Tahlequah Daily Press


April 28, 2014

Sovereign immunity addressed by 11th Amendment

TAHLEQUAH — After the ratification of the U.S. Constitution, it didn’t take long for the states to seek its first amendment, post-Bill of Rights, thanks to a Supreme Court decision that left them feeling vulnerable.

The 11th Amendment was approved by Congress on March 4, 1794, and ratified by the states on Feb. 7, 1795. It 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.”

The amendment was a direct repercussion of the 1793 case of Chisholm v. Georgia. Alexander Chisholm, a South Carolinian, filed suit against the state of Georgia, claiming the estate for which he was executor was owed payment for supplies to the state during the Revolution. During the trial, Georgia was a no-show, claiming sovereignty.

The court found for Chisholm, 4-1, ruling that the Constitution nullified any state sovereignty. The case also established federal jurisdiction over suits against states by outside parties.

The states and Congress were not amused. The Third Congress sent the amendment to the states by votes of 81-9 in the House of Representatives and 23-2 in the Senate. The amendment received ratification from three-fourths of the states when North Carolina gave its approval.

Oddly, the administration of George Washington never announced the ratification. President John Adams officially informed Congress of passage on Jan. 8, 1798, saying the 11th Amendment was part of the Constitution.

With the amendment’s ratification, the Chisholm decision was overturned. However, in the 1798 case of Hollingsworth v. Virginia, the plaintiff challenged the amendment because it was never submitted to President Washington for possible veto.

When the Supreme Court ruled it had no jurisdiction, it found that all proper procedures were followed to ratify the 11th Amendment - and that presidents play no part in the ratification process.

Some legal scholars argue that a president still might veto a ratification; that the court’s decision did not require an executive review, but also didn’t prohibit it. Others say the executive bypass is now established by precedent, and that amendments are passed by supermajorities anyway, obviating veto powers.

Though the amendment does not address suits against states by their own citizens, sovereign immunity was expanded in Hans v. Louisiana (1890), when the Supreme Court ruled citizens could not sue their states of residence in federal court. Protections have been further enhanced by cases including Seminole Tribe v. Florida (1996) and Alden v. Maine (1999), in which the court ruled that the U.S. Congress may not use its Article One constitutional powers to invalidate states’ sovereign immunity in state courts.

It hasn’t been a clean sweep for states in 11th Amendment cases, particularly where federal law is concerned.

The Supreme Court has ruled that the federal judiciary may file injunctions to prevent state officials from violating federal law (Ex parte Young, 1908), and that Congress may abrogate state sovereignty against lawsuit under the enforcement clause of the 14th Amendment (civil rights cases) and Article I, Section 8, Clause 4 of the Constitution (bankruptcy cases).

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Do you think "blue laws" related to Sunday alcohol sales in Oklahoma should be relaxed? Choose the option that most closely reflects your opinion.

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The law should remain as it is now; liquor stores should be closed, and drinks should be served on Sundays according to county option.
No alcohol should be sold or served publicly on Sundays.
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