Federalist No. 81
Federalist No. 81 (Federalist Number 81) is an essay by Alexander Hamilton and the eighty-first of The Federalist Papers. It was published on June 25 and 28, 1788 under the pseudonym Publius, the name under which all The Federalist Papers were published. The title is, "The Judiciary Continued, and the Distribution of the Judicial Authority", and it is the fourth in a series of six essays discussing the powers and limitations of the Judicial branch.
The Federalist Papers, as a foundation text of constitutional interpretation, are frequently cited by American jurists. Of all the essays, No. 81 is the third-most cited, behind only Federalist No. 42 and Federalist No. 78. Federalist No. 81 addresses how the powers of the judiciary should be distributed. It deals with potential fears for the irreversible effects of judicial activism.
State sovereign immunity
Federalist No. 81 contained the following comments on state sovereign immunity:
- It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation.
- It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable.
- ^ Ira C. Lupu, "The Most-Cited Federalist Papers." 15 Constitutional Commentary 403-410 (1998)
- Federalist No. 81, paragraphs 16 and 17.
- Hans v. Louisiana, 134 U.S. 1 (1890).
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