What would Hugo Black have thought of Seminole Tribe?

[Geoffrey Howe]

What would Hugo Black have thought of Seminole Tribe of Florida v. Florida (and Hans v. Louisiana too)?

My guess is he would have disapproved since the 11th by its literal terms, and Black was very much a literalist, forbids only suits in diversity. My only qualm about that position is that Byron White, who was very restrained and amenable to federal power, joined in that whole line - Edelman, Atascadero etc.; Scalia, who at least claimed to follow original intent/text, joined Seminole Tribe.

[MarkD]

I'm afraid I don't have an answer to your question, because I'm not aware of any 11th Amendment cases that the Supreme Court handled during the 34 years that Black served on the Court, and I don't know anything about how he did interpret the 11th. I am posting here just because I don't particularly agree with you that Black should be called a "literalist." Black is more appropriately called an "interpretivist."

About 41 years ago, John Hart Ely published a book that has become pretty famous among students of constitutional law. The book was called "Democracy and Distrust," subtitled, "A Theory of Judicial Review." This book is one of the most frequently cited works in the field of constitutional theory -- how should courts interpret the U.S. Constitution. At the very beginning of the book, Ely wrote,

A long-standing dispute in constitutional theory has gone under different names at different times, but today's terminology seems as helpful as any. Today we are likely to call the contending sides "interpretivism" and "noninterpretivism" -- the former indicating that judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution, the latter the contrary view that courts should go beyond that set of inferences and enforce norms that cannot be discovered within the four corners of the document. ...
What distinguishes interpretivism from its opposite is its insistence that the work of the political branches is to be invalidated only in accord with an inference whose starting point, whose underlying premise, is fairly discoverable in the Constitution. That the complete inference will not be found there -- because the situation is not likely to have been foreseen -- is generally common ground.
Surely no one who watched the late Justice Hugo Black stand almost alone against the variety of novel threats to freedom of expression the legislators and executives of the 1940s and 1950s were able to devise could suppose that a historically straightjacketed literalism was any part of his constitutional philosophy. Yet Black is recognized, correctly, as the quintessential interpretivist. ...
[T]here seems to be something new, a growing intellectual appreciation of Hugo Black: people are discovering what to the perceptive was obvious all along, that behind his "backward country fellow" philosophy, with its obviously overstated faith that the language of the Constitution would show the way, there lay a fully elaborated (though surely debatable) theory of the limits of legimate judicial disrection and the hortatory use of principle. ...
Justice Black and the interpretivist school have an inference, one that seems to find acceptance with friend and foe alike. Of course, they would answer, the majority can tyrannize the minority, and that is precisely the reason that in the Bill of Rights and elsewhere, the Constitution designates certain rights for protection. Of course side constraints on majority rule are necessary, but as the framers wisely decided, it is saner and safer to set them down in advance of particular controversies than to develop them as we go along, in the context of the particular problem and its accompanying passion and paranoia. It is also, the argument continues, more democratic, since the side contraints the interpretivist would enforce have been imposed by the people themselves. The noninterpretivist would have politically unaccountable judges select and define the values to be placed beyond majority control, but the interpretivist takes his values from the Constitution, which means, since the Constitution itself was submitted for and received popular ratification, that they ultimately come from the people. Thus the judges do not check the people, the Constitution does, which means the people are ultimately checking themselves. ...
Interpretivism does seem to retain the substantial virute of fitting better our ordinary notion of how law works: if your job is to enforce the Constitution then the Constitution is what you should be enforcing, not whatever may happen to strike you as a good idea at the time. Thus stated, the idea possesses the unassailability of a truism, and if acceptance of that were all it took to make someone an interpretivst, no sane person could be anything else. ...
The suggestion [made by interpretivists] is usually that the various provisions of the Constitution be approached essentially as self-contained units and interpreted on the basis of their language, with whatever interpretive help the legislative history can provide, without significant injection of content from outside the provision. ...
(Ely, "Democracy and Distrust," published 1980, pages 1-3, 8, 12-13.)

When you read Black's opinion for the Court in Wesberry v. Sanders, you would be straining at logic to say that Black was interpreting the Constitution "literally." He took these words from Article 1, Section 2 of the Constitution -- "The House of Representatives shall be composed of Members chosen every second Year by the People of the several states, ..." -- to mean "one man, one vote," and (in Black's words) "as nearly as practicable one man's vote in a congressional election is to be worth as much as another's." Justice Black did not try to make it seem as if the constitutional phrase he cited was clearly a literal statement about the principle of one man, one vote. Instead, he resorted to what Ely called "legislative history"; Black delved into quotations from our Founding Fathers and cited those quotations as proof about the intent behind the words. (For the record, I'm not in agreement with Justice Black and the rest of the Court's majority on that issue, I'm just referring to that case in order to illustrate Black's method of interpreting the Constitution.)

Not everything that is in the Constitution is capable of being taken "literally," sometimes we do need to delve into "legislative history" in order to understand what certain parts of the Constitution were intended to mean. Doing that means that we are still "interpretivists."

[Geoffrey Howe]

I'm afraid I don't have an answer to your question, because I'm not aware of any 11th Amendment cases that the Supreme Court handled during the 34 years that Black served on the Court, and I don't know anything about how he did interpret the 11th. I am posting here just because I don't particularly agree with you that Black should be called a "literalist." Black is more appropriately called an "interpretivist."

