Plus Ca Change ... or If Hard Cases Make Bad Law, What Do Bad Cases Make?

By Sherry, Suzanna | Constitutional Commentary, Winter 1999 | Go to article overview

Plus Ca Change ... or If Hard Cases Make Bad Law, What Do Bad Cases Make?


Sherry, Suzanna, Constitutional Commentary


Excerpts from Ex parte Young, 209 U.S. 123 (1908)

Mr. Justice HARLAN delivered the opinion of the Court:

In this case, the court below issued an order enjoining Edward T. Young, the Attorney General of Minnesota, from enforcing certain state laws and regulations pertaining to railroad rates, on the ground that said laws were unconstitutional. When the Attorney General refused to comply, the court below held him in contempt. He thereupon brought a petition for a writ of habeas corpus, alleging that the court below lacked jurisdiction over the suit and thus could not properly issue the injunction....

Petitioner's objection is that the suit is, in effect, one against the state of Minnesota, and that the injunction issued against the attorney general illegally prohibits state action, either criminal or civil, to enforce obedience to the statutes of the state. This objection is to be considered with reference to the Eleventh Amendment to the Federal Constitution. The Eleventh Amendment prohibits the commencement or prosecution of any suit against one of the United States by citizens of another state or citizens or subjects of any foreign state.

It is argued that if the act to be enforced is unconstitutional, then the use of the name of the state to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of, and one which does not affect, the state in its sovereign or governmental capacity. It is further argued that as the act which the state attorney general seeks to enforce is a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States.

While the preceding arguments are a clever attempt to surmount the obstacles posed by the 11th Amendment, we do not find them persuasive. Let it be observed that the federal suit was, as to the defendant Young, one against him as, and only because he was, attorney general of Minnesota. No relief was sought against him individually, but only in his capacity as attorney general. And the manifest, indeed the avowed and admitted, object of seeking such relief, was to tie the hands of the state so that it could not in any manner or by any mode of proceeding, in its own courts, test the validity of the statutes and orders in question. It would therefore seem clear that within the true meaning of the 11th Amendment the suit brought in the Federal court was one, in legal effect, against the state, -- as much so as if the state had been formally named on the record as a party, -- and therefore it was a suit to which, under the Amendment, so far as the state or its attorney general was concerned, the judicial power of the United States did not and could not extend....

The intangible thing called a state, however extensive its powers, can never appear or be represented or known in any court in a litigated case, except by and through its officers. When, therefore, the Federal court forbade the defendant Young, as attorney general of Minnesota, from taking any action, suit, step, or proceeding whatever looking to the enforcement of the statutes in question, it in effect acted upon the state of Minnesota.

In exercising jurisdiction and issuing the injunction, the court below attached too little consequence to the fact that the courts of the states are under an obligation equally strong with that resting upon the courts of the Union to respect and enforce the provisions of the Federal Constitution as the supreme law of the land, and to guard rights secured or guaranteed by that instrument. We must assume -- a decent respect for the states requires us to assume -- that the state courts will enforce every right secured by the Constitution. …

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