HANS v. LOUISIANA.
134 U.S.
1 (1890)
MR. JUSTICE BRADLEY, after stating the case as above,
delivered the opinion of the court.
The question is presented, whether
a State can be sued in a Circuit Court of the United
States by one of its own citizens upon a suggestion that
the case is one that arises under the Constitution or laws of the United States.
The ground taken is, that under
the Constitution, as well as under the act of Congress passed to carry it into
effect, a case is within the jurisdiction of the federal courts, without regard
to the character of the parties, if it arises under the Constitution or laws of
the United States, or, which is the same thing, if it necessarily involves a
question under said Constitution or laws.
The language relied on is that clause of the 3d article of the
Constitution, which declares that "the judicial power of the United States
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;" and the corresponding clause of the act conferring
jurisdiction upon the Circuit Court, which, as found in the act of March 3,
1875, 18 Stat. 470, c. 137, § 1, is as
follows, to wit: "That the Circuit Courts of the United States shall have
original cognizance, concurrent with the courts of the several states, of all
suits of a civil nature at common law or in equity, . . . arising under the
Constitution or laws of the United States, or treaties made, or which shall be
made, under their authority." It is said that these jurisdictional clauses
make no exception arising from the character of the parties, and, therefore,
that a State can claim no exemption from suit, if the case is really one arising
under the Constitution, laws or treaties of the United States. It is conceded that where the jurisdiction
depends alone upon the character of the parties, a controversy between a State
and its own [*10] citizens is not embraced within it; but it is
contended that though jurisdiction does not exist on that ground, it
nevertheless does exist if the case itself is one which necessarily involves a
federal question; and with regard to ordinary parties this is undoubtedly
true. The question now to be decided is,
whether it is true where one of the parties is a State, and is sued as a
defendant by one of its own citizens.
That a State cannot be sued by a
citizen of another State, or of a foreign state, on the mere ground that the
case is one arising under the Constitution or laws of the United States, is
clearly established by the decisions of this court in several recent
cases. Louisiana v. Jumel, 107 U.S.
711; Hagood v. Southern, 117 U.S. 52; In re Ayers, 123 U.S. 443.
Those were cases arising under the Constitution of the United States, upon laws complained of as
impairing the obligation of contracts, one of which was the constitutional
amendment of Louisiana
complained of in the present case.
Relief was sought against state officers who professed to act in obedience
to those laws. This court held that the
suits were virtually against the States themselves and were consequently violative of the Eleventh Amendment of the Constitution,
and could not be maintained. It was not
denied that they presented cases arising under the Constitution; but,
notwithstanding that, they were held to be prohibited by the amendment referred
to.
In the present case the plaintiff
in error contends that he, being a citizen of Louisiana, is not embarrassed by the
obstacle of the Eleventh Amendment, inasmuch as that amendment only prohibits
suits against a State which are brought by the citizens of another State, or by
citizens or subjects of a foreign State.
It is true, the amendment does so read: and if there were no other
reason or ground for abating his suit, it might be maintainable; and then we
should have this anomalous result, that in cases arising under the Constitution
or laws of the United States, a State may be sued in the federal courts by its
own citizens, though it cannot be sued for a like cause of action by the
citizens of other States, or of a foreign state; and may be thus sued in the
federal courts, although not allowing itself to be sued in its own courts. If this is the necessary [*11]
consequence of the language of the Constitution and the law, the result
is no less startling and unexpected than was the original decision of this
court, that under the language of the Constitution and of the judiciary act of
1789, a State was liable [***846] to be sued by a citizen of another State, or
of a foreign country. That decision was
made in the case of Chisholm v. Georgia, 2 Dall. 419, and created such a shock of surprise throughout the
country that, at the first meeting of Congress thereafter, the Eleventh
Amendment to the Constitution was almost unanimously proposed, and was in due
course adopted by the legislatures of the States. This amendment, expressing the will of the
ultimate sovereignty of the whole country, superior to all legislatures and all
courts, actually reversed the decision of the Supreme Court. It did not in terms prohibit suits by
individuals against the States, but declared that the Constitution should [**506] not be construed to import any power to
authorize the bringing of such suits.
