Sunday, December 27, 2009

Sovereign Immunity: An Analysis of the Framers' Intent


“The law also ascribes to the King in his political capacity absolute perfection. The King can do no wrong” - Blackstone’s Commentaries Book III, Chapter 17 (1765-1769)

In 1783, the Treaty of Paris successfully ended America’s Revolutionary War against the military behemoth Great Britain.[1] America, the victor of the war, was finally able to claim its independence from British rule. American political philosophers such as James Madison, Thomas Jefferson, and Alexander Hamilton were more than ready to rid the colonies from the yoke of British monarchy, and in turn craft a new independent system of governance. In many ways, Madison and company sought to distance this new creation of governance from any of the precepts that were consistent with the British government. Nobility, primogeniture, little representation, and hardly any governmental accountability included some of the negative aspects of Britain that our Founders so deeply resented. Our Founders greatly succeeded in the establishment of a government and Constitution that looked nothing like Britain; they had created a Republic.

Interestingly enough, the Founding Fathers did not distance themselves from every aspect of English common law. A doctrine known as “sovereign immunity,” which has its basis in English common law, somehow remained intact in this new American government and in fact still remains today. Generally speaking, and for the purposes of this paper, sovereign immunity is essentially a legal privilege that asserts that the federal government and state governments cannot be sued by a private citizen in federal court without the government’s consent.
If one were to observe the historical underpinnings of how this republic was formulated, it seems rather peculiar how this doctrine of sovereign immunity could have been adopted by our Founders. How could the Founders have intended that the state or federal government could not be sued if they had done wrong to a private citizen? How could the Founders have believed and accepted a doctrine so antithetical to their belief system in government? Did the Founders even intend for sovereign immunity to remain as a legal concept and if so, why?

Even though a literal interpretation of the text of the Constitution does not establish an affirmative doctrine of sovereign immunity, it can be inferred from the Founders’ writings, debates, letters, and from the silence itself that undoubtedly, the Founders never intended for a private citizen to be able to sue a sovereign state in federal court without that state’s consent.

Historical Basis of Sovereign Immunity

As previously mentioned, the doctrine of sovereign immunity is a legal concept derived from English common law. The original phrasing of this doctrine comes from the idea that “the King can do no Wrong.”[2] As scholars have noted, this phrase has many possible meanings. One interpretation seems to suggest that when a wrong has occurred, someone else must have done it, since the King can do no wrong. Other interpretations suggest that perhaps it merely meant that because a King cannot do a wrong, a remedy must exist if harm has been done, or, that “the King must not, was not allowed, not entitled, to do wrong…”[3] While these interpretations may very well have had merit in the era and time of the Crown in England, certainly it can be said that the doctrine of sovereign immunity in American jurisprudence developed in such a way that meant to preclude suits against the sovereign.

The historical roots of sovereign immunity come from Edward the First’s reign in England from 1272 to 1307.[4] The United States Supreme Court has also accepted the origin of sovereign immunity to come from the time of Edward the First.[5] Before Edward the First, some scholars have postulated that it had been possible for British citizens to bring the Crown into court as a defendant like a common person, although this is not entirely clear.[6] However, when Edward the First came to power after his father, it seems certain that thereafter the principle became fully established that the King could not be made a defendant in any court, and was not subject to the writs and process of the courts.[7]

In Sir Edward Coke's Institutes, he states: "It is a maxim of the law that the King can do no wrong."[8] A glimpse into the meaning of this doctrine was formulated by Sir William Blackstone, who postulated on the concept of sovereign immunity by stating:

"This maxim is not to be understood as if everything trans-acted by the government was of course just and lawful, but means only two things: First, that whatever is exceptionable in the conduct of public affairs is not to be imputed to the King, nor is he answerable for it personally to the people. And secondly, it means that the prerogative of the Crown extends not to do any injury; it is created for the benefit of the people and therefore cannot be exerted to their prejudice… The King, moreover, is not only incapable of doing wrong, but even of thinking wrong: he can never mean to do an improper thing; in him is no folly or weakness.”[9](emphasis added)

From this passage it is obvious that even the most prominent British scholars and jurists of the 18th century believed the King to be something above the law. Even though this archaic legal concept was prominent, English law eventually began to develop and draw away from the complete bar of suit upon the King.[10] In fact, if the case was not involving a tort claim, the subject could by petition to the King, obtain leave to sue.[11] This principle was eventually codified in statute and the remedy extended to any cause or complaint for “injury to or deprivation of property or the breach of contract made by or on behalf of the Crown.”[12] It is unquestionably true that the precept of sovereign immunity was an established foundation in English law, and for better or worse, the legal concept found its way into American jurisprudence.

