Hyatt, the Constitution and the Common Law

Today the Court decided FTB v. Hyattcanceling Nevada v. Hall and declare that states enjoy sovereign immunity before the courts of other states. The majority opinion has rather sharp critical…largely because it was not based on any particular clause of the Constitution, but rather on general structural concerns.

In my opinion, Hyatt is an unfortunate opinion – not only because some of its reasonings could be questioned, but because it makes it more difficult to defend the originalist doctrine. At the same time, however, it may have a silver lining: encouraging a slow, perhaps generational change in the position of legal conservatives on the common law.

Much of what the Court says about the story seems correct. In the Court’s view, the States enjoyed sovereign immunity upon foundation; at common law and under the law of nations they were not subject to legal process without their consent. While the Constitution abrogated some of this immunity in federal courts (e.g., original interstate jurisdiction suits), it did not abrogate it entirely (which Chisholm misunderstood, and which the Eleventh Amendment reconfirmed). Sovereign state immunity has largely survived Article III.

So far, so good. But note that none of this is about if another statelike Nevada, can revoke California’s immunity in his courts, just as it could repeal any other rule of common law. Like Will Baude and me argued in our briefif immunity is truly a rule of common law and the law of nations – left untouched by Article III, and perhaps even beyond the limited powers of Congress to modify it – a Nevada court should still obey a Nevada law.

That said, even if the Constitution contained no substantive rule on this point, it offered a powerful procedural protection: the inability of the forum state to enforce its judgments by other courts. During the first hundred years of the Republic, federal and state courts consistently applied the common law and law of nations limitations on personal jurisdiction and sueability– not by inventing an affirmative constitutional bar, but simply by ignoring judgments that broke the rules (like the full faith and credit clause permit).

The Hyatt The court didn’t see it that way. Instead, he held that “the Constitution affirmatively alters the relations between the states”. Because each state retains its “equal dignity and sovereignty,” the Constitution “integrates sovereign interstate immunity into the constitutional design.” The Court also cited a catch-all of obligations imposed on states (privileges and immunities, full faith and credit, denial of war powers or embargoes, etc.), “confirming that [the states] are no longer fully independent nations.” But none of this answers the specific question that arises, which is whether they can abrogate the immunity of other states with theirs. Indeed, it is perhaps less reminiscent of the Court’s recent moves towards textualism, and more previous efforts to locate constitutional rules in any one of a number of clauses at once.

I happen to disagree with the Court’s analysis in Hyatt on the merits, but that is not really the question. (The line between “Nevada can’t send California back to its courts” and “Nevada can go ahead and try, but everyone will just ignore its judgment at the enforcement stage, and the federal courts could also be able to prohibit enforcement in appropriate circumstances” is pretty slim, and courts have mishandled more obvious and consequential distinctions before.) My concern is that a decision like this, which assigns rules implicit in the Constitution that no one at the Foundation seems to have found there, does more to bring discredited careful methodology than a variety of less serious errors that the courts might make.

Sovereign immunity is really difficult; it involves many precise distinctions between what was regulated by the text and what was left to pre-existing rules. And because it involves so many pre-existing rules, it’s easy to caricature the doctrine as “conservatives inventing things outside the text.” As someone who thinks the Court should pay a lot of attention to the text, but also that she’s been generally right on the doctrine of sovereign immunity so far – a”rare notice“, like David Currie or Will Baude— Paying attention to these distinctions is particularly important.

So why were the right-wing members of the Court willing to write (or sign) a relatively non-textualist opinion? I don’t think it’s as reductive or conspiratorial as “conservatives like sovereign immunity and liberals don’t”. I think the justices of the majority joined the opinion because they think it is correct. Consider a long passage towards the end of the opinion, which describes the many interstate cases in which no state has the power to conclude the claims of another (boundary disputes, water rights, etc.). Surely Something provides that states cannot declare by law that they own New Jersey or that they have better water rights than their neighbors, etc. Why wouldn’t that same something prevent Nevada from concluding California’s claims here? If structural inferences are never justified – and sometimes they are – why would they be unjustified when it comes to doctrines of sovereign immunity, which the Founders also believed?

Once the mysterious “something” in all of this would have been the general law doctrines – common law rules, equity, law of nations, conflict of laws, etc. – that governed matters where federal law was absent and none. State was only competent to legislate. These included, among others, the rules of personal jurisdiction and recognition of judgment it would have kept the states safe from each other’s courts. (See also Eugene’s point, regarding the Court’s reliance on “established law and practice” in matters such as a judicial review, removal of the executiveetc.)

We happen to have had 80 years of Erie try to persuade us that the general law cannot exist, and that the unwritten law is generally the prerogative of voluntary judges— whether it is “federal common law” invented by federal judges, or state common law invented by state judges, because “there can be no other law.“It is therefore not surprising that, in the face of a problem which the Founders clearly had some answer, and deprived of the relatively simple and intuitive vocabulary in which that answer might have originally been formulated, we instead get structural reasoning.

The silver lining in all of this, however, is that this opinion may be starting to recede. The scientific consensus against Erie seems to be building. The younger generation of originalists, textualists, etc., seems increasingly comfortable with our historic reliance on the general law and increasingly attentive to the role that law plays in a divided system of federal and state courts. Decisions like Hyatt could, in the end, be one of the last of its kind: if the alternative is an unwritten “equal dignity” clause, common law begins to look good.

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