Yesterday I noted Randy Barnett’s post on Pauline Maier’s book Ratification, in which Professor Barnett offered an interesting take on the book's implications for the debate over state sovereign immunity. Kurt Lash writes in response:
I agree with Randy about the wonderful historical story Maier has penned. … On the other hand, Randy's comment about Maier's book segues into a critique of scholars who claim the 11th Amendment represents the restoration of the original understanding of Article III. ... Here, I think Randy has misread both works like mine and the significance of Maier's book. Accordingly, I dropped the following into the comments [here] for Randy's recent post:
Maier has indeed written a wonderful book. I am not sure, though, that its evidence cuts the way Randy suggests.
No one (that I know) believes that it matters whether the federalists knew what was being argued in the other state conventions. On the other hand, common explanations of the Constitution and its fundamental principles would be quite relevant to determining the likely understanding of those who embraced the document. Here, Maier points out that the basic arguments, pro and con, were established early in the debates. After the early heavy-handed actions of James Wilson and the Federalists in Pa. threatened to taint the entire ratification effort (wonderfully detailed by Maier), the Federalists across the remaining conventions uniformly presented the document as preserving the sovereign status of the states. As Marshall explained in the Va. convention (and as Hamilton repeated the next day in Fed. 81), Article III should (and would) be read in a manner preserving the sovereignty of the states and would leave the states as immune from unconsented suits for damages by individuals as the federal government itself.
The preserved sovereign status of the states was not presented as an “expected application.” It was presented as a bedrock principle (or “framework principle as Jack Balkin might call it) of the proposed Constitution. One can argue whether we should care about the likely understanding of the ratifiers, but there is no doubt about how the document was presented, or whether it would have been rejected had the post-Pa. conventions believed the document, properly read, erased state sovereignty. Nothing in Maier’s book suggests otherwise.
Professor Lash’s outstanding work on the historical evidence in support of reading the Eleventh Amendment as declarative of original understanding is Leaving the Chisholm Trail: The Eleventh Amendment and the Background Principle of Strict Construction, 50 William and Mary L. Rev. 1577 (2009) (available here).
Professor Barnett has a brief reply here:
I do not really disagree with much of what my friend Kurt Lash posts above. I was not claiming that Maier’s book says much about whether Chisholm was correctly decided. And it does highlight that state sovereignty was an important principle throughout the ratification process. My point was a narrower one with which Kurt appears to agree. What Federalists in the Virginia like Madison and Marshall may have said in about the preservation of state sovereign immunity in response to the Antifederalist reading of what at least appears to be the plain meaning of Article III did not “fix,” liquidate or affect in any way the public meaning of Article III from what it would otherwise be, although it may be evidence of that meaning. On the other hand the Antifederalist skepticism of that claim is also evidence of what the words of Article III meant to a normal reader. I do think some originalists have suggested that we are bound by a meaning suggested by Federalist proponents of the Constitution that fixes or liquidates an otherwise vague meaning or, as I put it, provides a “gloss” on that meaning. I was not making a claim about whether lots of talk about state sovereignty in lots of conventions might signify that the public meaning of Article III silently assumed the preservation of the underlying principle of sovereign immunity for states akin to federal sovereign immunity. Perhaps it did. While I agree that there is nothing in the Maier book that undercuts such a claim, neither did I read anything that lent it strong support.