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Founder Fridays, Pt. 14: the 11th Amendment

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Charlotte, NC – “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 11A was ratified in response to the US Supreme Court decision Chisholm v. Georgia. In Chisholm, the court’s first significant decision, SCOTUS maintained that federal courts may hear cases brought against States by private citizens.

For example, a private citizen of New York could potentially bring a case against the state of Maine for whatever reason. The 11A overturned the court’s position on Chisolm v. Georgia.

Effectively, the 11A grants sovereign immunity to each individual state as a protection against lawsuits from individuals from other states. As a citizen of NC, I have a right to bring a case against NC in federal court for gerrymandering, but I could not bring a federal case against the state of California for 2A violations.

Sovereign immunity protects the interests of citizens of their respective states that are specific to each state: mining in WV, oil production in Texas, or tribal law in WY.

Congress does have the right, however, to abrogate a state’s sovereign immunity on a case-by-case basis. Fitzpatrick v. Bitzer established that, in pursuant to enforcement of Section 1 of the 14th Amendment, Congress may waive a state’s 11A protections. For example, if the a state has deprived a citizen of “life, liberty, or the pursuit of property”, then their 11A immunity may be waived.

What does all of this mean for us today? The system of checks-and-balances as imagined by our Founders is clearly demonstrated between Congress and the Supreme Court in 11A and 14A law.

Even so, it was Congress that drafted and submitted for ratification a Constitutional Amendment to overturn Chisholm v. Georgia. Is it possible the same strategy could be used again in modern times?

We could witness two scenarios in the coming months which could rattle the nation, and it all depends on this coming election. Scenario 1: SCOTUS overturns Roe v. Wade and Congress attempts to ratify an amendment to guarantee the right to choose. Scenario 2: Congress attempts to “stack the court” in response to a conservative super-majority. Leading democrats have called for both.

Congress has circumvented SCOTUS before and the precedent stands for lawmakers to do it again. The left does not care for decency, tradition, or doing the right the thing. They care about power.

Court stacking is a clear avenue to guarantee a continuance of that power. Congress could draft an amendment to guarantee an unfettered right to abortion, but your voice, as represented by your elected officials, will sway that decision in either direction.

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