[20] 1 Cranch's Reports, pp. 176-177.
[21] 204 New York Reports, p. 534.
[22] Since this address was delivered, the sixteenth amendment has been ratified. It was proposed by Congress July 16, 1909, and declared effective February 25, 1913. The seventeenth amendment was proposed by Congress May 15, 1912, and declared effective May 31, 1913. In view of this demonstration, it should certainly not be any longer urged that the Constitution of the United States is practically unamendable.
THE ELEVENTH AMENDMENT[23]
Of the important questions of constitutional law now before the country, none more vitally affects the peace and harmony of our dual system of government than that of the power of a federal court to enjoin a state officer from enforcing the provisions of a state statute which is in conflict with the Constitution of the United States. This question usually arises in connection with the eleventh article of amendment, which provides that "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." Serious controversies regarding the issuance of injunctions by federal courts against state officers have arisen in New York, North Carolina, Alabama, Missouri, Kansas, Minnesota, and other states. A convention of attorneys-general from a number of states, held at St. Louis in September and October, 1907, adopted a memorial to the President and Congress praying that the jurisdiction of the circuit courts of the United States might be curtailed in respect of suits brought to restrain state officers from enforcing state laws or the orders of state administrative boards. The President in his annual message to Congress called the matter to the attention of that body, and stated that discontent was often expressed with the use of the process of injunction by the courts where state laws were concerned. The assembling of Congress was marked by the introduction of numerous bills to curtail the power of the federal courts to issue injunctions and by the offering of several joint resolutions to amend the Constitution of the United States, which had the same object. The question will, perhaps, figure prominently in the next presidential campaign. It may, therefore, be appropriate to review at this time the history of the eleventh article of amendment to the Constitution of the United States in order to see what light that history throws upon the purpose of its framers. Did they intend, in prohibiting suits by an individual against a state, to deny to the courts of the United States the power to enjoin a state officer from enforcing a state statute in conflict with the Constitution of the United States?
In 1787 and 1788, when the adoption of the Constitution was under consideration by the people of the United States, conflicting views were entertained as to the suability of a state by an individual for the recovery of claims against it. Hamilton, Madison and Marshall expressed the opinion that a state would not be suable by an individual under the Constitution as drafted. A number of prominent men, conspicuous among whom were Edmund Pendleton, Patrick Henry and George Mason, were of opinion that the language of the judicial clause conferred jurisdiction to entertain and determine such a suit. Some urged this as an objection to the Constitution. Others, including James Wilson of Pennsylvania and Edmund Randolph of Virginia, two of the most distinguished lawyers and publicists of the day and members of the Constitutional Convention, contended not only that jurisdiction was conferred but that it was wise and necessary that such jurisdiction should exist. Wilson urged that "when a citizen has a controversy with another state, there ought to be a tribunal where both parties may stand on a just and equal footing," and Randolph argued that the jurisdiction would tend "to render valid and effective existing claims, and secure that justice, ultimately, which is to be found in every regular government." The Constitution of the United States was adopted as submitted with the understanding that amendments would be promptly proposed. The First Congress submitted twelve amendments, ten of which were adopted, but the suability of a state was not mentioned in any of them.
The question was presented for judicial decision in 1792 in an action brought by Chisholm, a citizen of the state of South Carolina, against the state of Georgia in the Supreme Court of the United States under its original jurisdiction.[24] The action was in assumpsit to recover a debt. The court then consisted of Chief Justice Jay and Justices Cushing, Wilson, Blair, Johnson and Iredell. On February 18, 1793, the court held, Mr. Justice Iredell alone dissenting, that under the Constitution as originally adopted a state could be sued in that court by a citizen of another state in an action of assumpsit to enforce the payment of a contract debt. This decision, which was followed by the commencement of the suit of Vassal vs. Massachusetts, created irritation and alarm among the states, and particularly among those which were heavily burdened with debt. The anti-Federalist prints were loud in invectives against the decision, which was termed a violation of the sovereignty of the states, and it was declared that the people were "called upon to draw their swords against this invasion of their rights." It has been said, though with some exaggeration, that "the states fairly rose in rebellion against the decision." Four states formally protested. Although Georgia had been the first state to invoke the original jurisdiction of the Supreme Court, it nevertheless refused to appear in the Chisholm suit, and filed a remonstrance and protestation against the exercise of jurisdiction. After the decision, it openly defied the authority of the national judiciary. Indeed, it is stated by McMaster, Cooley and other writers that the legislature of Georgia at once passed a law subjecting to death without benefit of clergy any officer who should attempt to serve a process in any suit against the state, but no record of any such statute can be found. Probably, as some one has suggested, the supposed law was a bill which passed only the lower branch of the legislature. At all events, the legislatures of Virginia, Massachusetts and Connecticut instructed their senators and representatives to secure the adoption of an amendment to the Constitution which should prevent suits against a state by an individual.
On February 20, 1793, two days after the opinions in Chisholm vs. Georgia were delivered, a resolution was offered in the United States Senate proposing an amendment of the Constitution in the following terms: "The judicial power of the United States shall not extend to any suits 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."