate the majority analysis in Chisholm and overrule its holding. From that simple starting point, the Supreme Court has arrived at the following interpretation of the case and the Amendment. The defect of Chisholm was its failure to recognize absolute state sovereign immunity from citizen suits in all circumstances, and this defect was corrected by enshrining such immunity in the Constitution. No individual can sue her own or any other state in federal court unless the defendant's constitutional immunity is in some special way waived or abrogated. [FN201] Sovereign immunity ousts all federal jurisdiction, whether in law, equity, or admiralty; whether the suit is based on state law, congressional statute, or the Constitution itself; and whether or not state liability would most fully remedy a constitutional wrong perpetrated by the state itself. The state thus enjoys 'sovereign' immunity even when it has violated a limitation on that sovereignty imposed by the ultimate sovereign, the American People.
All of this is, in a word, nonsense. There exists another reading of the Eleventh Amendment that does far more justice to constitutional text, history, and structure. More important, this neo-Federalist reading does far more justice to the People of the United States, to those revolutionaries who dedicated their lives to bequeath us limited governments, and to those today who claim their distinctive legacy of the rule of law under constitutional government. Under this reading, the defect of Chisholm was its displacement of the prevailing state common law of government immunity with a 'general' common law of state assumpsit liability in a case presenting no question of substantive federal law. The Amendment's cure for Chisholm's case of Swift's disease, however, was not the Erie prescription that federal courts follow state law in diverse party cases, but the simple elimination of two categories of diverse party jurisdiction: those involving noncitizen or foreign plaintiffs and state defendants. [FN202] This jurisdictional repeal, however, was not designed as a barrier cutting across the other jurisdictional grants of Article III. The party alignments specified by the Eleventh Amendment would no longer provide an independent basis for jurisdiction (as they had in Chisholm), but the existence of such an alignment would not oust jurisdiction that was independently grounded--for example, in federal question or admiralty cases. [FN203]
If the Eleventh Amendment was meant to enshrine the general immunity of state 'sovereigns' from private suits in federal courts, it was abysmally drafted. Not only does the text nowhere mention 'state sovereign immunity,' but the limitations in the text itself are inexplicable if we assume (as does the Court) that the Amendment's purpose was to secure general immunity. The last fourteen words of the Amendment plainly restrict its scope to suits in which noncitizens are plaintiffs. Yet if, as the Court has held, the Amendment's framers meant to bar federal jurisdiction over federal question suits brought by noncitizens, [FN204] why did the framers not also oust federal jurisdiction in analogous federal question suits brought by citizens, where the possibilities of state court prejudice were far smaller? It is hard to believe that the framers with one hand invoked federal power to protect out- of-staters with the diversity and privilege and immunity clauses while with the other hand seeking to discriminate against them with the Eleventh Amendment. [FN205] The Amendment's limitation to cases 'in law and equity' is also curious if the Amendment is read to embody a general principle of sovereign immunity. The three basic categories of cases familiar to the framers were law, equity, and admiralty. [FN206] If the states were to be immune in law and equity, why not in admiralty as well?
The Supreme Court has resolved the tension between comprehensive sovereign immunity and the textual restrictions of the Eleventh Amendment by finding immunity in cases where the Amendment by its own terms does not apply. In Hans v. Louisiana, [FN207] the Court held that federal jurisdiction was ousted where a citizen had sued his own state. Hans was a case arising under the federal Constitution--this time, the plaintiff had claimed that his state was violating the contracts clause--so federal jurisdiction was rooted in the 'arising under' clause of Article III; nevertheless, the Court extended the sovereign immunity bar of the Eleventh Amendment to block the suit. Similarly, in Ex parte New York, [FN208] plaintiffs' federal suit in admiralty was supported by an explicit grant of Article III jurisdiction--the 'admiralty and maritime' clause--but jurisdiction was ousted by the Supreme Court's extension of the Eleventh Amendment bar.
A coherent vision of blanket state sovereign immunity virtually compels the results in Hans and Ex parte New York; if noncitizen suits are barred in law and equity, there is simply no good reason not to extend sovereign immunity to citizen and admiralty suits. The problem, of course, is that the results in Hans and Ex parte New York contradict the unambiguous limitations of the Eleventh Amendment's text--a contradiction that suggests the clear error of the Supreme Court's first interpretive premise that the Amendment is in fact concerned with sovereign immunity. If coherence of general sovereign immunity doctrine is achieved only by mangling the Amendment's text, the obvious lesson should be that the Amendment was not designed to embody any such doctrine.
Worse yet, Hans and Ex parte New York succeed in patching holes in the Court's sovereign immunity theory only by tearing constitutional fabric in other spots. Even in some areas where Congress may constitutionally regulate state behavior, the Supreme Court denies it the power to provide for full enforcement of its regulations in federal court. By reading the Eleventh Amendment's 'state sovereign immunity' restrictions on federal judicial power to go far beyond the Tenth's 'residuary state sovereignty restrictions on federal legislative power, the Court has created a curious category of cases in which Congress may pass laws operating directly on states that can be enforced (if at all) [FN209] only in state courts. [FN210] The result is an inexplicable throwback to the jurisdictional regime of the Articles of Confederation, which the Federalists viewed as 'extremely defective' and violative of obvious first principles of government. [FN211] 'If there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislative may be ranked among the number.' [FN212] The Federalist Constitution's provision that the federal judicial power under Article III would extend to all cases arising under laws passed under Article I could not have more plainly repudiated the Confederation's jurisdictional scheme. [FN213] And federal question suits brought against states themselves are exactly the sort of cases in which state courts are most likely to lack the commitment and political independence to enforce federal rights unflinchingly. [FN214]
The Federalist Constitution also guaranteed that federal jurisdiction would extend to all cases arising under the Constitution itself. Federal judges insulated from parochial politics were to play a special role in safeguarding various constitutionally guaranteed individual rights against state governments. [FN215] The Supreme Court's Eleventh Amendment jurisprudence mocks these solemn promises: Federal jurisdiction is barred even when citizens seek relief against states that have violated constitutional rights.
The Court itself has recognized the problems of following general sovereign immunity to its logical conclusion, and has therefore tried to limit that immunity through various doctrinal gymnastics and legal fictions. The most famous, the fiction of Ex parte Young, [FN216] allows citizens to sue for injunctive relief against a state violating the federal Constitution or federal statutes by pretending to sue a state official. The Young fiction covers suits against officers in their official capacities--suits that can compel officers to pay money out of the state treasury, rather than their own pockets. [FN217] The fiction that such suits are merely brought against individuals, and not the state, is transparent. The 'state' itself, after all, is an artificial juridical person and can act only through state officials. If these women and men are enjoined in their official capacities then, as a practical matter, the state is itself enjoined. Indeed, in cases like Young involving violations of constitutional rights, the cause of action itself typically requires the plaintiff to prove that defendant is a state actor wielding state power. [FN218] If the fiction of Ex parte Young were fully extended to all citizen suits based on the constitutional wrongs of states, perhaps little harm would result from the Court's interpretation of the Eleventh Amendment. 'Sovereign' immunity would dissolve into a technical matter of writing one word instead of another in the caption of the complaint. Immunity would simply be a matter of pleading, of politeness. [FN219] In Edelman v. Jordan, [FN220] however, the Court cabined the Young fiction to suits for prospective relief. Federal courts may enjoin state officials in their official capacity to pay money out of the state treasury for future obligations, but may not order them to charge the public fisc to make whole victims of past constitutional wrongdoing. Perversely, a state government that spends money to avoid violating the Constitution ends up financial worse off than one that cynically flouts higher law until ordered into prospective compliance.