About 41 years ago, John Hart Ely published a book that has become pretty famous among students of constitutional law. The book was called "Democracy and Distrust," subtitled, "A Theory of Judicial Review." This book is one of the most frequently cited works in the field of constitutional theory -- how should courts interpret the U.S. Constitution. At the very beginning of the book, Ely wrote,

A long-standing dispute in constitutional theory has gone under different names at different times, but today's terminology seems as helpful as any. Today we are likely to call the contending sides "interpretivism" and "noninterpretivism" -- the former indicating that judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution, the latter the contrary view that courts should go beyond that set of inferences and enforce norms that cannot be discovered within the four corners of the document. ...
What distinguishes interpretivism from its opposite is its insistence that the work of the political branches is to be invalidated only in accord with an inference whose starting point, whose underlying premise, is fairly discoverable in the Constitution. That the complete inference will not be found there -- because the situation is not likely to have been foreseen -- is generally common ground.
Surely no one who watched the late Justice Hugo Black stand almost alone against the variety of novel threats to freedom of expression the legislators and executives of the 1940s and 1950s were able to devise could suppose that a historically straightjacketed literalism was any part of his constitutional philosophy. Yet Black is recognized, correctly, as the quintessential interpretivist. ...
[T]here seems to be something new, a growing intellectual appreciation of Hugo Black: people are discovering what to the perceptive was obvious all along, that behind his "backward country fellow" philosophy, with its obviously overstated faith that the language of the Constitution would show the way, there lay a fully elaborated (though surely debatable) theory of the limits of legimate judicial disrection and the hortatory use of principle. ...
Justice Black and the interpretivist school have an inference, one that seems to find acceptance with friend and foe alike. Of course, they would answer, the majority can tyrannize the minority, and that is precisely the reason that in the Bill of Rights and elsewhere, the Constitution designates certain rights for protection. Of course side constraints on majority rule are necessary, but as the framers wisely decided, it is saner and safer to set them down in advance of particular controversies than to develop them as we go along, in the context of the particular problem and its accompanying passion and paranoia. It is also, the argument continues, more democratic, since the side contraints the interpretivist would enforce have been imposed by the people themselves. The noninterpretivist would have politically unaccountable judges select and define the values to be placed beyond majority control, but the interpretivist takes his values from the Constitution, which means, since the Constitution itself was submitted for and received popular ratification, that they ultimately come from the people. Thus the judges do not check the people, the Constitution does, which means the people are ultimately checking themselves. ...
Interpretivism does seem to retain the substantial virute of fitting better our ordinary notion of how law works: if your job is to enforce the Constitution then the Constitution is what you should be enforcing, not whatever may happen to strike you as a good idea at the time. Thus stated, the idea possesses the unassailability of a truism, and if acceptance of that were all it took to make someone an interpretivst, no sane person could be anything else. ...
The suggestion [made by interpretivists] is usually that the various provisions of the Constitution be approached essentially as self-contained units and interpreted on the basis of their language, with whatever interpretive help the legislative history can provide, without significant injection of content from outside the provision. ...
(Ely, "Democracy and Distrust," published 1980, pages 1-3, 8, 12-13.)

When you read Black's opinion for the Court in Wesberry v. Sanders, you would be straining at logic to say that Black was interpreting the Constitution "literally." He took these words from Article 1, Section 2 of the Constitution -- "The House of Representatives shall be composed of Members chosen every second Year by the People of the several states, ..." -- to mean "one man, one vote," and (in Black's words) "as nearly as practicable one man's vote in a congressional election is to be worth as much as another's." Justice Black did not try to make it seem as if the constitutional phrase he cited was clearly a literal statement about the principle of one man, one vote. Instead, he resorted to what Ely called "legislative history"; Black delved into quotations from our Founding Fathers and cited those quotations as proof about the intent behind the words. (For the record, I'm not in agreement with Justice Black and the rest of the Court's majority on that issue, I'm just referring to that case in order to illustrate Black's method of interpreting the Constitution.)

Not everything that is in the Constitution is capable of being taken "literally," sometimes we do need to delve into "legislative history" in order to understand what certain parts of the Constitution were intended to mean. Doing that means that we are still "interpretivists."

Fair enough - but, as I understand, the intent behind the 11th was only to prohibit suits in diversity; the text suggests that too. Surely if the 'legislative history'/original intent and the literal words pointed in the same direction Black would support that construction.

Perhaps I'm missing your point, but he seems to be more of a literalist than an originalist (relying on intent/legislative history) on the 1st Amendment. Scalia, for example, thought that libel laws are constitutional and that NYTimes v. Sullivan was wrongly decided. Hugo Black, on the other hand, thought Sullivan didn't go far enough - interpreting 'no law' to mean 'no law'. This is in conflict with what Joseph Story (not really a framer, granted) said:

'That [the First] amendment was intended to secure to every citizen an absolute right to speak, or write, or print whatever he might please, without any responsibility, public or private, therefore is a supposition too wild to be indulged by any rational man. This would be to allow to every citizen a right to destroy at his pleasure the reputation, the peace, the property, and even the personal safety of every other citizen.'

Quoted by Pierce Butler dissenting in Near v Minnesota (283 U.S. 732-733)