Gates v. Collier Brief for Amicus Curiae

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Gates v. Collier Brief for Amicus Curiae NAACP Legal Defense and Educational Fund, Inc.

Topic
- Criminal Justice
Notable Person
- Jack Greenberg
Organization
- NAACP Legal and Educational Defense Fund, Inc.
Matter
- Gates V. Collier
Case
- Gates V. Collier
U.S. state
- Mississippi
Collection
- Brief Collection
Taxonomy
Identifier
- 6eb3e4e5-b29a-ee11-be36-6045bdeb8873

Cite this item

Brief Collection, LDF Court Filings. Gates v. Collier Brief for Amicus Curiae, 1974. 6eb3e4e5-b29a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8217ae41-0f2e-4529-bf97-b701efa62d4a/gates-v-collier-brief-for-amicus-curiae. Accessed July 02, 2025.

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••

IN THE IITI TED STATES COURT OF APPEALS
FOR TI?E FIFTH CIRCUIT

No. 73-1790

: v • 17 r-T1 rr 7 2 til . 1

Pis in ti f f s—Stsoslleep

c ■_

r-rsoi:
V .

* J i 1 1J J i itTi -Ol Vi 1 ( O t c3 -l.«

Dc1 X Ol idci J i c r-l O X S il C 3

On .Apr'Ssi From The
Courts For The
Of Mississippi

District

United States District
Northern District
And The Middle
Of Alabama

JACK CIwFMREnQPn ■.* r-i
- j . • • _ sci:f vpperO-, -■itc 2030‘I n *» •» • •. K-. -• — 1 «-a>

Ne\ Yard, N.Y. 10019
Com.ncl For Amicus Cur

TABLE.. OF COE TENTS

Pane

STATEMENT OF THE ISSUE ° ° ° J

STATEMENT OF THE C7.SE ......................... .. 3
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . 5

ARGUMENT ° * . . . . . . . . o

Neither the Eleventh Amendment nor sovereign
• immunity may.-be asserted to prevent effective
relief for a violation of the Thirteenth,
Fourteenth or Fifteenth Amendments . . . . . . . . . . 8

A. The. specific and more recent provisions
of the Reconstruction Amendments -must pre
vail over sovereign immunity and the
earlier general language of the Eleventh
Amendment ^

B. Sovereign immunity has no application
to activities which the Reconstruction
Amendments placed outside the sovereign
power of the States. . . . . . . . . . . . . . . . 13

C. The purposes of sovereign immunity and.
: the Eleventh Amendment are inconsistent
with the purposes of the Reconstruction
Amendments. . . . . . . . . . . . ........... . . . . 1 9
1. Reliance on state enforcement................ . 20
2. Problems of federal enforcement . . . . . . . . 26
3. Remedial purpose of the Recon

struction Amendments ..................... . . . 3 0
CONCLUSION o • o • • o e 37

- i -

TABLE OF AUTHORITIES

Page
Cases

7\bbott v . Thetford,

Barron v . J> rs 1 f- ■? r- r> y~ o

Eivens v . Six Unhno'
U.S. o o oS) w/ O (1971) .

c « o

an lea. Narco

Jradlev v. School

:s Agents, ' 40 3,

City of Richmond, 40
L. Ed. *-> <jl 4 ̂ o f o 1̂974) . . . . . . .

Brown v. Board of Education, 347 U.S. 423
Chicago, etc. R.R. Co
Union, 402 U.S. 570 (1371) ..........

Chisholm v. Georgia, 2 U.S. (2 Dali.) 419 (1973) , . . .
Cohens v. Virginia, 19 U.S. 254 (1821)
Cooper v. Allen, 467 F.2d 836, 841 (5th Cir. 1972) . . .
Davenport v. Elisabeth, 43 H.J.L. 149 • o o • o • e

Dillenberger v. Florida Probation and Parole Commission,
Civ. No. 73-66 (N.D. Fla. Tallahassee Div.) ...........

Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857)
Dugan v. Rani;, 372 U.S. 609 (1963)
Edelman v. Jordan, 42 U.S. 1. Week 4419, 4432, n.2
(1.974) (opinion of Justice Marshall) . . . . . .

Employees v. Missouri Public Health Department, 411
U.S. 279 (1973) . a o u o « o- • o • O O O O O G O

Ex Parte Young, 209 U.S. 123 (1908) . . . . . . . . . .

Fairmont Cremery Co. v. Minnesota, 274 U.S. 1 (1927) . .

2
17

38
30

5,12
3,20,27

7,16
38

2
17

»
1 0

4,9

12,15,31
4,5,9,10,11

4
Farmers Loan & Trust Co. v. Kursch, 5 IT.Y. 5 53

Pa ere:

Foreman Shoe' Co. v. F. !•!.
554, pff'd 191 111. 155,

Levis & Co., 92 111. App.
90 N.E. 971 . - . o . . .

Gates v. C o l l i e r ........................
General Gil Company v. Crain, 209 U.S. 211 (1908)

4
9,32

Glass v. Great Southern Ins. Co.,
(1943) (Tex. Cir. Am.) . . . .

170 S.VJ. 2d 247

Graham v. Marshall, Civ. a'— /o— /7 (_s.F. .'x«. >
• C . . . O * * ' * * * * ’ * * * * '

Caward County, 37 7
.1 aha sees Div.)

Griffin v. School
U.S. 2.13 v 1 9 o )

ir-L _ n m

L T2 n . r \ •> T tr\\ . I _C- . O . *• v ..i si ana, 1 ■l) v2 . ?:> •- 1

Hawaii v . C 'or don, 373 U « S . 57
TA r» r. T 1'. Griffin 5 p c i t : *

Lee v. Sour
(5th Cir.

.. ujrn I Jo.;- r S r r e s Co:

Liberies v. Daniel, No. 73-•C-
Marbury v. Madison, 1 U.S. (C

c c V o

(1963) .
(U.S.) 151 o

c\ i a a

* • • e ®

Missouri v 0 Iowa, 7 Eov;. 660, 681 (18-*:>) .
Mitchum v. Foster, 407 U.S. -225 (1972) . .
Monroe v. Pape, 365 U.S. 167 (1961) . ° *

7,10,
11
-> -j^ .1 ,, .. J

1 0 , 1 1

38
3

31
4

17
23,34,

individual yer.hers of San A n t o n io Conservation-
Society v. Texas ilicjnv:ay Department, to. 74—12r>l . . . . . .

Korvood v. Harrison, He. vre 70-53-K (K.D. M i s s . ) ......... •
0shorn v. too Hanh or m e Uniteo , .̂2 U. S«
(9 Wheat.) 7 39 ( 1 8 2 4 ) .................. ..

Parden v. Terminal R.P.. of Aj.sbama Docks Department,
377 U.S*. 134 (1964) . . . * .....................
>erez v. Ledesma, 401 U.S. 82 (1971)

11
10

i n

■ 03

perry v. State Department of Social Security, 71
S.D. 247, 23 N.w". 2d 279 ( 1 9 4 6 ) ......... .. • •

State ex rel. Burtrum v. Smith, 357 No. 134, 206
S.W. 2d 558 o . . . . . . c • * o o o

United States v. Peters, 9 U.S. (5 Crunch) 115 (1809) . .
Vanguard Justice Society v. Mandel, No. 74-71-K (D. Md.)
Virginia Coupon Cases, 114 U.S. 2G9 (1885) . . • • ° • «
Wainwright v. State of Florida Department of
Transportation, Civ. No. 73-42 (N.D. Fla. Mariana Div.)

