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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.
PersonFromPorlock:
Wasn't this pretty much settled by the Civil War, where the federal government acted on the premise that it could preserve itself against the popular will in the seceding states?
3.20.2007 3:25pm
loki13 (mail):
Prof. Barnett,

I think that as a work of scholarship, your paper has many things to recommend it. I disagree with some fundamental issues, however:

1. The 11th Amendment was written specifically to deal with Chisolm. Period. Chisolm made a decision. Congress disagreed with the decision. So they passed the 11th. You may attempt to parse the text otherwise, but this much seems clear.

2. If the 11th expressly overrules the holding of Chisolm, then the basis of Chisolm is suspect as well. In addition, some of the points you raise were conceded in oral arguments (noted) before the S.Ct. by the *winning side*. (Georgia didn't bother showing up)

3. Even if we don't believe that the 11th expressly overruled the basis for the holding in Chisolm, many of the themes for the decision are simply dicta at this point. This reasoning has less relevance than the P&I clause of the 14th Amendment- because it's not even in the Constitution.

In short...

We have a case...

that was expressly overruled by Amending the Constitution...

...and that has been dead for over 200 years (at least so far as the popular sovereignity reasoning).

I find your paper interesting (and useful) from a scholarly perspective, but not relevant from a modern perspective. That horse left the barn, and it's too late to close the door.
3.20.2007 3:27pm
PersonFromPorlock:
Let me add a little to my comment, which was too terse. The Civil War established as a principle that government has a right to preserve itself against popular dismissal. Since the power of the Sovereign is the power to destroy, any claim the people had of sovereignty was extinguished at that point.
3.20.2007 3:44pm
Brian G (mail) (www):
L'etat c'est moi."
3.20.2007 3:52pm
CJColucci:
Prof. B:
You suggest that there are two possibilities: that Chisholm was a wrong reading of the Constitution and the 11th Amendment restored the correct meaning or that Chisholm was a right reading of the Constitution and the Eleventh Amendment reflected a change of mind. I think there is a third possibility: the Constitution never addressed the question, the Justices unavoidably made something up (an opposite answer would have been just as made up) and the Eleventh Amendment was the first time the people actually considered the issue. They chose the rule they chose, the "rightness" or "wrongness" of Chisholm's reasoning or political philosophy having nothing to do with the matter.
My understanding is that at the time no state allowed suits in its own courts against itself by either its own citizens or citizens of foreign states. When Chisholm held that federal courts could entertain some such suits when state courts could not, it probably struck people at the time as weird, whether it was a "correct" interpretation of the original Constitution or not. Adopting the Eleventh Amendment probably simply restored the legal regime with which most people were familiar, and which, if they thought about it at all, they probably assumed had not been changed before Chisholm.
3.20.2007 5:04pm
Clayton E. Cramer (mail) (www):
In reading through Chisholm, one of the rather important points--and one that Justice Wilson alludes, as well as other Justices that wrote opinions--that there was a fundamental injustice in this case. The plaintiff was suing on behalf of the estate of a person who had supplied the State of Georgia with military supplies during the Revolutionary War, and sought payment for those goods. While Justice Wilson certainly makes the claim that states do not enjoy sovereignty, it might be worth considering whether this was also driven by the belief that the plaintiff was getting screwed.

To turn this case into evidence of Professor Barnett's fantasy of the Constitution as a libertarian document is quite a stretch--and especially because state after state passed laws that were quite definitely not libertarian during this time, without any judicial actions to stop them.
3.20.2007 5:07pm
bigchris1313 (mail):

Despite all this, Chisholm is not among the canon of cases that all law students are taught.


For what it's worth:

As an undergrad at Claremont McKenna, although it was by no means an exhaustive analysis, my con law prof did briefly explain Chisholm.
3.20.2007 5:24pm
Dick Schweitzer (mail):
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

Perhaps you have struck the point at issue, with "Constitutional law is taught ..." rather than learned. It is now widely presented as expositions, thus requiring the classifications. I had the fortune to learn Constitutional law under (not be taught by) F D G Ribble, although he constantly dinged me in his Socratic method to respond as "Our Natural Lawyer of this class." I didn't really grasp his insight until much later in life. It was a learning experience.

