Skip to main content

Happy Friday and welcome to the 15th installment (does this feel like a 30 year mortgage to anyone else?) in the Dog’s series on the United States Constitution. This series is taking a layman’s look at the Constitution and talking about what each part means. If you have never read the whole thing before, the Dog recommends that you do. After all it is the foundational document of our entire system of law, so it is worth knowing. If you have not been following this series you can find the previous installments at the following links;

Friday Constitutional 1 – Preamble, Article One, Sections 1 and 2
Friday Constitutional 2 – Article One, Sections 3 and 4
Friday Constitutional 3 – Article One, Sections 5 and 6
Friday Constitutional 4 – Article One; Sections 7 and 8
Friday Constitutional 5- Article One, Sections 9 And 10
Friday Constitutional 6 - Article Two, Section One, Clauses 1-3
Friday Constitutional 7 - Article Two, Sections 1-4
Friday Constitutional 8 - Article 3 Judicial Branch
Friday Constitutional 9 - Article 4 Relationships Between The States
Friday Constitutional 10 - Articles 5, 6 and 7
Friday Constitutional 11 - Amendments 1 and 2
Friday Constitutional 12 - Amendments 3 And 4
Friday Constitutional 13 - Amendments 5 And 6
Friday Constitutional 14 Amendments 7 - 10

We have completed the Articles and the Bill of Rights and are now working on the last 16 Amendments of the Constitution. Today we will start with Amendment 11.

Amendment Eleven:

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.

By itself this Amendment is a little impenetrable. It was passed as a clarification of Article 3, Section 2 of the Constitution, specifically Clause One which reads:

Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects

Basically what this boils down to is the concept of Sovereign Immunity. Basically you can not sue the Federal Government unless it agrees to let the case be heard. Yes, you read that right. The Government reserves the right to prevent you from suing it, as a citizen, except under very specific circumstances. The exceptions are detailed in the Federal Tort Claims Act and the Tucker Act. These acts allow a citizen to sue the Government if there is a claim resulting from either the actions of a federal employee or if there is a case involving contracts with the Federal Government.

Now, Amendment 11 extends this same sovereign immunity to the States in terms of the Federal Courts. What that means is that you as a citizen can not use the Federal Courts to sue another State Government, without the consent of the State. There is no Constitutional prohibition about suing your own State, but the Supreme Court has consistantly ruled that this is part of the basic structure of the Constitution and so did not need to be detailed.

 The Dog believes the reason for this is to prevent citizens from tying up their government with suits that arise from the normal operation of the government. As a practical matter it forces citizens that don’t like the way things are being run to replace their government officials instead of just suing the government.

Now, this does not apply to crimes committed by members of the government or the government itself. There is what is called a Stripping Doctrine that says when a government employee or official commits a crime, they have lost their immunity. So, in the case of torture or War Crimes there can be no reasonable sovereign immunity defense.

Amendment Twelve:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

In 1804 Amendment Twelve was proposed from the States, to change the way that the President was elected. Originally the Electors of the Electoral College had two votes that they could cast for President, but they could not vote for someone from their State. In 1800 there was a situation where there were multiple ballots and it was clear that this system had major flaws.

This is also the Amendment that changed the way that the Vice President was elected. Previously it was not only conceivable but likely that a President would have a defeated opponent as his Vice President. While the Framers liked checks and balances in their government, they were not really in favor of outright dysfunction that this could cause. The Constitution was changed to make it easier to elect the President and Vice President as a team.

This is one of the few Amendments that came from the States to the Congress, instead of the other way around that is most common. It was further amended by the 20th Amendment in 1933, but we will talk about that when we get there.

The Dog thinks that is enough for this week. Any thoughts on Sovereign Immunity or the way we elect the president, citizens?

The floor is yours.

Originally posted to Something the Dog Said on Fri Feb 13, 2009 at 08:39 AM PST.

