A few posts back, I groused (loudly) over Justice Clarence Thomas’ majority opinion in FTB v. Hyatt, overturning a previous Supreme Court decision, Nevada v. Hall regarding the immunity of states from suit in other states’ courts. In rejecting Hall, the Court found that the Constitution not only grants states an inherent immunity to suits in their own courts (as “sovereigns”), and, per the 11th amendment, suits brought in federal court, but also a similar immunity from suits in courts of other states.1 My objection, which largely echoed that of many others, was that avowed “textualist” Justice Thomas could not find specific language to justify his conclusion, finding it somehow silently “embedded” though unspoken, a trick he roundly criticized when practiced by “liberals”.
In keeping with standard textualist practice, Thomas extensively quotes from his beloved “Founders”, as he calls them (with commendable correctness), whose entire intellectual and moral universe must be grasped in order to interpret correctly the Constitution they produced. The issue of “state sovereignty” was indeed discussed at length in the runup to the actual enactment of the Constitution and, as one might guess, the good Justice fairly wallows in antiquarian delight at the banquet of riches before him—quoting from (of course) the Federalist Papers, as well as debates from the Constitutional Convention itself, and even various state documents dating from the days of the “Articles of Confederation” (the post-revolutionary, pre-Constitutional agreement that briefly governed the relationships of the 13 newly independent states)—anything and everything erudite and obscure that he and his clerks can lay their learned hands on—except, of course, for texts that contradict his position, texts that he could have found—and you can find—by consulting Nevada v. Hall, specifically footnote 17 of Justice Stevens’ majority opinion.
What an “embarrassment” (my word), then, in the first major decision of the brand new Supreme Court, Georgia v. Chisolm,2 the Court inexplicably decided, by a 4-1 margin, that the brand new Constitution substantially overwrote the sovereign immunities of the 13 states, to the extent that a citizen of one state could use the brand new federal court system to do what could not be done before—sue a state.
For poor Justice Thomas, this is a terrible embarrassment for his carefully constructed—and clearly erroneous—argument as to the near sacred importance of the doctrine of state sovereignty in the minds of the Founders. The Court “blundered”, he “explained”. Excusez-moi, but how, precisely, does a court “blunder”? “Yeah, we thought we were going north but actually we were going south so when we turned left we were turning east instead of west, so we ended up on the docks. Stoopid!”
Is that how it went down? I don’t think so. Consider, this 4-1 decision, the first major Supreme Court decision in our history, was decided by, the Founders! All five members, after all, were appointed by George Fucking Washington, the mother of all founding fathers. The Chief Justice, who voted with the majority, was John Jay, who served as president of the Second Continental Congress in the latter days of the American Revolution and was also one of the three authors of—wait for it—the Federalist Papers! Also voting with the majority was Virginian John Blair, active in Revolutionary politics in his state, helping to write both his state’s constitution and the Virginia Declaration of Rights, which influenced both the Declaration of Independence and the U.S. Bill of Rights. Next up was James Wilson, who signed both the Declaration of Independence and the Constitution, which he also helped write. Finally, there was William Cushing, who served as Chief Justice of the Massachusetts Superior Court during and after the Revolution.3
These are the men who, Justice Thomas says, “blundered”. But how could they? The whole point of the textualists’ approach is to laboriously reconstruct the Founders’ understanding of the Constitution. If Thomas’ understanding of the meaning of the Constitution conflicts with that of the Founders themselves, who is in error? Who could it be other than Thomas? Who is Clarence Thomas to tell John Jay that he doesn’t know what he’s talking about? It is as if an artist should paint a portrait based, not on the living subject but rather on sketches and descriptions provided by others, and then, when confronted by the man himself in the flesh, should exclaim “No, you don’t look like yourself at all!”
In fact, Thomas’ reconstruction of the Founders’ thought is a mere “construct”—something he has manufactured out of his own will and desires, both unconsciously and consciously cherry-picking history to obtain the outcome he wants—this case an instance of the frequent textualist interest in glorifying state “sovereignty” at the expense of federal review.
Afterwords
So many afterwords! First of all, if Thomas took the Constitution seriously, he’d realize that the Supreme Court, when interpreting the Constitution, can’t “blunder”, because the Constitution assigns that duty to the Court itself. The Constitution says what the Court says it says. Of course, Justice Thomas only believes that when he does the talking, only he sees the “true Constitution”, a looming presence in the skies that is truly there though visible to his eyes alone.4
Thomas defends the majority’s decision to reject stare decisis (that is to say, following precedent, in this case the precedent set by Nevada v. Hall) on the grounds of, stare decisis! “With the historical record and precedent against him, [says Thomas] Hyatt defends Hall on the basis of stare decisis. But stare decisis is “ ‘not an inexorable command,’ ” Pearson v. Callahan, 555 U. S. 223, 233 (2009), and we have held that it is “at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment,” Agostini v. Felton, 521 U. S. 203, 235 (1997).”
