History and the Eleventh Amendment

More than any other part of the Constitution, the Eleventh Amendment is said to receive its meaning from history.As Justice Kennedy candidly conceded, writing for the majority in Alden v. Maine, "The Eleventh Amendment confirmed rather than established sovereign immunity as a constitutional principle; it follows that the scope of the States' immunity from suit is demarcated not by the text of the Amendment alone but by fundamental postulates implicit in the constitutional design." 1 To interpret the Eleventh Amendment by reference only to its words, he dismissed as "ahistorical literalism." 2 In establishing the proper historical context, judges and commentators routinely rely upon several pieces of evidence: Justice Iredell's dissent in Chisholm v. Georgia, 5 the case that prompted the Eleventh Amendment; Justice Bradley's opinion of the Court in Hans v. Louisiana, 4 the case that established the primacy of sovereign immunity over the text of the Amendment; the principle of sovereign immunity as understood at the time of the American Revolution; and the fact of American state indebtedness at the time of constitutional ratification.Each item may be profitably re-examined.But first we should remind ourselves of the neglected words of the Eleventh Amendment: "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." 5 The words show many signs of being carefully chosen.Explicit reference is