2 U.S. (2 Dall.) 419 (1793)
An action of assumpsit was brought against the State of Georgia in the Supreme Court of the United States.1 Georgia refused to appear in the action because she claimed to be a sovereign State.2
The Attorney General moved for an order requiring Georgia to enter an appearance on the fourth day of the next Term after notice or show cause why judgment should not be entered for the plaintiff with a writ of enquiry awarded.3 Service of process was made on the Governor and Attorney General of Georgia.4
This was the first instance in which the question of such a suit came regularly before the Court.5 In the Maryland case the Attorney General of the State voluntarily appeared.6 That case has since been compromised.7 The present motion required the Court to consider its authority prior to entering any conditional judgment.8
The plaintiff had been ordered to file his declaration by the first day of March next, with certified copies served on Georgia's Governor and Attorney General by the first day of June next.9 Unless Georgia appeared or showed cause by the first day of the next Term, judgment by default was to be entered against the State.10
Whether a State is suable by individual citizens of another State?11
Under Article III of the Constitution the judicial power of the United States extends to controversies between a State and citizens of another State, and this text includes actions in which the State appears as defendant.12
Yes. An action of assumpsit was brought against the State of Georgia in the Supreme Court of the United States. Georgia refused to appear in the action.13 The Attorney General moved for an order that unless Georgia caused an appearance to be entered on the fourth day of the next Term after notice, judgment would be entered for the plaintiff and a writ of enquiry awarded.14
Service of process occurred on the Governor and Attorney General of Georgia.15 This was the first instance in which the question of such a suit came regularly before the Court. In the Maryland case the Attorney General of the State voluntarily appeared. That case has since been compromised.
The present motion required the Court to consider its authority prior to entering any conditional judgment. The plaintiff had been ordered to file his declaration by the first day of March next, with certified copies served on Georgia's Governor and Attorney General by the first day of June.16 Unless Georgia appeared or showed cause by the first day of the next Term, judgment by default was to be entered.17 The underlying action sought to compel payment of money by the state on the basis of assumpsit.18
The constitutional text directly reaches these facts and authorizes the suit.19
A State is suable by individual citizens of another State under the Constitution.20
Related opinions on this issue
Justice Iredell dissented, arguing that an action of assumpsit will not lie against a State.21 He reasoned that the Judicial Act of Congress directs courts to issue writs agreeable to the principles and usages of law, which he identified as the common law of England.22 Under that law the only remedy against the sovereign was a petition of right rather than a compulsory action such as assumpsit.23
Because no state had enacted a legislative mode authorizing compulsory suits for the recovery of money against the state when the Constitution was adopted, and because Congress had created no new authorizing law, the present suit cannot be maintained.24 Iredell concluded that every word in the Constitution can receive its full effect without permitting a compulsive suit against a State for the recovery of money.25
Whether suability is incompatible with State sovereignty?26
No. The established facts record that Georgia refused to appear and asserted sovereign immunity as a bar to the action brought by the plaintiff.29 The Court compared the popular sovereignty of the United States with feudal models and observed that one State may sue another State in this Court without any perceived degradation.30 These facts show that suability and State sovereignty are compatible under the constitutional structure.31
Suability is not incompatible with State sovereignty.32
Whether the Constitution authorizes such an action against a State by citizens of another State?33
The second section of the third article extends the judicial power to controversies between a State and citizens of another State.34 Ordinary rules of construction require that this remedial language be read to include both actions in which the State is plaintiff and actions in which the State is defendant.35
Yes. The facts establish that an action of assumpsit was brought against Georgia and that the Court was required to decide its jurisdiction before entering any default order.36 The constitutional text is express, positive, and free from ambiguity.37 Because the provision is remedial and because the ordinary rules of construction forbid an implied limitation that would exclude suits against a State, the Constitution authorizes the action on these facts.38
The Constitution authorizes an action against a State by citizens of another State.39