December 12, 1745 – Birth of John Jay, First Chief Justice of the Supreme Court

John Jay played a key role in the early years of the fledgling United States.

In 1787 and 1788 he collaborated with Alexander Hamilton and James Madison on the Federalist Papers, authoring essays numbers two, three, four, five and, following an illness, number sixty-four.  He also played an important part in shepherding the U.S. Constitution through the New York State Ratification Convention in the face of vigorous opposition.

In 1789, President George Washington appointed John Jay as the first Chief Justice of the new Supreme Court.  Jay served from October 19, 1789 to June 29, 1795.

Chief Justice John Jay by Gilbert Stuart

Chief Justice John Jay by Gilbert Stuart

Jay was a committed federalist, notably setting forth his position in his opinion for Chisholm v. Georgia (2 U.S. 419, 1793). In this case, a plaintiff attempted to sue the state of Georgia in the U.S. Supreme Court over payments due to him for goods that he had supplied Georgia during the American Revolutionary War. The defendant, Georgia, refused to appear, claiming that, as a “sovereign” state, it could not be sued without granting its consent to the suit.

In a 4 to 1 decision, the Court ruled in favor of the plaintiff. The Justices delivered their opinions seriatim as was the custom at that time. The majority found that Article 3, Section 2, of the Constitution abrogated the States’ sovereign immunity and granted federal courts the affirmative power to hear disputes between private citizens and States.

Justice Jay held:

The exception contended for would contradict and do violence to the great and leading principles of a free and equal national government, one of the great objects of which is to ensure justice to all — to the few against the many as well as to the many against the few. It would be strange indeed that the joint and equal sovereigns of this country should, in the very Constitution by which they professed to establish justice, so far deviate from the plain path of equality and impartiality as to give to the collective citizens of one State a right of suing individual citizens of another State, and yet deny to those citizens a right of suing them.”

In 1795, the states ratified the Eleventh Amendment to overrule this case. The Eleventh Amendment clarified Article 3, Section 2, removing federal jurisdiction in cases where citizens of one state or of foreign countries attempt to sue another state. Other cases involving state vs. federal sovereignty include Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) and Frew v. Hawkins, 540 U.S. 431s (2004). For a recent analysis of cases involving state challenges to federal sovereignty, see, for example, “When Can A State Sue The United States,” Tara Leigh Grove, 101 Cornell L. Rev. 851 (2016).

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