Controversies with Foreigners

                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 … and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.  This clause gave State or Citizen the right to have their case with foreigners heard by Federal Courts. 

                “After the Revolutionary War there were claims and counter-claims in vast numbers between Americans and foreign litigants and the agents of foreign nations.  The great problem in all of these cases was finding a tribunal in which the parties were willing to have their claims litigated.

                “In this provision, the United States was making available to both its own citizens and foreign complainants the highest tribunals of the land – courts which represented the juridical forum of the nation rather than one of its parts, such as a state” (W. Cleon Skousen in The Making of America – The Substance and Meaning of the Constitution, pp. 605-606).

                This clause was changed by the Eleventh Amendment, which was ratified February 7, 1795:  “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.” 

                “… [T]he 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, p. 253).