The popular objection to this decision immediately aroused and manifested in the adoption of the Eleventh Amendment is a matter of familiar history. The phraseology that the judicial power of the United States "shall not be construed to extend," instead simply that it "shall not 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, was employed in order to give to the Amendment a retroactive effect, and thus defeat suits similar to that of Chisholm against Georgia, already pending. And thus when the first of these pending cases came before the Supreme Court,5 it declared, in a unanimous opinion, that all these cases should be dismissed because of want of jurisdiction.
It will be observed that the Eleventh Amendment does not in terms declare that the judicial power of the United States shall not be construed to extend to suits brought against a State by its own citizens. Nor is there anywhere in the Constitution a declaration that the United States itself shall not be sued by one of its own citizens. The Supreme Court has, however, held that, in the absence of an express grant of jurisdiction, such suits are, by the generally accepted principles of public law, beyond the jurisdiction of the courts. Indeed, in the case of Hans v. Louisiana6 the court held that the decision in Chisholm v. Georgia had been an erroneous one in holding that a State could be sued by other than its own citizens. After referring to the views of Madison and Marshall, expressed in the Virginia convention, and of Hamilton in The Federalist, and the reception met by the decision in Chisholm v. Georgia, the court declared: "It seems to us that these views of those great advocates and defenders of the Constitution were most sensible and just; and they apply equally to the present case as to that [Chisholm v. Georgia] then under discussion. The letter is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual against a State. The reason against it is as strong in this case as it was in that. It is an attempt to strain the Constitution and the law to a construction never imagined or dreamed of. . . . The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States. . . . The suability of a State without its consent was a thing unknown to the law. ... It was fully shown in an exhaustive examination of the old law by Mr. Justice Iredell in his [dissenting] opinion in Chisholm v. Georgia; and it has been conceded in every case since, where the question has in any way been presented."
5 Hollingsworth v. Virginia, 3 Dall. 378; 1 L. ed. 644.
In New Hampshire v. Louisiana7 the Supreme Court refused to countenance the attempt of citizens to evade the operation of the Eleventh Amendment by transferring their pecuniary claims to another State and having that State bring suit in their behalf.
6 134 U. S. 1; 10 Sup. Ct. Rep. 504; 33 L. ed. 842.
7 108 U. S. 76; 2 Sup. Ct. Rep. 176; 27 L. ed. 656.
In this case the court found that in fact the original owners of the bonds and coupons in question still remained the real parties of interest, though not the nominal parties of record, and that, therefore, the suit was not a bona fide one between States. The court said: "The evident purpose of the Amendment, so promptly proposed and finally adopted, was to prohibit all suits against a State by or for citizens of other States, or aliens, without the consent of the State to be sued, and, in our opinion, one State cannot create a controversy with another State within the meaning of that term of the Constitution, by assuming the prosecution of debts owing by the other State to its citizens."