George Mason
Law Review

Sovereign Immunity and the Two Tiers of Article III

Alexander Schultz
Volume 29
Issue 1

Introduction

“[A]t the adoption of the constitution, all the States were greatly indebted; and the apprehension that these debts might be prosecuted in the federal Courts, formed a very serious objection to that instrument.”

                             — Chief Justice Marshall, Cohens v. Virginia119 U.S. (6 Wheat.) 264, 406 (1886).

For American States in 1788, the issue of whether state sovereign immunity would persist if the proposed Constitution were ratified could plausibly be reframed as a question of basic political existence. The States had accumulated vast debts during the Revolutionary War. These debts were too large to be repaid in a timely manner. But, the doctrine of sovereign immunity allowed States to invoke a common-law privilege—once possessed by the English King—not to be sued without consent. By invoking that privilege, a State could, if needed (and after the War, it was needed), refuse to consent to suit and thereby deny creditors the judicial means to force a payment. But there were grave fears that the proposed Constitution, with its Article III courts, would destroy this sovereign privilege. “Pass this government,” Patrick Henry and George Mason warned Virginia during its ratification convention, “and you will be carried to the federal court,” “arraigned like a culprit,” and “compelled to pay shilling for shilling.”2Patrick Henry, Convention of Virginia, reprinted in 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 319, 527 (Johnathan Elliot ed., 1st ed. 1836).

For Henry, Mason, and other Antifederalists, the threatened loss of state sovereign immunity and attendant depletion of state treasuries weighed decisively against ratification. Thankfully for our constitutional order, others managed to mollify these concerns. Alexander Hamilton assured readers of The Federalist that the Constitution, as written, would not strip States of their sovereign “privilege of paying their own debts in their own way.”3The Federalist No. 81 (Alexander Hamilton). John Marshall similarly promised, when addressing the Virginia ratifying convention, that the continued protection of state sovereign immunity in public-debt cases was “warranted by the words” of the Constitution itself.4See George Nicholas, Convention of Virginia, reprinted in 3 The Debates in the Several State Conventions, supra note 2, at 523. In the end, a supermajority of States, Virginia included, voted to ratify.

Despite the shared concern across the Antifederalist-Federalist spectrum for preserving some form of state sovereign immunity,5See William A. Fletcher, The Diversity Explanation of the Eleventh Amendment: A Reply to Critics, 56 U. Chi. L. Rev. 1261, 1265–66 (1989); see also Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1559, 1592–94 (2002). today many disbelieve Marshall’s contention that the “words” of the Constitution as originally enacted established a textual safeguard for that privilege.6See Clyde E. Jacobs, The Eleventh Amendment and Sovereign Immunity 160 (1972); Erwin Chemerinsky, Against Sovereign Immunity, 53 Stan. L. Rev. 1201, 1205 (2001); William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 25 Stan. L. Rev. 1033, 1077 (1983); John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 Yale L.J. 1663, 1666 (2004); Nelson, supra note 5, at 1563–64, 1567; David L. Shapiro, The Role of Precedent in Constitutional Adjudication: An Introspection, 86 Tex. L. Rev. 929, 952 (2008); Fred Smith, Local Sovereign Immunity, 116 Colum. L. Rev. 409, 449, 474 (2016).

Count the modern Supreme Court as among the Marshall skeptics. The Court recently avowed that the Constitution protects state sovereign immunity not as a matter of text but rather as a “presupposition of our constitutional structure”;7PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2258 (2021) (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991)); see also Allen v. Cooper, 140 S. Ct. 994, 1000 (2020) (quoting Blatchford, 501 U.S. at 779). or, as Alden v. Maine8527 U.S. 706 (1999). put it, because of “fundamental postulates implicit in the constitutional design.”9Id. at 707, 729. Justice Scalia, the late, great textualist, similarly defended the persistence of state sovereign immunity in Article III courts as a “constitutional principle beyond the immediate text.”10Pennsylvania v. Union Gas Co., 491 U.S. 1, 31 (1989) (Scalia, J., concurring in part and dissenting in part).

Much of legal scholarship shares the Court’s atextual premise. There is a general insistence that the Constitution’s accommodation of “[s]overeign immunity is not tethered to any particular constitutional . . . provision”11Fred Smith, Local Sovereign Immunity, 116 Colum. L. Rev. 409, 449, 474 (2016). and “lack[s] any discernable textual source.”12John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003, 2009 (2009); see also Fletcher, supra note 6, at 1077; Manning, supra note 6, at 1663, 1666.

This Article, by way of contrast, builds on the recent scholarship of Professors Caleb Nelson, William Baude, Stephen Sachs, Anthony Bellia Jr., Bradford Clark, and other “new textualists” who claim, in accord with Marshall, that there are constitutional “words” that protect state sovereign immunity.13See William Baude, Sovereign Immunity and the Constitutional Text, 103 Va. L. Rev. 1, 1–4 (2017); Anthony J. Bellia Jr. & Bradford R. Clark, The International Law Origins of American Federalism, 120 Colum. L. Rev. 835, 839–42, 898–903 (2020); Stephen E. Sachs, Constitutional Backdrops, 80 Geo. Wash. L. Rev. 1813, 1823, 1868–69 (2012); see generally Nelson, supra note 5. However, this Article identifies different textual support and arrives at a rather dissimilar conclusion regarding the precise scope of that protection. Most prominently, this Article does not contend that sovereign immunity is sheltered by Article III’s requirement that legal disputes present a “case or controversy” rather than a moot issue or a request for an advisory opinion;14Nelson, supra note 5, at 1565–66. nor does it rely on the simple fact that the Constitution employs the word “States.”15See Michael B. Rappaport, Reconciling Textualism and Federalism: The Proper Textual Basis of the Supreme Court’s Tenth and Eleventh Amendment Decisions, 93 Nw. L. Rev. 819, 821 (1999); see also Bellia & Clark, supra note 13, at 898. Instead, this Article endeavors to show that the relevant constitutional words are the entiretyof Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.16U.S. Const. art. III, § 2, cl. 1.

It takes two steps to connect Article III’s distribution of “judicial Power” to “all Cases” of three kinds but merely (the textual variation suggests) to some “Controversies” of six others to what is advocated here as the Framers’ careful resolution of the sovereign immunity question.17U.S. Const. art. III, §§ 1–2.

The first step is relatively uncontroversial and involves treating judicial Power and sovereign immunity as incompatible concepts. The Supreme Court has long maintained that Article III’s grant of judicial Power implies the constitutional authority to render a final, binding judgment under the law applicable in a case in which a court has jurisdiction.18Accord William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1809 (2008) (“[T]he judicial power is the power to issue binding judgments. . . . [T]hat must be enforced by the Executive Branch so long as those courts have jurisdiction over the case.”). In contrast, “sovereign immunity,” at the time of the founding, was viewed as a common-law practice pursuant to which “the judgment of the Courts [were] . . . only monitory, not mandatory” upon a State or other sovereign.19Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 471 (1793) (opinion of Jay, C.J.). Since a “monitory” judgment cannot be a “final and binding” judgment, the presence of sovereign immunity might be understood to imply the absence of judicial Power and vice-versa: a view that Nelson has described as “conventional academic wisdom.”20Nelson, supra note 5, at 1564; see also, e.g., Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 750–51 (1838).

The second step involves seeing intention behind the “all Cases” and “Controversies” textual variation in Article III. As the Supreme Court observed in 1816, Article III’s text initially provides “that the judicial power shall extend to all cases” of three kinds, whereas in “the subsequent part of the clause . . . the word ‘all’ is dropped seemingly ex industria.”21Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 334 (1816). The Court then declared that it should “hardly . . . be presumed that [this] variation in the language could have been accidental.”22Id. The reading advanced in this Article endeavors to find the meaning behind the variation.

Let’s begin with Article III’s second tier, where the judicial Power extends to certain “Controversies” and the word “all” is omitted.23U.S. Const. art. III, § 2. If that omission is meaningful, it stands to reason that some Controversies are excluded from the judicial Power’s embrace, such that the Supreme Court was correct when it stated in 1838 that where the Constitution does not “extend the judicial power to all controversies” it becomes “a question of construction, whether [a given] controversy . . . is within the grant of judicial power.”24Rhode Island, 37 U.S. (12 Pet.) at 721–22 (emphasis added).

On that logic, what sort of Controversies might be excluded from the reach of the federal judicial Power? Here, recourse might be had to the founding principle that the Federal Government can “claim no powers” over the States except those “expressly given, or given by necessary implication.”25Alden v. Maine, 527 U.S. 706, 739 (1999) (quoting Martin, 14 U.S. (1 Wheat.) at 326)). This meant, as John Marshall said at the Virginia ratifying convention, that where states had a right “antecedent to the adoption of the Government, and not being divested of it by any [express or implied] grant or restriction . . . they must necessarily be as fully possessed of it as ever they had been.” John Marshall, Convention of Virginia, reprinted in 3 The Debates in the Several State Conventions, supra note 2, at 421. Moreover, it was similarly established that sovereign “immunity from suit [was] a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution.”26PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2258 (2021) (quoting Alden, 527 U.S. at 713). By utilizing those precepts, and adopting a two-tiered reading of Article III, it is easy to see where the new textualists have got it right. Insofar as the Controversy Clauses are concerned, the constitutional text incorporates the pre-constitutional (or “antecedent”) doctrine of sovereign immunity as a background constitutional right, such that the judicial Power should not be construed to extend to Controversies that, pursuant to this antecedent doctrine, would be beyond a court’s authority to definitively adjudicate.27See Baude, supranote 13, at 3, 8–9; Bellia & Clark, supra note 13, at 897–903, 909–10; Nelson, supra note 5 at 1565–66; Sachs, supranote 13, at 1868–72 (describing the argument); cf. Alden, 527 U.S. at 727 (recognizing “the presumption that no anomalous and unheard-of proceedings or suits were intended to be raised up by the Constitution . . . .”) (quoting Hans v. Louisiana, 134 U.S. 1, 18 (1890)).

The very same constitutional text does not, however, support the new textualists’ position that the constitutional incorporation of this antecedent doctrine was wholesale. Instead, the first tier of Article III expressly extends the federal judicial Power to “all Cases” of federal question, ambassadorial, or admiralty jurisdiction.28U.S. Const. art. III, § 2. It is here, by textual necessity, that a federal court’s judicial Power should not be construed as limited by the antecedent law of sovereign immunity. As one of the lawyers in Cohens v. Virginia2919 U.S. (6 Wheat.) 264 (1821). put the point, it would seem that “the term ‘all cases,’ means all, without exception; and the States of the Union cannot be excepted, by implication.”30Id. at 264, 348. Otherwise—if States were permitted to invoke an antecedent, pre-constitutional right to make judicial judgments “only monitory, not mandatory”31Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 471 (1793). in these Cases—the federal courts would lack the “judicial Power” to issue final and binding judgments under the applicable law in “all” of them.32See U.S. Const. art. III, § 2. Article III’s text does not permit that result; as Chief Justice Marshall observed, there cannot “be ‘a case in law or equity,’ arising under the constitution, to which the judicial power does not extend.”33Cohens, 19 U.S. (6 Wheat.) at 405; see also John Marshall, Essays from the Alexandria Gazette, July 14, 1819, reprinted in 21 Stan. L. Rev. 456, 494 (1969) (“[A] question cannot assume a form for judicial investigation, without being ‘a case arising under the constitution;’ and to ‘all’ such cases ‘the judicial power’ is expressly extended.”). (Of course, this reading assumes that a compulsory lawsuit against a State can qualify as a “case,” a point which will be returned to later.)

The upshot is that where Article III extends the “judicial Power” to “all Cases,” States are not, as a constitutional matter, immune from compulsory suit, whereas in second-tier “Controversies,” they are, but only to the same extent that States held this privilege under the antecedent law of sovereign immunity.34For a discussion of federal sovereign immunity, see infra Section V.E.

While this two-tiered understanding of Article III and state sovereign immunity is new to this century, it is not new to antiquity. There is ample evidence, collected in this Article, that Marshall and Hamilton advocated for precisely this reading of Article III when responding to the Antifederalists’ concerns about bankrupting state treasuries. And there is equally strong evidence that the early Supreme Court, including Chief Justice Marshall, explicitly adopted this two-tiered understanding as the law of the land.

As a precedential matter, the theory first appeared in Justice Iredell’s dissent in Chisholm v. Georgia.352 U.S. (2 Dall.) at 430–32 (Iredell, J., dissenting). The majority in Chisholm had realized the Antifederalists’ nightmare: they concluded that Georgia could be sued, without consent, by a private individual who wished to collect on a Revolutionary War debt.36Id. at 420–23 (majority opinion). Notably, the majority arrived at that result by incorrectly reading Article III’s grant of judicial Power as fully “unqualified” and thus extending even to all “controversies between a State and citizens of another State.”37Id. at 420–21; see also Fletcher, supra note 5, at 1268. Iredell dissented on statutory grounds, but in dicta he contended that a distinction should be drawn between the portion of Article III concerning “the special objects of authority of the general government” and the portion which “uses the word ‘controversies’ only.”38Id. at 431, 435 (Iredell, J., dissenting). The upshot of Iredell’s distinction was this: if only a Controversy Clause were at issue, to include instances where private citizens sued States to compel contractual payments, then the extent of the judicial Power should be deemed qualified by what Iredell called “the antecedent law” of sovereign immunity.39Id. at 432.

Iredell may have lost the battle in Chisholm, but the Eleventh Amendment soon overturned the majority’s “unqualified” reading of the State-Citizen Diversity Clause and, this Article will argue, ratified Iredell’s two-tiered understanding of Article III.40See infra Section III.B. Most tellingly, the Supreme Court, in the wake of that Amendment, expressly adopted a two-tiered theory of sovereign immunity. First, in Cohens v. Virginia, the Court held that Virginia could not successfully invoke the antecedent law of sovereign immunity in a dispute implicating Article III’s “first class,” or first tier, because there the judicial Power extended to “all cases described, without making in its terms any exception whatever.”41Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 378, 393 (1821) (emphasis added). Then, in Rhode Island v. Massachusetts,4237 U.S. (12 Pet.) 657 (1838). the Court dealt with a second-tier Controversy—a boundary dispute between States—and the majority observed that, unlike the first tier of Article III, “the constitution does not, in terms, extend the judicial power to all controversies.”43Id. at 657, 721. The Rhode Island Court proceeded to hold that in such “Controversies,” the Constitution would recognize state sovereign immunity as a limit on the judicial Power in a manner coextensive with the antecedent law, that is, “the state of things existing when [the Constitution] was framed and adopted.”44Id. at 658, 723.

Chisholm, Cohens, and Rhode Island are famous cases. Nonetheless, the two-tiered reading of Article III set forth in these opinions, and its significance for the doctrine of state sovereign immunity, has been lost to history. No recent judicial decision appears to be aware of it; contemporary legal scholarship is equally silent.45For example, Baude, Sachs, Bellia, and Clark recently described Cohens’s language regarding Article III’s first tier as appearing to contradict Marshall’s earlier views at the Virginia ratifying convention. William Baude & Stephen Sachs, The Misunderstood Eleventh Amendment, 169 U. Pa. L. Rev. 609, 643 (2021) (“Chief Justice Marshall’s dicta about the common-law principle of immunity was inconsistent with much of what had been said at the founding, including by Marshall himself.”); Bellia & Clark, supra note 13, at 901 n.305, 940. However, if one adopts a two-tiered reading of Article III, Marshall’s remarks from the bench and as a Virginia delegate are fully coherent. The result, of late, is a modern sovereign immunity jurisprudence that is predicated on an enigmatic “presupposition” that “States retain[ed] their immunity from suit” except “in limited circumstances,”46PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2258 (2021) (citation omitted). without any textual explanation for either the presupposition or the seemingly haphazard list of exceptions to it (such as the exceptions carved out for bankruptcy, eminent domain, or Civil War Amendment-related litigation).47See id. at 2258–59, 2262–63; see also id. at 2266–68 (Barrett, J., dissenting).

There is, by contrast, a readily apparent logic underlying the text-based, two-tiered distinction proffered by Iredell, Marshall, and the early Supreme Court. The Framers frequently remarked on “[t]he vital importance of all the cases enumerated in the first class” of Article III to national interests, given that federal question, ambassadorial, and admiralty disputes, virtually by definition, would concern federal law, foreign affairs, or fraught interstate disputes.48Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 334 (1816). At the Virginia ratifying convention, there was widespread agreement that such first-tier Cases “cannot with propriety” be subject to the whims of “partial” States, as their subject matter would too often be bound up with the interests of the whole.49James Madison, Article VII § 1, reprinted in 5 The Debates on the Adoption of the Federal Constitution 432 (Johnathan Elliot ed., 1st ed. 1845); see also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 391, 415 (1821) (explaining that Article III’s first tier was aimed at “[a] more important, a much more interesting object” than the second). In these Cases, in other words, a federal trump card over state sovereign immunity made particular sense.

The overriding need to vindicate national interests in cases of national importance disappeared, however, when the founding generation discussed the second-tier “Controversies.” Federalists defending Article III’s Controversy Clauses did so largely on impartiality grounds: they contended that the Constitution should enable federal courts to hear the Controversies simply to prevent state courts from playing favorites between the enumerated sets of litigants.50SeeAkhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205, 245–46 (1989); see also The Federalist No. 80 (Alexander Hamilton) (justifying federal jurisdiction over “controversies between two or more States” on the ground that these are disputes “in which the State tribunals cannot be supposed to be impartial and unbiased”); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 72–73 (1938) (explaining that the first Congress, in passing the Judiciary Act of 1789, “merely [meant] to make certain that, in all matters except those in which some federal law is controlling, the federal courts exercising jurisdiction in diversity of citizenship cases would apply as their rules of decision the law of the State, unwritten as well as written” (footnote omitted)). But the importance of averting possible state court bias was far less weighty than the need to vindicate the interests of the Union in matters of foreign affairs and federal law; moreover, the countervailing need to placate concerns about private debtors bankrupting state treasuries was evident. Perhaps unsurprisingly, then, it was in discussing the Controversy Clauses—but those Clauses alone—that Marshall, Hamilton, Iredell and others insisted that the “words” of the Constitution enshrined state sovereign immunity.51Atascadero St. Hosp. v. Scanlon, 473 U.S. 234, 263–64 (1985) (Brennan, J., dissenting) (“The various references to state sovereign immunity all appear in discussions of [Article III’s] diversity clause[s].”).

A two-tiered understanding of Article III, in other words, is consonant with a Constitution that leaves both national interests and state treasuries unencumbered. In disputes implicating uniquely federal interests, a State’s immunity from suit becomes a matter of substantive law (i.e., what the Constitution, statute, treaty, or federal common law applicable in admiralty and ambassadorial Cases says about whether and for what a State may be sued). In Controversy Clause disputes, which would include suits by individuals seeking to compel States to cough up wartime debts (assuming that one agrees a “simple breach of contract” does not violate the Contracts Clause),52Shawnee Sewerage & Drainage Co. v. Stearns, 220 U.S. 462, 471 (1911). As we will see, the two-tiered reading of Article III itself supports reading the Contract Clause this way. See infra Section IV.B. the text of Article III itself provides a reason to refer to the antecedent law of sovereign immunity as a constitutional constraint on the scope of the federal judicial Power.

It should also be clear that, on this two-tiered understanding, there would be no need to resolve sovereign immunity questions by focusing exclusively on constitutional “history” and “design.”53Alden v. Maine, 527 U.S. 706, 706–07, 710, 728–29 (1999). Instead, there would be a basis in text for the modern Supreme Court’s “constitutional principle”54Pennsylvania v. Union Gas Co., 491 U.S. 1, 31 (1989) (Scalia, J., concurring in part and dissenting in part). of state sovereign immunity, as well as a basis in text for some dissenting justices’ ideas of a broader congressional abrogation power.

Such a grounding in text can help to resolve not just thorny sovereign immunity questions but may also answer some enduring questions in the federal courts literature.

For one, this two-tiered reading of Article III can clarify the infamously confounding text of the Eleventh Amendment. As we will see, the two-tiered structure can help explain why the Amendment’s text—particularly its admonition “shall not be construed”—operates as an explanatory reminder that Article III, as written, never extended the judicial Power to all “Controversies . . . between a State and Citizens of another State.”55See U.S. Const. amend XI; U.S. Const. art. III, § 2; see also infra Section III.B.

In addition, the two-tiered reading might eliminate the infamous fiction that undergirds contemporary Ex Parte Young doctrine. Rather than requiring an exercise in doublethink as to when state officials are state actors, the two-tiered readingof Article III permits a principled distinction to be drawn between (1) constitutional claims against States, for which the plenary extension of judicial Power implies that the antecedent law of sovereign immunity is not a hurdle; and (2) state-law claims against States, for which the qualified extension of judicial Power suggests that the antecedent law of sovereign immunity is a hurdle.56See infra Section V.F.

Finally, beyond sovereign immunity, this two-tiered reading of Article III might help explain why certain “Controversies”—such as State-initiated criminal prosecutions, or particular kinds of civil disputes that do not implicate federal questions—lie beyond a federal court’s authority to adjudicate in the first instance.57See infra Section V.G.

Part I of this Article surveys the contemporary debate over whether state sovereign immunity can be reconciled with the Constitution’s text. Part II advocates for the two-tiered reading of Article III as a matter of history and text. Part III explains why this reading also accounts for, and indeed is further justified by, the text of the Eleventh Amendment, and also discusses the early Supreme Court’s precedents adopting the two-tiered theory as the law of the land. Part IV discusses the Court’s eventual “Great Forgetting” of these precedents. Part V explores the doctrinal ramifications of reclaiming the precedential understanding, including the impact of the two-tiered reading on federal sovereign immunity.

I.      Sovereign Immunity and the Constitution’s Text

A.      The Atextual Premise

The widely held proposition that judicial Power and state sovereign immunity are incompatible concepts has pulled the contemporary legal world in two very different directions. In gross outline, the prevailing views are that the text of Article III eliminates sovereign immunity across all Cases and Controversies or in none of them. As John Manning has put the point, the question most asked is “whether Article III implicitly incorporated” the antecedent law of sovereign immunity or expressly “repudiated it by extending an unqualified federal judicial power.”58Manning, supra note 6, at 1675. There seems to be little recognition, however, that Article III might have done both.

For jurists in the “elimination everywhere” camp, many agree with Chisholm, where the majority held that Georgia had no viable sovereign immunity defense in a public debt case because the relevant Controversy Clause was assertedly “unqualified” in extending the federal judicial Power to the Controversy at hand.59See Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 421 (1793); Baude, supra note 13, at 4–6. To be sure, most of these commentators will acknowledge that the Eleventh Amendment overruled Chisholm’s precise result,60See, e.g., Martha A. Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. Pa. L. Rev. 515, 515–16 (1978) (explaining that “everyone subscribes” to the view that the Eleventh Amendment overturned the result in Chisholm, such that an out-of-State citizen is no longer able to invoke the sixth head of judicial Power as eliminating State sovereign immunity). but they continue to insist that the decision’s broader reasoning survives such that in every category of Case andControversy (outside of any directly affected by the Eleventh Amendment) “[t]here simply is no constitutional principle of state sovereign immunity.”61Atascadero St. Hosp. v. Scanlon, 473 U.S. 234, 259 (1985) (Brennan, J., dissenting); see also, e.g., Fletcher, supra note 5, at 1263–64; Manning, supra note 6, at 1675–76; Susan Randall, Sovereign Immunity and the Uses of History, 81 Neb. L. Rev. 1, 3, 14, 14 n.61, 38 n.179, 39 (2002).

In contrast, jurists in the “elimination nowhere” camp have tended to view the antecedent law of sovereign immunity as a tacit but similarly complete limitation on the extent of the judicial Power across all Cases and Controversies.62See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73, 83, 170 (1996). On this account, the Framers understood that Article III did not extend the federal judicial Power to any Controversy or Case in which a State, pursuant to pre-ratification practice or under analogues in English common law, would be entitled to immunity from suit.63SeeAlden v. Maine, 527 U.S. 706, 719, 721–23 (1999); cf. John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1893–94 (1983).

These competing absolutist views have produced something of a perpetual tug-of-war. One side of the debate will be chided for neglecting both the nation’s reaction to Chisholm and Marshall and Madison’s remarks during the ratification period. The other side will then receive reproach for likening States in our constitutional republic to the English King and for struggling to find original constitutional text in support of the sovereign immunity “presupposition.”64Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 775 (1991).

B.      The New Textualists

Some scholars have tried to break this impasse by determining what “words” Marshall referred to during the Virginia ratifying convention.65Marshall, supra note 25, at 555. As one possibility, Professor Michael Rappaport (and, more recently, Bellia and Clark) have sought to ground modern sovereign immunity doctrine on the Constitution’s use of the word “State”; they contend that the use of that word “creates a strong inference that there must be certain state immunities.”66Bellia & Clark, supra note 13, at 849–52; Rappaport, supra note 15, at 821. But this reading, at least at first blush, seems to give almost no guidance on when such “immunities” might exist. Are they present in all disputes, including constitutional Cases? When another State, or even the Federal Government, is the plaintiff? As Baude has observed, the “State”-based textualist theory “requires packing a single word with an awful lot of freight.”67Baude, supra note 13, at 7 (footnote omitted).

Bellia and Clark recently constructed a more robust account by interpreting the word “State” as an incorporative reference to the pre-constitutional law of nations, a body of law that contains its own doctrines of sovereign immunity.68Bellia & Clark, supra note 13, at 841–42. That interpretive move, in turn, has led Bellia and Clark to suggest that the Constitution’s use of “State” creates a presumption that “unless the Constitution expressly overrides the States’ preexisting sovereign rights [as determined by the law of nations], the ‘States’ necessarily retain[] such rights.”69Id. at 843. But, for those convinced by this approach, it still leads back to a fundamental question. Where, if at all, does the constitutional text expressly override such “preexisting sovereign rights[?]”70Id. at 842. Bellia and Clark’s answer, insofar as state sovereign immunity is concerned, is to disclaim that Article III’s “provisions make [any] mention—clear or ambiguous—of suits against States,” outside of those provisions that were stripped of force by the Eleventh Amendment.71Id. at 912 (footnote omitted).

