Liberal Justices Rightly Interpret Eleventh Amendment

I have not found too many cases where Liberal Justices correctly interpret the meaning of Constitution better than Conservatives outside First Amendment cases. The one area Liberals seem to do a better job is interpreting the Eleventh Amendment. Article III, Section 2 of the Constitution provides a list of judicial power provided to the Supreme Court. The list consists of cases between a State and Citizens of another State; and cases between a State or the Citizens thereof and foreign states, Citizens or Subjects. The 1793 case Chisholm v. Georgia was the first big case for the Supreme Court. In a 4-1 decision, the majority held that Chisholm (Citizen of South Carolina) had the right to bring a suit against a State (in this case Georgia). The Court held that the true sovereign power in the United States belonged to the people over the states. The lone dissenter, James Iredell held that States had sovereign immunity and could not be sued by a Citizen.

Two years (1795) after the Chisholm ruling the Eleventh Amendment was added to the 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 amendment repudiated the Chisholm decision held by the Court. However, in the 1810 case Fletcher v. Peck Chief Justice John Marshall made the following statement: “The Constitution as passed, gave the courts of the United States jurisdiction in suits brought against individual States. A State, then, which violated its own contract was suable in the Courts of the United States for that violation. Would it have been a defense in such a suit to that the State had passed a law absolving itself from the contract? It is scarcely to be conceived that such a defense could be set up. And yet, if a State is neither restrained by the general principles of our political institutions nor by the words of the Constitution from impairing the obligation of its own contracts, such a defense would be a valid one. This feature is no longer found in the Constitution, but it aids in the construction of those clauses with which it was originally associated.” In other words, Marshall does not necessarily think Chisholm was completely repudiated by the Eleventh Amendment. In Marshall’s view, Chisholm was a sound decision that still has a bearing on Constitutional interpretation.

Nearly a century later in Hans v. Louisiana (1890) the Court held that Hans had no standing to sue Louisiana for interest on state bonds he never received because the Eleventh Amendment gave Louisiana sovereign immunity. This was not an easy decision since the Eleventh Amendment says “Citizens of another State” but Hans was from Louisiana. Yet, the Court decided that the founders meant to also include “Citizens of the same State” in the Eleventh Amendment. Interestingly, Justice Harlan concurs with the decision but says “The comments made about the decision in Chisholm v. Georgia do not meet my approval.” He would go on “Besides, I am of opinion that the decision in that case was based upon a sound interpretation of the Constitution as that instrument then was.”

Fast forward another century later in the case Seminole Tribe v. Florida (1996). Congress passed the Indian Gaming Regulatory Act under the Commerce Clause. The Act imposed upon the States a duty to negotiate in good faith with Indian Tribes to generate a contract for gamming privileges. Congress certainly has the power granted under the Commerce Clause to pass this regulatory act since it applies to “Indian Tribes”. When the State of Florida refused to negotiate with the Seminole Tribe, they brought a suit against the state. But the conservative Court followed precedent set by Hans to deny Citizens the right to sue their State because Florida had Sovereign immunity granted by the Eleventh Amendment which restricted the application of the Commerce Clause. Sure, this decision provides states more power over the Federal Government, but it restricts the power and sovereignty of its Citizens.

Justice Souter wrote the dissent to Seminole Tribe which was joined by Ginsberg, Stevens and Breyer. Souter rightly remarks “Because the plaintiffs in today’s case are citizens of the State they are suing, the Eleventh Amendment simply does not apply to them.” For this reason he also believes Hans was also wrongly decided. Souter also points out in Federalist 32 that States have no sovereignty over the regulation of commerce with Indian Tribes. Souter further acknowledges a proposed amendment by Massachusetts Representative Theodore Sedgwick after the Chisholm decision was never ratified. His amendment would have denied “Any Citizen” the right to sue “any State”. Souter asks why this proposal was denied in favor of the one ratified in the Eleventh Amendment? Good question! Finally, Souter admits “The American development of divided sovereign powers was made possible only by a recognition that the ultimate sovereignty rests in the people themselves.” This is certainly consistent with the Chisholm decision and Marshall’s remarks about Chisholm is Fisher. A year later, in Alden v. Maine, the Court made similar arguments and came to a similar decision in Seminole Tribe. I have to side with the Liberal Court on the Eleventh Amendment debate.