Leaving the Chisholm trail: the Eleventh Amendment and the background principle of strict construction.

AuthorLash, Kurt T.

TABLE OF CONTENTS PROLOGUE INTRODUCTION I. STATE SUABILITY BEFORE CHISHOLM A. Historical Scholarship and the Eleventh Amendment B. The Roots of the Eleventh Amendment 1. The Original Debates Regarding Delegated Federal Power 2. Strict Construction and Article III 3. Retained "Powers, Jurisdiction and Rights": Popular Sovereignty and the Declarations and Proposals of the State Ratifying Conventions 4. The Bill of Rights and the Ninth and Tenth Amendments 5. Madison's Speech Opposing the Bank of the United States C. Pre-Chisholm Suits Against the States 1. Beginnings: Van Staphorst and the Debate in Massachusetts 2. Justice Iredell and Oswald v. New York 3. Hollingsworth v. Virginia: The Indecision of Virginia Governor Henry Lee II. CHISHOLM AND THE MASSACHUSETTS ROAD TO AMENDMENT A. Chisholm v. Georgia 1. Prequel: Farquhar v. Georgia 2. Chisholm in the Supreme Court 3. Randolph's Argument 4. The Opinions of the Justices a. The Opinion of James Wilson b. The Opinion of John Jay c. The Dissent of James Iredell d. James Iredell's Observations on "This Great Constitutional Question" 5. The Reporting of Chisholm v. Georgia B. General Response to the Decision C. Vassal v. Massachusetts and the Call for Amendment 1. Hancock's Address 2. The Public Debate a. Consolidated States; Dependent Corporations b. The Claim of Original Understanding c. Popular Sovereignty d. Judicial Construction and the Resolves of the State Assemblies i. Georgia ii. Virginia iii. Other States iv. Pro-Chisholm Resolves D. The Drafting and Adoption of the Eleventh Amendment 1. The New Draft E. Postadoption Commentary: The Eleventh Amendment as the Voice of the People F. A Brief Textual-Historical Theory of the Eleventh Amendment CONCLUSION: THE FOUR MYTHS OF THE MODERN ELEVENTH AMENDMENT The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. [For example,] 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. (1)

PROLOGUE

John Hancock was dying. In less than three weeks' time, Massachusetts Lieutenant Governor Samuel Adams would lead the state and the country in mourning the passing of one of the great men of the American Revolution. (2) This day, however, despite his rapidly declining health, Governor Hancock presided over a special session of the Massachusetts legislature, which he had called only weeks earlier. (3) A crisis had emerged that Hancock was convinced threatened both the state and the Union and required immediate legislative attention. (4) Months earlier, the Supreme Court in Chisholm v. Georgia (5) had determined that individuals could sue Georgia in federal court without its consent. (6) Although this decision had not spurred the state to action, Massachusetts had just received notice that it too was being sued in federal court. (7) In broadsides printed and distributed throughout the state, Hancock sent out the call for the members of the Massachusetts Assembly to return to Boston. (8) There, in the old statehouse where the Declaration of Independence was first proclaimed to the people of the United States, Hancock's assistants led the weakened revolutionary to the front of the hall. (9) Reaching his seat, Hancock sat down, too ill to read his own address. (10) Instead, Hancock offered his apologies and had his Secretary of State read the speech to the assembly. (11) "Gentlemen," the Secretary read,

The suit commenced by WILLIAM VASSAL [against the state of Massachusetts] ... must be decided on principles very interesting to its welfare as a state. I cannot conceive that the People of this Commonwealth, when they, by their Representatives in Convention, adopted the Constitution of a General Government, expected that each State should be held liable to answer on compulsory civil process, to every individual resident in another State or in a foreign kingdom. Three Judges of the United States of America, having solemnly given it as their opinion, that the several States are thus liable, the question then has become highly important to the people. (12) The Massachusetts Assembly, Hancock advised, had but three choices. First, they might agree with the result in Chisholm and "make such provision for defending against the suit...." (13) if, on the other hand, they believed that the Supreme Court in Chisholm had erroneously construed Article III, then they should draft an amendment to the Constitution declaring "a more unexceptionable construction." (14) Finally, even if the Assembly concluded that the Supreme Court had followed "the letter of the Constitution," they might nevertheless seek an amendment in order to "secure [to] the states severally, in the enjoyment of that share of sovereignty, which it was intended they should retain and possess." (15)