The obvious lack of principle underlying the Edelman distinction merely reflects a much deeper paradox in the Court's attempt 'to promote the supremacy of federal law [and yet] accommodate[ ] . . . the constitutional immunity of the States.' [FN221] The Edelman Court 'declined to extend the fiction of Young to encompass retroactive relief, for to do so would effectively eliminate the constitutional immunity of the States.' [FN222] But the Court has created its own false dilemma here by wrongly conceptualizing the 'constitutional immunity of the States' as in tension with--indeed, as the logical negation of--the 'supremacy of federal law.' The result would be comic were it not so tragic: The Court heroically struggles to promote both higher-law limitations on states and the states' 'immunity' to violate those limitations. It is no wonder the Court's Eleventh Amendment case law is incoherent; in law, as in logic, anything can be derived from a contradiction. [FN223] All we are left with is an ad hoc mishmash of Young and Edelman, of full remedy and state sovereignty, of supremacy and immunity, of law and lawlessness. [FN224] The icon of the federal courthouse open to remedy all constitutional wrongs gives way to a burlesque image of a doctrinal obstacle course on the courthouse steps. [FN225]
In the end, the Supreme Court's vision of state sovereign immunity warps the very notion of government under law. The Court's invocation of state 'sovereign' immunity in cases where the state plainly is not sovereign--because it has acted ultra vires--resurrects the British theory of governmental supremacy that was anathema to the framers. It puts governments above, not under, the law. It makes government officers masters, not servants, of the People. James Madison put it bluntly: '[A]s far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.' [FN226]
The neo-Federalist reading of the Eleventh Amendment suffers from none of the crippling ailments of the Court's approach. To begin with, it makes perfect sense of all the words of the Amendment itself. The Amendment was limited to cases in 'law and equity' precisely because its framers intended to leave plenary federal jurisdiction over 'all cases of admiralty and maritime jurisdiction' undisturbed. It is quite implausible to assume--as the Court must--that the Amendment's omission of admiralty was a mere drafting oversight. In 1793, admiralty was universally considered to be one of the most important categories of federal jurisdiction. [FN227] Similarly, the Amendment was restricted to suits brought by noncitizen and foreign plaintiffs precisely because only the presence of these private plaintiffs would give rise to independent diverse party jurisdiction where a state was party defendant. The text does not speak sweepingly of state 'sovereign immunity,' but instead tracks the technical 'judicial power shall extend' language of the Article III jurisdictional grants, precisely because it was simply designed to restrict two of those grants.
The Amendment's legislative history supports this parsing of the text. Professor Charles Warren uncovered an alternative amendment that he believed was introduced in the House of Representatives immediately after Chisholm came down, but never seriously considered. [FN228] Although other scholars have expressed doubt about whether the proposal was in fact ever officially introduced, [FN229] its undisputed existence confirms what should be obvious anyway: If the Eleventh Amendment's framers had intended a broad sovereign immunity principle applicable even in federal question cases, they knew the words:
[T]hat no State shall be liable to be made a party defendant in any of the Judicial Courts established or to be established under the authority of the United States, at the suit of any person or persons, citizens or foreigners, or of any body politic or corporate whether within or without the United States.
By contrast, it would have been difficult to come up with wording that expressed better than does the Amendment's final text a simple desire to effect a partial repeal of two technical diverse party grants. Even the Court has long argued that the Amendment was designed to parallel Justice Iredell's dissent in Chisholm. [FN231] Yet as noted above, Iredell carefully limited his rationale to diverse party cases; he expressly avoided a judgment (although he did venture admittedly tentative opinions) on the questions of state sovereign immunity in federal question or admiralty cases--questions not posed by Chisholm itself. The Court thus reads the Amendment to go far beyond Iredell's dissent in Chisholm, whereas the neo- Federalist reading follows Iredell by carefully limiting the scope of the Amendment to diverse party cases. [FN232]
A specific language change made by the drafters offers further evidence of their narrow intent. The original draft language of the Amendment provided that the judicial power 'shall not extend' to noncitizen and foreign plaintiff suits against states in law and equity. That language, however, might have been interpreted to mean that the federal judicial power could never extend to cases presenting these party alignments, even when such cases were independently grounded in, say, a federal question. Perhaps because of this ambiguity, the original text failed to pass, and was subsequently modified by replacing the phrase 'the judicial power shall not extend' with the language 'the judicial power shall not be construed to extend.' This modification softened the Amendment to conform to the framers' intent that the judicial power should not be construed to extend to the enumerated diverse party suits as such, but would extend to these diverse configurations whenever jurisdiction was independently based on another affirmative jurisdictional grant. [FN233]
The 'shall not be construed' clause of the Eleventh Amendment thus harmonizes with the identical language in the Ninth Amendment: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.' Here, the enumeration of rights does not automatically deny, repeal, or abrogate other natural rights. Those rights may continue to be judicially enforced in the absence of contrary superior positive law--congressional or constitutional. Similarly, in the Eleventh Amendment, the judicial power does not automatically extend to enumerated suits, but suits may lie if provided for by positive law-- congressional or constitutional. [FN234]
Finally, the neo-Federalist reading preserves various basic structural principles of the original Constitution repudiated by the Court's doctrine--the coextensiveness of judicial and legislative power; the coextensiveness of original and appellate jurisdiction; the critical importance of plenary federal jurisdiction in admiralty and federal question cases; the structural superiority of the federal judiciary to state judiciaries; the special role of federal judges in protecting individual rights against states; and the need for suits against states themselves to enforce these rights. I have discussed the first five of these principles at length elsewhere. [FN235] I shall therefore simply note here that if the Supreme Court's interpretation is correct, it is amazing that the Amendment was supported by so many Federalists--without whose support the Amendment could not have succeeded--willing to dismantle so much of what they had worked so hard so recently to erect. [FN236] The sixth and final structural principle--the remedial imperative of government liability--requires additional elaboration and furnishes perhaps the strongest reason of all for rejecting the Court's Eleventh Amendment doctrine.
To say that the Eleventh Amendment embodies no general principle of state sovereign immunity is only to begin constitutional inquiry. Even in the absence of a specific textual niche for sovereign immunity, we must examine the structure of the Constitution to see whether such immunity is implicit in our constitutional order. For example, there is no obvious source of national sovereign immunity analogous to the Eleventh Amendment, yet countless suits against the federal government have been barred by general sovereign immunity principles of mysterious origin. Indeed, much of the case law of federal sovereign immunity has been directly assimilated, with little explicit analysis or justification, to state sovereign immunity cases--an assimilation that once again suggests that the real workhouse in sovereign immunity doctrine is not the text of the Eleventh Amendment. Assuming that no Eleventh Amendment sovereign immunity exists, the question becomes, does the rest of the Constitution imply governmental immunity? [FN237]
In Monaco v. Mississippi the Court wrote:
Manifestly, we cannot . . . assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non- consenting States. Behind the words of the constitutional provisions are postulates which limit and control. . . . There is . . . the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been 'a surrender of this immunity in the plan of the convention.' [FN238]
But contrary to Monaco and the rest of the Court's sovereign immunity case law, [FN239] the Constitution draws its life from postulates that limit and control lawless governments, not postulates that limit and control citizens in their efforts to vindicate constitutional rights, nor postulates that limit and control federal courts in their efforts to provide that vindication. The real postulates 'behind the words of the constitutional provisions' are these: (1) Ultimate sovereignty resides in the People of the United States, not in governments. Governments--state and national--enjoy only limited and delegated sovereign power. When these governments violate the commands of the highest Sovereign embodied in the Constitution, they are no longer acting in their derivative sovereign capacity, and thus have no 'sovereign' immunity. (2) The legal rights against governments enshrined in the Constitution strongly imply corresponding governmental obligations to ensure full redress whenever those rights are violated. (3) Full and adequate remedies for constitutional wrongs committed by governments will often call for governmental liability. In these cases, there necessarily has been--to reclaim the words Monaco borrowed from Hamilton--'a surrender of immunity in the plan of the convention [i.e., the Constitution].' The first postulate simply distills the theory of popular sovereignty animating the Federalist Constitution. [FN240] The second is equally straightforward. Few propositions of law are as basic today--and were as basic and universally embraced two hundred years ago--as the ancient legal maxim, ubi jus, ibi remedium: Where there is a right, there should be a remedy. The proposition that every person should have a judicial remedy for every legal injury done him was a common provision in the bills of rights of state constitutions; [FN241] was invoked by The Federalist No. 43 in a passage whose very casualness indicated its uncontroversial quality; [FN242] and was the cornerstone of analysis in one of the most important and inspiring passages of Marbury v. Madison:
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. . . .
