Who is Sovereign? The People or the State?
My new and relatively brief (25 pages) essay, The People or the State?: Chisholm v. Georgia and Popular Sovereignty, is now available for download on SSRN. It is the basis of the John E. Sullivan Lecture I will be giving at Capital Law School in Columbus, Ohio on April 13th. In an important respect, the issue of sovereignty is the flip side of that of retained rights. What is remarkable about Chisholm is that an individual conception of popular sovereignty -- as opposed to a conception of popular sovereignty that is limited to democratic self-rule -- was not only alive in 1793, but well enough to support a 4 to 1 decision against the assertion of sovereign immunity by the State of Georgia. Here is the abstract:
Chisholm v. Georgia was the first great constitutional case decided by the Supreme Court. In Chisholm, the Court addressed the fundamental question: Who is Sovereign? The People or the State? It adopted an individual concept of popular sovereignty rather than the modern view that limits popular sovereignty to collective or democratic self-government. It denied that the State of Georgia was a sovereign entitled, like the King of England, to assert immunity from a lawsuit brought by a private citizen. Despite all this, Chisholm is not among the canon of cases that all law students are taught. Why not? In this essay, I offer several reasons: Constitutional law is taught by doctrine rather than chronologically; law professors have reason to privilege the Marshall Court; and the Court's individualist view of popular sovereignty is thought to have been repudiated by the adoption of the Eleventh Amendment. I explain why the Eleventh Amendment did not repudiate the view of sovereignty expressed in Chisholm by comparing the wording of the Eleventh with that of the Ninth Amendment, and conclude by suggesting another reason why Chisholm is not in the canon: Law professors follow the lead of the Supreme Court and, like the Ninth Amendment, the Supreme Court has deemed its first great decision too radical in its implications.
The piece will eventually appear in the Virginia Law Review and I have until the end of April to make substantive revisions. I should emphasize that it is merely suggestive and I cannot lengthen it by very much to address all the fundamental questions it raises. In it, I am merely throwing down a marker for my future writings, and eliciting a discourse that will affect how and whether I further develop the idea of individual popular sovereignty.