Spencer Roane

“ The conclusion is irresistible on this subject, when you can only imp/y the jurisdiction in the case before us, and when the rights of a sovereign state are to be invaded by such implication. There is no right more clearly appertaining to sovereignty than an exemption from being sued in the courts of another government. A court which has no prejudice against a party as a party, can have none arising from the nature of his cause. In relation to the citizens of a state at least, we cannot suppose that the constitution will be wantonly violated to their prejudice, by the tribunals of that state ”

“ A construction deduced by remote inferences, besieged by insuperable difficulties and leading to absurdities, is not to be lightly adopted. It is not to be adopted, when so far from being necessary, or producing any utility, it leads directly to overthrow the state governments; and disables their judiciaries from affording them any security against an inordinate lust of power in the general government. ”

“ Besides, the objection of a state to being sued in a foreign court is a matter in abatement and does not involve the merits of the controversy. It perhaps admits the right of being sued in its own courts. But the construction of the constitution or laws of the United States is a matter of bar and goes to the merits. ”

“ A compact between two parties is a nullity, as to one of them if the other by itself, or its agents, has the power of expounding it as it pleases.
The court says that the acknowledged inability of the government of the United States to contest the whole nation, acting in opposition thereto, is no sound argument in support of its constitutional inability, to preserve itself against a “section of the nation,” acting in opposition to the general will. Correctly speaking, the court should have said in the last instance. ”

“ This is one of the alternatives; the other is an absolute despotism by the courts of one government over those of another, and that by remote implication. Virginia is still another government unless we have entirely given up the fond idea of a confederation of the states.
The supreme court again explicitly admits that no partiality is to be imputed to the state tribunals in relation to their own citizens; that suits cannot be brought against the states in federal courts at their instance; and that those courts are not competent to “establish a demand” by citizens upon their own states. ”

“ The American people, in forming their constitution, took sides with neither of the parties to this contest for power, but regarded as well the just rights of the several states, as the granted powers of the general government. ”

“ The opinion of this very able man was then governed by substance and not by forms. Great principles then operated on his luminous mind, not hair-splitting quibbles and verbal criticisms. Mr. Madison said that it was not in the power of even citizens of another state to call any state into the federal court: that the only operation the clause could have, would be that a state might sue a citizen as a plaintiff, and that if a state should condescend to go into the federal court, as plaintiff, the court might take cognizance of the case (4) . ”

“ No other man, save one, ever took up such an opinion. The amendments offered by Virginia at the time of adopting the constitution never foresaw the possibility of this objection and made no provision to restrain the jurisdiction. The refinement had not then occurred that a sovereign state could be sued without its consent in another government, nor that that could be effected in the appellate form which had not been granted in any other. ”

“ So high was then the respect for the sovereignty of the states and so strict were these great men—the warmest friends, too, of the constitution—that even under the express provision in the third article and in relation to citizens of other states the construction, now in question, was reprobated. Every argument then used holds a fortiori between a state and its own citizens. That is the case under the original constitution, but the eleventh amendment to it has put the matter entirely at rest. ”

“ I must here take the liberty to remark once for all, that the supreme court not only takes a ground which, in effect, denies to the states any rights whatever, but also supposes that those states will always be in the wrong, and their favorite government always right They take the famous ground that is taken by the twenty-fifth section of the judicial act of Congress, namely, that a state court deciding in favor of an act of Congress is always right but always wrong when it decides against it. ”

“ The idea of one great national consolidated government was abhorrent to their minds Their preference of a general government, for general porposes, and of special governments for the preservation of their internal rights and liberties, had been perpetual, uniform and unbated. ”

“ They are the lesser of evils. It is better than sanctioning a power in the supreme court, which will set all the barriers of the state governments at defiance, and demolish the confederacy. As for what the court says of their being the tribunal, to whom this subject is confided, that as relates to contests for power between the two governments is taking for granted what ought, but cannot be proved. ”

“ Although, they no doubt foresaw some clashing between the two governments, and their respective departments, it was submitted to, as the lesser of evils, and as the price paid by the people for their liberties. ”