. . . '[I]t is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, whenever that right is invaded'. . . . '[E]very right, when withheld, must have a remedy, and every injury its proper redress.'
The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. [FN243]
The third step of analysis focuses on how the very existence of sovereign immunity will often drive a wedge between legal right and effective remedy. Granted, not all may have recognized this fact at the time of the adoption of the federal Constitution. Iredell in Chisholm closed his opinion with the self-described dictum that 'every word in the Constitution may have its full effect without involving [the] consequence' of allowing 'a compulsive suit against a state for the recovery of money.' [FN244] Similarly, John Marshall's opinion in Cohens v. Virginia seemed to imply that full vindication of constitutional rights against states might not require affirmative suits against the state; individual rights, Marshall hinted, might be fully protected by affirmative suits against individual officers in their private capacity, and by the ability of citizens to invoke constitutional rights defensively in suits brought by states. [FN245]
Even if these arguments were colorable in the eighteenth and early nineteenth centuries, [FN246] they fail today. To begin with, in the eyes of Iredell and Marshall any possible government immunity was offset by strict liability on the part of individual government officers. For example, in Osborn v. Bank of the United States, Marshall noted that the defendant Ohio officer would have been personally liable to the plaintiff bank even had he acted in compliance with a state law that he reasonably but incorrectly believed to be fully constitutional. [FN247] Today, most individual government officers enjoy either qualified or absolute immunity from personal liability. As Professor Engdahl has noted, courts since the mid-nineteenth century have opened up a wide remedial gap by creating expansive official immunities without correspondingly relaxing government immunity. [FN248]
Even abolition of the current structure of individual immunity would often only narrow twentieth century gaps between right and remedy. [FN249] Individual officers will frequently be (at least partially) judgment-proof. Pervasive and systematic illegality will not always be traceable to specific individuals who can be called to account. The state entity itself will often be the source and the unjustly enriched beneficiary of illegal conduct by individual officials. Furthermore, general principles of modern tort theory and enterprise liability suggest that the governmental entity will often be in a far better position than any individual officer to restructure official conduct in a way that avoids future violation of rights. Thus, many of the same reasons that support entity liability for private corporations argue persuasively for similar entity liability for governments [FN250]--a point sharpened by the Federalists' conception of governments as limited corporations, and by their use of agency principles and incentive analysis as linking concepts in a more general system of political economy structuring the law of both governmental and profit-seeking organizations. [FN251]
Additionally, many legal rights today are affirmative rights against the government itself. If the Constitution obliges a state to provide minimal education to its children, [FN252] this affirmative right cannot be fully protected by the ability of a citizen to raise her claim defensively in a state-initiated proceeding. Likewise, this right cannot be adequately protected by the possibility of suit against a private person, since the obligation is that of the state qua state.
Furthermore, Iredell's and Marshall's musings notwithstanding, the dominant view of the Federalists was that full vindication of constitutional rights would sometimes require direct suit against government. Even in the absence of today's more expansive vision of affirmative rights, the framers recognized that affirmative relief would often be essential to protect negative rights [FN253] --especially where the government violation could not be prevented ex ante, and where the government would enjoy the fruits of its past violations. In the words of Attorney General Edmund Randolph, who had earlier played a vital role in the Philadelphia Convention and the Virginia ratification debates:
The common law has established a principle, that no prohibitory act shall be without its vindicatory quality . . .. In our solicitude for a remedy, we meet with no difficulty, where the conduct of a state can be animadverted on through the medium of an individual. . . . But this redress goes only half way; as some of the preceeding unconstitutional actions must pass without censure, unless states can be made defendants. What is to be done, if, in consequence of a bill of attainder, or an ex post facto law, the estate of a citizen shall be confiscated, and deposited in the treasury of a state? What, if a state should adulterate or coin money below the congressional standard, emit bills of credit, or enact unconstitutional tenders, for the purpose of extinguishing its own debts? What, if a state should impair her own contracts? These evils, and others which might be enumerated like them, cannot be corrected, without a suit against the State. [FN254]
Chief Justice Marshall's own opinion for the Court in Marbury also cut strongly against a broad view of sovereign immunity. Following the logic of ubi jus, ibi remedium, he expressly declared the appropriateness of mandamus-- affirmative judicial relief against an executive officer in his official capacity--to fully protect a vested legal right. Marshall quickly dismissed the notion that a defendant government official could enjoy any British-style 'sovereign immunity' from a suit charging a violation of vested rights. [FN255] At one level, then, Marbury's logic could be described as follows: If the only full and adequate remedy for ultra vires action by government requires a pro tanto abrogation of sovereign immunity, so be it.
It therefore seems evident that at least in some cases, blanket government immunity from liability conflicts with the Constitution's structural principle of full remedies for violations of legal rights against government. What, then, can possibly justify the invocation of sovereign immunity in those cases? Surely not the text of the Constitution, for we have already seen that governmental claims to severeign immunity have no textual basis. [FN256] Nor can it be persuasively argued that the structural principle of full remedies is somehow necessarily qualified or limited by an equally valid structural postulate of absolute government immunity from all suits. The latter principle is simply not part of our Constitution's structure. Its sole basis is the British idea that the sovereign government, as the source of all law, cannot itself be bound by any law absent its consent. [FN257] As we have seen, literally every article of the Federalist Constitution and every amendment in the Bill of Rights rests on the repudiation of the British view. [FN258] Thus, to accept the plenary sovereign immunity of governments as a structural principle is necessarily to reject the first postulate of popular sovereignty. [FN259] Put another way, to try to straddle the inconsistent principles of effective remedy and sovereign immunity is to fall into the logical contradiction at the center of the Court's Eleventh Amendment jurisprudence. [FN260]
It must be emphasized that the structural argument outlined here does not eliminate all 'sovereign immunity.' It does not make governments suable for anything and everything, as the Court's free-wheeling approach in Chisholm threatened to do. A defining feature of a government is that it operates under legal rules that substantially differ from those applicable to private citizens. What would be obviously tortious for a private citizen is often standard operating procedure for a government--taxation, for example. Thus so long as governments act within the scope of their delegated authority, they may choose to exercise their sovereign power by immunizing themselves from rules that apply to private citizens. On this count, Chisholm was wrongly decided and rightly repudiated. When governments act ultra vires and transgress the boundaries of their charter, however, their sovereign power to immunize themselves is strictly limited by the remedial imperative. [FN261] A government may immunize itself, even for ultra vires acts, but only if other remedies--for example, strict liability suits against non-judgment-proof individual officers--can guarantee victims full redress. [FN262]
If we seek textual confirmation of this structural analysis, we need look no further than the Tenth Amendment. This should not be surprising, for once we have stripped away the Court-fashioned encrustations obscuring the true meaning of the Eleventh Amendment, the Tenth becomes a far more logical place to search for the theory of sovereignty embodied in the Constitution. Indeed, no other provision of the Constitution focuses so clearly on the triangular interrelations among the national government, the state governments, and the People themselves: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'
As we have already seen, the final clauses of this Amendment confirm the ultimate sovereignty of a unitary American People. [FN263] Consistent with that sovereignty, the Amendment betrays an obvious concern with keeping all governmental power strictly within the limits of the People's delegations. The national government is not to exercise 'powers not delegated to it by the Constitution;' and states are not to exercise any powers 'prohibited' by the Constitution, 'delegated' to national agents, or 'reserved . . . to the people' through state constitutions. [FN264] Strictly speaking, the Tenth Amendment affirms the sovereignty of the People, not the sovereignty of state governments: It resoundingly affirms the structural conclusion that governments have no sovereignty to violate the Constitution and get away with it. In fact, the Amendment can be seen as containing a tantalizing suggestion that the very division of delegated sovereign powers between two different sets of agents can promote the ultimate sovereignty of the People. In particular, the Amendment hints that the reservation of limited law-making 'powers . . . to the States respectively' is somehow connected to preventing the federal government from exercising 'powers not delegated to' it. Limited state governments can help maintain limits on the national government. It is now time to explore that hint in greater detail.
