The Conflict Of Subject-Jurisdiction v Physical Jurisdiction In The U.S. Constitution


I find it interesting that first act of the first U.S. Congress was to create the Federal Courts System. And that the first amendment to the U.S. Constitution (besides the ten contained in the Bill Of Rights) was to RENOUNCE the Supreme Court decision of Chisholm v Georgia.

We are informed by the narrator of the documentary series A DVD History Of The U.S. Constitution (produced by Centre Communications) that the language of this first post-Bill-Of-Rights amendment is “esoteric and obtuse.”  Yet, I’m not so sure that this is true. Maybe it only SEEMS that way because, if taken literally, the amendment strikes many people as a silly and unhelpful — perhaps even dangerous– amendment.

The Eleventh Amendment, in its entirety, reads as follows…

“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.”

On one level, the meaning is quite clear… It is telling us that U.S. Courts do not have jurisdiction over suits brought against a U.S. State by foreigners or by citizens from another U.S. State.

The obvious implication is that the rest of the jurisdiction given to the U.S. Courts by Article III Section II of the Constitution would still apply.

That would mean that cases brought by the U.S. Government against States could still be heard in Federal Courts (“the judicial power shall extend” […] “to controversies to which the United States shall be a Party”), as well as to those controversies “between citizens of different states.” And it would imply that the Federal Courts would retain ultimate jurisdiction whenever a State is the one bringing the lawsuit– be it against foreigners, other States, or the citizens of other States.

Strange as it sounds today, there is actually nothing said in either the original Constitution or in the Eleventh Amendment about the Federal Courts having any jurisdiction whatsoever in cases between a State and its citizens, or between citizens of the same State.  I’m not arguing that it wouldn’t make sense that the Supreme Court should have ultimate say concerning Justice in America and what is or is not the law of the land. Be we do plenty of things that don’t make good sense in this country, and I just don’t see where the Constitution actually gives the Federal Court System the right to review all cases arising in State courts.

I think I’m beginning to understand the underlying problem of jurisdiction in the Constitution. There is a built-in conflict between the physically derived jurisdiction which the original Constitution and the Eleventh Amendment give the Federal Courts (where the case is filed, who is suing, and who is being sued), and the subject jurisdiction which is scattered throughout much of the rest of the Constitution in the form of guarantees of rights, privileges, and immunities.

But getting back to the Eleventh Amendment’s supposed esoteric obtuseness… I think the confusion comes-in when people want to read-into the Amendment what is not there.  Perhaps they do this for good reason– say, in an effort to bring more order and logic to a legal system imperfectly founded by the authors of the Constitution.

The Eleventh Amendment has been interpreted to mean that States have “sovereign immunity” from being sued. According to this interpretation, State governments cannot be sued by people from other countries or other states– or even by they own citizens. However, the narrator of the DVD series remarks that the right of sovereign immunity enjoyed by the States has been crumbling steadily since the Civil War.


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