{"id":4367,"date":"2026-04-13T09:23:30","date_gmt":"2026-04-13T14:23:30","guid":{"rendered":"https:\/\/gchristopherscruggs.com\/?p=4367"},"modified":"2026-04-13T09:23:30","modified_gmt":"2026-04-13T14:23:30","slug":"perils-of-judicial-overreach-and-the-constitutional-remedy-chisholm-v-georgia","status":"publish","type":"post","link":"https:\/\/gchristopherscruggs.com\/?p=4367","title":{"rendered":"Perils of Judicial Overreach and the Constitutional Remedy: Chisholm v. Georgia"},"content":{"rendered":"

\"\"<\/a>The Eleventh Amendment is the first Amendment to the Constitution after the Bill of Rights. Congress passed the Eleventh Amendment, and the states ratified it on February 7, 1795, though it did not take effect until 1798. The amendment states that \u201cThe 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.\u201d It was enacted to overturn the Supreme Court\u2019s 1793 decision in Chisholm v. Georgia<\/em>. I think it is worth studying because, although it was later overturned by amendment and clearly stepped beyond the intentions of those ratifying the Constitution, those involved were attempting to delineate a proper relationship between the Federal and State governments and to ensure the payment of war debts.\u00a0It illustrates three important realities: (i) well-meaning people can misunderstand the public\u2019s willingness to accept innovations, (ii) a tradition (in this case American and English law) does not speak with one voice, (iii) the amendment process is part of judicial correction when errors are made.<\/p>\n

The Issue<\/strong><\/p>\n

One of the most significant issues arising from the Constitution\u2019s adoption concerned the proper balance of power between the national government and the states. Federalists desired a strong central government that would unify the states into a single nation. Anti-Federalists feared and opposed a federal government that could threaten their status as independent, sovereign political entities. We continue to struggle to find a workable and effective solution to the delicate problem of implementing our system of divided sovereignty between the states and the federal government.<\/p>\n

This concern as regards judicial power was reflected in Article III of the Constitution. Article III covers lawsuits between states, between a state and citizens of another state, and between a state and foreign states, citizens, or subjects. During ratification debates, three states suggested placing explicit limits on suits against states, but these proposals were unsuccessful.\u00a0As was often the case when agreement could not be reached, the document was vague regarding the full scope of the federal judiciary’s powers.<\/p>\n

Those who opposed allowing states to be sued in federal court had several concerns. Most importantly, the states had accumulated substantial debt during the Revolutionary War. Although many of these debts had been assumed by the federal government under Alexander Hamilton\u2019s economic plan of 1790, state officials still had to cope with the possibility of being overwhelmed with financial claims by citizens of other states. They also feared being taken into federal court by frequent challenges to state land grants. A less concrete but equally important worry was based on the idea of state sovereignty. If states could be sued in federal court, many believed they would lose their sovereignty and independence as political units and become entirely subject to the federal government. These concerns all came to a head when the Supreme Court decided Chisholm v. Georgia.\u00a0<\/em><\/p>\n

Legal Debates Before Chisholm<\/strong><\/p>\n

Generally speaking, what we call \u201csovereign immunity\u201d prevents lawsuits against a government without its permission. As early as Blackstone\u2019s\u00a0Commentaries<\/em> on the Laws of England<\/em>, it was the law in England that \u201cno suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him.\u201d<\/p>\n

The delegates to the Constitutional Convention did not debate or address the issue of state sovereign immunity. However, Article III described the judicial power in language suggesting that states would be subject to suits by individuals in federal courts under certain conditions. This issue became a point of contention during the ratification debates. Anti-Federalist George Mason of Virginia asked, \u201cIs the sovereignty of the State to be arraigned like a culprit, or private offender? Will the States undergo this mortification?\u201d Patrick Henry argued that if states could be sued for debts, holders of the \u201cimmense quantity of depreciated Continental paper money in circulation at the conclusion of the war\u201d would be able to demand repayment of the face value of these notes \u201cshilling for shilling.\u201d<\/p>\n

