The Judicial Power of the United States: The Eleventh Amendment in American History

248 Pages·1987·11.82 MB·English

by  John V. Orth

The Judicial Power of the United States
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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
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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
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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