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Thursday, February 07, 2013

Centuries Of Sovereignty

Tribal sovereignty means that; it's sovereign. I mean, you're a -- you've been given sovereignty, and you're viewed as a sovereign entity. And therefore the relationship between the federal government and tribes is one between sovereign entities.

 - George W Bush, August 6, 2004

That quote really has nothing to do with this post, but it's wicked funny, innit?  Anyway, today is the 218th birthday of the 11th Amendment!

I'm guessing it's not one most people are intimately familiar with, but it has quite a fascinating history:

Eleventh Amendment jurisprudence has become over the years esoteric and abstruse and the decisions inconsistent. At the same time, it is a vital element of federal jurisdiction that "go[es] to the very heart of [the] federal system and affect[s] the allocation of power between the United States and the several states." Because of the centrality of the Amendment at the intersection of federal judicial power and the accountability of the States and their officers to federal constitutional standards, it has occasioned considerable dispute within and without the Court.

The action of the Supreme Court in accepting jurisdiction of a suit against a State by a citizen of another State in 1793 provoked such angry reaction in Georgia and such anxieties in other States that at the first meeting of Congress following the decision the Eleventh Amendment was proposed by an overwhelming vote of both Houses and ratified with, what was for that day, "vehement speed." Chisholm had been brought under that part of the jurisdictional provision of Article III that authorized cognizance of "controversies ... between a State and Citizens of another State."

At the time of the ratification debates, opponents of the proposed Constitution had objected to the subjection of a State to suits in federal courts and had been met with conflicting responses—on the one hand, an admission that the accusation was true and that it was entirely proper so to provide, and, on the other hand, that the accusation was false and the clause applied only when a State was the party plaintiff. So matters stood when Congress, in enacting the Judiciary Act of 1789, without recorded controversy gave the Supreme Court original jurisdiction of suits between States and citizens of other States. Chisholm v. Georgia was brought under this jurisdictional provision to recover under a contract for supplies executed with the State during the Revolution. Four of the five Justices agreed that a State could be sued under this Article III jurisdictional provision and that under section the Supreme Court properly had original jurisdiction.

The Amendment proposed by Congress and ratified by the States was directed specifically toward overturning the result in Chisholm and preventing suits against States by citizens of other States or by citizens or subjects of foreign jurisdictions.

Speaking of inconsistent rulings, how about a little bit from Mr Tony Originalist Scalia?  First, Blatchford v. Native Village of Noatak (1991):

Despite the narrowness of its terms, since Hans v. Louisiana, 134 U. S. 1 (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact...

Here Scalia continues playing his revisionist Eleventher trumpet to the tune of Rehnquist's revived hyper-federalism.  As noted by Mark Strasser in FSU Law Review:

The need for one effective federal law could not be satisfied if states were able to avoid suits in federal court by pleading sovereign immunity. As the Framers realized, there would be, at most, a confederation of states rather than one Union, if large portions of state sovereign immunity had not been surrendered when states ratified the Constitution; a confederation was exactly what the Framers sought to replace when arguing for the ratification of the Constitution.

The current sovereign immunity interpretation offered by the Court does not represent the intentions of the Framers, claims to the contrary notwithstanding. It may well be that at least some of the Framers did not believe that nonconsenting states should be subject to federal court jurisdiction on diversity grounds; however, a requirement that states must always give permission to be sued...federal court would have been too close to the bad experience under the Articles of Confederation ever to have been acceptable.

But then there's Scalia VOPA v Stewart (2011):

We do not doubt, of course, that there are limits on the Federal Government’s power to affect the internal operations of a State...But those limits must be found in some textual provision or structural premise of the Constitution. Additional limits cannot be smuggled in under the Eleventh Amendment by barring a suit in federal court that does not violate the State’s sovereign immunity.

Abstruse, indeed.  Tenthers and Eleventhers try to construe the plain text and history of the Constitution to grant way too much sovereignty to the several States.  Writes Aman Pradhan in NYU's Legislation and Policy Journal:

Sovereign immunity frustrates popular sovereignty—the principle that sovereignty resides in the people and that governments are subject to the rule of law—by forcing individuals to file often-ineffective suits against state officials rather than against the states themselves.

Second, it limits the state and federal governments’ attempts to legislate in concert in such areas as environmental law by reducing state accountability and undermining the reach of citizen suits. Reducing state accountability tends to create a disincentive for Congress to delegate regulatory authority to the states.

Third, these drawbacks cannot be justified in the name of the federalist concern for state autonomy. The Eleventh Amendment only grants states immunity from suit; it does nothing to protect their ability to govern. Finally, it may even be counterproductive, as inconsistent enforcement gives the federal government incentive to consolidate, rather than delegate, power.

Tell that to Patrick Henry, man!  Obviously, popular sovereignty carries its own risks to liberty, which is why we have republican government, not direct democracy.  As does state sovereignty, which is why we have a federal system, not a confederation.  

Yet one must remember that the People are, in fact, the ultimate sovereign.  Perhaps we can take inspiration from the vehement reaction to Chisolm and make another clarifying change to our Constitution in the wake of Citizens United.  Or maybe a couple Obama appointments will allow SCOTUS to apply a fix ala Ex parte Young.

Whatever.  Scalia might not believe in Holmes' living constitution, but we still have a living republic two centuries after the Framers first tinkered with their flawed document.  We'll get good at this stuff eventually...


February 7, 2013 in Constitution, Schmonstitution | Permalink


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