Beyond the “State”-based account, Nelson has identified Article III’s “Case or Controversy” requirement.72Nelson, supra note 5, at 1565. According to Nelson, the Framers understood that the antecedent law of sovereign immunity would operate as a background rule of personal jurisdiction, such that, unless this privilege were waived by a State, it would generally prevent a “Case or Controversy” from forming in the first place.73Id. Strong support for Nelson’s position can be found in Madison’s remarks at the Virginia ratifying convention, where Madison argued that the State-Citizen Diversity Clause would not confer “power o[n] individuals to call any State into Court” in the absence of State consent.74James Madison, Debates of the Virginia Convention, June 20, 1788, in 10 The Documentary History of the Ratification of the Constitution 1412, 1414 (John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber, Marybeth Carlson, Charles D. Hagermann & Margaret C. Leeds eds., 1993).

In a similar vein, Baude and Sachs have contended that state sovereign immunity is “a common law rule that happens to be sheltered by other [constitutional] provisions.”75Baude, supra note 13, at 22; Sachs, supra note 13, at 1868–75. Baude explicitly advocated that those sheltering provisions include “the limited nature of Article III”; because “Article III’s grant of jurisdiction is defeasible,” he has argued, its text should be understood “to leave in place the common law doctrine of sovereign immunity.”76Baude, supra note 13, at 8–10, 13.

At a general level, this Article agrees with the path-breaking work of Nelson, Baude, Bellia, Clark, and other new textualists.77See also David P. Currie, Inflating the Nation’s Power, 71 U. Chi. L. Rev. 1229, 1237 (2004); Kurt T. Lash, Leaving the Chisholm Trail: The Eleventh Amendment and the Background Principle of Strict Construction, 50 Wm. & Mary L. Rev. 1577, 1596–99 (2009); Steven Menashi, Article III as a Constitutional Compromise: Modern Textualism & State Sovereign Immunity, 84 Notre Dame L. Rev. 1135, 1135, 1150–55 (2009). It maintains that Article III does incorporate and shelter the so-called “antecedent law” of sovereign immunity, and it further agrees with Nelson that, where incorporated, that antecedent law of sovereign immunity operates as a defeasible rule of personal jurisdiction.78Nelson, supra note 5, at 1565.

This Article departs, however, from the new textualists’ suggestion that the constitutional incorporation of this antecedent law is wholesale.79See id. Accordingly, it disagrees with Nelson that the Framers intended the antecedent law of sovereign immunity to always determine whether a justiciable “Case or Controversy” exists; similarly, it departs from Bellia and Clark’s suggestion that the purported lack of limiting language in Article III implies a “broad” form of “state sovereign immunity.”80Bellia & Clark, supra note 13, at 913; see also Nelson, supra note 5, at 1565. Instead, this Article marshals text, history, and precedent in support of a narrower understanding, namely, the selective incorporation of the antecedent law of sovereign immunity in just the second tier of Article III. In the first tier, by contrast, this Article argues that no incorporation takes place, such that, in federal question, admiralty, and ambassadorial Cases, the extent of the federal judicial Power is plenary and constitutionalized sovereign immunity rights simply do not persist.

II.      Towards a Two-Tiered Theory of Sovereign Immunity

Text, history, and early precedent all support this two-tiered understanding of Article III and state sovereign immunity.

A.      Two Tiers in Text

1.      Prior Attempts to Explain the Textual Variation in Article III

It seems unlikely that textual variation between “all Cases” and “Controversies” was the result of a slip of the pen.81See U.S. Const. art. III, § 2, cl. 1. As Professor Akhil Amar has observed, Article III, Section 2, Clause 1 repeats “all Cases” not once, not twice, but three times; it then omits the word six times and speaks only of “Controversies.”82U.S. Const. art. III, § 2, cl. 1; see also Amar, supra note 50, at 242–43. Then, the word “all” appears again, as Clause 2 carefully extends the Supreme Court’s “original Jurisdiction” to “all Cases affecting Ambassadors, other public Ministers and Consuls” in language that precisely tracks Clause 1’s grant of “judicial Power” to “all” ambassadorial Cases.83U.S. Const. art. III, § 2, cl. 2. Also notable is that original jurisdiction extends to just “those [Cases and Controversies] in which a State shall be Party” and not “all” of them. Id. The retention of this last “all” was, moreover, no accident: when the Committee of Style deleted this “all” from Clause 2, the Philadelphia Convention responded by specifically re-inserting it.84See Amar, supra note 50, at 242–43, 243 n.126.

Some version of this two-tiered variation was present throughout Article III’s drafting process. The charge to the Committee of Detail instructed that federal court jurisdiction should extend “to all cases arising under the Natl. laws: And to such other questions as may involve the Natl. peace & harmony.”852 The Records of the Federal Convention of 1787, at 46 (Max Farrand ed., 1937) (emphasis added) (citation omitted). The committee’s first major draft reprised the “all” and “such other” variation from the charge, and its second draft replaced it with the now-familiar “all Cases” and “Controversies” language.86See id. at 146–47 (emphasis omitted); Amar, supra note 50, at 243–44. Notably, on a copy of this second draft, committee members wrote notes intimating that there were “Controversies” to which the judicial Power would not extend.87See Amar, supra note 50, at 244, 244 n.128 (describing annotations, likely written by John Rutledge, suggesting that the judicial Power would not extend to “all” Controversies between States; just those concerning “boundary” or “jurisdiction”).

In light of the foregoing, scholars focusing on this aspect of Article III’s text generally agree that the variation in it appears intentional, although there is disagreement about whether a coherent constitutional theory can make sense of it.88See, e.g., Barry Friedman, A Different Dialogue: The Supreme Court, Congress and Federal Jurisdiction, 85 Nw. U. L. Rev. 1, 40–41 (1990); Martin H. Redish, Text, Structure, and Common Sense in the Interpretation of Article III, 138 U. Pa. L. Rev. 1633, 1640, 1640 n.28 (1990).

Amar has theorized that the textual variation requires Congress to extend federal statutory jurisdiction to all Cases in Article III’s first tier, while leaving it to Congress’s discretion whether to extend such jurisdiction to any of the Controversies.89See Amar, supra note 50, at 208–10. What has come to be known as Amar’s mandatory-jurisdiction theory, however, appears to conflate the Constitution’s grant of “judicial Power” with its separate distribution of “Jurisdiction,” and it also runs up against the historical precept that Article III’s nine categories of Cases and Controversies create a jurisdictional ceiling but not a floor.90See Daniel J. Meltzer, The History and Structure of Article III, 138 U. Pa. L. Rev. 1569, 1569 (1990). Another difficult piece of evidence for Amar is the Judiciary Act of 1789, which, as Professor Daniel Meltzer has convincingly established, did not purport to extend federal statutory jurisdiction to “all” first-tier Cases and thus suggests that the first Congress did not read Article III as commanding that it do so.91Id. at 1570–72, 1570 n.6, 1585–99; see also Brian T. Fitzpatrick, The Constitutionality of Federal Jurisdiction-Stripping Legislation and the History of State Judicial Selection and Tenure, 98 Va. L. Rev. 839 (2012) (chiding Amar and other mandatory-jurisdiction theorists for failing to find any debate by the Framers indicating that they believed that some form of federal jurisdiction was mandatory); Julian Velasco, Congressional Control over Federal Court Jurisdiction: A Defense of the Traditional View, 46 Cath. U. L. Rev. 671, 712 (1997) (“Constitutional scholars unanimously consider the first paragraph of Article III, Section 2 to set forth the limit of federal jurisdiction. . . . However, [most also believe that] the language does not require that the jurisdiction of the federal courts be extended to the full limits of the judicial power.”).

Meltzer, after expressing skepticism about Amar’s mandatory-jurisdiction theory, tentatively proposed reading a different intention into Article III’s textual variation. Perhaps, Meltzer observed, the term “cases” was meant to “encompass criminal and civil proceedings” whereas “controversies” was supposed to be “civil only.”92Meltzer, supra note 90, at 1575 (emphasis omitted). To Meltzer’s eye, it is accordingly “possible that ‘all’ was meant to reinforce the breadth of ‘cases,’” even though, he noted, the presence of “all” on this understanding would be merely superficial.93Id.

Amar’s and Meltzer’s proposals aside, few alternative explanations for the textual variation have been forthcoming.94The author is aware of two other proposed interpretations of the “alls,” but these do not relate to the argument here. See John Harrison, The Power of Congress to Limit the Jurisdiction of Federal Courts and the Text of Article III, 64 U. Chi. L. Rev. 203 (1997); Robert J. Pushaw, Jr., A Neo-Federalist Analysis of Federal Question Jurisdiction, 95 Calif. L. Rev. 1515, 1516 (2007). As a result, many scholars, lacking what they see as a plausible theory that accommodates the variation, have felt themselves constrained to ignore it.95See Redish, supra note 88, at 1640 n.28 (acknowledging that his all-denying view can be faulted for “textual awkwardness”); see also Friedman, supra note 88, at 5, 32, 40 (describing a number of Article III theorists who “make no effort to account for these words”).

This Article aims to fill that gap, by not only explaining the significance of Article III’s textual variation but also revealing the historical and consequential intent behind it. The reading it puts forward is relatively straightforward. It maintains that in light of the omission of the word “all,” Article III should be read to extend the judicial Power to only some Controversies. But where “all” is interposed, then the “judicial Power”—whatever it is—should be understood to extend all Cases.

On this reading, one set of excluded Controversies may well be, as Meltzer’s scholarship suggests, criminal proceedings.96Meltzer, supra note 90, at 1575. Such an understanding would align with the idea that the Framers did not want to provide a mechanism by which state criminal prosecutions might be heard in the first instance by federal rather than state courts.97Id. at 1575, 1575 n.18; see also Calvin R. Massey, William P. Marshall, Lawrence C. Marshall & William A. Fletcher, Exchange on the Eleventh Amendment, 57 U. Chi. L. Rev. 118, 131–140 (1990) (essay by William A. Fletcher). But another set of potentially excluded Controversies, in focus here, are those implicating the States’ antecedent immunity rights. To more fully understand how the variation in Article III’s text can be read to (partially) protect those rights, it helps to start by defining sovereign immunity’s antithesis: the judicial Power.

2.      The Judicial Power to Render Final and Binding Judgments under the Applicable Law if a Court has Jurisdiction

Baude has revitalized the idea that “judicial Power” means the authority of federal courts to render final and binding judgments under the applicable law so long as they are separately possessed of jurisdiction.98Baude, supra note 18, at 1809, 1834–36. The same understanding can be extracted from a long line of Supreme Court precedent. For example, in 2011, the Court described “the most prototypical exercise of judicial power” as “the entry of a final, binding judgment.”99Stern v. Marshall, 564 U.S. 462, 494 (2011). And in 1792, the Justices unanimously declared a statute that gave Congress discretion over whether to pay judicial judgments “radically inconsistent with the independence of that judicial power which is vested in the court.”100Hayburn’s Case, 2 U.S. (2 Dall.) 409, 411 (1792).

This “final, binding judgment” understanding of judicial Power traces its roots to the Framers’ desired division of authority between Congress and the federal courts.101See Stern, 564 U.S. at 494. The Framers disliked the English practice by which the House of Lords would sit, review, and overturn judicial decisions, effectively acting as the court of last resort.102See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219–23 (1995); Baude, supra note 18, at 1817–18; John F. Manning, Deriving Rules of Statutory Interpretation from the Constitution, 101 Colum. L. Rev. 1648, 1662–64 (2001). The United States endeavored to cut a different path, for reasons Hamilton detailed in The Federalist No. 81: “Every reason . . . militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period,” and thus under Article III such power is committed to the Judiciary alone, so that its judgments “will not be in any manner subject to the revision or correction of the legislative body.103The Federalist No. 81 (Alexander Hamilton); see also The Federalist No. 47 (James Madison); Thomas Jefferson, Notes on the State of Virginia 120 (William Peden ed., 1982); Marshall, supra note 33, at 496 (“The legislature and executive can no more unite with the judiciary in deciding a cause, than the judiciary can unite with them in making a law, or appointing a foreign minister.”).

This judicial Power to issue judgments that bind even Congress remains subject to a crucial qualification: the independent need for jurisdiction, or authority to hear a case.104See Patchak v. Zinke, 138 S. Ct. 897, 907 (2018) (generally “a congressional grant of jurisdiction is a prerequisite to the exercise of judicial power”). As Baude has put the point, “[t]he judgment power is the power to resolve controversies within a court’s jurisdiction, not elsewhere.”105Baude, supra note 18, at 1810 (“The judgment power is the power to resolve controversies within a court’s jurisdiction, not elsewhere.”). This is a crucial observation, as it makes it possible to speak of a Case or Controversy as being within the grant of judicial Power and yet outside a given court’s jurisdiction.

Viewing the judicial Power as dormant until a court independently acquires jurisdiction can be justified on a number of dimensions. The most obvious is that the Constitution employs the terms separately, distributing “judicial Power” in the first clause of Article III, Section 2 and discussing “Jurisdiction” in those that follow.106See U.S. Const. Art. III, § 2. Moreover, unless the terms are understood to have independent meanings, it is impossible to explain the precedential principle—initially captured in the Judiciary Act of 1789—that the grant of judicial Power is not a self-effectuating grant of jurisdiction.107See, e.g., Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 432 (1793) (Iredell, J., dissenting) (rejecting idea that a federal court is “to exercise all the judicial power vested in it by the Constitution, . . . whether the Legislature has prescribed methods of doing so, or not”). Thus, it seems sensible to interpret Article III’s grant of “judicial Power” as conferring the power to render final, binding judgments under the applicable law only if a court also has jurisdiction.108See, e.g., Patchak, 138 S. Ct. at 907 (“[W]ith limited exceptions [found in in Article III, Section 2, clause 2], a congressional grant of jurisdiction is a prerequisite to the exercise of judicial power.”); Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 718 (1838) (“Jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them . . . .” (emphasis added)).

Importantly, this understanding of judicial Power does no violence to the precedential principle that Article III establishes a constitutional ceiling on subject matter jurisdiction, such that if a Case or Controversy is not among the nine categories enumerated in Article III, no statute can authorize a federal court to hear it.109See Jackson v. Twentyman, 27 U.S. (2 Pet.) 136, 136 (1829) (where “the judicial power [is] not extended,” that omission is “fatal” to jurisdiction); see also Baude, supra note 18, at 1831. The reason for this result is simple. A court bereft of judicial Power is a court that is relegated to issuing nonbinding advisory opinions.110See Ware v. Hylton, 3 U.S. (3 Dall.) 199, 276 (1796) (opinion of Iredell, J.) (explaining that issuing an advisory pronouncement is not the same as “exercising a judicial power”). But the federal courts are constitutionally dispossessed of authority to issue such opinions, as they do not concern an Article III “Case or Controversy.”111See John Marshall, Speech in the House of Representatives on the Resolutions of Edward Livingston Relative to Thomas Nash, in 5 Reports of Cases Argued and Adjudged In the Supreme Court of the United States, February Term 1820, app.at 3, 16–17 (Henry Wheaton ed., 1820) (explaining that “the judicial power . . . extend[s] to all cases . . . arising under [federal law],” and not “every question”); see also Gordon v. United States, 117 U.S. 697, 702, 704 (1885) (holding that a federal court “has no jurisdiction” and may not “express an opinion on a case . . . where its judgment would not be final and conclusive upon the rights of the parties . . . .”).

This tangled relationship between judicial Power and jurisdiction can explain why, as Nelson has argued and as the Supreme Court has often held, “sovereign immunity [should be] considered ‘jurisdictional’ and yet [can] be waived by the state.”112Nelson, supra note 5, at 1565. That is so because an appropriate invocation of sovereign immunity pursuant to the antecedent law will disable a court from exercising its judicial Power to render a final, binding judgment, and, in the absence of such judicial Power, a federal court loses jurisdiction.113See id. at 1565–66 (similar). But, if a State consents to be sued, then this impediment to the court’s exercise of judicial Power has been removed, and the court may proceed to hear and decide the dispute (so long as it otherwise has subject matter jurisdiction).114See id.

Finally, it must be observed that the judicial Power is the power to give binding effect to the applicable law, or what Marbury v. Madison1155 U.S. (1 Cranch) 137 (1803). referred to as the “rules govern[ing] the case.”116Id. at 178; see also James Iredell’s Address to The Public, excerpted in 2 Griffith J. McRee, Life And Correspondence of James Iredell 148 (1857) (The duty of [the judicial] power, I conceive, in all cases, is to decide according to the laws of the State.”). It does not permit a court to give binding effect to laws that have no bearing on the case at hand.117See, e.g., The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 71 (1821) (describing the judicial Power as the power “to construe” and not “make” law). Although this principle is self-evident, some applications of it are less apparent. For this, we will see, is why only the antecedent law of sovereign immunity—but not what scholars call statutory or substantive immunities—can conflict with Article III’s grant of judicial Power.

3.      Sovereign Immunity Versus Judicial Power

Sovereign immunity and judicial Power are dueling concepts. The reason for the tension can be traced to the American separation of powers as between Congress and the courts. The Supreme Court articulated the fundamental idea when, in 1838, it equated the common-law “principle” that “right will be administered to a subject against the king, [but only] as a matter of grace” with the rejected English practice of having “the sentence of [a] Court . . . transmitted to congress” for the legislature to determine in the last resort whether to award relief.118Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 750–51 (1838); see also Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 445 (1793) (Iredell, J., dissenting) (describing English common-law immunity as having evolved into a doctrine that protected the choice “of Parliament to provide for [payment of a court’s judgment] or not among the current supplies of the year”). On this understanding, the Framers’ rejection of one principle (the legislature acting as the court of last resort) by vesting the judicial Power exclusively in the federal judiciary might imply the rejection of the other (the common-law sovereign immunity principle), but only so far as this new judicial Power extends.

A definitional analysis of “sovereign immunity” and “judicial Power” leads to the same understanding of the inherent conflict between these concepts. It helps to start by explaining why so-called statutory immunities usually do not usurp the constitutional grant of judicial Power.

A statutory immunity might take the form of a provision that excludes federal jurisdiction over certain disputes against States. Such a statutory provision generally would not interfere with judicial Power, because, as discussed, jurisdiction is a prerequisite to the exercise of judicial Power as opposed to a corollary of its presence.119The Supreme Court has appeared to recognize an exception for jurisdiction-stripping statutes that direct how courts are to interpret law. See, e.g., United States v. Klein, 80 U.S. (13 Wall.) 128, 134, 147 (1871) (refusing to give effect to a jurisdiction-stripping statute that required the court to “deem[]” a presidential pardon “conclusive evidence” of disloyalty, on the ground that it “passed the limit which separates the legislative from the judicial power”); see also Stockdale v. Ins. Cos., 87 U.S. (20 Wall.) 323, 332–33 (1873) (explaining that it is an invasion of judicial Power for Congress to “attempt to construe a statute differently from what the courts had construed”); Marshall, supra note 111, at 29 (“Had the president directed [a] judge . . . to decide for or against his own jurisdiction . . . this would have been a dangerous interference with judicial decisions . . . .”). Another statutory immunity might, without withdrawing jurisdiction, exempt a State from being sued on a particular cause of action or grant it a special defense.120See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 455, 464–65 (1991) (noting that, before 1974, the federal Age Discrimination in Employment Act did not cover States as employers). That kind of provision generally would not interfere with the judicial Power to definitively expound the applicable law because it would constitute the applicable law. So long as the authority to finally interpret and apply that law is lodged in the courts—even if the final, binding determination is simply that the applicable law does not permit a State to be sued121See, e.g., Patchak v. Zinke, 138 S. Ct. 897, 906–07 (2018) (“[J]udicial duty is not less fitly performed by declining ungranted jurisdiction . . . .”) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514–15 (1869)).—the judicial Power has not been infringed.122This condition will usually be satisfied, as Congress has rarely tried to wrest interpretive powers from the Judiciary rather than changing the applicable law. But see Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218–19 (1995); Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 438 (1992); Klein, 80 U.S. (13 Wall.) at 146–47; Ex parte Garland, 71 U.S. (4 Wall.) 333, 379–81 (1867).

By contrast, what this Article has termed the “antecedent law” of sovereign immunity—which refers, more specifically, to immunity doctrines grounded in pre-ratification English common law or American colonial practice123The Supreme Court has looked to these sources of law when delimiting its constitutional principle of sovereign immunity. See, e.g., United States v. Lee, 106 U.S. 196, 205 (1882) (“[T]he doctrine is derived from the law and practices of our English ancestors . . . .”); see generally Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 2–21 (1963).—uniquely interferes with a federal court’s exercise of judicial Power. And that is because the antecedent law of sovereign immunity is, simply, extralegal. English or colonial doctrines are not automatically applicable in Article III federal courts.124See, e.g., Alden v. Maine, 527 U.S. 706, 733 (1999) (explaining that “[a]lthough the sovereign immunity of the States derives at least in part from the common-law tradition, [in Article III courts] the immunity exists [only] by constitutional design”); Ex parte New York, 256 U.S. 490, 497 (1921) (explaining that sovereign immunity exists insofar as it “bear[s] upon the construction of the Constitution”); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 137–42, 159 (1996) (Souter, J., dissenting) (noting that the Framers mounted a “vigorous resistance to any idea that English common-law rules might be imported wholesale through the new Constitution”); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 542–43 (1832) (“America, separated from Europe by a wide ocean, was inhabited by a distinct people . . . governing themselves by their own laws.”); cf. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 466 (1793) (opinion of Cushing, J.) (“[The case] turns not upon the law or practice of England, although perhaps it may be in some measure elucidated thereby . . . but upon the Constitution established by the people of the United States . . . .”). Instead, to become part of the Marbury “rules governing the case,” these doctrines must be affirmatively incorporated into federal law or (where applicable) state law.125Accord Fletcher, supra note 5, at 1274–75, 1273 n.68. At the founding, the terminology would have been different but the essential point the same. See id.at 1295–97 (explaining that early federal courts might apply “federal law,” the “general law shared by the [post-ratification] American states,” or “state law” which was a given State’s local practice).

In a variety of instances, the Constitution and other sources of federal law do incorporate this “antecedent law.”126See Alden, 527 U.S. at 733 (explaining that many rights enshrined in the Constitution “derive from the common law”). Most notably, the early Supreme Court interpreted the implicit “some” in the second tier of Article III as reflecting that a court must look to the antecedent law of sovereign immunity to determine what kinds of Controversies the judicial Power does not extend to.127See Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 722–24 (1838). But, to the extent that the antecedent law of sovereign immunity has not been incorporated, then permitting a State to invoke antecedent sovereign immunity privileges anyway is to usurp a federal court’s judicial Power to render a final and binding judgment under the applicable law in the dispute before it.128See Alden, 527 U.S. at 733 (“Although the sovereign immunity of the States derives at least in part from the common-law tradition, [in Article III courts] the immunity exists [only] by constitutional design.”); Ex parte New York, 256 U.S. at 497 (explaining that sovereign immunity exists only insofar as it “bear[s] upon the construction of the Constitution”).

The ultimate result, as the Supreme Court recently explained, is that a successful invocation of “sovereign immunity” constitutes a “limitation on the federal judicial power.”129Seminole Tribe, 517 U.S. at 68 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984)). But the inverse should also follow, as the Court observed in its earliest days: to the extent a dispute is “in the grant of judicial [P]ower,” a State’s invocation of the antecedent law of sovereign immunity must, by necessity, fail.130Rhode Island, 37 U.S. (12 Pet.) at 731.

4.      Constructing the Two-Tiered Theory of Sovereign Immunity

The incompatibility of judicial Power and sovereign immunity is a familiar idea. But, since the mid-nineteenth century, no court or commentator has used that notion to explain the textual variation in Article III.

The two-tiered theory of sovereign immunity starts with the premise that “all” means all and the omission of “all” means some. Where the judicial Power extends to “all Cases,” federal courts can render final and binding judgments under the applicable law in all Cases (so long as they also have jurisdiction) in a manner that is unconstrained by the antecedent law of sovereign immunity. But since the judicial Power does not extend to “all Controversies,” someControversies should be deemed excluded from the judicial Power’s embrace, and a court should decide which Controversies by reference to (at least) the antecedent law of sovereign immunity.

For several reasons, this two-tiered theory of sovereign immunity represents a sensible reading of the constitutional text.

First, this reading does not demand interpretive gymnastics. It begins with a founding-era definition of judicial Power, adds the meaningful variation canon, and then applies the federalism canon. If a shoe fits easily, that alone may favor wearing it.

Second, it must be stressed that this understanding of Article III is the rare one that comports with the meaningful variation canon. Unlike commentators who insist that the original text of Article III eliminates state sovereign immunity either everywhere or nowhere, it captures the early Court’s admonishment that the shift from “all Cases” to just “Controversies” “is hardly to be presumed . . . [to] have been accidental.”131Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 334 (1816).

Third, this reading draws support from other constitutional provisions, such as the Supremacy Clause. The defining attribute of “supreme Law,” the Clause appears to say, is the capacity to bind even States.132See U.S. Const. art. VI, § 1, cl. 2 (“[T]he Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”). The Justices of the early Court were of that opinion. They equated “suprem[acy]” with the ability to “legitimately control all individuals or governments within the American territory,”133Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 414–15 (1821) (emphasis added); see also, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819). and explained that a law “binding in moral obligation [only], but [that] could not be constitutionally carried into effect” due to a state-erected “impediment” would not “be the supreme law in the new sense provided for.”134Ware v. Hylton, 3 U.S. (3 Dall.) 199, 277–78 (1796) (opinion of Iredell, J.); see also Marshall, supra note 33, at 479 (stating that under the Supremacy Clause “[t]he states, the state judges, and the people are bound by [the supreme law of the land]”) (emphasis added). Notably, the Clause identifies as “supreme Law” the “Constitution,” “the Laws of the United States,” and “Treaties.”135See U.S. Const. art. VI, § 1, cl. 2. The idea that these three sources of law have the capability to bind even state governments comports with Article III’s extension of judicial Power to “all Cases” concerning the very same.136See Ableman v. Booth, 62 U.S. (21 How.) 506, 519–20 (1859) (explaining that the “judicial power” to decide disputes “between the authorities of the United States and of the States . . . finally and without appeal” is “justly regarded as indispensable . . . to maintain the supremacy of the laws of the United States”); see also Tennessee v. Davis, 100 U.S. 257, 265–66 (1880) (similar).

