Controversies between States and Citizens of Other States

                The topic of discussion for this Constitution Monday comes from Article III, Section 2, and Clause 1:  “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; -- to all Cases affecting …. Controversies … between a State and Citizens of another State….”  This provision was repealed by the Eleventh Amendment after only one instance of being used.

                “This provision, which gave a citizen of one state the RIGHT to sue another state in federal court, created a storm of protest during the debates because traditionally no state can be sued without its consent.  This allowed any ordinary citizen with a complaint against another state to have it hauled into federal court without its consent.

                “As we shall see … it took only one instance where this provision was put into effect to fire up the anger of enough states to get this provision eliminated.  The … comments made during the various conventions demonstrate the profound concern which many felt and which turned out to be valid” (W. Cleon Skousen in The Making of America – The Substance and Meaning of the Constitution, pp. 602-603).

                “Article III’s provisions extending the federal judicial power `to Controversies between a State and Citizens of another State’ and `between a State … and foreign States, Citizens or Subjects’ are generally known as the Citizen-State Diversity Clauses. Although these clauses have a variety of applications, they have played a primary role in enduring controversies over the scope of state sovereign immunity in suits by private parties.

                “The Founding generation seems generally to have accepted the notion that the states enjoyed some form of sovereign immunity, derived from the common law, that shielded them against suits by private individuals.  Article III’s express provision for federal court jurisdiction over suits between individuals and state governments thus raised the possibility that ratification of the Constitution would override this common-law immunity…

                “The Supreme Court rejected … [the idea that this clause `left the states’ preexisting immunities intact’]… however, in Chisholm v. Georgia (1793).  That case involved a suit by a South Carolina citizen to recover Revolutionary War debts owed by the State of Georgia.  The State of Georgia insisted that it was immune from such suits, but the Court upheld its jurisdiction.  While Justice Wilson rejected the very notion of state sovereign immunity on the broad ground that it was antithetical to republican government, Justices John Jay, John Blair, and William Cushing relied primarily on the Citizen-State Diversity Clauses. They argued that those clauses had in fact done precisely what the Anti-Federalists feared – that is, overridden the common-law immunity that the states would otherwise have enjoyed in a suit by a private individual.  Only Justice James Iredell dissented, primarily on the ground that Congress had not passed any statute that clearly authorized private suits against state government in the federal courts.

                “The Court would later say, in Hans v. State of Louisiana (1890), that Chisholm `created such a shock of surprise throughout the country that, at the first meeting of Congress thereafter, the Eleventh Amendment to the Constitution was almost unanimously proposed, and was in due course adopted by the legislatures of the States.’  …. [The] important point for present purposes is simply that the proper reading of the Eleventh Amendment – and the scope of state sovereign immunity generally – remains bound up with disputes about what the Framers intended to accomplish with the Citizen-State Diversity Clauses” (Ernest A. Young in The Heritage Guide to the Constitution, pp. 252-253).