Ninth Amendment (Part I)

The Ninth Amendment is an excellent example of how originalism theory is dead among justices. The Ninth Amendment is an enigma because it is interpreted incorrectly and it is hardly used. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Ninth Amendment and the privileges and immunities clause of the Fourteenth Amendment are very similar and allow for justices to elevate natural law fundamental rights that are nowhere to be found in the Constitution. They are also very similar because they are seldom used. Scholars are at odds whether the Ninth Amendment applies to both federal and State governments. The theory in this text believes the Ninth Amendment should be included as part of the Bill of Rights (most scholars only believe the first eight amendments make up the Bill of Rights). Therefore, the Ninth Amendment should be applied to the States via the Fourteenth Amendment’s due process clause as other Bill of Rights amendments have been (although this has not happened yet). Fundamental rights can be elevated through either the Ninth Amendment or the privileges and immunities clause of the Fourteenth Amendment. Of course, the privileges and immunities clause has been incorrectly redacted from the Constitution in the Slaughter House Cases (more on this later) and the Ninth Amendment is long forgotten, also redacted by the “inkblot” theory. Robert Bork, a Supreme Court Justice nominee (Senate did not confirm him in 1987), said during his confirmation hearings that the Ninth Amendment is an “inkblot” and should be ignored since its true meaning is hard to discern. It is hard to fathom, something as important as the Ninth Amendment, should be redacted from the Constitution. After all, our Founders had a specific reason to put it in the Constitution in the first place. The Ninth Amendment was James Madison’s way to handle a very perplexing issue. Most Constitutional Convention members did not want to create a Bill of Rights for various reasons. The most important reason was echoed by James Iredell from North Carolina. He contented it is impossible to list all the natural rights of all citizens. Thus, by enumerating a few natural rights it may end up disparaging the many natural rights that are not found in the Bill of the Rights. But many States would not ratify the Constitution without the promise of a Bill of Rights to be added to the document. In Federalist Paper 84 Alexander Hamilton argues against a Bill of Rights: A Bill of Rights is not needed for the Constitution since many individual and State rights are built into the Constitution such as not allowing a suspension of a writ of habeas corpus. Besides, Hamilton argues that by adding a Bill of Rights “they would contain various exceptions to powers not granted”. Furthermore, Hamilton added “Why declare that things shall not be done which is no power to do?” Hamilton argues further in Federalist Paper 83 that many individual rights are already included in State constitutions such as trial by jury. Hamilton claims there is no trial by jury provision in the Constitution since each State has varying and unique interpretations on the subject such as some States allow trial by jury for criminal cases but not for civil ones and vice versa. In most cases, State constitutions were more stringent than the federal Bill of Rights. Constitutional convention member, James Wilson, also argued against a Bill of Rights fearing those rights not incorporated in the Bill of Rights would be denied or disparaged by both federal and State governments. Wilson was correct in his assessment and this will be explained later in this book. Madison’s plan to solve this conundrum was the Ninth Amendment. The Ninth Amendment was scarcely used in American jurisprudence to enumerate individual rights. But there is some precedent to back this school of thought. Justice Goldberg used the Ninth Amendment in his reasoning for Griswold v. Connecticut (he was the only Justice out of 7 to do so) and Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter used the Ninth Amendment in Casey v. Planned Parenthood (Roe v. Wade follow up in 1992). The Oregon Supreme Court elevated the right to own property as fundamental in Roman Catholic Archbishop v. Baker (1932) using the Ninth Amendment. A district court upheld the fundamental right to work in United States v. Lieto using the Ninth Amendment. In Lieto, Judge William Hawley Atwell held “The only controversy that is here is between the humble citizen who asserts his right to carry on his little business in a purely local fashion, without being arrested and punished for a mythical, indirect effect up interstate commerce.” Most scholars (both liberal and conservative) have tried to minimize the impact and relevance of the Ninth Amendment and most justices have been reluctant cite it because they are afraid of opening “Pandora’s box”. Put another way, both the Right and Left are afraid of how each side will use the amendment. In particular, they fear the amendment will be exploited for political purposes. This is true, but justices have already exploited many provisions of the Constitution for political purposes. Later, in this text, there is an outline of rules that should be followed by justices to elevate natural law fundamental rights so the Ninth Amendment is not exploited for political purposes. The original intent of the Ninth Amendment provides for a dual purpose. First, it is to prevent the federal and State governments from denying any rights that may not be enumerated in the Constitution or Bill of Rights. Secondly, the amendment is to “deny an expansion of federal power” that may arise from a limited list of rights in the Constitution. In other words, the amendment would prevent the federal government from assuming it has power to regulate any rights that are not enumerated in the Constitution. The Ninth Amendment also has a dual purpose in terms of protecting the rights of individuals and also protecting the collective rights of people within a State. For example, the collective right of the “home rule” provides that States can “determine for itself its own political machinery and its own domestic policies” so long as they do not violate the rights of citizens. The Ninth Amendment also dictates that all enumerated and unenumerated rights be treated exactly the same. Put in other terms, one right, regardless of enumeration, should not be given any priority over another right. This is important because the entire history of the Supreme Court violates this Ninth Amendment rule. Instead, the Court is about conjuring up balancing tests to provide some rights more preferred status over other rights. That being said, however, it is important to note that the Ninth and Tenth Amendments cannot be used by States to shield them from violating the rights of its citizens. For this reason, the Ninth Amendment should apply to the federal government as a federalism clause and both the State and federal governments for protecting the individual rights of its citizens.

