Hello and welcome back to the Civic Flame, a podcast where we take a deep dive into the U.S. Constitution and look at how it is and is not shaping the government today. WeÕre back from our long summer break and happy to be bringing you more constitutional content as we roll towards the fall. IÕm your host Amber Vayo, and today weÕre going to talk about an Amendment that might have you saying Òwhat?Ó Mostly because no one ever thinks about it. Those First Ten Amendments in the Bill of Rights get all the attention, then those Civil War Amendments 13-15 become a big deal. But our friends 11 and 12, despite shaping the federal and state governments, get forgotten, especially the 11th. Maybe theyÕre the middle children or the Gen X of Amendments. Just kidding, if they were Gen Xers, theyÕd be more quotable and sarcastic. (music) The Eleventh Amendment says, ÒThe 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.Ó Sounds like lawyer talk. Well, thatÕs because it is. Article III of the Constitution, which weÕve talked about before, deals with the Judicial Branch of our government. It sets up the Supreme Court, gives Congress the power to make some decisions over Òinferior courts,Ó and talks a little about judges. What is alsoÑmaybeÑdid was give citizens the right to sue states. There was some controversy about this from the Anti- Federalists (those were the guys who did NOT want a Constitution), but what was surprising is that there was some questions about this within the Federalists (who did want the Constitution). Some Federalists like Alexander Hamilton and James Madison who wrote The Federalist Papers said that Article III did not allow individuals to sue states; others werenÕt so sure. What happened? As you can imagine, whenever the law is unclear, people are going to push on it a bit to see how far they can go. And thatÕs what they did. One of the most famous cases is Chisolm v Georgia, a 1793 case where a citizen of Georgia sued the state of Georgia for debts due to the U.S. Revolution. Interestingly, when the case went to the Supreme Court, the Court voted 4-1 that the case could go through per the language of Article III. So that settled that questions. Sort of. In Massachusetts, because weÕve always got to start some crap, Vassall v MA also went through in 1793 to see if Vassall, a British subject wanted to sue Massachusetts for breaching the peace treaty by confiscating his stuff. Massachusetts Senator Caleb Strong, who was not looking forward to the state being sued and was concerned about what the Court decided in Chisholm, proposed what would become the 11th Amendment and take away an individualÕs right to sue the state. Sort of. And really sort of because itÕs been unclear ever since what the guidelines are on who can sue states and under what circumstances. There have been some rulings that the federal government can sue states under the 14th Amendment. But as federal legislation became more common after World War II, there have been a lot of questions about when the federal government can sue states and how states can fight back. These are actually still questions about what level states have sovereignty. This has come up recently with things like COVID vaccine and lockdown mandates, and sanctuary cities. In the future, youÕll likely see much thornier questions relating to data centersÑor more realistically calledÑsurveillance centers. The federal government is going to claim eminent domain and the states are going to say no. Then the courts will decide if the federal government can sue the states into compliance. You might see the same question with the contemporary bulldozing of our national parks by the federal government because that creates some questions about whose land that is (and if you know me, you know IÕm in favor of returning all of the national parks to sovereign indigenous nations). But either way, the 11th Amendment plays a unique spot in our national legal culture. Sovereign immunity means that the states have sovereignty (they get the last word) on state stuff and canÕt be sued. But the Supreme Court has continued to carve out exceptions or what is called ÒdifferentiatingÓ certain areas. So, theyÕll look at two cases and say whatÕs different about them that means one is ruled in one way and one in another. I think the most recent case to deal with this question had to do with PennEast Pipeline Co. v. New Jersey in 2021. The Supreme Court ruled that states gave up some amount of sovereignty when they ratified the Constitution (a legal fact that really sticks in my craw), and in this case a federal agency bringing through a key resource (natural gas) does not violate state sovereignty because thatÕs the hierarchy. WhatÕs wild about this is how the votes came down. In favor of the ruling were republican judges Roberts, Alito, and Kavanaugh, and Democrat judges Breyer and Sotomayor. In the dissent were Republican judges Thomas, Goursuch, and Barret, and Democrat judge Kagan. And this, I think highlights the way we can be political without necessarily being partisan. These judges have certain political party/partisan leanings, but one actual legal issues and actual political issues about how power gets passed around, they do come to different understandings that are not aligned with all parties. ItÕs nice to see these kinds of issues still coming up, though I get a little cranky at most of the limits on state sovereignty that are strictly related to civil liberties and rights, and ones like these that go against private property make me uncomfortable (again, I went to high school in Texas, there are some things that stick). But overall, the 11th Amendment provides an interesting lesson in how we can understand differences of opinion about power distribution over time, how the law shapes who gets legal priority, and how we can unpack different interpretations of the Constitution without jumping into our favorite political partyÕs talking points. (transition) So, thatÕs the 11th Amendment and a look at some important things about how Constitutional law and the powers of our government develop over time. WeÕre going to go and write up the 12th Amendment, which contains the seeds of the electoral college, so make sure you have something to throw when you listen in next week! In the meantime, check out our Birtzillas and Mother of Democracy podcasts where ever you listen to this one. And if youÕre looking for book recommendations, pick up Timothy EganÕs Fever in the Heartland or Gil DuranÕs The Nerd Reich. WeÕll be trying to get to our reviews of both soon! Until then, take care out there and keep the civic flame burning bright. (outro) The Civic Flame is a Mother of Democracy podcast with writer Amber Vayo and sound producer Matt Munyon. Thanks for listening!