The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1884-06-04
Can a State be Sued by It's Own
Citizens ?

Citizens ?
This questio n is so well discussed in the
following letter that we adopt its reason
ing and give it IN our editorial columns:
To the Editor of the Dispatch:
In your issue Of May 31st, in discussing
this question, you cite the tenth amend
ment TO the Constitution, and comment
thereon as follows:
mo power is delegated 10 the United States to
pass law authorizing state 70 De sued IN the
Federal courts by her own citizens. consequently
any such law Is unconstitutional"
In view of the importance Of this ques-
ton, desire to supplement what you have
already so well said on the subject with a
few remarks, which appear to be conclu-
siye OF this whole question. Following in
the line OF your comments above cited, L
find the following in one OF Mr.. fuckers
speeches, which seems to put this whole
matter i'm nutshell:
.For authority to do an act the Federal Gov
eminent must fnd thou mayest in the Consti-
tuition. The authority If a State Is in ITSELF un-
less forbidden by a thou shalt not The limit OF
The former is delegation Of the latter prohibi-
tion."
But there are higher and clearer reasons
why State cannot be sued. What are
they? Judge Hughes says in his decision
involving this question:
ain general a sovereign State cannot be sued
except In manner and form consented to and
chosen by ITSELF"
There is no exception to this rule, as
Judge Hughes seems to think is the case
under section 2 OF Article Ill. OF the Con-
stitution. This great principle Of sove-
reignty il maintained by no less person
than Mr.. Hamilton (himself the champion
and leader OF the old Federal party in arti-
Gle a of the Federalist, in which he says :
at has been suggested that an assignment OF the
public securities OF one State to the citizens OF
another would enable them to prosecute that state
in the Federal courts for the amount OF those secu
rites. suggestion which the following considera.
Mons Drove 10 be without formation tits inherent
in the nature of sovereignty not 10 he smenable 70
the suit OF an individual without Its consent TIL:
is the general sense and the general practice OF
mankind; and the exemption, as one OF the sttrl'
CT OF syes sass IN
And referring to his remarks IN previ.
GUS number on the article OF the Constitu-
ton in respect to taxation, Mr.. Hamilton
goes on to say:
iished viii satisfy us that there is color to pre-
tend that the Stale governments would, by the
adoption Of that plan BE- dyessd OF the privilege y
frein every constraint but that which flows from
the obligations OF good faith"
And still more forcibly he says:
1The contracts between nation and individ-
mails are only binding on the conscience OF the
force. They confer 40 right Of action independ'
ent Of the sovereign Will"
they confer no right of action! Is moi
that strong enough? Does that not clincl
this whole qutstion2 Certainly, so far az
Mr.. Hamilton is considered authority, II
Al conclusive that State cannot be sued
by its own citizens, nor by any one else
without It's consent, and in manner and
form consented TO and chosen by itself
We conclude, therefore, that before the
adoption OF the eleventh amendment {
State could not be sued without its con
sent, &C., and that the decision In the cast
Of Chisolm Us. Georgia, DALI, 40, was
fagrantly wrong. lam sustained in this
view and opinion by the eleventh amend
ment itself. Let us examine that amend.
ment, and seek to arrive at the correct
construction and meaning Of the same. II
reads as follows:
"The judicial power OF the United States shall
not be construed 70 extend TO any suit In law Or
equity commenced or prosecuted against one OF the
United States by citizens Of another State" &C.
This amendment was adopted in conse-
quence OF aud because OF the decision in
NHboiH Vos OOoiSih, Dui., fiJ, III WHICH,
II was held that citizen could sue State
under the article Of the Constitution. a
right which Mr.. Hamilton, In the very
strong passages above cited, so strongly
denies, and In the same article says
that judgment could only be enforced
by war; aud that It was absurd to
suppose the Federal courts could ever
claim power involving such conse-
49,. I~ fa4 -
But what does the amendment says "Tbe
Judicial power shall not be construed" 10
extend TO such case. II does not say that
the power to sue State shall no longer ex-
ist, but that the judicial power shall not be
70 construed. sit Is mandate by the
States 70 the judiciary, not TO construe the
Constitution as they bad done. TheStates
did not amend or change the Constitution,
but gave il mandatory Interpretation"
In HolIingsworth vs. Virginia, 3 Dali.
.s a 81 ~