The Eleventh Amendment and the Contracts Clause

In holding with the spirit of the Declaration of Independence, the Northwest Ordinance, and the Constitution there can be only one purposeful enforcement of the Eleventh Amendment. The true purpose of the Eleventh Amendment is to protect States from being sued by citizens for enforcing constitutional State and federal laws or from States being sued by citizens for failing to enforce unconstitutional State or federal laws. This follows Shiras’s equality principle. Let’s evaluate a few examples:

A good example of the Court allowing a State to use sovereign immunity was Griffin v. School Board of Prince Edward County (1964). In this case, the Court held that a State government could not be sued for educational reasons. This case was about citizens suing a State for higher tax rates to improve education. A State is not violating any Constitutional clause or amendment for appropriating taxes for education. Using this logic, it can be argued that States could use sovereign immunity to prevent the federal government from integrating school systems during the 1960s. This is true. Later, this text will discuss in more detail why government mandates forcing the integration of schools during this era were wrong. In short, citizens should be able to choose the school they want for their children’s education. Citizens should not be forced to attend schools they do not want for the sole purpose of obtaining the integration results the government desires. Desegregation is a natural process whereas integration is a forced process.

The Eleventh Amendment would not face another landmark case until Seminole Tribe v. Florida (1996). This is good example of a case where States should not be able to hide behind the Eleventh Amendment to avoid a federal law. Congress passed the Indian Gaming Regulatory Act (IGRA) under the commerce clause. The Act imposed upon the States a duty to negotiate in good faith with Indian Tribes to generate a contract for gamming privileges. Congress certainly has the power granted under the commerce clause to pass this regulatory act since it applies to “Indian Tribes”. When the State of Florida refused to negotiate with the Seminole Tribe, they brought a suit against the State. But the conservative sect of the Court incorrectly asserted precedent set by Hans to deny Citizens the right to sue their State because Florida had Sovereign immunity granted by the Eleventh Amendment. In the majority opinion they thought Hans restricted the application of the commerce clause. Sure, this decision provides States more power over the federal Government, but it also restricts the power and sovereignty of its citizens. Since the IGRA was a federal law, States could only hide behind the Eleventh Amendment if 1. The IGRA was unconstitutional or 2. The IGRA was outside the scope of Congress’s constitutional authority. Since neither of the above conditions were met, the Eleventh Amendment should not apply.

Justice Souter wrote the dissent to Seminole Tribe which was joined by Justice Ginsberg, Stevens and Breyer. Souter rightly remarks “Because the plaintiffs in today’s case are citizens of the State they are suing, the Eleventh Amendment simply does not apply to them.” For this reason, he also believes Hans was also wrongly decided. Souter also points out in Federalist Paper 32 that States have no sovereignty over the regulation of commerce with Indian Tribes. Souter further acknowledges a proposed amendment by Massachusetts Representative Theodore Sedgwick after the Chisholm decision, but it was never ratified. The Sedgwick amendment would have denied “Any Citizen” the right to sue “any State”. Souter asks why this proposal was denied in favor of the one ratified in the Eleventh Amendment? Souter certainly pokes holes in the Hans holding. Finally, Souter admits “The American development of divided sovereign powers was made possible only by a recognition that the ultimate sovereignty rests in the people themselves.” This is certainly consistent with the Chisholm decision and Marshall’s remarks about Chisholm in Fisher. A year later, in Alden v. Maine (1997), the Court made similar arguments and came to a similar decision as in Seminole Tribe. Souter is correct, since the IGRA did not violate the Constitution then a State cannot hide behind sovereign immunity.