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  Tips? Flames? (17+ / 0-)

    Thoughts? Corrections? Jokes? Riddles? Emotional Outbursts?

    One thought, do ya'll think that soveriegn immunity is the basis for the phrase "you can't fight City Hall"?

    Getting Dems together and keeping them that way is like trying to herd cats, hopped up on crank, through LA, during an earthquake, in the rain. -6.25, -6.10

    by Something the Dog Said on Fri Feb 13, 2009 at 08:41:04 AM PST

    •  Damn it! I can not spell (4+ / 0-)
      Recommended by:
      polecat, ratador, Youffraita, bfitzinAR

      sovereign to save my life! I before E sucks when you are dyslexic.

      Getting Dems together and keeping them that way is like trying to herd cats, hopped up on crank, through LA, during an earthquake, in the rain. -6.25, -6.10

      by Something the Dog Said on Fri Feb 13, 2009 at 08:42:27 AM PST

      [ Parent ]

    •  Sovereign immunity (2+ / 0-)

      Essentially, yeah, I do!  

      Case in point:  my rural two acres had an easement across the North end, but about three decades ago unwisely allowed a neighbor to fence it.  All was well until the local municipality bought the plot, made a park there, and added a big road.  Bye bye long gone to any chance of gettng back that .15 of a acre.  Yet I still pay property taxes on it.  Apparently the only way to get my deed corrected is to pay to sue my own title insurance!

      "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

      by lgmcp on Fri Feb 13, 2009 at 08:45:58 AM PST

      [ Parent ]

      •  Strange...(another neat comparison) (2+ / 0-)
        Recommended by:
        lgmcp, Something the Dog Said

        Something similar happened to a person who owned our house prior to us.  (not a park, but a printing office used by the municiplity).  The city was obliged to pay a fee for land, which amounted to a reduction of taxes.  When you buy a house here, you get all the legal documentation that was ever associated with it!

        Of course, we live under Napoleonic Code here.  Isn't that cool?

        Member of the "Fellows of the Ass Society." Dedicated to reminding people that most knowledge still comes from books. Not Wikipedia.

        by David Kroning on Fri Feb 13, 2009 at 08:51:58 AM PST

        [ Parent ]

    •  Need a new series on Amendments we'd like to see (1+ / 0-)
      Recommended by:
      Something the Dog Said

       1) Limit the powers of the Vice President (and term limits)

       2) Limit to whom the President can delegate authority to Senate Confirmed Appointees (and not the VP and not the First Spouse) And if that person's porfolio changes they need reapproval for the new functions.

       3) Explicitly state that the Executive must a) follow the laws unless/until they're declared unconstitional by the Judiciary and b) that they DO apply to the Executive as well.

       4) Replace the DOJ with a new department from the ground up.  I would increase the number of Senators that must agree to the appointment and add a lot of teeth to the oversight requirements of the Replacement DOJ.  {Department of Law and Order?}

       5) Apply limits to the Executive on pardoning members or former members of his own administration -- possibly adding an OVERRIDE in the House of a Pardon, including a Pardon from a previous administration.

       6) A privacy Amendment that explicitly states what is private and public and makes allowances for technologies that we can't even imagine now.  (Like detecting EEG fields around people to determine how they feel, or tracking their eyes or pupils, etc.)

      Happy little moron, Lucky little man.
      I wish I was a moron, MY GOD, Perhaps I am!
      -Spike Milligan

      by polecat on Fri Feb 13, 2009 at 09:47:35 AM PST

      [ Parent ]

      •  Wow, I don't think I agree with any of those. (2+ / 0-)
        Recommended by:
        polecat, unspeakable

        1 and 3 are already covered by the law and the Constitution. Putting more Amendments in would not get the result you want, only enforcement of the law gets that.

        2 would be really hard to enforce. You would be making the President even more hostage to the politics of the Senate.