The language of the amendment is that "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." The Supreme Court had construed the judicial power as extending to
such a suit, and its decision was thus overruled. The court itself so understood the effect of
the amendment, for, after its adoption, Attorney General Lee, in the case of
Hollingsworth v. Virginia, 3 Dall. 378,
submitted this question to the court, "whether the amendment did, or did
not, supersede all suits depending, as well as prevent the institution of new
suits, against any one of the United
States, by citizens of another State?" Tilghman and Rawle argued in the
negative, contending that the jurisdiction of the court was unimpaired in
relation to all suits instituted previously to the adoption of the
amendment. But, on the succeeding day,
the court delivered a unanimous opinion, "that the amendment being
constitutionally adopted, there could not be exercised any jurisdiction, in any
case, past or future, in which a State was sued by the citizens of another
State, or by citizens or subjects of any foreign state."
[*12]
This view of the force and meaning of the amendment is important. It shows that, on this question of the
suability of the States by individuals, the highest authority of this country
was in accord rather with the minority than with the majority of the court in the
decision of the case of Chisholm v. Georgia; and this fact lends additional
interest to the able opinion of Mr. Justice Iredell on that occasion. The other justices were more swayed by a
close observance of the letter of the Constitution, without regard to former
experience and usage; and because the letter said that the judicial power shall
extend to controversies "between a State and citizens of another
State;" and "between a State and foreign states, citizens or
subjects," they felt constrained to see in this language a power to enable
the individual citizens of one State, or of a foreign state, to sue another
State of the Union in the federal courts.
Justice Iredell, on the contrary, contended that it was not the
intention to create new and unheard of remedies, by subjecting sovereign States
to actions at the suit of individuals, (which he conclusively showed was never
done before,) but only, by proper legislation, to invest the federal courts
with jurisdiction to hear and determine controversies and cases, between the
parties designated, that were properly susceptible of litigation in courts.
Looking back from our present
standpoint at the decision in Chisholm v. Georgia, we do not greatly wonder
at the effect which it had upon the country.
Any such power as that of authorizing the federal judiciary to entertain
suits by individuals against the States, had been expressly disclaimed, and
even resented, by the great defenders of the Constitution whilst it was on its
trial before the American people. As
some of their utterances are directly pertinent to the question now under
consideration, we deem it proper to quote them.
The eighty-first number of the
Federalist, written by Hamilton,
has the following profound remarks:
"It has been suggested that
an assignment of the public securities of one State to the citizens of another,
would enable them to prosecute that State in the federal courts for the amount
of those securities; a suggestion which the following considerations prove to
be without foundation:
[*13]
"It is inherent in the nature of sovereignty not to be amenable to
the suit of an individual without its consent. This is the general sense and
the general practice of mankind; and the exemption, as one of the attributes of
sovereignty, is now enjoyed by the government of every State in the Union. Unless,
therefore, there is a surrender of this immunity in the plan of the convention,
it will remain with the States, and the danger intimated must be merely
ideal. The circumstances which are
necessary to produce an alienation of state sovereignty were discussed in
considering the article of taxation, and need not be repeated here. A recurrence to the principles there
established will satisfy us, that there is no color to pretend that the state
governments would, by the adoption of that plan, be divested of the privilege
of paying their own debts in their own way, free from every constraint but that
which flows from the obligations of good faith.
The contracts between a nation and individuals are only binding on the
conscience of the sovereign, and have no pretension to a compulsive force. They confer no right of action independent of
the sovereign will. To what purpose would
it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done
without waging war against the contracting State; and to ascribe to the federal
courts by mere implication, and in destruction of a pre-existing right of the
state governments, a power which would involve such a consequence, would be
altogether forced and unwarrantable."
The obnoxious clause to which Hamilton's argument was
directed, and which was the ground of the objections which he so forcibly met,
was that which declared that "the judicial power shall extend to all . . .
controversies between a State and citizens of another State,
. . . and between a State and foreign states, citizens or
subjects." It was argued by the opponents of the Constitution that this
clause would authorize jurisdiction to be given to the federal courts to
entertain suits against a State [***847] brought by the citizens of another State, or
of a foreign state. Adhering to the mere letter, it might be so; and so, in
fact, the Supreme Court held in Chisholm v.
[*14] Georgia; but looking at the
subject as Hamilton did, and as Mr. Justice Iredell did, in the light of
history and experience and the established order of things, the views of the
latter were clearly right, -- as the people of the United States in their sovereign
capacity subsequently decided.
But Hamilton was not alone in protesting [**507] against the construction put upon the
Constitution by its opponents. In the Virginia convention the
same objections were raised by George Mason and Patrick Henry, and were met by
Madison and Marshall as follows. Madison said: "Its
jurisdiction [the federal jurisdiction] in controversies between a State and
citizens of another State is much objected to, and perhaps without reason. It is not in the power of individuals to call
any State into court. The only operation
it can have is that, if a State should wish to bring a suit against a citizen,
it must be brought before the federal court.
