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Was Chisholm v. Georgia correctly decided? Did Article III do more than simply confer jurisdiction on federal courts; did it also prescribe a rule of substantive law - one that nullified State defenses of "sovereign immunity"?
Justice Iridell's opinion answered that question. If States retained sovereign immunity when sued in federal courts, then the exercise of federal jurisdiction would be merely sport, nothing more than a forum for (always) entering judgment in favor of States.
Beyond that logical answer, the formation of a new government had divested States of much of their sovereignty. They may have had immunity from suit when sued in their own courts, but why would they have immunity when sued in the courts of a superior sovereign. Rather than merely preserving pre-constitutional notions of sovereign immunity, allowing States to escape liability by invoking SI in federal courts would mean they had greater sovereignty after ratification than before.
Georgia wasn't happy. Neither were the other states. So the 1st post-formation constitutional amendment overruled Chisholm.
SI: A Rule of Jurisdiction or a Rule of Substantive Law?
As you examine the text of the 11th Amendment, and compare it to the language of diversity jursidiction in Article III, ask yourself whether the Amendment simply repeals one basis for jurisdiction, or also creates (or restores) a substantive law defense to suit.
If the former interpretation is correct, then the 11th simply means that States may not be haled into federal court on the basis of diversity. If another jurisdictional basis is found, say federal question, then the 11th would be inapposite. Of course, one could ignore the literal text of the 11th Amendment and conclude that federal courts lacked juridiction to adjudicate cases against States no matter what the basis for jurisdiction was.
From Chisholm to Hans to Young to Seminole to Garrett to Alden, and Beyond
In Hans v. Louisiana, the Court said it would be anomolous to bar suits against States filed by non-residents, yet permit suits filed by the State's own citizens. Why is that anomolous? Even if it were, how do you get around the actual wording of the 11th Amendment.
The answer to that question is easy. You hold that the 11th Amendment should not be read "strictly," but should be interpreted according to broader (historical) principles. (It is usually "strict constructionists" who argue against a strict construction of the 11th Amd). And those principles are that the 11th Amd. did more than simply repeal one basis of Art. III jurisdiction; rather it restored the State's pre-constitutional sovereign right to resist suit, no matter who sues them, or on what basis.
Cool Stripping Act
If States are immune to suit in federal court (per Hans) then how can the Supreme Court enforce its laissez faire economic theories against States? Ex Parte Young provided the answer. The Attorney General of Minnesota could be sued in federal court, to enjoin a regulation of railroad prices, because his enforcement of the regulation violated the railroad's right to economic due process. The moment Young started acting unconstitutionally, he was "stripped" of his state status (and his ability to invoke the State's sovereign immunity), and laid bare as a private citizen who had no immunity in federal court.
Slight problem. If Young is a private citizen, and not the State, for purposes of the 11th Amd., how is he even subject to the restrictions of the 14th Amd (which only limits state action)? Easy. Just compound the fiction of "stripping," by holding it applies only to some constitutional rights (in fact, just 1 - the 11th), and none other. How hard can that be?
Turns out to be hard, because now the railroads, whose constitutional rights had been violated, want damages for their injuries. Edelman v. Jordan says no dice. While we can pretend that a suit against a state officer isn't really a suit against the State, that fiction works only for prospective relief (injunction, declaratory relief). Suits for retrospective relief (damages, restitution, etc.) are really suits against the State, because the money judgment would come out of the state treasury.
Exceptions and Exceptions to the Exceptions
It turns out that the 11th Amendment isn't like other jurisdictional provisions, since the State defendant can waive it's immunity (parties can't ordinarily consent to confer jurisdiction - since it goes to the power of the court in the first place). Sovereign immunity can also be "abrogated" (overriden) by congress in some cases. In Union Gas v. Pennsylvania, the Court ruled that wherever congress has enumerated power, States had ceded their sovereignty to that extent. The constitutional history that underlay Union Gas was discovered to be wrong in Seminole Tribe of Florida v. Florida. The new history (don't you just love it) indicated that the 11th undid this relinquishment of sovereignty (what does that amendment say again?). Abrogation is still allowed when congress acts pursuant to its 14th Amendment, Section 5 powers. After all, the 14th was passed after the 11th, and undid the undoing the 11th had done to the original text, which had undone the notion of state sovereignty found in the Articles of Confederation. Are you dizzy yet?
So, if congress can abrogate pursuant to Section 5 (but not pursuant to Section 8), then what safeguard is there for State immunity? Simple, narrow congress' Section 5 powers. Several cases do that, including City of Boerne v. Flores and Garrett v. Alabama. Those cases hold that congress cannot create "new" rights under Section 5, unless they are "congruent and proportional" to the rights found in Section 1 of the 14th Amd (or the risk of a Section 1 violation occuring).
Completing the Transition of the 11th Amendment from Jurisdictional to Substantive Rule
Thus far in the story, the 11th has been a rule of jurisdiction; telling us when a State can be sued in federal court. Alden v. Maine tells us that this is too narrow a reading of the 11th Amendment (or rather too narrow a reading of history, since the text of the 11th had been abandoned a long time ago). States enjoy immunity, not merely from federal jurisdiction, but from federal law itself. Thus, they cannot be sued in any forum (e.g., state court) for violating federal law, unless one of the exceptions apply (such as stripping, waiver, abrogation). In other words, the 11th (or its ethereal disembodiment in history) declares States the true sovereigns in the US, who are above (much of) the law. The King can do no wrong.