Analysis of the power of each government, state and national, to 'check' unconstitutional conduct by the other follows naturally from analysis of government liability for constitutional wrongs: Both concepts stem from the framers' more general principles of popular sovereignty and limited government. Just as the sovereign immunity issue turns on a proper understanding of the revolutionary debate, so the issue of intergovernmental relations is framed by the Civil War debate. Whereas the Court's sovereign immunity doctrine misapplies the lesson of the Revolution, contemporary constitutional scholarship tends to misunderstand certain federalism issues because it misreads the message of the Civil War. By interpreting the War as establishing the supremacy of the national government, instead of the national People, contemporary scholarship has overlooked the myriad ways in which states may usefully and permissibly check federal lawlessness. Fittingly, each set of structural and historical misunderstandings has a textual complement: The Court overreads the Eleventh Amendment as enshrining state sovereign immunity, and contemporary scholars tend to overread the supremacy clause as embodying the supremacy of the federal government instead of the supremacy of 'We the People' through the Constitution. The basic proposition here is simple: Constitutional federalism is a two- edged sword for constitutional justice. Under this view of federalism, each constitutionally limited government can deploy its powers to police the constitutional limits on the other's powers and remedy the other's constitutional violations. In contrast to the Court's doctrine of sovereign immunity, we need to see how the limited sovereignty of state and federal governments promotes and vindicates the ultimate sovereignty of the People.
Let us begin by considering again Madison's The Federalist No. 51, in which he suggests that federalism and separation of powers work in similar ways:
[T]hose who administer each department [must have] the necessary constitutional means and personal motives to resist encroachments of the others.
. . . [T]he constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other--that the private interest of every individual may be a sentinel over the public rights. . . .
. . . In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.
Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. [FN265]
Madison's point here is crisper than the cliche that diffusion of political power will generally prevent tyranny. He implies that the Constitution's structure of government will help assure compliance with the specific legal rights established by that instrument. He speaks of 'the rights of the people' and the structural incentives that 'control' against governmental 'encroachments.' [FN266]
Madison's analogy between separation of powers and federalism invites careful attention. For separation of powers plainly has a legal as well as a political dimension; it establishes structures and institutions--like judicial review--whose very purpose is to assure government compliance with the specific legal rights embodied in the Constitution. The question thus becomes, what similar structural features vindicating constitutional rights animate federalism? The key words of The Federalist that can help us unlock this riddle appear in a seldom-quoted passage of Hamilton's No. 28:
[I]n a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. [FN267]
Hamilton's point here, like Madison's in The Federalist No. 51, is not simply that a federal system is a good thing because it diffuses power, but the more precise and intriguing claim that federalism will serve to 'check' 'usurpations' and 'redress' invasions of 'the people's' legal 'rights.' We should note the symmetry of Hamilton's language here; like Madison, he speaks of each government checking the lawlessness of the other. We should also note the richness of Hamilton's imagery. He weaves together language of checks and balances (the word 'check' is followed by a balancing image of the people 'throwing themselves into either scale'); [FN268] of military might (each government 'will at all times stand ready' to thwart the others' attempts to 'invade ' the rights of citizens); of political competition/agency incentive analysis (governments are 'rivals' with competing 'dispositions'; the People are their 'masters'); [FN269] and technical legal doctrine ('rights' and 'redress' are paired). To understand fully the Federalists' vision of federalism, we must understand how all these images were interrelated. In particular, we must see how federalism was designed to check and balance at least three types of interpenetrating power: military, political, and legal. The Federalists were quite clear-eyed in recognizing that a system that distributed these three types of power in radically divergent ways would be unstable in the long run. [FN270] It is thus no coincidence that Hamilton's final three words in this passage, describing each government as a potential 'instrument of redress,' are words that work well on all three levels--military, political, and legal. Nor is it purely coincidental that on each of these levels, there are powerful analogies between separation of powers and federalism, the two great structural principles of the Constitution. For in separating and dividing power, whether horizontally or vertically, the Federalists pursued the same strategy: Vest power in different sets of agents who will have personal incentives to monitor and enforce limitations on each other's powers. [FN271]
The Constitution dramatically expanded the central government's military powers. Under the Articles, Congress could raise troops only by 'requisitioning' each state for its proportionate 'quota' of men (determined by white population). Each state legislature retained the power to 'raise, . . . cloath, arm and equip' its troops, and to appoint all regimental officers 'of or under the rank of colonel.' [FN272] To raise the funds to pay for these men and materiel, Congress once again had to rely on state governmental compliance with a quota system (this time based on wealth). The unworkability of this requisition system--no mechanism short of war existed to enforce states' obligations, so they quite predictably flouted them [FN273]--led the Federalists to empower the new national government to directly raise its own army, to directly tax individuals to pay for that army, and to appoint all its officers. In addition, the new Constitution broke with the Articles by authorizing the new central government to nationalize state militias 'to execute the Laws of the Union, suppress Insurrections and repel Invasions.' [FN274]
The very awesomeness of these military powers induced the Federalists to balance power more carefully within the national government. In England, the King theoretically had the power both to declare war and to command troops. [FN275] Under the Articles, both of these powers resided, at least on paper, in a single unicameral assembly, Congress. By contrast, the Constitution split these powers between legislature and executive. The former could declare war, but the latter would serve as commander-in-chief. Similarly, Congress could lay down 'rules for the government and regulation' of military forces, but the President would execute these rules; Congress could authorize military appropriations (for up to two years), but the President would superintend actual military disbursements; Congress could provide rules for nationalizing state militias, but the President would command them whenever they were called into service. [FN276]
The Federalists struck a similar, though today less noted, vertical balance of military power. For despite the vastly increased practical power of the central government--including the power to quell local insurrections--states still retained one vital check. Although they were forbidden to keep any professional 'Troops . . . in time of Peace without Congressional consent,' they were expressly charged with the 'Appointment of the officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' [FN277] These militias were ultimately subject to nationalization in times of emergency, but their loyalties were likely to be local. State governments would train these men, equip them, and appoint their officers. If the national government had ultimate 'title' to these men and arms, state governments had 'possession'--and the Revolutionary War experience had shown that possession was no small thing. In the event that the central authorities tried to use a national standing army to suspend the Constitution and forcibly subjugate the People--a spectre made vivid by contemporary historical accounts of Stuart tyranny in England, and the birth of despotism in other countries [FN278] --the various state militias could serve as organized and independent pockets of military resistance.
In a single [nonfederal] State, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource . . .. [FN279]
In the United States, by contrast, should tyrannous national leaders attempt a coup, the State governments with the people on their side would be able to repel the danger. . . . [The standing army] would be opposed [by] a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence. . . . [L]ocal governments . . . could collect the national will and direct the national force . . .. [FN280]
The very existence of small but expandable popular 'shadow' armies organized by state governments could deter abuse of a much larger professional standing army organized by the national government--much as a would-be monopolist must take into account not only actual competitors but 'shadow' competitors organized to enter the market if prices rise too high. [FN281] In the words of The Federalist: ' T he existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple as distinguished from a 'compound' or dual-agency government of any form can admit of.' [FN282] By balancing military power between two jealous governments, the People would retain greater control over both. The national government could forcefully put down any purely local coup or insurrection threatening the republican government of a single state, but could be thwarted in any genuine scheme of national tyranny by an alliance of local militias led by state governments. ' A s the People will hold the scales in their own hands, it is to be hoped they will always take care to preserve the constitutional equilibrium between the general and the State governments.' [FN283] The Federalist's discussion of the military check of federalism may strike modern readers as dangerous and embarrassing: [FN284] Dangerous because it seems to invite--indeed, to celebrate--widespread state resistance to national authority; embarrassing because it seems to vindicate the position later taken by extreme states' rights theorists on behalf of nullification and, ultimately, secession. As we ponder the full meaning of Appomattox and Little Rock, we may wonder, can The Federalist be serious about this? And so the above-quoted passages tend to be dismissed ('Hamilton will say anything to win Anti-Federalist votes') or repressed ('a few isolated passages about the peculiarly eighteenth century issue of standing armies have little to teach us today in the aftermath of two Reconstructions').