Zwickler v. Koota, 389 U.S. 241 (1967) o c c o • e

5
28

n
O

2
17

• ■ • t o

Sen i u f r _ ! d t o n s
Civil Rights hot of 1871 . . .
Cxv .ri Rights a c t o .L 6 6
Civil Rights Cases, 109 U.S. 7 (1883) . . . .
Emergency School Aid Act of 1972, Section 718
Miss. Code Anno. §1573 . . . . . . . . . . .
42 U.S.C. §1981 . . . . . . . . . . . . . .
42 U.S.C. §1983 . . . . . . . . . . . . . .
12 Stat. 765
14 Stat. 9 ............................. . . .
17 Scat. 2 7 . . . » . . * . .

6 C C

O • O •

2 3
17,29

31
2
5

5,31
5, 31

25
25
2 9

Other Authorities
Cong. Globe 39th Cong. 1st Seas,
Cong. Globe, 42nd Cong. 1st Sess.
The Federalist, No. 16 .........
The Federalist, No. 31 .........

. 18,36
14

. 15,27

The Federalist, No. 8 1 ................* .
Jacobs, The Eleventh Amendment and Sovereign
Immunity (1972) . . . . . ................

Morrison, The oxford History of the American people (1965). .
Schlesinger and Israel, The state of the union
Messages.of the Presidents (1966)
ten Brook, Equal Under Lav; (19S5) . . ................- . . .
Graham "The. ‘Conspiracy Theory' of the Fourteenth Amend
ment, 11 47 Yale L.J. 371 (1933) . « .

Graham., “The Early Antis! a very Backgrounds of the
Fourteent;i Amendment", 1950 his. L„ Rev. 47 9 . . . . . . . .

. i
;

Page
20 I i

I!
9,11,15,
28,32
28

24
32,34

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 73-1790
Z ARE Til GATES, et al.,

pla intif £ s-Appol3.ee s

v .
p QT ,t , te r . e 7 . a 1

Defendants-Appellants

}>.o.

-p. *i . j ._ :. ' j£ «c - t - - - - r> 1

V ,
:s oi et

te-11 ants

Qn Arpeal Frcai The United States District
Courts For .The Northern District
Of Mississippi And The Middle

District Of Alabama

BRIEF
LEGAL
INC.

FOR
d e f :

AMICUS CURIAE ■ p- c v? j. s p T_~cr\ m
n

s t a t e m e n t o f i n t e r e s t

The Amicus, the N.A.A.C.P. Legal Defense and Educational
Fund, Inc., are counsel in Abbott v. Thetford, No. 73-1894. The
relief if any to be ordered on appeal in Abbott may include bach
wages or counsel fees, both of which might raise questions under
the Eleventh Amendment similar to those
cases. By letter dated August 6 , 1974,
in Abbott to file amicus briefs in these
nitted in response to that letter.

raised in the instant
this Court invited counsel
cases. This brief is sub-

In addition
this circuit vhi:
i n s t a n t a p :r e a 1 .

: Amicus is counsel in other litigation in
•.ight v.-ell be controlled by the outcome of

in N o ~ 1 Fa m i s e r, No. UC 70-53-N (IT.D. Miss.), the
• Amicus together with local counsel are seeking counsel fees
against state defendants under Section 718 of the Emergency School
Aid Act of 1973, which expressly authorises the award of counsel
fees in certain school litigation "against . . . a State (or any
agency thereof) . 11 The central issue in Norwood is whether section
718 is unconstitutional in light of the Eleventh Amendment. In
Dillenberaer v. Florida Probation and Parole Commission, Civ. No.
73-66 (N.D. Fir..); V7sinveriqhfc v. State of Florida Department of
Transportatio: , Civ. No
Civ. No. T-73-77 (N.D.
under Title VII of the
crimination in er.pl oyrr.c
Title VII is ur.ccnstitu

. 7 3-42 (N.D. Fla.); and Graham v._Marshall,
Fla.), seeking back pay and counsel fees
1964 Civil Rights Act for racial dis-
nt, the state of Florida maintains that
urcnal uiiuOi LIiw tiluvwnch i-imenciruent. A

similar argument has been advanced by the state of Mississippi in
Peoues v. .Mississippi State Employ i ^ ^ No. 72-4-S (N.D.
Miss.) by the State of Illinois in I^ej^^yn_JIaniel, No. 73-C-
3217 (N.D. 111.) and by the state of Maryland in Vanquard Justice
Society v. Mandel, No. 74-71-I< (D. M d.) .

STATEMENT OF THS IS SITE -

Are the remedies available to enforce the Fourtee.^h Amen-..

•ment limited by the Eleventh Aiaendmcnt?

gTATE!'g?.NT OF THE..*3A»SE.

Both of the instant cases were commenced to vindicate rights
protected by the Fourteenth Amendment. *>« District Courts con-
eluded that the defendants' operation of certain state prisons m

Mississippi and Alabama involved racial discrimination, in
violation of the Equal protection clause, and cruel and unusual
punishment, in violation of the Due process clause which in
corporates the Eighth Amendment. The District Courts enjoined
this unlawful conduct, and awarded plaintiffs costs and attorneys

fees against the states.
Alabama and Mississippi maintain that the District Court lacked

authority to award such costs and fees, even if necessary to remedy
such violations of the Fourteenth Amendment, because of the pro
visions of the Eleventh Amendment. The Amicus contends, as is more
fully set out below, that the limitations of the Eleventh Amend
ment do not apply to litigation under the Fourteenth Amendment,

■particularly where application of those limitations would prevent
the award of full and complete relief. The Supreme Court on two
occasions Las expressly declined to decide this question. Ex
Parte young, 209 U.S. 123, 150 (1903); Edolman u. Jordan, 42
U.S.L.V7. 4419, 4432, n.2 (1974) (opinion of Justice Marshall).

This brief does not discuss the other question raised by
these appeals. whether any award of legal fees is within the pro-
iiijiuoii oi" una .u3.evenL.n A-rioncm.'i'̂ -no. Ti--- Supreme Couru has msec

hr-t in central an. ? war d of costs is proper acs.inst ac 1 e a r
st= e
Co. v
cos

, “ c* " . r n ct r. q cwent. Fairmont Cremer
ho practice of awarding
cr.tury. See Missouri v

Ip-q, 7 G-30, Gel (1849). Vine re, as hero, attorneys fees are
properly includable as an item of costs, no reason is apparent
■why such costs should be treated differently from other items,
such as cache ting and witness fees, printing, or transcripts.
Fairmont Cretnery would permit the award of counsel fees in a case
which did not involve Fourteenth Amendment ..rights, such as
Named Individual Members of San Antonio Conservation Society v.
Ep 0 y* n o >v Department, No. 74—1231.

of Mississippi was not a named defendant
in Cs h O S \■. Co : o i-o 1 C «v r 1 - ci S £um a a C O ii U Jcol of the subs tantive
lit i.c? tier: as i-1L-4le real ]P £rt \r n O t n f- 3 V* O £.j_ It is w ell es tablish
t l i Cif.L such a real party in interes t, when i'; chooses to li tigate
its rrgnt-: in the name of O named par '-J / m:=.y be cha rged w ith the
cos ts cf •.:he ac t ion. ii0PQ C l * son v . Gr an,, 5 Pet. ( o N V v-/ • • ; 151) .

