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Scott Gerber on Chisholm v. Georgia
Michael Ramsey

At Law & Liberty, Scott Gerber: In Defense of the Supreme Court’s First Constitutional Law Decision.  From the introduction:

Last Monday, the U.S. Supreme Court held in Franchise Tax Board of California v. Hyatt, in a 5 to 4 opinion by Justice Clarence Thomas, that a state can maintain its sovereign immunity from lawsuits in other states, reversing a prior decision the Court issued in 1979 in Nevada v. Hall. ...

Importantly, [Hall] was not the only precedent on the subject. In fact, the Court’s first full-scale constitutional law decision, Chisholm v. Georgia, decided in 1793, was also in the way. At issue in Chisholm was whether a citizen of one state, South Carolina, could bring suit in federal court against another state, Georgia. The subject matter of the suit was a sizable debt that the state of Georgia had incurred in purchasing military supplies from Chisholm’s testator during the American Revolution.

As the post goes on to explain, in the Court's seriatum opinions Justice Wilson and Chief Justice Jay embarked on wide-ranging opinions that distract from the textual force of the argument against sovereign immunity.  However:

The opinions of John Blair and William Cushing in the Chisholm case have been called, among other things, “unimaginative.” It is more accurate to say they stayed on point. Blair began his opinion with a subtle expression of disapproval of the rambling opinions of Iredell [in dissent], Wilson, and Jay: Blair said he would pass over the “various European confederations. . . . The Constitution of the United States is the only fountain from which I shall draw.” Blair was true to his word. In fact, he needed but three pages to decide the case, and his decision was based on a plain reading of the words of the Constitution.

William Cushing’s opinion was similar to Blair’s in both tone and method. He, too, began by saying, “the point turns not upon the law or practice of England, . . . nor upon the law of any other country whatever” and he, too, emphasized the words of the Constitution. Put simply, Cushing’s opinion is a straightforward example of textual analysis. To Cushing, the clause in question, “between a state and citizens of another state,” needed to be read in conjunction with the clause that immediately preceded it, “to controversies between two or more states”—a clause that plainly envisioned the state as a defendant. If any exception was intended in the suability of a state, Cushing insisted, it would have been written into the Constitution. Cushing drove this point home by explaining that another clause in the relevant section subjected foreign states to suit in federal court by American citizens. Thus, the “sovereignty” argument was of no avail, Cushing concluded, unless one accepted the improbable argument that the clause meant “we may touch foreign sovereigns but not our own.”

The modern Court's doctrines of state sovereign immunity depend on the proposition that Chisholm was wrongly.  But perhaps that is not so obvious.

(Thanks to Mark Pulliam for the pointer).

RELATED:  Michael Dorf has this post at Justia criticizing the Hyatt decision:  Supreme Court’s Conservative Majority Issues Another Atextual Ruling in a Sovereign Immunity Case.  As discussed here, I basically agree with his bottom line.  But I think he obscures how much more problematic Hyatt is by lumping it in with the rest of the Court's state sovereign immunity decisions.

Professor Dorf says the others decisions are also atextual, but that's not entirely right.  Properly understood, the rule that states are immune in federal court comes from the vesting of the "judicial Power" of federal courts in Article III.  The theory is that historically "judicial power" did not include the power to hear suits against sovereigns, and so that meaning should be giving to it in Article III.  True, one has to go outside the text to find this rule, but it reflects the use of a background assumption to interpret text, which is not at all contrary to conventional originalism.  (This may be an incorrect interpretation of Article III, as Professor Gerber argues in the post linked above.  But that doesn't mean it's atextual; it just means it's wrong).

It's also true (as Professor Dorf says) that interpreting Article III does not get the result in Alden v. Maine, holding that state courts are immune from suit in their own courts.  But it's important to state the holding of Alden precisely (which Professor Dorf does not): it is that Congress cannot make states subject to suit in their own courts.  This conclusion is (or should be) based on the necessary and proper clause.  It's not necessary and proper to any of Congress' powers to impose such liability on the states (in particular, it isn't "proper" given the federal structure).  Unfortunately Justice Kennedy, writing for the majority, did not put it this way in Alden, but it is a reasonable textual foundation for the result in Alden.  (As with the other immunity decisions, I'm only saying here that there is a textual foundation for Alden, not that it is correct).

In contrast, so far as I can tell, there is no plausible textual foundation for Hyatt at all.  It is not an interpretation of any constitutional text.