Both of these reactions are unjustified. The political insincerity of The Federalist has been widely exaggerated. Too often, the fact that The Federalist worked brilliantly on a political level becomes a blanket excuse for the cynic to abdicate responsibility to take the text seriously on any other level. [FN285] True, the Papers are a shrewd political tract, but they are also a great work--perhaps this country's greatest work--of applied political philosophy. And Publius (the pen name of the joint authors of The Federalist) will not say just anything to win Anti-Federalist votes. In other passages, for example, he is emphatic that the ultimate judicial resolution of constitutional issue concerning the boundary between state and national powers must rest with national courts. [FN286] What's more, Publius plainly considers the military argument an important one. It is featured prominently in two different papers--one by Hamilton, one by Madison--and alluded to in several others. And of course, the subsequent adoption of the Second Amendment only underscores the 'necess ity ' of a 'well regulated Militia' to 'the security of a free State.' [FN287]
Properly understood, Publius' argument for the military check of federalism is extremely limited, yet equally important--and is in no way mooted by the Civil War or the civil rights crusade. Publius is not arguing for a general right of state militias, or anyone else, to engage in armed resistance whenever they believe that national authorities are acting unconstitutionally. Under ordinary circumstances, the People's remedies are political and legal, not military. And Publius makes clear that these political and legal questions are to be resolved, under ordinary circumstances, in national fora--Congress, the executive branch, and federal courts. The key qualification, of course, is the phrase 'under ordinary circumstances.' And by hypothesis, the scenario painted by Publius as the occasion for militia opposition is the extraordinary worst case of an attempted national coup. No political or legal remedies exist in this situation. Presumably national courts have been shut down, or, at best, their judgments are unenforceable. The only applicable law is martial law, enforced by gun and sword. In such a scenario, the only remedy left to the People would be military. As Hamilton carefully notes, recourse to arms in such an event would be justified by the traditional Lockean right to revolt whenever the government openly breaches its contract with the People: 'If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government . . ..' [FN288]
This theory, it must be stressed, was not the one invoked by secessionists in 1861, nor could it have been. The national political channels remained open-- Lincoln had won the Presidency, but the race was fair; the national courts remained open--if anything, the Taney Court stood as a shameless apologist for Southern interests; [FN289] and the national military had taken no steps to threaten civilians--on the contrary, Southern citizens launched the attack on Fort Sumter. [FN290] The 'moderate' Confederate theory of secession rested on the right of each state convention to decide for itself whether the federal compact had been materially breached, regardless of what the federal courts or the Peoples of other states believed. [FN291] An even more extreme version of Confederate ideology rested secession not on claims of federal usurpation, but rather on the sovereign right of the People of each state to alter or abolish their government at any time for any reason--even in violation of a pre-existing treaty. As we have seen, both these Confederate theories were premised on a view of sovereignty plainly inconsistent with the Federalist Constitution.
When we move from the Civil War era to our own, the military check of federalism might appear largely unnecessary given the seeming improbability of an attempted national coup in late twentieth century America. Yet this happy state of current affairs is perhaps partly due to the military check itself. The sturdy contemporary ethos of civilian supremacy that makes an attempted military takeover unlikely today draws much of its strength from an unblemished history of due subordination of the national military. That history, in turn, may well have been influenced by the military check. Of course we can never know what might have happened had the Federalists eliminated state militias; but perhaps the strongest evidence of the effectiveness of the framers' system of military checks is two centuries of civilian supremacy that have made a military coup almost unthinkable. [FN292]
The ability of state governments to help implement the People's right to revolt in extraordinary times is paralleled by their ability to help enforce the People's constitutional rights under more ordinary circumstances. [FN293] Once again, the independent and pre-existing organizational structures of state governments were seen as incipient pockets of resistance-- here, political resistance--to unconstitutional federal conduct. The People could confidently confer broad powers upon national agents precisely because they had also created a second set of specialized agents to monitor the first set and orchestrate resistance to its abuses. State legislatures would bring together persons with a special interest in and aptitude for political affairs whose daily duties would necessarily require them to attend closely to national politics. [FN294] At the first sign of a national abuse of power, they could sound a general alarm, communicating information and advice to their constituents and thereby winning their favor. The performance of colonial governments in monitoring Parliament and mobilizing opposition to various schemes of imperial oppression between 1763 and 1776 furnished an obvious historical precedent, [FN295] conjuring up an image of the state legislature that in some ways resembles the self-image of the institutional press today. In the words of The Federalist:
Independent of parties in the national legislature itself, . . . the State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent. [FN296]
It may safely be received as an axiom in our political system that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretences so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. [FN297]
Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. . . . A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter. [FN298] The nation's first major constitutional crisis after ratification was resolved in a fashion strikingly consistent with The Federalist's vision of state legislatures as political watchdogs. In 1798, congressional supporters of President John Adams enacted several bills of dubious constitutionality designed in large part to stifle critics of the administration. The ability of the opposition press to attack the Alien and Sedition Acts was chilled by the prospect of prosecution under the Acts themselves. But if the Constitution's general protections for freedom of speech and the press under the First Amendment were somewhat unclear in 1798, the special constitutional protections for opposition speech in state legislatures were undeniable. These bodies thus took the lead in politically challenging Adams and the Acts. The legislatures of Virginia and Kentucky adopted resolutions declaring the Acts dangerous and unconstitutional, and inviting sister legislatures to do the same. [FN299] Despite some grand and ambiguous claims in the resolutions themselves, these enactments had no legal force. [FN300] Nonetheless, they served as useful political 'instruments of redress' in alerting the People to the threat to their liberties and mobilizing political opposition to the Adams men. Although political agitation at the state level was unsuccessful in securing immediate repeal of the offensive legislation, it effectively transformed the national election of 1800 into a popular referendum on these bills. And with the accession of Thomas Jefferson to the Presidency and the electoral triumphs of the anti-Adams party in congressional races, enforcement of the Acts stopped, and they were quietly allowed to expire under their own terms in 1801. [FN301] The constitutional crisis was thus ultimately resolved by political decisions within the national government itself, but under political conditions powerfully affected by the 'alarm' that state legislatures had sounded. [FN302]
Unsurprisingly, the structure of horizontal separation of powers creates analogous incentives for signalling and political organizing. Even (or perhaps especially) if his veto is overridden, a President's veto message can serve as an important warning to the People that national legislators are attempting to breach the constitutional walls on their powers. So too with a judicial opinion, even (or perhaps especially) one that the political branches refuse to enforce. Indeed, Professor Ackerman's accounts of the elections of 1866 and 1936 as constitutional referenda of sorts neatly parallel mine here of the election of 1800, with the interesting difference that these later referenda were signalled by and organized around horizontal constitutional disputes between different branches of the national government. [FN303]
In fact, the analogy between separation of powers and federalism is even more precise, for both operate on a legal as well as a political level. A presidential veto on constitutional grounds has legal force. So does a federal court declaratory judgment that an act of Congress is unconstitutional. Likewise, state governments are more than mere political bodies. Unlike the press, a state legislature can do more than simply sound a political alarm. [FN304] Unlike the Virginia and Kentucky resolutions, not all actions by state legislatures need be viewed as naked declarations devoid of legal force. The Tenth Amendment reminds us that state governments have residuary powers to enact law. As we shall see, this fact has dramatic implications for the vindication of constitutional rights.