Federalists, such as Alexander Hamilton, John Marshall, and James Madison, tried to ease concerns by claiming that states would not be forced to act as defendants in federal courts, regardless of what Article III states. Hamilton wrote in\u00a0Federalist<\/em>\u00a0No. 81, \u201cIt is inherent in the nature of sovereignty not to be amenable to the suit of an individual\u00a0without its consent<\/em>.\u201d During Virginia’s ratification debates, Madison argued that states would need to sue in federal court to bring a claim against a citizen of another state but that they would have immunity unless \u201ca state shall condescend to be a party.\u201d Marshall agreed, saying, \u201cIt is not rational to suppose that the sovereign power shall be dragged before a Court. The intent is to enable States to recover claims of individuals resident in other States.\u201d Patrick Henry ridiculed these claims, once again pointing to Article III\u2019s language about suits involving states \u201cwithout discriminating between plaintiff and defendant.\u201d<\/p>\n

This brings us to Chishom v. Georgia and an early example of judicial overreach that failed.<\/p>\n

The Facts and Runup to Chisholm<\/strong><\/p>\n

Chisholm v. Georgia<\/em> originated from actions taken during the early years of the Revolutionary War. [1]<\/a> In 1777, American troops stationed in Georgia needed supplies. Commissioners, authorized to act on behalf of the Georgia government, purchased the necessary items from Robert Farquhar, a South Carolina merchant. Although the commissioners had funds from the state treasury to pay Farquhar, they did not do so. Farquhar died in 1784 with the debt remaining unpaid. His executor, Alexander Chisholm, petitioned the Georgia legislature for payment, but the petition was denied in 1789.<\/p>\n

Following this denial, Chisholm filed a lawsuit against the state in the U.S. Circuit Court for the District of Georgia. Georgia argued that the state had sovereign immunity and could not be compelled to appear as a defendant. The case was heard by Supreme Court Justice James Iredell, riding circuit, and U.S. District Judge Nathaniel Pendleton, both of whom agreed that the court lacked jurisdiction. In 1792, Chisholm brought a suit in the Supreme Court of the United States, where Georgia again claimed sovereign immunity.<\/p>\n

The Supreme Court\u2019s Ruling<\/strong><\/p>\n

After the case was heard, the Supreme Court held that Georgia did not have sovereign immunity and could be sued by individual plaintiffs in federal court. Each justice wrote a separate opinion, with Chief Justice John Jay and Justices John Blair, Jr., James Wilson, and William Cushing in the majority, and Justice James Iredell dissenting. Chief Justice Jay noted that Georgia could not justify its objection simply because it was named as a defendant in federal court, since the Constitution allows suits between states, in which states will inevitably be defendants. The objection, therefore, was based on the fact that the plaintiffs were individual citizens of another state. \u201cThat rule is said to be a bad one,\u201d wrote Jay, \u201cwhich does not work both ways.\u201d In other words, if Georgia had the right to sue citizens of different states in federal court, it would be unjust for those citizens to be unable to sue Georgia.<\/p>\n

Jay then examined the language of the Constitution, which extended the judicial power \u201cto controversies between a state and citizens of another state.\u201d He argued that these words were \u201cexpress, positive, free from ambiguity, and without room\u201d for implied exceptions. To accept such an exception, Jay wrote, would \u201ccontradict and do violence to the principles of a free and equal national government, one of the great objects of which is, to ensure justice to all: To the few against the many, as well as the many against the few.\u201d<\/p>\n

James Wilson\u2019s Significant Contribution<\/strong><\/p>\n

While other justices based their decisions on the text of the Constitution, James Wilson believed the case depended on the question, \u201cDo the people of the United States form a Nation?\u201d Thus, Wilson begins his analysis with these words:<\/p>\n