See e .g . Farmers Loan & Trust C o . v. Kursch 5 N.Y. 558; Foreman

Shoe Co. v, F. H. Lewis & Co., 92 111. App. 554, aff'd 191 111.
155, 90 N.E. 971; Davenport v. Elizabeth, 4 3 N.J.L. 149; State e;:
rel. Burt rum v_. Smith, 357 No. 134, 206 S.W. 2d 558. compare
Miss. Code Anno. §1573. States which voluntarily defend liti
gation such as this on the merits waive any immunity from costs
which they might have" had had they assumed no role in the liti
gation. See e.g. perry v. State Dept, of Social Security, 71 S.D.
247, 23 N.W. 2d 279 (1946); Chicago, etc, R . R. Co. v. Nu.ndt, 56 S
530, 229 N.N. 394 (1930); Class v . Great Southern Ins. Co., 170
S.W .2d 247 (1943) (Tex. Civ. App.).

SUMMARY OF ARGUMENT

These actions arose under federal statutes enacted to pro
tect rights arising under the Fourteenth Amendment, particularly
the guarantees of equal protection‘and due process of law. 42
U.S.C. §§1981, 1983.

The Supreme Court has long recognized that neither sovereign
immunity nor the Eleventh Amendment should be allowed, to prevent
enforcement of the Reconstruction Amendments. The legal fiction
of Ex Parte Young, 209 U.S. 123 (1908), was established to avoid a
direct conflict between the Eleventh Amendment and the Thirteenth,
Fourteenth and Fifteenth Amendments. When a conflict cannot be
avoided in this manner the need to enforce the more recent and
specific provisions of the Reconstruction Amendments must prevail

over the Eleventh Amendment.
Sovereign immunity, as its eighteenth century and recent

supporters conceded, is merely a procedural protection for the
sovereign power of the states. It allows the states to-conduct
their affairs without threat of judicial interference. That
immunity has no application, however, to state discrimination
which violates the Reconstruction Amendments, for those Amend
ments stripped the states of their sovereign power to engage in
such d i. sc r im in a t ion.

The primary justification for
E1 c v e n t h 1 u a o r; c v. i o n t h a s t radii i o n a 1

state or federal, could be relied

sovereign immunity and the
ly been th£it the sovereign,
on to do justice to all cla

ants without judicial compunction. The Reconstruction Amendments,
however, wore founded on the prcni.i se that the states could not be
trusted to respect and protect the basic rights of freedmen and
others.

Hamilton and other federalists who supported passage of. the
Eleventh Amendment were concerned that Federal judicial control
over the states might lead to serious and even armed confrontation
between the states and the federal government when enforcement
was sought. But the congress which framed the Reconstruction
Amendments was not unwilling to resort to such drastic measures
if necessary. When the Amendments were enacted the country had
just ended a civil war over the principles contained, therein,
and federal troops were stationed throughout the south to pro
tect freedmen and others. It is hardly likely that those who

framed the Amendments had great compunctions about resort to
measures -which had troubled Hamilton and others seventy years
earlier.

If the states could assert, sovereign immunity or the Eleventh
Amendment to bar effective relief, aggrieved citizens would have
a right without a remedy. While such a situation may be ap
propriate under special circumstances, it is intolerable where
the riohts- involved arise under the Reconstruct ion Amendments.
Those AmOjrdments were expressly regarded as remeoial in nature ;
the men , -V - . ___. - W; f-hpm K/ulVVilO J_ JL. Uii’-ul v- i cvec' r},3 ;i:ights desexibed already

e x i s t c d und e r the Con s t i tution, and wtare primarily coricerned to

provide a remedy where none had existcid. before.
The states may of course consent to be sued in federal court.

Wnen the Reconstruction Amendments were enacted every such
creation of a federal right involved, under the decisions of the
Supreme court, pro tan-to waiver of sovereign immunity because
of the federal question provision of Article III. Cohens v.
Virginia, 19 U.S. 264 (1821). Thus by ratifying the Reconstruction
Amendments the states waived their Eleventh Amendment and sovereign
immunity defense.

Throughout the last several decades states sued for violations
of the Reconstruction Amendments, particularly the Fourteenth,
have sought to defend their right to discriminate by claiming
immunity from suit. The Supreme court has rejected such claims.
Griffin v. School Board. of Pr:i.nce
(1964). Since a state itsell may

7 -

.on o x

the federal courts to the extent necessary to vindicate Fourteenth
Amendment -rights, the District Courts had the power to award costs
and counsel fees against the states in these cases.

ARGUMENT

ELEVENTH AUENDMFNT

ific and mors recen

'OR SOVEREIGN IMMUNITY MAY BE
Y 6 r ~ ? . 'LATJoiToF~ThE

-r as ions cof the pecon-
c- o v , r > •;-* r

‘•ns t ore Lai conflict beers or. the Reconstruction Am er, oner, us
on the one hand and the Eleventh Amendment on the other is ap-
parent on L‘oiC£ of pirc\ ...c— s - t-vTii fciic rovix - • ;
Fifteenth Amendments expressly, and the Thirteenth tacitly,
create special rights in favor of private individuals and limit
the power of the states, the Eleventh Amendment withdraws from
the federal judicial power cases brought against one state by the
citizen of another. Manifestly enforcement of those special rights
against one state by the citizen of another would require pre
cisely the remedy
elude. Similarly
the states to reft
its fact inconsistent with the express grant of rights again:

which the Eleve:sth Amenchtlent appears to pre-

any doctr ine of sovereigri immunity, all c’v in g

use to be sued b'r th o i r ov,rn citizens, seeras o:

states to those citizens.
.prome clourt has nev er dec idea T ■' * /0-.n . 1 r W : i P

the on!,y method of enfore ing the po S t

is ana type of ; - - ’_< L- L- on aga ins t l-** , ...L I i inta

K a n 1 U v L I .

. ii.ee

by sovereign immunity and•the Eleventh Amendment. In E x .Parte
Young, the Court expressly declined to decide whether the Four
teenth Amendment limited the effect of the Eleventh. 209 U.S.
123, 150 ( 3 9 0 8 ) . The same question was left undecideu by
Edelman v. Jordanj 42 U.S.L.W. 4419, 4432 n.2 (1974) (Opinion of

r-v-hall'- Rather than reach that question, the Supreme
Court has consistently sought to fashion remedies for violations
.r . r ■ ■ t-.;. -,"-T Tpo u tee"' ih end Fifteenth Amendments which

nsgressing the usual lrm11 ations on suits
T',- itself v:n ,o t th e m o s t im p o r r a :>t

.its again- f scare orlie irs liad, to a 1 i t'--■.

