Today in Supreme Court History: January 22, 1890

1/22/1890: Hans v. State of Louisiana argued.

Comments

[Dan Schiavetta]

Roe v. Wade, 410 U.S. 113 (decided January 22, 1973): balancing interests of the state vs. privacy interest of mother, invalidates Texas’s near-absolute ban on abortion (only exception was to save life of mother) and holds that Due Process prohibits state interference during first trimester; during second trimester the state may regulate abortion “in ways that are reasonably related to maternal health”; and during third trimester may forbid it except to save life of mother (overruled by Dobbs, 2022)

Nostrand v. Little, 368 U.S. 436 (decided January 22, 1962): Court dismisses appeal for lack of a federal question, but as we learn from Douglas’s dissent (joined by Black), the statute in question required teachers to swear an oath that s/he is not a “subversive person”, defined as one who “advocates” the “destruction or alteration of the constitutional form of government of the United States”, which sure seems to me to present a federal issue; the Washington Supreme Court had held only that a teacher was entitled to a hearing on the question; as Douglas points out, this is not the same as declaratory relief because the teacher can get a hearing only if they refuse to take the oath and Constitutional issues would not be fully argued there

Hall v. Geiger-Jones Co., 242 U.S. 539 (decided January 22, 1917): upholding against Equal Protection and Dormant Commerce Clause attack state “blue sky” laws (which prohibit selling of fake securities — i.e., backed by nothing but “blue sky”) requiring brokers to be licensed

Louisville & Nashville R.R. Co. v. F.W. Cook Brewing Co., 223 U.S. 70 (decided January 22, 1912): Kentucky can prohibit intrastate shipments of liquor to counties that have voted to be “dry”, but to prohibit interstate shipments to such places violates Dormant Commerce Clause

Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., 586 U.S. — (decided January 22, 2019): one-year deadline to apply for patent after sale of product applies even though the sale was to a distributor under a confidentiality agreement; America Invents Act of 2011 did not change prior rule (product was a drug to control chemotherapy-induced nausea; “patentee” was suing maker of generic version)

[John F. Carr]

The summary of Nostrand v. Little recalls the First Circuit precedent on COVID vaccination requirements in the workplace. Courts will not rule on your claimed religious exemption until you have suffered adverse employment action. You are not entitled to a note from the judge excusing you from taking the shot.

[Dan Schiavetta]

Thanks!

[David Nieporent]

Strictly speaking, the Roe framework was abrogated by Casey; it's Casey that was overruled by Dobbs.

[Dan Schiavetta]

True. Thanks for the correction.

I suppose instead of Roe being “overruled” I should have said “obliterated”.

[The Margrave of Azilia]

Isn’t Hans v. Louisiana the case where they found penumbras and emanations radiating out of the Eleventh Amendment and forbidding people from suing even their own states in federal court?

(The 11th Amendment protects states against suits by foreigners, or people from other states)

[Michael P]

Approximately. This was only for federal courts, and the Court also cited other arguments from the original arguments over the Constitution asserting that states would retain sovereign immunity against such suits.

[F.D. Wolf]

Hans v. Louisiana (1890) didn't really have anything to do with the Eleventh Amendment, beyond the Court saying the case that led Congress and the states to immediately pass the Eleventh Amendment, Chisolm v. Georgia (1793) was wrongly decided. Essentially, the Court held that the Eleventh Amendment was superfluous. The case rests on the principle of state sovereign immunity, that a sovereign cannot be sued without its permission.

The Eleventh Amendment only refers to "citizens of another state" or of a "foreign state" because in 1794, when the amendment was submitted to the states, an in-state resident could not possibly have sued his own state in a federal court. Congress did not confer lower federal courts with general federal question jurisdiction until 1875. Out-of-state citizens could sue in federal under diversity jurisdiction, under the theory that state courts would be biased against them. There would be no logical reason to allow in-state residents to be able to sue a state in federal court, but not out-of-state residents.

[Dilan Esper]

That is what the case says. But:

1. Chisolm was rightly decided.
2. Congress and the states could have enacted a constitutional provision that reversed the "sue your own state" aspect of Chisolm. They didn't, which is very strong evidence that they didn't want to.
3. We don't have a king, and states are subordinate to the federal government (at least on any issue that Congress acts on within Article I Section 8), so the entire notion of state sovereign immunity against the federal government is BS.
4. Hans is one of the dumbest and least principled decisions in the history of the United States.

