I believe I have previously expressed regret that students of American history do not take more advantage of some of the historical studies being produced by legal scholars. This is understandable. Much writing by legal historians winds up in law reviews. Although law review articles and drafts are becoming more accessible via the internet and SSRN, it may simply not occur to laypersons with a historical bent to look there. In addition, law reviews for the most part tend to publish obscure, turgid rubbish, which is of no interest to lawyers, much less non-lawyers. It’s not easy to find the historical wheat amongst the legal trash.
Still, there are legal books and articles out there that I think would be comprehensible, interesting and useful to lay students of history. A number of members of the academic legal community are producing articles and books with substantial historical components. In large part, this is the result of an increasing appreciation of the need to explore the original understanding of the United States Constitution and the Amendments to it.
By way of example, I thought I’d briefly discuss an article I read recently that I think might be of interest to serious American history students. It is freely available on SSRN, so it costs you nothing to take a peek.
Leaving the Chisholm Trail: The Eleventh Amendment and the Background Principle of Strict Construction is by Kurt T. Lash, a professor at Loyola Law School (Los Angeles). Professor Lash has written a number of great articles on the Ninth and Tenth Amendments and is one of the writers on constitutional history that I always make sure to read.
The Eleventh Amendment is obscure even to most lawyers. Very briefly, after the Constitution was ratified in 1788, a number of states were named as defendants in lawsuits brought in federal courts (that is, the United States Supreme Court or inferior courts created by Congress) by citizens of other states or countries. The states were not sued in their own (state) courts because that was not an option – at the time, every state had declined to waive the sovereign immunity that protected it from suit.
In February 1793, the United States Supreme Court, in a case called Chisholm v. Georgia, held that the Constitution authorized States to be sued in federal court, without their consent, by citizens of other States or foreign countries.
With a handful of exceptions, the states expressed outrage, and acted on it. They directed their representatives in Congress to amend the Constitution. Within eleven months, both the Senate and the House passed, by overwhelming margins (23 to 2 and 81 to 9 respectively), a proposed corrective amendment. Less than a year after that, a sufficient number of states ratified the proposed amendment, which became the Eleventh Amendment, declaring that the Court had incorrectly construed the Constitution.
Professor Lash uses this story to document and illuminate what Americans at the time understood the relationship between the federal government and their state governments to be. The central impulse that fueled outrage was the widespread belief and understanding that the states remained sovereign entities, which were entitled to sovereign immunity. The Supreme Court’s ruling effectively stripped the states of their status as sovereigns and treated them instead as mere “dependent corporate bodies”. The federal government alone was sovereign. Consolidation, loss of freedom and tyranny were the foreseeable results.
Nowadays, most of us (except for some of us troglodytes) are accustomed to thinking of the federal government as the bulwark of liberty, protecting us against the potentially repressive states, which have been reduced to virtual nonentities. Professor Lash’s article provides a vivid illustration of the startlingly different worldview of the founding generation. At the very beginning of the article, for example, he paints a dramatic picture of the dying John Hancock, then Governor of Massachusetts, rising from his final illness to call the state legislature into special session to address what he believed was an imminent threat to liberty:
At the same time, Professor Lash tells a tense and tawdry tale of deceit and deception by the federalists who championed and won ratification of the Constitution. In and in connection with the state conventions called to consider ratification, the federalist proponents repeatedly promised that, except as to those powers specifically delegated to the federal government, the states would remain sovereign. For example, in Federalist 39, James Madison’s “Publius” insisted that the federal government’s “jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”
More specifically, proponents of ratification also repeatedly promised that it was inconceivable that states could be sued against their will in federal court under the Constitution – the States retained their sovereignty, and they had not ceded it to the federal government. The text of the proposed Constitution contained a provision that appeared to permit suits against States: Article III, Section 2 provided in relevant part that
Nonetheless, Madison (for example) assured the Virginia Convention in no uncertain terms that this language did not permit states to be hauled into federal court without their consent:
Likewise, in Federalist 81, Alexander Hamilton (of all people) represented that states could not be sued without their consent precisely because they would remain sovereign entities:
Finally (one last example), in the Massachusetts convention, Rufus King, according to the reporter,
And yet, only five years later, when the Supreme Court ruled otherwise, many “national” federalists (my term) justified the result by citing what we today would call the “plain meaning” of the language of Article III, Section 2. Others remained conspicuously silent.