:od before . t; • .. v.orxed a substantial ox-

of relief. See Jacobs, The Eleventh Amen dr.o

n .1 A r

and Severer on I-* * ~v.n .xcv. Xob-*i.4b \±-- : - t *
ip-îe polic ' 7 considerations behind Ex parte Young were expressly
.• -j n :-n handed cc '\ the same day in General O dd.

Company v . Crain, 209 U.S. 211, 226 — 7 (150o) .
Necessarily, to give adequate protection to

constitutional rights a distinction must be made
between valict and invalid state laws, as deter
mining the character of the suit against state

2 z / ii;-.-, i -Vj -. i- v.'ha'-ever the rights of coruplainanf s may be,
they W"are ‘largely ’founded upon" that [Fourteenth] Amendment,
but a decision in this case does not require an examine ±̂o.\

• c * Q -c v-i'N-a cuosfcion r» o ^ i t s adoption in 9nv w q -̂
altered, or limited the effect of the earlier [Eleventh]
Amendment."

2/ ..j.- shouj d be noted that there has been no determination in
4_i, ̂ _ r* - ̂ r-' r.-q-p-j-g rotn on is uncorsti tutional unoer the
T,_„v.<.epr > '-element. Thus, the Court necessarily docs not
decide \7hov.her* the*States' Eleventh Amendment sovereign may
p--,vC limited bv the later enactment of the Fourteenth
7—•.g-.-■ *- r"''a' extent the't euc.. a Irnitr,cioh is ntiCCchiy
to'efdccoucee the purposes of that Amendment, an argument
advanced by an anienrs in this case. "

officers. And the suit at bar illustrates the
necessity. If a suit against state officers
is precluded in the national courts by the 1 1 th
Amendment to the Constitution, and may be for
bidden by a state to its courts, as it is con
tended in the case at bar that it may be, with
out power of review by this court, it must be
evident that an easy way is open to prevent the
enforcement of many provisions of the constitution;
er.d the 14th Amendment., which is directed at state
action, could be nullified as to much of its- 1 -------- --c the lav;, mayo::h.r
<

^ . w- v__, l ; w. v_- — 1 W .
a.rded as a kind of out-i v. o:uy goo-,•,,•?- ~ p c. q a- j f- ]no re^y .

Itx'.v-,5. gee E:: Pc:.1:v.o Yo'.'" v.TbC-X*c th.1.s sub j€ci: i s
' - \.l t . 1 ‘ »• — tne ca.s

culminafi or
revxewca.

Yov-nq represented, at the time it wos decided, "t!
of the efforts by this Court to narr.c-nxz’.e the principles of tnc*.
Eleventh: Amendment wi th the effective supremacy of rights and
powers secured elsewhere in the constitution. " peraz v. rp- •:
401 U.S. 82, 105 (1971) (Brennan, J. concurring and dissenting)

The Supreme Court’s urwilJineness to permit the Eleventh
Amendment or sovereign immunity to preclude effective relief
in cases such as this was further illustrated in Griffin v .
School Board of P.uince Edward County, 37 7 U.S. 218 (1964). Ex
Parte young had stressed that the relief sought there was en
tirely or even teete ive, and did not require "aif irmative action o.
any nature." 209 U.S. at 3,59. Barely a year before Griffin the
Court had reiterated, in two cases involving purely statutory
causes of action, that a suit nominally against an officer was
t n fact a suit against the sovereign ir axfinactive action or
the expenditure of public funds were the relief sought. Rng/\n_

p-.-'V, ?,72 U.S. 609, 620 (1963); Uvwaii v. Cordon, 373 U.S. 57,

58 (1963).— Since the relief sought in Griffin included reopen
ing and funding the public schools of Prince Edward County, the
defendants urged at length that the case was one against the
state and thus barred, by the Eleventh Amendment. 12 L.Ed. 2d
1 1 0 6-1109 ? Jscoos/ Tne Eleventh îr'.eno.nient s o v s ^ ^ ' ' a

loG-159 (1972).- The Supreme Court, noting that the complaint,
aliegee a viola tron of constitutional rights protected by the
Fourteenth Amendment, summarily rejected this obfoption 377

" ■c - /
s >< ••• /

r_. •-> 1 * I r - r ■
Q J Qj ' up •i.j. no .vticii Oi

.Lit-, coiio i.. -; wio;. :j u: :C.c;;_y n; ^ u' c* ar.d Cr Iffivi suqaost t h a t ■>
}-2 ~ iiilj. ufc6d V i 1 C. . 1 rg 1̂1 V
>thcr' relief is pos-

rights created by the Reconstruction Amendments must be given
priority over foe policies underlying the Eleventh Amendment and.
sovereign immunity. Such a case is very different from common
place suits asserting essentially state lav/ claims against the
state, Pardon y. Terminal R.E. of Alabama Docks Dept., 377 U.S.
— — — - -

Born pgicran_ and Gordon were actions involving the United States
to m i e n tne government objected on the grounds of sovereign in.-

■y authority of the Secretaryof the I;
-5 / 2 o. S .
at 57.
4/

G- v- 'Ji J .
O. u;‘ O £ o. Cf. ■y r
I'.G Q v,n yf- ̂. cu
ir. v olv6 d th

x.* £ c< 0 r-. TJy O'.','.re status o r f eaerv.lly owned land in Hawaii. 373

j...e Court's entire discussion of this matter was contained in
b-'t tnree sentences. "It is cor.tended that the case is an action
o c the stare, in rorbrcc.cn' ny fee Eleventh Amendment, and

l, j SiiOciJ-C c -- c:3 a ..i spec , t ’ •1; comply int, hov/ever •> . •.a
teat state ano county officials were depriving petitioners of
rignts guaranteed by the Fourteenth Amendment. it has been settle
law since Ex Parte Young, 209 U.S. 123 . . . (1908), that suite

o m y officials to enjoin them from invading
rorridden by tee -eleventh Ajuend.itont.

against stc re
c on s t i t u t i one; 1

- li

184, 187 n . 3 (1964), or in which the federal question does not
involve the vindication of constitutionally protected rights.
See Employees v . Department of Public Health and^Welxarf-, 411 U.S.
279 (1973). This conclusion is supported by the ordinary rule of
construction stated by Mr. Justice Bradley in The Vir^ n i ^ _ Couoon

Cases,
ie' Eleventh Amendment

ter has paramount force,
to the Conslituaicn,
f every part of the
v, • r a "i ■ e r o ■. ■ c t o

If the contract Clause and
C Dili O into conflict, the 1r . u- v-

V •' \ rt•*; -- r w- r ■ i p _T i C.i... — - ■

end jT ci fc.tr S FiS ci}”t ciiTlGXlCL».ient
Cons i.;i tut ion to v.itich it :.s
be repuor.r.ni" * . ♦ Tv. is the
i. cx ;.v*"iuv •;.v v, i-.- 'Ji iivpvr '
209, 331 (1835) (cisser.ti -•3*
r: p y.t Cc- S - r C~ 2 / •* : i s

force e:
on Ini on) .

