The people or the state?: Chisholm V. Georgia and popular sovereignty

Virginia Law Review

Volumn 93, Issue 7, 2007, Pages 1729-1758

  Barnett, Randy E ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 37349011232     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (88)

1. 5 U.S. (1 Cranch) 137 (1803).
2. 2 U.S. (2 Dall.) 419 (1793).
3. 17 U.S. (4 Wheat.) 316 (1819).
4. 22 U.S. (9 Wheat.) 1 (1824).
5. Chisholm, 2 U.S. (2 Dall.) at 453 (Wilson, J.) (emphasis omitted).
6. Id. at 456.
7. U.S. Const. art. III, § 2.
8. Chisholm, 2 U.S. (2 Dall.) at 454 (emphasis omitted).
9. Id. at 456 (emphasis omitted).
10. Id. (citing U.S. Const. art. III, § 3) (emphasis omitted).
11. Id. at 457.
12. Id. (emphasis omitted).
13. Id. at 458 (emphasis omitted).
14. Id. (emphasis omitted).
15. Id.
16. Id. (emphasis omitted).
17. Id. at 456 (emphasis omitted).
18. Id. (emphasis added and omitted).
19. Id. (emphasis omitted).
20. Given that Wilson's lengthy speeches were virtually the only ones reported in Eliott's debates for the Pennsylvania ratification convention, it would seem that he was thought to have been a crucial member of that convention. See 2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 415-542 (photo. reprint 1974) (Jonathan Elliott ed., 2d ed. n.d.) (records of Pennsylvania debates).
21. Ratifying a week after Delaware, Pennsylvania was just the second state - and the first large one - to ratify the Constitution. 2 The Documentary History of the Constitution of the United States of America 27 (photo. reprint 1965) (Washington, U.S. Dep't of State 1894).
22. See Mark David Hall, The Political and Legal Philosophy of James Wilson 1742-1798, at 27-29 (1997) (describing the importance of Wilson's lectures on law).
23. Chisholm, 2 U.S. (2 Dall.) at 477 (Jay, C.J.).
24. Id. at 479 (emphasis added).
25. Id. at 473 (emphasis added).
26. Professor Elizabeth Price Foley captures the individualist concept of popular sovereignty by calling it "residual individual sovereignty." See Elizabeth Price Foley, Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality 42 (2006) ("[O]ne of the foundational principles of American law - at both the state and federal level - is residual individual sovereignty."). Professor William Casto has coined the phrase "the people's sovereignty" to convey this idea.
27. See William R. Casto, James Iredell and the American Origins of Judicial Review, 27 Conn. L. Rev. 329, 330 (1995) ("[T]he idea of the people's sovereignty should not be confused with popular sovereignty, which carries connotations of democracy and universal suffrage."). But it may well be anachronistic to concede the term "popular sovereignty" actually used by Chief Justice Jay to the modern collective reading.
28. On the nature of sovereignty, Justice Iredell says, Every State in the Union in every instance where its sovereignty has not been delegated to the United States, I consider to be as compleatly sovereign, as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved. It must necessarily be so, because the United States have no claim to any authority but such as the States have surrendered to them: Of course the part not surrendered must remain as it did before. Chisholm, 2 U.S. (2 Dall.) at 435 (Iredell, J., dissenting) (emphasis omitted).
29. John Taylor, Construction Construed, and Constitutions Vindicated 25 (The Lawbook Exchange, Ltd. 1998) (1820).
30. Id. at 26 (emphasis added).
31. Id.
32. Id.
33. Id. at 26-27.
34. Chisholm, 2 U.S. (2 Dall.) at 468 (Blair, J.).
35. U.S. Const. amend. XI.
36. 41 U.S. (16 Pet.) 539 (1842).
37. 60 U.S. (19 How.) 393 (1856).
38. See 17 U.S. at 404-05 ("The government of the Union, then . . . is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.").
39. See 60 U.S. at 404 ("The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty.").
40. To this sequence I also add the discussion of sovereignty articulated in James Madison's Report to the Virginia House of Delegates. See James Madison, Report on the Alien and Sedition Acts,
41. reprinted in Writings 608, 611 (Jack N. Rakove ed., 1999) ("The constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. . . . The states then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated . . . .").
42. See Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (1999).
43. See Mark Tushnet, Taking the Constitution Away from the Courts (1999).
44. See Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004).
45. See Mark Tushnet, Constitutional Interpretation Outside the Courts, 37 J. Interdisc. Hist. 415, 415 (2007) ("By the late twentieth century, the Constitution had become the property of lawyers and, especially, judges. When the public paid attention to constitutional issues, it focused on the Supreme Court. In the 1990s, however, several scholars in law and political science turned their attention to 'the Constitution outside the courts.' Much of their concern was normative. The hopes that they may have had for a liberal, reformist Supreme Court on the model of Chief Justice Earl Warren's had been decisively dashed. But they could draw support for their claim that legislatures had an important role in constitutional interpretation by gesturing toward the past, citing prominent examples of congressional and executive constitutional interpretation.").
46. 134 U.S. 1 (1890).
47. See, e.g., Martha A. Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. Pa. L. Rev. 515 (1978) (arguing that sovereign immunity is a common law doctrine and not constitutionally compelled);
