Schwaiger on the History of the 11th Amendment as Foreign Policy to Circumscribe the Treaty Power

Michael T. Schwaiger of the Alaska Public Defender Agency has posted a new article, A Visible Radiation: Interpreting the History of the Eleventh Amendment as Foreign Policy to Circumscribe the Treaty Power. It appeared in the Duke Journal of Constitutional Law & Public Policy (2007). Here's the abstract:

In this Essay, I make two arguments. First, I argue that the national government may not use the Treaty Power to abrogate Eleventh Amendment protections. The Eleventh Amendment voided specific provisions of the Treaty of Peace that states feared would grant British creditors actionable claims against them and, by cabining the Treaty Power, additionally prevented the national government from negotiating a new treaty that would have held states accountable for their denials of British claims. Whatever the original meaning of the Treaty Power was at the Framing, the Eleventh Amendment redefined and curtailed it dramatically. In fact, the Framers of the Eleventh Amendment saw the Supremacy Clause, and the policy reasons underlying it, not as grounds to tolerate an expansive Treaty Power, but rather as the very reasons to amend the Constitution. The background of the Eleventh Amendment as a response to the Treaty of Peace must be considered in any complete picture of the constitutional balance between the national and state governments in light of the Treaty Power. Second, I argue that the states ratified the Eleventh Amendment to protect themselves from out-of-state plaintiffs - but only out-of-state plaintiffs - with claims based on diversity or federal question jurisdiction. The states ratified the Eleventh Amendment in reaction to Chisholm v. Georgia but did so more as Chisholm pertained to British creditors than as Chisholm pertained to American, out-of-state creditors. As a domestic policy measure, the Eleventh Amendment protected interests within each state and simultaneously cut short the emergence of a national court that could have held states accountable for practices that were discriminatory, corrupt, or dangerous to national security. As a foreign policy measure, the Eleventh Amendment expressed American outrage over Britain's refusal to evacuate military posts in the Northwest and expressed the American refusal to pay debts to British creditors. To protect states from British creditors, the ratifiers of the Eleventh Amendment had to preclude British merchants from bringing treaty-based claims under either federal question or diversity jurisdiction. They did not have to preclude in-state plaintiffs from bringing federal question claims, because British merchants could not practicably assign their claims to in-state plaintiffs. Competing interpretations of the Eleventh Amendment insufficiently consider its purpose as a foreign policy measure.