I have had the uneasy sense for some years that the trends of "publish or perish" for legal faculties is pushing them to the expository methodologies, rather than guidance in learning. The indicative results seem to be showing up everywhere in the system.
3.20.2007 7:57pm
loki13 (mail):
One other note-

why should this case be taught in ConLaw classes? My ConLaw class, for example, touched on Separation of Powers (one unit), Federalism (one unit) and Civil Liberites (one unit). We never did a 1st Amendment Case. We did 2 2nd amendment cases (only as an example of textural interpretation). No 3rd Amendment (duh). No 4th. No 5th. No 6th. No 7th. No 8th. The 9th Amendment case we covered was Griswold (what else). We barely touched Article 1 (we concentrated on Art. 2 for SOP issues for IEP)... except for the legislative veto. I could keep going on, but you probably get the idea. There's a (very) limited amount of ConLaw that can be covered in a 1L class....

Why Chisolm? The one advantage is that it provides an example of when there was the belief that 'incorrect' SCt decision should be overruled quickly by express Constitutional Amedment (this might provide a nice contrast with the Lochner switch, when the court was pressured into the switch)... but otherwise it is dead law. With a limited amount of time, does this case have enough impact on either modern ConLaw or the evolution of SCt thinking that it should be taught?
3.20.2007 9:10pm
kldimond:
First a note to D Schweizer: That "expository method" as opposed to "inspiring learning" is a "trend" foisted on primary and secondary schools as of the beginning of the Twentieth Century, nodeling third-tier Prussian schools--the ones that taught the subjects, not the aristocracy (See, "The Deliberate Dumbing Down of America" by C T Iserbyt). Its expansion to higher education is to have been expected.

To Prof. Barnett: For a long time, I've said that the Constitution was being violated almost before the ink was dry. I suspect that a certain few of the Framers really understood what was happening, and the rest were just trying to get it done.

The 11th Amendment has always stuck in my craw. It, along with the 16th and 17th, strikes me as so contrary to founding principles as to require a deep critical review and, hopefully, repeal.

To the 11th: Where did expressions like "a man's home is his castle" come from, if not from the concept of individual sovereignty? "Castle"?

An argument I've seen widely among us non-professionals is that the Constitution represents authority delegated by the people to the government. "We the People..." It doesn't follow that one who delegates authority then loses it.

One delightful consequence, should the Jay Court's conception of individual sovereignty be finally recognized and honored, it seems to me, is loss of the to me obscene abomination known as "the compelling interest of the state," which seems awfully pervasive, and ends up trumping individual rights under almost any circumstance.

I would sure love to see you explore your interests and findings further. Please do so!
3.20.2007 9:33pm
Clayton E. Cramer (mail) (www):

An argument I've seen widely among us non-professionals is that the Constitution represents authority delegated by the people to the government. "We the People..." It doesn't follow that one who delegates authority then loses it.
If the Chisholm suit had been about the right of the People of Georgia to take some action with respect to the Georgia government, you argument makes perfect sense. But Chisholm was about one person in another state filing suit against Georgia. The plaintiff had, for all that I can tell, good reason for that suit. But Chisholm wasn't "the People." He was one person with a beef against Georgia.

One delightful consequence, should the Jay Court's conception of individual sovereignty be finally recognized and honored, it seems to me, is loss of the to me obscene abomination known as "the compelling interest of the state," which seems awfully pervasive, and ends up trumping individual rights under almost any circumstance.
In the early 20th century, "police power of the state" was the magic key that trumped not just "individual sovereignty" but also state constitutional provisions.

What, exactly, does "individual sovereignty" mean? If you mean that the government lacks authority to compel individuals to behave in a certain way, then government ceases to exist, or very nearly so. (Voluntary government--there's a concept for you.)

The evidence is very clear: no one in 1789 thought that there was such a thing as "individual sovereignty." That's part of why most state constitutions listed certain rights that the state could not deny--because everything was potentially on the table, as the abuses of legal tender laws in Rhode Island in the Articles of Confederation period and the price control experiments of Revolutionary Philadelphia showed.

If you want to make an argument for minimal government as a matter of sound public policy, make that argument. I am sympathetic to it. But pretending that the Constitution created this minimalist government (except, somewhat, at the federal level) is fantasy. State governments in the early Republic taxed people to support one established church (in a few cases, allowing local communities to pick which church would get the taxes), criminalizing sodomy, adultery, and other actions between consenting adults, regulating alcohol sales and distribution, subsidizing some businesses, trying to suppress others. While there were often objections to these efforts, where are those objections stated as violating individual sovereignty?
3.21.2007 12:41am
ReaderY:
Need I point out that Chisolm was expressly overruled by the 11th Amendment and that Barron v. Baltimore is a pretty well-established case? If a candidate lost 40-60, could a judge install the 40% candidate on grounds that the candidate has extensive public support and hence represents the popular choice? At some point, one has to respect the outcomes of legal processes. Caesar, and Augustus after him, acted in the name of the people. We shouldn't be so quick to abolish the Republic.
3.21.2007 2:01am
ReaderY:
Need I point out that Chisolm was expressly overruled by the 11th Amendment and that Barron v. Baltimore is a pretty well-established case? If a candidate lost 40-60, could a judge install the 40% candidate on grounds that the candidate has extensive public support and hence represents the popular choice? At some point, one has to respect the outcomes of legal processes. Caesar, and Augustus after him, acted in the name of the people. We shouldn't be so quick to abolish the Republic.
3.21.2007 2:02am
kldimond:
Cramer,