        1. I am never in favor of throwing the baby out with the bath water. It is often tempting to want to start from scratch but what would you do for the decade while you were transitioning? You would disrupt the entire criminal justice system, with unknowable results.
        1. There might be some merit there but what Party with their own president in the WH would vote to limit his power of pardon? I know the Repugs would not and have strong doubts the Dems would either. Without that vote in both the House and the Senate, you can not get the Amendment enacted.
        1. How do you make law for tech the does not exist? We would not be able to do so. But really all the best rights are broadly written and construed so I think that it would be a mistake to try to detail something like that and then have some asshat in 100 years argue that since we did not list induced telepathy as a prohibited method, it is a-okay.

        Getting Dems together and keeping them that way is like trying to herd cats, hopped up on crank, through LA, during an earthquake, in the rain. -6.25, -6.10

        by Something the Dog Said on Fri Feb 13, 2009 at 09:58:58 AM PST

        [ Parent ]

        •  rebuttal (0+ / 0-)


          1. There is no term limit on the Vice President of the United States.  There is no official portfolio for the Vice President of the United States.  There is no official budget for the Vice President of the United States.  There is no oversight for the Vice President of the United States. -- can you say "fourth branch?"
          1. Would you rather a first spouse running around with no oversight making all kinds of deals?  Where would we be right now with Bill Clinton as the first spouse?  
          1. I'm sure Nixon and Bush would beg to differ.  Not to mention John Yoo and Dick Cheney.
          1. "You would disrupt the entire criminal justice system, with unknowable results."  As if we aren't there right now?
          1. This was written in anticipation of the Pardons that W didn't deliver.  I expected far, far worse.  However, there is no override for a pardon, and I think under some circumstances there should be.  Remember Andy Jackson managed to get a censure against from (from the Senate) undone after the following election.  Quasi-precedent.
          1. I think you could draw boundaries as to the kinds of protections (thought, feelings, etc) that we should have.  Already functional MRI's can tell you if someone is lying.  For real.  And thermal imaging can tell (remotely, without a warrant) some things about people.  There should be some thoughtful lines drawn.  It's not like we haven't had Science Fiction since Jules Verne.

          Happy little moron, Lucky little man.
          I wish I was a moron, MY GOD, Perhaps I am!
          -Spike Milligan

          by polecat on Fri Feb 13, 2009 at 11:08:22 AM PST

          [ Parent ]

          •  Re: Polecat's No. 1 (1+ / 0-)
            Recommended by:
            Something the Dog Said

            No Fourth Branch:  No duties, no money, no office or other fixed abode;thus, no power. What Cheney did was illegal simply because the duties he assumed were not delegatable to the VP except as shown in a later amendment.

            Also, re Polecat's No.6--The ninth amendment's power is that it rules out the silly notion that a claimed right has to be spelled out in the Constitution be a right. That's why Scalia/Thomas et al. are wrong. Did I say that loud enough?  No?  WRONG.

            •  Exactly! (0+ / 0-)

              There is not a need to address these issues constitutionally, they are already there.

              Instead of amending the constitution to address these problems, we should enforce our existing law to the fullest extent. If the Congress is unwilling then they should be removed and replaced.

              We need to address abuses within the system, not totally remake the system. As for DOJ, we do have a functional DOJ right now, doing a ground up change is likely to make it more like Homeland Security.

              Getting Dems together and keeping them that way is like trying to herd cats, hopped up on crank, through LA, during an earthquake, in the rain. -6.25, -6.10

              by Something the Dog Said on Fri Feb 13, 2009 at 01:00:16 PM PST

              [ Parent ]

