Chisholm v. Georgia, decided by the U.S. Supreme Court in February 1793, was the first major constitutional case the Court ever heard. It held, 4–1, that a private citizen could sue a state in federal court without the state’s consent. The states hated the answer so much that they ratified the Eleventh Amendment within two years to reverse it, and that reversal still shapes when you can and cannot sue a state today.
The Debt That Started It
During the Revolutionary War, a South Carolina merchant named Robert Farquhar sold goods to the State of Georgia on credit. Georgia never paid. After Farquhar died, the executor of his estate, Alexander Chisholm, went after the money. Georgia refused, so Chisholm sued the state directly in the Supreme Court.
His attorney was Edmund Randolph, then serving as Attorney General of the United States. Randolph filed suit in the Court’s August 1792 term in Philadelphia, invoking original jurisdiction under Article III. Georgia declined to appear at all, insisting that a sovereign state could not be dragged into court without its consent.
The Constitutional Question
The dispute turned on one phrase in Article III, Section 2. The Constitution extended federal judicial power to “Controversies…between a State and Citizens of another State.”1Legal Information Institute. Controversies Between a State and Citizens of Another State Chisholm read that language at face value: if federal courts have jurisdiction over disputes between a state and an out-of-state citizen, an out-of-state citizen can sue a state.
Georgia relied on an older principle. Sovereign immunity, inherited from English common law, held that a government cannot be sued unless it agrees to be sued. During ratification, Alexander Hamilton had argued in Federalist No. 81 that “it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.”2The Avalon Project. Federalist No 81 Georgia believed the Constitution it had ratified left that immunity in place.
The Ruling
The Court ruled 4–1 for Chisholm in February 1793, holding that Georgia did not possess sovereign immunity from suits brought by citizens of other states in federal court.3Federal Judicial Center. Chisholm v. Georgia (1793) The justices also concluded the Court could establish procedures for the case without waiting for Congress to spell them out.4Congress.gov. Constitution Annotated – Article III, Section 2, Clause 2 – Supreme Court Original Jurisdiction
Following the early practice of seriatim opinions, each justice wrote separately. Chief Justice John Jay and Justices James Wilson, William Cushing, and John Blair all sided with Chisholm.3Federal Judicial Center. Chisholm v. Georgia (1793) Wilson’s opinion went furthest, arguing that sovereignty in the new republic belonged to the people, not the states, and that the constitutional text plainly authorized the suit. Jay took a more practical line: the Constitution already contemplated states appearing as defendants in disputes with other states, so there was no principled reason a state could not also be forced to defend against a private citizen.5Founders Online. John Jay’s Opinion, Chisholm v. Georgia
Justice James Iredell dissented. He argued that the common law tradition of sovereign immunity survived the Constitution and that the Court should not read such a dramatic power shift into ambiguous language.
The Backlash and the Eleventh Amendment
The reaction was immediate. The Georgia House of Representatives passed a resolution declaring that any federal marshal or other person who tried to enforce the judgment against the state would be “guilty of felony, and shall suffer death, without the benefit of clergy, by being hanged.”3Federal Judicial Center. Chisholm v. Georgia (1793) The state senate never acted, so the resolution never became law, but the position was clear.
Other states shared the alarm. Many feared British creditors and Loyalists would flood federal courts with Revolutionary War era claims. Congress proposed the Eleventh Amendment on March 4, 1794, and the states ratified it by February 7, 1795, one of the fastest amendments in American history.6National Archives. The Constitution: Amendments 11-27
Its text is narrow and pointed: “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.”7Congress.gov. Constitution of the United States – Eleventh Amendment It targeted the exact type of suit Chisholm had brought.
When You Can Still Sue a State
The Eleventh Amendment did not make states untouchable. Over two centuries, the Supreme Court has recognized several ways lawsuits against states or state officials can go forward.
Suing the Officer, Not the State
The most important workaround came in Ex parte Young in 1908. The Supreme Court held that when a state officer attempts to enforce an unconstitutional law, that officer is “stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.”8Justia Law. Ex parte Young, 209 U.S. 123 (1908) The reasoning is a legal fiction: because a state cannot authorize unconstitutional conduct, an officer acting unconstitutionally is not really acting for the state, and the Eleventh Amendment does not protect them.
Practically, this means you generally cannot sue a state for money damages in federal court, but you can sue a state official and ask a court to order that official to stop violating the Constitution going forward. Retrospective relief like damages remains barred; prospective relief like an injunction is available.
Congressional Abrogation Under the Fourteenth Amendment
Congress can override state sovereign immunity when it legislates under Section 5 of the Fourteenth Amendment, which authorizes Congress to enforce due process and equal protection “by appropriate legislation.” The Supreme Court recognized this power in Fitzpatrick v. Bitzer in 1976, holding that the Eleventh Amendment “and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment.”9Library of Congress. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) Under this authority, Congress can authorize private citizens to sue states for money damages when the suit enforces Fourteenth Amendment protections, as it did in Title VII of the Civil Rights Act.
That power has real limits. In Seminole Tribe of Florida v. Florida in 1996, the Court held that Congress cannot use its Article I powers to strip states of immunity: “Even when the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States.”10Legal Information Institute. Seminole Tribe of Florida v. Florida Alden v. Maine (1999) extended the point, holding that states carry their sovereign immunity into their own courts as well, so Congress cannot route around the amendment by authorizing suits in state court.11Justia Law. Alden v. Maine, 527 U.S. 706 (1999)
Waiver by the State
A state can waive its own immunity. Every state has enacted some form of tort claims legislation permitting certain lawsuits, often with caps on damages. Federal court is a different story. The Supreme Court requires clear evidence that a state intended to open itself up to federal suit specifically; a general authorization to “sue and be sued” is usually not enough. The waiver must appear “in the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.”12Congress.gov. Amdt11.6.1 Waiver of State Sovereign Immunity A state can also waive immunity through its litigation conduct, such as removing a case from state to federal court and then trying to assert immunity.
Why the Case Still Matters
Chisholm is sometimes treated as a footnote because the Eleventh Amendment overturned its holding so quickly. That undersells it. The case set the first major confrontation between federal judicial power and state sovereignty under the Constitution, and every sovereign immunity dispute since has unfolded in its shadow. The Eleventh Amendment is a direct product of the ruling, and the modern doctrines that carve exceptions into that amendment are attempts to strike the balance the 1793 Court could not.
The core tension the case exposed has not gone away. Federal courts still cannot hear most private lawsuits against unconsenting states. But Ex parte Young suits, Fourteenth Amendment abrogation, and voluntary waiver keep state sovereign immunity from being absolute. Georgia’s 1793 threat to hang anyone who enforced the judgment was a raw version of the same anxiety states express today when federal courts intervene in state affairs.