As far as I'm concerned, the word "sovereignty" doesn't even need to be used at all. But it is a word that has come into a lot of modern banter, and with a variety of meanings. And perhaps those variations are a good reason to dispsnse with the word, except to overtly dispense with it.

Your point that states had some ridiculous laws even back then is well taken. That's the basis of my view that most of even the Founders really didn't "get it."

The idea of freedom from government was extremely well made by the likes of Tom Paine and Thomas Jefferson among others, though, and I think the concept of more or less absolute freedom was well-received in general. It's just that "official" power goes to the heads of a great many of those who have it.

And freedom isn't the oldest known purpose of government. In fact, even though it wasn't even unknown in that day, it still was the most radical notion around. And even today, apparently it still is an idea whose time hasn't yet arrived.

I stil think the 11th was a crime and a symbol of this "too radical to be understood" mindset about freedom.

And I do agree with the professor that the 11th really doesn't address the findings of the court about sovereignty.
3.21.2007 4:37pm
CJColucci:
Just a drive-by thought: any "originalist" theory that requires believing that the Founders "didn't get" their own Constitution and that public officials, lawyers and judges whose public careers were contemporaneous with the adoption of the Constitution, like Alexander Hamilton and John Marshall, were the serpents who introduced original sin into an originalist Garden of Eden, can't be taken any more seriously as a theory of law than the Book of Genesis can be taken as an account of human origins.
3.21.2007 4:45pm
markm (mail):
IANAL, but it seems that Chisholm must have addressed two issues: whether states could erect barriers against being sued, and which court should hear suits against a state from a resident of another state. The 11th Amendment overruled Chisholm only on the latter point. It says nothing about "sovereign immunity".
3.22.2007 2:03pm
kldimond:
Colucci,

That is indeed a "drive-by."

First, my points aren't establishing a theory. They're just simply points that need remembering.

Colucci, have you ever heard of the Alien and Sedition Acts?


From Wikipedia:

The Alien and Sedition Acts were four laws passed by the Federalists in Congress in 1798 during the administration of President John Adams. Proponents claimed they were designed to protect the United States from alien citizens of enemy powers and to stop seditious attacks from weakening the government.

The Democratic-Republicans, like later historians, attacked them as being both unconstitutional and designed to stifle criticism of the administration, and as infringing on the right of the states to act in these areas.

They became a major political issue in the elections of 1798 and 1800. One act (the Alien Enemies Act) is still the law in 2007, and has frequently been enforced in wartime. The others expired or were repealed by 1802. Thomas Jefferson held them all to be unconstitutional and void, and released all who were imprisoned by them...


(Wikipedia still)

1. The Naturalization Act (official title: An Act to Establish an Uniform Rule of Naturalization) extended the duration of residence required for aliens to become citizens, from five years to fourteen. Enacted June 18, 1798, with no expiration date, it was repealed in 1802.

2. The Alien Friends Act (official title: An Act Concerning Aliens) authorized the president to deport any resident alien considered "dangerous to the peace and safety of the United States." Enacted June 25, 1798, with a two year expiration date.

3. The Alien Enemies Act (official title: An Act Respecting Alien Enemies) authorized the president to apprehend and deport resident aliens if their home countries were at war with the United States. Enacted July 6, 1798, with no expiration date, it remains in effect today as 50 USC Sections 21-24.

4. The Sedition Act (official title: An Act for the Punishment of Certain Crimes against the United States) made it a crime to publish "false, scandalous, and malicious writing" against the government or its officials. Enacted July 14, 1798, with an expiration date of March 3, 1801.

(more Wikipedia)
The Sedition Act says anyone "opposing or resisting any law of the United States, or any act of the President of the United States" could be imprisoned for up to two years.

It was also illegal to "write, print, utter, or publish" anything critical of the president or Congress.

It was notable that the Act did not prohibit criticism of the Vice-President. Jefferson held the office of Vice-President at the time that the Act was passed, leaving him open to criticism under the new law.


Now, Colucci, especially pertaining to the Sedition Act, tell me that John Adams was savvy to the Constitution and its broad revolutionary meaning, just because he was a contemporary. Moreover, tell me the Congress--also contemporaries--was savvy to it. Can you do that and keep a straight face?