Other constitutional provisions seem to contemplate at least some compulsory suits against States. As observed by the first U.S. Attorney General, Edmund Randolph, the Constitution seems to “announce[] to the world . . . that States may injure individuals in their property, their liberty, and their lives”; and so, for example, the Constitution forbids States from “suspend[ing] the priviledge of a writ of habeas corpus” or “pass[ing] a bill of attainder or ex post facto law.”137SeeChisholm v. Georgia, 2 U.S. (2 Dall.) 419, 421–22 (1793) (emphasis omitted). But if States could circumvent the Constitution’s proscriptions by invoking the antecedent law of sovereign immunity, they might be rendered worthless. As Randolph contended, “Are States then to enjoy the high priviledge of acting thus eminently wrong, without controul; or does a remedy exist? . . . Government itself would be useless, if a pleasure to obey or transgress with impunity should be substituted.”138Id. at 422. (In a similar vein, Hamilton argued in The Federalist Papers that “[n]o man of sense would believe that such prohibitions [running against the States] would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them.”139The Federalist No. 80 (Alexander Hamilton); Louisiana v. Jumel, 107 U.S. 711, 760 (1883) (Harlan, J., dissenting) (“Of what value is [a] . . . clause of the Federal Constitution if it cannot be enforced against hostile provisions of a State . . .?”); Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 725–26 (1838) (explaining that unchecked State sovereign immunity would “render [a constitutional] clause a perfect nullity for all practical purposes”).).

The two-tiered theory of sovereign immunity advanced here comports with Randolph’s suggestion that States cannot invoke sovereign immunity against constitutional claims in federal court. But contrast the theory’s textual explanation for that result—that the judicial Power extends to “all Cases . . . arising under this Constitution”—with the modern Court’s less coherent attempt to accommodate Randolph. What has come to be known as Ex Parte Young doctrine permits individuals to sue state officials (but not States directly) for injunctions forestalling unconstitutional conduct.140See Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer & David L. Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System 922–28 (7th ed. 2015); see also John Harrison, Ex Parte Young, 60 Stan. L. Rev. 989, 990 (2008) (observing that although the Ex Parte Young decision itself might be understood to involve an anti-suit injunction that would not offend sovereign immunity even if sought against a State directly, modern-day Ex Parte Youngdoctrine is nevertheless premised on the “legal fiction” “that an officer defendant . . . be treated as the State for purposes of liability but not as the State for purposes of sovereign immunity”). But the doctrine is predicated on an infamous paradox or “fiction” that (1) state action must be present in these disputes, or else the Constitution (with limited exceptions) would not apply; but (2) state action cannot be present in these disputes, lest the defendant state official be entitled to a derivative sovereign immunity defense.141See Alden v. Maine, 527 U.S. 706, 756–57 (1999) (“[S]uits against state officers are barred by the rule that sovereign immunity is not limited to suits which name the State as a party if the suits are, in fact, against the State.”); Harrison, supra note 140, at 994 (“As the Court currently understands it, sovereign immunity bars lawsuits against unconsenting states, whether the named party is the state itself or an officer whose official action the plaintiff seeks to control.” (footnote omitted)).

In short, the two-tiered theory of sovereign immunity reaches the appropriate result—a federal court can stop a State from violating the Constitution—sans the fiction.

As a final textual point in favor of this interpretation, Part III will point to the language in the Eleventh Amendment. But to fully appreciate the significance of the Eleventh Amendment, which was a reaction to an interpretation of the original Constitution, we first must turn to how the founding generation interpreted Article III at the time of ratification.

B.      Two Tiers in History

From a historical perspective, the most important discussions of sovereign immunity and Article III’s text are The Federalist Papers and the records of the Virginia ratifying convention, where the delegates, many of them Framers, discussed and debated the propriety of the nine grants of judicial Power at length. Neither the records of the Philadelphia Convention nor of the other state ratifying conventions capture similarly detailed discussions.142See Manning, supranote 6, at 1674. Secondhand accounts of the other State ratifying conventions do survive. They, for the most part, evince a pervasive belief that the Constitution would not eliminate state sovereign immunity, see Nelson, supra note 5, at 1592–94, but are lacking in sufficient detail to know why or to what extent: for example, only in the second tier of Article III?

There is, however, interesting language in certain “declar[ations]” put forward during the New York and Rhode Island ratifying conventions that indicates that the delegates there wished to “make known” that “the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state.” New York Delegates, Ratification, reprinted in 1 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 328–29 (Johnathan Elliot ed., 1st ed. 1836) (emphasis added); see also id. at 334, 336 (reproducing the Rhode Island convention’s similar declaration). There is reason to believe that these declarations meant the words “extend” and “authorize” to have different meanings (as the variation remains consistent throughout both of them). If so, then insofar as these declarations made mention of suits by persons against States, it may be that the New York and Rhode Island delegates were emphasizing that the grant of judicial Power in the State-Citizen Diversity Clause was not, itself, a jurisdictional “authoriz[ation]” to hear such a dispute. See id. at 334–36. Rhode Island’s declaration in particular appears to confirm this understanding, as it also discusses a subsidiary prohibition: the delegates “ma[d]e known” that “it be especially expressed, as a part of the Constitution of the United States, that Congress shall not, directly or indirectly, either by themselves or through the judiciary, interfere, with any one of the states . . . in liquidating and discharging the public securities of any one state . . . .” Id. at 334, 336. Where in the Constitution is that proposition “especially expressed”? The two-tiered reading advanced here, which the Rhode Island declaration can be read to track with precision, is that the first tier of Article III does not “authorize any suit by a person against a state” (as the intervention of Congress is necessary to effectuate the exercise of judicial Power); but the qualified nature of Article III’s second tier further prohibits Congress from purporting to vest federal jurisdiction over state-law claims brought by individuals against States concerning “th[eir] public securities.” Id. at 336; see also Chisholm, 2 U.S. (2 Dall.) at 436 (Iredell, J., dissenting) (explaining that where the judicial Power “extends only to the decisions of controversies . . .[,] the Constitution . . . [does not] authori[ze] the Legislature to provide laws for the decision of allpossible controversies in which a State may be involved with an individual, without regard to any prior exemption.” (emphasis added)).

Unfortunately, while detailed, the Virginia convention records are also indeterminate, as the delegates put forward starkly competing interpretations of Article III’s impact on state sovereign immunity. Nevertheless, there is much to gain from reviewing the competing interpretive positions, because there is reason to believe that the Eleventh Amendment was ratified in order to elevate one of them.

1.      The Great Virginia Debate: “Shilling for Shilling” or State Sovereign Immunity?

The delegates in Virginia honed in on one particularly contentious question: would Article III’s State-Citizen Diversity Clause permit individuals to forcibly sue States to recover on Revolutionary War debts? Patrick Henry, answering in the affirmative, warned of the dire financial consequences that would follow:

There was an immense quantity of depreciated [c]ontinental paper money in circulation at the conclusion of the war. . . The holders of this money may call for the nominal value, if this [Constitution] be adopted . . . Pass this government, and you will be carried to the federal court . . . and you will be compelled to pay shilling for shilling.143Henry, supra note 2, at 319.

Two positions emerged during the ensuing debate. One aligned with a two-tiered reading of Article III. The other foreshadowed the Chisholm decision.

a.   Marshall, Madison, and Hamilton’s Position: A Qualified State-Citizen Diversity Clause and a Two-Tiered Understanding of Article III

Marshall, Hamilton (in The Federalist), and Madison insisted that the phrasing of the State-Citizen Diversity Clause would forestall Henry’s parade of horribles, because the Clause in fact preserved state sovereign immunity.

Marshall famously contended that “the words” of the State-Citizen Diversity Clause made this so:

With respect to disputes between a state, and the citizens of another state, [federal] jurisdiction has been decried with unusual vehemence. I hope that no gentleman will think that [under this Clause] a state will be called at the bar of the federal court . . . The intent is, to enable states to recover claims of individuals residing in other states. . . . I contend this construction is warranted by the words. . . . I see a difficulty in making a state defendant, which does not prevent its being plaintiff.144Id. at 555–56 (emphasis omitted in part and emphasis added in part).

In Virginia, Marshall did not pursue his point further in his recorded remarks. But which “words” in the State-Citizen Diversity Clause could he have been referring to? The words must have been the fact that Article III does not extend the judicial Power to “all” Controversies between States and diverse citizens, thereby enabling a “construction” of the Clause whereby a State could be plaintiff but not defendant.

Tellingly as Chief Justice, Marshall went on to declare that state sovereign immunity was nullified by Article III, but only in the first of “two classes of cases” where the judicial Power extends to “all cases described, without making in its terms any exception whatever.”145Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 378 (1821) (emphasis added). Similarly, when responding to an argument that the Supreme Court lacked authority to decide disputes in which a “sovereign” State was pitted against the Federal Government or its officers, Marshall explained that “the constitution has expressly given [the Supreme Court] the [judicial] power . . . of deciding in a last resort, all questions ‘arising under the constitution and laws’ of the United States,” such that “the words are ‘all cases’ and I deny that the word ‘some’ can be substituted for ‘all,’ or that the word ‘all,’ can be satisfied if any one case can be withdrawn from the jurisdiction of the court.”146Marshall,supra note 33, at 495, 497. Marshall also asked rhetorically:

[W]here else could this important duty of deciding questions which grow out of the constitution, and the laws of the union, be safely or wisely placed? Would any sane mind prefer to the peaceful and quiet mode of carrying the laws of the union into execution by the judicial arm, that they should be trampled under foot, or enforced by the sword?—That every law of the United States should be resisted with impunity, or produce a civil war?

Id. at 494; see also id. at 491–92 (“[W]hat must have been the primary motive of a people forming a national government for endowing it with a judicial department? Must it not have been the desire of having a tribunal for the decision of all national questions? . . . . [T]he courts of the Union have, and ought to have jurisdiction, in all cases, arising under the constitution and laws of the United States. . . . [T]he judicial department should be co-extensive with the legislative, and with the provisions of the constitution . . . .”).

Although commentators comparing Marshall in Virginia to Chief Justice Marshall on the Supreme Court have cast him as being “inconsistent with . . . himself,”147Baude & Sachs, supra 45, at 643. his remarks are perfectly coherent on a two-tiered understanding of Article III. Indeed, while he advocated for the elimination of state sovereign immunity in the first tier of Article III, Marshall as Chief Justice continued to echo his position from Virginia when the State-Citizen Diversity Clause was concerned. Whatever position Article III’s first tier had placed States in, Marshall wrote, federal courts still “have no jurisdiction over [an individual’s] contract” with a State; “[t]hey cannot enforce it, nor judge of its violation.”148Cohens, 19 U.S. (6 Wheat.) at 403 (emphasis added).

Alexander Hamilton during the build up to the Constitution’s ratification put forth similarly nuanced remarks on state sovereign immunity and the text of Article III. In The Federalist No. 81, Hamilton responded to an Antifederalist’s argument that the State-Citizen Diversity Clause would induce savvy individuals to assign their “public securities” “to the citizens of another [State]” such that the assignee could then “prosecute that State in the federal courts for the amount of those securities.”149The Federalist No. 81 (Alexander Hamilton). Hamilton assured his readers that this consequence would not come to pass, because the State-Citizen Diversity Clause did not divest States “of the privilege of paying their own debts in their own way.”150Id. He explained in a famous passage:

It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent . . . Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in [The Federalist No. 32] . . . and need not be repeated here. A recurrence to the principles there established will satisfy us, that . . . [any] contracts between a [State] and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force.151Id. (alteration in original) (emphasis added); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 145 (1996) (Souter, J., dissenting) (explaining that Hamilton’s internal reference is to The Federalist No. 32).

Many discussions of The Federalist No. 81 pass over Hamilton’s careful phrasing.152See Philip Tassin, Why Treaties Can Abrogate State Sovereign Immunity: Applying Central Virginia Community College v. Katz to the Treaty Power, 101 Calif. L. Rev. 755, 783 (2013) (“[T]he Court’s state sovereign immunity cases have not addressed the latter part of Hamilton’s passage . . . .”). Hamilton, like Marshall, contended that States would have sovereign immunity against “contractual” claims brought by individuals under the State-Citizen Diversity Clause.153Id. at 785, 799. Hamilton did not, however, suggest that Article III incorporated the antecedent law of sovereign immunity wholesale across all nine categories of Cases and Controversies. Indeed, he made express reference to instances in which the Constitution permitted an “alienation of State sovereignty,” which included to his mind instances where “the Constitution in express terms granted an exclusive authority to the Union.”154The Federalist No. 32 (Alexander Hamilton); see also, e.g., Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 570 (1832) (McLean, J., concurring) (“The powers exclusively given to the federal government are limitations upon the state authorities.”).

It is ultimately a matter of speculation whether Hamilton understood the first tier of Article III to be a qualifying “grant of exclusive authority to the Union.”155The Federalist No. 32 (Alexander Hamilton). But it is clear that many delegates in Virginia thought that it was. Marshall, Madison, and others contended that the Federal Question, Ambassadorial, and Admiralty Clauses comprising Article III’s first tier would authorize “giving the federal judiciary exclusive jurisdiction” (i.e., jurisdiction exclusive of state courts, because these three categories of Cases uniquely “affect[ed] the interest of the United States”).156James Madison, Judicial Powers of the National Government, June 20, 1788, reprinted in 11 The Papers of James Madison (Robert A. Rutland & Charles F. Hobson eds., 1977) [hereinafter Madison, Judicial Power]; see also James Madison, Convention of Virginia, reprinted in 3 The Debates in the Several State Conventions, supra note 2, at 438 [hereinafter Madison, The Debates in the Several State Convention]; Edmund Pendleton, Convention of Virginia, reprinted in 3 The Debates in the Several State Conventions, supra note 2, at 439. In Cohens v. Virginia, Marshall likewise agreed that “the words, ‘to all cases,’ give exclusive jurisdiction.” 19 U.S. (6 Wheat.) 264, 397 (1821). If Hamilton similarly viewed the first tier of Article III as conferring a form of exclusive federal authority, then his nuanced remarks in The Federalist might point towards a two-tiered theory of when federal courts can “alienat[e] . . . State sovereignty.”157Justice Brennan has made a similar argument to the effect that Hamilton’s The Federalist No. 32 establishes that “the States had surrendered their immunity from suit on federal causes of action when the Constitution was ratified.” Atascadero St. Hosp. v. Scanlon, 473 U.S. 234, 277 n.25 (1985) (Brennan, J., dissenting). Reading Hamilton to be in alignment with this interpretation of Article III would also square with The Federalist No. 80, in which he intimated (much like Edmund Randolph did) that States lacked sovereign immunity as against constitutional claims.158See The Federalist No. 80 (Alexander Hamilton); supra Section II.A.4.

Back in Virginia, Madison, like Marshall and Hamilton, similarly advocated for a qualified reading of the State-Citizen Diversity Clause:

[Federal] jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. [Under this clause] [i]t is not in the power of individuals to call any state into court. The only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court. . . . [A]nd if a state should condescend to be a party, this court [also] may take cognizance of [a suit by an out-of-state citizen against a State].159Madison, The Debates in the Several State Conventions, supra note 156, at 533.

As for the Foreign-State Diversity Clause, in Virginia both Madison and Marshall contended that there the Constitution would also preserve state sovereign immunity. They both insisted that the “previous consent of the [State] is necessary” for the judicial Power to extend under this Clause to litigation against a State.160Id. at 557.

But when discussing the first tier of Article III, in contrast, Madison argued that here “the judicial power should correspond with the legislative,” implying that to whatever extent Article I permitted Congress to legislate, federal courts should have judicial Power to finally and definitively adjudicate.161Id. at 532. In a similar vein, Madison at the Philadelphia Convention had contended that “states ought to be placed under the control of the general government” such that, to the extent federal power is involved, States should not be considered “sovereign” but merely “political societies.”162James Madison, Yate’s Minutes, reprinted in 1 The Debates in the Several State Conventions, supra note 142, at 461–62. Madison further captured the spirit of the two-tiered understanding in The Federalist No. 39, where he declared that the proposed Constitution “is partly federal and partly national” in that “its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”163The Federalist No. 39 (James Madison).

Three decades later, Madison’s private correspondence reflects that his position on the merits of abrogating State sovereign immunity may have changed. He wrote that “[p]rudence enjoins” “let[ting judicial] proceedings touch individuals only” when “taking cognizance of cases arising under the Constitution” “in consideration of the impracticability of applying coercion to States.”164Letter from James Madison to Spencer Roane, May 6, 1821, reprinted in 2 The Papers of James Madison (David B. Mattern, J. C. A. Stagg, Mary Parker Johnson & Anne Mandeville Colony eds., 2013). He also wrote that “[t]he Eleventh amendment introduces exceptions if there were none before” to the extension of “[t]he Judicial power of the U.S. over cases arising under the Constitution.”165Id. The merits of Madison’s suggestion that the Eleventh Amendment cut off federal judicial Power in some constitutional disputes will be discussed later. Insofar as Madison’s remarks bear on the appropriate construction of the Constitution as ratified, it suffices for now to say that these remarks were not part of the dialogue at the time of the Virginia ratifying convention,166See Baude & Sachs, supra note 45, at 644 (“[A] stray letter from an aging Founder proves little.”). and they further tend to reflect that, at least prior to the Eleventh Amendment’s ratification, Madison understood that Article III’s Federal Question Clause might have been unqualified.

In short, at the time of ratification, the Marshall-Hamilton-Madison triumvirate clearly regarded the grant of judicial Power in Article III’s State-Citizen and Foreign-State Diversity Clauses to be limited by state sovereign immunity and, hence, largely inoperative without a State’s consent. But, strikingly, when the Virginia delegates focused on the first tier of Article III, neither Madison nor Marshall—indeed, not a single delegate at the Virginia ratifying convention—suggested that state sovereign immunity rights persisted.167See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 105–06 (1996) (Souter, J., dissenting).

Tellingly, when Mason criticized the Federal Question Clause as bereft of “any limitation whatsoever,” the Federalist response (in stark contrast to the debate over the Diversity Clauses) was not to mention a background principle of sovereign immunity. Just the opposite. The Federalists rejoined, “Must not the judicial powers extend to enforce the federal laws . . . ? Must it not protect them in the proper exercise of duty, against all opposition, whether from individuals or state laws?”168Pendleton, supra note 156, at 543; see also Madison, The Debates in the Several State Conventions, supra note 156, at 532 (“That causes of a federal nature will arise, will be obvious to every gentleman who will recollect that the states are laid under restrictions, and that the rights of the Union are secured by these restrictions. They may involve equitable as well as legal controversies. With respect to the laws of the Union, it is so necessary and expedient that the judicial power should correspond with the legislative, that it has not been objected to. With respect to treaties, there is a particular propriety in the judiciary’s expounding them. These may involve us in controversies with foreign nations . . . There are strong reasons why there should be a Supreme Court to decide such disputes.”); Marshall, supra note 25, at 554 (arguing that federal courts should have cognizance of all federal question Cases).

Chief Justice Marshall later echoed these remarks when he wrote that “the judicial power . . . must be co-extensive with the legislative, and must be capable of deciding every judicial question which grows out of the constitution and laws. . . . It can, then, . . . legitimately control all individuals or governments within the American territory.”169Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 384, 414 (1821) (emphasis added). Both here and elsewhere, Marshall articulated explicitly what the Virginia delegates appeared to be saying implicitly. In Cases arising under the Federal Question Clause, constitutionalized sovereign immunity rights did not exist; however, Marshall and others still stressed, there remained other constraints on the permissible scope of federal law, such as those embedded in Article I.170See, e.g., Marshall, supra note 25, at 553 (“Has the government of the United States power to make laws on every subject? . . . Can they go beyond the delegated powers?”).

As for Article III’s Ambassadorial and Admiralty Clauses, here the Virginia delegates generally agreed on the need for paramount federal authority.171See Madison, The Debates in the Several State Conventions, supra note 156, at 532. Proceedings in such Cases, they observed, could influence the Union’s “intercourse with foreign nations” and “involve us in [war].”172Id.; see also Edmund Randolph, Convention of Virginia, reprinted in 3 The Debates in the Several State Conventions, supra note 2, at 570. Thus, Article III’s extension of the judicial Power to “all” of them was defended as necessary to protect “our national tranquility and reputation,”173Randolph, supra note 172, at 571; see also Madison, The Debates in the Several State Conventions, supra note 156, at 532. and even George Mason agreed that federal courts “ought to have judicial cognizance in all cases” involving ambassadors or admiralty jurisdiction.174George Mason, Convention of Virginia, reprinted in 3 The Debates in the Several State Conventions, supra note 2, at 523 (emphasis added) (setting forth Mason’s proposed amendment to Article III, which would have likewise extended the judicial Power to “all” ambassadorial and admiralty Cases but, notably, not “all” Controversies).

No delegate argued that States should (or would) enjoy sovereign immunity rights in ambassadorial or admiralty disputes.175See, e.g., The Federalist No. 80 (Alexander Hamilton) (“The most bigoted idolizers of State authority have not thus far shown a disposition to deny the national judiciary the cognizance of maritime causes.”). That made a certain degree of sense, given that a localized veto power could impede a federal court’s ability to resolve these frequently interstate or international disputes on the merits.176See Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 334–35 (1816) (explaining that in Article III’s first tier it would “be perilous to restrain [the judicial Power] in any manner whatsoever, inasmuch as it might hazard the national safety,” as it was “in the correct adjudication” of these Cases that “foreign nations [we]re deeply interested”) (emphasis added); see also Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 475 (1793) (opinion of Wilson, J.) (explaining that the judicial Power extended “[to] all cases arising under treaties . . . because, as treaties are compacts made by, and obligatory on, the whole nation, their operation ought not to be affected or regulated by the local laws [of States]”); id. (explaining that ambassadors and consuls “are officers of foreign nations, whom this nation are bound to protect and treat according to the laws of nations”); id. (“[A]s the seas are the joint property of nations, whose right and privileges relative thereto, are regulated by the law of nations and treaties, such cases necessarily belong to national jurisdiction.”); id. at 451 (opinion of Blair, J.) (“[N]o State in the Union should, by withholding justice, have it in its power to embroil the whole confederacy in disputes of another nature.” (emphasis omitted)). For the Framers, the possibility of a State improperly treating a foreign dignitary, or seizing a vessel later claimed by diverse citizens or a foreign power, was never far from mind.177See, e.g., Chisholm, 2 U.S. (2 Dall.) at 475 (opinion of Wilson, J.).

b.      The Henry/Mason Interpretation: An Unqualified State-Citizen Diversity Clause and a Plenary Abrogation of State Sovereign Immunity

The Antifederalists in Virginia did not dispute the accuracy of the Federalists’ seemingly unqualified reading of Article III’s first tier. But they did contend that Marshall’s and Madison’s restricted reading of the State-Citizen Diversity Clause was nonsensical.

Patrick Henry, while hedging his remarks by voicing some “doubt on the subject,” claimed that the reading by which “the state may be plaintiff only” under the State-Citizen Diversity Clause seemed to him “perfectly incomprehensible”:

What says the [clause]? That [the federal courts] shall have cognizance of controversies between a state and citizens of another state, without discriminating between plaintiff [or] defendant. . . . [I]f I understand that paper right . . . [a] state may be sued in the federal court [for the nominal value of the notes] on your table.178Madison, The Debates in the Several State Conventions, supra note 156, at 319, 543.

Mason similarly read the State-Citizen Diversity Clause as rendering States liable to compulsory suits by citizens of other States:

I cannot see the propriety of the next power, in disputes between a state and the citizens of another state. . . . Is not this disgraceful? Is this state to be brought to the bar of justice like a delinquent individual? Is the sovereignty of the state to be arraigned like a culprit, or private offender?179Mason, supra note 174, at 523, 527.

Henry and Mason argued to the Virginia ratifying convention that the potential loss of state sovereign immunity in public debt cases warranted, at the very least, a constitutional amendment striking the offending Clause outright.180See id. at 523; see also Madison, The Debates in the Several State Conventions, supra note 156, at 530. Going further, Mason also criticized the Foreign-State Diversity Clause as lacking “reciprocity” because, in his view, Virginia “may be sued by a foreign State” but “[i]n a suit between Virginia and a foreign state, is the foreign state to be bound by the decision?”181Mason, supra note 174, at 527. Mason thus disagreed with Madison and Marshall’s position that the Foreign-State Diversity Clause would extend the judicial Power only in the event of State consent.

Henry and Mason’s concerns were given serious weight by the delegates in Virginia. While a majority ultimately voted to ratify the Constitution, a separate majority also voted in favor of Mason’s proposed amendment to Article III.182See 3 The Debates in the Several State Conventions, supra note 2, at 653–56.

The structure of this amendment is striking. Mason, during the convention, argued that Article III’s grant of judicial Power was proper “in all cases” concerning “treaties,” “affecting ambassadors, foreign ministers and consuls, as well as in cases of maritime jurisdiction.”183Mason, supra note 174, at 523. In other Controversies—including “the decision of Controversies to which the United States shall be a party”—Mason contended that the “power of the judiciary [was] also necessary [but] under some restrictions.”184Id. Finally, Mason advocated eliminating outright the State-Citizen Diversity Clause, the Foreign-State Diversity Clause, and the non-treaty portion of the Federal Question Clause.185See id. at 521–23. Following his comments, Mason offered the following amendment:

The judicial power shall extend to all cases in law and equity arising under treaties made, or which shall be made, under the authority of the United States; to all cases affecting ambassadors, other foreign ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, and between parties claiming lands under the grants of different states.186Id. at 660 (emphasis added). Although the precise text of Mason’s proposal was not reproduced in the Convention records, the editor notes that it was “nearly the same” as the reproduction. See id. at 525.

Read in combination with his recorded remarks, Mason’s amendment is clearly premised on the idea that the variation between “all Cases” and “Controversies” is meaningful. Where Mason advocated for striking a clause, it was struck. Where he believed that the Federal Government should have plenary authority, the amendment interposed the word “all.” And where Mason contended that the judicial Power was “necessary under some restrictions,” the word “all” was omitted.

