Magna Carta, and Other Addresses

by William D. Guthrie

The proposed amendment was debated to some extent in the Second Congress, but it was not passed. In the Third Congress, on January 2, 1794, Caleb Strong, one of the senators from Massachusetts, moved the adoption of a resolution which changed the form of the proposed amendment so as to read 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 amendment was finally accepted in this form on March 4, 1794, and was at once submitted to the legislatures of the several states for ratification, but up to March, 1797, there were still eight states which had not acted upon it, probably because the political clamor had subsided, and there was no longer any demand for amendment. In fact, Congress had to request the President to communicate with the outstanding states upon the subject. Finally, in a message from President Adams to Congress dated January 8, 1798, the proposed amendment was declared to have been ratified by three-fourths of the states, and it thereupon became the eleventh article of amendment to the Constitution of the United States. New Jersey and Pennsylvania had refused to ratify it, while South Carolina and Tennessee had taken no action.

The unusual and peculiar wording of the amendment first attracts attention. Instead of declaring how the Constitution shall read in the future, it declares how it shall "not be construed." This phraseology was used for political reasons and as a concession to the susceptibilities of the advocates of state rights. Extremists wanted a declaration that would not only overrule the recent construction of the Constitution by the Supreme Court and deny that such a power had ever existed, but would also oust all jurisdiction in pending as well as in future cases. The amendment, therefore, does not purport to amend or alter the Constitution, but to maintain it unchanged, while controlling its scope and effect by authoritatively declaring how it shall not be construed.

Speaking of the language of the amendment, Chief Justice Marshall said in the case of Cohens vs. Virginia: "It is a part of our history, that, at the adoption of the Constitution, all the states were greatly indebted; and the apprehension that these debts might be prosecuted in the federal courts formed a very serious objection to that instrument. Suits were instituted, and the court maintained its jurisdiction. The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this amendment was proposed in Congress, and adopted by the state legislatures. That its motive was not to maintain the sovereignty of a state from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. It does not comprehend controversies between two or more states, or between a state and a foreign state. The jurisdiction of the court still extends to these cases: and in these a state may still be sued. We must ascribe the amendment, then, to some other cause than the dignity of a state. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a state, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister states would be creditors to any considerable amount, and there was reason to retain the jurisdiction of the court in those cases, because it might be essential to the preservation of peace. The amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by states.

"The first impression made on the mind by this amendment is, that it was intended for those cases, and for those only, in which some demand against a state is made by an individual in the courts of the Union. If we consider the causes to which it is to be traced, we are conducted to the same conclusion. A general interest might well be felt in leaving to a state the full power of consulting its convenience in the adjustment of its debts or of other claims upon it; but no interest could be felt in so changing the relations between the whole and its parts, as to strip the government of the means of protecting, by the instrumentality of its courts, the Constitution and laws from active violation."[25]

It will also be observed that the amendment does not refer to suits against a state by one of its own citizens. This was undoubtedly because the Constitution did not extend the judicial power of the United States, when dependent upon the character of the parties, to controversies between a state and its own citizens, but only to controversies between a state and citizens of another state or citizens or subjects of foreign states. The distinction between jurisdiction dependent upon the nature or subject matter of the controversy irrespective of the character of the parties, such as cases arising under the Constitution, laws and treaties of the United States, and jurisdiction dependent upon the character of the parties irrespective of the nature or subject matter of the controversy, had probably not then been as clearly recognized as was subsequently done by Chief Justice Marshall. The failure of the eleventh amendment to mention suits against a state by its own citizens gave rise nearly one hundred years later to the contention that a state could be sued in a circuit court of the United States by one of its own citizens in a case arising under the Constitution. This was urged at the October term, 1889, in Hans vs. Louisiana and North Carolina vs. Temple,[26] but the court overruled the contention and held that a state could not be sued by an individual in a United States court even in a case arising under the Constitution. Mr. Justice Bradley delivered the opinion of the court. He criticized the reasoning of the majority in Chisholm vs. Georgia, and upheld the dissenting opinion of Mr. Justice Iredell to the effect that, under the Constitution as originally adopted, no suit could be maintained against a state by an individual to enforce its debts except by its consent. Mr. Justice Harlan, however, while he concurred in holding that a suit directly against a state by one of its own citizens to enforce a debt was not within the judicial power of the United States, criticized the comments made by Mr. Justice Bradley upon the decision in Chisholm vs. Georgia as not necessary to the determination of the case, and expressed the opinion that the prior decision was based upon a sound interpretation of the Constitution as that instrument was then worded.

It has been stated in opinions of the Supreme Court that a state can be sued in a court of the United States by an individual if it waives its immunity and consents to be sued. But it is difficult to perceive how the consent or waiver of a state can, in any case and under any circumstances, confer upon the federal courts jurisdiction of a suit against it by a citizen of another state or a citizen or subject of a foreign state in the face of the imperative mandate of the amendment that "the judicial power of the United States shall not be construed to extend to" any such suit. It is true that the court in the case of Clark vs. Barnard said that the immunity of a state from suit in a federal court was a personal privilege which it might waive at pleasure and that its appearance as a party defendant in a court of the United States would be a voluntary submission to its jurisdiction,[27] but in that case the state intervened as an actor and its intervention was such that it could be treated substantially as a plaintiff and the jurisdiction sustained on the ground that a state may sue an individual in a federal court. Although in the more recent case of Gunter vs. Atlantic Coast Line,[28] Mr. Justice White, delivering the opinion of the court, declared it to be an elementary proposition that a state could waive its immunity, it will be observed that in that case the suit was in fact against an officer of the state of South Carolina, and that the state itself was not a party to the record. It seems to me, with all deference, that the court has not yet squarely passed upon the point, nor, so far as I know, has it ever questioned the fundamental principle that a federal court cannot exercise jurisdiction in any case to which the judicial power of the United States, as delegated and defined in the Constitution, does not extend. An entirely different question is presented when we consider whether an officer of a state can consent or be authorized to consent to be sued in a federal court; in other words, whether he can waive the defense that the state is a necessary party to the suit. It does not follow that, because a state cannot be sued, it may not authorize its agent to defend on the merits without pleading the absence of the state as the real party in interest, and the denial of jurisdiction over the state as principal does not necessarily imply a denial of jurisdiction over the officer when doing or attempting to do an illegal act as its agent or representative. So, also, a different question is presented under the later amendments, which may be held to have qualified the eleventh amendment in authorizing Congress to enforce their provisions by appropriate legislation. As to that point I am not now prepared to express an opinion.

In construing the eleventh amendment for the purpose of ascertaining its true intent and meaning, as indeed in construing most of the provisions of the Constitution and its contemporaneous amendments, reference to the history and to the common law of England is generally the safest guide as to what was understood and intended at the time. In that history will be found the true sources of our institutions, for these are essentially and predominantly English. The legal and political institutions of England were constantly in the minds of the framers and of the people. The common law had long been regarded with affection and reverence as the birthright of Americans and the guardian at once of their private rights and their public liberties. Indeed, the Continental Congress, assembled in October, 1774, had declared the colonies entitled as of right to the common law.

The theory of the immunity of a state or of the United States from suit by an individual without its consent is frequently asserted to be analogous to the monarchical principle as to the immunity of the king from suit without his consent commonly expressed in the maxim that "the king can do no wrong." The idea seems to have been that in England it would be considered an invasion of the sovereignty of the crown and derogatory to its dignity to subject the king to a suit by an individual except with his consent, to be granted or refused in his arbitrary discretion. It is very doubtful whether any such idea finds support in the common law or history of England, or in the traditional usage and experience of that country to any such extent as is often insisted upon.