      •  No thanks (1+ / 0-)
        Recommended by:
        Something the Dog Said

        I disagree with most of your ideas for specific reasons that have already been stated.  The Bush-Cheney junta was (please G*d) an aberration that has been corrected.  Admittedly, in my heart of hearts I'd like AG Holder and the Solicitor General to actively lose some of the cases regarding executive powers to restore some balance, but the Constitution needs to be obeyed, not amended.  
        I feel the pardon power should remain absolute, no matter the abuses that result.  A number of states limit the governor's pardon power, with the result that even obvious miscarriages of justice can't be corrected.
        I would rather not "explicitly state what is private" in the Constitution, as there are too many yahoos who are willing to surrender their privacy for the illusion of security.  If I leave it to the political process (which is ultimately what a Constitutional amendment is), I'm too likely to be shafted by the security lemmings.
        Generally speaking, I am quite conservative when it comes to amending the Constitution, whether proposed from the left or the right.  Usually, they are kneejerk responses to a temporary problem that will soon be corrected in ordinary business.

  •  Dang, how did I miss this series til now? (3+ / 0-)

    On a thing I've been particularly meaning to study up on, too?  I gots some catching up to do.  Off the top of my head I can explain only maybe a third of them.

    "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

    by lgmcp on Fri Feb 13, 2009 at 08:42:26 AM PST

  •  This is a very worthwhile... (2+ / 0-)
    Recommended by:
    lgmcp, Something the Dog Said

    ...project.  I appreciate your efforts.  I've printed all the diaries out for future reference.
    Yea dog. Tipped & rec'ed

    The optimist thinks this is the best of all possible worlds. The pessimist fears it is true. J. Robert Oppenheimer {-8.25 / -5.64}

    by carver on Fri Feb 13, 2009 at 08:51:11 AM PST

  •  A question (2+ / 0-)

    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,

    Now, Amendment 11 extends this same sovereign immunity to the States in terms of the Federal Courts. What that means is that you as a citizen can not use the Federal Courts to sue your State Government, without the consent of the State.

    I am confused.  It seems that a plain-text reading of the amendment says that I, a citizen of California, cannot sue the state of Illinois in Federal Court, yet you indicate that it prevents me from suing California.  Huh?

    •  There is case law, (0+ / 0-)

      outside the Constitution that prevents you from doing so. In it they rely on the not the 11th but the actual structure of the Constitution. It is the idea that the States were sovereign prior to joining the United States and should have that immunity extended to them as well. I don't really agree but it is pretty settled law.

      Getting Dems together and keeping them that way is like trying to herd cats, hopped up on crank, through LA, during an earthquake, in the rain. -6.25, -6.10

      by Something the Dog Said on Fri Feb 13, 2009 at 08:58:36 AM PST

      [ Parent ]

  •  I'll enjoy going back and reading this.... (2+ / 0-)
    Recommended by:
    Something the Dog Said, ratador

    I teach American political history, but in a foreign university--thus I can't go into an immense amount of detail; they come into the course with almost no knowledge of American history.

    We can spend an entire class just discussing the First Amendment.  They are always amazed that it protects people like the KKK.

    Member of the "Fellows of the Ass Society." Dedicated to reminding people that most knowledge still comes from books. Not Wikipedia.

    by David Kroning on Fri Feb 13, 2009 at 08:56:17 AM PST

  •  So now I am wondering (2+ / 0-)

    Basically you can not use the Federal Government unless it agrees to let the case be heard.

    In what instances, if any, HAS the government granted the right to bring such cases?  Other than the exceptions you mention for individual malfeasance and for contracting?

    "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

    by lgmcp on Fri Feb 13, 2009 at 08:58:02 AM PST

    •  None. They really (2+ / 0-)
      Recommended by:
      lgmcp, David Kroning

      guard this right jealously. If you have a beef with the government that is a tort that is not specified in the Tort Act, you are out of luck. It is why the citizens of CA can not sue the Feds for air quality, but the State can.

      Getting Dems together and keeping them that way is like trying to herd cats, hopped up on crank, through LA, during an earthquake, in the rain. -6.25, -6.10

      by Something the Dog Said on Fri Feb 13, 2009 at 09:00:45 AM PST

      [ Parent ]

    •  Its pretty limited (3+ / 0-)

      By and large, I think it's for the best though.  