Unfortunately, Mason did not divulge precisely what “restrictions” he thought might operate under the second tier of his proposed amendment. But, in any event, the debate over sovereign immunity and Article III’s text did not end with the Virginia ratifying convention, or even when Mason’s proposed amendment to Article III—which was proposed, in turn, by the Virginia ratifying convention—died in the First Congress.

C.      Two Tiers in Precedent, Part I

Shortly after the Constitution’s ratification, the newly constituted Supreme Court confronted the same interpretive question that vexed the Virginia delegates. The Court would find itself similarly divided over how best to resolve it.

1.      The Road to Chisholm: Expounding the Judicial Power

The Supreme Court’s role in this history begins with the passage of the Invalid Pensions Act of 1792.187Ch. 11, Pub. L. No. 2–11, 1 Stat. 243, 243–44 (1792). The Act authorized disabled Revolutionary War veterans to apply for pensions in the new federal courts, but its procedures were constitutionally suspect. A federal judge finding an applicant eligible for a pension was supposed to certify his opinion to the Secretary of War, who, in turn, could recommend either giving or withholding Treasury funds based on his view of the merits of the applicant’s claim. Congress, under the statute, was then to be the final arbiter of whether and how much a pensioner might be paid.188Id. § 102, 1 Stat. at 243–44. For a discussion of the facts behind Hayburn’s Case, see Maeva Marcus & Robert Teir, Hayburn’s Case: A Misinterpretation of Precedent, 1988 Wis. L. Rev. 527, 528–40.

The Supreme Court accepted argument on whether the Invalid Pensions Act violated Article III by effectively authorizing a veto over judicial decisions, but it never formally resolved that question as an intervening statute mooted the case.189Hayburn’s Case, 2 U.S. (2 Dall.) 409, 409–10 (1792). Nevertheless, by the time of argument, all five Justices had already opined on the Act while riding circuit, and all five had deemed it an unconstitutional interference with the Constitution’s vesting of judicial Power in the federal judiciary.190Gordon v. United States, 117 U.S. 697, 703 (1885) (“[E]very judge of the Supreme Court . . . was of opinion that . . . when the decision of the court was subject to the revision of a Secretary and Congress, it was not the exercise of a judicial power . . . .”). Justice Iredell perhaps put it best, explaining that “no decision of any court of the United States can . . ., agreeable to the Constitution, be liable to a revision or even suspension by the legislature itself, in whom no judicial power of any kind appears to be vested.”191Hayburn’s Case, 2 U.S. (2 Dall.) at 413.

The justices’ circuit-level opinions—known collectively as Hayburn’s Case192Id. at 410.—became the first precedents defining Article III “judicial Power” as the power to render final, binding judgments under the applicable law. Notably, these same opinions also reflected the principle that the absence of judicial Power implies a lack of federal jurisdiction, as all five Justices likewise determined that the Invalid Pensions Act’s constitutionally invalid procedures meant that the federal courts could not hear any pensioner’s claim, not even in an “administrative” capacity.193See id. at 411, 414.

After Hayburn’s Case, it was an open doctrinal question whether the Justices’ understanding of judicial Power might affect the viability of the pre-constitutional doctrine of sovereign immunity, particularly given that sovereign immunity can be viewed as conferring a similar kind of veto power over judicial decisions.194See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 385 (1821) (describing state sovereign immunity as a “veto on the will of the whole”). The connection between sovereign Immunity and the Invalid Pensions Act was not lost on Edmund Randolph, who, as U.S. Attorney General, feared that an extension of Hayburn’s Case might lead the Court to renounce jurisdiction over all disputes in which a State invoked its antecedent sovereign immunity rights. In a letter to President Washington, Randolph observed that

States are brought into court, as defendants to the claims of land companies, and of individuals[;] British debts rankle deeply in the hearts of one part of the U.S.[;] and the [Hayburn’s Case] precedent, fixed by the condemnation of the pension-law, if not reduced to its precise principles, may justify every constable in thwarting the laws.195Letter from Edmund Randolph to George Washington (Aug. 5, 1792), https://perma.cc/Z65T-LR68.

Randolph’s fears were, however, a two-way street. True, Hayburn’s Case suggested that a federal court would lack judicial Power—and, by implication, jurisdiction—to whatever extent States retained their antecedent sovereign immunity rights. But, conversely, Article III’s express “exten[sion]” of judicial Power to nine categories of Cases and Controversies might itself be interpreted to annul those very rights.196U.S. Const. art. III, § 2. Henry and Mason had, after all, just taken the latter interpretive stance at the Virginia ratifying convention with Randolph in attendance. The Attorney General decided to make the same argument.197See Clyde E. Jacobs, Prelude to Amendment: The States Before the Court, 12 Am. J. Legal Hist. 19, 27 (1968).

2.      Chisholm v. Georgia

Six days after he sent his letter to the President, Randolph asked the Supreme Court to command the State of Georgia to defend itself in an assumpsit action instituted by Alexander Chisolm, a plaintiff who, acting as executor for a South Carolina citizen, had sued Georgia for payment on goods seized during the Revolutionary War.198See id. at 27–28; Fletcher, supra note 5, at 1268. Chisholm after an initial dismissal had filed suit directly in the Supreme Court,199Chisholm initially attempted to sue in the Federal Circuit for the District of Georgia, but Justice Iredell (there riding circuit) dismissed the complaint on the ground that, as a suit against a State, it could only be brought (if at all) in the Supreme Court. See Chisholm v. Georgia, in 5 The Documentary History of the Supreme Court of the United States, 1789–1800, at 131 (Maeva Marcus ed., 1994). but Georgia had so far refused to answer the complaint.200See id. If the default persisted, Randolph moved the Court to enter judgment “against the said State, and [to issue] a writ of enquiry of damages.”201Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 419 (1793).

Georgia responded to Randolph’s motion by invoking sovereign immunity and protesting “against the exercise of jurisdiction in the cause.”202Id.; see also Jacobs, supra note 197, at 28, 28 n.29. Randolph—echoing, in a strange twist of history, Henry and Mason’s argument against ratifying the Constitution—argued that the text of the Constitution overrode state sovereign immunity as “[t]he judicial power [extends] to controversies between a State and citizens of another State[,] . . . in no respect indicating who is to be Plaintiff or who Defendant. . . . [T]he words, unqualified, strongly tend[] at least to subject States as defendants.”203Chisholm, 2 U.S. (2 Dall.) at 420–21 (emphasis omitted in part and emphasis added in part).

Randolph’s “unqualified” reading of the State-Citizen Diversity Clause was adopted by a majority of the Court. Justice Blair put it bluntly:

[T]he judicial [power] of the United States . . . is expressly extended, among other things, to controversies between a State and citizens of another State. . . . [I]f sovereignty be an exemption from suit . . . it follows that when a State, by adopting the Constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty.204Id. at 450, 452 (emphasis omitted).

Chief Justice Jay, Justice Wilson, and Justice Cushing all agreed with this reading. Writing seriatim, each rejected Georgia’s invocation of sovereign immunity by looking to “the direct and explicit declaration of the Constitution itself” that “[t]he judicial power of the United States shall extend to controversies, between a state and citizens of another State.”205Id. at 466 (opinion of Wilson, J.) (emphasis omitted); see also id. at 466–67 (opinion of Cushing, J.); id. at 471, 476 (opinion of Jay, C.J.).

Justice Iredell dissented, but, crucially, he still agreed that where the judicial Power did extend, the Constitution overrode state sovereign immunity. Iredell wrote, “[t]he Judicial power is of a peculiar kind. . . . So far as States under the Constitution can be made legally liable to this authority, . . . their individual sovereignty is in this respect limited.”206Id. at 435–36.

Iredell’s disagreement lay, instead, with the majority’s “unqualified” construction of the State-Citizen Diversity Clause.207Id. at 421. Iredell insisted that a distinction should be drawn between that part of Article III concerning what he called “the special objects of authority of the general Government” and that part which “uses the word ‘controversies’ only.”208Id. at 431, 435. In drawing this distinction, Iredell became the first Justice to articulate the two-tiered theory of sovereign immunity, although he did so across scattered sections of his opinion (which are stitched together here)209Iredell’s opinion frequently jumps from statutory construction to constitutional exegesis, but this Article maintains that, read carefully and in its entirety, these excerpts correctly reproduce his views.:

In the conveyance of the part of the judicial power which . . . [concerns the] authorities of the general Government . . . it must be admitted [that Congress’s powers] are full and discretionary, within the restrictions of the Constitution itself . . . . [There,] the separate sovereignties of the States are blended in one common mass of supremacy . . . and the Legislature of the United States may pass all laws necessary to give such Judicial Authority its proper effect. . . . [Y]et in whatever character this [first tier of judicial power] may place a State, this can only afford a reason for a new law, calculated to effectuate the powers of the General Government in this new case . . . .

[By contrast, where the judicial] authority extends only to the decisions of controversies in which a State is a party . . . . [I doubt] the true construction of the Constitution . . . authoris[es] the Legislature to provide laws for the decision of all possible controversies in which a State may be involved with an individual, without regard to any prior exemption . . . . [Instead,] it is incumbent upon us to enquire, whether previous to the adoption of the Constitution . . . an action of the nature like this before the Court could have been maintained against one of the States in the Union upon the principles of the common law. . . . If it could, I think it is now maintainable here: If it could not, I think . . . it is not maintainable; whatever opinion may be entertained upon the construction of the Constitution, as to the power of Congress to authorize such a one.210Chisholm, 2 U.S. (2 Dall.) at 432–49 (emphasis omitted in part and emphasis added in part).

After setting forth this two-tiered framework, which Iredell had evidently developed while sitting on the Federal Circuit for the District of Georgia,211See James Iredell’s Circuit Court Opinion, Oct. 21, 1791, reprinted in 5 Documentary History, supra note 199, at 151 (reporting an opinion in which Iredell states that it is a “serious question of great magnitude” whether “the general word ‘controversies’” as used in Article III “can refer to any other cases but where such controversies could formerly have been maintained” under the antecedent law). he applied it to the dispute at hand. Because Chisholm’s assumpsit claim implicated only the State-Citizen Diversity Clause and therefore Article III’s second tier (no argument about the Contracts Clause was considered in Iredell’s opinion), Iredell reasoned that Georgia’s “antecedent” sovereign immunity rights survived and, in this Controversy, should operate to bar the suit.212Iredell defined the “antecedent” or “common law” as the law “in force in each State, [or] as it existed in England, (unaltered by any statute) at the time of the first settlement of the country.” Chisholm, 2 U.S. (2 Dall.) at 432, 435 (emphases omitted). In describing the contours of the antecedent law, Iredell explained that “in England, certain judicial proceedings not inconsistent with the sovereignty, may take place against the Crown, but . . . an action of assumpsit will not lie”; thus, he concluded, “a contract with [the State] Legislature . . . [is] made on the public faith alone.”213Id. at 430, 445 (emphases omitted).

Despite the renown of this Iredell dissent, the legal community has overlooked the two-tiered analysis that is present within its pages.214See, e.g., John V. Orth, The Truth About Justice Iredell’s Dissent in Chisholm v. Georgia (1793), 73 N.C. L. Rev. 255, 262 (1994) (contending “[e]verything that Iredell said on” the “constitutional question was addressed only in [his] concluding paragraph”); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 108 (1996) (Souter, J., dissenting) (reading Iredell’s dissent as opining on whether “state sovereign immunity was cognizable under the Citizen-State Diversity Clauses,” but not addressing Iredell’s two-tiered reading of Article III’s text). There are two probable explanations why.

First, Iredell’s constitutional musings were dicta. He described them as his strong “present opinion” but ultimately grounded his dissent on the absence of a federal statute authorizing the relief sought by Chisholm.215See Chisholm, 2 U.S. (2 Dall.) at 449. For Iredell, an authorizing statute was necessary before any suit could possibly go forward against a State, no matter what tier of Article III was involved.216See id. at 432 (arguing that judicial Power “cannot be effectuated without the intervention of the Legislative authority”).

The second reason concerns Iredell’s obfuscating claim that he was “strongly against any construction of [the Constitution], which will admit, under any circumstances, a compulsive suit against a State for the recovery of money.”217Id. at 449. This sentence in the opinion is often read as a broad endorsement of state sovereign immunity, and hence as evidence that Iredell perceived an atextual and plenary limit on the extent of Article III judicial Power.218See Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817, 1884 (2010); Orth, supra note 214, at 262–63; see also Alden v. Maine, 527 U.S. 706, 734 (1999). But, in truth, it is the product of Iredell’s restrictive understanding of Article I’s Necessary and Proper Clause. As his dissent explained, Congress, in legislating to give content to the federal law underlying the first tier of Article III, “may pass all laws necessary to give [the] Judicial Authority its proper effect” and State “sovereignty is in this respect limited. But it is limited no farther than the necessary execution of such authority requires.”219Chisholm, 2 U.S. (2 Dall.) at 436 (emphasis added). In a similar vein, Iredell would later observe that “[a]s incidental to the power of legislation over the great objects of the general government, the legislature has authority to enforce its laws by proper sanctions, without which laws would be useless.” James Iredell’s Charge to the Grand Jury of the Circuit Court for the District of New York, Apr. 6, 1795, reprinted in 3 The Documentary History of the Supreme Court of the United States, 1789–1800, at 22 (Maeva Marcus ed., 1990) (emphasis added). In consequence, Iredell explained, a federal statute authorizing a compulsory monetary recovery against a State might, in theory, be constitutional, but only “upon the supposition that the judicial authority of the United States, as it respects States, cannot be effectuated, without proceeding against them in that light: a position I by no means admit.”220Chisholm, 2 U.S. (2 Dall.) at 447 (Iredell, J., dissenting) (emphasis omitted in part and emphasis added in part). Notably, Iredell was also careful to separate out the distinct question of damages from “the general one, viz. Whether, a State can in any instance be sued?”221Id. at 430.

In short, the impediment to federal damages actions against States was not, for Iredell, the antecedent law of sovereign immunity; it was the limited nature of Congress’s Article I powers. But the impediment to state-law damages actions like Chisholm’s was indeed sovereign immunity: where the Constitution “uses the word ‘controversies’ only” “the principles of the [antecedent] law” are controlling in determining if a suit “is not maintainable,” “whatever opinion may be entertained . . . as to the power of Congress to authorize such a one.”222Id. at 431, 437 (emphasis omitted). The upshot, Iredell wrote elsewhere, was that outside of a few important “instance[s]” the Constitution and laws of the United States would operate “upon Individuals & not States.”223James Iredell’s Observations on “this great Constitutional Question,” Feb. 18, 1793, reprinted in 5 Documentary History, supra note 199, at 190; cf. James Iredell’s Charge to the Grand Jury, supra note 219, at 14–15 (“The objects of this constitution being solely the preservation and security of the union, it in no instance interferes with the internal regulations of any state in cases which concern the interests of such state only. . . . Both [governments] are restricted within those bounds which the people have thought proper to prescribe, and neither can violate, without violating a most sacred duty, the peculiar province of the other.”).

If this reading of Iredell’s opinion is correct, then his two-tiered theory of sovereign immunity is nearly identical to the one advocated for in this Article, outside of two small potential differences.

First, Iredell’s opinion suggests that, across all Cases and Controversies, a State cannot be sued sans what he called a “new law” (i.e., a statute authorizing jurisdiction and furnishing a remedy against a State).224Chisholm, 2 U.S. (2 Dall.) at 448–49. This Article’s understanding is largely the same; it views the judicial Power as no more or less than the authority to render final and binding judgments under the applicable law where a court has statutory jurisdiction. For that reason, a State necessarily cannot be adjudged liable sans an independent law conferring jurisdiction and extending a cause of action against a State. However, this Article does recognize a possible exception for constitutional claims, as will be discussed later; it is unclear from Iredell’s Chisholm opinion whether he would agree.

Second, Iredell’s restrictive understanding of the Necessary and Proper Clause conflicts with the more permissive reading adopted in McCulloch v. Maryland.22517 U.S. (4 Wheat.) 316 (1819). If one adheres to McCulloch, then Congress would have more room than Iredell would afford it under Article I to determine whether monetary remedies against States are necessary and proper vis-à-vis giving the “Judicial Authority its proper effect.”226Chisholm, 2 U.S. (2 Dall.) at 435–36.

III.      The Eleventh Amendment and the Precedential Emergence of a Two-Tiered Theory of Sovereign Immunity

Although the Supreme Court award Chisholm his writ, the Court’s judgment went unenforced.227See New Jersey v. New York, 30 U.S. (5 Pet.) 284, 289 (1831). In 1847, Georgia did voluntarily satisfy the debt. See Doyle Mathis, Chisholm v. Georgia: Background and Settlement, 54 J. Am. Hist. 19, 27–29 (1967). The reaction to Chisholmappeared to be “almost uniformly hostile.”228Clark, supra note 218, at 1886; see also Letter from Fisher Ames to Alexander Hamilton, Aug. 31, 1793, reprinted in 5 Documentary History, supra note 199, at 415 (“I conceive the entire active for[ce] of the state politics to be hostile to the decision[.]”). The majority had made a mockery of Marshall, Madison, and Hamilton’s assurances that the payment of public debts would remain a matter of State grace and not judicial compulsion. Proposals to overturn Chisholm appeared almost immediately but gaining the political capital necessary to amend the Constitution still took time.

A.      Framing the Eleventh Amendment

A year would pass between Chisholm and Congress’s transmission of the Eleventh Amendment to the States. Another would go by before the Amendment reached the three-fourths ratification threshold.229Letter from Edmund Randolph to Governors of the States, Mar. 17, 1794, reprinted in 5 Documentary History, supra note 199, at 625. During the interim, pressure to overturn the Court’s reading of Article III continued to build.

Legislators from Georgia hardly needed more convincing on this score, but they gained allies in Massachusetts after the filing of another politically explosive case, Vassall v. Massachusetts.230Vassall v. Massachusetts, in 5 Documentary History, supra note 199, at 352; see also Lash, supra note 77, at 1554–56. For an overview of other early suits between individuals and States, which likely generated additional interest in overturning Chisholm, see Jacobs, supranote 197. William Vassall was a British subject who moved from Boston to Great Britain before the Revolutionary War. Sensing Loyalism, Massachusetts officials decided to sell Vassall’s mansion and auction off his furniture.231Vassall v. Massachusetts, supra note 230, at 354. That behavior prompted Vassall to file suit against the State in the U.S. Supreme Court.

While essentially no pleadings from this lawsuit survive, correspondence between Vassall and his lawyers suggests that Vassall sued Massachusetts on state-law claims of “Detinue, or Trover & Conversion” to recover funds held in probate after the auction and possibly to also seek damages related to the sale of the home.232See id. at 358–59. Vassall’s lawyers also strategized about defensively invoking the Treaty of Paris, if Massachusetts attempted to rely on a state statute purporting to authorize the confiscation of Loyalist property.233See id. at 355, 361–62 (describing the 1784 Massachusetts act). But, importantly, there is no evidence to suggest that in Vassall the plaintiff sought to transmogrify the Treaty of Paris into an independent cause of action; the Treaty, by its terms, did not provide a judicial remedy against a confiscatory State and, instead, merely tasked Congress with recommending to States that they make full restitution of any confiscated property.234See Definitive Treaty of Peace, Gr. Brit.-U.S., art. V, Sept. 3, 1783, 8 Stat. 80, 82 [hereinafter Treaty of Paris] (“It is agreed that the Congress shall earnestly recommend it to the legislatures of the respective states, to provide for the restitution of all estates, rights and properties, which have been confiscated, belonging to real British subjects, and also of the estates, rights and properties of persons resident in districts in the possession on his Majesty’s arms, and who have not borne arms against the said United States.”). For the provisional treaty, see Provisional Articles, Gr. Brit.-U.S., Nov. 30, 1782, 8 Stat. 54.

Vassall’s suit against Massachusetts caused a stir. As news of the complaint began to spread, newspapers and pamphlets inveighed that the Chisholm decision would soon enable a “dirty Tory Traitor” to drag States into federal court.235Letter to the Editor, Miscellany Column, The Mercury (July 23, 1793); see also Opinion, Communications, Indep. Chron. (Sept. 16, 1793) (containing similar invective). For further discussion of reactions to the Vassall suit, see Clark, supra note 218, at 1877–78, 1889–91, 1891 n.438; and Fletcher, supra note 5, at 1285–86; and Jacobs, supra note 197, at 37–38, 38 n.58. The general outcry prompted Governor Hancock to call a special session of the Massachusetts General Court, where, on September 18, 1793, he delivered a seemingly Iredellian message on solving the Chisholm problem.236See Governor Hancock’s Speech to the Legislature of Massachusetts, at the Opening of Their Sessions on the 18th of September Instant, Augusta Chron. (Nov. 2, 1793). Hancock first expressed doubt as to

Whether the provision in the Federal constitution for the extension of the judiciary power to states, is intended to be exercised in matters of civil contract” rather than “only . . . giv[ing] a remedy for such injuries as . . . have a tendency to destroy the peace of the Union, or involve the nation in a war with foreign powers.237See id.

Hancock then added that, to his mind, it was a distinct question—one not necessarily put at issue by Vassall—whether States could be held liable under “the judiciary power” if recompense were demanded of them under “the law of nations, the Constitution of the United States, and existing treaties.”238Id.

The General Court’s response to Vassall was less nuanced than Hancock’s. The legislature voted to demand a constitutional amendment removing any provision that “can be construed to imply or justify a decision that a State is compellable to answer in any suit by an individual or individuals in any Court of the United States.”239Resolves of the General Court of the Commonwealth of Massachusetts, 1793-September Session, in Acts and Laws of the Commonwealth of Massachusetts 591 (Warner & Potter Printing Co. 1895). As for litigating Vassall itself, the legislature sent instructions to Hancock that “no answer [will] be made” by Massachusetts in the case.240Vassall v. Massachusetts, supra note 230, at 368–69.

By this time there was widespread national interest in overruling Chisholm and halting proceedings in Vassall,241Chisholm and Vassall likely “triggered the adoption of the Eleventh Amendment.” Clark, supra note 218, at 1875. but the question of how best to do so lingered. Two proposals had already taken hold in Congress, both introduced shortly after Chisholm was decided but before the Vassall complaint was filed. Representative Theodore Sedgwick of Massachusetts, a Federalist channeling sentiments similar to those later expressed by the Massachusetts General Court, called for a broad constitutional amendment prohibiting States from being “made a party defendant, in any of the judicial courts . . . at the suit of any person or persons.”242Proceedings of the United States House of Representatives, Gazette of the United States, Feb. 19, 1793, reprinted in 5 Documentary History, supra note 199, at 605–06. Some State conventions proposed similarly broad amendments. See, e.g., Florida v. Georgia, 58 U.S. (17 How.) 478, 519–20 (1855) (Campbell, J., dissenting) (describing Virginia’s proposal, which would have ensured that no “State is compellable to answer in any suit by any individual or individuals in any court of the United States”). Senator Caleb Strong, also a Federalist of Massachusetts, proposed an early version of what would eventually become the Eleventh Amendment: “The Judicial Power of the United States shall not extend to any Suits in Law or Equity commenced or prosecuted against any one of the United States by Citizens of another State or by Citizens or Subjects of any foreign State.”243Resolution in the United States Senate, Feb. 20, 1793, reprinted in 5 Documentary History, supra note 199, at 607–08. Strong’s proposal, unlike Sedgwick’s, said nothing of suits by nondiverse, in-state citizens. The legal world has long since debated the reason for that omission.244Andrew B. Coan, Text as Truce: A Peace Proposal for the Supreme Court’s Costly War Over the Eleventh Amendment, 74 Fordham L. Rev. 2511, 2511 (2006) (“Courts and commentators have debated the original meaning of the Eleventh Amendment for more than 100 years.”); Fletcher, supra note 5, at 1033 (calling the Eleventh Amendment “one of the Constitution’s most baffling provisions”).

Although determining why the Eleventh Amendment omits mention of nondiverse citizens is in a sense an impossible task, particularly given its sparse ratification record,245See Jacobs, supra note 197, at 19. For an overview of what does exist, see Manning, supra note 6, at 1721–22; and Nelson, supra note 5, at 1602–03. we do know that Strong’s proposal ultimately attracted widespread support as Federalists and Antifederalists alike overwhelmingly voted for it.246See Jacobs, supra note 197, at 37. Given that piece of evidence, it is perhaps worth recalling propositions that delegates of all political stripes generally agreed upon during the Virginia ratifying convention. One was that Article III’s extension of judicial Power to “all” federal question, ambassadorial, and admiralty Cases was largely seen as appropriate given the intimate connection between such disputes and important national interests such as preventing war, safeguarding interstate commerce, and forestalling constitutional violations. Moreover, with respect to this first tier of Cases, not a soul during the Virginia ratifying convention contended that state sovereign immunity would persist as a potential barrier to the resolution of such disputes on the merits.247Baude and Sachs have contended that “few” among the founding generation would have found a “waiver [of sovereign immunity] in [Article III’s] grant of federal-question jurisdiction.” Baude & Sachs, supra note 45, at 627–28. But the evidence relied on by Baude and Sachs to support this assertion evinces little more than widespread disagreement with the majority’s decision in Chisholm (focused, as it was, on the State-Citizen Diversity Clause and the question of compelling States to pay contractual debts). See Letter from John Wereat to Edward Telfair, Feb. 21, 1793, reprinted in 5 Documentary History, supra note 199, at 223 (reporting Rep. Sedgwick’s remark that “he could not have beleived [sic] that any professional Gentleman would have risqued his reputation on such a forced construction of the clause in the Constitution” as was contained in Justice Wilson’s Chisholmopinion (citation omitted)); see also Letter from William Davie to James Iredell, June 12, 1793, excerpted in 2 McRee, supra note 116, at 383 (“[T]here is no doubt but the contract of a State may raise a moral obligation; but it does not follow, that although it would be ‘honest’ to comply voluntarily with such contract, that it would be wise or useful for the Federal Government to enforce it. The policy of no nation has gone so far as to enforce every moral obligation . . . .”); Letter from Edmund Pendleton to Nathaniel Pendleton, May 21, 1792, reprinted in 5 Documentary History, supra note 199, at 157–58 (“In defining the Judicial Powers they are declared to extend to controversies . . . between a State & Citizens of another State; but these I consider as referring to Cases wherein they are” plaintiffs; moreover, “[i]f Congress had meant to have authorized such a suit, they would surely have directed the mode of proceeding.”); cf. 2 McRee, supranote 116, at 380–81 (stating that Iredell’s Chisholm dissent “was in accord with the views, generally, if not universally, held at the South by Federalists as well as Antifederalists”). At the same time, however, there was widespread agreement that the Controversy Clauses should not authorize compulsory suits against States (opinion was, of course, divided on whether they did).

