Academic

New Draft of Lash on the Eleventh Amendment

By Lawrence Solum

Kurt T. Lash (Loyola Law School Los Angeles) has posted a new version of Leaving the Chisholm Trail: The Eleventh Amendment and the Background Principle of Strict Construction.  I've already posted the abstract, but here is an excerpt from the revised text:

Both the majority and dissenting opinions in Chisholm present reasonable interpretations of the text. The majority is surely correct that the text of Article III is capable of being read to allow suits brought by individuals against a non-consenting state. Iredell seems equally correct, however, that the text does not compel such a reading. The mere grant of subject matter jurisdiction by itself does not necessarily imply jurisdiction over suits against a non-consenting government entity.277 For example, the majority did not read the grant of subject matter jurisdiction over cases in which the United States was a party to mean that individuals could sue the national government. The issue dividing the majority and the dissent thus was not one of ?plain meaning,? but one of retained sovereignty. The majority assumed that sovereignty inhered in the people as a national entity; therefore, there was no reason to apply a rule of strict construction in order to protect any remnant sovereignty in the states. Iredell believed that sovereignty flowed to the national government from the people in the states, and that, absent an express statement to the contrary, this power must be construed in a manner preserving the retained sovereignty of the people who made the delegation in the first place.

Essential reading for anyone interested in Eleventh Amendment jurisprudence or the theory of popular sovereignty.

Full post as published by Legal Theory Blog on July 10, 2008 (boomark / email).