Sovereignty Definition
Sovereignty is defined in English dictionaries as a supreme power or authority and usually describes the government of a self-ruling nation. I am not so sure the founders would completely agree with that definition.
The Founders Interpretation of Sovereignty
During early colonial days it was widely accepted that English Parliament was sovereign over the English Empire. When the colonists refused Parliamentary directives to pay excise taxes on tea and other goods, they began to massage their theory on sovereignty insisting that Parliamentary sovereignty was not absolute or sovereignty resided with the King and not Parliament.
Over time, the founders hypothesized that the only way to curb the power of government, sovereignty had to be shared between the branches of the federal government. Additionally, the principle of federalism was also enshrined by the founders within the Tenth Amendment of the Constitution. Federalism implies that sovereignty is also shared between the federal government and the state governments. Justice Anthony Kennedy described the brilliance of federalism as “splitting the atom of sovereignty” in Term Limits Inc. v. Thornton.
Furthermore, the only reason people consent to government is for protection and safety of their fundamental rights suggesting the sole purpose of the government was to serve the people. This explains why SCOTUS decided in Chisholm v. Georgia that the people were the true sovereign in the United States system of governance.
The Structure of Government
The principle of sovereignty sharing became the pillars of our constitutional republic because they are implicit within the structure of the Constitution. Many may recognize that sovereignty sharing is analogous to the constitutional principle called separation of powers. Separation of powers also defines a power sharing scheme between the branches of the federal government, the states, and the people. More specifically, separation of powers is defined within Article I, Article II, Article III, and the Tenth Amendment. Remember, the Tenth Amendment does not just protect states’ powers (rights), but it also reserves those powers that are not delegated to the Federal government for both the states and the people.
Chisholm v. Georgia
Alexander Chisholm was the executor of the estate for a South Carolina man, Robert Farquhar, who passed away in 1784. Farquhar provided American troops with supplies during the Revolutionary War. Chisholm sued the state of Georgia because it failed to pay Farquhar for the provisions he provided to the American army. At that time, Article III Section 2 Clause 1 of Constitution unambiguously stated citizens who resided in one state could sue the government of another state.
In Chisholm v. Georgia (1793), SCOTUS regarded the people as the true sovereign. James Wilson wrote one of the majority opinions in the case and wrote, “… my short definition of such a government is--one constructed on this principle, that the supreme power resides in the body of the people.” Since the Court regarded the people as the true sovereign, they unsurprisingly held the state of Georgia did not have sovereign immunity from Chisholm’s lawsuit.
The Chisholm decision was objected to by most state governments and quickly resulted in the passage of the Eleventh Amendment in 1795. The Eleventh Amendment prohibited citizens from suing states in which they did not reside. Chisholm v. Georgia was unfortunately officially overturned.
Sovereign Immunity
Following the passage of the Eleventh Amendment, when suits against state governments failed, citizens turned to suing government officials. This was a troublesome outcome because government employees were usually following the law and only performing their official job duties. In the line of cases United States v. Peters (1809) and Osborn v. Bank of the United States (1824), Chief Justice John Marshall ruled that the Eleventh Amendment only applied to state governments and not state officers carrying out official duties for the government.
A similar argument was upheld by SCOTUS in the recent presidential immunity case (Trump v. United States in 2024). SCOTUS ruled that any official duties of the office of the presidency were protected from prosecution, but immunity did not extend to any crime or lawsuit that may arise from private actions while in office. Thus, immunity may not extend to government officials acting in an unauthorized capacity.
State governments unfortunately, had a history of defaulting on its monetary obligations with citizens. After the Civil War, SCOTUS initially prevented states from defaulting on monetary contracts in cases such as Davis v. Grey and Board of Liquidation v. McComb. By 1883, SCOTUS however, began to protect Eleventh Amendment claims brought forth by states in cases such as New Hampshire v. Louisiana, Elliot v. Jumel, and Cunningham v. Macon Railroad. By 1890, SCOTUS was officially shielding states from honoring its monetary contract obligations with citizens. In Hans v. Louisiana (1890), SCOTUS provided a very broad reading of the Eleventh Amendment to suggest that citizens could not even sue the states in which they resided.
Patrick Bohan is not a historian or lawyer, just a patriot who has independently studied these subjects.