1 1

which represent the last declared will of the law-maker. Moi-o.-i.,
....... . , ; - v-- ---.ArC'tni ■ir.'-'LTVi T fv CC-' a .1 ill 0.v.v u a C- cue i.xev-nc.i n— ...... ..

general fashion with all disputes between individuals and states,
tVp Thirteenth, Fourteenth and Fifteenth Amendments deal more
narrowly with the creation of certain specific rights. in tne
case of a conflict such as this the more specific provision
usually control s. Chicago, etc. Ro,R ^ C o ^ v . United Transporntion
Union, 402 U.S. 570, 582 (1971).

B. Sovereign immunity has no application.— Lc>
nrf--j yT^j °--- *-hft ^Qconstruefcion. AmenMSGjLg.
nTaced~outside the sovereicm_power of....the
States.

Sovereign immunity, the doctrine that a state cannot be

sued without its consent, is but a procedural incident to

sovereignty itself, the right and power of -a state to conduct

its affair? in wha tcve r maiuser it s ee 8 fit and without out side

1.1 axi.tat ion: Sove reign ims.vanity serv0 £> to Jprotect the statc,
. . .................... -r iii .1Lhe e: cine of this pow c rpar i;icular.Lv Live c a w- ...... V J /i. w d . i - - i f

f roi;■> contnil or re r . r ] r. t •yulu w-L ozi bv th.eu judic iai.-y*

In tins discus S io IU3 of soverei.yil insaun i at t.ne clid o£ 1 h •_

c 1 c;Iitoenth century p*y ! ;j.Cu.lnrly tliese leadinq to the eiVibc.dims vi t

of that immunity in the Eleventh Amendment, the question oi

v’h'-'tĥ r arid to what extent a state had sovereign immunity was
understood to turn on whether and to what extent the state itself

was sovereign, The most important judicial exposition or the

case for sovereign immunity is Justice Iredell’s historic dissent

in Chisholm v. Georgia, 2 U.S. (2 Dali.) 419, 429 (1793). Justice

Iredell reasoned that the state had, subject to certain limitation

succeeded to the sovereignty of the King, and that the immunity

from suit attendant to this sovereignty had not been waived or

lifted bv Article III of the Constitution:
Ko other parts of the common law of England, it
appears to me, can have any reference to tnis
subject, but that part or it which prescribes
remedies auainst the crown. Every state in the
union in every instance where its sovereignty has

not been delegated to the United States, I
consider to be as completely sovereign, as
the United States are in respect to the powers
•surrendered. The United States are sovereign as
to all the powers of government actually surrendered.
Each state in the union is sovereign as to all the
powers reserved. It must necessarily be so, because
the United States have no claim to any authority but
such as the states have surrendered to them. Of
course the part not surrendered most remain as it
did before.

}”) 3 oi-ho IT Til c. mb 3 2T

could not claim
• substantive sovc.

s of the Court, while concluding that Georgia

immunitv, agreed that procedural immunity and
V

reign tv were inseparable. Hamilton, in the o c

quoted argument for immunity in The. Ecuoral1st, was also of the

view that immunity derived from, anci could not be asserted in v.n

•'■'•nee of- state sovereignly;

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. (Number 81).(Emphasis added)

5/ Justice Blair concluded that the states had waived both
sovereirntv raid immunity by ratifying Article III. 2 U.S. at 45
justice Cushing believed that /article III had abridged the sover
cignty of tro states and with it their immunity. Id. at 468.
justice V. a. Ison and Chief Justice uuy maintained the s i.uic had no
immunity because the people, not the state, were the screreign.
Id. at 453— moo

The discussion of taxation,'contained in The Federalist No.

31, dealt .with the extent to which the states had surrendered
G/

their power to enact certain types of taxes.
Justice Iredell rejected the suggestion that the states

had never been sovereign or that that sovereignty had been

waived by ratifying Article Til of the Constitution creating

r] p-

cone cel

‘.j 7; j ;diction. over action s between a crate and

>thor st ate. See -Jacobs, So*. .reicyn_Incvc: i ty and

emont ■ 64-74 (1 v / 2) . But. both I rode'11 a:

led . ate sovereignty could 1:e lost by ci sub tali

constitutional limitation on the powers of tne states wsu ullc'l-

in such a case, irmvmnity would furl as well.
At the time this was a theoretical concession of no practical

consecuenon. The Constitution as it existed prior to the Civxl

War contained few significant limitations on the sovereignty of

the states in dealing with individual citizens. The concept of

federalism prevailing at that time left largely in the hands of

the states decisions as to what basic rights, if any, individual.-*

6/ The same connection between the state's power and procedure.!
vf .... >r rn cctc .3 ir, t sc. opinions in Employees v. Missourx
Public HenlthlDopt^’ 411 U.S. 279 (1973) Justice Douglas' opinio*
~~J7 W'S"lTftinc immunity with "lifting the sovereignty of the
States." 411 U.S. at 287. Justice marshall's opinion derives tne
principle of
id.. as docs

mmuu j. v
that of Justice

inherent nature of sovereignty,"
Brennan , nIt l). S . at si /.

should have against state action, and how, if at all, those

rights should be enforced. The national government assumed no

substantial role under the Constitution in regulating the internal

affairs of the states; such matters were conceived to properly

be consigned to the exclusive jurisdiction of the states, and any

f i n t e r f e r e n c e would have transgressed 'the rights and
„ ̂ r ̂ s-1

• ̂ ̂ ̂ -i j Tr*" 4) . _C —
. states. Dispute- --

■dsral cuestions could reach the federal
ri'.r' ?,ct - providing

J - V - v-- ' - - .

: - a n c z r: c \ a c i1 clad

;;5 of federally

protected rights, but state action.-, interfering with the conduce

of the national government. See, o «c « , O s n o m v, bant oj- ..the

tjv%A ’- -n prafr-r 2 2 U.,2, (9 Ida eat.) 73S (1824); Cohens v. Virgin in.

19 u.S. (6 Wheat.') 264 (1821). So long as the states' sovereignty
in dealing with individual citizens remained intact, the immunity

incident to that sovereignty was entirely appropriate.

oeii.

power o:

createa a p jz ~oserai r

national co-.-uitiiisnt to racial jus

V7ar th is situat ion was

■ adept io:n of tho Vhirtcenth

. ich ex or<2 Ssly timitod the

with p * *v;;■r z- C 1 t i eus.
i •? - > *.J— ci e:;f orcing J-L-i icm,

signed to implem.ent the now

Congr S 3s clear iy conceived

that it was altering the relationship between the states and the

nationjji, and working a "vast transformation" from the concepts of

federalism that had prevailed in the late 18th century,

v. Foster, 407 U.S. 225, 242 (1972); Zwickler v. Koota,

241, 245-46 (1967). The effect of those Amendments was

several of this Court's earlier decisions regarding the

M 1 1 chum

389 U.S.

to overturn-

rights

of individuals against the states and the ability of the national

government to protect those rights. See Barron v. Baltimoie_,

32 U.S. (7 Pet.) 243 (1833); Dred Scott v. Sandford, 60 U.S. (19

How.) 393 (1357).
The changes wrought by the Reconstruction Amendments were

understood to work a substantial restriction on the prior sovereignty

and reserved rights of the states, and were opposed on just thio

ground. Congressman Edgerton, speaking against the Thirteenth

Amendment, argued:
Better, sir, for our country, better for man, that
negro slavery exist a thousand years than that
American white men lose their constitutional liberty
in the extinction of the constitutional sovereignty
of the Federal States of the Union. Cong. Globe, 3Jth
Cong. 1st Sess. 2987. 7/

