Editor’s note: This is the latest installment of a project exploring the amendments to the U.S. Constitution.
Construction projects require change orders. Most contractors will tell you what starts on paper and what is set in stone are seldom the same thing. No matter how careful the plans, things change when the work begins.
It did not take long for that to happen with the U.S. Constitution.
No, not the Bill of Rights, the 10-point list that was passed in 1791. The next change was just four years down the road.
“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 11th Amendment reads.
So why was that necessary? Doesn’t the 10th Amendment already address that with “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively”?
We have to blame a guy named Alexander Chisholm and the state of Georgia.
Chisholm represented the estate of a South Carolina resident who claimed Georgia had failed to honor a contract for supplies provided during the American Revolution. When he sought to sue the state, it raised a constitutional question: Could a state be sued by a citizen of another state?
Four Supreme Court justices said yes. Justice James Iredell was the lone dissenter.
“Every State in the Union in every instance where its sovereignty has not been delegated to the United States, I consider to be completely sovereign,” he wrote.
Two years later, the Constitution was changed to agree with him.
Follow any taxpayer-funded building project and you will see how those change orders can add up over time, eating into contingency funds and ballooning the scope beyond what was originally intended.
You can see the same thing at work in the way the 11th Amendment has been used or interpreted over time.
The original text only addressed suits against a state in federal court by citizens of another state or foreign country. Over time, however, courts expanded the doctrine of sovereign immunity far beyond those circumstances. States gained protection from suits filed by their own residents. The shield extended beyond federal courts and into state courts.
Interestingly, that protection does not extend to all government entities. Counties, cities, school districts and other local governments remain fair game for lawsuits.
Of course, sovereign immunity is not absolute. States can waive it and agree to be sued.
So why would a state ever consent to that? If you find it hard to puzzle out, you aren’t alone.
“Many academics and judges struggle to make sense of modern U.S. Supreme Court jurisprudence on sovereign immunity,” the National Association of Attorneys General says.
Sometimes it is simply because it is the right thing to do. If there was obvious negligence on the state’s part, for example, the state can suffer a real black eye by hiding behind immunity. In contracts, a pattern of failing to deal fairly can make it harder to find contractors and vendors willing to do business.
The first constitutional change order solved one problem. Like many change orders, however, it created new questions that would be debated for generations.
That may be the most fitting lesson of the 11th Amendment. Construction is rarely finished the moment a change is approved. The work continues.