In my previous post, I was pleased to present Bruce Ackerman’s reply to my paper, We the People: Each and Every One, which is a portion of his reply to critics that will appear in the Yale Law Journal. Here is the Postscript to my paper (also sans footnotes which are available in the full paper at the link) in which I respond to his reply:

POSTSCRIPT

In his remarks for this symposium, Professor Ackerman graciously responded to some of the criticisms of his project I make here, as well as offering his own criticisms of the conception of individual popular sovereignty and presumed consent that I propose. Ackerman writes:

Professor Barnett’s appeal to Chisholm is flatly inconsistent with his originalist commitment to textualism. However inspiring he may find the opinions of Jay and Wilson, Americans of the Founding era emphatically disagreed. It took them only one year to mobilize in Congress and the states to enact the Eleventh Amendment which repudiated Chisholm and propelled the Constitution in a different direction…. Interpreting popular sovereignty on the basis of Chisholm is like interpreting citizenship on the basis of Dred Scott. Professor Barnett must choose: either he is a textual originalist or he is an advocate of social contract theory. But not both.

In his reply to critics, Professor Ackerman rightly emphasizes that some of the criticisms advanced against his latest book were addressed in earlier volumes. In my discussion of Chisholm above, I similarly neglected to refer the reader to where I had previously considered and rejected the claim that the Eleventh Amendment “repudiated” the individualist conception of popular sovereignty articulated in Chisholm. In this Addendum, I do not present a full defense of my views, but seek instead to clarify just two points: (1) the Eleventh Amendment’s relationship to Chisholm, and (2) the relationship of my invocation of individual popular sovereignty to originalism.

DID THE ELEVENTH AMENDMENT “REPUDIATE” CHISHOLM?

By invoking the Eleventh Amendment in response to my discussion of the conception of popular sovereignty in Chisholm, Ackerman has waded into deep and treacherous waters. In his reply, Ackerman is claiming that the highly technical language of the Eleventh Amendment construing Article III’s state citizen diversity should be read as a repudiation of the idea expressed in Chisholm that the people as individuals are sovereign. He offers no evidence whatsoever that the Amendment was so read at the time, and this reading of the text itself is so implausible as to border on absurdity. Indeed, if the Eleventh Amendment’s partial protection of state immunity from lawsuits in federal court really did replace the sovereignty of We the People with a state-based conception of sovereignty, the implications for Ackerman’s own theory would be devastating.

Subtleties matter when considering the relationship of the Eleventh Amendment to the justice’s seriatim opinions Chisholm. For a start, we must carefully distinguish between two distinct positions. The first is the claim that the Court in Chisholm had incorrectly interpreted the original meaning of Article III and that, therefore, the Eleventh Amendment restored that original meaning. The second is that Chisholm was a correct interpretation of Article III and that, therefore, the Eleventh Amendment changed or qualified that original meaning.

Ackerman is unclear whether he thinks the Eleventh Amendment changed or restored the original meaning of the text: “It took [Americans of the Founding era] only one year to mobilize in Congress and the states to enact the Eleventh Amendment which repudiated Chisholm and propelled the Constitution in a different direction.” Does this mean that the Eleventh Amendment took the Constitution in a different direction (change), or that the Eleventh Amendment took “the Constitution” of the Supreme Court in a different direction (restoration)? He does not say which. At moments like this, it is useful to be able to distinguish the meaning of “the Constitution” itself from the constitutional law of the Supreme Court, but Ackerman’s project elides this distinction, and here it shows.

Then there is a second subtlety: Whether it was a restoration or a modification of the original meaning of Article III, did the original meaning of the Eleventh Amendment “repudiate” the principle of individual popular sovereignty announced in Chisholm in favor of a general unwritten principle of state sovereignty or, perhaps more narrowly, state sovereign immunity? Or did it instead merely do what it says and nothing more: insulate a state from suits in federal court by citizens of other states and of foreign nations. While the latter, far narrower, proposition has been endorsed by a broad swath of ideologically and methodologically diverse Eleventh Amendment scholars, Ackerman is apparently endorsing the first of these readings. [long footnote omitted]

As it happens, however, Chief Justice John Marshall did not agree. In a little-noted passage of his opinion in Fletcher v. Peck, some twenty years after the Eleventh Amendment was adopted, he observed: “The Constitution, as passed, gave the courts of the United States jurisdiction in suits brought against individual States. A State, then, which violated its own contract was suable in the courts of the United States for that violation.” Marshall then concluded that, although “this feature is no longer found in the Constitution,” it nevertheless still “aids in the construction of those clauses with which it was originally associated.” In other words, according to John Marshall, Chisholm was a faithful interpretation of the original meaning of the Constitution at the time it was decided, and remained a correct reading of the general principles of our political institutions even after the text was amended to carve out a limited immunity for states.

