14 beats 11

A taxidermied raccoon
Raccoon eating Cracker Jacks.
Legal argie bargie can be fun. But sometimes, it’s just sad.

During the American Revolutionary War (1775-83), the government of the state of Georgia had purchased a large amount of goods on credit from a merchant who lived in South Carolina by the name of Captain Robert Farquhar. At the end of the war, Georgia refused to pay the amount owed Captain Farquhar on the grounds that Farquhar had been a British Loyalist—not on the grounds that the supplies they received had been defective in any way, or that he had otherwise failed to deliver what he promised. It seemed to be nothing more than spite…

Ten years later, when Captain Farquhar died, the executor of his estate, another South Carolinian named Alexander Chisholm, filed a lawsuit against the State of Georgia for the amount owed. The laws in place at the time allowed a person to file a lawsuit directly with the U.S. Supreme Court, which is what Chisholm did.

Georgia refused to send an attorney to argue their side of the case, citing the common law principle of sovereign immunity. However, article 3, section 2 of the U.S. Constitution lists the categories of cases over which the Federal Judicial branch has jurisdiction, including “all cases between a state and citizens of another state.”

So the Supreme Court took the case, and in a 4-1 decision (there were only five justices on the court back then), ordered Georgia to pay the money.

This ruling outraged Georgia, obviously, and a lot of other state governments, and within five years the Eleventh Amendment to the Constitution had been proposed and ratified. The 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.”

The amendment effectively overturned the Supreme Court ruling in Chisholm V. Georgia.

The immunity granted by the Eleventh Amendment is not absolute, and it is clear that the proponents of the amendment didn’t want to grant absolute immunity. That phrase “any suit in law or equity” defines certain kinds of legal actions. The amendment had no effect on the court’s power to rule legislative enactments or executive acts invalid on constitutional grounds, for instance. The Supreme Court has subsequently ruled the principle of sovereign immunity also applies to citizens suing their own state, even though the amendment doesn’t mention them. The Court has also since clarified that individuals working for a state (including elected officers like, say, a governor) only enjoy sovereign immunity while they are acting constitutionally; in other words, if their actions violate the constitution, they can be sued for those actions.

After the Civil War (1861-1865), the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution were ratified. And the Fourteenth (which is pretty long) includes this very important sentence: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

So, in matters where a person claims that the state is denying them equal protection under the law, or is abridging their privileges or immunities or otherwise depriving them without due process, the state is not immune to lawsuit.

Which brings us back to a man who is becoming my least favorite governor of any of these fifty, nifty United States: Pennsylvania Governor Tom Corbett. Corbett, you may recall, is defending his state’s ban on marriage equality and has gotten himself in trouble by first comparing adult same sex partners to children pretending to be married (and then unconvincingly apologizing while simultaneously saying he stood by the statement), and last week tried to distance himself from the statement by saying that a better comparison would be incest.

Now Corbett’s attorneys are arguing that a federal lawsuit against the marriage ban can’t go forward because of the sovereign immunity granted by the Eleventh Amendment.

The problem is that the lawsuit asserts the claim that the marriage ban is unconstitutional, specifically that it violates the Fourteenth Amendment’s guarantee of equal protection before the law. It’s not just a minor side issue, it is the central issue. Even before the adoption of the Fourteenth Amendment, it had been established that the federal courts have jurisdiction to rule whether a legislative or executive act is valid within the constitution. The Fourteenth was adopted explicitly to allow the federal courts to protect the rights of individuals from state action; it was intended to carve out exactly these kinds of exemptions to sovereign immunity.

I understand why the state’s Attorney General has asked to be removed: she isn’t enforcing the ban, she’s said she believes the ban is unconstitutional, and she has declined to defend it in court. That’s a different position.

In my first rant about Gov Corbett, I pointed out that his previous service included time as a prosecutor, the state Attorney General, and a U.S. Attorney. I’m beginning to wonder if he got his original legal degree from a box of Crackerjacks…

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