Although Hancock demurred in taking an express position on the matter, his opinion was clear: Chisholm's interpretation of Article III was fundamentally at odds with the state's expectation of retained sovereignty under the federal Constitution:

[T]here are certain inherent principles in the Constitution ... which can never be surrendered, without essentially changing the nature, or destroying the existence of the Government. A consolidation of all the States into one Government, would at once endanger the Nation as a Republic, and eventually divide the States united, or eradicate the principles which we have contended for. (16) It was John Hancock's last public appearance; he died days later. (17)

Within a week of Hancock's speech, the Massachusetts legislature issued a report that declared that allowing an individual to sue a nonconsenting state was "dangerous to the peace, safety and independence of the several States, and repugnant to the first principles of a Federal Government," and resolved to seek an amendment that would "remove any clause or article ... which can be construed to imply or justify a decision that a State is compellable to answer in any suit by an individual or individuals in any Court of the United States." (18) On the day after Hancock's death, Lieutenant Governor Samuel Adams sent the Massachusetts resolves to the governors of the other states, inviting them to join Massachusetts in establishing the proper construction of Article III. (19) The receipt of these resolves triggered a cascade of similar resolves from state legislatures around the country. (20) By the time Congress began its next session, the introduction of an amendment was a foregone conclusion.

Toward the end of the previous session, Massachusetts Senator Caleb Strong had submitted an amendment removing the power of federal courts to hear suits by individuals against the states--essentially Governor Hancock's third "alternative." (21) Now, after months of public debate and the broad circulation of his own state's resolves, (22) Strong amended his earlier proposal and added language that transformed the amendment from a removal of a previously granted power to a declaration of how to construe Article III: "The Judicial Power of the United States shall not be construed to extend to any Suit in Law or Equity, commen[ced] or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any foreign State." (23) Congress adopted Strong's proposal without changing a single word and the amendment was ratified in less than a year. (24) And so it came to pass that Massachusetts, in response to the case of Vassal v. Massachusetts, (25) led the country in adopting the Eleventh Amendment--the first stand-alone Amendment to the Constitution and the second of only two constitutional provisions that declare the proper method of construing the original Constitution. (26)

INTRODUCTION

The above account differs somewhat from the traditional story of the Eleventh Amendment. Scholars and courts generally attribute the Eleventh Amendment to the "profound shock" (27) caused by the Court's analysis of Article III in Chisholm v. Georgia and the need to reverse the results of that particular case. (28) Although commentators differ in their choice of the most persuasive opinion in Chisholm, (29) there is general agreement that the Eleventh Amendment reflects a public reaction to the issues discussed in that one particular case. (30) In fact, even though the Supreme Court's Eleventh Amendment jurisprudence has long emphasized Chisholm, (31) Eleventh Amendment scholars often criticize the modern Supreme Court for not emphasizing Chisholm enough. (32) For example, scholars regularly disparage the modern Supreme Court's reliance on Hans v. Louisiana because that case expanded state sovereign immunity doctrine well beyond the text of the Eleventh Amendment and the specific factual circumstances in Chisholm. (33) Expanding Eleventh Amendment doctrine beyond Chisholm, they argue, uncouples the doctrine from the text of the Constitution and introduces a concept of sovereignty literally foreign to the founding generation's embrace of popular (as opposed to state) sovereignty. (34) In sum, the long-standing and voluminous debate over the Eleventh Amendment generally assumes that this particular Supreme Court case is somehow central to our understanding of the clause.

This Article contends that the modern emphasis on Chisholm v. Georgia as the generative source of the Eleventh Amendment is historically incorrect. Public debate regarding the key issues behind the Eleventh Amendment had been underway long before the Court handed down its decision in Chisholm. (35) Although the decision added urgency to this debate, the actual opinions in the case had little impact due to their public unavailability for months after the decision was handed down. (36) Nor was it Georgia that took the lead in protesting the perceived...

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