Category Archives: #Articles

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 régime 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 coör­di­nate 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 coör­di­nate 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 régime 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]

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