Article III, Section II Debate

During the Constitutional Convention in Philadelphia in 1787, there is no evidence to suggest that there was any discussion regarding the concept of sovereign immunity.[13] Yet, the issue did arise in the state ratifying conventions, in particular, the Virginia Convention.[14]

In the Federalist and Anti-Federalist debates, there was a rigorous dispute over the meaning of Article III, Section II. This provision of the US Constitution permits suit “between a State and Citizens of another State.”[15] The Anti-Federalists were concerned that this provision allowed a private citizen of one state to sue another state in federal court. Two leading Anti-Federalists, George Mason and Patrick Henry, were very clear on the absolute rejection of this clause as they saw it taking away too much sovereignty from the states.[16] Mason, in interpreting Article III, Section II stated, “Claims respecting those lands, every liquidated account, or other claim against this state, will be tried before the federal court. Is not this disgraceful? Is this state to be brought to the bar of justice like a delinquent individual? Is the sovereignty of the state to be arraigned like a culprit, or private offender?”[17] Mason’s statement is significant in that it mirrors Sir Coke or Sir Blackstone’s steadfast contention that the sovereign must be protected from suits against private citizens. Of course in the American context, the sovereign implicated are the states that comprise the Union.

The Virginia statesman and Anti-Federalist Patrick Henry was equally discontent about the language in Article III, Section II.[18] He too believed that, without a doubt, the language allowed a private citizen to sue a state in federal court.[19] Henry, in response to the argument that Article III only warrants a State to be a plaintiff and not a defendant, stated, “What says the paper? That it shall have cognizance of controversies between a state and citizens of another state, without discriminating between plaintiff and defendant.”[20] Clearly, the philosophy of the Anti-Federalists was in direct conflict with Article III, Section II, and it is indeed apparent that the Anti-Federalists readily adopted the concept of sovereign immunity.

The Federalists interpreted Article III, Section II quite differently from that of their counterparts. While some scholars argue that there was a division between the Federalists on the interpretation of Article III, Section II, there is very little evidence supporting this claim. Two Federalists, Edmund Randolph and Timothy Pickering are said to support the Article III interpretation which holds that states should and could be sued in federal court without their consent.[21] The scant evidence of Randolph’s support is based on a theoretical statement he made as a member of the Committee of Detail at the Constitutional Convention, in which he said, “I ask the Convention of the free people of Virginia if there can be honesty in rejecting the government because justice is to be done by it? Are we to say that we shall discard this government because it would make us all honest?”[22] This is hardly an endorsement of the idea that sovereign immunity should not exist for the states and that they could and should be sued by private individuals. Somehow, contemporary scholars interpret this statement to mean that Randolph wanted people who were wronged by the government to have an effective avenue to receive redress.[23] Simply put, Randolph’s statement is ambiguous at best on the interpretation of Article III, Section II.

The other Federalist, Timothy Pickering, did in fact believe that the reading of Article III, Section II permitted private suits against states in federal court.[24] However, his main consideration was, assuming suits are allowed against states, they most certainly should be adjudicated in federal court rather than state court, for purposes of impartiality.[25] In interpreting Article III, Section II, Pickering stated, “…it seems to be a wise provision which puts it in the power of such foreigners and citizens to resort to a court where they may reasonably expect to obtain impartial justice.”[26] While it seems as though he accepted the idea of suit against state governments, Pickering was only addressing the concern that, assuming suits were allowed, it is best they be adjudicated in federal court and not state courts. Again, this is not an all-out endorsement of the idea that states should be sued, only that impartiality is better determined in federal court.