Why was the Eleventh Amendment passed? At constitutional ratifying conventions at least five States made serious objections that citizens of other States could sue States (Virginia, Massachusetts, New York, North Carolina, and Rhode Island). Rhode Island did not even attend the Constitutional Convention so their objections should be taken with a grain of salt. There are three main reasons for the passage of the Eleventh Amendment. The first reason was debt. All of these States had large sums of paper currency in circulation that the State was obligated to honor following the Revolutionary War. The second reason was to limit the federal judiciary power over disputes between citizens with other States. The final reason was small compared to the first two but there was some concern putting citizens on equal footing with the States. Therefore, the Eleventh Amendment was passed to protect State rights and immunity from federal judiciary interference, concerns over debt, and to hold State sovereignty at a higher hierarchical status than popular sovereignty.

Several obscure contract cases made their way to the Supreme Court around the time of the Chisholm decision and that was of great concern to States. Grayson v. Virginia (1796) was a land dispute between Virginia and an Indiana fur company. If Virginia lost the suit they would have been forced to pay a sum of between 1 and 2 million dollars (a huge sum in those days). In Vassall v. Massachusetts, Vassell was a Loyalist during the Revolutionary war. He fled to England during the war to avoid prosecution (and persecution). In this case, the State of Massachusetts confiscated his property during the war and Vassall wanted his property refunded after the war. In Cutting v. South Carolina, the Prince of Luxemburg wanted to recover debt on a vessel purchased by the State of South Carolina. And Huger v. Georgia involved a land dispute between a South Carolina company and Georgia. The South Carolina company held that Georgia breached on its contract conditions by later claiming it would only accept coined money instead of paper notes to pay for the land. James Jackson (future Georgia governor) wrote that Georgia had no authority to sell state lands. Jackson argued that such decisions are “retained by the people” of Georgia to act in a collective manner. Georgia was already outraged by the Chisholm ruling: its lower House passed a bill calling it a felony, subject to death, for anyone helping to enforce the Chisholm ruling. States began to fear that suits brought forward against States would include much more than contract disputes such as civil liabilities like in Vassell. States feared everyone would be going to the High Court demanding some form of restitution. The above cases were either settled or the suit was dropped following the adoption of the Eleventh Amendment.

Clyde Jacobs, disagrees with the premise States passed the Eleventh Amendment to seek shelter from debts since the federal treasury (under Alexander Hamilton) introduced a policy of “assumption”. Assumption allowed the federal government to take over “most” State debt incurred by the war effort (about 85%). Thus, in Jacobs view, State debt was minimal and most of it was being honored. Most cases where debts were not being honored were generally disputes over the confiscation of Loyalist property. Jacobs may be right, but without recourse, it is hard to imagine that the rights of some citizens were not violated by the passage of the Eleventh Amendment. In fact, in Cohens v. Virginia, Chief Justice Marshall explains the reason for the adoption of the Eleventh Amendment was for the sole purpose of denying out of State citizens any recourse from recovering their debts.

The Eleventh Amendment set a bad precedent by allowing States to default on contract obligations. Only six years following the passage of the Constitution the sovereignty of “We the People”, the rights “retained by the people” in the Ninth Amendment, and the rights “to the people” in the Tenth Amendments would be diminished forever. Did our Founders want the federal and State governments to have immunity powers similar to the King of England? Of course not, that is why Americans fought the Revolutionary War: To break away from this tyranny style of English rule. If taxation without representation caused friction between the King and colonies, it is hard to imagine that the colonies would be happy if England hid behind sovereign immunity to breach on contract obligations similar to how States were breaking their contract obligations. The objective of the Declaration of Independence and the Constitution was to provide ultimate sovereignty with the people with State and federal sovereignty to follow (in that order).

What is sometimes lost in the debate over the Eleventh Amendment is that, although it passed Congress overwhelmingly, the Senate asked for a textual change to the Amendment that the House rejected. That change read “where such State shall have previously made provision in their own courts, whereby such suit may be prosecuted to effect”. The rejection of this statement eliminated any chance that suits by citizen and foreign subjects against other States would ever be resolved in State courts. Hence, there was no recourse for citizens whose property rights or contractual rights had been violated at any level in the court system.

