In Part I, we explored sovereignty as it pertains to separation of powers. Specifically, separation of powers are defined by Article I Section 1, Article II Section 1, Article III Section 1, and the Tenth Amendment of the Constitution. These articles and amendment define those powers vested in the different branches of the federal government, state governments, and those retained by the people. In this section we explore limitations to sovereignty immunity protections.
Contracts Clause
The Contracts Clause is found in Article I Section 10 Clause 1 of the Constitution and it specifically prohibits states from impairing on the obligations of contracts. In the first Contracts Clause case, Fletcher v. Peck (1810), Chief Justice John Marshall voided a Georgia law which violated the Contracts Clause. Marshall appropriately protected the sanctity of contracts. Eleventh Amendment sovereign immunity, however, became an instrument to not only violate the sovereignty of individuals, but it was used routinely to encroach upon the Contracts Clause and other constitutional principles.
Prout v. Starr
Prout v. Starr (1903) has become one of my favorite cases. It was an obscure Eleventh Amendment case in which Justice George Shiras wrote, “The Constitution of the United States, with the several amendments thereof, must be regarded as one instrument, all of whose provisions are to be deemed of equal validity.” I refer to Shiras’ revelation as the constitutional equality principle. In other words, Shiras did not believe the Eleventh Amendment trumped the Contracts Clause. However, Shiras’ sound jurisprudence would fall on deaf ears. As I pointed out in Part I, sovereign immunity of the states was routinely protected by courts even when the Contracts Clause or some provision of the Constitution was violated. I will return to Prout v. Starr in future blogs.
My Interpretation of the Eleventh Amendment
Prout suggests, in my opinion, state sovereign immunity only applies if the law or action in question did not violate any constitutional provisions. As I see it, the true purpose of the Eleventh Amendment is to provide states immunity from frivolous lawsuits brought forth by citizens residing in other state jurisdictions.
In other words, states should not face any frivolous lawsuit if they protected the rights of citizens and upheld the Constitution. Conversely, states should not be shielded from lawsuits when the rights of citizens are compromised and or the Constitution is violated.
The brilliance of Prout is my aha moment in making some sense of constitutional law. Something finally made sense. After reading so many confusing cases, Prout reinforced the importance of prioritizing the rights and sovereignty of the people. For instance, it is completely illogical for the Eleventh Amendment to trump the Contracts Clause or for it to shield states from any consequences when they mitigate the rights of citizens.
I cannot think of any reason why the framers of the Eleventh Amendment would pass an amendment that could be used as a tool to override basic constitutional principles. Nor would the original framers of the Constitution allow the Eleventh Amendment be used as an instrument against the people. And in 1795, the original framers were actively involved in the federal government when the Eleventh Amendment passed – Washington, Adams, Jefferson, Hamilton, and Madison.
Thus, it seems to me, the Eleventh Amendment did not overrule Chisholm v. Georgia and the principle that the people are the true sovereign (discussed in Part I).
Case Study: Seminole Tribe of Florida v. Florida
The Commerce Clause provides Congress the power to regulate trade with the Indian Tribes. Congress, therefore, believed the Commerce Clause enforced the Indian Gaming Regulatory Act (IGRA) passed in 1988. The Seminole Tribe filed suit against the state of Florida when they failed to negotiate in good faith with the Seminole Tribe as prescribed by the IGRA. The Supreme Court held the IGRA and Commerce Clause could not abrogate the Eleventh Amendment and the sovereign immunity of Florida. In my opinion, the decision does not make sense, but what do you think? If you have time, study the case, and decide for yourself. Below are some questions that I asked myself while reviewing the case:
1. The conservative sect of the Court used prior precedent to protect the sovereign immunity of Florida. Do you think this case was decided properly?
2. Why can’t the Seminole Tribe or its people sue the state in which they reside?
3. By violating the IGRA did the state of Florida violate any rights of the Seminole people?
4. Why doesn’t SCOTUS think this case violates the Commerce Clause? Are they right?
5. What makes this case different from Pennsylvania v. Union Gas?
6. Who should be more sovereign in the United States system of governance, the federal government or state governments?
7. Does this case adhere to the constitutional equality principle revealed in Prout? Should the Eleventh Amendment trump the Contracts Clause?
Congressional Immunity
Congressional immunity is minimally protected in the Pay and Immunity Clause (Article I Section 6 Clause 1). The Court has interpreted the “breach of peace” statement in the clause to include any crime with the exception of civil suits. Thus, congressional members have very little immunity. The speech and debate portion of the clause, however, has been interpreted by SCOTUS very broadly to include all congressional activities of members including their staff. For example, in United States v. Johnson (1966), the Court prohibited the prosecution of a congressional member using evidence originating from a legislative act or the motives of members to perform their legislative duties.
Patrick Bohan is not a historian or lawyer, just a patriot who has independently studied these subjects.
