In Defense of the Supreme Court’s First Constitutional Law Decision

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.  Monday’s decision ended a nearly-three-decades-long lawsuit brought against California in a Nevada court by a wealthy inventor who had moved from California to Nevada. The plaintiff had sued California for torts he alleged had been committed against him during an audit and he had initially won a massive damages award, although the damages had been whittled down during years of litigation. In fact, Monday’s decision was the third time the case had reached the nation’s highest court.

The 1979 Nevada v. Hall decision had allowed a suit against Nevada in a California court involving a highway accident caused by a state-owned bus. The 1979 decision held that the Constitution allows states to provide immunity for other states, but does not require them to do so. Last week’s ruling requires states to provide immunity for other states.

Justice Thomas maintained in the Franchise Tax Board decision that the 1979 decision “misreads the historical record and misapprehends the ‘implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and to give each provision within that document the full effect intended by the Framers.’” He also insisted that the 1979 case was “irreconcilable with our constitutional structure and with the historical evidence” showing that states are endowed with immunity from private lawsuits.

Importantly, the 1979 case that the Supreme Court has overruled 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.

At the time Chisholm was decided, the Supreme Court followed the English appellate court practice of “seriatim” opinion writing in which all of the participating judges wrote, and delivered orally, individual opinions explaining their views on a case. Four of the five members of the Court that decided Chisholm held that the Constitution abrogated the states’ sovereign immunity and granted federal courts the affirmative power to hear disputes between private citizens and states. Justice James Iredell was the only dissenter. Iredell is highly regarded by modern students of the early Court. His opinion in Chisholm, however, was more appropriate for the halls of Congress than it was for a court of law. That is to say, Iredell ignored the plain words of the Constitution to press for a desired political result. Most notably, Iredell ignored the second paragraph of Article III, section 2, which states that in cases “in which a state shall be a party the Supreme Court shall have original jurisdiction.” Iredell emphasized instead the Judiciary Act of 1789, essentially arguing that the Court’s jurisdiction was not self-executing and that Congress had not executed it in that, or any other, statute. It took Iredell twenty-one pages in Dallas’s Reports to reach this conclusion, about half of which was devoted to a discussion of the law and practice of England. The point of the latter discussion seems to have been that the Court was bound by the common law relative to suits against sovereigns.

Justice James Wilson, the most scholarly of the justices on the Court at the time, spent most of the thirteen pages of his seriatim opinion ranging far and wide over history and the basic concepts of sovereignty, the state, and man’s relation to the state. He invoked Reid, Bacon, Cicero, William the Conqueror, the Ephori of Sparta, Homer, Demosthenes, Louis XIV, Bracton, and the author of the Mirror of Justice. Wilson’s purpose was to show that in the United States the people are sovereign. Consequently, the state of Georgia could be sued. Almost lost among Wilson’s elaborate discussion was the Constitution itself. In fact, Wilson devoted only a few lines of his opinion to the document he was charged with interpreting. When he did turn to the Constitution, he found the answer to the question before the Court readily available. He concluded the fact that Georgia could be sued in federal court “rests not upon the legitimate result of fair and conclusive deduction from the constitution: it is confirmed, beyond all doubt, by direct and explicit declaration of the constitution itself.”

Chief Justice John Jay’s opinion also contained elaborate references to history and philosophy. For instance, Jay devoted a sizable portion of his opinion to comparing the differences of the feudal governments of Europe with governments by compact. It was not until the end of his opinion that the chief justice, like the other members of the majority, concluded that the Constitution’s express reference to federal jurisdiction over suits involving states made Georgia amenable to suit by a citizen of South Carolina.

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, 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.”

I say all of this because Justice Thomas spent a lot of time in Monday’s opinion arguing that Chisholm was a “blunder” and was “incorrect.” Indeed, he insisted that Chisholm had “precipitated an immediate ‘furor’ and ‘uproar’ across the country” and that the “speedy” passage of the Eleventh Amendment demonstrates that “the Constitution was understood, in light of its history and structure, to preserve the States’ traditional immunity from private suits.”