Chisholm had been decided in spite of the general consensus with respect to the Controversy Clauses. Thus, as Clark has written, the decision weighed heavily on the minds of both parties: “Antifederalists . . . felt that Federalists had played a game of ‘bait and switch,’” while “Federalists were equally disappointed with the Court’s decision because it contradicted their earlier assurances.”248Clark, supra note 218, at 1886–87.

It is quite plausible, then, that a constitutional amendment restoring the Federalists’ assurances that were eroded by Chisholm but which left the first tier of Article III untouched would have attracted broad support from both Federalists and Antifederalists. There is, in contrast, less reason to believe that Federalists and Antifederalists alike would have overwhelmingly supported handicapping the federal courts’ ability to decide constitutional, treaty, ambassadorial, and admiralty disputes on the merits (i.e., the very Cases where it was seen as “so necessary and expedient that the judicial power should correspond with the legislative . . . that it has not been objected to”).249Madison, The Debates in the Several State Conventions, supra note 156, at 532; see also Mason, supra note 174, at 523 (similarly indicating that federal courts “ought to have judicial cognizance in all cases” concerning these categories).

Among commentators who contend that there was, despite appearances, a political consensus in favor of a broad elimination of federal jurisdiction across even the first-tier Cases, one oft-discussed piece of evidence is an amendment to Strong’s proposal put forth by the Antifederalist Senator Albert Gallatin of Pennsylvania. Gallatin moved the Senate to insert an exception for “cases arising under treaties”:

The judicial power of the United States, except in cases arising under treaties, made under the authority 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.250Proceedings of the United States Senate, Jan. 14, 1794, reprinted in 5 Documentary History, supra note 199, at 617 (emphasis added).

The Senate voted overwhelmingly to reject the Gallatin proposal.251Only two Senators—Gallatin and Rutherford of New Jersey—voted for Gallatin’s amendment. See Michael T. Schwaiger, A Visible Radiation: Interpreting the History of the Eleventh Amendment as Foreign Policy to Circumscribe the Treaty Power, 2007 Duke J. Const. L. & Pub. Pol’y 217, 239 n.105. There are a number of ways to understand the Senate’s decision. But it is a mistake to afford any one of them much weight.

Some commentators view the rejection by the Senate as decisive evidence that it intended the Eleventh Amendment, as Strong had written it, to restrict the judicial Power over Cases arising under treaties, and, by implication, other federal question disputes.252See Clark, supra note 218, at 1892–93; Baude & Sachs, supra note 45, at 636–37; Schwaiger, supra note 251, at 239-40, 257-58. But other explanations abound.253See Fletcher, supra note 5, at 1285–87; Gibbons, supra note 63, at 1932–38; James E. Pfander & Jessica Dwinell, A Declaratory Theory of State Accountability, 102 Va. L. Rev. 153, 178, 178 n.96 (2016). Another possibility, discussed in detail below, is that Strong’s version of the Amendment was appropriately read to not affect any Cases arising under Article III’s first tier including disputes arising under treaties. And if that is how Senators understood it, then Gallatin’s express carve-out for just treaty Cases would have bungled the drafting and imperiled the continued extension of judicial Power to “all” constitutional, ambassadorial, and admiralty disputes.

Indeed, it is hard to see how Gallatin’s proposal could be read to do anything besides obliterate the judicial Power over everything aside from treaty Cases. Thus, the only reason to vote for the Gallatin proposal would be if a Senator strongly felt that treaties alone should be capable of overriding state sovereign immunity. It is exceedingly dubious that any member of the founding generation held that view. Why prefer a treaty to the Constitution itself? If the concern is preserving relationships with foreign powers, why exclude ambassadorial or admiralty Cases?

In short, Gallatin’s proposal was fundamentally silly. Of course, the Senate, by an overwhelming margin, voted against it. It is thus a fool’s errand to suggest that the Senate’s rejection of Gallatin’s proposal supports any particular reading of the Eleventh Amendment.

Nonetheless, some commentators, citing Vassall, have speculated that those voting against Gallatin’s proposal must have affirmatively intended to qualify the judicial Power over treaty Cases given the widespread sentiment that Vassallshould not be permitted to sue Massachusetts without consent.254See Lash, supra note 77, at 1586; Nelson, supra note 5, at 1603–04; see also Lawrence C. Marshall, Fighting the Words of the Eleventh Amendment, 102 Harv. L. Rev. 1342, 1357–59 (1989); Baude & Sachs, supra note 45, at 636–37. But there are a number of holes in this account. For one, Senator Strong proposed his amendment before the Vassall complaint was filed; like Representative Sedgwick, Strong submitted his amendment soon after the Chisholm opinion came down. And even more significantly, Vassall, from all appearances, was not a dispute “arising under” a treaty. Although Vassall’s lawyers discussed defensively invoking the Treaty of Paris if Massachusetts sought to defend the action by pointing to a state statute authorizing the confiscation of Loyalist property, the Treaty of Paris, as written, gave Vassall neither a cause of action255See Fletcher, supra note 5, at 1273–75. nor a federal remedy.256See id.; see also Ware v. Hylton, 3 U.S. (3 Dall.) 199, 260–61 (1796) (opinion of Iredell, J.) (explaining that the Treaty of Paris contained no procedures for a court to execute a judgment). Further, there is no evidence that the Vassall complaint purported to set forth a treaty-based cause of action (which would have been doomed to fail in any event). The real threat, instead, was that Vassall and other suspected Loyalists with confiscated property might sue States on what Governor Hancock had called “matters of civil contract,”257See Governor Hancock’s Speech, supra note 236. such as the state-law claims of “Detinue, or Trover & Conversion” that were mentioned in Vassall’s correspondence with his lawyers.258Vassall v. Massachusetts, supra note 230, at 358–59. In short, from all appearances, a constitutional amendment addressing only the Chisholm Court’s understanding of Article III’s Diversity Clauses would have adequately protected Massachusetts against the Vassall litigation, without also risking a state of affairs whereby “treaties might be substantially frustrated by regulations of the States.”259The Federalist No. 42 (James Madison); see also James Iredell, Answers to Mr. Mason’s Objections to the New Constitution Recommended by the Late Convention at Philadelphia, Jan. 8, 1788, excerpted in 2 McRee, supra note 116, at 203 (“It seems to result unavoidably from the nature of the thing, that when the constitutional right to make treaties is exercised, the treaty so made should be binding upon those who delegated authority for that purpose. If it was not, what foreign power would trust us?”).

As for the Vassall litigation itself, Massachusetts never entered an appearance, and the Supreme Court never rendered a decision, most likely because Vassall failed to prosecute the case.260Vassall v. Massachusetts, supra note 230, at 369. Once Congress voted in favor of the Eleventh Amendment, Vassall wrote an associate: “my Action falls of Course.”261Id. (quoting Vassell). He was doubtless right as a legal matter—at least once the Eleventh Amendment was actually ratified—and the question, now, is precisely why the Amendment had that effect.

B.      Returning to Text: A Two-Tiered View of the Eleventh Amendment

As ratified, the Eleventh Amendment provides: “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.”262U.S. Const. amend. XI. Three interpretations of this text dominate the literature.263For a more comprehensive survey of the varying modalities of Eleventh Amendment interpretation, see Baude & Sachs, supra note 45, at 611–13. This Article offers a fourth.

The broad interpretation. The modern Court along with scholars like Kurt Lash and Sachs (and Nelson to a certain extent) have read the Eleventh Amendment less for its text and more for its confirmation of a historical “presupposition” that the antecedent law of sovereign immunity operates as a background constitutional constraint.264See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Lash, supra note 77, at 1695 (the Eleventh Amendment merely showed that “Chisholm . . . had erroneously construed Article III”); Sachs, supra note 13, at 1871–72 (arguing that Chisholm was wrongly decided for similar reasons). For a slightly different interpretation that arrives at a materially similar conclusion, see Nelson, supra note 5, at 1613 n.253. This is a “broad” presupposition, in the sense that the antecedent law of sovereign immunity is understood to intrude on even the first tier of Article III.265See Sachs, supra note 13, at 1872 (the Eleventh Amendment proved that “common law rules protecting states from private suits remained in force for every head of jurisdiction”).

The literal reading. Some scholars as well as Justices Thomas and Gorsuch read the Eleventh Amendment as expressly barring federal courts from hearing any dispute in which a State is sued by a citizen of another State. “Any means any” on this account; it matters not if the dispute concerns a federal question, or even, in a departure from current doctrine, if the defendant State consents.266See, e.g., Marshall, supra note 254, at 1346; Baude & Sachs, supra note 45, at 612–13; Coan, supra note 244, at 2516–17; see also PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2264 (2021) (Gorsuch, J., dissenting).

This literal reading of the Eleventh Amendment, best associated with Professor Lawrence Marshall and now more recently with Baude and Sachs, understands the Amendment as an independent and highly specific restriction on the scope of judicial Power. Whether the antecedent law of sovereign immunity constitutes another limitation is an entirely separate question, which the literal reading itself does not necessarily purport to answer.267See Baude & Sachs, supranote 45, at 618 (“[T]he Amendment neither codified nor repealed the preexisting law of sovereign immunity.”); Manning, supra note 6, at 1680 n.68 (describing the view). As Justice Gorsuch recently put the point, it is entirely possible for States to have both a literal “Eleventh Amendment immunity . . . derive[d] from the text of the Eleventh Amendment” and a broad “structural immunity” sounding in antecedent, common-law doctrines that one presumes to be incorporated by the Constitution as a limit on Article III judicial Power.268PennEast Pipeline, 141 S. Ct. at 2264 (Gorsuch, J., dissenting); see also id. (citing Baude & Sachs, supra note 45, at 612).

The diversity interpretation. A large number of scholars, and some dissenting Justices on the modern Court, read the Eleventh Amendment as an amendatory (as opposed to explanatory) one, which edits the language in the State-Citizen and Foreign-State Diversity Clauses.269See, e.g., Seminole Tribe, 517 U.S. at 111–12 (Souter, J., dissenting); Fletcher, supra note 5, at 1262, 1262 n.9; Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 Sup. Ct. Rev. 1, 8–12. While there are other varieties, this Article focuses on what Judge Fletcher has called “the most plausible” version of the diversity interpretation. Fletcher, supra note 5, at 1263. In Justice Brennan’s seminal formulation of the diversity interpretation, the Eleventh Amendment alters these two Clauses alone such that a State can no longer “be sued in federal court where the [sole] basis of jurisdiction [i]s that the plaintiff [i]s a citizen of another State or an alien.”270Atascadero St. Hosp. v. Scanlon, 473 U.S. 234, 287 (1985) (Brennan, J., dissenting) (citation omitted); see also Fletcher, supra note 5, at 1264. Some, but not all, diversity theorists contend that States can consent to a diversity suit. SeeSeminole Tribe, 517 U.S. at 127–28.

The diversity interpretation of the Eleventh Amendment, much like the literal reading, does not itself address whether States enjoy constitutionalized sovereign immunity privileges in disputes arising under other provisions in Article III.271See Atascadero, 473 U.S. at 279 (Brennan J., dissenting); see also Fletcher, supra note 5, at 1286–87, 1287 n.130, 1298; Gibbons, supra note 63, at 2004. That said, many diversity theorists also maintain that the reasoning underlying Chisholm emerged largely unscathed, such that under Article III there is “no constitutional principle of state sovereign immunity.”272Atascadero, 473 U.S. at 259 (Brennan J., dissenting); see also Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1466–75 (1987); Gibbons, supra note 63, at 1899. But see Fletcher, supranote 5, at 1299 (declining to make this jump).

The two-tiered view. This Article advocates for reading the Eleventh Amendment as an explanatory reminder, coming in the wake of Chisholm and Vassall, that the second tier of Article III never extended the judicial Power to “all Controversies.” By admonishing the Court that the “Judicial Power . . . shall not be construed” to extend to some Controversies—namely, those “commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State”—the text of the Eleventh Amendment announces the precise qualification that Attorney General Randolph and the Chisholm majority wrongly thought was absent from the original Article III.273See U.S. Const. amend XI.

In other words, the Eleventh Amendment clarifies that under the Diversity Clauses, there always was, as Marshall, Madison, Iredell, and others had insisted, “a difficulty in making a state defendant, which does not prevent its being plaintiff.”274Marshall, supra note 25, at 556. Further, by clarifying the scope of the “some” that is impliedly present in the second tier of Article III, the Eleventh Amendment effectively ratified the two-tiered understanding effectively put forward by Marshall, Hamilton, Madison, and Iredell.

For three reasons, the two-tiered view represents a highly plausible account of the Eleventh Amendment.

First, the two-tiered view offers a reasonable account of the events leading up to the Eleventh Amendment. Many jurists view the Amendment as an “explanatory” one, and for good reason. It seems likely that its framers meant to elevate the positions of Marshall, Madison, Hamilton, and Iredell that Article III, as originally written, preserved the ability of States to resist suits by individuals seeking to compel the payment of wartime debt.275See, e.g., Clark, supra note 218, at 1875, 1887–88 (“The Eleventh Amendment was drafted to reinstate the narrow construction of Article III promised by Federalists during the ratification debates . . . .”). After all, Chisholm expressly rejected that quadrumvirate’s careful interpretation of the Diversity Clauses, reading them instead to be “unqualified” and “in no respect indicating who is to be Plaintiff or who Defendant.”276Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 420–21 (1793). The Eleventh Amendment responded to the Court in its own terms, and its text—“the judicial Power shall not be construed to extend” (which was chosen by the Senate over the simpler “shall not extend”277Compare Resolution in the United States Senate, Feb. 20, 1793, reprinted in 5 Documentary History, supra note 199, at 607 (“shall not extend”), with Resolution in the United States Senate, Jan. 2, 1794, reprinted in 5 Documentary History, supra note 199, at 613 (“shall not be construed to extend”).)—even reflects that the error was one of misconstruction.278See Clark, supra note 218, at 1892; Fletcher, supra note 5, at 1061–62; see also Hans v. Louisiana, 134 U.S. 1, 11 (1890) (“This amendment . . . actually reversed the decision of the Supreme Court. . . . The Supreme Court had construed the judicial power as extending to such a suit, and its decision was thus overruled.”). And thus, as Justice Scalia has persuasively written, the Eleventh Amendment “reflected . . . a repudiation of the premise upon which [Chisholm] was based, namely, that Article III’s jurisdictional grants over the States are unlimited by the doctrine of sovereign immunity.”279Pennsylvania v. Union Gas Co., 491 U.S. 1, 32 (1989) (Scalia, J., concurring in part and dissenting in part); see also, e.g., Baude & Sachs, supra note 45, at 624 (“The Amendment was drafted to solve a pressing problem: [Chisolm’s] flawed inference that Article III’s heads of subject-matter jurisdiction—particularly the state-diversity provision—had repealed the states’ personal immunities.”).

At the same time, however, the two-tiered view arguably accommodates these same historical premises better than Scalia’s own broad interpretation of the Eleventh Amendment. Proponents of the broad interpretation attempt to derive their “presupposition” that the Constitution incorporates the antecedent law of sovereign immunity in large part from Hamilton’s The Federalist No. 81, from Marshall’s and Madison’s remarks during the Virginia ratifying convention, and from Iredell’s Chisholm dissent.280See, e.g., Allen v. Cooper, 140 S. Ct. 994, 1000 (2020); Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1495 (2019); Alden v. Maine, 527 U.S. 706, 727 (1999) (relying on “the views expressed by Hamilton, Madison, and Marshall . . . and by Justice Iredell”). But proponents of the broad interpretation appear to misinterpret these sources in contending that “the most natural reading” of them “would preclude all federal jurisdiction over an unconsenting State.”281Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 70 (1996) (emphasis added). Au contraire! As we have seen, these members of the founding generation only suggested that state sovereign immunity would limit the judicial Power over second-tier Controversies.282See infra Section II.B.1.a. By way of contrast, Marshall remarked that in Article III’s “first class,” the judicial Power covered “all the cases described, without making in its terms any exception whatever”;283Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 378 (1821) (Marshall, C.J.). Hamilton insisted that the Constitution, in limited instances, did permit an “alienation of State sovereignty”;284The Federalist No. 81 (Alexander Hamilton). Madison contended that States were subject to “control of the general government” and their powers “effectual only [to the extent] they are not contradictory to the general Confederation”;285Madison, The Debates in the Several State Conventions, supra note 156, at 461–62. and Justice Iredell opined that the antecedent law of sovereign immunity was relevant only to that part of Article III which “uses the word ‘controversies’ only.”286Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 431–32 (1793) (Iredell, J., dissenting).

Second, moving beyond history, the two-tiered view can accommodate the strangely limited text of the Eleventh Amendment to an extent matched only by the literal interpretation. If the Eleventh Amendment’s framers wished to solidify a broad sovereign immunity doctrine, they could have ratified Representative Sedgwick’s proposal and removed the judicial Power from “any” case by “any person” suing a State.287See Proceedings of the United States House of Representatives, Feb. 19, 1793, reprinted in 5 Documentary History, supra note 199, at 605–06. Congress instead adopted Senator Strong’s proposal, which, of course, mentioned only suits by out-of-state citizens. And there is a near-perfect match between the two-tiered view and the text of the Amendment as ratified.288Resolution in the United States Senate, Feb. 20, 1793, reprinted in 5 Documentary History, supra note 199, at 607–08. The two-tiered view avers that Chisholm got it wrong in construing the judicial Power to extend to all Controversies between States and out-of-state citizens (and similarly to citizens of foreign states). The Eleventh Amendment says essentially the same thing: it directs that the judicial Power “shall not be construed to extend” to Controversies commenced by diverse citizens against States.289U.S. Const. amend XI. Why not mention suits commenced by nondiverse, in-state citizens? Easy: because Article III’s second tier never extended the judicial Power to Controversies between a State and its own citizens in the first place.290Poindexter v. Greenhow, 114 U.S. 270, 337 (1885) (Bradley, J., dissenting) (“[T]he evident reason [for this limited text] is[] that the judicial power was not granted to the United States by the original Constitution in such cases: hence, as it was not granted, it was not deemed necessary to prohibit it.”).

The only potential textual strike against the two-tiered view is the Eleventh Amendment’s use of the phrase “any suit” as opposed to “all” or “every” suit, when declaring the appropriate construction of the judicial Power’s extent. The “any suit” phrasing might reflect that States cannot consent to lawsuits brought by diverse citizens notwithstanding that the antecedent law of sovereign immunity would generally permit these suits to go forward with consent.291E.g., United States v. Lee, 106 U.S. 196, 205 (1882) (“[F]rom the time of Edward the First until now the King of England was not suable in the courts of that country, except where his consent had been given . . . .” (emphasis added)). Even assuming, arguendo, that this reading is correct, it is important to observe that the Eleventh Amendment is suggesting that a “some” be read into the Diversity Clauses, given that the Amendment is on any account of it preserving a State’s ability to sue as plaintiff. But in any event, and contrary to the literal reading, the Framers almost certainly meant to deny the judicial Power to just some suits filed against States by diverse citizens; that is, to direct only that the judicial Power not extend to “all” such suits. Indeed, practically everyone outside of proponents of the literal interpretation has read the Eleventh Amendment that way, so as to preserve a both federal courts’ authority to hear diverse plaintiffs’ suits on matters of state law with a State’s consent as well as federal judicial authority to resolve federal question cases involving these sets of litigants.292See Coan, supra note 244, at 2516 (noting “virtual unanimity” on this point).

There are a number of dimensions along which one might justify doing so. One is the textual variation in Article III. As one of the lawyers in Cohens v. Virginia put the point, it would seem that “[t]he term ‘all cases,’ means all, without exception; and the States of the Union cannot be excepted, by implication . . . . [Whereas the Eleventh] amendment to the constitution respecting the suability of States, merely applies to the other class of cases.”293Id. at 348 (argument of Atty. David Ogden). In a similar vein, Justice Souter has observed that the text of the Eleventh Amendment “precisely track[s] the language in Article III providing for citizen-state diversity jurisdiction,” making it odd to read it as also modifying, for example, the Federal Question Clause.294Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 110 (1996) (Souter, J., dissenting). Further, given that the historical record suggests that the Eleventh Amendment was enacted “primarily to protect States from being sued for their debts,”295Id. at 90 n.13; see also, e.g., Fletcher, supra note 5, at 1271–73, 1280–82, 1292–93. Some have contested this point, arguing that the Eleventh Amendment needed to impede federal question suits, such as those arising under a treaty, to prevent States from being sued by British creditors under the Treaty of Paris. See Calvin R. Massey, State Sovereignty and the Tenth and Eleventh Amendments, 56 U. Chi. L. Rev. 61, 67 (1989). But that is simply not the case, for reasons Justice Iredell explained in 1796. See Ware v. Hylton, 3 U.S. (3 Dall.) 199, 265–66 (1796) (explaining that a “State [would be politically] answerable to the United States” for a violation of the Treaty of Paris, as the Treaty set forth no mechanism for a court to execute a judgment under it). it also seems significant that this concern regarding compulsory debt collection could adequately be addressed by eliminating the judicial Power over state-law actions against nonconsenting States. After all, federal law, including the Treaty of Paris and (as will be seen) the Constitution’s Contracts Clause, did not at that time provide for any compulsory damages recoveries against States.296It is also worth pointing out that a literal interpretation of the Eleventh Amendment clashes with unblinking Supreme Court doctrine acknowledging that the federal judicial Power allows the Supreme Court to exercise appellate jurisdiction over suits filed by out-of-state citizens or foreign subjects against States. See Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L.J. 1, 6–7 (1988); Meltzer, supra note 269, at 11–12.

The literal reading, in contrast, insists that “any suit” really means “any suit,” and whenever an out-of-state citizen sues a State—even for a violation of the Constitution, or even if a State consents—federal courts cannot adjudicate the dispute.297See, e.g., Baude & Sachs, supra note 45, at 614. But oddly enough, the literal view also suggests that federal courts can exercise their judicial Power over such disputes when they are prosecuted by nondiverse citizens. To contend, as the literal view does, that the Eleventh Amendment eviscerates federal question jurisdiction—as well as the Supreme Court’s ability to review state court judgments involving federal issues—but only on the happy accident that a State is sued by an out-of-state citizen is “anomalous,” as the Supreme Court once put it.298Hans v. Louisiana, 134 U.S. 1, 10–11 (1890); accord Pennsylvania v. Union Gas Co., 491 U.S. 1, 31 (1989) (Scalia, J., concurring in part and dissenting in part); William P. Marshall, The Diversity Theory of the Eleventh Amendment: A Critical Evaluation, 102 Harv. L. Rev. 1372, 1378, 1378 n.44 (1989). Moreover, the literal view also forgets why the judicial Power extends to “all” federal questions in the first place. The need for the “judicial power [to] correspond with the legislative”—and the founding generation’s related desire to protect Cases “affect[ing] the interest of the United States” from the procedural whims of States—is hardly less serious when a diverse citizen (or even a foreign ambassador) invokes federal protection than when an in-state one does.299See infra Section II.B.1 (discussing James Madison’s remarks at the Virginia ratifying convention); Madison, The Debates in the Several State Conventions, supra note 156, at 532.

The Supreme Court has found the literal reading unsatisfying for another reason. If the Eleventh Amendment did, in fact, strip the federal courts of judicial Power in “any case” within its terms, a State would be unable to cure an Eleventh Amendment defect by consent.300See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 110, 127–28 (1996); Coan, supranote 244, at 2522; Fletcher, supra note 5, at 1092–93; see also Mansfield C. & L. M. Ry. Co. v. Swan, 111 U.S. 379, 384 (1884) (“[T]he judicial power of the United States must not be exerted in a case to which it does not extend, even if both parties desire to have it exerted.” (citing Cutler v. Rae, 48 U.S. (7 How.) 729, 732 (1849))). But, at least as a precedential matter, the Court has unwaveringly held that States can consent to diverse citizens’ suits.301Union Gas, 491 U.S. at 22 (plurality opinion) (“We never have held . . . that Article III does not permit [private] suits where the States have consented to them.”). Baude and Sachs have contended that the Court’s jurisprudence on this score “demonstrates inattention to the Eleventh Amendment’s text,” Baude & Sachs, supra note 45, at 655, but the fact of its precedent remains, and the two-tiered view can accommodate both this precedent and the text of the Eleventh Amendment.

Notably, the two-tiered view (and to a more limited extent the diversity interpretation)302These explanations are inevitably grounded in history alone. Cf. Emps. of the Dep’t of Pub. Health & Welfare v. Missouri Pub. Health Dep’t, 411 U.S. 279, 310 (1973) (Brennan, J., dissenting) (“None has yet offered, however, a persuasively principled explanation for [the consent exception] in the face of the wording of the [Eleventh] Amendment.”). can provide an explanation for the States’ ability to consent to such suits. Under the original text of Article III, as confirmed by the Eleventh Amendment, not “all” state-law suits by diverse citizens can proceed against States but “some” can, namely, those that are consonant with the antecedent law of sovereign immunity. This antecedent law allowed sovereigns to consent to suits against them.303See, e.g., United States v. Lee, 106 U.S. 196, 205 (1882); Baude & Sachs, supra note 45, at 626 (“Historically, if a court lacked power to compel a party’s attendance, that problem was cured by the party’s voluntary appearance. The same doctrine applied to sovereign immunity.”). This could explain why Madison, in interpreting the State-Citizen Diversity Clause, said that “[i]t is not in the power of individuals to call any state into court. . . . [But] if a state should condescend to be a party, [a federal] court may take cognizance of [the suit].”304Madison, The Debates in the Several State Conventions, supra note 156, 533. Accordingly, insofar as the Eleventh Amendment meant to restore a Madisonian construction of Article III, that is precisely the result that should and would follow under the two-tiered view. The literal view? Not so much.