The general structure of separation of powers enables each national branch to thwart a national law it deems unconstitutional--Congress by declining to pass it; the President by vetoing it (or, if it is a criminal statute, by declining prosecution or pardoning those convicted); and the federal courts by engaging in judicial review. Of course, there are limits and exceptions to this general feature of one-branch veto. The President's veto may be overridden; conversely, a simple congressional majority, once having passed a law, cannot repeal it, even if it later deems the law unconstitutional, without the concurrence of the President. Nevertheless, built into the general structure of the Constitution is a libertarian bias based on checks against constitutionally suspect laws and in favor of the broadest of the various constructions of the constitutional right given by the three branches. [FN305]
The structure of separation of powers thus protects constitutional values by providing three separate, overlapping, and mutually reinforcing remedies-- legislative, executive, and judicial--against unconstitutional federal conduct. A similar mechanism of overlapping legal remedies for constitutional wrongs is at work in the structure of federalism. A state government may violate the Constitution, yet fail to provide victims with a sufficient range of causes of action to ensure a full remedy for the wrong. Suppose complete redress in a particular situation requires joint and several strict liability of all state officials who participate in unconstitutional conduct, or entity liability of the state government itself, yet state law provides for neither. The beauty of constitutional federalism is that the federal government can furnish aggrieved individuals a supplemental remedy. Section 1983 is one example of such a federal remedy. [FN306]
There are structural reasons to believe that the federal supplemental remedy may systematically tend to be more generous than state-furnished remedies. To begin with, federal officials were not the perpetrators of the wrong, and thus will suffer no political embarrassment from any judicial proceedings that might publicize that wrongdoing. On the contrary, legislators in Congress can score political points among their constituents by casting themselves in the role of heroes rescuing victimized citizens from villainous state officials. Best of all, the rescue operation costs the federal government little: State officials, after all, will have to foot the liability bill. In any event, the citizen victims will typically enjoy the best of both worlds, since they can invoke both state and federal remedies for the state wrong. [FN307]
Conversely, where the national government has violated constitutional rights, it may fail to provide adequate federal causes of action to fully remedy its own wrongs. It is not just coincidence that for over a century Congress has provided section 1983, a general cause of action against persons who violate constitutional rights 'under color of state law,' but no analogous cause of action against unconstitutional actions of federal officials [FN308]--a discrepancy narrowed, but not eliminated, by Congress only under pressure from the Supreme Court's holding in Bivens v. Six Unknown Federal Agents. [FN309] Once again, the beauty of federalism is that another government can provide citizens with additional causes of action. For reasons symmetrical to those canvassed above, state remedies should systematically tend to be more generous than those offered by Congress. [FN310] Once again, federalism's political incentives will help to enforce legal rights and vindicate the maxim, ubi jus ibi remedium.
Thus, far from justifying a gap between constitutional right and remedy, as the Court at times implies, federalism abhors a remedial vacuum. Citizens can rely on the federal government to provide supplemental remedies for constitutional wrongs committed by states, and vice versa. [FN311] Seen in this light, the Tenth Amendment appears as the symmetrical counterpart of the enforcement clauses of the Civil War Amendments.
The ability of the federal government to remedy state lawlessness may seem virtually self-evident given the central place of section 1983 in contemporary legal discourse. [FN312] Yet history provides equally dramatic examples of state remedies against federal abuses, which contemporary scholarship has tended to ignore.
Consider first an example from the Fourth Amendment. Before the Supreme Court decided Bivens v. Six Unknown Federal Agents in 1971, the only damage remedy generally afforded to individuals whose homes had been unconstitutionally searched by federal agents was provided by the state common law of trespass. Without this state law cause of action, a citizen simply had no standing to get into court to challenge the constitutionality of the search and be compensated for the wrong done. Thus, for nearly the first two centuries of our constitutional history, only state law--created by dint of the reserved lawmaking power of states--furnished any redress for a species of concededly unconstitutional conduct by federal officials.
The structure of these pre-Bivens cases was quite simple: The ultimate issue before the court concerned the federal Constitution, but standing was conferred by the vertically-pendent state law cause of action. [FN313] Plaintiff would sue defendant federal officer in trespass; defendant would claim federal empowerment that trumped the state law of trespass under the principles of the supremacy clause; and plaintiff, by way of reply, would play an even higher supremacy clause trump: Any federal empowerment was ultra vires and void because of Fourth Amendment limitations on federal power itself. If, but only if, plaintiff could in fact prove that the Fourth Amendment had been violated, defendant's shield of federal power would dissolve, and he would stand as a naked tortfeasor.
The structure of these cases is illustrative of the myraid ways in which constitutional 'public law' protections are intricately bound up with-- indeed, presuppose--a general backdrop of 'private law' protections defining primary rights of personal property and bodily liberty. [FN314] Alexis de Tocqueville explicated this subtle interplay in Democracy in America: 'The Americans hold that it is nearly impossible that a new unconstitutional law should not injure some private interest by its provisions. . . . I t is to these interests that the protection of the Supreme Court is extended.' [FN315] And as Publius noted, in the same passage in which he spoke of states as 'counterpoises' to federal power, states would typically define and protect these primary rights, thereby enlisting the affections of their citizens:
There is one transcendent advantage belonging to the province of the State governments . . .. [They will be] the immediate and visible guardian of life and property, . . . regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, . . . impressing upon the minds of the people affection, esteem, and reverence towards the government. [FN316]
The Court's decision in Bivens v. Six Unknown Federal Agents [FN317] does not moot the importance of federal-state remedial competition. In the best tradition of the remedial principles set forth in Marbury v. Madison, [FN318] the Bivens Court inferred a damage action directly under the Fourth Amendment. Yet the promise of this move was only partially fulfilled. Although we have seen that full remedies for constitutional violations will often require governmental liability, [FN319] lingering notions of sovereign immunity induced the Bivens Court to recognize only a cause of action against individual (and possibly judgment-proof) federal officers. Individual liability makes a good deal of analytic sense where standing is conferred by a cause of action that in no way depends upon state action. A trespass cause of action applies to all individuals, whether or not the trespasser wears a uniform. By contrast, the Bivens cause of action is itself predicated upon a governmental wrong, and thus seems naturally to call for governmental liability. [FN320] That the Court did not restructure the case as Bivens v. United States is yet another unfortunate residue of the Young fiction. [FN321]
Moreover, even the cause of action that the Bivens Court did approve was subsequently qualified by a set of individual immunities that threaten to widen further the gap between right and remedy. Consider, for example, the case in which a federal magistrate wrongly issues a search warrant without probable cause. Assuming the warrant is issued ex parte and immediately executed, it is hard to imagine how the citizen victim could prevent the unconstitutional search from taking place. And after her home has been searched, she may still lack a federal remedy. The magistrate is absolutely immune; the federal agents are likely to enjoy good faith immunity--they did, after all, have a warrant; and the Federal Torts Claims Act may not apply. In this situation, state remedies such as trespass may continue to help plug the remedial gap. [FN322]
Apart from misguided doctrinal concerns about sovereign immunity, the Court's hesitation in Bivens and its progeny probably stems from a lingering doubt about whether remedy-fashioning is a more legislative than judicial function, and from an awareness of the special political vulnerability of federal judges in suits involving coercive relief against agents in coordinate branches of government. [FN323] On both of these counts, remedial competition between the political branches of state and national government can strengthen judicial resolve. In confronting lawless conduct by one government, the federal courts need not stand alone if they can draw upon the remedial law and political support of a competing government. Thus, state governments can help federal courts implement truly full remedies that these courts--for purely institutional reasons--might hesitate to order on their own. [FN324] Separation of powers and federalism can reinforce each other here, creating possibilities for useful alliances between state governments and federal courts to keep the rest of the federal government honest. [FN325]
States need not confine their remedies to damages, nor have they historically. The ability of states to vindicate constitutional values through injunctive relief was perhaps nowhere more dramatic than in early state habeas corpus cases: State habeas offered a way for those imprisoned by federal officers in violation of their federal constitutional rights to win their freedom. In the mid-nineteenth century, however, the Supreme Court called into question this tradition of libertarian federalism. In Ableman v. Booth [FN326] and Tarble's Case, [FN327] the Court held that principles of national supremacy forbade state courts to inquire into the lawfulness of federal detention. Yet the Court's analysis in these cases was shaky, and its language quite sloppy. For example, scholarship by William Duker has established that the very purpose of the habeas non-suspension clause of Article I, section 9, was to protect the remedy of state habeas from being abrogated by the federal government; [FN328] the language of non-suspension obviously presupposes a pre-existing (state) common law habeas remedy. The non- suspension clause is powerful textual evidence confirming the general structural postulate that state remedies were intended to play a vital role in checking federal misconduct. [FN329] The clause also illustrates yet again the interplay of common law and constitutional protections of liberty. The common law would furnish the cause of action that assured judicial review; the Constitution would furnish the test on the legal merits of confinement.