Of course, if one follows logic “inexorably”, neither Callahan nor Felton are “inexorable commands” either. I also don’t understand why the Hyatt folks don’t have “precedent” on their side, since Nevada was precedent. The whole paragraph has the flavor of the “Cretan Liar” paradox cited by St. Paul: “A man told me ‘All Cretans are liars’, and I know he spoke the truth, because he was a Cretan!” Justice Thomas seems on a verge of inventing his own judicial version of Gödel's incompleteness theorems, which would prove that the law contains truths that cannot be proven and that the law cannot prove itself to be consistent. He would have been better off, I think, if he had merely pointed to the fact that the Court has often overruled itself.
Perhaps even more interesting are the two cases that Thomas cites as precedent for disregarding precedent, Callahan and Felton, which are, surprise, surprise, cases decided by majorities of which he was a member. Particularly interesting is the quotation arguing that the doctrine of stare decisis is “at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment,” which appears in Justice Sandra O’Connor’s majority opinion in Felton, “explaining” why the Court was overturning precedent in order to allow the use of public funds for religious instruction. If you track down O’Connor’s language in Felton, you’ll find that she justifies that argument by citing a number of cases, all decided by, amazingly enough, the Rehnquist Court, in which she joined, and buttressing it with a quotation from a much earlier case, decided in 1936, St. Joseph Stock Yards Co. v. United States: "The doctrine of stare decisis ... has only a limited application in the field of constitutional law", taken from a concurring opinion signed by Justices Stone and Cardozo, without mentioning that they were concurring, not with the majority opinion but the result, preferring separate reasoning provided by Justice Brandeis in his concurring opinion and pointing to an earlier dissenting opinion by Brandeis providing additional arguments for deemphasizing stare decisis with regard to Constitutional issues, in Burnet v. Coronado Oil & Gas Co.
In that dissent, which of course was not controlling, Brandeis argued that “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this court has often overruled its earlier decisions. The court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.” [citations and footnotes omitted]
Of course, Brandeis believed explicitly in “progress”, and believed the Court should overrule itself on constitutional issues whenever “the lessons of experience and the force of better reasoning” clearly indicate that a change should be made. In advocating this position, Brandeis takes “judicial notice” (and implicit judicial notice at that) of the “fact” that the Constitution is “practically impossible” to amend and thus the Court has a positive duty to alter its interpretation of the Constitution according to the “lessons of experience”.5 This is the exact opposite of Thomist textualism, which insists that we are bound hand and foot to a supposedly unchallengeable and flawless past—or at least his reconstruction of it—a theory which resolutely ignores the fact that the “Founders”, like anyone else, invariably used imprecise language, often spoke casually, often spoke to persuade, and, in the actual writing of the Constitution, used deliberately imprecise (“compromise”) language to paper over differences and included contradictory passages and provisions, confident that everything would work out because they would be in charge, and furthermore were the prisoners of their times, refusing to admit as rational creatures women, “savages”, and slaves, among others.
While we’re on the topic of slavery, we might end with a quotation on the subject of constitutional interpretation given by William Cushing when he was chief justice of Massachusetts, pronouncing on the legality of slavery under the new, revolutionary constitution of that state. After acknowledging that slavery had been recognized as legal by the British statute and common law of the past, Cushing remarked as follows:
But whatever sentiments have formerly prevailed in this particular or slid in upon us by the example of others, a different idea has taken place with the people of America, more favorable to the natural rights of mankind, and to that natural, innate desire of Liberty, with which Heaven (without regard to color, complexion, or shape of noses/features) has inspired all the human race. And upon this ground our Constitution of Government, by which the people of this Commonwealth have solemnly bound themselves, sets out with declaring that all men are born free and equal – and that every subject is entitled to liberty, and to have it guarded by the laws, as well as life and property – and in short is totally repugnant to the idea of being born slaves. This being the case, I think the idea of slavery is inconsistent with our own conduct and Constitution; and there can be no such thing as perpetual servitude of a rational creature, unless his liberty is forfeited by some criminal conduct or given up by personal consent or contract,
Yes, I could do without that last “unless”, but there is no reason for us to be bound by whatever is “slid in upon us by the example of others”, including the “Founders”, without the permission and assent of our reason.
1. States have the power, of course, to limit their immunity if they wish.
2. Full text of Georgia v. Chisolm is here. Early decisions of the Court lacked the explanatory paraphernalia of today. In addition, there is no majority decision. Instead, each justice wrote his own. The actual text begins with the one “dissenting” opinion—i.e., the one holding that states could not be sued in federal court, written by Justice James Iredell. Wikipedia’s discussion of the case is here.
3. In fairness, it must be said that the original 13 states felt that the Court had “blundered”. They were so infuriated that they rallied together with their representatives in Congress to protect themselves from such indignities via the 11th Amendment, which states that “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.” Whether they are protected from the “Judicial power” of another state is another question. In any event, the 11th Amendment did not “correct” the Court, but rather changed the Constitution.
4. Has a single justice, for a single term of the Court, ever agreed with Thomas’ reasoning in every case? If not, why not? The “looming presence” language refers to a gibe by Oliver Wendell Holmes, not the textualists’ favorite, who was criticizing metaphysical theories of law based on German “Idealistic” philosophy based largely on Kant and Hegel.
5. O'Connor "explains" that stare decisis must give way to the "development of constitutional law", said development seen to occur with particular rapidity after O'Connor joined the Court.