The fundamental nature of the issue presented by the case was aptly characterized by Justice Wilson: This is a case of uncommon magnitude. One of the parties to it is a State; certainly respectable, claiming to be sovereign. The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others, more important still; and, may, perhaps, be ultimately resolved into one, no less radical than this\u2014 \u201cdo the people of the United States form a Nation?\u201d<\/strong>[2]<\/a><\/p>\n

The portion of his decision that is most important is his argument that sovereignty belonged to the people, who, by ratifying the Constitution, had committed themselves to the nation\u2019s laws. States, like the individuals within them, must not be exempt from enforcing those laws.[3]<\/a><\/p>\n

Justice Wilson began his analysis of Georgia\u2019s claim of sovereign immunity by contesting the appropriateness of the very term \u201csovereignty\u201d with regard to the new Constitution:<\/p>\n

To the Constitution of the United States the term Sovereign, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves \u201cSovereign\u201d people of the United States, But serenely conscious of the fact, they avoided the ostentatious declaration.<\/strong>[<\/strong>4]<\/a><\/p>\n

In Chisholm v. Georgia<\/em>, Wilson observes that \u201cthe term sovereign has for its correlative, \u2018subject,\u2019\u201d and in this context, it cannot be applied because it is not found in the U.S. Constitution. The Constitution mentions \u201ccitizens,\u201d but never \u201csubjects.\u201d In other words, Americans are citizens of the United States of America, but not subjects of its government. This is an important difference between the situation in the United States and Europe. Americans were never subjects at any time during their post-revolutionary history.<\/p>\n

Justice Wilson rejected the idea of \u201csubject\u201d regarding the case because he understood the Government of Georgia to be republican, meaning it is based on the principle that sovereignty resides in the body of the people. Wilson also argued that Georgia\u2019s citizens, when ratifying the Constitution, did not surrender their supreme or sovereign power to the state; instead, they kept it for themselves. Therefore, in terms of the Union\u2019s purposes, Georgia should not be considered a \u201csovereign state\u201d by the European definition.<\/p>\n

In summary, Wilson states that if the word \u201csovereignty\u201d is used at all, it refers to the people, not to any government formed by the people. I wonder if it might be a better course of action to consider the United States as consisting of three distinct sovereignties:<\/p>\n

    \n
  1. The Ultimate Sovereign (the people of the United States);<\/li>\n
  2. The Local Sovereign (the several states, sovereign in every area not specified in the Constitution); and<\/li>\n
  3. The National Sovereign (the government created by ratification of the Constitution, sovereign only within its Constitutionally prescribed areas of responsibility).<\/li>\n<\/ol>\n

    The analysis of Justice Wilson in Chisholm v. Georgia<\/em> best leads one to conclude that the sovereignties of the states and the national government are, under our system of government, derivative<\/u> sovereignties. The states are Local Sovereigns with the powers that were designated for them in their constitutions, and the federal government is the National Sovereign with the powers that were given to it by the Constitution. The people, however, retain ultimate sovereignty over both.<\/p>\n

    Chief Justice Jay\u2019s opinion supports the view that the United States is characterized by multiple sovereignties, as he uses the term \u201cjoint and equal sovereigns.\u201d In his opinion. [5]<\/a> \u00a0Jay affirmed the latter went on to affirm the \u201cgreat and glorious principle, that the people are the sovereign of \u00a0this country, and consequently that fellow citizens and joint sovereigns cannot be degraded by appearing with each other in their own Courts to have their controversies determined.\u201d[6]<\/a><\/p>\n

    This kind of language supports the view that, in the United States there is one ultimate sovereign (the people) and two subordinate sovereigns, each sovereign only within the limits granted by the constitutions that formed them.<\/p>\n

    Aftermath and Legacy<\/strong><\/p>\n

    In his dissent, Justice Iredell asserted that every state was \u201ccompletely sovereign\u201d other than where its powers had been delegated to the federal government. On the nature of sovereignty, Justice Iredell had the following view:<\/p>\n

