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The People or the State?: Chisholm V. Georgia and Popular Sovereignty

Randy E. Barnett

Georgetown University Law Center

Virginia Law Review, Vol. 93
Georgetown Public Law Research Paper No. 969557

Chisholm v. Georgia was the first great constitutional case decided by the Supreme Court. In Chisholm, the Court addressed the fundamental question: Who is Sovereign? The People or the State? It adopted an individual concept of popular sovereignty rather than the modern view that limits popular sovereignty to collective or democratic self-government. It denied that the State of Georgia was a sovereign entitled, like the King of England, to assert immunity from a lawsuit brought by a private citizen. Despite all this, Chisholm is not among the canon of cases that all law students are taught. Why not? In this essay, I offer several reasons: Constitutional law is taught by doctrine rather than chronologically; law professors have reason to privilege the Marshall Court; and the Court's individualist view of popular sovereignty is thought to have been repudiated by the adoption of the Eleventh Amendment. I explain why the Eleventh Amendment did not repudiate the view of sovereignty expressed in Chisholm by comparing the wording of the Eleventh with that of the Ninth Amendment, and conclude by suggesting another reason why Chisholm is not in the canon: Law professors follow the lead of the Supreme Court and, like the Ninth Amendment, the Supreme Court has deemed its first great decision too radical in its implications.

Number of Pages in PDF File: 25

Keywords: constitutional law, federalism, sovereignty, chisholm, Eleventh Amendment

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Date posted: March 13, 2007  

Suggested Citation

Barnett, Randy E., The People or the State?: Chisholm V. Georgia and Popular Sovereignty. Virginia Law Review, Vol. 93; Georgetown Public Law Research Paper No. 969557. Available at SSRN: http://ssrn.com/abstract=969557

Contact Information

Randy E. Barnett (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9936 (Phone)
HOME PAGE: http://www.randybarnett.com
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