Most of the Federalists agreed with the views promulgated by James Madison, Alexander Hamilton, and John Marshall. The essential argument was that Article III did not override state sovereignty and, notwithstanding the provisions, states could only be sued in federal court if they consented to be a party in litigation.[27] According to Alexander Hamilton, Article III, Section II was not intended to mean that any state would be subject to suit by a private citizen. Hamilton wrote in The Federalist 81,

“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 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, it will remain with the States.”[28]

Hamilton believed not only in the idea that the individual states could not be sued in federal court because of their sovereign status, but also that it was implicit in the natural order of law.[29] While Hamilton is noted for his extensive adoration of certain British doctrines, he was not the only fervent supporter of states being precluded from suit by private citizens.
James Madison, often dubbed the “Father of our Constitution,” also accepted and endorsed the extension of the legal precept of sovereign immunity to the states.[30]

During the Virginia ratifying convention, Madison addressed the arguments against the proposed Article III, Section II provision. Madison agreed with his Anti-Federalist adversaries that states were in fact immune from suits brought by private citizens.[31] At the convention, Madison exclaimed, “Jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of any individuals to call any state into court.”[32] (emphasis added) Madison’s intention behind the language of Article III, Section II was merely to allow states to serve as plaintiffs, not as defendants.[33] He further stated in his speech before the Virginia state ratifying convention, “The only operation [Article III, Section II) can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court.”[34]

On the same date at the same Virginia convention, John Marshall exclaimed, “I hope that no gentleman will think that a state will be called at the bar of the federal court.”[35] Marshall then reinforced Madison’s interpretation of Article III, Section II by further stating, “It is not rational to suppose that the sovereign power should be dragged before a court. The intent is, to enable states to recover claims of individuals residing in other states.”[36] While the Virginia convention was debating this provision of the Constitution, the New York convention recommended an amendment to the Constitution that cleared up this confusion.[37] New York wanted to include language which said the Constitution should not “be construed to authorize any suit to be brought against any state, in any manner whatever.”[38] However, the amendment was never passed due to the fact that most considered it simply unnecessary.

It is quite clear that Madison, Hamilton, and Marshall, all three giants in the creation, construction and interpretation of the Constitution, were of the same mind on this issue: Article III, Section II did not mean that citizens of a state could not bring suit against another state in federal court without that state’s consent. Further, an entire convention in New York voted to amend the Constitution to exclude suits against states altogether.[39] While the text does not explicitly limit and provide the restriction that states cannot be defendants, the Framers’ writings and debates provide clear, unwavering evidence that the provision was solely meant to be read in the way the Federalists intended it to be read.

Chisholm v. Georgia & the
Ratification of the Eleventh Amendment

While it certainly seemed clear to the Federalists that Article III, Section II did not permit states to be sued as defendants, it wasn’t so clear for the Supreme Court. In 1793, the Supreme Court addressed the interpretation of Article III, Section II in a case entitled Chisholm v. Georgia. The issue before the Court was whether a suit could be brought against one of the American states by a citizen of another state.[40]

In 1777, the Executive Council of Georgia authorized Thomas Stone and Edward Davies, as commissioners of the state, to purchase goods from Robert Farquhar, a businessman in Charleston, South Carolina.[41] The goods were to be used for supplies in the Revolutionary War, and Georgia had contracted to pay Farquhar roughly $169,000 for the supplies.[42] The goods were delivered, but Farquhar never received payment from the Executive Council members.[43] Seven years later, still without having received payment on the supplies, Farquhar was knocked overboard from his boat and drowned after he was hit by a pilot boat coming into the harbor of Savannah.[44] One of the executors of Farquhar’s estate, Alexander Chisholm, decided to bring suit against the state of Georgia to recover payment that was never delivered, even though the obligations of Farquhar’s end of the contract had been completed.[45] Georgia rejected the complaint and claimed they were immune from suit because of sovereign immunity.[46]

Each of the five justices delivered their own opinion in the case, as was the customary rule in early Supreme Court cases. In a 4-1 decision, the Court decided to reject the views of Madison and Hamilton, and held that Georgia could act as a defendant in federal court when sued by a citizen of another state.[47] The Anti-Federalists concern about the wording of Article III, Section II had finally come to light. The Court in Chisholm based its rationale on the fact that Article III, Section II had fully abrogated the states’ sovereign immunity and essentially granted the federal courts to hear disputes between private citizens and states.[48] The lone dissenter, Justice Iredell, argued that the Judiciary Act of 1789 only authorized courts to issue writs “agreeable to the principles and usages of law.”[49] His rationale was that under common law, nothing deviated from the tradition pertaining to the sovereign immunity of the King. Iredell claimed that this tradition excluded a non-consenting common law action to recover a debt from a state.[50]

