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UC Law Journal

Mark D. Rosen

Abstract

In a recent decision, the Supreme Court held that “the founding generation took as a given” that states would be constitutionally immune to suit in the courts of sister states, overruling an earlier ruling that interstate immunity is governed by state law. This Article rejects both approaches, showing that interstate immunity was unaddressed by the original Constitution and the Eleventh Amendment. But though interstate immunity is what this Article calls a “constitutional omission,” what ultimately fills it must be federal law. Filling in a constitutional omission necessarily requires a choice among options—what philosophers call an exercise of agency. But the inevitability of agency is not a license for judicial lawmaking because the Constitution allows for “shared agency” by many institutions to jointly work out whether states have interstate immunity. Shared agency’s constitutive norms constrain the agency of all those institutions, creating favorable conditions for making constitution-worthy fill-ins for constitutional omissions. This Article’s framework of an uncompleted constitution made more complete through shared agency is an alternative to originalism and living constitutionalism that has relevance far beyond interstate immunity. Shared agency is a widespread human practice that allows intergenerational projects to be worked on by large numbers of people. This Article explains why the Framers bequeathed us an uncompleted constitution, and demonstrates shared agency’s epistemic, functional, and foundational democratic benefits for making it more complete.

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