Given that Ackerman plays the Dred Scott card, it is ironic that he endorses the reading of the Eleventh Amendment that was first adopted by the same shameful post-Reconstruction Supreme Court that gutted the Republican’s revolutionary formal amendments. For it was not until the 1890 case of Hans v. Louisiana, decided just six years before Plessy v. Ferguson, that the Supreme Court first took the position that the Eleventh Amendment had repudiated its own decision in Chisholm. Like Ackerman, the Court in Hans asserted that the views of state sovereignty articulated by Justice Iredell in his solo dissent in Chisholm “were clearly right,—as the people of the United States in their sovereign capacity subsequently decided” when it enacted the Eleventh Amendment.

This position was then reaffirmed and extended by the Rehnquist Court in Seminole Tribe of Florida v. Florida. In his opinion in Seminole Tribe, Chief Justice Rehnquist quoted Hans with approval: “Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, ‘we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms.’” Like Ackerman, Chief Justice Rehnquist excoriated the dissent for “relying upon the now-discredited decision in Chisholm v. Georgia.”
Not only does the text itself not support the conclusion that the Eleventh Amendment repudiated Chisholm’s view of popular sovereignty, to reach its conclusion, the Supreme Court needed to reject arguments based on the text:

The dissent’s lengthy analysis of the text of the Eleventh Amendment is directed at a straw man—we long have recognized that blind reliance upon the text of the Eleventh Amendment is [quoting Hans] “to strain the Constitution and the law to a construction never imagined or dreamed of.” The text dealt in terms only with the problem presented by the decision in Chisholm….

The Court’s modern Eleventh Amendment doctrine, seemingly endorsed by Ackerman as the original meaning of the Constitution, rests not on the “literal” text of the Amendment, but rather on what the Court claims to be its unwritten underlying “presupposition.”

To establish this unwritten principle, the Court in both Hans and Seminole Tribe employed the now-generally-rejected approach to originalism that is based on the original intentions of the framers or ratifiers, rather than upon the original public meaning of the text that was adopted. Justice Bradley’s opinion in Hans exemplifies a typical feature of original intent Proto-Originalism: its reliance on the counterfactual hypothetical intentions of the framers rather than on historical evidence of textual meaning.

Can we suppose that, when the Eleventh Amendment was adopted, it was understood to be left open for citizens of a State to sue their own State in the federal courts, whilst the idea of suits by citizens of other states, or of foreign states, was indignantly repelled? Suppose that Congress, when proposing the Eleventh Amendment, had appended to it a proviso that nothing therein contained should prevent a State from being sued by its own citizens in cases arising under the Constitution or laws of the United States can we imagine that it would have been adopted by the States? The supposition that it would is almost an absurdity on its face.

Even before I was an originalist, I dubbed this technique, “channeling” the framers.

Which leads to a second irony of Professor Ackerman’s invocation of Dred Scott. By appealing to the principles, “presuppositions” or “postulates” allegedly held by the relevant drafters or ratifiers to override the public meaning of the text itself, the Court in Hans employed the same type of hypothetical original intent reasoning used by Justice Taney in Dred Scott when he interpreted the meaning of “the People” in the Preamble and in the Declaration of Independence.

It cannot be supposed that [the State sovereignties] intended to secure to [free blacks] rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State.

This use of hypothetical original intent to narrow the meaning of the text of the Reconstruction Amendments later became a favorite technique of the Reconstruction Era Supreme Court, beginning as early as The Slaughter-House Cases.

WHY I WAS NOT MAKING AN ORIGINALIST ARGUMENT ABOUT POPULAR SOVEREIGNTY

Regardless of whether the individualist conception of popular sovereignty expressed by Justices Jay and Wilson in Chisholm v. Georgia was somehow repudiated by the Eleventh Amendment, by invoking their opinions I was not myself making an originalist argument. That is, I was not claiming that the individualist conception of popular sovereignty was somehow to be found in the communicative content of the text of the Constitution. Instead, I was making a normative argument about the conditions of establishing constitutional legitimacy. Or, more precisely, I was responding to the implicit normative argument made by Ackerman when he invokes the higher-lawmaking power of a super-majority of “We the People.”

