Not Between States

                The topic of discussion for this Constitution Monday comes from the Eleventh Amendment to the United States Constitution:  “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.”  This provision means that citizens cannot be sued by the citizens of another state.

                W. Cleon Skousen explained, “When the nation was younger the states were militantly alert to protect themselves from any intrusion by the federal government.  Under the principle of dual sovereignty, the states maintained that they should decide whether or not they would allow themselves to be sued, just as the United States can be sued only with its consent.  Therefore, when a citizen of South Carolina tried to sue the state of Georgia, and used the federal courts as a judicial arena in which to settle the matter, the state of Georgia felt that it was being forced into a suit without its consent. All of the states were very nervous about the situation because many of them were under heavy financial embarrassment following the ravages of inflation in the post-Revolutionary period and many of them were deeply in debt.

                “Two days after the decision in this case, a resolution was offered in Congress designed to amend the Constitution so that there would be no cases like this in the future.  However, this amendment did not actually take effect until five years later – January 8, 1798.”  (See The Making of America – The Substance and Meaning of the Constitution, pp. 713-714.)

                Ernest A. Young of The Heritage Foundation gave further explanation:  “The Eleventh Amendment was ratified in 1795 as a response to the Supreme Court’s decision in Chisholm v. Georgia (1793).  Chisholm had held that the federal courts could hear suits by individuals against state governments for money damages, notwithstanding the sovereign immunity that the states had traditionally enjoyed.  The resulting furor – based largely on concerns that the states would be held accountable for their Revolutionary War debts – gave rise in 1795 to the ratification of the Eleventh Amendment, which established a fairy narrow textual bar to jurisdiction in cases like Chisholm itself.  Chisholm was the first major constitutional decision of the new Curt, and the Eleventh Amendment reversed it, eight years before Marbury v. Madison (1803).

                “The notion of sovereign immunity predates the Eleventh Amendment, having its origins in the English common law as well as from political theorists such as Thomas Hobbes and Jean Bodin.  The Framers were clearly aware of the traditional doctrine that the states were immune from private lawsuits as sovereign entities, and some Anti-Federalists feared that Article III, Section 1, of the Constitution – which declares that the federal judicial power extends to suits `between a State and Citizens of another State’ – would override that doctrine.  Several key Framers – including Alexander Hamilton, James Madison, and John Marshall – are on record denying that the Constitution would, of its own force, deprive the states of this immunity.  The more difficult questions are ones that the Framers did not confront directly:  Did the states’ immunity apply in suits based on federal law, as opposed to the state common-law claim relied upon in Chisholm?  And was that immunity constitutional in stature, or could Congress abrogate it? …” (See The Heritage Guide to the Constitution, p. 375.)