In sum, individual or popular sovereignty over State and federal government sovereignty is an important issue that will change for the worse over the course of United States history. When individual sovereignty is diminished at the expense of State and federal government power, it is without question, one of many things, that has led to the mitigation of contract rights and all rights in general. The Eleventh Amendment was the first step in the process of diminishing individual contract rights at the expense of the federal and State governments. The correct application of the Eleventh Amendment was described by Justice George Shiras in Prout. By applying his principles, the Eleventh Amendment would protect both individual citizens from State and federal encroachment (unconstitutional acts or laws) and collective citizens (States) from federal encroachment (unconstitutional acts or laws). Finally, it is important to note that Justice Bradley and Miller in their Slaughter House dissents correctly point out that the right of citizens to use the contracts clause or to sue a State were both fundamental rights.

The Eleventh Amendment and the Contracts Clause (Part III)

The Court shifted gears in New Hampshire v. Louisiana (1883). The Court held the States of New York and New Hampshire could not circumvent the Eleventh Amendment by filing suit against Louisiana on behalf of its citizens. In this case, New York and New Hampshire tried to recoup defaulted loan payments from Louisiana for their citizens. Elliot v. Jumel (1883) was another Louisiana loan default case where the Court again shielded Louisiana from the suit using the Eleventh Amendment. In Cunningham v. Macon Railroad (1895), the Court provided Georgia sovereign immunity. In this case, when the railroad sold its ownership to the State, the State only honored corporate bonds held by one group of investors while neglecting another. Both Justices Stephen Field and John Harlan dissented. Field and Harlan wanted to protect citizens from breach of contract using the contracts clause. But the New Hampshire, Elliot, and Cunningham line of cases essentially provided the Eleventh Amendment priority over the contracts clause. This is something the Founders did not intend to happen. Again, no clause or Amendment in the Constitution has priority over any other. And just because the Eleventh Amendment was “newer” than the original text of the Constitution this does not mean it can supersede all other provisions, clauses, and amendments. In fact, the Ninth Amendment provides that all rights, enumerated or not, should face exactly the same levels of scrutiny or priority. By 1890, it was official, the Eleventh Amendment was shielding States who defaulted on contracts with citizens. What’s worse, in Ex parte Ayers (1887), the Court held that State officers could not be held liable for carrying out unconstitutional State laws. Most can agree with that outcome (the State should be liable), but where is the recourse for citizens who have been wronged? The Ayers precedent meant citizens cannot sue either the State or its officers who can both hide under the guise of the Eleventh Amendment allowing them to impair or default on contracts or worse yet, violate other fundamental rights.

In Reagan v. Farmers Loan and Trust (1894), the Court shifted gears again. Justice David Brewer initiated a new doctrine. The Brewer doctrine distinguished between governmental and pecuniary cases when identifying which State cases the Court may apply sovereignty immunity via the Eleventh Amendment. Reagan dealt with State railroad rates set by the Texas railway commission. The Court held the rates were too high in violation of the Fourteenth Amendment. The Court viewed the action taken by the State of Texas as being a pecuniary one and not a governmental one. The Brewer pecuniary doctrine was an unnecessary balancing test. After all, aren’t most of the contract clause / Eleventh Amendment disputed cases discussed in this section pecuniary in nature? Interestingly, the Court conjured up the Brewer doctrine so it did not appear as if the Court was justifying using the Fourteenth Amendment to supersede the Eleventh Amendment. In fact, Clyde Jacobs believes this would be acceptable and may explain why the Eleventh Amendment has more clout than the contracts clause. Once again, there is nothing in the structure of the Constitution which provides any provision, clause, or amendment priority over another.

Other cases such as Smyth v Ames (1898) and Prout v. Starr (1903) had similar outcomes as Reagan over railway rates. Fitts v. McGhee (1899) was the anomaly ruling during the era holding States could be provided Eleventh Amendment protection over setting predatory railroad rates. However, Ex parte Young (1908) established, without a doubt, the Reagan, Smyth, and Prout line of cases were the clear precedent. The Court would correctly hold that States violating property or other rights of individuals would not be tolerated for any reason. States could not seek shelter from these violations via the Eleventh Amendment. For example, in Ex parte Young, the Court held that State laws forcing railroad companies to set outrageous rates or face high fines, long jail sentences, and the forfeiture of property was way too extreme and a violation of both individual and corporate due process rights.