Congressman Rogers, opposing the 1866 Civil Rights Bill, the

provisions of which were later codified in Section 1 of the

Fourteenth Amendment, urged:
I ask you to stand by the law of the country and to
regulate these Federal and State systems upon the
grand principles upon which they were intended to be

7/ See also id. at 1366 (Remarks of
(Remarks of Congressman Pruyn), 2941

Senator
(Remarks

- - 17 -

Saulsbury), 2939
of Congressman Wood),

regulated, that we may hand down to those who are
to come after us this bright jewel of civil liberty
■unimpaired; and I say that the Congress or men who
will strip the people of these rights will be handed
down to perdition for allowing this bright and
beautiful heritage of civil liberty embodied in the
powers and sovereign jurisdiction of the States to
pass away from us. Cong. Globe, 39th Cong. 1st Seas.
1122-23. 8/

Congressman Shanklin protested that the Fourteenth Amendment

struck down "the reserved rights of the states."
9/

39th Cong. 1st Sees. 1865-66. Such objections.

Cong. Globe,

however, were

to no effect,

was precisely

for such a restriction on state power and sovereignty

the goal of the proponents of these measures who

believed that the rights of the states ought not include "the

right to defeat the very object for which all government is made

. to inflict-wrongs on free citizens by a denial of the full

protection of the laws." Cong. Globe, 42nd Cong. 1st S.ess. 84-85
1 0/ '

Zipp. (Remarks of Congressman Bingh

The Reconstruction Amendments

stance in which Iredell and Eamilt

am \/ *
created precisely the

on had agreed immunity

circum-

had no

7/ (Continued)
2943 (Remarks of Congressman Highfoy) , 296 2 (Remarks of Congressman
Holman), 2994 (Remarks of Senator Pendelton).
8/ See also id. at 604 (Remarks of Senator Cowan), 1415 (Remarks
of Senator Davis), 1174 (Remarks of Congressman Rogers), 1156
(Remarks of Congressman Thcmeon) .
9/ See also id. at 2530 (Remarks of Congressman Randall), 2538
(Remarks of Congressman Rogers), 3147 (Remarks of Congressman
Harding).
10/ "From the beginning, the. program for the protection

mp *i ̂ +* ’n r. t v* cnc . ' 1. - , A -*--- ̂ 1 •v .,. »_* L - L .

place, by stripping the states of their hitherto existing

sovereign power to sanction slavery, deny equal protection

or due process of the laws, or abridge the right to vote on

account of race. In the limited areas prescribed by these

Amendments the states have no authority the free exercise of

which ctin be protected from litigation, and in such a case

the purpose underlying sovereign immunity ana she Eleventh

Amendment cannot be served.
C. The purposes of sovereign imrnuni tjy _anjl _ the.

Eleventh^ Amendment are inconsistent .witfe_the
purposes of the econstruction Amendments.

While sovereign immunity v/as properly conceived as no

more than an incident to sovereignty itself, the grant of

immunity, particularly within a federal system, reflected a

number of policies other than the mere protection of sovereignty

itself. The policies which immunity would advance are, however.

10/ (Continued)
of federalism argument. The Thirteenth Amendment,
the first constitutional expression of that program,
was proposed, encountered the federalism objection,
and was adopted anyway. Next, the civil rights bill,
designed to’ implement the Thirteenth Amendment, had
heaped upon it the same charge. It was cidopted not
withstanding. Then, at last, came the Fourteenth
Amendment, created to accomplish what the Thirteenth
Amendment had been designed to do but had failed to
do because of the continuation of the federalism
objection, intended to remove from the Civil Rights Act
the constitutional doubts arising from the federalism
objection to it, the Fourteenth Amendment was iLscla., in
turn, subjected to the very same criticisms. Despite that
criticism, .it too was adopted." ten Brock, Equal Under
T,aw 719-220 (1905) .

the very policies expressly rejected by Congress when it approved

the Thirteenth, Fourteenth and Fifteenth Amendments.

1• Reliance on state enforcement.
Advocates of sovereign immunity both before and after passage

of the Eleventh Amendment urged that judicial jurisdiction over

claims against a sovereign was unnecessary because the King, or

the executive avid legislative branches of a state government,

could, and would do justice in any case brought to their attention.

In England, Iredell argued, while the resolution of such grievances

was technically at the discretion of the crown, it was the King's

practice, through the Chancellor, to do whatever justice required.

"If any person has, in point of property, a just demand upon a

King, he must petition him in his court of chancery, where his

chancellor will administer right, as a matter of grace, though

not upon compulsion." C-hisholm v. Georgia, 2 U.S., 419, 442 (1793) .

A citizen with a claim against a state, it was said, coulci rely

on the legislature's good faith and sense of public duty. 2 U.S.

at 445-6. Hamilton urged that contracts between a nation and an

individual were binding, not in a court of law, but "on the

conscience of the sovereign." The Federa.list, No. 81. The argument

was reiterated by Congressman Diven in 1862 urging retention of

sovereign immunity by the federal government.

How, sir, what is the theory with regard to
the satisfaction of claims against Governments?
Why it is this: that Governments are always
disposed to deal justly with their subjects; that
Governments are never required or compelled by legal
process to render justice to their subjects; and that
they are always ready to do right when the right is
ascertained; and the only object of a Court of Claims
should be to aid the Government in determining what
is right, and then the Government will do right always.
That is the theory of government. It was a maxim of

■ the common law that "the King can do no wrong," and
it is the theory that Governments can do no wrong,
that exempts them from this trial in courts to compel
them to do right to their own citizens. It is false
in theory to suppose that when an individual has a
just claim against the Government it is necessary for
him to sue the Government in a court of law to recover
it. Cong. Globe, 38th Cong.*1st Sess. 1672.

The Supreme Court, in Hans v. Louisiana, 134 U.S. 1 (1890),

reasoned that a state could be relied on to respect "the highest

demands of natural ana political lav.7 to preserve justice," and

that the security for state loans "is the plighted faith of the

State." 134 U.S. at 16, 21.

When the Reconstruction amendments and legislation were

proposed, opponents objected that such measures were unnecessary,

and -that reliance could be placed on the "honest purpose of the

several States" to protect the rights of citizens. Cong. Globe,

39th Cong. 1st Sess. 1294 (Remarks of Congressman Wilson). The

conclusion of the Congress and the nation, however, was to the

contrary: in particular that the southern states could not be

relied upon to respect and protect the rights of freedmen.

