"Sovereignty of Reason:" An Approach to Sovereign Immunity and Copyright Ownership of Distance-Education Courses at Public Colleges and Universities

Journal of Law and Education, Apr 2005 by Klein, Michael W

Hamilton, in Federalist No. 32, described how the Constitution would respect the sovereignty of the individual states:

[A]s the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States. This exclusive delegation ... of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant.85

Madison and Hamilton, in separate essays, addressed the relationship between the states and the federal judiciary. In Federalist No. 39, Madison wrote: "[T]he proposed government['s]...jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects."86 Hamilton expanded on this idea in Federalist No. 81:

It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal.87

During the ratification process, the provision in Article III of the Constitution regarding controversies between a state and citizens of another state or foreigners was among the topics of debate in at least six states: Pennsylvania, Massachusetts, Virginia, New York, North Carolina, and Rhode Island.88 The records of these debates reflect conflicting interpretations of this aspect of the federal judiciary's powers.89

Antifederalists generally read the provision to be an inappropriate reach of federal judicial authority that would absorb state judiciaries and quash individual liberty.90 During Virginia's ratification debate, for example, Patrick Henry argued that the judiciary article would subject the states to suits in federal court.91 Henry focused his concern on Virginia's fiscal vulnerability to creditors in other states, arguing that Northern holders of Continental notes could sue the state in federal court for the state's share of that debt, made worse by the holders' insisting on redemption at face value even though they, as speculators, had purchased the notes at a fraction of the price.92 George Mason also objected to the judiciary provision.93

Most Federalists denied that the provision would make the states liable to law suits by individuals. James Madison replied to Mason that "it is not in the power of individuals to call any state into court," and that the provision meant only that if a state brought suit against a citizen of another state, the suit must be in federal court.94