      The FTCA allows you to sue the government for a lot of the things you'd normally sue a non-governmental actor for.  Without the immunity you could get a lot of nonsense cases.  You know about the ballot measure process in CA that everyone complains about?  Imagine if the gov't had to spend money defending all those cases.  

      And it's not like the citizens are without remedy.  It feels like there's an elections every year nowadays.

      •  Did I get that right? (2+ / 0-)
        Recommended by:
        lgmcp, syl

        That basically you are kept from suing over the basic operation of the government?

        Getting Dems together and keeping them that way is like trying to herd cats, hopped up on crank, through LA, during an earthquake, in the rain. -6.25, -6.10

        by Something the Dog Said on Fri Feb 13, 2009 at 09:12:07 AM PST

        [ Parent ]

        •  By and large (2+ / 0-)
          Recommended by:
          lgmcp, Something the Dog Said

          I think that's the idea.  There are some exceptions and quirks, but the gist of the FTCA is that you can sue the government, but only for stuff that you could sue a regular non-governmental actor for.  

          It's also why taxpayer standing is extremely limited.  Because when you think about it, most government act could theoretically be subject to a due process review.

          The FTCA actually has an interesting back story.  The cause-celebre that led to its passage was a plane crashing into the empire state building.

    •  It's actually pretty broad, except when you (2+ / 0-)
      Recommended by:
      lgmcp, Something the Dog Said

      are seeking money.

      You can challenge virtually anything the government does in the realm of whether its actions violate the law. Common examples are failure to comply with the FOIA, Environmental Protection Act, the Administrative procedures act, etc. The APA is a biggie and is the common method to stop or delay regulatory actions. You can stop things from happening if you successfully argue they violate the law or regulation. You just can't get money, except your attorney fees if you separately show that the government's position lacked substantial merit.

  •  Dog, the 11th doesn't prohibit a citizen of a (1+ / 0-)
    Recommended by:
    Something the Dog Said

    state from suing that state in Federal court. It only prohibits a citizen of one state from suing another state in Federal Court. In 1890 or so the SC expanded the sovereign immunity concept to include suits against your own state but the rationale was not really the 11th amendment. Rather it was based on a determination that the sovereign immunity principles that were accepted at the time of ratification were not altered by the Constitution.

  •  There is a broad waiver of (1+ / 0-)
    Recommended by:
    Something the Dog Said

    sovereign immunity under the Adminisrative Procedures Act. The APA provides that courts will set aside agency decisions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

    Every suit I defended cited this provision. The FTCA and Tucker Acts apply to suits where people are seeking money. But if you want to stop the government from doing something, in most cases there are no threshold limits to filing an action. Proving your case is another matter.

    •  Okay, so let me test my understaning here. (1+ / 0-)
      Recommended by:
      Gary Norton

      As long as you are not trying to get monetary relief from your government, but merely trying to ensure through the courts that they do what they have committed to do, you can sue.

      If you are injured by the actions of a government employee, say a guy with a suspended license drives a government car into your house, you can, because it is a tort.

      If they break their word in a contract with you, you can sue for damages.

      Does that cover it correctly?

      Getting Dems together and keeping them that way is like trying to herd cats, hopped up on crank, through LA, during an earthquake, in the rain. -6.25, -6.10

      by Something the Dog Said on Fri Feb 13, 2009 at 10:02:54 AM PST

      [ Parent ]

      •  Yes. For torts, the FTCA, and (1+ / 0-)
        Recommended by:
        Something the Dog Said

        for contracts, the Tucker Act.  Before suing in court, each has an administrative process that must be complied with. There are other acts relating to certain specific things, but those are the general ones. The majority of suits are under the APA and other statutes to prohibit the Government from doing something, to correct something or to reverse something.Separate, of course, are the criminal proceedings and suits such as for Habeas Corpus relief.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site