The Judicial Power of the United States This page intentionally left blank THE JUDICIAL POWER OF THE UNITED STATES The Eleventh Amendment in American History JOHN V. ORTH New York Oxford Oxford University Press 1987 OXFORD UNIVERSITY PRESS Oxford New York Toronto Delhi Bombay Calcutta Madras Karachi Petaling Jaya Singapore Hong Kong Tokyo Nairobi Dar es Salaam Cape Town Melbourne Auckland and associated companies in Beirut Berlin Ibadan Nicosia Copyright © 1987 by John V. Orth Published by Oxford University Press, Inc., 200 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Orth, John V., 1947- The judicial power of the United States. Bibliography: p. Includes index. 1. United States—Constitutional law—Amendments—llth. 2. Judicial power—United States—History. 3. Jurisdiction- United States—History. 4. State bonds—Law and legislation- United States-History. I. Title. KF8735.078 1987 347.73'12 86-8424 347.30712 ISBN 0-19-504099-6 135798642 Printed in the United States of America To THE HON. JOHN J. GIBBONS United States Court of Appeals 3rd Circuit Katie's godfather and the godfather of this book too This page intentionally left blank Preface "No part of a book is so intimate as the Preface. Here, after the long labor of the work is over, the author descends from his platform, and speaks with his reader as man to man, dis- closing his hopes and fears, seeking sympathy for his diffi- culties, offering defence or defiance, according to his temper, against the criticisms which he anticipates." With these words Harvard President Charles W. Eliot introduced the Harvard Classics collection of Prefaces and Prologues to Famous Books (1908). Were another such volume ever compiled, the present preface would find no place in it. But President Eliot's words bear repetition here because of the simple truths they so eloquently express. In the first place, despite its place- ment at the beginning of a book, a preface really comes last; that is, it is composed "after the long labor of the work is over." Oftentimes a preface is not fully comprehensible with- out reading the rest of the book. Also a preface is written in a more intimate style; the author addresses the reader, as President Eliot said, "man to man," or as we would say to- day, "person to person." Finally in a preface the author re- veals more of himself: he pens his apologia or thumbs his nose, "according to his temper." In a preface an author is invited to avow his hopes. Mine are to explain one of the most obscure parts of the Constitu- tion and to do it in terms understandable to the educated public. The Eleventh Amendment concerns the jurisdiction of federal courts, an esoteric topic normally reserved for legal audiences. As our nation approaches the two-hundredth an- niversary of the drafting of the Constitution it is well to no- tice its technical aspects as well as its great generalities. We Preface all know that courts must give the generalities concrete mean- ing in particular cases. When courts are open and when they are shut (which is what lawyers mean when they say a court does or does not have jurisdiction) concerns all citizens, not just the legal community. Eleventh Amendment law is hard to explain. Despite its brevity—less than fifty words—the Amendment itself is far from clear, and the cases that have elaborated (or embroi- dered) its meaning are peculiarly complicated. The principal historical cases concern, in fact, state debts in the form of bonds. For dryness and technicality no subject can rival pub- lic finance, except perhaps federal jurisdiction. To explain the one as developed in cases involving the other is a fearful task indeed. Can these dry bones be made to live? God knows! In an attempt to enliven my subject I have deliber- ately chosen a literary style that is unusual in the treatment of topics of such moment. Sparse use of technical terms and reference to works of popular fiction will strike those accus- tomed to legal treatises as unserious, even racy. In defense I say that its aim is to make the book more readable. Thirty years ago, in the Harvard Guide to American His- tory, Samuel Eliot Morison, President Eliot's kinsman, la- mented the fact that historians no longer wrote for the edu- cated public. Adopting a "scientific" style and addressing only their professional colleagues, historians forfeited the large audiences that had profited from the works of their great nineteenth-century predecessors. "When John Citizen feels the urge to read history," observed Morison, "he goes to the novels of Kenneth Roberts or Margaret Mitchell, not to the histories of Professor this or Doctor that." In law much the same thing has happened. Whereas Blackstone once wrote for gentlemen, and early American judges justified their decisions to a large readership, modern lawyers have withdrawn into a professional ghetto. Communicating only with one another, legal writers, including too many judges, VIII Preface have adopted a form of shorthand decipherable only by trained votaries. The law has suffered in the process. En- coded in the crabbed style is too often a crabbed doctrine, oversubtle and absurdly technical. John Citizen has been left out again; this time with no one to turn to. To hold this reader's attention while explaining the Eleventh Amendment, I quote his favorite authors—including Margaret Mitchell. I do this fully aware that the legal profession usually punishes such departures by simply ignoring them. If that is to be my fate I accept it—according to my temper—with a polite defi. Chapel Hill, N.C. J.V.O. June 1986 IX