Incapacity of disabled to get protection?

[John Noble]

At 8:44 AM -0700 3/5/01, Michael McConnell wrote:
>Can someone tell me: What is the legal/historical/doctrinal rationale for
>allowing the United States to sue states notwithstanding their sovereign
>immunity? (I am not asking for a functional justification, which is
>obvious.)

United States v Texas, 143 U.S. 621 (1892):

The relief asked is a decree determining the true line between the
United States and the state of Texas....

The important question, therefore, is whether this court can, under
the constitution, take cognizance of an original suit brought by the
United States against a state to determine the boundary between one
of the territories and such state. Texas insists that no such
jurisdiction has been conferred upon this court, ... and if neither
party will surrender its claim of authority and jurisdiction over the
disputed territory, the result, according to the defendant's theory
of the constitution, must be that the United States ... must bring
its suit in one of the courts of Texas, ... or that in the end there
must be a trial of physical strength between the government of the
Union and Texas. The first alternative is unwarranted both by the
letter and spirit of the constitution. Mr. Justice Story has well
said: 'It scarcely seems possible to raise a reasonable doubt as to
the propriety of giving to the national courts jurisdiction of cases
in which the United States are a party. It would be a perfect novelty
in the history of national jurisprudence, as well as of public law,
that a sovereign had no authority to sue in his own courts. Unless
this power were given to the United States, the enforcement of all
their rights, powers, contracts, and privileges in their sovereign
capacity would be at the mercy of the states. They must be enforced,
if at all, in the state tribunals.' Story, Const. 1674. The second
alternative above mentioned has no place in our constitutional
system, and cannot be contemplated by and patriot except with
feelings of deep concern....

... We cannot assume that the framers of the constitution, while
extending the judicial power of the United States to controversies
between two or more states of the Union, and between a state of the
Union and foreign states, intended to exempt a state altogether from
suit by the general government. They could not have overlooked the
possibility that controversies capable of judicial solution might
arise between the United States and some of the states, and that the
permanence of the Union might be endangered if to some tribunal was
not intrusted the power to determine them according to the recognized
principles of law. And to what tribunal could a trust so momentous be
more appropriately committed than to that which the people of the
United States, in order to form a more perfect Union, extablish
justice, and insure domestic tranquillity, have constituted with
authority to speak for all the people and all the states upon
questions before it to which the judicial power of the nation
extends? It would be difficult to suggest any reason why this court
should have jurisidiction to determine questions of boundary between
two or more states, but not jurisdiction of controversies of like
character between the United States and a state.

... [Hans v. Louisiana] proceeded upon the broad ground that 'it is
inherent in the nature of sovereignty not to be amenable to the suit
of an individual without its consent.'

The question as to the suability of one government by another
government rests upon wholly different grounds. Texas is not called
to the bar of this court at the suit of an individual, but at the
suit of the government established for the common and equal benefit
of the people of all the states. The submission to judicial solution
of controversies arising between these two governments, 'each
sovereign, with respect to the objects committed to it, and neither
sovereign with respect to the objects committed to the other,'
(McCulloch v. State of Maryland, 4 Wheat. 316, 400, 410,) but both
subject to the supreme law of the land, does no violence to the
inherent nature of sovereignty. The states of the Union have agreed,
in the constitution, that the judicial power of the United States
shall extend to all cases arising under the constitution, laws, and
treaties of the United States, without regard to the character of the
parties, (excluding, of course, suits against a state by its own
citizens or by citizens of other states, or by citizens or subjects
of foreign states,) and equally to controversies to which the United
States shall be a party, without regard to the subject of such
controversies, and that this court may exercise original jurisdiction
in all such cases 'in which a state shall be party,' without
excluding those in which the United States may be the opposite party.
The exercise, therefore, by this court, of such original jurisdiction
in a suit brought by one state against another to determine the
boundary line between them, or in a suit brought by the United States
against a state to determine the boundary between a territory of the
United States and that state, so far from infringing in either case
upon the sovereignty, is with the consent of the state sued. Such
consent was given by Texas when admitted into the Union upon an equal
footing in all respects with the other states.

We are of opinion that this court has jurisdiction to determine the
disputed question of boundary between the United States and Texas.


John Noble
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