The Eleventh Amendment's Curious History
Amending the Constitution to Overrule the Supreme Court
Jul 29, 2009
During the Revolutionary War a South Carolina merchant, Captain Robert Farquhar sold supplies to the State of Georgia on credit. Following the War, Georgia refused to pay Farquhar asserting that he was a British loyalist. Farquhar later died, and the executor of his estate, South Carolinian Alexander Chisolm sued the State of Georgia for the debt.
The Constitution Article III, Section 2
Chisolm sued Georgia in the Supreme Court of the United States on the basis of Article III, Section 2 of the Constitution, which reads in relevant part:
"The judicial power shall extend to all cases, in law and equity … ;--between a state and citizens of another state…”
In the case of Chisolm v. Georgia, the State of Georgia refused to appear in court. Georgia claimed that is was protected by the concept of sovereign immunity and could not be sued without its consent. The Supreme Court, led by first Chief Justice John Jay, disagreed relying on Article III, Section 2 and ordered Georgia to pay the debt to Farquhar’s estate.
Chisolm v. Georgia Leads to the Eleventh Amendment
The Supreme Court’s decision in 1793 was one of its earliest interpreting the Constitution, as the government under the Constitution was only four years old. The decision was also incredibly unpopular. It was so unpopular in Georgia, that the Georgia legislature passed a law providing that anyone attempting to enforce the Supreme Court decision would be subject to hanging.
The Chisolm v. Georgia decision was unpopular throughout the country. The decision was so disliked that the Eleventh Amendment was proposed and ratified very quickly. The Eleventh Amendment was ratified on February 4, 1795 and reads 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.“
Eleventh Amendment Overrules the Supreme Court
In Chisolm v. Georgia, the Supreme Court allowed a State to be sued in a federal court. The Eleventh Amendment effectively overruled the Supreme Court’s decision and modified Article III, Section 2. As a result of the Eleventh Amendment, States could no longer be sued by citizens of other States or foreign citizens in federal courts.
The Eleventh Amendment does not address the question of a State’s own citizens filing suit against the State in federal court, but in the intervening years, the Supreme Court has prohibited those suits as well, and also shielded States from having to appear before executive agencies as well. The Eleventh Amendment has been found to embody the concept of sovereign immunity and applied it to the States.
The Concept of Sovereign Immunity
The concept of sovereign immunity goes back to English common law. The thought was that since the king (the sovereign) was the source of the law, he could not break the law, or commit a legal wrong. When governments changed from monarchies ruled by kings to democracies governed by representatives of the people, the new sovereign became the State.
The Eleventh Amendment gives constitutional stature to the concept of sovereign immunity. As a result, States are immune to lawsuits unless they give permission to be sued. As with many things in law there are exceptions to this, and the major exception to State sovereign immunity arose with the passage of the Fourteenth Amendment.
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