CHISHOLM V. GEORGIA
An early U.S. Supreme Court case holding that
Article III of the federal Constitution gives the
Court original jurisdiction over lawsuits between
a state government and the citizens of another
state, even if the state being sued does not consent.
The decision generated immediate opposition
from 12 states and led to the ratification of the
ELEVENTH AMENDMENT, which gives states SOVEREIGN
IMMUNITY from being sued in federal
court by citizens of other states without the consent
of the state being sued.
In 1777, Robert Farquhar, a Charleston,
South Carolina, merchant, sold goods to the
Georgia army for use in the Revolutionary War.
The next year Farquhar died, and in 1791, his
executor, Alexander Chisholm, brought suit to
collect the debt in the U.S. Circuit Court for the
District of Georgia. Plaintiffs sought 100,000
pounds in sterling silver for payment of the debt
plus interest. Notably, Associate Justice JAMES
IREDELL, who later filed the famous dissenting
opinion in the U.S. Supreme Court’s decision in
Chisholm v. Georgia, heard the arguments at the
district court level while discharging his duties
as a traveling circuit judge (in the early days of
the U.S. Supreme Court, justices performed the
double duty of deciding cases for the nation’s
highest court and riding circuit to hear cases in
the particular jurisdictions they were assigned).
In his opinion for the circuit court, Iredell
dismissed the suit for want of jurisdiction. If any
court had jurisdiction over the dispute, Iredell
said, it was the U.S. Supreme Court because
Article III of the federal Constitution gave only
the Supreme Court original jurisdiction over all
cases in which a state is named as a party.“It may
fairly be presumed,” Iredell wrote for the circuit
court, “that the several States thought it important
to stipulate that so awful and important a
Trial [to which a State is party] should not be
cognizable by any Court but the Supreme.”
Iredell’s conclusion was not challenged when the
Supreme Court heard Chisholm under its original
jurisdiction.
One reason Iredell’s lower court decision
was not challenged in the Supreme Court is that
Georgia would likely have been the only party
objecting to it, and Georgia refused to appear
before the nation’s high court after Chisholm
refiled his lawsuit there. Georgia feared that by
making an appearance at trial, the Supreme
Court would deem that appearance consent to
the Court’s jurisdiction over the dispute, something
Georgia denied the Court had power to
exercise. Nonetheless, in public pronouncements
the Georgia governor made clear that he
believed the Court had no jurisdiction because
the state had not consented to the suit in its
capacity as an independent and sovereign government.
Without such consent, the Georgia
legislature contended, the states are immune
from being sued in federal court, and Article III
did nothing to abrogate this immunity.
At oral argument, the Supreme Court thus
heard only from Chisholm’s attorney, EDMUND
RANDOLPH. According to Caleb Nelson in his
article on sovereign immunity, a courtroom
observer later reported that Georgia “was right in
not appearing to this action,” since Chief Justice
JOHN JAY “said from the Bench that had the State
pleaded it would have been an acknowledgement
of the jurisdiction of the Court.” Having heard
from only one party to the dispute, the Supreme
Court had no choice but to enter a default judgment
in Chisholm’s favor. Chisholm v. Georgia, 2
U.S. 419, 2 Dall. 419, 1 L.Ed. 440 (U.S. 1793).
In a 4–1 decision, the Court issued five separate
opinions. Justices Jay, JAMES WILSON,
WILLIAM CUSHING, and JOHN BLAIR JR. wrote
opinions concurring in judgment, while Justice
Iredell wrote the only dissent. The four concurring
justices agreed that final sovereignty resided
in the people of the United States, and at least for
the purposes of this lawsuit Georgia was not a
sovereign state. Wilson’s opinion drew most
attention among the concurring justices because
Wilson had been the delegate who had introduced
the Original Jurisdiction Clause at the
Constitutional Convention in Philadelphia. Not
surprisingly, Wilson said it was difficult for him
to imagine words that would “describe, with more precise accuracy, the cause now [pending]
before the tribunal.”
In his dissenting opinion Iredell observed
that through the JUDICIARY ACT OF 1789 Congress
had authorized federal courts to issue all
writs “necessary for the exercise of their respective
jurisdictions, and agreeable to the principles
and usages of law.” Judiciary Act of 1789, ch. 20,
§14, 1 Stat. 73, 81-82. Iredell interpreted “principles
and usages of law” to mean the COMMON
LAW of the several states, which Iredell said
embodied the common law as it existed in England
when America was first settled. Under the
English common law, the British Crown was sovereign
and could not be sued without its consent.
Iredell then concluded that the states enjoyed the
same sovereign immunity as the English King at
the time of the American settlement. Article III
did not alter the states’ immunity from being
sued without their consent, Iredell continued,
and “even if the Constitution would admit of the
exercise of such a power, a new law is necessary
for the purpose, since no part of the existing law
applies, this alone is sufficient to justify my determination
in the present case.”
The states’ reaction to the majority’s decision
in Chisholm was fast and furious. Each state
understood the implications of being forced to
pay Revolutionary War debt at a time when the
state treasuries were struggling to avoid insolvency.
The Massachusetts legislature led the way.
In a resolution that was circulated to the other
states, it condemned “a power . . . of compelling
a State to be made defendant in any Court of the
United States, at the suit of an individual.” The
resolution instructed the state’s lawmakers “to
obtain such amendments in the CONSTITUTION
OF THE UNITED STATES as will remove any clause
or article of the said Constitution which can be
construed to imply or justify a decision that a
State is compellable to answer in any suit by an
individual or individuals in any Court of the
United States.”Other states quickly followed suit.
Congress responded to this groundswell of
state activity by drafting the Eleventh Amendment.
It provides that “[t]he 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 . . .” In short, the
Eleventh Amendment sought to guarantee states
sovereign immunity from being sued in federal
court without their consent, the very right
denied to them in Chisholm. By 1798 the requisite
12 states had ratified the amendment. New
Jersey and Pennsylvania refused to ratify, while
Tennessee and South Carolina took no action.
Chisholm v. Georgia is considered the first
great case decided by the U.S. Supreme Court.
The case forced the Court to grapple with contentious
debates over FEDERALISM or the proper
balance of power between the state and federal
governments. It was heard by justices who not
only participated in the Constitutional Convention,
but by the one justice who had actually
drafted the very constitutional provision being
scrutinized. Finally, Chisholm v. Georgia is the
first Supreme Court case that was superseded by
a constitutional amendment.
FURTHER READINGS
Lee, Thomas H. 2002. “Making Sense of the Eleventh
Amendment: International Law and State Sovereignity.”
Northwestern University Law Review (spring).
Meyler, Joan. 2001. “A Matter of Misinterpretation, State
Soveriegn Immunity, and Eleventh Amendment Jurispurdence.”
Howard Law Journal 45 (fall): 77–154.
Nelson, Caleb. 2002. “Sovereign Immunity as a Doctrine of
Personal Jurisdiction.”Harvard Law Review 115 (April):
1561–1654.
Pfander, James E. 1998. “History and State Suability: An
‘Explanatory’ Account of the Eleventh Amendment.”
Cornell Law Review 83 (July): 1269–1382.
Strasser, Mark. 2001. “Chisholm, the Eleventh Amendment,
and Sovereign Immunity: On Alden’s Return to Confederation
Principles.” Florida State University Law
Review 28 (spring): 605–48.
CROSS-REFERENCES
Eleventh Amendment; Federalism; Sovereign Immunity.