[SMP0328]

In the Federalist Papers, the Founding Fathers said the States would have the same sovereign immunity in the federal courts that they had in their own courts. SCOTUS ignored this promise and the 11th Amendment eliminated the diversity-based exceptions SCOTUS had created, thereby fully restoring the States' sovereign immunity.

Hans recognized this, but didn't explain it well, instead referring to all of State sovereign immunity as coming from to the 11th Amendment .

[Dilan Esper]

Newspaper op-eds like The Federalist are not law.

Hans is law, but it is very bad law.

[SMP0328]

Are you serious? I mean The Federalist Papers, the explanations of various parts of the Constitution when it was before the States for ratification, not The Federalist, the Conservative website.

[Dan Schiavetta]

The Federalist Papers were written by three men who wanted the Constitution to get ratified and realized they had to quell widespread fears about an overly strong federal government. (These three, Madison, Hamilton and Jay, left to themselves, would have wanted the states to be far weaker, Hamilton especially, but realized that they first had to get the Constitution ratified. Once it was and they were in office, they became strong "federalists", though Madison later modified his view.)

[F.D. Wolf]

I believe Hans was a perfectly sound decision, and to hold otherwise would have created the anomalous, if not absurd, situation where an in-state resident could sue his own state in federal court, but an out-of-state resident could not. The Eleventh Amendment was about affirming state sovereignty? Under what logic would the drafters and ratifiers of the Amendment have meant to include an exception to state sovereignty for in-state residents? They simply did not anticipate the possibility of a resident hauling his own state into federal court, something that would not even be possible for another 81 years. In his brief concurrence, Justice Harlan wrote that, unlike his colleagues, he believed that Chisolm had been correctly decided under the law at the time, but, nevertheless, the Eleventh Amendment now commanded a different result.

Hans could have sued in state court, and, if unsatisfied with the result, he still would have federal court recourse through an appeal to the Supreme Court.

[The Margrave of Azilia]

“Under what logic would the drafters and ratifiers of the Amendment have meant to include an exception to state sovereignty for in-state residents?”

For whatever reason, they omitted the in-state scenario. They didn’t forbid it or permit it, one would have to look to other provisions of the Constitution to answer the question. And if the answer (as I argue down below) is to allow in-state suits, then there’s nothing anomalous about applying the 11th Amendment according to its terms – the Amendment’s own language is compatible with a double standard, anomalous as that is.

[The Margrave of Azilia]

As I understand it, sovereign immunity means the sovereign can’t be sued *without its consent* – so assuming the states are sovereign (for limited purposes), the question remains whether they consented to be sued. The states agreed to federal courts with jurisdiction over “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and [duly ratified] Treaties” and “Controversies…between a State and Citizens of another State…and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

The 11th Amendment pruned that back considerably by saying that citizens of other states, and furriners, couldn’t sue the states in federal court. I think this was adequate compensation to voters who may have been fooled by promises like those in the Federalist.

Then we’re left with disputes under the Constitution, federal laws, and treaties, where in fact the Supreme Court says you can sue the states in *some* cases, so long as you sue on certain subjects and make state officials the nominal defendants even though the real defendant is the state itself.

I don’t see how that’s any fairer to any deceived readers of the Federalist than simply saying plainly that you can sue your own state unapologetically under the Constitution, federal laws, and treaties. Under either scenario, people like the Federalist’s authors were giving promises won’t be kept.

Nor would I consider it fair to deny justice to a citizen wronged by his own state, just to keep a campaign promise to act unjustly and contrary to the text.

It’s concession enough (and not exactly fair) to have an 11th Amendment to shield the state from suits from outsiders. Going further and shielding the states from suits by their own people violates the idea that there’s a remedy for every wrong, unless a state opens up its own courts to suits against itself (and I don’t think states are *required* to do this).

[ReaderY]

No mention of a certain other case decided exactly 50 years ago?

[John F. Carr]

Blackman might have been pretending it never happened. And now his book doesn't have to mention it. The case that shall not be named may belong to the anticanon until the next Democrat-filled Supreme Court vacancy.

[Dan Schiavetta]

He didn't mention it last year, either, when it was still the law.

[Commenter_XY]

Happy New Year to our Chinese VC Conspirators. It is the year of the Rabbit (Water Rabbit). Hope the year brings you extra opportunity and luck.

[Dan Schiavetta]

I said "Happy Chinese New Year" to my Asian friend the other day. Then I caught myself and said, "Sorry, I forgot, you're Korean." She said, "It's our New Year too. Korean, Chinese, Japanese, we're all the same." I rolled my eyes and said, "I am so glad to hear an Asian person tell me that!" We had a good laugh.