Chisholm v. Georgia (1793)

Professor Randy Barnett has a paper about Chisholm v. Georgia (1793), the Eleventh Amendment, and the definition of "sovereignty" that he is circulating for comments; he blogs about it here.

First, a little background on Chisholm v. Georgia (1793). Chisholm was the executor of an estate of a man who had supplied Georgia with goods during the Revolutionary War--and who had never been paid. Chisholm sued the state of Georgia in federal court for payment. Georgia did not want to pay (I'm not sure why), and denied that the federal courts had any jurisdiction in such a matter. U.S. Attorney-General Randolph argued in Chisholm's behalf.

The U.S. Supreme Court ruled otherwise, deciding the case in Chisholm's favor. This being an early decision, much of the form that you may be used to in reading Supreme Court decisions isn't there; it is actually pretty confusing.

There was a pretty dramatic negative reaction in Congress to this. A corrective amendment to the Constitution was passed by 2/3 of both houses of Congress on March 4, 1794 and ratified by 3/4 of the states February 7, 1795--astonishingly quickly, suggesting that it enjoyed very broad support. The text of the Eleventh Amendment:

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.

Barnett's paper makes several points that are quite interesting--and one that just strikes me as wrong. One of Barnett's claims is that Justice Wilson's opinion held that states enjoyed no sovereignty (in the "we're immune from suit unless we give you permission to sue us" sense). This is true; Wilson's argument definitely denies that a state is free to do as it wishes. Randolph, while refusing to deny that states enjoy sovereignty:

I acknowledge, and shall always contend, that the States are sovereignties.

But Randolph also pointed out that they were not completely sovereign under the Constitution, since there were a number of powers that they gave up as a condition of ratifying the Constitution of 1787:

I resort, therefore, to the body of it; which shows that there may be various actions of States which are to be annulled. If, for example, a State shall suspend the priviledge of a writ of habeas corpus, unless when in cases of rebellion or invasion the public safety may require it; should pass a bill of attainder or ex post facto law; should enter into any treaty, alliance, or confederation; should grant letters of marque and reprisal; should coin money; should emit bills of credit; should make any thing but gold and silver coin a tender in payment of debts, should pass a [2 U.S. 419, 422] law impairing the obligation of contracts; should, without the consent of Congress, lay imposts or duties on imports or exports, with certain exceptions; should, without the consent of Congress, lay any duty on tonnage, or keep troops or ships of war in time of peace; these are expressly prohibited by the Constitution; and thus is announced to the world the probability, but certainly the apprehension, that States may injure individuals in their property, their liberty, and their lives; may oppress sister States; and may act in derogation of the general sovereignty.

But a theme that appears in both U.S. Attorney-General Randolph's argument, and Wilson's opinion, emphasizes the injustice of allowing a state to welsh on a contract. Randolph observes:

Are States then to enjoy the high priviledge of acting thus eminently wrong, without controul; or does a remedy exist? The love of morality would lead us to wish that some check should be found; if the evil, which flows from it, be not too great for the good contemplated.

Wilson's decision also points out the importance of contract:

Is there any part of this description, which intimates, in the remotest manner, that a State, any more than the men who compose it, ought not to do justice and fulfil engagements? It will not be pretended that there is. If justice is not done; if engagements are not fulfilled; is it upon general principles of right, less proper, in the case of a great number, than in the case of an individual, to secure, by compulsion, that, which will not be voluntarily performed?

Where Professor Barnett goes off the rails is his assertion that Wilson's argument that:

Let a State be considered as subordinate to the People: But let every thing else be subordinate to the State.

indicates a libertarian understanding of individual rights relative to the state. Wilson's rhetoric emphasizing that states are not sovereign, but to see this as evidence that Justice Wilson and other Framers regarded individual rights as taking precedence over legislative authority in the states is an extraordinary stretch. State government during the early Republic period adopt all sorts of antilibertarian laws. When such laws are overturned, it is not based on this free floating libertarian presumption that Barnett keeps finding where ever he looks, but on specific provisions of either state constitutions, or the federal constitution.