The Chisholm decision was not received well by the rest of the country, largely due to the fact that private citizens were now filing suits against other states at high volumes.[51] Less than a year from the Court’s holding, a resolution was passed in the House of Representatives and Senate which sought to amend the Constitution.[52] The Senate passed the amendment by a vote of 23-2, and a couple months later the House adopted it by a vote of 81-9.[53] On February 7, 1795, North Carolina became the twelfth and final necessary state to ratify the Eleventh Amendment to the US Constitution.[54] The amendment was a byproduct of the reaction to Chisholm, and amazingly it took only one year for three-fourths of the state legislatures to ratify the Eleventh Amendment.
The Eleventh Amendment of Constitution states,

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”[55]

The language in the Eleventh Amendment has perplexed jurists and scholars today since it did not bar all suits against states in federal court. The Amendment specifically forbids suits brought by a private citizen of State A against State B, but does not preclude a suit brought by a private citizen in State A against State A. Thus, a literal interpretation of the Amendment would not preclude all suits against states in federal courts.

However, Chief Justice Rehnquist has argued that there is a reasonable and understandable explanation for this discrepancy. In Seminole Tribe v. Florida, 517 U.S. 44, (1996), Rehnquist argued “the text of the 11th Amendment dealt in terms only with the problem presented by the decision in Chisholm; in light of the fact that the federal courts did not have federal-question jurisdiction at the time the Amendment was passed (and would not have until 1875), it seems unlikely that much thought was given to the prospect of federal-question jurisdiction over the state.”[56] When Congress passed the Judiciary Act of 1789, the Act itself did not confer general federal question jurisdiction to the federal courts, but instead left remedies available in state courts with appeals to the Supreme Court if the claims were federal in nature.[57] As Rehnquist rightly points out, it was not until 1875 when the federal courts were finally vested with the broader judicial power to hear cases arising from a federal question.[58]

Thus, the main justification for the discrepancy upon the literal interpretation of the Eleventh Amendment is due not to the fact that the Framers’ sought to allow suits against states, but rather only that it was inconceivable that a citizen could bring forth a claim in federal court on any other basis than diversity jurisdiction. It is without a doubt that the Framers would have curbed the power of a citizen to sue his own state if they had conceived of this federal question jurisdiction possibility.

Cohens v. Virginia / Hans v. Louisiana:
Interpreting the Eleventh Amendment

One of then first Supreme Court cases that dealt with the idea of sovereign immunity was an 1821 case entitled Cohens v. Virginia.[59] Chief Justice Marshall delivered the majority opinion of the court and established that the federal court maintained no jurisdiction to hear a suit brought against the state of Virginia.[60] In support of this holding, Marshall keenly observed that the states had retained their sovereign status prior to country ratifying the Constitution and forming a Union.[61] Justice Marshall stated,

“It is an axiom in politics that a sovereign and independent state is not liable to the suit of any individual, nor amenable to any judicial power, without its own consent. All the States of this union were sovereign and independent before they became parties to the federal compact: hence I infer that the judicial power of the United States would not have extended to them”[62]

Justice Marshall then went on to interpret the Eleventh Amendment much more broadly than what the language actually read. Marshall stated, “The case of a contest between a State and one of its own citizens, is not included in this enumeration; and, consequently, if the principle which I have advanced be a sound one, the judicial power of the United States does not extend to it…then it is the simple case of a contest between a State and one of its own citizens, which does not fall within the pale of federal judicial power.”[63] (emphasis added) From Marshall’s opinion, it is quite obvious that in 1821, the federal courts were not to entertain suits brought by private citizens even if they resided in the state in which they brought a suit against, unless the sovereign state had consented. Chief Justice Hughes reiterated Justice Marshall’s sovereignty view some 100 years later in Monaco v. Mississippi.[64] Hughes stated, “There is also the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent.”[65] Justice Kennedy reinforced this view in the majority in Alden v. Maine as he stated, “The founding document specifically recognizes the states as sovereign entities… “[T]he States entered the federal system with their sovereignty intact.”[66]

In an 1890 case entitled Hans v. Louisiana, the Supreme Court again addressed the possibility of the Eleventh Amendment precluding suits against states from their own citizens.[67]

