Amendment XI

Constitution Study with Douglas V. Gibbs, March 17, 2011

Amendment 11

The Judicial Branch was added almost as an after thought. The judiciary was originally designed to be the weakest of the three branches of government. The Anti-Federalists feared the judicial branch becoming a judicial oligarchy, and therefore the judicial branch was constructed to only apply the law to cases they hear. All opinions the judges may have of the law after reviewing the law was considered to be only opinion. Any changes to law, regardless of what the courts felt about the law, could only be made legislatively. However, soon after the Constitution and the Bill of Rights, fears of a tyrannical court arose, and so additional limits were placed on the federal courts by the 11th Amendment. No case against a state by citizens of another state, or by the citizens or subjects of a foreign state, shall be heard by a federal court.

The 11th Amendment changes the intent of Article III. As limited as the courts were supposed to be, the Founding Fathers realized the courts weren't limited enough, and as a result, the 11th Amendment wound up being ratified in 1795.

Federal judges maintained that the federal courts should have the power of judicial review, or the power to determine the constitutionality of laws. In response to the judicial urgings for the powers to judge the extent of the federal government's powers, in the Kentucky and Virginia Resolutions of 1798, Thomas Jefferson and James Madison warned us that giving the federal government through its courts the power of judicial review would be a power that would continue to grow, regardless of elections, putting at risk the all important separation of powers, and other much-touted limits on power. The final arbiters of the Constitution are not supposed to be the courts, argued these Founding Fathers who were believers in the limiting principles of the U.S. Constitution. The power of the federal government must be checked by state governments, and the people. The States and the People are the enforcers and protectors of the U.S. Constitution.

The problems of federal intrusion on the states via the federal court system arose in the case of Chisholm v. Georgia in 1793, which eventually led to the proposal, and ratification, of the 11th Amendment. A citizen of South Carolina sued Georgia for the value of clothing supplied by the merchant during the Revolutionary War. After Georgia refused to appear, claiming immunity as a sovereign state, as per the Constitution (Article III, Section 2) the federal courts took the case. The nationalist view of by the judges deemed that in this case Georgia was not a sovereign state, therefore the Supreme Court entered a default judgment against Georgia. What ensued was a conflict between federal jurisdiction and state sovereignty that reminded the anti-federalists of their fears of a centralized federal government consolidating the states, and destroying their right to individual sovereignty.

Realizing that the clause in Article III gave the federal courts too much power over state sovereignty, Congress immediately proposed the 11th Amendment in order to take away federal court jurisdiction in suits commenced against a state by citizens of another state or of a foreign state. This is the first instance in which a Supreme Court decision was superseded by a constitutional amendment, and evidence that the founders saw the legislative branch as being a more powerful part of government over the judiciary.

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