Sue Me

The next amendment is ranked, and it's as confusing as the last of the Star Wars movies.

It’s another Friday, my Okay History friends. We did it. Thanks for reading!

Have you ever asked what the United States of America is?

You wouldn’t call it a monarchy; we ditched those overlords a while ago. Are we a dictatorship? Nope. How about a fascist state? Depends on whom you ask.

Most of the time, we call ourselves a democracy. Yet, you hear people say that the United States is not a democracy but a federal republic. Maybe you have heard some folks call it a democratic republic or even a federal democracy.

Describing our government system can be as confusing as trying to sort out the players of the Star Wars movies. There’s the Republic, the Resistance, the Rebellion, the Empire, and my favorite, the First Order. So many muddling terms; who can keep track?

Well, don’t worry. I’m here to straighten it out.

The United States is a federal constitutional republic. This means the federal branch - the president, Congress, and the Supreme Court- shares sovereignty with the states. Except for the District of Columbia, which isn’t a state and more like a planet in the Outer Rim that you don’t hear about until you watch The Mandalorian.

Everyone, but us folks in DC, is equal. Disagreements arise, and we need to argue them in a process that allows us to settle things maturely and not tear up the government and start all over. We don’t need to be an Empire one day and First Order the next while building and protecting the same stupid planet weapon system with the same weaknesses, which gets defeated EVERY TIME.

The judicial system is paramount to keeping the peace in the galaxy. We accept decisions, even those that make us want to pull our hair out and scream like a Wookiee. That’s what a federal constitutional republic does – it frustrates us occasionally. Like a lousy storyline in a movie.

Article III of the Constitution created the Supreme Court. Not to be confused with the Supreme Leader, who magically morphed into the Emperor in the final Star Wars movie. The Constitution explained that Congress needed to figure out the rest of the court system, which they magically did when they passed The Judiciary Act of 1789.

There was great concern over establishing the Supreme Court during the Constitution Convention. With lifetime appointments and no First Order Supreme Leader Emperor to reign them in while they jaunt about the world on private planes and super yachts, you can understand the anxiety.

Not to worry, however. Because Alexander Hamilton was there to put everyone at ease!

Oh yay!

As a Federalist, Hamilton wanted a strong central government that was more of a First Order to the states and the people. In Federalist Paper Number 78, Hamilton spells out that the court must exercise judgment rather than impose its will. 

Anti-Federalists, who were so entrenched in individualism that they didn’t hire a marketing team to come up with a better name, wanted to ensure that states and individuals were protected.

Anti-Federalists kept pointing to words in Article III that extended judicial powers to lawsuits between the state and citizens of another state. Anti-Federalists wanted to clarify that states would be immune from such lawsuits.

Apparently, they didn’t read the bolded section because it’s in there.

Hamilton argued not to worry; the judiciary would be the weakest and, get this, the least dangerous of the three branches. No doubt he rapped about it and probably went something like this:

Don’t worry about the judiciary

Trust me, it aint that scary

More like Curly, Moe, and Larry

And yet, very necessary

My name is Alexander Hamilton.

Having never seen HAMILTON: THE COOL RAP MUSICAL, I just imagine he always ends his raps by telling you his name.

After the Bill of Rights passage, with its low-ranking Second Amendment, everyone agreed that the federal constitutional republic was set for life.

Hamilton, once again, won the day.

Until the process of lawyering came about.

Then everyone freaked out.

This brings us to the Eleventh Amendment. So let’s take a look!

23: Amendment XI

Its purpose: Restricts individuals from suing states in federal court.

Year proposed: 1794

Year Ratified: 1795

The Good:
In February 1793, the Supreme Court handed down a decision that began the meltdown concerning suing the state.

The case of Chisholm vs. Georgia was about another guy named Alexander, this one from South Carolina, and his agreement to supply stuff to Georgia during the Revolutionary War. He died before collecting the payment, and the executioner of his estate sued Georgia for compensation.

Georgia, in turn, told the ghost of Mr. Chisholm to buzz off and didn’t even show up for court, citing their immunity in Article III, which isn’t there, but whatever, it’s Georgia.

After the 5-1 judgment in favor of the ghost, Georgia went home and passed a law that said they would hang anyone who moved forward with a debt suit.

Anytime you can upset Georgia is good with me. Make ’Em HOWL!

The Bad:

As soon as the Chisholm decision was handed down, the Eleventh Amendment was passed quickly. It was the first time Congress needed to overturn a Supreme Court decision. The Court hadn’t even established its official review, which would come in 1803 in the Marbury vs. Madison case.

As a young country, we felt the urgency to correct a perceived flaw in the system. That’s a bad look.

The Ugly:

The weird thing about this amendment, the entire Snoke is really the Emperor turn in The Rise of Skywalker storyline, is that states can waive their immunity from being sued in federal court.

Congress can also abrogate, which is a fancier way of saying repealing, states’ immunity in federal cases when it comes to violating individual rights.

So what’s the point?

Well, in 1996, the Seminole Tribe of Florida vs. Florida decision tried to simply the point. The Tribe sued Florida for failing to engage in good-faith negotiations concerning gaming, which was expected under a law passed earlier ensuring such things.

In a 5-4 decision, the Court ruled that although Indigenous people had the right and expectation to negotiate, Florida could decide not to engage and had sovereign immunity under the Eleventh Amendment not to be sued since it didn’t consent.

It’s a wild premise.

Even though I watch a lot of Law & Order and somewhat understand the silly plot lines of the final three Star Wars movies, I can’t for the life of me figure out how on the one hand, the states are lawfully expected to engage in an activity, like negotiating with tribes concerning gaming, but don’t really have to engage when they don’t feel like it. Then if someone tries to sue them, the state must agree to be sued.

It's crazy.

I’d like to sue Disney for the money I spent in good faith watching their terrible movies. Think they would consent?

Who proposed it?

Two guys from Massachusetts - Congressman Theodore Sedgwick and Senator Caleb Strong. Sedgwick immediately proposed a Constitutional amendment to correct the wrongs of the Chisholm verdict.

In Sedgwick’s words, their goal was to remove any clause or article…which can be construed to imply or justify a decision that a state is compellable to answer in any suit by an individual.

After days of deliberations, the Senate proposed a variation of Strong’s text, which addresses the narrow issue of suing states in federal court, restoring what Article III gave the judicial branch while protecting the state’s immunity.

It was ratified within the year by 12 of the 15 states.

Why did I rank it here?

Don’t you think the Eleventh Amendment would have more gravitas than – shared sovereignty? It’s like a white-out amendment. We wrote something down in ink, and someone of authority read it differently, then we whipped out that small plastic jar of white paint and tried to write over our mistake.

The Eleventh Amendment had to clarify a fundamental premise of our founding – shared sovereignty. Yet the narrowed view of when you could sue the state, such as the state police or other state officials in federal courts, is still confusing because Congress can repeal states’ immunity.

Except when they can’t.

But thanks to the Federalist Society and all the great Hamilton acolytes they nominated to the Court to enact judicial restraint and therefore create the illusion that the Court is weaker than the other two branches, decisions like the Seminole Tribe case took a broader view. They strengthened states’ immunity, confirming Alexander Hamilton’s rap plea that the court appears to be a comedy of errors when ruling with judgment and protecting institutions rather than people.  

I’ll be back on Monday. Thanks to those who have generously signed up for Even More Okay, the first edition is set to drop next Wednesday.

If you want to receive this bonus content, I’m offering a 20% discount for the first year until Memorial Day.

Have a great weekend!

Okay,

Chris

Blue is the well dressed Supreme Leader of our house.