The Particularly Dubious Case of Hans v. Louisiana: An Essay on Law, Race, History, and Federal Courtss

Abstract

In a number of striking decisions the Rehnquist Court has limited the powers of Congress and substantially insulated the states from federal authority. In doing so it has repeatedly and explicitly based its jurisprudence on Hans v. Louisiana, an 1890 decision in which the Court held that the Eleventh Amendment barred citizens from suing their own states in the federal courts for money due on the state’s bonds. Hans asserted that the Eleventh Amendment, despite its narrow language, was intended to recognize a broad principle of state sovereign immunity which prohibited all suits against states absent their consent. While the policy behind the Rehnquist Court’s decisions may be wise or desirable in the early twenty-first century, its reliance on Hans is not. Although Hans invoked the history of the Eleventh Amendment’s drafting and ratification, its reasoning and conclusion did not reflect the intent of the amendment’s framers but the purposes of the post-Reconstruction settlement. That informal but well understood agreement among white Americans, driven in large part by racism, allowed the South a special and limited independence in imposing white rule and repudiating its state debts in exchange for national reconciliation and unity. Thus, as a matter of history, Hans gave voice not to the intent of the 1790s but to the compromise of the 1890s. Considered in the light of its own history, then, Hans properly merits no authority as a constitutional precedent for three interrelated reasons. First, it was a decision of expedience, not of principle. An examination of the Court’s jurisdictional decisions in the late nineteenth century shows that Hans was typical of the pervasive jurisdictional instrumentalism that marked the Court’s work across the board as well as in cases construing the Eleventh Amendment itself. Second, as an instrument of the post-Reconstruction settlement and an integral part of the Court’s general abandonment of southern blacks, Hans was both the product and tool of a pervasive racism among white Americans, north as well as south. Third, and legally pivotal, Hans was premised on early nineteenth-century procedural assumptions that the Court had already rejected and, decisively, on antebellum jurisdictional and constitutional assumptions that the Fourteenth Amendment had repudiated. Thus, Hans was a decision of mere temporary expedience, an instrument of racism and betrayal, and the product of an outmoded and rejected constitutional jurisprudence. As such, it has no claim to enduring authority as a constitutional precedent.Four of the justices on the Rehnquist Court who have repeatedly relied on Hans to expand the Eleventh Amendment should agree that those grounds are sufficient to require its repudiation. Only three years ago, in a case involving the Establishment Clause, they maintained that a constitutional doctrine “born of bigotry” should “be buried.” So, now, should Hans be buried.