The principle of national supremacy that the Court invoked in Ableman and Tarble's Case seems irrelevant on the facts of those cases. The Constitution, and not the national government, is supreme in our legal system. Indeed, the Constitution's supremacy clause specifically charges state courts with the obligation to abide by it as the supreme law of the land. [FN330] That was precisely what the state courts in Ableman and Tarble's Case were doing when they sought to inquire into the legality of federal detention.
The Supreme Court's habeas doctrine reflects apparent concern that state courts might rule improperly on the merits--that is, on the question of the constitutionality of detention. But resolution of the merits by a state court would present a federal question that would trigger Supreme Court appellate review under the relevant jurisdictional statutes. Congress could go even further by providing for removal from state to federal court whenever it appeared that the lawfulness of detention would turn on the resolution of a federal question. Of course, in this removed proceeding, federal courts would be obliged to enforce the vertically-pendent state law habeas remedy--but this is precisely the point: Congress should not automatically be able to oust any state remedy it deems 'inconvenient.' Full compliance with constitutional norms is often 'inconvenient' from the government's point of view. Ableman and Tarble's Case can be justified only if they are understood simply as attributing to Congress a desire for exclusive federal court jurisdiction in habeas proceedings against federal officers. [FN331] So understood, these cases should not be read to allow a federal court vested with exclusive jurisdiction to disregard--to suspend--the state-law habeas remedy. Jurisdiction must be distinguished from the rule of decision, as the Tenth Amendment, the Rules of Decision Act, and the Eleventh Amendment's repudiation of Chisholm all make clear.
The role of the states suggested by this neo-Federalist vision is at once similar to and different from state court 'interposition.' According to nineteenth century states' rights theorists, state courts had to be given unreviewable power to hold federal conduct unconstitutional; only through this 'interposition' of state court judges, it was argued, could federal encroachments against the Constitution be prevented. [FN332] In a more restrained version of this argument, Professor Henry Hart and other twentieth- century scholars have argued that Congress may choose to give state courts final jurisdiction over federal statutory and constitutional questions. [FN333] Yet the text and structure of Article III clearly seem to mandate that the last word on all federal question cases be vested in the federal judiciary, either at trial (via removal or exclusive federal jurisdiction [FN334]) or on appeal from state courts. [FN335] The neo-Federalist view offered here is fully consistent with the constitutional supremacy of federal over state courts. [FN336] The constitutionality of the federal conduct challenged in any given case would always pose a federal question whose ultimate resolution, along with all other federal questions raised, would always lie with federal courts. The role of the states is solely to provide victims of constitutional wrongs with the chance to have their federal rights defined and fully protected in federal court. [FN337] Thus, interposition theorists were right in believing that states had a vital part to play in vindicating individual constitutional rights against federal encroachments; [FN338] they were wrong in claiming that the Constitution's script gave state courts the last word on federal questions. [FN339]
The 1882 Supreme Court case of United States v. Lee [FN340] elegantly dramatizes this neo-Federalist synthesis. If the case did not exist, one would be tempted to invent it. George Lee, son of General Robert E. Lee, brought suit in ejectment to recover possession of the family estate in Arlington, Virginia, the site of today's Arlington Cemetery. Federal military officers were occupying the lands under claim of federal title, the validity of which Lee disputed. During the Civil War, Congress had imposed on the land a nominal property tax that, under the terms of the statute, had to be paid in person by the land's owner. General Lee, otherwise engaged at the time, graciously declined Congress's invitation to walk unarmed into the enemy camp. Payment was tendered by others on Lee's behalf, but the government refused to accept. The government then foreclosed on the estate, and bought the land itself (at a bargain price) at the auction. Over the defendants' vigorous assertions of sovereign immunity, the Supreme Court held for Lee because the federal government's actions had violated the Fifth Amendment's due process and takings clauses.
Yet it was a state law cause of action that had enabled Lee to get into an Article III court in the first place. The case stands as a poetic reminder of the ways in which, short of interposition, nullification, secession, and Civil War (a war that perhaps could also have been captioned United States v. Lee) [FN341] states may serve as the 'instrument of redress' for unconstitutional federal conduct. [FN342]
A neo-Federalist view of constitutional remedies helps us to see more clearly what we have been doing all along: Perhaps without always realizing it, states have furnished, and are continuing to furnish, remedial aid and comfort to citizens victimized by federal unconstitutionality. Yet neo- Federalism is more than an historical connect-the-dots exercise through which we can see a larger pattern emerging from seemingly unrelated cases such as Bivens, Tarble's Case, and United States v. Lee. To reconceptualize past events is to imagine future possibilities. A brief exploration of one possible remedial scheme that states might try to adopt in the future will help to illuminate the scope and the limits of state power. [FN343]
Once the symmetry of the legal check of federalism is understood, a state government might be inclined to adopt a simple state statute inverting the language of 42 U.S.C. section 1983 in something like the following manner: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of [the United States], subjects, or causes to be subjected, any citizen of [this state] or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Would such a converse-1983 statute be permissible? At first blush, it might seem vulnerable to the following criticism: Unlike the other state law causes of action canvassed above, which applied generally against both private actors and government officials, a converse-1983 statute explicitly singles out the federal government as its target. It thus offends the basic principles of McCulloch v. Maryland [FN344]; it is an impermissibly discriminatory tax on federal instrumentalities. And the legitimacy of section 1983 itself does not necessarily prove the constitutionality of a converse-1983 statute, for as Chief Justice Marshall noted in McCulloch, very different principles are involved when the nation taxes a state. The part is represented in, and therefore may legitimately be bound by, the whole, but the reverse is not true. [FN345]
This line of criticism, while forceful, must be qualified. There is all the difference in the world between a state's attempt to thwart a legitimate, 'necessary and proper' course of conduct adopted by the national government-- the issue in McCulloch--and an otherwise analogous attempt to thwart illegitimate, ultra vires conduct that lacks constitutional sanction. [FN346] A converse-1983 action does single out federal officials, but they deserve to be singled out. They wield extraordinary powers, capable of extraordinary abuse. [FN347] The framers expected and desired--indeed, relied on--states on keep a special eye on the federal government. [FN348]
A close reading of McCulloch itself confirms these principles. Chief Justice Marshall structures his opinion as a response to two questions. First, he considers whether the federal government can constitutionally create a national bank. Only after answering this question in favor of the federal government does he consider the second question of whether Maryland may nevertheless tax that bank. The clear implication of this way of structuring the analysis (and of several artfully drafted passages in the Court's discussion of the second question [FN349]) is that if the Bank had been unconstitutionally chartered, then Maryland could have taxed it. [FN350] It would have been an improperly authorized entity that could in no way partake of federal tax immunity. McCulloch may nonetheless help to define the limits of permissible state remedies. For example, if a state were to provide for a minimum of one million dollars of presumed damages to any citizen whose home was unconstitutionally searched by the federal government, the remedy should fail as an impermissible 'tax' on federal operations. In a very limited sense, some violations of the Constitution by the federal government are inevitably necessary--if not, strictly speaking, proper--exercises of federal power. Thus, the creation of a state remedy that goes far beyond what is required to make the victim whole--a tax masquerading as a remedy--would violate McCulloch principles.
