Judicial Activism and the 11th Amendment

D.J. Connolly Sometime when you’ve got nothing better to do, find a copy of the Constitution and look up the 11th Amendment.  If you’ve never heard of it, that’s because the Supreme Court has been ignoring it for most of the last two centuries [1].

The 11th Amendment says, “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.”

Now, if you say that it’s an unwise amendment, and ought to be repealed, you’ll get no argument from me.  We had to repeal an unwise amendment before and we could do it again.  We adopted the Eighteenth Amendment in 1920 to banish demon rum from the Republic, and it turned out to be a big mistake.  So we repealed it a few years later.

Our judicial employees never allowed us to give the Eleventh Amendment a fair trial, they just refused to obey it.  They started perpetrating scams to get around it almost as soon as it was added to the Constitution [2].

The story begins in 1792 when the Supreme Court (Chisholm v. Georgia) ordered the State of Georgia to pay a large sum of money to two citizens of South Carolina acting as executors for a British subject.  The Court was probably acting within its rights; the Constitution does say (in Article III) that the judicial power of the United States shall extend to “Controversies between. . . . a State and Citizens of another State . . . and between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects.”

However, as soon as the Court handed down Chisholm v. Georgia, “We the People” decided to amend that language.  Our founders did not want far-away federal judges spending their state and local tax money.  So they proposed the 11th Amendment to fix the problem.

The record shows that an overwhelming consensus supported the proposed Amendment.  And the people intended it to mean exactly what it said.  The Senate considered it in 1794, quickly disposing of a motion to slightly limit its scope and then voting 23-2 to adopt it as written.  A couple months later the House of Representatives debated the proposed amendment.  A motion was made to tone it down a bit.  The members rejected that motion by a vote of 77-8.  They then voted 81-9 to adopt the Amendment as written.  Thirteen out of fifteen states ratified it by 1795 [3].

“We The People” had wasted our time.  The Supreme Court just refused to obey it.  In the early years, the Court heard many landmark cases in which a state raised the 11th Amendment as a defense.  Each time the justices offered a nonsense excuse.  Then they went ahead and heard the case anyway.  A rather comical scam to evade the Amendment involved the Court in the most brazen real estate swindle in American history [2].

About the same time the states ratified the 11th Amendment, a U. S. Supreme Court Justice named James Wilson helped pull off the Yazoo Land Fraud.  In 1795, the Georgia Legislature sold thirty-five million acres of state-owned land to four companies that had been formed by out-of-state hustlers.  The sale price was about one-and-one-half cents per acre.  The people of Georgia soon learned that James Wilson and his henchmen had secured this great deal by bribing all the legislators except one.  Justice Wilson was personally on the scene with $25,000 in cold, hard, cash.  Twenty-five thousand dollars was a lot of money in those days; Wilson’s salary, as a Supreme Court justice, was $3,500 per year.  How long do you suppose it took him to save twenty-five-grand? [4]

The people of Georgia soon learned about the swindle and, in an election later that year, they threw out the crooked legislators.  The new Legislature immediately acted to cancel the fraudulent sale, but the out-of-state hustlers had also acted quickly to fence their stolen property.   They sold most of the land to speculators who then resold much of it to yet a third layer of speculators.  They all knew they were handling hot goods, so they had to keep it moving.

Before long, a very large crowd of people had bought a piece of the action.  They all pretended surprise when Georgia passed a law rescinding the sale.  That law also ordered the Georgia courts to keep their noses out of the matter.

The speculators then hired some well-connected lawyers and lobbyists.  The lobbyists worked Congress and the lawyers schemed to find a way around the 11th Amendment; they wanted to get Wilson’s judicial cronies into the game.  Years went by.  The lobbyists found it slow going with Congress; passing a law to safeguard the ill-gotten gains of swindlers who plundered the public treasury is always risky for anyone who hopes to be reelected.

The lawyers finally thought up a promising scheme.  A New England resident named John Peck had fenced part of the original booty.  Peck sold some of his Yazoo land to Robert Fletcher who immediately sued him in federal court to get his money back.  Fletcher’s lawsuit claimed that Peck didn’t have good title to the land.  Peck responded that Fletcher didn’t have a case because the Georgia law canceling the sale was “unconstitutional.”  Both Fletcher and Peck claimed they had been totally ignorant of the fraudulent nature of the original deal [5].

It was obvious that the suit was a setup to position federal judges to sneak around the 11th Amendment and rule on Georgia’s cancellation of the crooked deal.  Albert J. Beveridge, an admiring biographer of Chief Justice John Marshall, calls Fletcher v. Peck a “friendly” suit.  That means that both parties were working the same agenda [5].

