TEXT OF AMENDMENT The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. BACKGROUND The rights of the Federal Judiciary to summon a State as a defendant and to adjudicate its rights and liabilities has been the subject of deep apprehension and debate at the time of the adoption of the Constitution. Many delegates expressed the opinion that Article III, Section 2, Clause 1 of the Constitution did not authorize suits against a State by a private individual without the consent of the State.1 Article III, Section 2, Clause 1 reads: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. Despite this constitutional assurance that the Federal Judiciary did not hold power in such cases, the first suit that entered the Supreme Court during its first term in February 1791 was brought against the State of Maryland by a firm of Dutch bankers.2 As a result, the question of State sovereignty became at once a judicial issue. The two parties, however, later settled in out-of-court negotiations and the suit was discontinued.4 3 The next year, during the 1792 term, the Supreme Court heard two similar cases, one brought by an individual against the State of New York 5 and a suit in equity brought by a land company against the State of Virginia.6 In the first case, the Court awarded the Plaintiff $5,315.06. The case against Virginia was eventually dismissed after ratification of the Eleventh Amendment. However, each of these suits brought great alarm to the "Anti-Federalists' who had opposed the Constitution, and rekindled their fears that the independence of the States would be lost." The growing controversy over State sovereignty peaked later during the 1792 Term when the Supreme Court heard the case of Chisholm v. Georgia. A contemporary newspaper article from the Salem Gazette outlines the specifics of the case: A citizen had left America prior to the Revolution and removed to Great Britain, after settling a partnership account with two partners in trade whose bonds he took for balance due. After his decease, his executors (who were citizens of South Carolina) on making application for payment found that these two persons who had given their joint bonds had been inimical to the cause of liberty in the United States and their property was confiscated. The executors, alleging that the bond was given previous to the Revolution, applied to the State of Georgia for relief.9 On February 5, 1793, the case came before the Court. The State of Georgia refused to appear but presented a written remonstrance of protest through Alexander J. Dallas and Jared Ingersol, both of Pennsylvania. On February 18, with a vote of 4 to 1, the Court rendered a decision "sustaining the right of a citizen of one State to institute an original suit in the Supreme Court against another State for breach of contract." 10 The decision of the Supreme Court in Chisholm v. Georgia sent tremendous repercussions throughout the United States. "Anti-Federalists" were once again furious at this latest threat to State sovereignty.11 At the same time, staunch "Federalists" saw the decision as an opportunity to strengthen the power of the Federal Government. 12 In response to the Chisholm decision, several State legislatures passed resolutions in protest. 13 For example, the State of Georgia passed legislation in its House of Representatives on November 21, 1793, stating that "any Federal Marshal or other person who executed any process issued by the Court in their Case should be declared guilty of felony and shall suffer death, without benefit of clergy, by being hanged." 14 LEGISLATIVE HISTORY On February 20, 1793, the U.S. Congress took action to resolve the growing controversy. A motion was made in the Senate for the adoption of an amendment to the Constitution. The initial proposal read: The Judicial power of the United States shall not extend to any suits in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State.15 Consideration of the motion was resumed on February 25, but was then postponed until the following session of Congress. 16 When the resolution was reintroduced in the Senate on January 2, 1794, it appeared in the form eventually ratified by the States. Once again, however, consideration on the motion was postponedthis time until January 13. On that date, the resolution was finally taken up, and two proposed amendments were debated. One would have excepted from the ban all cases arising under treaties. The other would have extended the Judicial power of the United States to all cases where a State was a party, while prohibiting suits against a State by citizens or subjects of other States or nations where the cause of action arose prior to the ratification of the amendment. Both proposed amendments were defeated, and the resolution passed the next day by a vote of 23 to 2. The Senate resolution was received one day later in the House of Representatives, on January 15. It was immediately considered in the Committee of the Whole, reported, and passed by the House without amendment, 81 to 9. RATIFICATION HISTORY When the Eleventh Amendment was adopted by Congress, there were 15 States in the Union. Consequently, ratification by 12 States was required before the amendment would become part of the Constitution. The amendment met with little opposition during the ratification process. In fact, New York ratified within 1 month; and less than 1 year later, North Carolina became the necessary 12th State to approve the amendment on February 7, 1795. The dates of ratification of the Eleventh Amendment by the several States are listed below: New York Virginia.......... Kentucky Delaware... North Carolina South Carolina........ Mar. 27, 1794. and Nov. 9, 1794. New Jersey, Pennsylvania, and Tennessee, each of which had been admitted to the Union as of June 1, 1796, took no action on the amendment.17 The Eleventh Amendment appears officially as 1 Stat. 402. FOOTNOTES TO AMENDMENT XI 1. U.S. Reports, Hans v. Louisiana, 1890, Washington, 134: 1. 2. U.S. Reports, Vanstophorst v. Maryland, 1791, Washington, 2: 401. 3. Charles Warren, The Supreme Court in U.S. History, (1935), I: 91. 4. National Archives, Minutes to the Supreme Court of the United States, 5 August, 1792. 5. U.S. Reports, Oswald v. New York, 1791, Washington, February, 1792, 2 US 401. 6. U.S. Reports, Hollingsworth v. Virginia, 1798, Washington, February, 1798, 3 US 378. 7. James Sullivan, Observation Upon the Government of the United States, (Boston: S. Hall, 1791), 9;55. 8. 2 U.S. Report, Chisolm v. Georgia, 1792, Washington, August, 1792, 419. 9. "Philadelphia Dispatch," Salem Gazette, 6 March, 1793. 10. Samuel Bayard, Dunlap's American Daily Advertiser, 21 February, 1793. 11. "Philadelphia Dispatch," Connecticut Courant, 25 February, 1793; Providence Gazette, 2 March, 1793, 3. 12. Columbia Centinel, 31 July and 3, 7, and 10 August, 1792. 13. Clyde E. Jacobs, The Eleventh Amendment and Sovereign Immunity, (1972), 179-180. 14. Herman v. Ames, State Documents on Federal Relationships, (1911). 15. U.S. Congress, Senate, Journal 1st and 2nd Congress, 20 January, 1793. 16. Ibid., 25 February, 1793, 494. 17. Virginia Commission on Constitutional Government, The Constitution of the United States, (Richmond: 1965), 27. TEXT OF AMENDMENT The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;-The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President when ever the right of choice shall devolve upon them, before the fourth day of March_next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the VicePresident; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. BACKGROUND After much debate and controversy at the Constitutional Convention of 1787, the Framers of the Constitution finally agreed on a procedure for the selection of the President and Vice President of the United States. The method prescribed by the Founders appears in Article II, Section 1, Clause 2 of the Constitution: The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and the House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such a Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the |