Rather than alleging the consent of majorities, super-majorities or states, I proposed using the “presumed consent” of individuals to reconcile the assertion in the Declaration of Independence that governments are instituted “to secure these” pre-existing individual, natural, and inalienable rights retained by the people with its assertion that such governments “deriv[e] their just powers” from “the consent of the governed.” The individualist conception of popular sovereignty articulated by Jay and Wilson reduces the tension between these two claims in a manner that today’s exclusive focus on collective popular sovereignty conceals.

I then proposed that—as explained by Justice Chase in Calder, as well as by Locke and Edmond Randolph —there are legislative powers to which it cannot be presumed that each and every person has consented, even if a majority or supermajority of the people so approve. The existence of the individual natural and inalienable rights retained by the people undercuts any claim that “the People,” considered as individuals, impliedly consented to a legislative power to violate these rights.

But, as I noted above [in the original paper], this is not an originalist argument. This is an argument about how to construe the scope of nontextual constitutional powers in a way that enhances constitutional legitimacy, by which I mean whether laws that are imposed on a nonconsenting individual by a given constitutional order are binding in conscience on that individual. It would be bootstrapping to claim that the constitutional order established by the founders’ Constitution was legitimate because it comported with the founders’ own conception of legitimacy based on their allegedly collective conception of popular sovereignty.

It is true that, for over twenty-five years and beginning well before I myself was an originalist, I have contended that the original meaning of the “rights…retained by the people” in the Ninth Amendment was a reference to individual, natural, liberty rights and that, as a matter of positive constitutional law, such rights should not be denied or disparaged. But, while the normative claim that the legal order established by the Constitution is (or is not) legitimate must begin with its positive meaning, which I maintain is its original meaning, it cannot end there. In short, I never naively “base [my] preference for Locke simply because [sic] his Second Treatise influenced some leading Founders.”

For this reason, Ackerman’s characterization of my position as a “rejection of originalism” is a gross distortion. Unsurprisingly, I remain fully committed to originalism but argue, as I always have, for the legitimacy of the originalist constitutional order on normative grounds. The opinions in Chisholm v. Georgia demonstrate that individual popular sovereignty is deeply rooted in our constitutional tradition, but the normative legitimacy of the constitutional order must be supported by reasons that we can affirm here and now.

As I have written, “if the original meaning of the Constitution is not ‘good enough,’ then originalism is not warranted because the Constitution is itself defective and illegitimate. This represents a rejection of the Constitution, not a rejection of originalism per se.” At the same time, I also insisted that “[s]hort of making the claim of illegitimacy, however, we are bound to respect the original meaning of a text, not by the dead hand of the past, but because we today—right here, right now—profess our commitment to this written Constitution, and original meaning interpretation follows naturally from this commitment.”

Nor do I offer a social contractarian normative defense of the natural rights retained by the people. Instead, I defend them at length on the ground that they are necessary to address the fundamental social problems of knowledge, interest, and power—problems that must somehow be addressed if persons are to pursue happiness while living in society with each other. My use of “contractarian” reasoning here and elsewhere reasoning is simply responsive to the commonplace claim that “the People” have somehow collectively, via a majoritarian decision-making process, “consented” to bind everyone. To this, I reply, “not so fast.”

Indeed, it appears to be Ackerman who is invoking the authority of the founders to establish the legitimacy of his collective conception of popular sovereignty. “Once Professor Barnett abandons his ahistorical appeal to John Locke,” he chides, “his commitment to the original understanding requires him to consider whether my blow-by-blow description of these the latter-day transformations satisfy the principles of popular sovereignty established at the Founding.”

Ackerman is right that my “appeal to John Locke” is “ahistorical” insofar as a Lockean conception of natural rights (among others) contributes to our normative assessment of the legitimacy of the Constitution. But what Ackerman then dismisses as “our philosophical disagreement” about the normative legitimacy of the constitution simply cannot be obviated by appeals to history. At some point, constitutional theorists who make claims about constitutional legitimacy must either offer cogent normative arguments, which I acknowledge is demanding, or at least candidly admit their normative assumptions for their audience to judge.

In the end, in his monumental “We the People” series of books, Ackerman may or may not be describing accurately the positive constitutional law of informal constitutional change outside of Article V. For reasons given above, I say “nay.” But even Bruce Ackerman cannot derive a normative “ought” from an historical “is,” no matter how many volumes he writes.