The case bounced around the federal courts for years.  It finally got to the Supreme Court in 1809.  Justice Wilson had already died, so he didn’t have to decide whether to recuse himself from hearing it.   But the proceedings smelled to high heaven anyway [4].

It’s been well documented that the justices saw clearly from the pleadings (the claims submitted by Fletcher and Peck) that the deal between Fletcher and Peck had been made with full knowledge of the defects in the Yazoo titles, being nothing but a scam to circumvent the 11th Amendment.  Nevertheless, Chief Justice Marshall deliberately recessed court in order to give the parties an opportunity to modify the pleadings, thus destroying the evidence of fraudulent intent [5].

Had they been ethical, at least two justices would have excused themselves from hearing the case.  Justice Chase, a speculator like Wilson, and Chief Justice Marshall each had a personal interest in the precedent if not the case itself [6].

Two well-known lawyers named Robert Harper and Joseph Story represented Peck.  Both had money in the deal [7].

Luther Martin, a crony of some of the justices, represented Fletcher.  The scheme required Fletcher to lose in court so they could all make money.  Martin played his role well.  Historians suggest that he came to court drunk to throw the case.  The justices played along with the scheme.  They ignored the 11th Amendment, pretending that Georgia was not a party to the case, but then ruled that Georgia had to honor the fraudulently obtained titles [7].

Chief Justice John Marshall wrote,

“It is, then, the unanimous opinion of the court, that, in this case, the estate having passed into the hands of a purchaser for a valuable consideration, without notice, the state of Georgia was restrained, either by general principles, which are common to our free institutions, or by the particular provisions of the constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void.”

The justices evidently weren’t really sure whether “particular provisions of the constitution of the United States” or “general principles, which are common to our free institutions” were the basis of their opinion; but they knew what result they wanted to achieve.  Legal historians view Fletcher v. Peck as one of the most important cases of all time.  But that has nothing to do with the 11th Amendment.  The case created a major precedent concerning the power of federal judges to overturn state laws.  Most historians neglect to mention that the Supreme Court trashed the Constitution to create that precedent.  They also fail to note that the Court acted as a knowing accessory to a brazen swindle.

NOTES & CITATIONS

1. In 1996, the Rehnquist Court surprised everyone by breathing a bit of life back into the 11th Amendment.  In Seminole Tribe v. Florida a majority ruled that the Amendment meant just about what it said.  The Court did, however, retain a very big loophole.  It claimed the Fourteenth Amendment created an exception for “civil rights” cases.  The judges get to decide what is, and isn’t, a civil rights case.  That seems like a questionable loophole.  Curbing, rather than enlarging, the powers of federal judges was a major goal of the framers of the Fourteenth Amendment.

However, even allowing for that loophole, the ruling was a surprising bit of judicial honesty.   That much honesty sent a four-judge minority into fits.   They wrote a 118-page diatribe which said that the ruling was “shocking, . . . fundamentally mistaken . . . simply irresponsible.”  This reaction reminds one of an attitude common among thieves.  Immediately after they steal your stuff they start to think of it as theirs.  They become very angry if you find a way to get it back.   Imagine how a burglar’s descendants would feel if you took back your family’s silverware two centuries after their ancestors had stolen it.

2. A fairly comprehensive list of the excuses that the Court used, over the years, to justify ignoring the 11th Amendment, can be found in Chapter 4 of The Temple of Karnak.  See also Orth, pages 34, 42, 110-120, and 142-3, and the commentary on the Constitution by Harold W.Chase in the 1996 Grolier Online Encyclopedia.

3. See Warren, Volume III, pages 93-102; see also Grimes, pages 18-19.

4. The Yazoo Land Fraud was named for the Yazoo river which was contained in the 35 million acres.  A summary description of Supreme Court Justice Wilson’s role in the fraud can be found in Miller (Nathan, 1976, pages 123-6).  See, also, Beveridge, Vol. III (pages 548-602) and the books cited in Note 7 below.  See also James Wilson’s biography in Cushman et. al.

5. See Beveridge, Vol. III, pages 583 ff.

6. For a description of Marshall’s private interest in the Yazoo controversy, see page 582 in Beveridge, Vol. III.  Justice Chase, like his colleague James Wilson, had a history of speculating in shady deals; see his biography in Cushman..

7. The financial interest of Harper and Story in the Yazoo Fraud is mentioned in an end note on page 646 of Smith (Jean Edward, 1996).  The fact that Luther Martin came to court drunk is mentioned in many places; see, for example, Smith (Jean Edward, 1996, page 390) or Miller (Nathan, 1976, page 133).  More generally Fletcher v. Peck is discussed in Hobson (pages 82-88), Miller (A. S., 1982, pages 65-6), Miller (Nathan, 1976, Chapter VI), and Bork (1990, pages 25-6).

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