While it is true that the Eleventh Amendment overturned Chisholm in 1795, it did so by altering the text of Article III that Justice Cushing in particular highlighted. In short, at the time the Constitution was written and ratified there was no free-floating principle of sovereign immunity that denied to those wronged by a state judicial recourse to seek a remedy. Unfortunately, last Monday the Supreme Court said there is now.

Reader Discussion

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on May 20, 2019 at 07:18:48 am

Let's say it's 1866 and a citizen of South Carolina is suing the state of Massachusetts. Do you honestly think the North would've let this happen, or do you think they would've threatened to re-start the war unless the citizen of South Carolina backed off and agreed to the 14th amendment and the Voting Right Act of 1965?

If the civil war destroyed the tenth amendment (Wickard v. Filburn), then it surely created state sovereign immunity so northern states could never be sued by southern citizens, and this only works in practice if NO citizen can sue ANY other state.

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on May 20, 2019 at 09:02:17 am

It's 1896, A Mormon flees to Utah and then turns around and sues his home state of New Hampshire for refusing to enforce their freedom of religion provision in their bill of rights. Does New Hampshire take this seriously?

It's 1944, a Japanese flees to Nevada and then turns around and sues California for its internment camps. Does California take this seriouly?

It's 2000, a Florida resident alien flees to Vermont, gets Vermont citizenship, and then turns around and sues his home state of Florida for rigging the 2000 Election and refusing to complete a proper recount. Does Florida take this seriously?

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Hippocrates Theticals
on May 20, 2019 at 10:29:25 am


those seem to involve claims of constitutional violation for which there are statutory and implied causes of action where the state or state actors are not insulated from suit although the venue may be open to question and whether one can us the state courts of another state to vindicate a constitutional claim is questionable. the claims here, without significant study involve contract or tort.


I respect your general line of argument here that Chisholm was rightly decided as a constitutional question. I respect Thomas' approach to questioning whether underlying decisions were correctly decided. I'm not a scholar on these early decisions and you have studied them. I know you wouldn't lightly contend on the substance w Thomas which makes me interested in reading more. But, that said, the 11th amendment quickly and convincingly put an end to Chisholm.

The question in Nevada v Hall and Franchise Tax Board of Calif. v Hyatt does seem more structurally perplexing. If a state say limits tort or contract recovery suits, or even nonconstitutional harrassment or whatever to a certain amount or requires statutory assent for any instance, that would suggest that residents of the state are powerless in the face of state torts except under such statutory allowances but someone who moves or is a resident of another state or has access to that other state's courts would not be so bound? I haven't read this question to any sufficiency to posit more than the question. I have simply watched the quick summations on Hyatt which are mostly shock waves because the court took its duty to interpret the constitution as superior to its tradition of stare decisis, thus implicitly threatening Roe (as if Roe weren't under threat for its inherently questionanble reasoning without regard to substance. now look, i'd go back to lochner and keep roe personally, but you can't have it both way. i actually saw facebook posts claiming the members of the court had violated their literal oath to abide by previous decisions - i think there is much confusion between hierarchical stare decisis and how that applies to the supreme court. and none of the people so complaining seem to bother to consider whether they would prefer an order ruled by plessy or dred scott.)

So you are defending Chisholm, it seems to me, but i don't really see where you are coming down on hall v hyatt. (maybe that's on purpose)/


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Brian Bishop
on May 20, 2019 at 10:34:51 am

Gee, I never knew that the Civil War got started over some farmer growing a little extra wheat.

The things one can learn from listening to a long dead President - FDR.

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gargamel rules smurfs
on May 20, 2019 at 12:02:48 pm

Prof. Gerber leaves out some very pertinent information about the intent of the relevant Art. III provision, notable at the Virginia Ratifying Convention, June 20, 1788.

Mr. Madison addressed the question thusly:

"Its jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court. This will give satisfaction to individuals, as it will prevent citizens, on whom a state may have a claim, being dissatisfied with the state courts. . . .