    Every State in the Union in every instance where its sovereignty has not been delegated to the United States, I consider to be as compleatly 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.<\/strong> [7]<\/a><\/p>\n

    According to Iredell, no suit by private citizens against a state could proceed without the state\u2019s consent unless there was English common-law precedent to support such an action. Finding an English case allowing a claim against the Crown to proceed inapplicable to the present case, Iredell believed that the Supreme Court lacked jurisdiction over the plaintiffs\u2019 claim against Georgia.\u00a0After a Constitutional Amendment, Iredell\u2019s view prevailed.<\/p>\n

    Interestingly, although the justices did not agree on the merits of the case, they did agree that the Ultimate Sovereign in the United States is the people themselves, and each of the national and state governments are local and national sovereigns, with only such powers as the Ultimate Sovereignty of the people has given them. This is consistent with the language of the Constitution that \u201cThe powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.\u201d[8]<\/strong><\/a><\/em><\/p>\n

    Conclusion<\/strong><\/p>\n

    I wouldn’t spend an entire blog on just one Supreme Court case if I didn’t truly believe it was so important. It’s not only crucial for understanding the history of the Constitution and the 11th<\/sup> Amendment, but also for shaping how we view our government today. Sadly, many Americans have come to see the national government as the ultimate authority. After the Civil War, the balance of power between state and federal governments shifted, with the federal government becoming the more powerful of the two. But, it’s important to remember that nothing in the Civil War amendments takes away the ultimate sovereignty of the people of the United States over their government.<\/p>\n

    As our national, state, and local governments develop increasingly detailed rules that influence almost every aspect of our daily lives, it\u2019s important to remember that this can sometimes feel like overreach that infringes on the rights of the people. While the federal government has expanded its regulatory scope and built a large bureaucracy, it\u2019s also vital to remember that the Constitution limits the areas the federal government can regulate. When definitions of federal powers broaden too much, they can unintentionally encroach upon the sovereignty that rightfully belongs to the people.<\/p>\n

    In an increasingly urban and socially and economically interdependent society, it is easy to forget the people’s ultimate sovereignty as governments struggle to solve social problems. Nevertheless, both state and federal governments need to remember that they serve the people, not rule over them.<\/p>\n

    Copyright 2026, G. Christopher Scruggs, All Rights Reserved<\/strong><\/em><\/p>\n

    [1]<\/a> 2 U.S. (2 Dall.) 419 (1793).<\/p>\n

    [2]<\/a> Chisholm v Georgia<\/em>, 2 U.S. (2 Dall.) at 453 (Wilson, J.)<\/p>\n

    [3]<\/a> Randy Barnett,\u201d The People or the State?: Chisholm v. Georgia and Popular Sovereignty\u201d 93 Va. L. Rev. 1729-1758 (2007).<\/p>\n

    [4]<\/a> Chisholm v. Georgia<\/em>, 454. See also, Barnet above, at 1731.<\/p>\n

    [5]<\/a> Id<\/u>, 477 (Jay, C.J.).<\/p>\n

    [6]<\/a> Id<\/u>, 479<\/p>\n

    [7]<\/a> Id<\/u>, 435,<\/p>\n

    [8]<\/a> U.S. Const. amend. X.<\/p>\n","protected":false},"excerpt":{"rendered":"

    The Eleventh Amendment is the first Amendment to the Constitution after the Bill of Rights. Congress passed the Eleventh Amendment, and the states ratified it on February 7, 1795, though it did not take effect until 1798. The amendment states that \u201cThe Judicial power of the United States shall not be construed to extend to … Continue reading Perils of Judicial Overreach and the Constitutional Remedy: Chisholm v. Georgia<\/span> →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[1],"tags":[],"class_list":["post-4367","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p4CzBH-18r","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/posts\/4367","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4367"}],"version-history":[{"count":3,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/posts\/4367\/revisions"}],"predecessor-version":[{"id":4370,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/posts\/4367\/revisions\/4370"}],"wp:attachment":[{"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4367"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4367"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4367"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}