But why would the Supreme Court protect citizen rights via the Fourteenth Amendment but not through the contracts clause? One reason, discussed earlier, it is incorrectly believed that the Fourteenth Amendment is newer and trumps the Eleventh Amendment whereas the newer Eleventh Amendment trumps the contracts clause. Justice George Shiras dispels that myth in his opinion in Prout v. Starr: “The Constitution of the United States, with the several amendments thereof, must be regarded as one instrument, all of whose provisions are to be deemed of equal validity. It would, indeed, be most unfortunate if the immunity of the individual states from suits by citizens of other states, provided for in the 11th Amendment, were to be interpreted as nullifying those other provisions which confer power on Congress to regulate commerce among the several states, which forbid the states from entering into any treaty, alliance, or confederation, from passing any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or, without the consent of Congress, from laying any duty of tonnage, entering into any agreement or compact with other states, or from engaging in war, all of which provisions existed before the adoption of the 11th Amendment, which still exist, and which would be nullified and made of no effect if the judicial power of the United States could not be invoked to protect citizens affected by the passage of state laws disregarding these constitutional limitations. Much less can the 11th Amendment be successfully pleaded as an invincible barrier to judicial inquiry whether the salutary provisions of the 14th Amendment have been disregarded by state enactments.” Notice Justice Shiras writes the Eleventh Amendment is not meant to protect States from a “law impairing the obligation of contracts”. Despite Shiras opinion States have been allowed to impair or default on contracts by hiding behind the Eleventh Amendment. Clyde Jacobs correctly asserts the “contracts clause had no limitation on state power” but what’s worse, it continues to have no limitation on State power.

Hence, if any provision, clause, or amendment is violated then the law is unconstitutional using the Shiras equality theory. The only way a law is constitutional is when ALL provisions, clauses, and amendments within the Constitution are not violated (or true). Therefore, if the contacts clause is violated, it does not matter if the Eleventh Amendment is not violated, they both must be Constitutional for States to receive sovereign immunity. But by holding that sovereign immunity is true in a scenario where the contracts clause is violated, this is incorrectly providing more power to the Eleventh Amendment. The Eleventh Amendment should only apply and protect States if they are not violating the rights of citizens with unconstitutional laws. This follows the logic and precedent set forth in the Reagan, Smyth, Prout, and Young line of cases which withheld sovereign immunity from States for violating the Fourteenth Amendment. Although the line of cases from Reagan to Young were correctly decided the Brewer doctrine was wrong. The Brewer pecuniary doctrine is not needed to justify the holding in these cases: The Fourteenth Amendment is not trumping the Eleventh Amendment (they are both given the same weight).

The Eleventh Amendment and the Contracts Clause (Part II)

John Marshall also believed that Article III, Section 2 should have been construed broadly at the time of the Virginia ratifying convention. But, as we shall see, Marshall changed his tune as Chief Justice because he was not expecting States to hide behind immunity to commit crimes against citizens. Besides, how do you protect the rights of citizens without yielding some degree of sovereignty to the people? This is what makes the Constitution, the Northwest Ordinance, and the Declaration of Independence so unique: these documents followed Lockean social compact theory by placing priority for individual sovereignty over government sovereignty.

In Chisholm, property was sold by a South Carolina citizen to the State of Georgia. The Court was correct to hold Georgia or any State should not default or impair their contractual agreements with citizens. Was the purpose of the Eleventh Amendment to protect States who default or impair contracts or violate the rights of citizens? Was the purpose of the Constitution to protect the government over citizens? Some believe the drafters of the Eleventh Amendment wanted to protect States from frivolous claims while at the same time maintaining peace and tranquility within the Union (eliminating disputes between States). If this is true, this is a weak argument. After all, it can create just as much friction between States if a neighboring State is taking advantage of its residents. Hence, the peace and tranquility argument can go both ways.

This text believes the best reason for the Eleventh Amendment is to protect States and citizens from federal government encroachment (judicial and legislative). Other than that, it suits no purpose. However, the amendment is hardly used for that reason.