". . . It appears to me that this can have no operation but this — to give a citizen a right to be heard in the federal courts; and if a state should condescend to be a party, this court may take cognizance of it."

And John Marshall added this clear statement:

"With respect to disputes between a state and the citizens of another state, its jurisdiction has been decried with unusual vehemence. I hope that no gentleman will think that a state will be called at the bar of the federal court. Is there no such case at present? Are there not many cases in which;the legislature of Virginia is a party, and yet the state is not sued? It is not rational to suppose that the sovereign power should be dragged before a court. The intent is, to enable states to recover claims of individuals residing in other states. I contend this construction is warranted by the words. But, say they, there will be partiality in it if a state cannot be defendant — if an individual cannot proceed to obtain judgment against a state, though he may be sued by a state. It is necessary to be so, and cannot be avoided. I see a difficulty in making a state defendant, which does not prevent its being plaintiff. If this be only what cannot be avoided, why object to the system on that account? If an individual has a just claim against any particular state, is it to be presumed that, on application to its legislature, he will not obtain satisfaction? But how could a state recover any claim from a citizen of another state, without the establishment of these tribunals?"

The Virginia Legislature reiterated this view in 1792 when the State was sued by the Indiana Company in a resolution which stated: "Resolved, That the State cannot be made a defendant in the said [i.e. U.S. Supreme] court, at the suit of any individual or individuals."

And after Chisolm the Virginia Assembly declared, "That a State cannot under the Constitution of the United States, be made a defendant at the suit of any individual or individuals, and that the decision of the supreme Federal court, that a State may be placed in that situation, in incompatible with, and dangerous to the sovereignty and independence of the individual States, as the same tends to a general consolidation of these confederated republics."

The Massachusetts legislatures issued a similar denunciation. Yet Prof. Gerber treats all of this evidence of original understanding (and more) as if it didn't exist.

Prof. Gerber further claims that the 11th Amendment overturned Chisolm "by altering the text of Article III that Justice Cushing in particular highlighted." It did no such thing. As Charles J. Bloch asserted in "States Rights: The Law of the Land": "The language of the amendment was guarded. It did not concede that the courts had ever had any such power, but to declare that which it had always meant."

In view of the examples of above, Mr. Bloch's statement is not without a sound factual & historical basis.

To argue that the jurisdiction over cases between States has any bearing on this question is specious. That is a matter involving coordinate sovereignties, which could properly be settled by a (presumably) neutral arbiter. The question is NOT whether a State can be a defendant, but who has standing to be a plaintiff.

Again in the Virginia Convention, Edmund Pendleton: "The impossibility of calling a sovereign state before the jurisdiction of another sovereign state, shows the propriety and necessity of vesting this tribunal with the decision of controversies to which a state shall be a party."

And Madison: "The next case, where two or more states are the parties, is not objected to. Provision is made for this by the existing Articles of Confederation, and there can be no impropriety in referring such disputes to this tribunal."

The speedy ratification of the 11th Amendment should provide all the proof necessary to establish what the original understanding of this provision was--how then can this be a subject of dispute?

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on May 20, 2019 at 13:17:36 pm

As for me, what I find inordinately refreshing is the (apparent) willingness of the Court to free itself of the fetters of stare decisis.

A bad decision, one not in keeping with the limits of COTUS, DOES NOT become a good decision simply by virtue of repeating the original error.

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on May 21, 2019 at 12:43:16 pm

The Court should have dismissed this case for lack of subject matter jurisdiction pursuant to the 11th Amendment. Let the Nevada judgment stand, but California will have a very difficult time enforcing it, and the judgment shouldn't be entitled to full faith and credit. This argument is convincingly set out in the brief filed by Baude and Sachs. I hope this blog will revisit this case. I think its an important one.

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Image of Larry
on May 24, 2019 at 06:02:07 am

[…] Monday, Professor Scott Gerber contributed a thoughtful post in this space criticizing the Supreme Court’s recent sovereign immunity ruling in Franchise Tax […]

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Originalism and Sovereign Immunity

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