Chisholm v. Georgia/Separate Blair

by John Blair (1732–1800)

Blair, Justice.In considering this important case, I have thought it best to pass over all the strictures which have been made on the various European confederations; because as, on the one band, their likeness to our own is not sufficiently close to justify any analogical application; so, on the other, they are utterly destitute of any binding authority here. The Constitution of the United States is the only fountain from which I shall draw; the only authority to which I shall appeal. Whatever be the true language of that, it is obligatory upon every member of the Union; for no State could have become a member, but by an adoption of it by the people of that State. What then do we find there requiring the submission of individual States to the judicial authority of the United States? This is expressly extended, among other things, to controversies between a State and citizens of another State. Is then the case before us one of that description? Undoubtedly it is, unless it may be a sufficient denial to say that it is a controversy between a citizen of one State and another State. Can this change of order be an essential change in the thing intended? And as this alone a sufficient ground from which to conclude, that the jurisdiction of this Court reaches the case where a State is Plaintiff, but not where it is Defendant? In this latter case, should any man be asked, whether it was not a controversy between a State and citizen of another State, must not the answer be in the affirmative? A dispute between A. and B. is surely a dispute between B. and A. Both cafes I have no doubt, were intended; and probably the State was first named, in respect to the dignity of a State. But that very dignity seems to have been thought a sufficient reason for confining the sense to the case where a State is plaintiff. It is, however, a sufficient answer to say, that our Constitution most certainly contemplates, in another banch of the cases enumerated, the maintaining a jurisdiction against a State, as Defendant; this is unequivocally asserted when the judicial power of the United States is extended to controversies between two or more States; for there, a State must, of necessity, be a Defendant. It is extended also, to controversies between a State and foreign States; and if the argument taken from the order of designation were good, it would be meant here, that this Court might have cognizance of a suit, where a State is Plaintiff, and some foreign State a Defendant, but not where a foreign State brings a suit against a State. This, however, not to mention that the instances may rarely occur, when a State may have an opportunity of suing in the American Courts a foreign State, seems to lose sight of the policy which, no doubt, suggested this provision, viz. That no State in the Union should, by withholding justice, have it in its power to embroil the whole confederacy in disputes of another nature. But if a foreign State, though last named, may, nevertheless, be a Plaintiff against an individual State, how can it be said, that a controversy between a State and a citizen of another State means, from the mere force of the order of the words, only such cafes where a State is Plaintiff? After describing, generally, the judicial powers of the United States, the Constitution goes on to speak of it distributively, and gives to the Supreme Court original jurisdiction, among other instances, in the case where a State shall be a party; but is not a State a party as well in the condition of a Defendant as in that of a Plaintiff? And is the whole force of that expression satisfied by confining its meaning to the case of a Plaintiff-State? It seems to me, that if this Court should refuse to hold jurisdiction of a case where a State is Defendant, it would renounce part of the authority conferred, and, consequently, part of the duty imposed on it by the Constitution; because it would be a refusal to take cognizance of a case where a State is a party. Nor does the jurisdiction of this Court, in relation to a State, seem to me to be questionable, on the ground that Congress has not provided any form of execution, or pointed out any mode of making the judgment against a State effectual; the argument ab in utili may weigh much in cases depending upon the construction of doubtful Legislative acts, but can have no force, I think, against the clear and positive directions of an act of Congress and of the Constitution. Let us go on as far as we can; and if, at the end of the business, notwithstanding the powers given us in the 14th section of the judicial law, we meet difficulties insurmountable to us, we must leave it to those departments of Government which have higher powers; to which, however, there may be no necessity to have recourse: Is it altogether a vain expectation, that a State may have other motives than such as arise from the apprehension of coercion, to carry into execution a judgment of the Supreme Court of the United States, though not conformable to their own ideas of justice? Besides, this argument takes it for granted, that the judgment of the Court will be against the State; it possibly may be in favor of the State; and the difficulty vanishes. Should judgment be given against the Plaintiff, could it be said to be void, because extra-judicial? If the Plaintiff, grounding himself upon that notion, should renew his suit against the State, in any mode in which she may permit herself to be sued in her own Courts, would the Attorney General for the State be obliged to go again into the merits of the case, because the matter, when here, was coram non judice? Might he not rely upon the judgment given by this Court in bar of the new suit? To me it seems clear that he might. And if a State may be brought before this Court, as a Defendant, I see no reason for confining the Plaintiff to proceed by way of petition; indeed there would even seem to be an impropriety in proceeding in that mode. When sovereigns are sued in their own Courts, such a method may have been established as the most respectful form of demand; but we are not now in a State-Court; and if sovereignty be an exemption from suit in any other than the sovereign’s own Courts, it follows that when a State, by adopting the Constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty.

With respect to the service of the summons to appear, the manner in which it has been served seems to be as proper as any which could be devised for the purpose of giving notice of the suit, which is the end proposed by it, the Governor being the head of the Executive Department, and the Attorney General the law-officer, who generally represents the State in legal proceedings: And this mode is the less liable to exception, when it is considered, that in the suit brought in this Court by the State of Georgia against Brailsford^[1] and others, it is conceived in the name of the Governor on behalf of the State. If the opinion which I have delivered, respecting the liability of a State to be sued in this Court, should be the opinion of the Court, it will come in course to consider, what is the proper step to be taken for inducing appearance, none having been yet entered in behalf of the Defendant. A judgment by default, in the present stage of the business, and writ of enquiry of damages, would be too precipitate in any case, and too incompatible with the dignity of a State in this. Farther opportunity of appearing to defend the suit ought to be given. The conditional order moved for the last term, the consideration of which was deferred to this, seems to me to be a very proper mode; it will warn the State of the meditated consequence of a refusal to appear, and give an opportunity for more deliberate consideration. The order, I think, should be thus: ‘Ordered, that unless the State of Georgia should, after due notice of this order, by a service thereof upon the Governor and Attorney General of the said State, cause an appearance to be entered in behalf of the State, on the 5th day of the next Term, or then shew cause to the contrary, judgment be then entered up against the State, and a writ of enquiry of damages be awarded.’

1. Ant. p.