Response to “A Flickering Light in the Wilderness: Could the Recent ‘Plan of the Convention Cases’ Correct and Simplify the Supreme Court’s State Sovereignty Doctrine?”
The Madisonian Compromise and Article III are about providing a remedy to violations of federal constitutional rights. Congress has the authority to chip away at the federal courts or entirely eliminate their existence pursuant to Article III because there has always been general jurisdiction of the state courts. Law students tend to shy away from the Federal Courts course due to its notorious reputation of dense and extensive readings.
However, my determination to take the course stems from my 1L summer internship when I interned for Federal Magistrate Judge Donald L. Cabell. It was a game-changer, and I fell in love with the Federal Courts. That summer, I witnessed civil procedure in action. I was afforded the opportunity to research complex litigation issues while observing hearings and jury trials. The creativity of Federal Public Defenders and the unrelenting passion of the Assistant United States Attorneys left an indelible impression on me. I was hooked.
A substantial portion of Federal Courts revolve around the Eleventh Amendment, as did the majority of the second half of the semester in our Federal Courts class. Seemingly, the Supreme Court did not make it easy to interpret the Eleventh Amendment and its concomitant “state sovereign immunity” doctrine—that a state cannot be sued without its consent.
Luckily, Judge Richard Welch III made the seamless web of the Federal Courts digestible and a pleasure to learn from. He teaches the course using unforgettable hypotheticals and edge-of-your-seat anecdotes with his (sometimes repeat) encounters with Supreme Court Justices or his ties to Theodore Sedgwick!
Notably, the Eleventh Amendment is the first true amendment to the Constitution, a result of Chisholm v. Georgia only five years after the ratification of the Constitution. Chisholm concluded that the South Carolina executor could sue Georgia in federal Court. Many states were unhappy about federal intervention in their sovereignty. Federal Representative Theodore Sedgwick of Massachusetts proposed an amendment to the Constitution that sought to broaden its language. Although the proposal “fell on deaf ears,” Congress adopted the narrower language of the Eleventh Amendment.1 But consistency hasn’t been the flavor of the month with the Supreme Court, and there have been jaw-dropping inconsistencies among the long string of legal precedents. For instance, the Supreme Court's ruling in Alden v. Maine on state sovereign immunity swims against the stream of cases that assert that state courts' general jurisdiction serves as a fallback for addressing constitutional or federal statutory violations that cannot be resolved in federal court.2 I highly recommend reading Judge Welch’s article that navigates the implications of the “Plan of the Convention” cases, shedding light on the dark, tangled Eleventh Amendment state sovereign immunity doctrine.
1See Richard E. Welch, Jr., Theodore Sedgwick, Federalist: A Political Portrait 106, 107 n.2, 205 (1965).
2See Alden v. Maine, 527 U.S. 706 (1999).