Alden was followed by FMC v. S.Carolina, holding that States cannot be "sued" (complained against) in a federal agency, even where that complaint is predicate to the US bringing suit itself against the State (another exception to the 11th Amd). Because federal agencies were unknown and uncontemplated in 1787, the framers/delegates/ratifiers/voters must have (would have had they known) wanted State sovereign immunity to extend to all new forms of dispute resolution. This is not rewriting history; this is creating it.
Other stuff
There's a lot more to the 11th Amendment than contained in this post (and a lot more than meets the eye). Much of the nuances were covered in class. Since you took such good notes, there's no need for me to go on. One final word - I haven't actually counted to see if the 11th Amendment had 11 lives (it surely had 9; it simply won't die). But it was such a good title for this post.
In Tennessee v. Hood, imposition Tennessee's sovereign immunity to the bankruptcy code, as a creditor, is an affront to Hood's Due Process and contract rights. The court found that Hoods claim was not even "against a state," but even if it had been, other Constitutional considerations should still bar TSAC's sovereign immunnity claim.
TSAC aqcuired Sally Mae's right's as a creditor by assignment, and should not be able to append its separate rights as a sovereign to the creditor's rights it seeks to enforce as an asignee. To do so would bundle extra requirements on the debtor simply because a party of a different nature than the one with whom she originally contracted bought the loan. Seeking enforcement of a loan agreement as an assignee, TSAC should only be able to assert the rights assigned by that transaction.
Whether or not a creditor is subject to the US Bankruptcy code is an immensly important consideration to a debtor looking to procure a loan. Hood could discharge a debt to Sally Mae under the bankruptcy code, so long as it is an undue hardship, but she could not discharge such a debt if TSAC were the direct creditor (TSAC argues), ignoring the in rem nature of a bankruptcy proceding for the moment. Such a fact must have enter into a reasonable calculation of from whom Hood should barrow her student loans. Hood contracted a loan with Sally Mae, understanding that the Bankruptcy code could ultimately define her rights and obligations in repaying the loan. TSAC is claiming that they can unilaterally alter Hood's obligations to pay by purchasing an assignment of the loan from Sally Mae, thus rendering the Bankruptcy Code inapplicable. This seems to violate Hood's right to contract, by altering her loan agreement in a material way, as well as her due process rights.
To rule otherwise would ultimately render all student loans undischargeable. Here's how: Private lenders would simply always assign their loans to state institutions to be guarenteed repayment. State institutions buying the loans would, in turn, invoke sovereign immunity to a bankruptcy discharge of the debt. No student could ever discharge a student loan under this regime.
This approach directly undermines Congress' intent in section 523 of the bankruptcy code, and Congress' explicit abrogation of state sovereignty in 11 USC 106a.
the 11th amendment specifically states that no citizen may sue "one state" and by adjoining another state then this amendment does not apply.
the 12th Amendment states " The Electors shall meet in their respective states and vote by ballot for President, and Vice-President, one of whom, at least, shall not lie an inhabitant of the same state with themselves; "
in the 2008 national election all the Republican and Democratic candidates held positions (Senators and Governors) which required them to be inhabitants of "States" (not Federal Territories or the District of Columbia)and in addition to these facts; The validity of the 12th Amendment can be challenged on the grounds that the word constitution is never capitalized in the 12th Amendment and therefore it cannot be a valid Constitutional Amendment on the grounds that according to the laws of English Grammar names and titled documents are always capitalized and definitions [descriptive terms] are not capitalized.
therefore the 12th Amendment, which undermines the Popular Vote of the People, is an amendment to the constituion:defined as 1.the act of constituting. 2. A system of related parts;composition; composition,specifically,bodily frame or temperment.
the word Constitution is always capitalized in other constitutional amendments.
The text of the original bill of rights also contained a phrase to amend the preamble of the U.S. Constitution and this phrase is also contained in the 27th amendment in the same wording on the first page of the 27th amendment as follows :
TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETING:
KNOW YE, That the first Congress of the United States, at its first session, held in New York, New York, on the twenty-fifth day of September, in the year one thousand seven hundred and eighty-nine, passed the following resolution to amend the Constitution of the United States of America, in the following words and figures in part, to wit:
The Conventions of a number of States having at the time of their adopting the Constitution, expressed an desire, in order to prevent misconstruction or abuse of its powers, that further declatory and restrictive clauses should be added: And as extending the ground of public confidence in the Government will best ensure the beneficient ends of its institution;
Why hasn't the above stated additionaldeclatory and restrictive clause been added to the restrictive and declatory clause [The Preamble] of the United States Constituion since the passing of the Bill of Rights ?
additionally, the last sentence in Article V of the United States Constitution states : " and that no State, without its Consent, shall be deprived of it's equal Suffrage in the Senate."
Since the 17th Constitutional Amendment [ which was ratified by 36 States- most southern States excluded] deprives States of their equal suffrage by having the U.S. Senators elected by the people of the States. the 17th amendment was ratified in an attempt to avert corruption in the U S Senate [LOL]. The Constituion set up the Congress as two Houses; one to represent the People and one to represent the States.
some U S Constituional amendments state that " Congress shall have the power to enforce. " and the U S Constitution States in Article I Section I that "All Legislative Power herein granted shall be vested in a Congress of the United States, ..."
If one compares the Constituion to Constituional Amendments,Court decisions, The forms of Government in States and Cities, and in general how the Citizens of the United States have been repeadetly denied their rights ; it is easy to ascertain that the Governments of the Cities, States and The United States have ignored the Constituion of the United States and the People for many many years.
If you are not totaly confounded yet ; then to put it simply : Maybe it is time to return to the basics of the United States Cionstitution and for the Federal Government to listed to the Needs of the States and The People as Intended by the Founding Fathers.
Posted by: John Albers at January 4, 2009 10:30 AM