In Hans v. Louisiana (1890), the Court’s Justice Joseph Bradley overruled the principals of sovereignty held in Chisholm by siding with the views held by a single justice in that decision: Iredell. This was not an easy decision since the Eleventh Amendment says “Citizens of another State” but Hans was from Louisiana, the State he was suing. Yet, the Court decided that the drafters of the Eleventh Amendment also meant to include “Citizens of the same State”. Interestingly, Justice John Harlan concurs with the decision in Hans but writes “The comments made about the decision in Chisholm v. Georgia do not meet my approval.” He would continue by writing “Besides, I am of opinion that the decision in that case was based upon a sound interpretation of the Constitution as that instrument then was.” Hans also went against Justice Marshall’s precedent set in Cohens v. United States (1821). In Cohens Justice Marshall held citizens can sue a State in which they reside. Of course, it seems odd that a State can be sued by its own citizens but a citizen of another State with a similar grievance has no recourse. That seems to be the compromise made by the drafters of the amendment. But the text is clear, if the Eleventh Amendment meant to provide States sovereign immunity from ALL suits introduced by citizens those words cannot be found in the amendment. In his Hans opinion, Justice Bradley also conveniently ignored Justice John Marshall’s opinion in Fletcher v. Peck (1810). Marshall said individuals suing State governments may no longer be in the Constitution, but Chisholm was the proper interpretation of the intent of the Constitution. In other words, the Eleventh Amendment does not change the meaning of the Constitution, it merely prohibits citizens (from different States) from suing States. Marshall’s exact words in Fletcher were: “The Constitution as passed, gave the courts of the United States jurisdiction in suits brought against individual States. A State, then, which violated its own contract was suable in the Courts of the United States for that violation. Would it have been a defense in such a suit that the State had passed a law absolving itself from the contract? It is scarcely to be conceived that such a defense could be set up. And yet, if a State is neither restrained by the general principles of our political institutions nor by the words of the Constitution from impairing the obligation of its own contracts, such a defense would be a valid one. This feature is no longer found in the Constitution, but it aids in the construction of those clauses with which it was originally associated.” Therefore, Marshall does not necessarily think Chisholm was completely repudiated by the Eleventh Amendment. In Marshall’s view, Chisholm was a sound decision whose principles still represent legitimate constitutional jurisprudence: Citizens are still sovereign within the structure of the Constitution. Put another way, the Eleventh Amendment was not an open invitation for States to violate the rights of its citizens.

In fact, over Marshall’s long tenure as Chief Justice he restricted the Eleventh Amendment by narrowly interpreting the text. In the line of cases United States v. Peters (1809) and Osborn v. Bank of the United States (1824), Marshall held that the Eleventh Amendment applied only to States and not State officers. In other words, State’s had to be the party of record in the case to obtain sovereign immunity. However, in Governor of Georgia v. Madrazo (1828) the Marshall Court backtracked a bit and established a new doctrine. The Court held the Eleventh Amendment can be applied to cases where the suit is brought against a State office but not to those cases where the individual character of the person holding that office is the purpose of the suit. And of course, in Cohens, Marshall held that the Eleventh Amendment did not apply to States being sued by citizens of the same State. Even the unfriendly Hans Court held in Lincoln County v. Luning (1890), that any subdivision of a State (in this case a county) is exempt from sovereign immunity.

After the Civil War, the Court moved in a positive manner to protect citizens from having States default on contract obligations. In Davis v. Grey (1873), the Court used Osborn precedent (State officers can be sued) and the substantive due process concept of “freedom of contract” in holding Texas violated a land contract with a local railroad. In other words, the State could not pass legislation that would allow a State to default on a property contract. Of course, many scholars like Clyde Jacobs criticized the opinion because it meant State officers could be held liable for State debts. Jacobs also did not like the substantive holding by the Court, but that was not much different than using the contract clause to strike down the law. However, Jacobs admits State officers have never been held liable for debt amassed by a State since the State would repay the debt before an officer was held accountable. And what is wrong with that: A State honoring its contract obligations with American citizens and foreigners. In Board of Liquidation v. McComb (1875), the Court held that the State of Louisiana repaying a bond debt at 60 cents on the dollar was an impairment of a contract. Again, the Court did not let States hide behind the Eleventh Amendment to default or impair their contract obligations with citizens. In the United States v. Lee (1882), the Court even held the United States could not be shielded from immunity in property rights cases because this is a fundamental right of all citizens.