Many scholars turn to the diversity interpretation after rejecting the literal view, but in so doing they appear to lose sight of the original Constitution’s protection for state sovereign immunity. As the Supreme Court has explained, and as the text reflects, the Eleventh Amendment was not really an amendment or an “alteration of the Constitution, but [instead was] an authoritative declaration of its true construction.”305Respublica v. Cobbet, 3 U.S. (3 Dall.) 467, 472 (1798) (argument of counsel); accord Alden v. Maine, 527 U.S. 706, 722 (1999). Thus, by all appearances, the Amendment meant to confirm the operation of the antecedent law as an original constitutional principle, in line with Marshall’s and Iredell’s insistence that the “words” of the Constitution, as enacted, made it so. The textual basis for Marshall’s and Iredell’s contention, we have seen, lies in the two-tiered structure of Article III; the diversity theorists thus err in thinking that the significance of the Eleventh Amendment was instead to create a brandnew textual qualification for just two of the nine heads of judicial Power.

There is a final consideration that favors the two-tiered view of the Eleventh Amendment, and that is precedent. After the Eleventh Amendment’s ratification, the Supreme Court proceeded to adopt a two-tiered reading of Article III—and a two-tiered theory of sovereign immunity—as the law of the land.

C.      Two Tiers in Precedent, Part II

The Eleventh Amendment, by its terms, did not redefine the “judicial Power,” but instead directed the appropriate construction of its “exten[t].”306U.S. Const. amend. XI. The Supreme Court, recognizing as much, continued to maintain that “judicial Power” meant the authority of a federal court to render a final and binding judgment under the applicable law so long as it otherwise had jurisdiction. And so, for example, in 1800, Marshall gave a speech to Congress in which he said that for “the judicial power” to operate, “[t]here must be parties to come into court, who can be reached by its process, and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit.”307Marshall, supra note 111, at 17. Similarly, in Bank of United States v. Halstead,30823 U.S. (10 Wheat.) 51 (1825). the Supreme Court unanimously declared that the “judicial power would be incomplete, and entirely inadequate to the purposes for which it was intended, if, after judgment, it could be arrested in its progress, and denied the right of enforcing satisfaction in any manner.”309Id. at 53. Additional examples abound.310See, e.g., Kendall v. United States, 37 U.S. (12 Pet.) 524, 622 (1838) (explaining that “judicial power” includes “the means employed in carrying jurisdiction into execution”); United States v. Percheman, 32 U.S. (7 Pet.) 51, 90, 92 (1833) (holding that a land commission was “not a court exercising judicial power” as it was not “deciding finally on the rights of parties” in a “bind[ing]” manner); Cohens v. Virginia, 19 U.S. (6 Wheat. ) 264, 388 (1821) (describing the judicial Power as “the power of construing the constitution and laws of the Union in every case, in the last resort, and of preserving them from all violation from every quarter, so far as judicial decisions can preserve them”); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 335, 345 (1816) (explaining that “the absolute right of decision, in the last resort, must rest” with the federal judiciary and thus “[a] final judgment of this court is . . . conclusive upon the parties, and [cannot] be re-examined”).

Moreover, just as all Justices (Iredell included) indicated in Chisholm, the Court continued to suggest that wherever this judicial Power extended, antecedent sovereign immunity rights did not persist. A foundational decision on this score, known as Olmstead’s Case,311United States v. Peters (“Olmstead’s Case”), 9 U.S. (5 Cranch) 115 (1809). arrived in 1809. A “minor insurrection” had taken hold in Pennsylvania after a federal judge sitting in admiralty entered judgment favoring a Connecticut citizen over a Pennsylvania citizen.312See Baude, supra note 18, at 1824 (discussing Olmstead’s Case). The Pennsylvania legislature hoped to interfere with this judgment and passed a law directing the governor to seize the contested funds, which, for complex reasons, were sitting in the hands of the State’s former treasurer.313For an overview, see Peters, 9 U.S. at 118–27; Atascadero St. Hosp. v. Scanlon, 473 U.S. 234, 291–92 (1985) (Brennan, J., dissenting). In Olmstead’s Case, the Supreme Court deemed Pennsylvania’s law invalid on the ground that Article III extended the “judicial Power” to the dispute as it was brought “against [a] citizen[] of another state” and not “against the state or its [current] treasurer” and was therefore unaffected by the Eleventh Amendment.314Peters, 9 U.S. (5 Cranch) at 139. Because the judicial Power reached the dispute, the Court reasoned that Pennsylvania could not undermine the federal judgment by invoking a purported “constitutional right to resist the legal process which may be directed in this cause.”315Id. at 141. Some have characterized the dispute in Olmstead’s Case as one in admiralty, where the judicial Power extends to “all Cases.” See Atascadero, 473 U.S. at 291–92 (Brennan, J., dissenting); Fletcher, supra note 5, at 1079 (so characterizing Olmstead’s Case). But even if, as the opinion itself suggests, the Olmstead’s Caseimplicates only the Citizen-Citizen Diversity Clause, sovereign immunity would still be no bar, as neither the State nor its treasurer were sued in their official capacities. See Peters, 9 U.S. (5 Cranch) at 139 (explaining that “it remains the duty of the courts . . . to decide all cases brought before them by citizens of one state against citizens of a different state, where a state is not necessarily a defendant” and that when a State simply asserts an “interest” in a “controversy between individuals,” that cannot “oust the court of its jurisdiction”).

In a similar vein, in Martin v. Hunter’s Lessee31614 U.S. (1 Wheat.) 304 (1816). the Court professed that “the judicial power of the United States” was meant “to act not merely upon individuals, but upon states; and to deprive them altogether of the exercise of some powers of sovereignty.”317Id. at 328. Martin is also notable for its explicit recognition of Article III’s “all Cases” and “Controversies” variation, but the Martin opinion—written with Chief Justice Marshall recused—did not appear to discuss the issue of sovereign immunity and also contains passages relevant to the mandatory-jurisdiction theory advanced by Amar. See Akhil Reed Amar, The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499, 1502 n.9 (1990); Meltzer, supra note 90, at 1579 n.33. And in Bank of United States v. Halstead, the Court again deemed a state law inconsistent with Article III to the extent it purported to interfere with the execution of federal judgments.318Bank of United States v. Halstead, 23 U.S. (10 Wheat.) 51, 64 (1825); see also, e.g., Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 49 (1825) (explaining that when a State tries to “regulat[e] proceedings in the Courts of the Union, or of their officers in executing their judgments” it transgresses the judicial Power); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819) (“The nation, on those subjects on which it can act, must necessarily bind its component parts.”).

The evolving and developing doctrinal question embedded in these precedents, in other words, was not so much the meaning of judicial Power in the wake of the Eleventh Amendment but its continued extent. And to answer that question, the Supreme Court, in the space of two cases, adopted a two-tiered reading of Article III.

The first case was Cohens v. Virginia, a unanimous opinion by Chief Justice Marshall from 1821. There, Cohens, a Virginia citizen, attempted to appeal a state court conviction to the U.S. Supreme Court that he contended was invalid on federal preemption grounds.319Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 265–69 (1821). Cohens was convicted for selling national lottery tickets. A Virginia act proscribed selling any tickets for lotteries that were not State sanctioned. Seeid. Virginia resisted the Court’s appellate jurisdiction by citing its purported sovereign right “not [to be] suable except by its own consent”: “It is an axiom in politics, that a sovereign and independent State is not liable to the suit of any individual, nor amenable to any judicial power, without its own consent.”320Id. at 303 (emphasis added). On account of its sovereign immunity, the State insisted, “the judicial power of the United States d[id] not extend” to Cohens’s appeal.”321Id.

The Supreme Court disagreed with Virginia’s position. It first observed that the Eleventh Amendment was necessarily irrelevant to the dispute, as Cohens was an in-state citizen.322See id. at 412. By accordingly viewing Cohens’s claim as “not within the Amendment, but . . . governed entirely by the Constitution as originally framed,” the Court proceeded to observe that Article III contains “two classes of cases.”323Id. at 291, 412. The first extends the judicial Power “of deciding, in the last resort” and which may “legitimately control all individuals or governments within the American territory” to “all cases described, without making in its terms any exception whatever.”324Id. at 378, 414, 416 (emphasis added). Because Cohens’s federal preemption contention “arose under” federal law and thus implicated this “first class” of Article III, it followed that Virginia’s invocation of sovereign immunity failed:

[A]re we at liberty to insert in this general grant, an exception of those cases in which a State may be a party? Will the spirit of the constitution justify this attempt to control its words? We think it will not. . . .

[W]hy should these cases be excepted from that provision which expressly extends the judicial power of the Union to allcases arising under the constitution and laws?325Cohens, 19 U.S. (6 Wheat.) at 382–83, 392.

Cohens became the first in a series of opinions holding that state sovereign immunity did not survive the unqualified language of Article III’s “first class,”326Ten years later, Justices Story and Thompson reached a similar result in a dispute they characterized as “arising under” a treaty. See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 52, 69 (1831) (Thompson, J., dissenting) (Story, J., joining in dissent) (explaining that in some instances a nonconsenting “state of this union may be sued by a foreign state” since “[u]nder the constitution, the judicial power of the United States extends expressly to all cases in law and equity, arising under. . . treaties”). Justice Baldwin agreed with the sentiment, but he read the particular treaty’s provisions as not authorizing the Cherokee nation to “call[] into [otherwise] legitimate action the judicial power of this union.” Id. at 39 (Baldwin, J., concurring). Chief Justice Marshall, writing for the majority, disposed of the case on wholly separate grounds. See id. at 16. The next term, however, Marshall agreed that an American citizen could take an appeal against a State on the ground that his criminal conviction was “repugnant to . . . treaties of the United States.” Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 562–63 (1832). Cohens’s understanding of the Federal Question Clause cropped up again in Ableman v. Booth, 62 U.S. (21 How.) 506 (1859). The Court in Ableman explained that States had in certain instances “bound themselves to submit to the decision of this court, and to abide by its judgment,” and had done so, in particular, by ratifying the Federal Question Clause which the Court highlighted for “leaving out . . . words of restriction.” Id. at 519–20. at least when claims by in-state citizens were at issue (thus obviating any potential clash with a literal understanding of the Eleventh Amendment).327Eventually the Marshall Court heard an appeal by an out-of-state citizen against a State which involved claims arising under a treaty and the Constitution. Marshall wrote, without discussing the Eleventh Amendment, that “none [c]ould question the jurisdiction of this court” as the jurisdictional point had been “decided, in the case of Cohens.” Worcester, 31 U.S. (6 Pet.) at 562. Although Worcester is valuable in reflecting on Marshall’s understanding of the meaning of Article III in the wake of the Eleventh Amendment’s ratification, it is not a decisive rejection of the literal view; as Baude and Sachs have pointed out, the case was “commenced or prosecuted” by Georgia. See Baude & Sachs, supra note 45, at 655. Chief Justice Marshall appeared to justify Article III’s partial elimination of state sovereign immunity in the “first class of cases” by observing in Cohens that “States are constituent parts of the United States” “for some purposes sovereign, for some purposes subordinate,” and it is not “unreasonable that the judicial power should be competent to give efficacy to the constitution[] [and the] laws of the [federal] legislature.”328Cohens, 19 U.S. (6 Wheat.) at 414.

After Cohens, the residual issue, of course, was the status of state sovereign immunity in what Marshall had termed “the second class” of Article III.329Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 744 (1838).

On this score, Marshall had already staked out his view at the Virginia ratifying convention: under the Diversity Clauses, at least, there was “a difficulty in making a state defendant, which does not prevent its being plaintiff” pursuant to “the words” of these Clauses. Dicta in Cohens indicated that Marshall still maintained this view, as he again affirmed that federal courts can “have no jurisdiction over [a] contract” between a State and an individual; “[t]hey cannot enforce it, nor judge of its violation.”330Cohens, 19 U.S. (6 Wheat.) at 403.

This feature of the Cohens opinion is frequently overlooked. Madison himself, in private correspondence expressing skepticism about the decision, wrote that the Cohens “Court seems not to have adverted at all to the expository language held when the Constitution was adopted.”331Madison, supra note 164. For further discussion of Madison’s letter, see id. But Cohens’s discussion of the lack of federal jurisdiction over contractual claims against States was certainly such an “adversion” and, as we have seen, tracks Marshall’s position from the Virginia ratifying convention precisely.

As for the Court itself, it opined on the second tier of Article III in 1838, shortly after Marshall’s death. The litigation at issue was Rhode Island v. Massachusetts, an original action in the Supreme Court which involved a boundary dispute under the State-State Controversy Clause that Massachusetts sought to dismiss on sovereign immunity grounds.332Rhode Island, 37 U.S. (12 Pet.) at 657. Massachusetts pointed out that in Article III “the word ‘all,’ which is prefixed to the other classes of cases” is “omitted” when the Constitution speaks of “controversies between two or more states.”333Id. at 672 (argument of James T. Austin). It followed, argued the State, that in this second class of Controversies there were “limitations” on the judicial Power, one of which was the antecedent law of sovereign immunity.334Id. at 673–74.

The Rhode Island Court accepted Massachusetts’s textual framework, but it arrived at a different conclusion about the operation of the antecedent law of sovereign immunity in the particular Controversy before it. Utilizing the now-familiar premise that an extension of judicial Power is inconsistent with sovereign immunity, the Court explained that “[t]he states waived their exemption from judicial power, as sovereigns by original and inherent right, by their own grant of its exercise over themselves in [certain] cases.”335Id. at 720. The Court then framed the question before it as whether the instant boundary dispute was “in the grant of judicial power.”336Id. at 731. It then put forward, definitively and in full, a two-tiered theory of sovereign immunity:

In Cohens v. Virginia, [we] held that the judicial power of the United States must be capable of deciding any judicial question growing out of the constitution and laws[,] . . . . [since] the clause [in Article III] relating to cases in law or equity, arising under the constitution, laws, and treaties, makes no exception in terms . . . .

If there be any exception it is to be implied against the express words . . . . [i]n the second class, [where] ‘the jurisdiction depends entirely on the character of the parties . . . . [T]he constitution does not, in terms, extend the judicial power to all controversies between two or more states. . . . It is, therefore, a question of construction whether the controversy in the present case is within the grant of judicial power. . . . In th[is] construction of the Constitution, we must look to the history of the times, and examine the state of things existing when it was framed and adopted, to ascertain the old law, the mischief and the remedy.337Id. at 658, 721, 744 (emphasis added) (citations omitted).

With this two-tiered framework in mind, and the instant boundary dispute implicating only the State-State Controversy Clause, Rhode Island proceeded to look to the “old law” to determine the scope of Massachusetts’s sovereign immunity privilege, much like Iredell had done in Chisholm.338Rhode Island, 37 U.S. (12 Pet.) at 723–24. But much to the State’s chagrin, the Court held that compulsory adjudication of the interstate boundary dispute wascompatible with pre-constitutional practice, because the National Government had equivalent authority to adjudicate boundary disputes between states under the Articles of Confederation.339See id. at 728 (“[D]efective as was the confederation in other respects, there was full power to finally settle controverted boundaries . . . .”); Articles of Confederation, art. IX (“The united states in congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more states concerning boundary, jurisdiction or any other cause whatever, which authority shall always be exercised [by means of appointing] . . . . commissioners or judges . . . . and the judgment and sentence of the court . . . . shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence, or judgment, which shall in like manner be final and decisive . . . .”). The Court reasoned that the qualified second tier of Article III signified that it was “capable of applying its judicial power” coextensively with “that preexisting power” 340Rhode Island, 37 U.S. (12 Pet.) at 731.; accordingly, it decided that the present controversy was “in the grant of judicial power.”341Id. (emphasis added). Thus, it declared, Massachusetts’s attempted invocation of its antecedent sovereign immunity rights was unavailing.342See id. at 731.

Rhode Island remained mindful of Iredell’s separate point that any “appropriate exercise of the judicial power, must . . . be made by laws passed by congress.”343Id. at 721. But here, unlike Chisholm, that condition was no bar to federal adjudication, because Congress had statutorily authorized both jurisdiction and a remedy.344Id. at 700, 722, 736 (discussing section 13 of the Judiciary Act of 1789). The Court probably located its remedial authority in section 14 of the same Act. See Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 433–34 (1793) (Iredell, J., dissenting) (discussing section 14, which allowed federal courts to issue writs “necessary for the exercise of [our] jurisdiction[] . . . agreeable to the principles and usages of law”).

From Chisholm to Cohens to Rhode Island, the two-tiered theory of sovereign immunity had effectively become the law of the land. And consistent with its two-tiered framework, the Supreme Court began to recognize that States didpossess constitutional sovereign immunity rights in suits prosecuted against them by individuals under the Diversity Clauses, thereby ensuring that Chisholm would not reoccur.345See Ex Parte Madrazzo, 32 U.S. (7 Pet.) 627, 632 (1833) (“It is a mere personal suit against a state to recover proceeds in its possession, and in such a case no private person has a right to commence an original suit in this court against a state.”).

Although the Court never explicitly stated that its two-tiered understanding of Article III was a product of the Eleventh Amendment, it came very close to doing so in the 1853 decision Bank of Ohio v. Knoop.34657 U.S. (16 How.) 369 (1854). In a careful passage, the Knoop Court explained that while the Constitution had initially “made States subject to the federal judicial power,” the Eleventh Amendment had “changed” that balance such that a State “being sued for a debt contracted in its sovereign capacity” was no longer “subject to the judicial power generally.347See id. at 390 (emphasis added). But, Knoop noted, this was different from exempting States from the judicial Power altogether. Indeed, the Knoop Court held that if “the federal Constitution” is implicated, “we [can still] inquire whether [a state] act complained of is in violation of it.”348Id. at 391. Lurking beneath this reasoning is a two-tiered view of the Eleventh Amendment.

One last doctrinal issue remained to be ironed out. Between Cohens and Knoop, the Court had established that in-statecitizens could bring federal claims against States notwithstanding the Eleventh Amendment, observing that its limited text could not apply to them. But if a diverse citizen sued a State on a federal claim, would the judicial Power continue to extend to “all Cases,” or had the Eleventh Amendment written a new exception into Article III? The Court’s musings on this question (essentially, whether to adopt both the two-tiered view and a literal view of the Eleventh Amendment) were inconsistent. At times, including in the Knoop opinion, the Court discussed the Eleventh Amendment in language that implicated only Article III’s second tier.349See id. at 386–90; see also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 406–07 (1821) (“Those who were inhibited [by the Eleventh Amendment] from commencing a suit against a State . . . were persons who might probably be its creditors.”); cf. Georgia v. Madrazo, 26 U.S. (1 Pet.) 110, 124 (1828) (suggesting that the Eleventh Amendment “does not extend to proceedings in admiralty”). At other points, the Court appeared to read the Eleventh Amendment literally to eliminate federal judicial Power over even federal claims brought by diverse citizens, but again did not issue a holding to that effect.350See Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 849–50 (1824) (suggesting in a federal question dispute that the court would have lacked jurisdiction if it were “a suit against a State, in the sense of . . . [t]he 11th Amendment”); see also Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378, 382 (1798) (editorial remarks reporting the Court’s “unanimous opinion, that . . . there could not be exercised any jurisdiction, in any case, past or future, in which a state was sued by the citizens of another state”); Baude & Sachs, supranote 45, at 640–41. But see Fletcher, supra note 5, at 1086 (offering an alternative interpretation of the Osborn statement). These inconsistencies were a prelude to trouble.

IV.      The Great Forgetting

No court or scholar on this side of the nineteenth century has discussed the two-tiered reading of Article III present in Rhode Island, Cohens, and Iredell’s Chisholm dissent. This Great Forgetting is probably the result of a combination of factors, such as the general dearth of private suits against States after the Eleventh Amendment’s ratification.351SeeAtascadero St. Hosp. v. Scanlon, 473 U.S. 234, 290 (1985) (Brennan, J., dissenting). Compounding the issue was the absence, until the late nineteenth century, of general federal question jurisdiction.352See Fletcher, supra note 5, at 1038, 1083–84 (discussing how during this era “only a few federal questions could have supported private suits against the states”). The brief exception to this rule was the Act of February 13, 1801, which was repealed in March of 1802. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 115 n.12 (1996) (Souter, J., dissenting). The paltry number of suits and the absence of such jurisdiction meant that it was almost procedurally impossible for the Supreme Court to further opine on the two-tiered theory of sovereign immunity. And thus, between the 1838 Rhode Island decision, and 1875, the year general federal question jurisdiction was introduced, the Court’s memory of its two-tiered doctrinal framework faded considerably.

A.      The Road to Hans v. Louisiana

The inputs of the two-tiered theory of sovereign immunity remained stable even as the Great Forgetting took hold. The Court continued to define the judicial Power as the power to render final, binding judgments under the applicable law.353See, e.g., United States v. Jones, 119 U.S. 477, 478 (1886) (explaining that a federal statute “denie[d] to [the court of claims] the judicial power” when it provided that “no money shall be paid out of the Treasury for any claim passed on by the Court of Claims till after an appropriation therefor shall have been estimated for by the Secretary of the Treasury” (quoting the Court of Claims Act)); Gordon v. United States, 117 U.S. 697, 698, 702 (1885) (viewing a statute preventing satisfaction of a judgment until “Congress . . . shall make an appropriation” as usurping the “judicial power” which “authorize[s] [a court] to render a judgment which will bind the rights of the parties . . . before it”); United States v. O’Grady, 89 U.S. (22 Wall.) 641, 647–48 (1875) (“Judicial jurisdiction implies the power to hear and determine a cause, and . . . Congress cannot subject the judgments of the Supreme Court to the re-examination and revision of any other tribunal . . . .”); Mason v. United States, 84 U.S. (17 Wall.) 67, 73 (1873) (referring to “judicial power” as the “power to bind . . . parties by [a] decision”); Riggs v. Johnson Cnty., 73 U.S. (6 Wall.) 166, 187 (1868) (“[I]f the power is conferred to render the judgment or enter the decree, it also includes the power to issue proper process to enforce such judgment or decree.”); Ableman v. Booth, 62 U.S. (21 How.) 506, 525 (1859) (describing the judicial Power as “the power of this court to decide, ultimately and finally”); Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 431 (1856) (“[Generally speaking an] act of [C]ongress cannot have the effect and operation to annul the judgment of the court already rendered . . . .”); United States v. Ferreira, 54 U.S. (13 How.) 40, 50 (1852) (explaining that a power is “not a judicial power when subject to the revision of . . . Congress”). It likewise continued to recognize the incompatibility of judicial Power and sovereign immunity, frequently observing that “[t]he immunity from suit belonging to a state . . . is respected and protected by the constitution within the limits of the judicial power of the United States.”354Clark v. Barnard, 108 U.S. 436, 447 (1883); see also, e.g., Hagood v. Southern, 117 U.S. 52, 71 (1886) (disagreeing with an attempt to “enforce [a] judgment . . . against the state” where “it has a constitutional right to insist on its immunity from suit”); Tennessee v. Davis, 110 U.S. 257, 263, 265 (1880) (the Constitution prevents “the operations of the general government [from] at any time be[ing] arrested at the will of one of its members[,]” and “the judicial power is the instrument employed . . . in administering this security”); Ableman, 62 U.S. (21 How.) at 519 (where the judicial Power extends, the States “have bound themselves to submit to the decision of this court, and to abide by its judgment”). But, as the decades passed, the Court simply stopped connecting the incompatibility of those concepts to the textual variation between “all Cases” and “Controversies” in Article III.

A prime example of this phenomenon is an 1854 dissent by Justice Campbell, who, not coincidentally, also advocated for a broad interpretation of the Eleventh Amendment.355Florida v. Georgia, 58 U.S. (17 How.) 478, 518 (1855). In dicta that the majority had no reason to address, Campbell insisted that “[i]t was not in the design of the constitution to alter or even to modify the existing relations of any of the sovereign parties named in [Article III] . . . by enlarging their liableness to suit.”356Id. Instead, Campbell declared, Article III as ratified had implicitly—and unqualifiedly—incorporated the antecedent law of state sovereign immunity.357See id. Campbell grounded his understanding in the Eleventh Amendment, which he characterized as ratifying Marshall’s, Madison’s, and Hamilton’s view that “it is not in the power of individuals to call any State into court.”358Id. (quoting James Madison). Noticeably absent from Campbell’s opinion was any mention of the two-tiered features of Marshall’s, Madison’s and Hamilton’s remarks, let alone any reference to the precedential framework erected in Cohens and Rhode Island.

The seeds of the Great Forgetting had been planted. By the late nineteenth century, it was clear that the Court had largely forgotten about its two-tiered reading of Article III and the implications for state sovereign immunity.359SeeUnited States v. Lee, 106 U.S. 196, 205–07 (1882) (purporting to summarize the Court’s sovereign immunity jurisprudence without mentioning the two-tiered framework). The Court had yet to unwittingly overrule its prior holdings on this score, but that, too, was only a matter of time.

B.      The Contracts Clause, Hans, and the Precedential Death of the Two-Tiered Interpretation

General federal question jurisdiction arrived in 1875. Around the same time, various Southern States, now a decade removed from the Civil War, started purposefully defaulting on multimillion-dollar bond obligations.360See John V. Orth, The Judicial Power of the United States: The Eleventh Amendment in American History 78–79 (1987); Fletcher, supra note 5, at 1087–88; Gibbons, supra note 63, at 1977. Louisiana became perhaps the most notorious financial offender when, in 1879, it amended its constitution to ensure that money previously earmarked to pay interest on state bonds would be repurposed instead “to defray the [general] expenses of the state government.”361Hans v. Louisiana, 134 U.S. 1, 2 (1890). That brazen declaration superseded another constitutional amendment, ratified just five years earlier, which purported to assure investors that Louisiana’s bonds “create[d] a valid contract between the State and [its bondholders,] which the State shall by no means . . . impair.”362Id. The 1879 Louisiana amendment also abrogated a state statutory scheme, which had required state officials to collect “interest taxes” on real and personal property throughout the State and remit those funds directly to bondholders.363See Louisiana v. Jumel, 107 U.S. 711, 712–15 (1883). Notably, the State continued to collect the “interest” taxes; it just stopped making the statutorily mandated payments.364Id. at 716, 732. Justice Field colorfully described the laws that Louisiana had just nullified, stating, “[i]t would puzzle the wit of man to find anywhere in the legislation of the world a more perfect assurance of the fixed purpose of a State to keep faith with her creditors.”365Id. at 731 (Field, J., dissenting).

