Monday, October 16, 2023

11th Amendment and Federal Judicial Power

When the Supreme Court decided Chisholm v. Georgia in 1793 (see casebook p. 262), which permitted a citizen of South Carolina to sue the State of Georgia in federal court, the decision was shocking and surprising. This "reaction stemmed in large part from the fact that the Constitution's supporters had given express assurance" that the Constitution did not deprive a state of its  sovereign right "not to be amenable to the suit of an individual without its consent." ( commentator quoting Hamilton in The Federalist No. 81).

Here is the relevant passage of The Federalist No. 81 (Alexander Hamilton) in greater detail:

Though it may rather be a digression from the immediate subject of this paper, I shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation.

It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable.

The 11th Amendment was ratified to overrule the specific facts of Chisholm:


Amendment XI

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.


Does the 11th codify the right of a sovereign state "not to be amenable to the suit of an individual without its consent." Or does the express language of the 11th Amendment fall short of expressing that doctrine in its entirety?  

If Chisolm was wrongly decided because the Constitution, as Hamilton said in Federalist 81, did not deprive a state of its  sovereign right "not to be amenable to the suit of an individual without its consent," the Eleventh Amendment did not add anything to the existing right of the states. Rather, it merely overruled Chisolm by amendment. Chew on that idea a bit over Fall Break.

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