A slightly different formulation could perhaps be derived from a comment in McCulloch's closing paragraph: 'This opinion . . . does not extend to a tax paid by the real property of the bank, in common with the other real property within the State . . ..' [FN351] This passage might support the following test for federal courts: A converse-1983 statute should be upheld so long as the burden of proof and damage provisions are roughly analogous to those under comparable causes of action that apply against private citizens. Because potential defendants under these other statutes are represented in the legislature, these statutes are unlikely to contain excessively punitive liability rules; thus this 'nondiscrimination' test and the 'nontax' test outlined above are unlikely to yield sharply divergent results.
Even under current Court doctrine, no sovereign immunity bar would stand in the way of a converse-1983 statute. As a doctrinal matter, sovereign immunity is inapplicable to damage suits against government officials in their individual capacities, where defendants have to pay out of their own pockets. As a practical matter, a converse-1983 statute--especially if it provided for strict liability, as it could consistently with McCulloch [FN352]--might well force the federal government to indemnify its officers. Without a promise of indemnification for negligent or good faith (but nonetheless unconstitutional) conduct, who would agree to work for the government? [FN353]
Direct indemnification (or higher salaries to compensate employees for their additional liability risk) would require payment from general funds. The benefits of a converse-1983 statute would be local, but the costs would be dispersed. In such a situation, every state legislature would have incentives to follow the lead of the first state whose converse-1983 statute was upheld by federal courts. The structure of payoffs may seem to create the potential for a classic 'race to the bottom,' yet I believe we should more properly view the political incentives as inducing a race to the top, a race to the banner of ubi jus, ibi remedium, a healthy race refereed by federal judges [FN354] ready to keep the contestants within the bounds of McCulloch and Bivens. [FN355] Indeed, federal courts should allow states to go one step beyond individual strict liability in fashioning converse-1983 remedies. As we have seen, full remedies for constitutional wrongs will often call for direct government liability. [FN356] Yet the federal government may hesitate to create a cause of action against itself, so the question arises whether state governments can create such a cause of action. As a practical matter, the question is almost identical to that raised by a strict liability converse-1983 statute, since, as noted above, such a statute would likely oblige the federal government to absorb the ultimate cost. As a doctrinal matter, of course, the cases are different because current Court doctrine would immunize the federal sovereign from suit. Yet we have seen that current doctrine rests on a fatally flawed understanding of sovereignty and should be discarded. [FN357] A state law combining converse-1983 principles with rules of entity liability and respondeat superior should be upheld, so long as the liability provisions aimed at U.S.A., Inc. roughly track rules for private corporations under analogous state laws.
The complete absence of converse-1983 laws from state statute books today may seem to undercut the descrpitive force of the neo-Federalist view that state legislatures have incentives to 'race' to protect citizens against federal abuse. [FN358] However, there may be a quite simple explanation: State legislatures have not passed these statutes because they have been unaware of their constitutional authority to do so, and more generally, unaware of their special role and responsibility in protecting their constituents from federal lawlessness. This is perhaps a reflection of the inadequacy of contemporary legal discourse about federalism: In discarding the extremism of nullification and interposition, we have also thrown away a rich antebellum tradition emphasizing state protection of constitutional norms against the federal government. [FN359] Today's nationalists wrongly interpret the Civil War and the civil rights movement as establishing the supremacy of the national government, instead of the supremacy of the Constitution. They overread McCulloch and are overly hostile to states. By contrast, the Justices seem bent on invoking state sovereignty only as a paradoxical check against legitimate congressional and constitutional rights. [FN360] They overlook McCulloch and are overly hostile to remedies. Neither side has pursued a line of analysis that would welcome converse-1983 statutes. And so the legal imaginations of our state lawmakers have been unduly limited.
One final set of complications should be noted. The variety of remedies adopted by different states might create a crazy quilt of legal intricacies threatening to confound efficient and uniform execution of national operations, and perhaps tending to erode the sense of national identity that the Constitution was meant to symbolize. In such a situation, Congress might seek to preempt these various state remedies with a uniform regime of exclusive federal remedies. Yet we must not bow too quickly to this assertion of federal power; the remedial imperative must be harmonized with, rather than sacrificed to, the desiderata of government efficiency and national unity. The Tenth Amendment can aid analysis here. The reserved lawmaking power of the states means that state-created remedies are automatically in force, unless displaced by a federal law falling within the finite (though broad) powers of the national government. Congress enjoys no explicit power to preempt state remedies for unconstitutional federal conduct. Moreover, whereas congressional power to create federal remedies for federal constitutional wrongs seems obviously 'necessary and proper,' the power of Congress to destroy state remedies is not so obviously implicit in our constitutional structure. Furthermore, where the state is performing a vital and (to borrow from the lexicon of recent Tenth Amendment case law) 'traditional' state function [FN361] of policing against federal constitutional wrongs, countervailing federal power should not be lightly assumed. [FN362] To give Congress plenary power to nullify any state remedy it disliked would disturb the careful constitutional balance of federalism, and would ultimately imperil individual constitutional liberty by weakening an important check against federal abuse. [FN363]
Congress must not be allowed to use national uniformity as a pretext to deny full remedies for federal unconstitutional conduct. Uniformity is just as well served by uniformly full, as by uniformly inadequate remedies. Thus, to demonstrate a bona fide purpose--such as the avoidance of an obstacle course of diverse state law remedies--Congress should be obliged to provide an exclusive federal remedy that is as effective as the fullest state remedy [FN364] it seeks to displace. [FN365] Unless Congress furnishes such a remedy, federal courts should invalidate any effort to preempt state remedies. [FN366] Hence, even where states are denied the last word on remedies for federal constitutional wrongs, they have the power to compel a dialogic response from Congress that is more generous to aggrieved citizens than the congressional status quo ante. [FN367]
The neo-Federalist view sketched here recognizes the vital role of federal courts, but also emphasizes the important part that other institutions--such as Congress, state courts, and state legislatures--can play in shaping and promoting constitutional values. The argument here is not merely historical, but hortatory: Even if states have not always taken seriously their role in protecting individual constitutional rights against the federal government, they should do so. All those who wield the power of government--Court and Congress, state judge and state legislator--should take seriously the obligation to use that power to promote the ultimate sovereignty of the People as embodied in the Constitution. [FN368]
Today's Court seems to have lost sight of the People--and so it has transmogrified doctrines of federalism and sovereignty into their very antitheses. Sovereign immunity allows 'sentinels' hired to uphold the law to become gunmen who are a law unto themselves. And 'Our Federalism' perverts a structure designed to assure full remedies for constitutional wrongs into a system that regularly frustrates the remedial imperative. Whenever the rhetoric of 'states' rights' is deployed to defend states' wrongs, our servants have become our masters; our rescuers, our captors. [FN369]
The Constitution is two hundred years old this year. Perhaps the best way we could celebrate this enduring document would be to ask whether current legal doctrines do full justice to it, to its makers, and to ourselves.
[FNp] Assistant Professor of Law, Yale Law School. B.A. Yale University, 1980; J.D., Yale University, 1984. Special thanks to Bruce Ackerman, Vik Amar, Betsy Cavendish, Owen Fiss, Paul Gewirtz, Joseph Gibson, Joe Goldstein, Henry Hansmann, Diane Hart, Al Hirsch, Paul Kahn, Burke Marshall, Henry Monaghan, Mike Paulsen, Bob Post, Jeff Powell, Roberta Romano, Cass Sunstein, Pater Swire, Ron Wright, and Sam Zurier.
This essay is dedicated to the memory of my teacher, colleague, and friend, Robert M. Cover.
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