The 11th Amendment - the First Constitutional Victory for States Rights

It's Saturday, 7 February 2015. The situation in Ukraine worsens as German Chancellor Merkel and French President Hollande, pretending that they were elected by the people of Ukraine, continue to negotiate a peace deal with Russian President Putin -- was Ukraine President Poroshenko even invited? No. And the Middle East is in an explosive state as tiny,poor Jordan - with no oil or other resource riches - takes command of the fight against ISIS, and the richisme Arab Emirates and others begin to follow -- proving once again that money isn't all-powerful and will always follow a leader. ~~~~~ Why do I mention these two assumptions of executive power today? Because they are examples of governmental power rushing to fill a vacuum -- King Abdullah, with the support of his legitimizing tribes in the Middle East, and Merkel and Hollande in the EU arena because other member states remain silent. And because February 7 will be - or should be - remembered in America for a special reason relating to governmental power, in this case judicial power reaching for new legal territory. ~~~~~ On 7 February 1795, the 11th Amendment to the US Constitution was ratified, affirming that states are protected from being sued in federal courts, either by the federal government or by citizens of foreign countries. The 11th Amendment, added to the Constitution just a few years after the Bill of Rights, is the first constitutional amendment to specifically overturn a Supreme Court decision. The Eleventh Amendment was passed to correct the Supreme Court's ruling in Chisholm v. Georgia, 2 U.S. 419 (1793). In Chisholm, two South Carolina men sued to collect debts from the State of Georgia. The case went ro the Supreme Court, which ruled that federal courts had the authority to hear cases in law and equity brought by private citizens against states and that states did not enjoy sovereign immunity from suits made by citizens of other states in federal court. States-rights advocates in Congress and the states pushed for Congress to pass what became the 11th Amendment in 1795. The amendment, ratified by 12 of the then 15 states, was made part of the Constitution under President John Adams. It specifically prohibits federal courts from hearing cases in which a state is sued by an individual from another state or another country, by clarifying Article III, Section 2 of the Constitution, which gave diversity jurisdiction to the judiciary to hear cases "between a state and citizens of another state." The text of the 11th Amendment reads : "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." ~~~~~ This concept of protecting states or other political entities from lawsuits, known as sovereign immunity, did not, under the 11th Amendment bar all lawsuits against states in federal courts. For example, as initially interpreted, the 11th Amendment did not bar suits against states when a matter of federal law was at issue, nor did it prevent suits brought against a state by its own citizens. However, the courts for many years whittled away at sovereign immunity, making the 11th Amendnent less important. But more recently, a divided Supreme Court has held that states are immune from all lawsuits in federal courts unless they specifically agree to be sued. And, although the Eleventh Amendment was not very significant for many years, the Supreme Court has also lately used the Amendment in several cases to strike down federal laws that it believes impinge unconstitutionally on state power. ~~~~~ So, dear readers, while state power has today become a catch phrase for those who want to roll back the ever-expanding powers of the federal government, especially in the executive branch led by the President and his administrative agencies - FDA, FCC, IRS, EPA are examples - the question of state powers is also a judicial question always under scrutiny in American federal courts. It is just one more example of the truism that the United States Constitution is a living document. Don't believe anyone who suggests that it is dead or needs to be drastically revised.