With news that Montana has lost it’s challenge of Citizens United’s sweeping rules on campaign finance, there are no doubt those saying that Bullock let us down by not trying to apply the eleventh amendment to the case, with some even accusing Bullock of betraying us and being some kind of Manchurian Candidate. This is foolish, for two reasons. First, the 11th Amendment doesn’t apply in this case, something that was deciding 104 years ago. Secondly, if it did, we would live in a a terrifying world.
First, for those of you who shared my curiosity about the eleventh amendment as it applies to this case but were similarly disappointing by the lack of any such explanation in the papers, here’s a bit of background. The amendment in question does indeed prevent private entities from suing individual States in a federal court, because such states are quasi-sovereign unto themselves. If you want more explanation of the amendment, Loyola Law School in LA has a good explication here.
This all kind of came tumbling down in 1908 with the case Ex Parte Young. In a case uncannily similar to the one Bullock was endeavoring to fight, the stockholders of a railroad company sued the Attorney General of Minnesota (Edward Young) regarding what it considered unconstitutional restrictions on its business. What the court essentially concluded was that:
“The attempt of a State officer to enforce an unconstitutional statute is a proceeding without authority of, and does not affect, the State in its sovereign or governmental capacity, and is an illegal act, and the officer is stripped of his official character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to its officer immunity from responsibility to the supreme authority of the United States.”
In a modern context, the Supreme Court would have been compelled to overlook (and they did in fact choose to ignore the amicus curiae briefs bringing up) the 11th amendment because a precedent had already been set – Bullock, in trying to enforce an unconstitutional law, was no longer an agent of Montana, and thus was not defended by State sovereignty.
What about if we managed to overturn that precedent? Sure, it’s a long shot, but wouldn’t it be worth a try?
In a nutshell, no. A legal environment where the 11th amendment was enforced without regard to the constitutionality of the actions of State’s agents would be horrifying. It would essentially mean that no one could sue the state for violations of their civil rights. States could, in theory, restrict the speech of their citizens, their voting rights, or even their sexual activities, as long as their state courts agreed.
The Supreme Court has let us down again, unsurprisingly, but it would have been far worse in the long run if they had overturned their precedents that allow citizens to seek protection of their rights from the US constitution.