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By LD Jackson (Reporter)
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Constitution 101: Who Knows Their 11th Amendment?

Monday, December 21, 2015 20:44
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So who here knows what the 11th Amendment states? If you asked Hillary Clinton or Donald Trump or most other politicians for that matter, its pretty unlikely any of them would know what it is. Its not just politicians who wouldn’t know what the 11th Amendment says. Most of the American people also probably wouldn’t know what it says either, that is, without first conducting a google search.

I’m not bashing people who don’t know what the 11th Amendment says, but it is unfortunate that most people don’t know what it says, or why it says what it does. As I will try and demonstrate in the following brief article, it has implications having to do with the proper place of the Supreme Court in our form of government, the power we the people wield against the power the Supreme Court over time has come to assume, and the real limits that were supposed to be put on federal power by the Constitution. Why therefore this amendment has been ignored by the proponents of limited government and the defenders of the Constitution in general is beyond me, and pretty unfortunate.

I should note before I get into the particulars of what this amendment says, both why it was passed, and what it means, that being the 11th Amendment, it of course is the very first amendment after the Bill of Rights, which of course consists of the first 10 amendments to the Constitution. It might be good to remind people, to offer context to the 11th Amendment, that the Bill of Rights was largely passed all at once because of a promise the Federalists made to the Anti-federalists during the ratification debate that after the Constitution was passed, even more restraints would formally be put on the federal government, thereby further securing individual rights and state rights against the power of federal government.

That was the broader mindset of the people of the day on both sides of the ratification debate, namely, one of having a limited federal government. I would also therefore like to note this not only to offer context to the 11th Amendment, but to also note again that this is the very first amendment to pass in what could be called normal order, and therefore of particular import as to what for example the people of the day thought as important, or rather worthy of amendment.

The 11th Amendment reads as follows:

“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.” 

In case there is any doubt, “The judicial power of the United States” is a reference to what we currently recognize simply as the “Supreme Court”. This amendment limited its extent, its scope.

So what specifically prompted the passage of the 11th Amendment in the first place? In a nutshell, it was judicial overreach by the Supreme Court in the context of a people, a nation, who believed in states rights and who believed in the limited nature of the federal government, as guaranteed in the Constitution. That may sound like some sort of partisan claim. Its not. Its simply what happened, as shown by its plain wording of the 11th Amendment, and as shown by the context of the events leading up to its passage.

In part, as noted above, the 11th Amendment says “The judicial power of the United States shall not be construed to extend…”. It simply limited the jurisdiction of the Supreme Court, something most people today sadly would laugh at, who fancy the Supreme Court as, well, supreme, and not subject to any jurisdictional limitations.

The 11th Amendment is important because it would be well to remind people today that while the Supreme Court is supposed to simply interpret laws, we the people are the ones who actually get to decide what is in the Constitution, not the Supreme Court. It has limitations, much less so unfortunately than initially intended.

The 11th Amendment was passed in response to an unpopular Supreme Court decision. As a result, the people of the United States passed the 11th Amendment that in effect undid that Supreme Court decision. This was and is an important precedent that was set. Point being, if we don’t like the way the Supreme Court interprets a law or the Constitution, we have not only the right, but the duty to remind the Supreme Court via the amendment process that we are in charge, not them. That is one important precedent the 11th Amendment sets forth.

I may have jumped the gun a bit. First a little more history. What event specifically led up to the passage then of an amendment, the purpose of which was to limit the jurisdiction of the Supreme Court, and therefore the federal government in general? As briefly alluded to already, in 1793, only two short years after the Bill of Rights was passed, the Supreme Court ruled in Chisholm v. Georgia that a citizen of one state was in fact entitled to sue another state. More specifically, Alexander Chisholm of South Carolina sued the state of Georgia for a debt it owed him from incurred during the Revolution.

Because of a disagreement as to what Article III, Section II of the Constitution meant, which according to a newly formed Supreme Court gave them the power to take up such a case, Georgia didn’t even show up to defend against this suit, since it held that the Supreme Court had no standing to try the case in the first place. The Supreme Court decided then (in what could be described as somewhat of a pissing contest between the Supreme Court and the state of Georgia), that Chisholm could in fact not only sue the Georgia and they had the power to make a ruling about it, but in a 4-1 decision, ruled against the state of Georgia. As a result of that Supreme Court decision, the 11th Amendment was passed, that basically stated that the Supreme Court did not have the power to get involved in and make a ruling on such a case.

The 11th Amendment therefore shows us how the people of the United States, in the immediate aftermath of the formation of the Constitution, thought of the Supreme Court, and what they thought of as their proper place in the newly formed government.

Like would be the case if you looked up the meaning and history of other amendments to the Constitution, as well as the meaning and formation of the Constitution itself for that matter, opinions are going to vary as to the 11th Amendments effect. You’ve already read the text of what it said, and why it was passed. Frankly, I don’t see any ambiguity in what it says, but certainly when you read the text of the 11th Amendment for the first time, without any context or knowledge of why it was passed, it might indeed seem a little ambiguous as to its meaning.