And with regard to the Sedition Act, take a look at the point that one of the best minds of the times--Jefferson--was left open to attack.

Why was that, do you suppose? Well, I only have a theory, but it is that Jefferson opposed the bill, so they said, "Have it your way." I also wouldn't be surprised if the Sedition Act was passed as much to shut Jefferson up as anyone.

Further, take a look at the feelings many of the founders had towards one another. Many wouldn't speak to one another after the convention. Some of them wouldn't even pass one another on the street without going out of their way to make sure they passed on opposite sides. They didn't have this marvelous, "everyone's happy" agreement. Feelings and opinions were strong, and extreme divergences in point of view were present.

Ultimately, they agreed to disagree--the mix of countervailing opinions kept various narcissistic proposals from finding their way into the document (and probably many good, freedom-promoting ones as well), which plainly infuriated some of their proponents.

And anyone who says there weren't two-legged snakes also represented is naive. There most certainly were snakes in the constitutional convention, who were intent on steering it towards a more English model.

As an example, although one can see how wonderfully it backfired on the Federalists, the Federalists surprised the Anti-federalists when they all convened by, instead of coming to work out the problems with the Articles of Confederation by amendment (as was the original plan), proposing a brand NEW constitution. An ambush.

Can you imagine what antagonism was generated by both the ambush and the way it backfired? Can you concede that many of these folks concluded that they may have lost a major battle, but that they would stick around, working in or around government and prodding the people, to assure that it got "fixed"?

They came out of the convention with enough "consensus" to get it ratified, and to get ten of the twelve proposed articles of amendment passed. This was done by broad concessions to freedom and, in some cases, concessions to less freedom-oriented proposals. But that doesn't mean they happily agreed, found it ideal, or wouldn't continue to try to force their proposals into law. And the intellectual progeny of those folks--in each variation--are still at it.

The Sedition Act, or variations and ad-hoc applications of its principles, has found its way again into political discourse at least three times in history since then--pursuant to the War of 1812 in the Hartford Convention; then Lincoln basically imposed it during the Civil War (and the South also had a version it tried to float), and a variant actually was passed again in 1918, repealed in 1921 as unconstitutional. But not without at least a couple of high profile cases occurring while it was law.

Getting back to the issue of sovereignty, Wikipedia mentions the Compact Theory and discusses it in terms of state sovereignty. I don't know if the discussions of the Compact Theory during the early life of the U.S. included use of the term, but it might be an area for the professor to address in his on-going work.
3.22.2007 3:50pm
CJColucci:
They didn't have this marvelous, "everyone's happy" agreement. Feelings and opinions were strong, and extreme divergences in point of view were present.

That's pretty much my point. Now connect the dots.
3.23.2007 4:50pm
kldimond:
Colucci,

Ok, tough guy.

The bottom line, Colucci, is that the DOCUMENT is the law; not their attitudes and conceptions. Those latter only came into play when they wanted to negate the document.

Therefore, when they breached the document by imposing, for instance, the Alien and Sedition Acts not by amendment but by statute, and by, for instance, not pressing an abolition of slavery (and by allowing a similar racist negligence toward the natives), they demonstrated, prima facie, that they didn't know what they'd done--what the document meant.

It happens that way sometimes, Colucci. Unintended consequences can also make great and wonderful things happen. And people can look at black and white and call it gray.

I wonder what you'll do...
3.24.2007 4:57am
CJColucci:
It's really this simple. Lots of smart, well-informed lawyers, judges, and public officials, who have much better right than we to be taken seriously as users and interpreters of the late-eighteenth century language in the Constitution, disagreed violently with each other about what it meant, and presented deep and serious arguments in support of their positions. And this is the basic problem with any of the current versions of originalism, whether "original intent" originalism or "original public meaning" originalism. (Whether there is any meaningful difference between the two is an exercise I leave to the reader.) The original "originalists" disagreed about what the document they created and implemented meant. Two centuries later, sone of us think we know better than they what the "real," "original" constitution means. Can Congress create a national bank? Serious people split on the question at the time and made serious arguments in support of their point of view. The question got decided in McCulloch v. Maryland. It could have come out the other way. Some of us think we have some privileged access to meaning that allows us to decide the question anew. I'm not that smart. I don't think most other people who think they can answer such questions are that smart either.
There's always somebody, however, who thinks he is. There used to be a line of legal thought that the pre-Civil War Constitution forbade slavery or permitted the federal government to act agaionst it in the states. Their hearts were in the right place, but they are charitably described as cranks.
3.24.2007 1:00pm