48. William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033 (1983) (arguing that the Amendment does not cover federal question or admiralty jurisdiction);
49. John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889 (1983) (arguing from a historical standpoint that the Amendment's passage was primarily secured as part of a bargain to enforce the peace treaty);
50. Vicki C. Jackson, Principle and Compromise in Constitutional Adjudication: The Eleventh Amendment and State Sovereign Immunity, 75 Notre Dame L. Rev. 953, 1010 (2000) (arguing that "sovereign immunity is in some respects unjust" and "the Eleventh Amendment need not be understood to have endorsed that injustice as a general proposition");
51. James E. Pfander, History and State Suability: An "Explanatory" Account of the Eleventh Amendment, 83 Cornell L. Rev. 1269 (1998) (arguing that the Amendment represented a compromise on fiscal policy between the states and the federal government).
52. 517 U.S. 44, 54 (1996) (citations omitted).
53. Id. at 68.
54. Hans, 134 U.S. at 14.
55. Seminole Tribe, 517 U.S. at 54.
56. 527 U.S. 706, 729 (1999).
57. Seminole Tribe, 517 U.S. at 69 (quoting Hans, 134 U.S. at 15) (citation omitted); see also Principality of Monaco v. Mississippi, 292 U.S. 313, 322 (1934) ("Manifestly, we cannot rest with a mere literal application of the words of § 2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control.").
58. John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 Yale L.J. 1663, 1739 (2004).
59. Id.; see also Jackson, supra note 45, at 1000 ("The precision and specificity of its language lend themselves to (though they do not compel) a narrow reading.").
60. The use of original intent to narrow the meaning of the text of the Reconstruction Amendments was a favorite technique of the Reconstruction Court, beginning as early as the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872). Although decided after Reconstruction ended, Hans exemplifies this interpretive practice. On the other hand, it could be argued that these background presuppositions and postulates informed the public meaning of Article III that four of five members of the Supreme Court in Chisholm, including so principal a framer as James Wilson, then proceeded to ignore.
61. Hans, 134 U.S. at 15.
62. See 60 U.S. at 416 ("It cannot be supposed that [the State sovereignties] intended to secure to [free blacks] rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State.").
63. 10 U.S. (6 Cranch) 87 (1810).
64. Id. at 139 (emphasis added).
65. Id. (interpreting the Contracts Clause).
66. Manning, supra note 52, at 1735-36.
67. Id. at 1736.
68. See id. at 1743 ("[T]o evaluate the Amendment's limited enumeration of exceptions, it is helpful to know the legal baseline against which the adopters acted.").
69. Id. at 1743-44.
70. Id. at 1748-49.
71. See Posting of Lawrence Solum to Legal Theory Blog, Sentence Meaning and Clause Meaning, http://lsolum.typepad.com/legaltheory/2006/12/over_at_books_d. html (Dec. 12, 2006, 6:25 a.m.).
72. See generally Paul Grice, Studies in the Way of Words 23-57 (1991) (discussing "conversational implicature").
73. U.S. Const. amend. IX.
74. United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) (emphasis added).
75. 348 U.S. 483 (1955).
76. 381 U.S. 479 (1965).
77. 530 U.S. 57, 91 (2000) (Scalia, J., dissenting).
78. See U.S. Const. amend. IX.
79. See supra text accompanying notes 46-51.
80. Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798) (Chase, J.) (emphasis omitted).
81. Id. at 398 (Iredell, J.).
82. 166 U.S. 226, 235-36 (1897).
83. Id. at 236.
84. 5 The Documentary History of the Supreme Court 605-06 (Maeva Marcus ed., 1994); see id. at 597 ("The motion was tabled and apparently never taken up again.").
85. See Pfander, supra note 45, at 1279-80 ("By treating the problem as one of state suability, I have consciously chosen to adopt the usage of the generation that framed and ratified the Eleventh Amendment, and to abandon the language of state sovereign immunity that modern courts and commentators frequently use to characterize the Eleventh Amendment. . . . This modern talk of sovereign immunity suggests that the Eleventh Amendment marked a complete Anti-Federalist victory in the battle over state suability; in truth, the two parties appear to have reached a compromise. In any event, once the Court begins to conceptualize the problem of state suability in terms of a free-standing principle of "sovereign immunity," rather than as a technical problem in the parsing of the language of judicial power, it unleashes a dangerous and unwieldy restriction on the federal courts' power to enforce federal-law restrictions against the states. By returning to the language of state suability, I hope to cabin the influence of this spurious principle of sovereign immunity." (footnotes omitted)).
86. See Manning, supra note 52, at 1749 ("[O]ne cannot disregard the selective inclusion and exclusion implicit in such careful specification . . . [and] should perhaps attach significance not only to what the drafters placed in the Amendment, but also to what they deemed necessary or even prudent to exclude.").
87. See Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 Tex. L. Rev. 1 (2006).
88. See id. (affirming the individual natural rights model of the Ninth Amendment).