Aggrieved bondholders filed suit against Louisiana and similarly situated States in federal court, invoking the new statutory grant of federal question jurisdiction and, unlike some of the earlier cases surveyed, the U.S. Constitution’s Contracts Clause. Diverse bondholders brought the first wave of litigation. Trying to skirt a potential Eleventh Amendment defense, they sued state officials in their official capacities rather than the defaulting States directly.366SeeGibbons, supra note 63, at 1984–85. One exception was New Hampshire v. Louisiana, in which New Hampshire itself sued Louisiana on behalf of its citizen-bondholders. 108 U.S. 76 (1883). The Supreme Court rejected the suit, divining an important limitation—at least from this Article’s perceptive—to the scope of the State-State Controversy Clause. See id.at 91 (“[O]ne State cannot create a controversy with another State, within the meaning of that term as used in the judicial clauses of the Constitution, by assuming the prosecution of debts owing by the other State to its citizens.”). These officials still protested against federal jurisdiction on the ground that they were derivatively entitled to sovereign immunity,367See Gibbons, supra note 63, at 1986. and several of these cases reached the Supreme Court.368Id.

In resolving the diverse bondholders’ appeals, the Court finally addressed the precise scope of the Eleventh Amendment and did so by adopting a quasi-literal reading of it. The Justices explained that the Eleventh Amendment would have prevented diverse bondholders from suing the defaulting States directly on any claim, state or federal, sans consent.369See Poindexter v. Greenhow, 114 U.S. 270, 279 (1885) (suggesting that even if the Constitution were at issue “the State itself could not be sued” by an out-of-State citizen); Jumel, 107 U.S. at 720 (stating without qualification that “under the Eleventh Amendment of the Constitution no State can be sued in the courts of the United States by a citizen of another State” sans consent); New Hampshire, 108 U.S. at 89 (“The evident purpose of the amendment, so promptly proposed and finally adopted, was to prohibit all suits against a state by or for citizens of other States, or aliens, without the consent of the State to be sued.”).

This new, quasi-literal understanding of the Eleventh Amendment presented the Court with an immediate dilemma. The Court did not want to force Louisiana and other defaulting States to cough up their debts “shilling for shilling,” but, at the same time, it did not want to declare that States had free reign to violate the Constitution. To resolve the conundrum, the Court resorted to an infamous form of doublethink: it (1) declared that when federal claims were asserted against state officers in their official capacities, those somehow were not “suits against a State” for sovereign immunity purposes only;370See Ex Parte Ayers, 123 U.S. 443, 507 (1887) (“If . . . an individual, acting under the assumed authority of a state . . . comes into conflict with the superior authority of a valid law of the United States, he is stripped of his representative character . . . .”); Poindexter, 114 U.S. at 293, 297 (holding that such claims “cannot be considered to be a suit against the State” and “[t]he immunity from suit by the State [is] invoked, vainly, to protect the individual wrong-doers, [and] finds no warrant in the Eleventh Amendment”). and (2) simultaneously affirmed that statelawclaims asserted against those very same officers qualified as suits against States that were accordingly barred by a derivative form of sovereign immunity.371See Jumel, 107 U.S. at 723 (explaining, with respect to a state-law claim, that “the obligation [to carry out the contract] is upon her Majesty, to be discharged through her servants, and you cannot proceed therefor against the servants”). Thus, the very same fiction later known as Ex Parte Young doctrine allowed the Court to avoid the “apprehen[sion] that [its] construction of the eleventh amendment . . . will in anywise embarrass or obstruct the execution of the laws of the United States,”372Ayers, 123 U.S. at 507. while at the same time ensuring that contractual litigation against States could not proceed without their consent.

In operationalizing this new fiction, the Court resolved some cases in favor of the diverse bondholders and some in favor of state officials. The Court drew a distinction between claims that state laws (like Louisiana’s 1879 constitutional amendment) were preempted by the U.S. Constitution’s Contracts Clause, and other claims (like attempts to force Louisiana to abide by its interest-tax statutes) that the Court characterized as “attempt[s] to compel . . . the State [through its officers] to do the acts which constitute a performance of its contract.”373See Poindexter, 114 U.S. at 293. The Court allowed claims that state laws were invalid under the Contracts Clause to proceed notwithstanding state officers’ sovereign immunity objections, but any claims that sought to compel States to make affirmative payments were deemed barred by derivative sovereign immunity.374Compare Jumel, 107 U.S. at 724 (holding that out-of-state bondholders could not sue for an injunction requiring state officials to enforce a statutory bond scheme), and New Hampshire, 108 U.S. at 91 (similar holding in the context of a State suing to collect on behalf of citizen-bondholders), with Poindexter, 114 U.S. at 286, 292–95 (holding that the Court could adjudicate a claim that a state statute contravened the Contracts Clause and thus could not validly be enforced by state officials).

It must be remarked that the two-tiered reading of Article III would have allowed the Court to reach precisely the same results without any “fiction” about when state officials are actually acting on behalf of a State. By now it was relatively settled that the U.S. Constitution’s Contracts Clause only invalidated, as its text suggested, “Law[s] impairingthe Obligation of Contracts,”375U.S. Const. art. I, § 10, cl. 1 (emphasis added). but did not affirmatively oblige States to enforce state statutes or abide by contract terms.376Compare Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 403 (1821) (“Let it be that the act discharging the debt is a mere nullity, and that it is still due. Yet the federal Courts have no cognizance of the case [to compel payment].”), with Bank of Ohio v. Knoop, 57 U.S. (16 How.) 369, 391 (1854) (“[N]o power was given to the federal government to regulate the numberless internal concerns of a State which are the subjects of contracts. . . . [B]ut when contracts growing out of them are impaired by an act of the State, under the federal Constitution we inquire whether the act complained of is in violation of it.”), and Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 139 (1810) (explaining that the Contracts Clause restrained Georgia “from passing a law” annulling a contract). (As later decisions would put it, a State’s “simple breach” does not violate the Constitution.377Shawnee Sewerage & Drainage Co. v. Stearns, 220 U.S. 462, 471 (1911).). If one accepts that understanding of the Contracts Clause, then a diverse bondholder’s contention that a state law is invalid would implicate the Constitution and thus the first tier of Article III, but any attempt to compel a State to pay a debt would not succeed under the Contracts Clause and, as a state-law matter involving only the State-Citizen Diversity Clause, would be beyond the scope of judicial Power in the absence of state consent.

Unfortunately, the Court failed to recognize that its two-tiered framework from Cohens and Rhode Island offered it a more principled way to resolve these cases. And the result—an overbroad understanding of the Eleventh Amendment and a concomitant “fiction” about when state officials are or are not state officials—went on to wreak further havoc in 1890, when the Court finally heard a case filed by a nondiverse bondholder.

Bernard Hans of Louisiana, much like the litigants that preceded him, contended that Louisiana’s 1879 constitutional amendment was invalid under the Contracts Clause and that he was also entitled to interest payments under the state interest tax statutes.378Hans v. Louisiana, 134 U.S. 1, 1–3 (1890). But, uniquely, Hans chose to sue Louisiana directly, fearing not the Eleventh Amendment.379Id. at 1. Louisiana still objected to Hans’s suit on sovereign immunity grounds, and the case of Hans v. Louisiana wound its way to the Supreme Court.380Id. at 2–3.

The Court, citing Hamilton’s Federalist No. 81, accurately observed that it could not force Louisiana to pay a debt it owed to a private citizen.381See id. at 12–13. But the Court was unable to reach that result by means of its new quasi-literal understanding of Eleventh Amendment, because the text of the Amendment covered only diverse citizens.382See id. at 10 (conceding that “the amendment does so read”). So, the Hans reasoned instead that it would be “anomalous” if, in federal question disputes, “a State may be sued in the federal courts by its own citizens, though it cannot be sued for a like cause of action by the citizens of other States, or a foreign state.”383Id. To resolve this “anomaly,” Hans decreed that any suits against States out-of-step with the antecedent law of sovereign immunity were simply “not contemplated by the Constitution when establishing the judicial power of the United States.”384Hans, 134 U.S. at 15.

Of course, this “anomaly” was a problem of the Court’s own creation. If the Court had instead adopted the two-tiered view of the Eleventh Amendment suggested by Bank of Ohio v. Knoop—which explained that the Eleventh Amendment had not affected any constitutional claims against States—then both in-state and out-of-state citizens would be able to assert federal claims against nonconsenting States and neither would be able to assert state-law claims against States (at least without consent). On such an understanding, no anomaly, and no fiction, would need to exist.

Alas, Hans did not consider the alternatives that were open to it. And to support the new, broader understanding of state sovereign immunity, the Court turned to Marshall, Hamilton, and Iredell, three individuals it believed were proven “right” by the Eleventh Amendment.385Id. at 14 (“[L]ooking at the subject as Hamilton did, and as Mr. Justice Iredell did, in the light of history and experience and the established order of things, the[ir] views . . . were clearly right—as the people of the United States in their sovereign capacity subsequently decided.”). But, much like Justice Campbell in 1854, the Court overlooked the nuance in their remarks.386See Manning, supra note 6, at 1682 n.74 (similarly chastising Hans for failing to identify an “affirmative basis for extending immunity to what Justice Iredell himself had recognized as ‘the special objects of authority of the general Government’” (citing Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 435 (1793) (Iredell, J., dissenting)). Hans even asserted, in a bout of erroneous textual revision, that Marshall, Hamilton, and Iredell all sought to cabin the “obnoxious clause” in Article III which “declared that ‘the judicial power shall extend to all controversies between a State and citizens of another State.’”387Hans, 134 U.S. at 13. Of course, the whole point of Justice Iredell’s dissent was that the part which “uses the word ‘controversies’ only” does not “provide . . . for the decision of all possible controversies.” Chisholm, 2 U.S. at 431–32, 436 (Iredell, J., dissenting) (emphasis added). Unsurprisingly in light of that remark, Hans said nothing of Cohens and Rhode Island’s careful parsing of Article III’s text.388Hans did not even cite Rhode Island and only mentioned Cohens in passing to (inaccurately) characterize as dicta the statement that the judicial Power “extend[s] ‘to all cases arising under the Constitution or laws of the United States, without respect to the parties.’” Hans, 134 U.S. at 20 (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 412 (1821)). Cohenss sovereign immunity holding, grounded as it was on its understanding of Article III’s here-unqualified text, was doubtless necessary to that decision. Justice Harlan’s concurrence in Hans was equally forgetful of this precedential two-tiered framework,389Id. at 21 (Harlan, J., concurring). as were the parties before the Supreme Court,390See id. at 1–8 (discussing the parties’ interpretations of judicial authority). and in the Circuit Court below.391See generally Hans v. Louisiana, 24 F. 55 (C.C.E.D. La. 1885). By this point, Article III’s textual variation and its significance for state sovereign immunity had simply been forgotten.

Hans remained right about one thing: Louisiana could not be compelled to pay a debt that it owed an individual. On that point, Hamilton, Marshall, and Iredell had all concurred. But to reach that conclusion in a more principled manner, Hans should have simply observed that no clause in Article III extended federal judicial Power to “Controversies between states and their own citizens.” The absence of any such provision meant that even if Louisiana’s 1879 constitutional amendment was invalid under the Contracts Clause (which it undoubtedly was), Hans’s attempt to compel payments owed under the state interest tax statutes was, for reasons just explained, not a meritorious claim under the Contracts Clause, and, as a second-tier state-law matter, beyond the scope of Article III judicial Power.392Cf. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 91 (1996) (Stevens, J., dissenting) (arguing that Hans “was, at bottom, seeking to enforce a contract with the State”). In short, the two-tiered theory of sovereign immunity would have ensured that Louisiana had the “privilege of paying [its] own debts in [its] own way,”393Hans, 134 U.S. at 13. while at the same time giving force to the Constitution’s restrictions on government and meaning to the varied text of Article III.

C.      Modern Sovereign Immunity Doctrine

The Great Forgetting and the Supreme Court’s turn towards a quasi-literal interpretation of the Eleventh Amendment (it still recognized a role for States to consent to suit) injected two problems into sovereign immunity doctrine, both of which persist today.

The first problem is Hans’s broad accommodation of the antecedent law of sovereign immunity across all nine categories of Cases and Controversies, an understanding that has unmoored modern sovereign immunity doctrine from the text of the Constitution itself. Today’s Supreme Court, much like Hans, continues to interpret the Eleventh Amendment as confirming a “presupposition” that Article III nowhere displaces the antecedent law of sovereign immunity; in its view, “[t]he Eleventh Amendment confirmed that the Constitution was not meant to ‘rais[e] up’ any suits against the States that were ‘anomalous and unheard of when the Constitution was adopted.’”394Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1496 (2019) (emphasis added) (quoting Hans, 134 U.S. at 18); see also Sossamon v. Texas, 563 U.S. 277, 284 (2011); Alden v. Maine, 527 U.S. 706, 713 (1999). And so, under present doctrine, the antecedent law of sovereign immunity operates as an implicit and plenary qualification on the extent of federal judicial Power, but this qualification is wholly disconnected from the textual qualification that is present in the second tier of Article III.

The second problem is the doctrinal fiction about when state officials are or are not state officials, which the Court has continued to rely on to prevent its broad understanding of state sovereign immunity from nullifying the Constitution’s guarantees.395See Seminole Tribe, 517 U.S. at 170 (Souter, J., dissenting) (“It should be no cause for surprise that Young itself appeared when it did in the national law. It followed as a matter of course after the Hans Court’s broad recognition of immunity in federal question cases . . . .”). The Court still conceives of state-law suits against state officers in their official capacities to be suits against States barred by derivative sovereign immunity.396See Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 105–06 (1984) (arguing that such a suit “does not vindicate the supreme authority of federal law”). Different rules apply if a suit is brought against a state officer in a non-official (i.e., individual) capacity. See Alden, 527 U.S. at 757. But it permits some federal claims against state officials to proceed, because, for purposes of evaluating sovereign immunity arguments only, federal claims against state officers seeking prophylactic injunctive relief are generally not deemed to be tantamount to suits against a State.397See Pennhurst, 465 U.S. at 102–03. At the same time, however, federal claims that seek retrospective compensatory relief generally are so viewed, and thus barred without the State’s consent; and similarly barred are any federal claims for damages.398See Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 254–57 (2011); Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645–48 (2002); Pennhurst, 465 U.S. at 101, 113–14. To articulate these rules is not to say that they are consistently applied. See Fletcher, supra note 5, at 1119–20.

Further complicating this already tangled doctrinal web, the Court has allowed a limited subset of federal legislation to abrogate state sovereign immunity.399Allen v. Cooper, 140 S. Ct. 994, 1001–02 (2020). Although in many instances the Court has declared Congress powerless to enact federal laws that would permit private individuals to sue States or state officials without consent,400See id. at 997, 1000. the Court has recognized limited exceptions on this score for federal legislation that is (1) enforcing the Fourteenth Amendment; (2) effectuating federal eminent domain authority; or (3) enacted pursuant to Article I’s Bankruptcy Clause.401PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2258–59 (2021) (quotation omitted); Allen, 140 S. Ct. at 1002–04.

This modern sovereign immunity doctrine has attracted significant criticism.402See, e.g., Gibbons, supra note 63, at 1891 (describing it as “a hodgepodge of confusing and intellectually indefensible judge-made law”). It is difficult to maintain that the various Ex Parte Young fictions, which turn on whether plaintiffs assert federal or state claims, damages claims, prophylactic claims, etcetera, actually cut at the joints of what it means for a state official to be acting on behalf of a State.403See Fletcher, supra note 5, at 1044–45. There also appears to be little in the way of constitutional text that justifies drawing a line between Article I’s Commerce Clause on the one hand and the Bankruptcy Clause, eminent domain authority, and the Fourteenth Amendment on the other vis-à-vis Congress’s abrogation power.404The illogic of permitting Bankruptcy Clause but not, say, Commerce Clause legislation to abrogate state sovereign immunity has been remarked upon at length. See, e.g., Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 379–84, 393 (2006) (Thomas, J., dissenting). Equally, the Civil War Amendments in no way purport to alter the extent of Article III judicial Power. But if one assumes that they did, it is then unclear why Hans’s “presupposition” would survive. Commentators thus generally agree that it is time to rethink modern sovereign immunity doctrine,405See generallyAllen, 140 S. Ct. at 1009 (Breyer, J., concurring in the judgment); Coan, supra note 244, at 2512. but what nobody has done, so far, is look for answers in the varied text of Article III.406Cf. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 106 (1996) (Souter, J., dissenting) (discussing Article III’s purportedly “unqualified grant of jurisdiction over diversity suits against States”); Atascadero St. Hosp. v. Scanlon, 473 U.S. 234, 263 (1985) (Brennan, J., dissenting) (reading the text of Article III as “undoubtedly consistent with suits against States under both subject matter heads of jurisdiction . . . and party-based heads of jurisdiction”).

V.      Reclaiming the Two-Tiered Reading of Article III

The inputs of the two-tiered theory of sovereign immunity remain available today. The Supreme Court continues to define judicial Power as the power to render final and binding judgments under the applicable law,407See, e.g., Bank Markazi v. Peterson, 136 S. Ct. 1310, 1323 (2016) (explaining that Congress transgresses Article III when it “usurp[s] a court’s power to interpret and apply the law to the [circumstances] before it” (quoting Brief for Former Senior Officials of the Office of Legal Counsel as Amici Curiae 3, 6)); Stern v. Marshall, 564 U.S. 462, 494 (2011) (calling “the entry of a final, binding judgment” “the most prototypical exercise of judicial power” (emphasis omitted)); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218–19 (1995) (“[A] ‘judicial Power’ is one to render dispositive judgments.” (citation omitted)); Swisher v. Brady, 438 U.S. 204, 209 (1978) (“[T]he judicial power [includes] . . . the sine qua non of judicial office—the power to enter a binding judgment.”). and continues to maintain that this judicial Power is irreconcilable with the antecedent law of sovereign immunity.408See, e.g., Alden v. Maine, 527 U.S. 706, 754 (1999) (explaining that disputes implicating the antecedent law of sovereign immunity are not “within the judicial power of the United States”); Seminole Tribe, 517 U.S. at 106 (Souter, J., dissenting) (equating a State lacking sovereign immunity to a State being “subject to the judicial power”); Emps. of the Dep’t of Pub. Health & Welfare of Mo. v. Mo. Pub. Health Dep’t, 411 U.S. 279, 287 (1973) (describing sovereign immunity as a “constitutional constraint[] on ‘the judicial power’”); Monaco v. Mississippi, 292 U.S. 313, 328 (1934) (referring to sovereign immunity as an “exemption from judicial power”); District of Columbia v. Eslin, 183 U.S. 62, 65 (1901) (explaining that where the United States had not consented to suit, a declaration respecting the rights of the parties “would be simply advisory in its nature” and not “exercising judicial power”). The modern doctrinal difference is that, when these concepts collide, the nuanced interpretation of Article III’s text from Rhode Island, Cohens, and Iredell’s Chisholm dissent is forgotten, and the antecedent law of sovereign immunity too often wins.

With an eye to the impact on contemporary sovereign immunity doctrine, this Part explores the ramifications of returning to a two-tiered understanding of Article III and sovereign immunity.

A.      The Two-Tiered Reading Confirms the Constitutional Principle of State Sovereign Immunity

The modern Supreme Court correctly avers that state sovereign immunity has a constitutional basis, but, since the turn of the twentieth century, it has supported that contention by focusing only on constitutional “history” and “structure.”409Alden, 527 U.S. at 724. The two-tiered reading of Article III resupplies the missing justification: because the Constitution’s text only “extend[s]” the judicial Power to some “Controversies” between individuals and States,410U.S. Const. art. III, § 2. the judicial Power should not be construed to extend to Controversies implicating the antecedent law of sovereign immunity. Thus, to the extent that litigation does not implicate Article III’s first tier (where the extension of judicial Power to “all Cases” would otherwise control),411See id.; Atascadero, 473 U.S. at 261 (Brennan, J., dissenting) (“[T]he federal judicial power may extend to a case if it falls within any of the enumerated jurisdictional heads.”). the antecedent law of sovereign immunity operates as a constitutional constraint on the exercise of federal judicial Power.

The restorative difference between theory and doctrine is that, in accord with Marshall’s remarks at the Virginia ratifying convention, the protection of state sovereign immunity is “warranted by the words” of the Constitution.412Nicholas, supra note 4, at 523. It is not, in Justice Scalia’s surprising formulation, a “constitutional principle beyond the immediate text.”413Pennsylvania v. Union Gas Co., 491 U.S. 1, 31 (1989) (Scalia, J., concurring in part and dissenting in part).

B.      The Two-Tiered Reading Explains Congress’s Abrogation Power

The unqualified text of Article III’s first tier can also explain the existence (and boundary) of Congress’s power to abrogate state sovereign immunity. The two-tiered reading implies that Congress can (but need not) subject States to compulsory suits by enacting otherwise valid federal legislation; after all, the Constitution expressly extends the judicial Power to “all” federal question Cases. Thus, for this set of Cases, there can be no recourse to the antecedent law of sovereign immunity as a constitutional limitation on federal judicial Power. It would follow, then, that Congress’s ability to abrogate state sovereign immunity does not depend on which congressional power undergirds a particular statute. All that would matter is whether the enactment purporting to apply to the States is a valid exercise of legislative power. As Madison once put the point, “the judicial power should correspond with the legislative.”414Madison, The Debates in the Several State Conventions, supra note 156, at 532. He did not say that the judicial Power should correspond with the legislative but only insofar as the Bankruptcy Clause is concerned.

Numerous jurists have already advocated for a broader congressional abrogation power on precisely the same ground. Since the judicial Power extends to federal question Cases, they contend, Article III “prohibit[s] not the exercise of judicial power, but the assertion of state sovereign immunity as a defense.”415Atascadero, 473 U.S. at 260 (Brennan, J., dissenting); see also, e.g., Fletcher, supra note 5, at 1098–99 (arguing that this is true if one does not read the Eleventh Amendment to alter the Federal Question Clause). But this idea is quickly taken too far, as these jurists usually insist—or at least do not disavow—that Article III unqualifiedly extends the same judicial Power across all nine categories of Cases and Controversies, aside from those directly named in the Eleventh Amendment.416See infraSection I.A.; see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 106 (1996) (Souter, J., dissenting) (discussing Article III’s purportedly “unqualified grant of jurisdiction in diversity suits against States”). In truth, however, Article III’s text does not extend this judicial Power to “all” Controversies.

It is important to note that expanding congressional abrogation power along these lines would not imply that a State can always be sued if a federal question is raised. As Justice Iredell observed in Chisholm, “in whatever character [Article III’s first tier] may place a State, this can only afford a reason for a new law, calculated to effectuate the powers of the General Government in this new case.”417Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 448–49 (1793). Although the precise reach of Congress’s enumerated powers, and how they relate to its ability to subject States to compulsory suits, is beyond the purview of this Article, it is worth noting that there has been a longstanding difference of opinion over if and when Article I might permit Congress to create a private action against a State for damages as opposed to other, less intrusive forms of relief. For competing perspectives on this question, see Alden v. Maine, 527 U.S. 701, 750 (1999) (observing that special treatment might be reserved for “suits for money damages—[which] may threaten [States’] financial integrity”); Chisholm, 2 U.S. at 434–35 (Iredell, J., dissenting); Amar, supra note 272, at 1484–92; Fletcher, supra note 5, at 1294–95. Although, in federal question Cases, the antecedent law of sovereign immunity would not be a defense, it would remain a matter of great significance whether Congress clearly intended a particular enactment to apply to the States, and, if so, whether that enactment constitutes a valid exercise of Article I power.418See Fletcher, supra note 5, at 1107.

C.      The Two-Tiered Reading Allows Treaties to Abrogate State Sovereign Immunity

Much like federal statutes, the two-tiered reading also supports allowing valid treaties to subject States to compulsory suit. Because the judicial Power extends to “all Cases” arising under treaties, there is no basis for permitting the antecedent law of sovereign immunity to limit its extent. But, again, this judicial Power is limited to giving effect to the applicable substantive law, which, here, would be a treaty’s provisions. Accordingly, before a State could be sued for violating a treaty, its provisions would need to furnish both a cause of action against a contumacious State and a remedy.

This understanding of the Treaty Clause coheres with both past and present understandings.419See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 52, 69 (1831) (Thompson, J., dissenting) (explaining that “a [nonconsenting] state of this Union may be sued” in certain instances, since “the judicial power of the United States extends expressly to all cases in law and equity, arising under . . . treaties) (emphasis added); see also id. at 39 (Baldwin, J., concurring) (recognizing the “legitimate action of the judicial power of this union . . . against a sovereign state” pursuant to a treaty, but only if it contains a right of judicial enforcement); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 261 (1796) (opinion of Iredell, J.) (explaining that the treaty itself must set forth “some way of bringing both the parties before [a court]”). The Supreme Court, with respect to federal or foreign signatories, has held that these sovereign entities can authorize compulsory lawsuits against themselves by executing treaties that purport to do so.420Medellin v. Texas, 552 U.S. 491, 507 (2008). However, to become “binding” in this manner, treaties must be “self-executing” (i.e., they expressly provide for judicial enforcement of their provisions).421Id. at 504–05. The Court has also suggested, but has yet to hold, that treaties can abrogate state sovereign immunity in the same way (albeit with the Federal Government signing on behalf of the States).422See id. at 505 (suggesting that self-executing treaties become “the ‘Law of the Land’ by which all state and federal courts in this country are ‘bound’”); id. at 540 (Breyer, J., dissenting) (explaining that in the case of a self-executing treaty “the Supremacy Clause requires [a State] to follow” it).