This will give satisfaction to individuals, as it will prevent citizens
on whom a State may have a claim being dissatisfied with the state courts. . .
. It appears to me that this [clause]
can have no operation but this -- to give a citizen a right to be heard in the
federal courts; and if a State should condescend to be a party, this court may
take cognizance of it." 3 Elliott's Debates, 2d ed. 533. Marshall,
in answer to the same objection, said: "With respect to disputes between a
State and the citizens of another State, its jurisdiction has been decried with
unusual vehemence. I hope that no
gentleman will think that a State will be called at the bar of the federal
court. . . . It is not rational to
suppose that the sovereign power should be dragged before a court. The intent is to enable States to recover
claims of individuals residing in other States. . . . But, say they, there will be partiality in it
if a State cannot be defendant -- if an individual cannot proceed to obtain
judgment against a State, though he may be sued by a State. It is necessary to be so, and cannot be
avoided. I see a difficulty in making a
State defendant which does not prevent its being plaintiff" Ib. 555.
It seems to us that these views of
those great advocates and defenders of the Constitution were most sensible and
just; and [*15] they apply equally to the present case as to
that then under discussion. The letter
is appealed to now, as it was then, as a ground for sustaining a suit brought
by an individual against a State. The
reason against it is as strong in this case as it was in that. It is an attempt to strain the Constitution
and the law to a construction never imagined or dreamed of. Can we suppose that, when the Eleventh
Amendment was adopted, it was understood to be left open for citizens of a State
to sue their own state in the federal courts, whilst the idea of suits by
citizens of other states, or of foreign states, was indignantly repelled? Suppose that Congress, when proposing the
Eleventh Amendment, had appended to it a proviso that nothing therein contained should prevent a State from being sued by its own
citizens in cases arising under the Constitution or laws of the United States:
can we imagine that it would have been adopted by the States? The supposition that it would is almost an
absurdity on its face.
The truth is, that the cognizance
of suits and actions unknown to the law, and forbidden by the law, was not
contemplated by the Constitution when establishing the judicial power of the United States. Some things, undoubtedly, were made justiciable which were not known as such at the common law;
such, for example, as controversies between States as to boundary lines, and
other questions admitting of judicial solution.
And yet the case of Penn v. Lord Baltimore, 1 Ves. Sen. 444, shows that
some of these unusual subjects if litigation were not unknown to the courts
even in colonial times; and several cases of the same general character arose
under the Articles of Confederation, and were brought before the tribunal
provided for that purpose in those articles.131 U.S. App. 1. The establishment of this new branch of
jurisdiction seemed to be necessary from the extinguishment of diplomatic
relations between the States. Of other
controversies between a State and another State or its citizens, which, on the
settled principles of public law, are not subjects of judicial cognizance, this court has often declined to take jurisdiction. See Wisconsin
v. Pelican Ins. Co., 127 U.S.
265, 288, 289,
and cases there cited.
[*16]
The suability of a State without its consent was a thing unknown to the
law. This has been so often laid down
and acknowledged by courts and jurists that it is hardly necessary to be
formally asserted. It was fully shown by
an exhaustive examination of the old law by Mr. Justice Iredell in his opinion
in Chisholm v. Georgia;
and it has been conceded in every case since, where the question has, in any
way been presented, even in the cases which have gone farthest in sustaining
suits against the officers or agents of States.
Osborn v. Bank of United
States, 9 Wheat.
738; Davis v. Gray, 16 Wall. 203; Board of Liquidation
v. McComb, 92 U.S. 531; United States v. Lee, 106
U.S. 196; Poindexter v. Greenhow, 109 U.S. 63;
Virginia Coupon Cases, 114 U.S. 269. In all these cases the effort was to show,
and the court held, that the suits were not against
the State or the United States,
but against the individuals; conceding that if they had been against either the
State or the United States,
they could not be maintained.
Mr. Webster stated the law with
precision in his letter to Baring Brothers & Co., of October 16, 1839. Works, Vol. VI, 537, 539. "The security for state loans," he
said, "is the plighted faith of the State as a political community.It rests on the same basis as other contracts
with established governments, the same basis, for example, as loans made by the
United States under the authority or Congress; that is to say, the good faith
of the government making the loan, and its ability to fulfil
its engagements."
In Briscoe v.
