Amendment to provide federal jurisdiction when a state violates your federal rights
I submit for the consideration of this board the following amendment to the United States Constitution:
SECTION 1. The eleventh article of amendment to the Constitution of the United States is hereby repealed.
SECTION 2. 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, unless such a case arises under this Constitution, the Laws of the United States, or Treaties made, or which shall be made, under their Authority.
SECTION 3. 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 or Subjects of any Foreign State.
I’m not a lawyer and if you agree with the gist but have a better way of putting it on paper, I’m definitely open to revision. I am also very interested your general opinion of this amendment. I’ve put a rather winded rationale below, but the main subject of this thread is above.
As originally written, Article III Section 2 of the United States Constitution reads thus:
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 of admiralty and maritime Jurisdiction;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–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.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Supreme Court originally ruled that it had original (but not exclusive) jurisdiction for cases brought against a state by a citizen of another state (Chisholm v. Georgia, 1793). This seems like the correct interpretation of the Constitution as it was then, my construction of the text would be “The judicial Power shall extend to all Cases… between a State and Citizens of another State” and “In all Cases… in which a State shall be a Party, the supreme Court shall have original jurisdiction”.
Just over a year later the Congress proposed the Eleventh Amendment which reads:
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.
In 1795 enough states ratified the amendment to make it part of the Constitution. I think that was a mistake, as a state could now violate the Constitution without worrying about mere citizens bringing suit in federal court. There weren’t many limits on state powers at the time, but even then the Constitution prohibited a state from passing a bill of attainder, ex post facto law, or law impairing the obligation of contracts. The prohibition on bills of attainder was basically the closest thing to civil rights guaranteed to all citizens, and the Eleventh Amendment removed that right from federal jurisdiction.
It is true that one state could bring suit against another state (in federal court) for violating the Constitution. This is reasonable for some violations, such as a state impairing a contract it made with another state. But I imagine other states might not always have standing. If the Georgia legislature passed a law unilaterally sentencing one of its citizens to twenty years in the galleys, South Carolina would have to use more than commerce-clause-style logic to show standing.
It is also true that the federal government itself could bring suit, but only if Congress finds the Constitutional authority in some other provision to override state law (see the enumerated powers in Article I Section 8, also the Tenth Amendment), and only then if Congress actually passed a law that contradicts the state law. That pretty much limited the federal government to the commerce clause, which was taken to mean actual interstate trade until Gibbons v. Ogden (1824), the necessary and proper cause, which has rarely been used except for the national bank and in conjunction with the commerce clause, the counterfeit clause, and the naturalization and bankruptcy clause (used in Dred Scott v. Sandford, 1857).
What are we left with? Unless another state or the federal government can show standing, the state itself (via its courts) must decide whether its own actions violate the federal Constitution. Do you see the conflict of interest here?
Luckily, or perhaps unluckily, the state of Missouri and the Supreme Court failed to even broach the issue of jurisdiction in Cummings v. Missouri (1867). As a result the Supreme Court did in fact hear and decide a case brought by a citizen against his own state, and even overturned the state Supreme Court, despite (in my opinion) lacking jurisdiction. Presumably Missouri waived her Eleventh Amendment rights and voluntarily asked the Supreme Court to act as an arbiter, but I feel like the Eleventh Amendment left a loophole so contrary to reason and justice that Missouri did not even realize it existed.
Enter the Fourteenth Amendment, passed in 1869 with its due process clause:
SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
SECTION 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Now, the Fourteenth Amendment is one of the best if not the best guarantee of civil rights in our Constitution. Think what you may about incorporation of the bill of rights, it is unquestionable that the Fourteenth Amendment allowed Congress to protect the basic civil rights of black people through the Civil Rights Act of 1866. It cannot be denied that the United States has direct standing to sue states who violate a Constitutional act of Congress. Therefore could a black man bring suit against his state for curtailing his Constitutionally guaranteed right to due process of law?
The answer is no, and it remains no to this day for all men and women. The mere citizen may only bring suit in federal court when provided a private cause of action by the grace of Congress (see Fitzpatrick v. Bitzer, 1976); otherwise his only remedy is in the state courts. And as I said before, the state has a major potential conflict of interest here. Don’t take my word for it: see Hans v. Louisiana (1890) where the Supreme Court said a private citizen could not sue Louisiana for passing a law invalidating his state bonds, despite the Constitutional prohibition on state laws impairing the obligations of contracts; also Alden v. Maine (1999) where employees of the state of Maine alleged FLSA violations, only to be told the federal courts have no jurisdiction, the state courts say it’s barred by sovereign immunity, and the Supreme Court says it has no jurisdiction to review the state court’s claim of sovereign immunity.
Alden v. Maine 527 U.S. 706 (1999)
Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)
Cummings v. Missouri, 71 U.S. 277 (1867)
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)
Hans v. Louisiana 134 U.S. 1 (1890)
U.S. Const. amend. X
U.S. Const. amend. XI
U.S. Const. amend. XIV, sec 1 & 5
U.S. Const. art. I, sec 8
U.S. Const. art. III, sec 2