Many people think the 11th Amendment sets forth the precedent of what has come to be known as sovereign immunity, namely, the notion that people cannot sue the government, be it the state or the federal government. Because of this understanding, the 11th Amendment is an amendment, the origins of which if not properly and fully understood, and the text of which, if not plainly read and understood, many conservative-minded individuals sadly might be against. Certainly the concept of sovereign immunity is one that exists and is practiced in law and government today, but did such a concept arise as a specific directive of the 11th Amendment?

The 11th Amendment simply says “The judicial power (Supreme Court)…shall not be construed to extend…”. It puts limits on the Supreme Court, not on people, or their ability to sue anyone. It may have in fact been an unpopular concept of the day, namely, the ability of a person from one state suing another state, but as the text of the 11th Amendment clearly states, the thing being limited is nothing other than the judicial power of the federal court to rule on such matters. In other words, the notion of sovereign immunity was one largely established, surprise surprise, by the Supreme Court, over time, not as a direct result of what we the people demanded.

The 11th amendment therefore didn’t actually affirm or deny the merits in Chisholm v. Georgia per se, as the proponents of sovereign immunity might claim. It again simply rejected the notion that the Supreme Court had the power to take up the case, and clarified the jurisdiction of the Supreme Court by basically telling the Supreme Court to stay out of their business, as the amendment plainly states. That was how the people of the day thought of the Supreme Court and the federal basically saying “stay out of our business!” Amazing that such an amendment, stating as much, is not brought to light more by proponents of limited government.

Apparently, it turns out that the people living during the days when the Constitution was written didn’t view the Supreme Court as their unquestioned masters, as so many people do today. As it turns out, the Supreme Court works for us, and if we don’t like their rulings, we have the means to overrule them, via a Constitutional amendment. It shows that is not unreasonable or rash, but well within the bounds of the American people’s rights and duties. What it shows is if the Supreme Court hands down some decision we the people disagree with, its actually not our civic responsibility to sit there and say “Well, the Supreme Court has spoken”, as so many people today on both sides of the aisle claim is the case, and there the matter ends. That for starters is one thing this amendment shows us.

The 11th Amendment shows us the mentality of the American people as it related to the Constitution, prior to what many people (myself included) would argue are later  and extra-constitutional evolutions regarding the high court; concepts such as judicial review, officially adopted in 1803, some years after passage of the 11th Amendment, in Marbury v. Madison, where the Supreme Court declared it not only had the right and duty to decide what a given law means, but that it had the power to declare laws as unconstitutional and therefore void them altogether. What does judicial review and Marbury v. Madison have to do with the 11th Amendment? Everything.

The concept of judicial review is one our country has long since operated under, but a power I would argue not intended in the Constitution, in part specifically because of what the 11th Amendment says. After all, if the Constitution really intended that the Supreme Court have the power not only to interpret laws, but also the power to declare them null and void, why and how could such a courts jurisdiction be limited, as was done as a result of 11th Amendment, that is, if the real scope of their power were as broad is claimed in Marbury v. Madison? There would seem to be some missing links between the two concepts, one the American people Amend the Constitution to tell the Supreme Court to get out of the states business, and another that declares an almost unlimited potential power exists and resides in the Supreme Court of interpreting and discarding whatever law they see fit.

I think therefore the 11th Amendment has pretty broad implications viz a viz understanding the direction the court ultimately took as to the power it assumed, and whether or not it was just in assuming those powers. I for one don’t think it was just in assuming for itself the powers it has assumed over time, and Jefferson for one would agree with me on that.

The idea of judicial review, laid out in Marbury v. Madison, was a decision unpopular with many people of the day to say the least. Even though it has been precedent now for over 200 years, I think perhaps the main reason it was not challenged more immediately was that the courts generally acted within the bounds of the will of the American people, and therefore went unchallenged.

Again, Thomas Jefferson was one vocal critic of Marbury v. Madison,  and the powers the court have come to possess, when in responding to Chief Justice Marshall’s reasoning and defense of the concept of judicial review, he said:

“You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”

The road to judicial oligarchy has been one of slow and steady progress. Its taken hundreds of years to come to fruition. How did we ever get here one might ask? How did we ever get to this point, where 5 unelected men and women in black robes pass judgement on the laws of 320 million people on a regular basis with immunity? Is that the form of democracy the founders envisioned for us? I contend it wasn’t, for the reasons already given.

This article has attempted to briefly delve into some of the earliest thoughts and actions, via the 11th Amendment, of the people who lived in the days when the Constitution was written. It attempted to go into matters of why and how the court may have changed along the way to become what it is today, via for example the concepts such as judicial review, a concept anathema to Jefferson and many of the good people who eventually signed onto the passage of the Constitution, and secured its passage.

The 11th Amendment, like the 10th, which has similarly been ignored for well over 100 years, is an amendment that many people, on both the left and the right, particularly the left, would probably prefer people not much think or talk about. This article is my meager attempt at undoing that. This country was founded on the idea of limited government and local self-rule. The history behind and passage of the 11th Amendment is simply one more example of that fact.


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