Feb 082013

On February 7, 1795, the Eleventh Amendment to the United States Constitution was ratified. Supreme Court decisions regarding State Sovereignty often discuss the Eleventh Amendment. However, this amendment has gradually been reinterpreted to be a solid boundary protecting the sovereignty of the states in a variety of circumstances not actually contained in the text of the amendment. Examining the ever expanding interpretation of the Eleventh Amendment by the Supreme Court offers insight into how the Court has become increasingly more activist in nature over time.

The text of the Eleventh Amendment is as follows: “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.”

The Eleventh Amendment was proposed after the 1793 Supreme Court decision of Chisholm v. Georgia. In that case, the Court held that Article 3, Section 2 allowed a citizen of one state to sue another state in federal court. The Eleventh Amendment was proposed at the next meeting of Congress that occurred after the Court handed down Chisholm v. Georgia on March 4, 1794. Ratification was completed less than one year later. Initially, the Amendment was interpreted as preventing suits from being filed against States because of the status of the party filling the suit (e.g., a citizen of another state).

Justice John Marshall was the first to reinterpret the Eleventh Amendment. Marshall believed the Eleventh Amendment passed because the states, most of which were debt ridden after the Revolutionary War, were fearful of an onslaught of lawsuits demanding repayment in federal court. He did not believe it protected states from suits brought by other states or lawsuits brought by a state’s own citizens. The interpretation of Eleventh Amendment shifted again following a plethora of lawsuits filed against several southern states that defaulted on bonds following the Civil War. The lawsuits were filed by citizens against their own states. In Hans v. Louisiana, the Supreme Court held that the Amendment protected States against suits by its own citizens. The Interpretation shifted further in Ex parte New York, In that decision, the Court held a State was immune to suit unless it consented to participating in the action. In Ex Parte Young, the Court did allow that state officials did not have the same protection under the Constitution as the state had itself. That decision was eventually modified by subsequent decisions to prohibit suits where damages would be paid directly from the State’s treasury. In 1996, the Court ruled, in Seminole Tribe of Florida v. Florida, that the Eleventh Amendment does not allow Congress to repeal a state’s sovereign immunity. In 1999, the Alden V Maine decision extended the interpretation of sovereign immunity to preclude a state from being sued in its own court for violation of federal law. In 2002, the Federal Maritime Commission v. South Carolina State Ports Authority extended sovereign immunity to include answering private complaints from agencies of the executive branch agencies. Lest you think that there is the Eleventh Amendment has constructed an impenetrable wall of sovereignty around each state, that is not the case. But, that will be the subject of future posts.

Many of the Supreme Court decisions discuss what was “implicit” in the minds of those who constructed the Constitution or what was “taken for granted” when Amendment was written. If you would like to learn more about how the Supreme Court’s approach to interpreting the Constitution has changed over time, read this comprehensive article by the Heritage Foundation by clicking here: http://herit.ag/11tt8TZ

We often hear about how differently our government functions now than it did when our nation was formed. However, concrete examples clearly illustrating those differences do not always follow those protests. I hope I can provide an example or two of such changes in future posts. You may be wondering, how does this fit into “What IS Right With America?” We are fortunate to live in a country where we do not have to sit passively by as changes occur. We do not live in a totalitarian state or under the thumb of a dictator. Individual citizens can work cooperatively to make changes when they cooperatively join together as “We The People.” As Jefferson stated: “The elective franchise, if guarded as the ark of our safety, will peaceably dissipate all combinations to subvert a Constitution, dictated by the wisdom, and resting on the will of the people.”

Not the vast body of Congress, the nine members of the Supreme Court, or the President is beyond our scrutiny, above our criticism, or out of reach of the decisions “We the People” make on election day. I am thankful to be an American citizen with the power to cast my vote.


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