The "spirit" of things

McCulloch v. Maryland speaks of the "letter and spirit" of the Constitution and both are used by liberals and conservatives, even if some ridicule the latter as some appeal to penumbras and emanations (the "funny word" argument is very mature). This is seen repeatedly by citations to the Tenth Amendment, which protects states and "the people" by allowing them to retain what is not granted to the feds or otherwise barred.  Repeatedly, however, it is cited as a limit to regulations pursuant to enumerated powers.

The citation is more to the "spirit" of the Tenth Amendment, arguing in effect that federal powers should not be applied so broadly that they invade what is seen as local matters. So, e.g., family law should be left to the states generally speaking, even if pursuant to some enumerated power. Also, the amendment is cited to protect state autonomy, such as not "commandeering" them to pass laws or to enforce federal policies. See, e.g., Printz v. U.S.  Finally, state immunity is protected with 11A help:

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 citizens of another state, or by citizens or subjects of any foreign state.

As seen, the actual wording of the amendment is of a limited character. But, sometimes sarcastic criticism of others for ignoring it aside, the literal text is not all that is used.  Thus, states are protected from damage suits even in promotion of congressional powers such as guarding against violating trademarks by state institutions.  A conservative leaning federal judge wrote a good book on this topic and various justices wrote well written opinions (sadly often dissents) explaining the problems, including  from a textual and originalist standpoint. Souter cites John Orth, whose book (from the 1980s, but still useful) on the 11A is recommended; his short book on due process is also a great read. 

Since I do not think "penumbras and emanations" or appeals to the "spirit" of constitutional provisions are wrong as definitional matter ... and am inclined to realize even bad precedent should be given stare decisis weight at some point ... it seems to me that we are stuck with some of the principles found in such "federalist" cases.  Still, the line-drawing is a bit curious. For instance, the state immunity rule is not applied to the Fourteenth Amendment. I was under the impression this was a matter of it coming after the Eleventh. This might have been cited somewhere, but that is not quite the reason.  A key case on the point noted:

But we think that the Eleventh Amendment, and the principle of state sovereignty which it embodies, see Hans v. Louisiana, 134 U. S. 1 (1890), necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment. In that section Congress is expressly granted authority to enforce "by appropriate legislation" the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority.

Congress is also "expressly granted" the power to regulate commerce with Indian tribes, to allude to a case cited, and the power to pass laws "necessary and proper" to that end. If state immunity is so central that infringement is not "proper," why should it be "appropriate"?  It's a fine line that as Justice Stevens noted separately doesn't quite hold up. The 11A was in response to a case where a citizen from another state successfully used the Supreme Court's diversity jurisdiction to settle a contractual dispute.  Souter in his Seminole Tribe dissent argues this is what the amendment addresses, not federal question matters (e.g., disputes over post offices), even if a citizen from another state sues. There is a good case for that.

We need not go that far. We can even require "clear statements" before deciding federal legislation allows liability. As a matter of policy, it also might be advisable to limit state liability for various reasons. At least, certain things are debatable. When clear liability is present, however, it doesn't make much sense as a matter of principle to deny jurisdiction. Rights, including statutory in nature, warrant remedies.

Where a State has consented to join a federal-state cooperative project, it is realistic to conclude that the State has agreed to assume its obligations under that legislation. There is nothing in the Eleventh Amendment to suggest a difference between suits at law and suits in equity, for it treats the two without distinction. If common sense has any role to play in constitutional adjudication, once there is a waiver of immunity it must be true that it is complete so far as effective operation of the state-federal joint welfare program is concerned.

Justice Douglas' argument should be applied generally.  But, so it goes. At the very least, is "spirit" is going to override text, perhaps the principle should be applied consistently. After all, the critics of this policy aren't all on one side. Certain libertarian voices (as I saw in certain Cato Supreme Court essays) support court remedies, litigation often seen as the best policy above and beyond various types of regulation.