February 7, 1795 – 11th Amendment to the U.S. Constitution Ratified in Aftermath of Supreme Court Decision of Chisholm v. Georgia

On February 7, 1795, the 11th Amendment to the United States Constitution took effect with ratification by North Carolina. Adopted in the aftermath of the US Supreme Court’s ruling in Chisholm v. Georgia, the amendment limited the jurisdiction of the federal courts to automatically hear cases brought against a state by the citizens of another state.

In 1777, the Executive Council of Georgia had authorized the purchase of supplies from a South Carolina businessman. The supplies were delivered to Georgia, but the state did not deliver payments as promised. After the merchant’s death, the executor of his estate, Alexander Chisholm, took the case to the Supreme Court in an attempt to collect from the state. Georgia maintained that it was a sovereign state not subject to the authority of the federal courts.

[Article II, Section 3 of the Constitution held – before the 11th Amendment – that the Supreme Court would have jurisdiction in cases arising from controversies between a state and citizens of another state.]

In Chisholm v. Georgia (2 U.S. 419, 1793), the Supreme Court, by a vote of four to one, rejected Georgia’s assertion of sovereign immunity as a defense against a suit in federal court for breach of contract brought against it by a citizen of another state. The majority held that supreme or sovereign power was retained by citizens themselves, not by the “artificial person” of the State of Georgia. State conduct was subject to judicial review.

Justice James Wilson, one of the Founding Fathers, wrote in his separate opinion:

A State, like a merchant, makes a contract. A dishonest State, like a dishonest merchant, willfully refuses to discharge it: The latter is amenable to a court of justice: Upon general principles of right, shall the former when summoned to answer the fair demands of its creditor, be permitted, Proteus-like, to assume a new appearance, and to insult him and justice, by declaring ‘I am a Sovereign State?’ Surely not.”

Justice James Wilson

Like Justice Wilson, Chief Justice John Jay, in his separate opinion, affirmed the “great and glorious principle, that the people are the sovereign of this country. . . . ” Furthermore, denying individuals the right to sue a state “would not correspond with the equal rights we claim; with the equality we profess to admire and maintain, and with that popular sovereignty in which every citizen partakes.”

Alas, the states didn’t like that answer.

As Justice Felix Frankfurter later noted in a federal sovereign immunity case, Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 708 (1949) (dissenting), “The vehement speed with which the Eleventh Amendment displaced the decision in Chisholm v. Georgia . . . proves how deeply rooted that doctrine was in the early days of the Republic.” [That is, the doctrine of “unquestioned acceptance of the sovereign’s freedom from ordinary legal responsibility,” or as Frankfurter also phrased it, “legal irresponsibility.”]

Justice Felix Frankfurter

The amendment was passed on March 4, 1794 by the House, and ratified on February 7, 1795, when the twelfth State acted, there then being fifteen States in the Union.

On January 8, 1798, approximately three years after the Eleventh Amendment’s adoption, President John Adams stated in a message to Congress that the Eleventh Amendment had been ratified by the necessary number of States and that it was now a part of the Constitution of the United States. New Jersey and Pennsylvania did not take action on the amendment; neither did Tennessee, which had become a State on June 16, 1796.

You can see an extensive discussion of the legislative and judicial history of the Amendment in a Cornell University Law School Annotation, here.

For an interesting interpretation of Chisholm and its individualist theory of popular sovereignty, see Randy E. Barnett, “The People or the State?: Chisholm v. Georgia and Popular Sovereignty” (93 Va. L. Rev. 1729-1758, 2007). (This paper can be downloaded free of charge here.) His conclusion is striking:

If nothing else, Chisholm teaches that the concept of sovereignty as residing in the body of the people, as individuals, was alive at the time of the founding and well enough to be adopted by two Justices of the Supreme Court, who were also influential Founders. Likewise, Chisholm shows that the bold assertion that states inherited the power of kings (subject only to express constitutional constraints) was rejected by four of five Justices when the issue first arose. By omitting Chisholm v. Georgia, the first great constitutional case, from the canon of constitutional law, we have turned our gaze away from perhaps the most fundamental question of constitutional theory and the radical way it was once answered by the Supreme Court. We law professors have hidden all this from our students; and by hiding it from our students, we have hidden it from ourselves.”

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