Bank of Kentucky,
11 Pet. 257, 321, Mr. Justice McLean, delivering the opinion of the court,
said: "What means of enforcing payment from the State had the holder of a
bill of credit? It is said by the
counsel for the plaintiffs, that he [***848] could have sued the State. But was a State liable to be sued? . . . No sovereign State is liable to be sued
without her consent. Under the Articles
of Confederation, a State could be sued only in cases of boundary. It is believed that there is no case where a
suit has been brought, at any time, on bills of credit [**508] against a State; and it is certain that no
suit could have been maintained on this ground prior to the Constitution."
[*17]
"It may be accepted as a point of departure unquestioned,"
said Mr. Justice Miller, in Cunningham v. Macon & Brunswick Railroad, 109
U.S. 446, 451, "that neither a State nor the United States can be sued as
defendant in any court in this country without their consent, except in the
limited class of cases in which a State may be made a party in the Supreme
Court of the United States by virtue of the original jurisdiction conferred on
this court by the Constitution."
Undoubtedly a State may be sued by
its own consent, as was the case in Curran v. Arkansas et al., 15 How. 304, 309, and in Clark v. Barnard, 108 U.S. 436,
447.The suit in the former case was prosecuted by virtue of a state law which
the legislature passed in conformity to the constitution of that state. But this court decided, in Beers et al. v. Arkansas, 20 How. 527, 529, that the State could repeal that law at any
time; that it was not a contract within the terms of the constitution
prohibiting the passage of state laws impairing the obligation of a
contract. In that case the law allowing
the State to be sued was modified, pending certain suits against the State on
its bonds, so as to require the bonds to be filed in court, which was objected
to as an unconstitutional change of the law.
Chief Justice Taney, delivering the opinion of the court, said: "It
is an established principle of jurisprudence in all civilized nations that the
sovereign cannot be sued in its own courts, or in any other, without its
consent and permission; but it may, if it thinks proper, waive this privilege
and permit itself to be made a defendant in a suit by individuals, or by
another State. And as this permission is
altogether voluntary on the part of the sovereignty, it follows that it may
prescribe the terms and conditions on which it consents to be sued, and the
manner in which the suit shall be conducted, and may withdraw its consent
whenever it may suppose that justice to the public requires it. . . . The prior law was not a contract. It was an ordinary act of legislation,
prescribing the conditions upon which the State consented to waive the
privilege of sovereignty. It contained no stipulation that these regulations
should not be modified afterwards if, upon experience, it was found that
further provisions were [*18] necessary to protect the public interest; and
no such contract can be implied from the law, nor can this court inquire
whether the law operated hardly or unjustly upon the parties whose suits were
then pending. That was a question for
the consideration of the legislature.
They might have repealed the prior law altogether, and put an end to the
jurisdiction of their courts in suits against the State, if they had thought
proper to do so, or prescribe new conditions upon which the suits might still
be allowed to proceed. In exercising
this power the State violated no contract with the parties." The same
doctrine was held in Railroad Company v. Tennessee, 101 U.S. 337, 339; Railroad
Company v. Alabama, 101 U.S. 832; and In re Ayers, 123 U.S. 443, 505.
But besides the presumption that
no anomalous and unheard-of proceedings or suits were intended to be raised up
by the Constitution -- anomalous and unheard of when the Constitution was
adopted -- an additional reason why the jurisdiction claimed for the Circuit
Court does not exist, is the language of the act of Congress by which its
jurisdiction is conferred. The words are these: "The circuit courts of the
United States shall have original cognizance, concurrent with the courts of the
several States, of all suits of a civil nature at common law or in equity, . .
. arising under the Constitution or laws of the United States, or
treaties," etc. -- "Concurrent with the courts of the several
States." Does not this qualification show that Congress, in legislating to
carry the Constitution into effect, did not intend to invest its courts with any
new and strange jurisdictions? The state courts have no power to entertain
suits by individuals against a State without its consent. Then how does the Circuit Court, having only
concurrent jurisdiction, acquire any such power? It is true that the same qualification existed
in the judiciary act of 1789, which was before the court in Chisholm v. Georgia, and
the majority of the court did not think that it was sufficient to limit the
jurisdiction of the Circuit Court.
Justice Iredell thought differently.
In view of the manner in which that decision was received by the
country, the adoption of the Eleventh Amendment, the light of history and the
reason of the thing, we [*19] think we are at liberty to prefer Justice Iredell's views in this regard.