The two-tiered reading of Article III would provide a textual basis for understanding the Treaty Clause to abrogate state sovereign immunity. And history, as we have already seen, can supply the justification for this result. As Iredell wrote:

The article in the constitution concerning treaties . . . . [was adopted to address the concern] that when thirteen different [State] legislatures were necessary to act in unison on many occasions, it was in vain to expect that they would always agree to act as Congress might think it their duty to require. . . . [Thus, Article III ensures that a treaty may be] binding . . . by the vigour of its own authority to be executed in fact.423Ware, 3 U.S. (3 Dall.) at 276–77.

D.      The Two-Tiered Reading Supports Eliminating Sovereign Immunity in Admiralty and Ambassadorial Cases

The two-tiered reading would also understand Article III’s Admiralty and Ambassador Clauses to nullify antecedent sovereign immunity rights.

Although it sounds strange today, the Admiralty Clause was probably the most important grant of judicial Power at the time of ratification.424See Meltzer, supra note 269, at 11 n.46. Maritime commerce was then “the jugular vein of the Thirteen states,” and the importance and propriety of the Admiralty Clause “was recognized by every shade of opinion in the Constitutional Convention.”425Felix Frankfurter & James M. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 7 (1928) (footnote omitted). Moreover, beyond interstate commerce, admiralty disputes could also involve foreign vessels, which meant that the resolution of these disputes could, and often did, bear on foreign affairs.426See Madison, The Debates in the Several State Conventions, supra note 156, at 532 (recognizing that “our intercourse with foreign nations will be affected by decisions of this kind”); Fletcher, supranote 5, at 1078–79. To the founding generation, the need for paramount federal authority over the judicial means for resolving these disputes was obvious; as Hamilton observed, even “[t]he most bigoted idolizers of State authority have not thus far shown a disposition to deny the national judiciary the cognizance of maritime causes.”427The Federalist No. 80 (Alexander Hamilton).

In admiralty Cases, the Framers understood that federal courts would apply ether federal statutes or, where Congress had not spoken, the general law of nations (which today has morphed into federal common law).428See Fletcher, supranote 5, at 1082–83; Meltzer, supra note 90, at 1595–99. In neither circumstance would granting States a constitutionalized veto right over admiralty proceedings against them—separate and independent from the dictates of the admiralty law itself—make any sense. As Justice Story observed, it was “the correct adjudication” of admiralty Cases in “which foreign nations [we]re deeply interested.”429Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 335 (1816) (emphasis added); see also Chelentis v. Luckenbach, 247 U.S. 372, 382 (1918) (“It certainly could not have been the [Constitution’s] intention to place the rules and limits of maritime law under the disposal and regulation of the several States . . . .”) (quoting The Lottawanna, 88 U.S. (21 Wall.) 558, 575 (1874)). But if State authorities seized, say, the vessel of a foreign merchant (or that of another State’s citizen) and refused to return it, the inability of a federal court to intervene might lead to insurrection or even war.430See United States v. Peters, 9 U.S. (5 Cranch) 115, 136 (1809) (Marshall, C.J.) (explaining in an admiralty Case that “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery,” and would lead to “fatal” consequences for the Union). Notably, the inverse situation—British seizure of American vessels and crews—may have sparked the War of 1812. See H.W. Brands, Andrew Jackson: His Life and Times 174 (2005) (discussing President Madison’s war declaration, which lambasted the British “practice of violating the American flag on the great high way of nations, and of seizing and carrying off persons sailing under it”). Given the plausibility, even likelihood, of such a scenario, it is not hard to conceive that the extension of Article III judicial Power to “all” admiralty Cases was meant to avoid a situation whereby a “State in the Union [might], by withholding justice, have it in its power to embroil the whole confederacy in disputes of another nature.”431Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 451 (1793) (opinion of Blair, J.); see also Butler v. Bos. & Savannah Steamship Co., 130 U.S. 527, 557–58 (1889) (“[T]he Constitution extends the judicial power of the United States to ‘all cases of admiralty and maritime jurisdiction,’ . . . . [A State] cannot neutralize or affect the admiralty or maritime jurisdiction . . . . Those are matters of national interest.”).

Article III’s Ambassador Clause was ratified for essentially identical reasons.432Madison, The Debates in the Several State Conventions, supra note 156, at 532 (“The same principles [for Article III] hold with respect to cases affecting ambassadors and foreign ministers. To the same principles may also be referred their cognizance in admiralty and maritime cases.”). In The Federalist No. 81, Hamilton explained that the Ambassador Clause covers disputes involving “[p]ublic ministers” or “the immediate representatives of [foreign] sovereigns.”433The Federalist No. 81(Alexander Hamilton). So defined, these Cases necessarily involve matters of “foreign relations” “directly connected with the public peace.”434Id.; see also Martin, 14 U.S. (1 Wheat.) at 334 (similar). Marshall, operating on the same understanding of the Clause, added that “[t]here is, perhaps, no part of [Article III] so much required by national policy.”435Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 396 (1821). But if the Federal Government is to have plenary control over the proceedings in such Cases, it makes little sense to allow the States a constitutional veto right, separate and independent from the substantive law to be applied in these disputes,436As with the Admiralty Clause, the Framers evidently contemplated that the law of nations would apply to ambassadorial suits in the absence of a federal statute. See supra notes 48–49. Curiously, the Judiciary Act of 1789 required the Supreme Court to exercise its jurisdiction in “all suits or proceedings against ambassadors” “consistently with the law of nations,” but did not impose the same requirement on suits “brought by Ambassadors.” Judiciary Act of 1789, Pub. L. No. 1–20, 1 Stat. 73, 80. To the extent this may imply that the law of nations governed suits against ambassadors but not also suits by them, then the two-tiered theory may suggest that, in the latter kind of Case, state sovereign immunity would become a creature of substantive federal or state law. over all lawsuits initiated by foreign ambassadors. And so, once again, the judicial Power is plausibly read to extend to all ambassadorial Cases without limitation.437See also Martin, 14 U.S. (1 Wheat.) at 335 (explaining that in ambassadorial and admiralty Cases it would “be perilous to restrain [the judicial Power] in any manner whatsoever, inasmuch as it might hazard the national safety”); cf. also James Iredell’s Charge to the Grand Jury, supra note 219, at 20 (“It shews . . . a wanton disregard of the peace of mankind when [ambassadors] are ill-treated; and as such ill-treatment . . . may aggravate, in a most dangerous degree, any subsisting differences (if there be such) between the two nations, if not occasion a fatal hostility between them . . . no real offence of that nature can, either with safety, or consistently with its duty, be passed over by that government in whose country such an offence is committed. If it be, it may then be considered a national act of hostility, and resented accordingly.”).

Since 1921, the Supreme Court, at least in admiralty Cases,438State sovereign immunity has not been addressed in a modern ambassadorial Case. has operated on a different understanding. The Court at that point refused to “exempt” admiralty jurisdiction from the broad understanding of state sovereign immunity first announced in Hans.439See Ex Parte New York, 256 U.S. 490, 497, 502 (1921). As a result, the Court today will insist on a State’s consent before it will proceed to apply “general admiralty principles”; if a State will not consent, then general maritime law and the desires of Congress grow irrelevant.440Northern Ins. Co. v. Chatham Cnty., 547 U.S. 189, 195–96 (2006).

Text, history, and early precedent do not support the modern doctrine on this score. Justice Brennan, in a dissent attentive to the historical underpinnings of the Admiralty Clause, has argued persuasively that state sovereign immunity cannot usurp otherwise appropriate admiralty jurisdiction.441Atascadero v. Scanlon, 473 U.S. 234, 291–301 (1985) (Brennan, J., dissenting); see also, e.g., United States v. Bevans, 16 U.S. 336 (3 Wheat.), 388–89 (1818) (“It is not questioned, that whatever may be necessary to the full and unlimited exercise of admiralty and maritime jurisdiction, is in the government of the union. Congress may pass all laws which are necessary and proper for giving the most complete effect to this power.” (emphasis added)). Early Supreme Court decisions support Brennan’s position,442SeeBevans, 16 U.S. at 344 (surveying early admiralty doctrine as it relates to state sovereign immunity); see also id. at 389 (“Congress may pass all laws which are necessary and proper for giving the most complete effect to this power.”). as does the two-tiered reading of Article III.

E.      What the Two-Tiered Reading Means for Federal Sovereign Immunity

This Article has focused thus far on how the varied text of Article III should bear on the doctrine of state sovereign immunity, but it bears noting that its argument would appear to apply with equal force to suits against the Federal Government. The United States, no less than States, can interfere with the judicial Power to render final and binding judgments,443Hayburn’s Case is one example. 2 U.S. (2 Dall.) 409, 409 (1792). Another example is United States v. Jones. 119 U.S. 477, 478 (1886) (explaining that a federal statute unconstitutionally “denie[d] to [the court of claims] the judicial power” when it provided that “no money shall be paid out of the Treasury for any claim passed on by the court . . . till after an appropriation . . . by the Secretary of the Treasury” (quoting the Court of Claims Act)). and the judicial Power extends to “all Cases” in the first tier of Article III. Accordingly, as some Supreme Court decisions have suggested, these grants of judicial Power might be understood to override federal sovereign immunity too.444SeeUnited States v. Klein, 80 U.S. (13 Wall.) 128, 144 (1871) (rejecting the “argument that the right to sue the [federal] government . . . is a matter of favor” as “not entirely accurate” given that certain invocations of federal sovereign immunity are “inconsistent with the finality essential to judicial decisions”); cf. United States v. Lee, 106 U.S. 196, 220 (1882) (finding an attempted invocation of federal sovereign immunity inconsistent with both the Due Process Clause and the Takings Clause as it “cannot be denied that both were intended to be enforced by the judiciary”).

From a doctrinal perspective, however, there is far less significance to this conclusion. In Controversies involving the Federal Government, the two-tiered reading would still recognize a constitutional basis for federal sovereign immunity, which accords with present doctrine.445See infra Section V.G. As for federal question Cases, it is already acknowledged that Congress may, if it wishes, pass a law subjecting the United States to suit;446See, e.g., Simmons v. Himmelreich, 136 S. Ct. 1843, 1843 (2016) (discussing the Federal Tort Claims Act). by the same token, if Congress does not want to permit the Federal Government to be sued, it can enact a statutory immunity or simply decline to pass such a law in the first place.447See infra Section V.G. And given that the political branches ultimately control the law to be applied in treaty, admiralty, or ambassadorial Cases, Congress would, on the two-tiered reading of Article III, continue to have full control over whether and when such Cases might be prosecuted against the Federal Government.

The big potential exception, naturally, involves the Constitution.

F.      Sovereign Immunity and Constitutional Claims: How the Two-Tiered Reading Would Resolve the Ex Parte Young Fiction

Adopting the two-tiered theory of sovereign immunity would also demystify the Ex Parte Young fiction without greatly upsetting the contours of Ex Parte Young doctrine. Federal jurisdiction over state-law claims implicating the Controversy Clauses would remain limited (and thus generally barred) by the antecedent law of sovereign immunity. But it would also follow that, in Cases arising under the Constitution, the antecedent law of sovereign immunity is notincorporated as a background constitutional right capable of being invoked at will to circumvent the Constitution’s guarantees. For that reason, state officials (and, under the two-tiered reading, States themselves) can be sued to at least forestall constitutional violations, irrespective of State consent.

As it respects States, this result is perhaps unsurprising. McCulloch itself stressed that “the sovereignty of [a] State . . . is subordinate to and may be controlled by the constitution of the United States.”448McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427 (1819). The modern Court has effectively operated on a similar understanding by, in effect, surreptitiously allowing the Constitution to override state sovereign immunity via its Ex Parte Young fiction. But adopting the two-tiered reading would still allow that doctrine to function openly and without contradiction. And it would still be left to the Court, in expounding the Constitution, to determine what remedies might be appropriate in the wake of a particular infraction; for that reason, it may well remain the case that forward-looking injunctions are generally allowed but damages or other forms of retrospective relief rarely so.

Determining whether and when the Federal Government is immune from constitutional suit requires more work. To be sure, the two-tiered reading avers that in constitutional Cases the antecedent law of sovereign immunity is no defense. But this, in itself, does not reveal the extent to which Congress can create statutory immunities in constitutional Cases (such as a statute purporting to eliminate federal jurisdiction over some subset of them).449Cf. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 174 (1996) (Souter, J., dissenting) (recognizing that Congress can erect substantive immunities, at least where “the underlying right is one of statutory rather than constitutional dimension”). One line of Supreme Court doctrine suggests that “the judicial power extends no further than legislation has conferred it” and “[C]ongress can modify the means by which that power is to be exercised, as well as limit its extent.”450Livingston v. Story, 34 U.S. (9 Pet.) 632, 641 (1835); see also, e.g., Rhode Island v. Massachusetts, 37 (12 Pet.) U.S. 657, 721 (1838) (similar). If one accepts that premise—which, in constitutional Cases is a heartily contested one451See Friedman, supra note 88, at 1, 3–8 (surveying this “vigorous exchange”).—it may be that the legislative branch would still exercise ultimate control over when the United States (or, for that matter, a State) can be sued for constitutional infractions. But, reclaiming the two-tiered reading of Article III would still mean, at the very least, that when federal courts do have jurisdiction, and when Congress has not sought to restrict their remedial powers, they can hold States and the Federal Government accountable to the Constitution, even if in a particular instance these governments do not wish to be sued for violating it.

G.      How the Two-Tiered Reading Interprets the Controversy Clauses

As far as the second tier of Article III is concerned, the reading advanced here and modern sovereign immunity doctrine largely concur. The Supreme Court has maintained that there is such a thing as a constitutional principle of sovereign immunity. On the two-tiered reading, the qualified text of the Controversy Clauses proves it right. While it is not this Article’s intention to elucidate the exact content of the antecedent law that here serves to limit the extent of the judicial Power, some preliminary remarks on what “Controversies” might, in accordance with that law, be excluded, are included here.452For competing perspectives on such questions, see, for example, Bellia & Clark, supra note 13; Gibbons, supra note 63, at 1891, 1895–99; Jaffe, supra note 123.

[Some] Controversies to which the United States Shall be a Party. On the two-tiered reading of Article III, it would be appropriate to read this Clause as covering “mainly [Controversies] where [the United States] is a party plaintiff.”453United States v. San Jacinto Tin Co., 125 U.S. 273, 279 (1888). The Supreme Court has held that the antecedent law of sovereign immunity grants the United States, analogized to the English King, plenary authority to sue other parties (including States) and to refuse to be sued.454See Alden v. Maine, 527 U.S. 706, 715 (1999) (“[N]o suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him.” (quoting 1 W. Blackstone, Commentaries on the Laws of England 234–35 (1765))); United States v. Texas, 143 U.S. 621, 646 (1892) (explaining that suits prosecuted by the United States against States “do[] no violence to the inherent nature of sovereignty”); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 458 (1793) (opinion of Wilson, J.) (“[I]n the case of the King, the sovereignty . . . vested him with jurisdiction over others, [and] it excluded all others from jurisdiction over him.”). If that understanding of the antecedent law is correct, it would similarly follow under the two-tiered reading of Article III that the United States can either consent to be sued or, alternatively, invoke sovereign immunity as a constitutional “bar to a state-law suit against the United States in federal court.”455Alden, 527 U.S. at 735.

[Some] Controversies between two or more States. The two-tiered reading of Article III would support interpreting the State-State Controversy Clause as the Supreme Court did in Rhode Island v. Massachusetts, namely, as a qualified grant of judicial Power that is limited by the antecedent law of sovereign immunity. That antecedent law, Rhode Island held, permits the compulsory resolution of interstate boundary disputes,456Rhode Island v. Massachusetts, 37 (12 Pet.) U.S. 657, 731 (1838). because the National Government was authorized by the Articles of Confederation to do so.457See id. at 724; see also Madison, supra note 74, at 1412, 1414 (“[This provision], where two or more States are the parties, is not objected to. Provision is made for this by the existing articles of Confederation; and there can be no impropriety in referring such disputes to this tribunal.” (footnote omitted)); Articles of Confederation, art. IX, ¶ 2 (providing for compulsory resolution of interstate boundary disputes).

Beyond the boundary context, however, possibilities of exclusion remain. For example, in 1883, the Court held in New Hampshire v. Louisiana458108 U.S. 76 (1883). that Louisiana could invoke sovereign immunity to resist a suit filed by New Hampshire that sought to recover on Louisiana’s outstanding bond obligations.459Id. at 91. The Court reasoned that “one State cannot create a controversy with another State, within the meaning of that term as used in the judicial clauses of the Constitution, by assuming the prosecution of debts owing by the other State to its citizens.”460Id. Another limit on the State-State Controversy Clause was discussed in Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 288–89 (1888) (“This court has declined to take jurisdiction of suits between States to compel the performance of obligations which, if the States had been independent nations, could not have been enforced judicially, but only through the political departments of their governments.”). In other words, it would appear that the qualified text of the State-State Controversy Clause might permit compulsory federal adjudication of some suits between sister States, but not all of them.461There are interesting parallels between this reading and certain annotations written on the State-State Controversy Clause by one of the drafters of Article III. See Records of the Federal Convention, supra note 85, at 163 n.17, 172–73 (“The Jurisdiction of the Supreme (National) Court shall extend . . . to Controversies between [States—except those wh. regard Jurisd[ictio]n or Territory] . . . .” (emphasis added)). The brackets specify written notes, probably from John Rutledge, which suggest that the State-State Controversy Clause only concerns Controversies related to territory or jurisdiction.

[Some] Controversies between a State and Citizens of another State. The two-tiered reading supports interpreting the State-Citizen Diversity Clause just as Marshall, Madison, Hamilton, and Iredell did: As extending the federal judicial Power only when a State is plaintiff or when it consents.462Sossamon v. Texas, 563 U.S. 277, 285 (2011). On this understanding, Chisholm was wrong when it was decided, as the Eleventh Amendment confirms.

A qualified reading of the State-Citizen Diversity Clause might also support the proposition advanced by Meltzer and others that federal courts cannot hear State-commenced criminal proceedings against diverse citizens in the first instance. That understanding would also square with statements adopted as part of Rhode Island and New York’s ratifying conventions, where the delegates there “declared” as an explanatory matter “that the judicial Power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions.”463New York Delegates, Ratification, supra note 142, at 334, 336 (emphasis added); see also id. at 329 (“[T]he judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions . . . .” (emphasis added)).

[Some] Controversies between Citizens of Different States and Citizens of the same State claiming Lands under Grants of Different States. The two-tiered reading has less to say about the seventh and eighth grants of judicial Power, because disputes involving individuals generally do not implicate sovereign immunity rights.464“[I]ndividuals . . . do not enjoy sovereign immunity.” Tanzin v. Tanvir, 141 S. Ct. 486, 493 (2020). But, the textual variation on which the reading rests does suggest that the judicial Power extends to only some of these disputes. And so, for example, the two-tiered reading might support the federal courts’ refusal to exercise jurisdiction over certain Controversies between citizens that are seen as affecting “substantive area[s] of law traditionally considered within the exclusive purview of state courts.”465See Michael Ashley Stein, The Domestic Relations Exception to Federal Jurisdiction: Rethinking an Unsettled Federal Courts Doctrine, 36 B.C. L. Rev. 669, 670 (1995); Ankenbrandt v. Richards, 504 U.S. 689, 693–94, 698–700 (1992). Equally, a qualified understanding of the land-grant clause might explain why citizens with competing grants of land can only litigate claims which “arise on boundary”; that is, they cannot tack on all other claims that might exist between them.466Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 726–27 (1838) (describing the reach of the clause); New York Delegates, Ratification, supra note 142, at 329 (describing the declaration from the New York ratifying convention that this clause “is not to be construed to extend to any other controversies between [the citizens], except those which relate to such lands, so claimed, under grants of different states”).

[Some] Controversies between a State, or the Citizens Thereof, and foreign States, Citizens, or Subjects. When interpreting the Foreign-State Diversity Clause, it is important to recall that claims arising under treaties, admiralty jurisdiction, or other federal law would be adjudicated with reference to the first tier of Article III. In consequence, the Foreign-State Diversity Clause should be understood as creating a default rule of state sovereign immunity: it would follow, as Madison and Marshall maintained at the Virginia ratifying convention, and as the modern Supreme Court has held, that a suit prosecuted against a State under the Foreign-State Diversity Clause could only go forward with the State’s consent.467See Medellin v. Texas, 552 U.S. 491, 500 (2008).

This default provision of state sovereign immunity makes good sense. As the Supreme Court explained in Monaco v. Mississippi,468292 U.S. 313 (1934). the reverse—a default rule of eliminating state sovereign immunity in litigation by foreign entities—would be seriously disruptive:

It cannot be supposed that it was the [Framers] intention that a controversy growing out of the action of a State, which involves . . . the interests of a foreign State . . . should be taken out of the sphere of international negotiations and adjustment through resort by the foreign state to a [compulsory] suit under the [ninth head of judicial Power].469Id. at 331; see also Florida v. Georgia, 58 U.S. (17 How.) 478, 520–21 (1855) (Campbell, J., dissenting) (discussing State liability in similar contexts); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 266 (1796) (opinion of Iredell, J.) (explaining that when a State violates the law of nations, that still requires “the nation injured [to] complain to the sovereignty of the Union”).

As for suits against foreign entities involving only the ninth head of judicial Power, the two-tiered theory would not necessarily imply that they, like U.S. States, are entitled to constitutionalized sovereign immunity rights. Nothing in the history or precedent surveyed here suggests that the qualified grant of judicial Power was intended to incorporate some antecedent exclusion of compulsory suits against foreign sovereigns.470See Opati v. Republic of Sudan, 140 S. Ct. 1601, 1605 (2020) (explaining that the Supreme Court has long maintained “that foreign sovereigns do not enjoy an inherent right to be held immune from suit in American courts”). There is, moreover, no cousin to the federalism canon that demands that the Constitution be construed in favor of foreign nations’ prerogatives. Thus, it may well be that so long as the substantive law applicable in these Controversies permits a foreign state to be sued without consent, then, under the Foreign-State Diversity Clause, it can be.

Of course, the content of the law to be applied remains critical. The Framers understood that the Foreign-State Diversity Clause, much like the Admiralty and Ambassador Clauses, would make the law of nations applicable in these Controversies unless Congress chose to override it.471See Samantar v. Yousuf, 560 U.S. 305, 311–13 (2010); Madison, The Debates in the Several State Conventions, supra note 156, at 533 (explaining that suits under the Foreign-State Diversity Clause would be decided “consonant [with] the law of nations”). Until the 1950s, the federal courts, expounding the law of nations, followed the so-called “classical” theory under which a nonconsenting foreign sovereign could not be sued unless the Executive Branch, usually the State Department, said otherwise.472Opati, 140 S. Ct. at 1605. Thereafter, the Judiciary shifted to a “restrictive” theory that limited this default rule of foreign sovereign immunity to “a sovereign’s public but not its private acts.”473Fed. Republic of Germany v. Philipp, 141 S. Ct. 703, 713 (2021). Then, in 1976, Congress enacted the Foreign Sovereign Immunities Act, which, in various instances, either codified or overrode the Judiciary’s various pronouncements on this score.474Republic of Argentina v. NML Capital, Ltd., 573 U.S. 134, 141 (2014). This enactment effectively—and according to the two-tiered reading of Article III, likely permissibly—turned foreign sovereign immunity into a largely statutory right.

Conclusion

This Article cannot purport to be the last word on whether the two-tiered reading of Article III is the right one. But, it has demonstrated that the reading accounts for not only the text of the Constitution as ratified, but also the text of the Eleventh Amendment; that significant members of the founding generation interpreted Article III in the same manner; and that the same reading was adopted, albeit briefly, as the law of the land in Cohens v. Virginia and Rhode Island v. Massachusetts.

This two-tiered understanding of Article III and sovereign immunity appears, moreover, to be both “safe for the States, and safe for the Union.”475McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 430 (1819). In litigation concerning issues of unique national importance, it implies that States lack a constitutionalized veto power over federal judicial proceedings. But beyond that sphere of supreme federal authority, the reading recognizes a separate sphere of state sovereign immunity: a constitutional privilege that ensures, among other things, that the Judiciary cannot bankrupt States by forcing them to cough up debts during times of fiscal crisis.476See The Federalist No. 81 (Alexander Hamilton).

By locating these bimodal principles in Article III’s varied text, the two-tiered reading might help resolve some arguments made on both sides of the sovereign immunity debate. It could set to rest dignitary concerns about dragging States into federal court, as most defenders of State prerogatives acknowledge that States could, and to some degree did, agree to compulsory federal adjudication by ratifying constitutional provisions carrying such an effect.477See Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 253–54 (2011); see also Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 325 (1816) (“[T]he people had a right . . . to make the powers of the state governments, in given cases, subordinate to those of the nation . . . .”); Edmund Randolph, Report of the Attorney General to the House of Representatives 30 (Dec. 31, 1790) (“[C]an the United States, or a particular state, be defendant? To be a party, as is the phrase of the Constitution, is to be a plaintiff or defendant. Do the rights of sovereignty forbid the latter? They do not, where the sovereign becomes defendant with his own consent. The Constitution is such an act of consent, done by the United States and the individual states . . . .”). At the same time, it might answer critics who attack sovereign immunity as a monarchical relic incompatible with the Constitution’s embrace of popular sovereignty,478See, e.g., Amar, supra note 272, at 1436; Gibbons, supra note 63, at 2004. as there is surely no tyranny in the people’s representatives deciding, in their founding document, to absolve States from a requirement to engage with every lawsuit on its merits even past the point of financial ruin.479Cf. Alden v. Maine, 527 U.S. 706, 750 (1999) (“[A]t the time of the founding, many of the States could have been forced into insolvency but for their immunity from private suits for money damages.”); United States v. Kwai Fun Wong, 575 U.S. 402, 422 (2015) (Alito, J., dissenting) (“Even frivolous claims require the Federal Government to expend administrative and litigation costs, which ultimately fall upon society at large.”). Of course, such a provision of sovereign immunity might require, as Justice Souter has said, an endowment from “the true sovereign, the people, in their Constitution.”480Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 154 (1996) (Souter, J., dissenting). What the two-tiered reading of Article III purports to do is identify, in text, precisely where that grant is made.

 

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