The Great Fall was in 1787 -- post for Kurt Lash
Mark.Scarberry at pepperdine.edu
Thu Aug 18 09:03:47 PDT 2011
[Kurt asked me to post this for him. Mark Scarberry]
Sovereign immunity at the time of the Founding and the adoption of the 11th Amendment was a broadly accepted concept. No one, for example, argued that private individuals should be allowed to sue the federal government without its consent. The only issue was whether states enjoyed the same immunity. Arguing that they did not amounted to a claim that all sovereign power had been transferred to the federal government and states no longer enjoyed any degree of sovereign independence--despite express promises by Hamilton, Marshall, Madison, etc., to the contrary. Thus the immediate outcry once Chisholm was handed down.
The nature of that outcry has been wonderfully and exhaustively documented by Maeva Marcus in the 5th volume of the Documentary History of the Supreme Court (DHSC). Basically, the states insisted the decision violated their understanding of the original document and contradicted the promises made by the Federalists which the ratifiers relied upon in adopting the constitution.
Which brings us to Iredell. One commonly hears that Iredell made only a statutory argument, and not a constitutional argument, against allowing private individuals to sue states for money damages without the state's consent. In fact, Iredell made more than one constitutional argument in favor of state sovereign immunity. The one he drafted for Chisholm, but which was unaccountably left out of the official report, can be found here: James Iredell's Observations on "This Great Constitutional Question," in 5 DHSC at 186.
Kurt T. Lash
Alumni Distinguished Professor of Law
Director, Program in Constitutional Theory, History and Law
University of Illinois College of Law
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