Spe aking in favor of the 1866 Civil Rights Bill, whose principles

were soon incorporated in Section 1 of the Fourteenth Amendment,
Representative Wilson explained:

If the States would all observe the rights of
our citizens, there would be no need for this
bill . . . If they would recognize that "general
citizenship" . . . which under this [privileges
and immunities] clause entitles every citizen to
security and protection of personal rights, . . .
we might safely withhold action. And if above all,
Mr. Speaker, the States should admit, and practice
the admission, that a citizen does not surrender
these rights because he may happen to be a citizen
of the State which would deprive him of them, we
might, without doing violence to the duty devolved
upon us, leave the whole subject to the States..
But, sir, the practice of the States leaves us no
avenue of escape, and we must do our duty by supplyin
the protection which the States deny. Cong. Globe,
39t'n Cong. 1st Sess. 1117-18.

•Congressman Cook argued -

Suppose . . . these States are restored to all the
rights of sovereign States within this Union, and
they carry out the same spirit they have already
manifested toward these freedmcn . . . It is idle
to say these men will be protected by the States.
The sufficient and conclusive answer to that position
I submit is, that those States have already passed
laws which would now virtually reenslave them. . .
Does any man in this House believe that these people
can be safely left in these States, without the aid
of Federal legislation or military power? Does
anyone believe that their freedom can be preserved
without this aid? If any man does so believe, he
is strangely blind to the enactments passed by
legislatures touching those freed men. Id. at
1124-25. 11/

11/ See, also id. at 503 (Remarks of Senator Howard), 602
(Remarks of.Senator Lane).

- 22 -

Six years of experience after the Civil War served only

to confirm Congress' fears in this regard, and the 1871 Civil

Rights Act, including the predecessor of Section 1983, was

enacted "to afford a federal right in federal courts because,

by reason of prejudice, passion, neglect, intolerance or other

wise, state laws, might not be enforced and the claims of citizens
to the enjoyment of rights, privileges, and immunities guaranteed
by the Fourteenth Amendment might be denied by the state agencies

ftjpproe v« Pape, 36 5 U.S. 171, 179 (1961) . Congressman Shella-
•berger, the sponsor of the Act, urged:

To say that Congress can do no such thing as
to make any laws so enforcing these rights, nor
open the United States courts to enforce any such
laws but must leave all the protection and law-making
to the very states which are denying the protection,
is plainly and grossly absurd. Cong. Globe, 42nd
Cong. 1st Sess., Appendix p. 6 8 .

The "plighted faith of the States" which the Supreme Court has

found an adequate alternative to judicial enforcement of the

contract clause in Hans, was expressly rejected as a sufficient

guarantee of the rights of freedmen and others under the

Reconstruction Amendments. Cong. Globe, 42nd Cong. 1st Sess. 85
(Remarks of Congressman Bingham).

The Congress which approved the Thirteenth, Fourteenth

and Fifteenth Amendmients, had only a few years earlier ended

the sovereign immunity of the federal government. in his first

State of the Union message, President Lincoln had urged abolition
of that immunity:

It is important that some more convenient means
should be provided, if possible, for the adjustment
of claims against the Government especially in view
of their increased number by reason of the war.
It is as much the duty of Government to render
prompt justice against itself in favor of citizens
as it is bo administer the same between private
individuals. The investigation and adjudication
of claims in their nature belong to the judicial
department. 1 2/

The debates on this proposal centered on whether or not the

federal government was already providing a prompt and just

resolution of claims against it, the procedure until that time

being for Congress to enact a special appropriation in the amount

it felt fair. Proponents of immunity urged such justice was

already being done. See p. 21, supra. A majority of the Congress,

however, concluded otherwise. Congressman Pendleton responded to

the remarks of Congressman Diven quoted above,
My colleague on the committee has told us today

that, in theory, the Government is always willing
to do justice to the citizen, that it is always
willing to do that which equity and justice requires
it to do. Now, sir, that is very good in theory, but
it is very bad in practice, and when that gentleman
has had experience in examining the claims brought
against this Government year after year . . . he will
find that there are innumerable claims on the calendar
which have been examined and re-examined session after
session. . . If the Government of the United States
owes a debt to a citizen of the United States, why
should that citizen be forced to come to Congress year
after year, and spend his time and his money in besieging
individual members, in order to show to them the justice
of his claim, depending, in the end, even in the justest
case, not upon its merits, but upon their patience to
hear him fully, and their impartiality to judge fairly.
Cong. Globe, 38th Cong. 1st Sess. 1675.

12/ Schlesdnqer and Israel,
of the Pres iflonts, v. 2, 1060

The State of the Union Messages of
"(1966) .

Congressman Bingham, the author of the Fourteenth Amendment,

urged that the abolition of immunity would end the injustice

of denying relief to citizens with legitimate grievances, and

the corruption of the Congress by lobbyists pressing dubious

claims. Id. at 1674. The statute conferring binding jurisdiction

on the Court of Claims was enacted in 1863, 12 Stat. 765, and

the remedies available to citizens broadened further in 1856.
14 Stat. 9.

The existence of a sovereign immunity defense in an action

under the Reconstruction Amendments is-manifestly incompatible

with the purpose and background of those constitutional provisions.

It cannot plausibly be urged that Congress first established a

panoply of federal rights and remedies on the ground that the

states would not voluntarily protect those rights, and yet

intended to permit the states to avoid judicial enforcement of

those rights on the grounds that the'states would voluntarily

protect such rights and that judicial enforcement was thus

unnecessary. The same state legislature which enacted a discrimi

natory measure could hardly be expected, in response to the claims

of its victims, to repeal that measure and appropriate funds to

compensate them for any injuries suffered. Whatever support

sovereign immunity may have commanded in the 1790's, by the 1860's

Congress shared Lincoln’s view that the courts were the most fair

and efficient forums for resolving claims against the government.

v * '25

2. Problems of federal enforcement
Federal jurisdiction over litigation against

the states was opposed in the eighteenth century because
of problems of enforcement which might arise. One of
the great failings of the Articles of Confederation was
that under it the national government, could carry out
its desires and policies only through the action and
good will of the states. If a state was not amenable
to this process, the two levels of government were neces
sarily arrayed directly against each other, at best
resulting in a cumbersome process and at worst threaten
ing more serious conflict. The federalists sought to
give the national government power to carry out its
policies directly, rather than relying on or resorting
to action against the states. It was to avoid the need
to coerce the states into compliance that the new con
stitution was designed. Under a continuation of a con
federacy, Hamilton warned, resort to such a military
coercion was inevitable.

If there should not be a large army constantly
at the disposal of the National Government, it
would either not be able to employ force at all,
when this could be done, it would amount to a
war between parts of the Confederacy, concerning
the infractions of a league; in which the strongest
combination would be most likely to prevail,
whether it consisted of those who supported,
or those who resisted, the general authority.

-26-

It would rarely happen that the delinquency
to be redressed would be confined to a single
member; and if there were more than one, who
had neglected their duty, similarity of the
situation would induce them to unite for
common defense. The Federalist, No. 16.

But, Hamilton pointed out,
If the execution of the laws of the National
Government should not. require the intervention
of the State; Legislatures; if they were to
pass into immediate operation upon the citizens
themselves, the particular Governments could
not interrupt their progress without an open
and violent exertion of an unconstitutional
power. Id.

Such affirmative efforts to obstruct enforcement of national
laws were thought highly unlikely.

