Harvard Law Review Forum
The Unsettled Nature of the Union
Responding 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 offered 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 argued that the Amendment’s 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’s diversity provisions, the Amendment’s framers were effectively precluding all suits against the states in federal court. In this response, Professor Carlos M. Vázquez notes that Professor Clark’s defense of the Eleventh Amendment’s text combines a narrow claim and a broad claim. Professor Vázquez finds Professor Clark’s 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, Professor Vázquez is unconvinced by Professor Clark’s 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’s 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.