Holistic interpretation: Fitzpatrick v. Bitzer and our bifurcated constitution

Under current Eleventh Amendment doctrine as articulated in Fitzpatrick v. Bitter and Seminole Tribe v. Florida, Congress has power to abrogate states ' constitutional immunity from suit when acting under the Fourteenth Amendm ent but nor when it enacts legislation under Article I powers. The premise for this difference is that the Fourteenth Amendment in some way modified o r limited the immunity provided by the Eleventh. This essay asks why we sho uld not read other preexisting parts of the Constitution-including Article I powers of Congress-as having been modified by the Fourteenth Amendment as well. It suggests that looking at earlier parts of the Constitution throug h more recent amendments helps reconcile constitutionalism with democracy a nd notes that in other cases, including Belling v. Sharpe and the Selective Draft Law Cases, the Court has engaged in this form of interpretation. Obs erving that the Court has recently adopted a more holistic, structural appr oach to understanding states' immunities under the Constitution, it suggest s applying a structural holistic approach, incorporating the intertemporal perspective evidenced in Fitzpatrick v. Bitter, to the scope of Congress' p owers. Considering Congress' Article I powers together with and in the ligh t of Congress' Fourteenth Amendment powers might lead to the conclusion tha t, where Congress is seeking to remove barriers to the participation in the national economy of historically disadvantaged groups like women or racial minorities, its Article I Commerce Clause powers should be read in Eight o f the later Constitution 's commitments to equality. This approach would su pport a longer chain of connection than might otherwise be permitted under United States v. Lopez and lead to a different result in United States v. M orrison. Finally, the essay raises the question of whether reading Article I powers in light of the Fourteenth Amendment's commitment to national citi zenship might afford a basis (without having to overrule Seminole Tribe) fo r permitting congressional abrogation of state immunity from suit under Art icle I statutes.