Doubters who had relied upon the assurances of proponents were understandably outraged. “Brutus” of Massachusetts specifically reminded readers that “’apprehensions’ about Article III voiced in the state ratifying convention ‘were said to be groundless by the advocates of the Constitution, and the jealousies of the members on that subject, were laughed at, and treated as ridiculous by [Rufus] KING and others.”
“A True Federalist” spelled out similar thoughts:
Professor Lash uses the underlying history as a basis to raise a number of more purely “legal” issues. It may well be that the student interested in history rather than legal theory will want to skim over portions of the article or ignore them entirely. But substantial portions of the article can be read simply as thought-provoking history. How did most people understand the relationship between the federal and state governments? Were the anti-Federalists the paranoid nut-jobs they are usually portrayed as now? Conversely, should we reconsider, or at least temper, the exalted status we accord some of the Federalist icons?
Still, there are legal books and articles out there that I think would be comprehensible, interesting and useful to lay students of history. A number of members of the academic legal community are producing articles and books with substantial historical components. In large part, this is the result of an increasing appreciation of the need to explore the original understanding of the United States Constitution and the Amendments to it.
By way of example, I thought I’d briefly discuss an article I read recently that I think might be of interest to serious American history students. It is freely available on SSRN, so it costs you nothing to take a peek.
Leaving the Chisholm Trail: The Eleventh Amendment and the Background Principle of Strict Construction is by Kurt T. Lash, a professor at Loyola Law School (Los Angeles). Professor Lash has written a number of great articles on the Ninth and Tenth Amendments and is one of the writers on constitutional history that I always make sure to read.
The Eleventh Amendment is obscure even to most lawyers. Very briefly, after the Constitution was ratified in 1788, a number of states were named as defendants in lawsuits brought in federal courts (that is, the United States Supreme Court or inferior courts created by Congress) by citizens of other states or countries. The states were not sued in their own (state) courts because that was not an option – at the time, every state had declined to waive the sovereign immunity that protected it from suit.
In February 1793, the United States Supreme Court, in a case called Chisholm v. Georgia, held that the Constitution authorized States to be sued in federal court, without their consent, by citizens of other States or foreign countries.
With a handful of exceptions, the states expressed outrage, and acted on it. They directed their representatives in Congress to amend the Constitution. Within eleven months, both the Senate and the House passed, by overwhelming margins (23 to 2 and 81 to 9 respectively), a proposed corrective amendment. Less than a year after that, a sufficient number of states ratified the proposed amendment, which became the Eleventh Amendment, declaring that the Court had incorrectly construed the Constitution.
Professor Lash uses this story to document and illuminate what Americans at the time understood the relationship between the federal government and their state governments to be. The central impulse that fueled outrage was the widespread belief and understanding that the states remained sovereign entities, which were entitled to sovereign immunity. The Supreme Court’s ruling effectively stripped the states of their status as sovereigns and treated them instead as mere “dependent corporate bodies”. The federal government alone was sovereign. Consolidation, loss of freedom and tyranny were the foreseeable results.
Nowadays, most of us (except for some of us troglodytes) are accustomed to thinking of the federal government as the bulwark of liberty, protecting us against the potentially repressive states, which have been reduced to virtual nonentities. Professor Lash’s article provides a vivid illustration of the startlingly different worldview of the founding generation. At the very beginning of the article, for example, he paints a dramatic picture of the dying John Hancock, then Governor of Massachusetts, rising from his final illness to call the state legislature into special session to address what he believed was an imminent threat to liberty:
There are certain inherent principles in the Constitution . . . which can never be surrendered, without essentially changing the nature, or destroying the existence of the Government. . . . A consolidation of all the states into one Government, would at once endanger the Nation as a Republic, and eventually divide the States united, or eradicate its principles which we have contended for.
