There is no better example of how conservative Justices on the Supreme Court get the Constitution’s text and history dead wrong than the Court’s cases giving states immunity from suit in federal court for violations of federal law.  The Eleventh Amendment provides that the “Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by the Citizens of another State, or by Citizens or Subjects of any Foreign State.”  In a manifest departure from the clear and precise terms of the Eleventh Amendment, the Supreme Court has interpreted the Amendment as a protection of state sovereign immunity from all suits in federal court.  In a recent line of cases, the Supreme Court has held that Congress may only abrogate a state’s immunity from suit if it can point to a specific grant of authority to Congress at the expense of the states, such as the authority to enforce the provisions of the Fourteenth Amendment.  At the same time, the Court has sharply limited the scope of Congress’ power to enforce the guarantees of the Fourteenth Amendment, ignoring the fact that the Fourteenth Amendment gives Congress a leading role in ensuring that the rights to liberty and equality guaranteed by the Amendment are actually enjoyed by all Americans.  Both lines of rulings are built off of originalist sins.

This Term, in Coleman v. Maryland Court of Appeals, the Supreme Court will wade into these waters for the very first time since John Roberts was confirmed as Chief Justice.  In Coleman, the Court has agreed to decide whether Congress has the authority to subject states to suit in federal court for violation of the self-care provision of the Family and Medical Leave Act (FMLA), abrogating the states’ Eleventh Amendment immunity.  Daniel Coleman, an African American man who was employed by the Maryland Court of Appeals, filed the case, arguing that he was denied the right to take leave to care for his own documented serious health condition in violation of the Act, but the lower courts dismissed his case, concluding that the state was immune from suit.

The Court’s own precedents provide a powerful argument that the lower courts got it wrong.  Eight years ago, in Nevada Dep’t of Human Resources v. Hibbs, the Supreme Court held that Congress had the authority to subject states to suit for violation of the family-care provisions of the FMLA,  which require employers to provide employees with a up to twelve weeks of unpaid leave in order to care for family members who are ill.  Noting the long history of gender discrimination in the administration of leave, the Court, by a vote of 6-3, concluded that the Act fell squarely within Congress’ broad power to enact appropriate legislation enforcing the Fourteenth Amendment’s guarantee of equality for all persons.  Because Congress had properly exercised its power to enforce the dictates of the Fourteenth Amendment in the FMLA, Congress had the authority to abrogate states’ Eleventh Amendment immunity and permit individuals to seek relief in federal court for state violations of the Act’s family-care provision.   As Coleman’s brief in his case emphasizes, the reasoning in Chief Justice Rehnquist’s opinion for the Court in Hibbs applies with equal force to the self-care provision.

Better yet, the Court could start correcting the originalist sins that dominate the law in this area.  On Tuesday, Constitutional Accountability Center filed an amicus brief in Coleman, co-authored by the law firm of Skadden, Arps, urging the Court to overhaul its interpretation of the Eleventh Amendment and Congress’ power to enforce the Fourteenth Amendment.  As CAC’s brief demonstrates, shutting the courthouse doors on Coleman would require a very expansive interpretation of the Eleventh Amendment and a very restrictive interpretation of Congress’ power to enforce the guarantees of the Fourteenth Amendment.  Both would be contrary to the Constitution’s text and history.  Under a constitutionally faithful interpretation of the Constitution, Coleman is entitled to his day in court to vindicate the FMLA’s protections.

First, as the text of the Eleventh Amendment confirms, the Constitution’s protection of state sovereign immunity is narrow in scope.  The Eleventh Amendment confers immunity on each state from lawsuits in federal court brought by a citizen of another state,  but does not prevent Congress from creating federal rights – such as those set forth in the FMLA – and giving individuals a right to sue for their violation.  In fact, during the framing and ratification of the Eleventh Amendment, the Framers considered and rejected proposals that would have created a broad rule of state sovereign immunity.   Nothing in the Eleventh Amendment supports stripping Coleman of his right to sue the state in which he resides for violating federal law.  For that reason, CAC’s brief urges the Court to bring its interpretation of the Eleventh Amendment into line with the text and history of the Amendment, overruling past decisions that created a sweeping right of state sovereign immunity inconsistent with the narrow language of the Amendment itself.

As CAC’s brief also demonstates, the text and history of the Fourteenth Amendment give Congress broad power to enact federal civil rights legislation to make the Amendment’s guarantees of liberty and equality for all persons a reality, not simply a paper guarantee.  In giving Congress the authority to enact “appropriate legislation” securing these rights, the Fourteenth Amendment granted Congress the sweeping authority of Article I’s “necessary and proper” powers as interpreted by the Supreme Court in McCulloch v. Maryland, a seminal case well known to the Framers of the Fourteenth Amendment.  Our brief echoes CAC’s report, the Shield of National Protection, which shows that the Framers of the Fourteenth Amendment chose this broad, sweeping language because they were understandably reluctant to leave the judiciary with the sole responsibility for protecting constitutional rights. In the aftermath of the Supreme Court‘s decision in Dred Scott v. Sandford, the Framers were determined to give Congress a leading role in securing these new, critical constitutional guarantees.

As Hibbs held and as the legislative record amply shows, Congress enacted the FMLA as part of a comprehensive effort to eradicate sex discrimination in employment.  The self-care provision is critical to securing these goals.  By granting men and women the right to take leave to care for a serious health  condition, the Act ensures, as Chief Justice Rehnquist observed in Hibbs, that leave “would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not avoid leave obligations by simply hiring men.”

Oral argument in Coleman has not yet been scheduled, but will likely occur during the winter, early in 2012.  Please check back here after the argument for our analysis.