The Unsettled Nature of the Union

Abstract

This article is a response to Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817 (2010). In his article, The Eleventh Amendment and the Nature of the Union, Professor Bradford Clark offeres an explanation for the puzzling text of the Eleventh Amendment, which appears to preclude federal jurisdiction over suits against a state by citizens of other states but not by its own citizens. Professor Clark argues that the Amendment\u27s text made sense to the Founders because they did not envision any suits against the states arising under federal law. Thus, by clarifying that the states could not be sued under Article III\u27s diversity provisions, the Amendment\u27s framers were effectively precluding all suits against the states in federal court. In this response, the author notes that Professor Clark\u27s defense of the Eleventh Amendment\u27s text combines a narrow claim and a broad claim. the author finds Professor Clark\u27s narrow claim that the Founders understood that the federal obligations of the states would be enforceable in suits against state officials rather than the states themselves to be well supported. On the other hand, he is unconvinced by Professor Clark\u27s broader claim that the Founders understood that the federal government would lack the power to impose legal obligations on the states. He finds Professor Clark\u27s evidence for this claim to be equivocal, most of it being susceptible to a narrower reading. In his view, the Founders did not settle this particular aspect of the legislative power of the federal government