At the same time, Professor Lash tells a tense and tawdry tale of deceit and deception by the federalists who championed and won ratification of the Constitution. In and in connection with the state conventions called to consider ratification, the federalist proponents repeatedly promised that, except as to those powers specifically delegated to the federal government, the states would remain sovereign. For example, in Federalist 39, James Madison’s “Publius” insisted that the federal government’s “jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”
More specifically, proponents of ratification also repeatedly promised that it was inconceivable that states could be sued against their will in federal court under the Constitution – the States retained their sovereignty, and they had not ceded it to the federal government. The text of the proposed Constitution contained a provision that appeared to permit suits against States: Article III, Section 2 provided in relevant part that
The judicial Power shall extend to all Cases, in Law and Equity . . . between a State and Citizens of another State . . . and between a State . . . and foreign States, Citizens or Subjects.
Nonetheless, Madison (for example) assured the Virginia Convention in no uncertain terms that this language did not permit states to be hauled into federal court without their consent:
It is not in the power of individuals to call any state into court. The only operation it [Article III, Section 2] can have, is that, if a state should wish to bring suit against a citizen, it must be brought before the federal court. . . . It appears to me that this can have no operation but this – to give a citizen a right to be heard in the federal courts; and if a state should condescend to be a party, this court may take cognizance of it.
Likewise, in Federalist 81, Alexander Hamilton (of all people) represented that states could not be sued without their consent precisely because they would remain sovereign entities:
It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States and the danger intimated must merely be ideal. . . . The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force.
Finally (one last example), in the Massachusetts convention, Rufus King, according to the reporter,
“pledged his honor that the convention at Philadelphia never discovered a disposition to infringe on the government of an individual state; and that in his opinion no Congress on earth would dare invade the sovereignty of this commonwealth.” On the strength of this gentleman’s opinion, [Article III] was assented to but by a small majority.
And yet, only five years later, when the Supreme Court ruled otherwise, many “national” federalists (my term) justified the result by citing what we today would call the “plain meaning” of the language of Article III, Section 2. Others remained conspicuously silent.
Doubters who had relied upon the assurances of proponents were understandably outraged. “Brutus” of Massachusetts specifically reminded readers that “’apprehensions’ about Article III voiced in the state ratifying convention ‘were said to be groundless by the advocates of the Constitution, and the jealousies of the members on that subject, were laughed at, and treated as ridiculous by [Rufus] KING and others.”
These suspicions were considered by them, as visions and chimeras of the brain, and as phantoms of distorted imaginations. But what do we now behold! These chimeras, these phantoms, these visions, are no longer imaginary, but appear in bold colors of a demand, as founded on that very Constitution!
“A True Federalist” spelled out similar thoughts:
I am a firm friend to the federal government; I consider it as an inestimable blessing to this country . . . . But I consider our motion, and your arguments and opinions as subversive of it, and as tending to establish a civil government for the United States, which the citizens of these communities, have never consented to. When the Constitution under consideration, was proposed to the people of Massachusetts, some men, in whom the people had placed confidence, openly and solemnly declared, that there never could be a construction given to it which would render the states liable to be sued on a common civil process. Some of them, for reasons very obvious to their fellow citizens, have altered their opinions, and others openly confess, that they thought it best to deceive the people into the measure of adopting the plan proposed. The idea of deceiving the people into a measure, is much more criminal, in my opinion, than of subduing them by force; in the first there is necessarily a perfidious breach of trust, but in the last here is only open and manly warfare. The first is predicated upon the tyrannical idea, that the people are incapable of understanding what is best for them, and most conducive to their own political happiness; but in the last there is a hope of relief in revolution, to be gained at one time or another, by superior force.
Professor Lash uses the underlying history as a basis to raise a number of more purely “legal” issues. It may well be that the student interested in history rather than legal theory will want to skim over portions of the article or ignore them entirely. But substantial portions of the article can be read simply as thought-provoking history. How did most people understand the relationship between the federal and state governments? Were the anti-Federalists the paranoid nut-jobs they are usually portrayed as now? Conversely, should we reconsider, or at least temper, the exalted status we accord some of the Federalist icons?
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