Some reliance is placed by the
plaintiff upon the observations of Chief Justice Marshall, in Cohens v. Virginia,
6 Wheat. 264, 410. The Chief Justice was there
considering the power of review exercisable by this court over the judgments of
a state court, wherein it might be necessary to make the State itself a
defendant in error. He showed that this
power was absolutely necessary in order to enable the judiciary of the United States to take cognizance of all cases
arising under the Constitution and laws of the United States. He also showed that making a State a
defendant in error was entirely different from suing a State in an original
action in prosecution of a demand against it, and was not within the meaning of
the Eleventh Amendment; that the prosecution of a writ of error against a State
was not the prosecution of a suit in the sense of that amendment, which had
reference to the prosecution, by suit, of claims against a State. "Where," said the Chief Justice,
"a State obtains a judgment against an individual, and the court rendering
such judgment overrules a defence set up under the
Constitution or laws of the United States, the transfer of this record into the
Supreme Court for the sole purpose of inquiring whether the judgment violates
the Constitution of the United States, can, with no propriety, we think, be
denominated a suit commenced or prosecuted
[***849] against the State whose
judgment is so far reexamined. Nothing
is demanded from the State. No claim
against it of any description is asserted or prosecuted. The party is not to [**509] be restored to the possession of any thing. .
. . He only asserts the constitutional
right to have his defence examined by that tribunal
whose province it is to construe the Constitution and laws of the Union. . . . The
point of view in which this writ of error, with its
citation, has been considered uniformly in the courts of the Union, has been
well illustrated by a reference to the course of this court in suits instituted
by the United States. The universally received opinion is that no
suit can be commenced or prosecuted against the United States; that the judiciary
act does not authorize such suits.
[*20] Yet writs of error,
accompanied with citations, have uniformly issued for the removal of judgments
in favor of the United
States into a superior court. . . . It has never been suggested that such writ of
error was a suit against the United
States, and, therefore, not within the
jurisdiction of the appellate court."
After thus showing by
incontestable argument that a writ of error to a judgment recovered by a State,
in which the State is necessarily the defendant in error, is not a suit
commenced or prosecuted against a State in the sense of the amendment, he
added, that if the court were mistaken in this, its error did not affect that
case, because the writ of error therein was not prosecuted by "a citizen
of another State" or "of any foreign state," and so was not
affected by the amendment; but was governed by the general grant of judicial
power, as extending "to all cases arising under the Constitution or laws
of the United States, without respect to parties." p. 412.
It must be conceded that the last
observation of the Chief Justice does favor the argument of the plaintiff. But the observation was unnecessary to the
decision, and in that sense extra judicial, and though made by one who seldom
used words without due reflection, ought not to outweigh the important
considerations referred to which lead to a different conclusion. With regard to the question then before the
court, it may be observed, that writs of error to judgments in favor of the
crown, or of the State, had been known to the law from time immemorial; and had
never been considered as exceptions to the rule, that an action does not lie
against the sovereign.
To avoid misapprehension it may be
proper to add that, although the obligations of a State rest for their
performance upon its honor and good faith, and cannot be made the subjects of
judicial cognizance unless the State consents to be sued, or comes itself into
court; yet where property or rights are enjoyed under a grant or contract made
by a State, they cannot wantonly be invaded.
Whilst the State cannot be compelled by suit to perform its contracts,
any attempt on its part to violate property or rights acquired under its
contracts, [*21] may be judicially resisted; and any law
impairing the obligation of contracts under which such property or rights are
held is void and powerless to affect their enjoyment.
It is not necessary that we should
enter upon an examination of the reason or expediency of the rule which exempts
a sovereign State from prosecution in a court of justice at the suit of
individuals. This is fully discussed by
writers on public law. It is enough for us to declare its existence. The legislative department of a State
represents its polity and its will; and is called upon by the highest demands
of natural and political law to preserve justice and judgment, and to hold
inviolate the public obligations. Any
departure from this rule, except for reasons most cogent, (of which the
legislature, and not the courts, is the judge,) never fails in the end to incur
the odium of the world, and to bring lasting injury upon the State itself. But to deprive the legislature of the power
of judging what the honor and safety of the State may require, even at the
expense of a temporary failure to discharge the public debts, would be attended
with greater evils than such failure can cause.
The judgment of the Circuit Court
is
Affirmed.
CONCURBY:
HARLAN
CONCUR:
MR. JUSTICE
HARLAN concurring.
I concur with the court in holding
that a suit directly against a State by one of its own citizens is not one to
which the judicial power of the United
States extends, unless the State itself
consents to be sued. Upon this ground
alone I assent to the judgment. But I
cannot give my assent to many things said in the opinion. The comments made upon the decision in
Chisholm v. Georgia
do not meet my approval. They are not
necessary to the determination of the present case. Besides, I am of opinion that the decision in
that case was based upon a sound interpretation of the Constitution as that
instrument then was.