It was this same consideration which, for the federalists,
militated against federal jurisdiction over the states. Hamilton
himself pressed this argument in the oft quoted passage in The
Federalist on the meaning of Article III of the proposed con
stitution :

To what purpose would it be to authorize suits
against the States for the debts they owe? How
could recovery be enforced? It is evident, it
could not be done, without waging war against
the contracting State, and to ascribe to the
Federal Courts, by mere implication, and in
destructing of a pre-existing right of the
State Governments, a power which would involve
such a consequence, would be altogether forced
and unwarrantable. The Federalist, No. 81.

The fear that such jurisdiction over the states might lead
to the use of force was, at the time, not unwarranted. In
the face of Chisholm, the Georgia House of Delegates passed
a statute making any effort by a federal marshal to enforce
a judgment for Chisholm a felony punishable by death without

-27-

benefit of clergy. Jacobs, The Eleventh Amendment and
Sovereign Immunity, 56-57 (1972). In another private
action in 1809 seeking to collect funds held by the heirs
of the state treasurer of Pennsylvania, decided sub nom.
United States v. Peters, 9 U.S. (5 Crunch.) 115 (1809),
the governor deployed the state militia around the home
of the) heirs to prevent execution of the judgment. The
United States marshal enlisted a posse, and an armed
clash was averted only when the state relented in the
face of direct threats by President Madison." Jacobs,
The Eleventh Amendment and Sovereign Immunity, 77-80
(1972).

It cannot plausibly be maintained that those
who framed the Reconstruction Amendments and civil rights
legislation would have opposed suits against the states
on the ground that force might be required to enforce the
resulting court orders. Throughout the period when these
measures were being enacted the armed forces of the federal
government, with the enthusiastic support of Congress, were
stationed throughout the former rebel states and were deeply
involved in administering and policing those areas. See
Morrison, The Oxford History of the American People, 717-725
(1965). After a four-year Civil War of unprecedented cost,
the willingness of the national government to resort to force
to preserve the fruits of its victory cannot be doubted.

i v * '

-28-

During the debates on the 1866 Civil Rights Bill, Congress
man Thayer openly expressed this willingness:

Why have laws if Government has not the
physical force and strength to enforce them?
Enforce them if you can through the forms of
judicial procedure and by the ordinary means
at the command of judicial tribunals as this
bill provides: but if there are -combinations
against the peaceful enforcement of these
laws, why should not the military power of
the United States, in pursuance of the express'■
power given in the Constitution, come to the
rescue of the civil power in order to enforce
a lav; solemnly promulgated by the people of
the United States? Cong. Globe, 39th,Cong.
1st Sess. 1153.

Senator Pool expressed the sane conviction six years later
in support of the 1371 Civil Rights Ẑ ct regarding the con
stitutional guarantee of equal rights:

If the states shall fail to secure and enforce
this right cf the colored man, and deny to him
protection in the free exercise of it as a
citizen of the State, then the United States,
by virtue of his national citizenship, must
and will, by appropriate legislation, by all
the power of its courts, by its land and naval
forces, extend over him within the States the
shield of the national authority. . . . I yet
hope it is possible to escape more violent
means by a prompt resort to the ordinary federal
tribunals of justice. Unless that resort be
promptly and efficiently taken, there is no hope
of escaping for another year the application of
the most stringent and ruinous military measures.
Cong. Globe, 42nd Cong. 1st Sess. 609.

Both civil rights acts contained express provisions for resort
to military rule if civil measures proved inadequate to pro
tect the rights of the freedmen. See 14 Stat. 27. 27; 17 Stat.
13.

-29-

To suggest that suits against the states under
the Reconstruction Amendments should be forbidden to
avoid problems of enforcement would be to ignore the
fact that the congresses which framed those provisions
were determined to use whatever measures were necessary
to enforce the rights described therein. Nor are suits
against state officers any less likely to incur virulent
state opposition; the history of the last century, par
ticularly since Drown, is studded with instances where
extraordinary federal action was necessary to effectuate
the decree of a federal court against such officers.

3. pg:i.fL:iî I-i-,n-rpose o£ tho m ^gtini^io.D-.^nendraen-^^
The defense of sovereign immunity, if allowed

in all cases, would operate in some circumstances to deny
citizens an effective judicial remedy to enforce their
rights. Undoubtedly there are circumstances under which
such a normally incongruous situation might be appropriate.
Where control of state conduct is not a primary concern
of the provisions establishing those rights, it may be
that.subjecting tho states to judicial control is too
drastic a method of achieving a largely incidental purpose.
Where there is little reason to doubt the states will
voluntarily comply with the federal requirements, Congress
might conclude that harmonious federalism would best be
served by trusting the states to act without threat of
litigation. And where a fully effective means of enforce
ment less drastic than federal litigation is available, the

-30-

necessity foxr sucli litigation might be doubted. See

generally Employees v. Department of Public Health and
Welfare, 411 U.S. 279 (1973).

None of these factors, however, are present
here. Control of the states was not a merely incidental
effect of the Reconstruction Amendments, it was the pri
mary concern and goal. See The Civil Rights Cases, 109
U.S. 7 (.1883) . Enforcement of the Reconstruction Amend
ments has traditionally been left primarily in the hands
of private litigants. See 42 U.S.C. §§ 1981-1983. Those
amendments and the contemporaneous legislation were founded
on the conviction that the states could not be relied on
to voluntarily comply with the law. See pp. 20-25 supra.
The men who framed those Amendments were primarily concerned,
not with preserving the delicate balance of harmonious
federalism, but with assuring compliance- by the recalci
trant states through whatever means necessary.

The Supreme Court has long recognized the par
ticular undesirability of leaving those asserting consti
tutional rights without an effective remedy. "The very
essence of civil liberty certainly consists in the right
of every individual to claim the protection of the laws,
wherever lie receives an injury." Marbury v. Madison, 1 U.S.
(Cranch) 137, 163 (1803), quoted in Bivens v. Six Unknown
Fed.._Narcotics Agents, 403 U.S. 3 38, 3 97 (1971) .

-31-

The Constitution of the United States,
with the several amendments thereof, must
be regarded as one instrument, all of whose
provisions are to be deemed of equal validity.
It would, indeed, be most unfortunate if the
immunity of the individual states from suits
by citizens of other states, provided or in
the 11-th Amendment, were to be interpreted
as nullifying those other provisions which
confer power on Congress to regulate commerce
among the several states, which forbid the
states from entering into any tre.atv, alliance,
or conf©deration, from passing any bill of at
tainder, ex post facto law, of impairing the
obligation of contracts or, without the consent
of Congress, from laying any duty of tonnage,
entering into any agreement or compact with
other states, or from engaging in war, - all
of which provisions existed before tlje adop
tion of the 11th Amen cm end., which still exist,
and which would be nullified and made of no
effect if the judicial power of the United
States could not be invoked to protect citizens
affected by the passage of state laws disregard
ing those constitutional limitations'. Much less
can the 11th Amendment be successfully pleaded
as an invincible barrier to judicial inquiry
whether the salutary provisions, of the 14th
Amendment have been, disregarded by state enact
ments. Frout v. Starr, 1GS U.S. 537, 543 (1903).

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