The Hans case involved a suit filed by a citizen of Louisiana against the state of Louisiana after Louisiana had essentially repudiated the interest on state bonds held by Hans.[68] Hans then sued in federal court, arguing that the state's refusal to make the payments as required by the contract with the state violated the Contract Clause of the Constitution.[69] On the notion that his case arose under the Constitution, Hans filed in federal circuit court under the fairly new statute providing for federal question jurisdiction.[70] Louisiana argued that it was not subject to suit and cited the Eleventh Amendment and the broad doctrine of sovereign immunity to support its claim.[71] Naturally, Hans asserted that he was not obstructed by the Eleventh Amendment since it only precluded suits against citizens from another state.[72]

Justice Joseph Bradley delivered the majority opinion for the Court, and by a vote of 9-0, the Supreme Court held that because Louisiana had not consented to jurisdiction in the present case, the Court could not exercise jurisdiction over the matter even if there were legal grounds for the underlying suit.[73] Like Marshall had done in Cohens v. Virginia, the Court extended the meaning of the Eleventh Amendment to bar any and all suits against states in federal court without their consent.[74] Bradley suggested that the Amendment’s history was a clear repudiation of the decision in Chisholm, and that it stood to reject suits against states regardless of where the citizen resided.[75] The majority opinion in Hans gave constitutional weight to Iredell’s Chisholm dissent and to the vision of Madison, Hamilton, and Justice Marshall whose declarations during the ratification debates “expressly disclaimed, and even resented" any notion that "the judicial Power" authorized non-consenting suits by citizens against the sovereign states.[76]

While the Court did acknowledge that the letter of the Eleventh Amendment did not extend to Hans lawsuit, the Court based its holding on the historical intentions of the Founding Fathers.[77] The majority in Hans also pointed out that under the Articles of Confederation, states could not be sued by private citizens.[78] Bradley stated in his opinion, quoting Justice McLean, “Under the Articles of Confederation, a State could be sued only in cases of boundary. It is believed that there is no case where a suit has been brought, at any time, on bills of credit against a State; and it is certain that no suit could have been maintained on this ground prior to the Constitution."[79] In essence, the Court simply found it inconceivable that the Framers would have allowed for federal question claims against the states.[80] Justice Bradley wrote,

“Can we suppose that, when the Eleventh Amendment was adopted, it was understood to be left open for citizens of a State to sue their own state in the federal courts, whilst the idea of suits by citizens of other states, or of foreign states, was indignantly repelled? Suppose that Congress, when proposing the Eleventh Amendment, had appended to it a proviso that nothing therein contained should prevent a State from being sued by its own citizens in cases arising under the Constitution or laws of the United States: can we imagine that it would have been adopted by the States? The supposition that it would is almost an absurdity on its face.”[81]

Basically, the majority in Hans relied on the broader political context and the sentiments of the Framers’ era to infer a more expansive spirit than the Amendment's text could bear, and then applied that spirit over the letter of the Amendment.[82] Accordingly, future Supreme Court decisions have in fact credited Hans in establishing "Eleventh Amendment immunity" against federal question actions brought against a state by its own citizens.[83] As previously mentioned, the majority opinion also gave weight to the “shock and surprise” of the American populace after Chisholm was handed down in 1793, and the Court was fearful of another sort of reaction by the states.[84] Thus, the majority in Hans concluded that "the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the constitution when establishing the judicial power of the United States.”[85]

Even though the Hans court did not abide by a purely textual interpretation of the Eleventh Amendment, the Court nonetheless came down on the correct side of the intentions of our Framers. In looking to history and the circumstances of how the Eleventh Amendment was enacted and adopted, the Court in Hans, without a doubt, applied the appropriate methodology in its approach to the decision and reached the most rational and historically accurate legal conclusion.

Seminole Tribe v. Florida
Congress and Sovereign Immunity

In Seminole Tribe v. Florida, the Supreme Court held, by a 5-4 margin, that Congress lacks the constitutional authority, when acting pursuant to the Commerce Clause, to abrogate sovereign immunity afforded to the states under the Eleventh Amendment of the U.S. Constitution.[86] This decision, while indeed controversial, was consistent with our Framers understanding of the necessity of sovereign immunity and the weakness of the Commerce Clause itself.

In 1988, Congress passed the Indian Regulatory Gaming Act which was designed to restore to the states a role in regulating gaming operated by Indian Tribes.[87] The section of the Act at issue stated, “The United States district courts shall have jurisdiction over (i) any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe.”[88] If the district court finds that the state failed to negotiate in good faith, then the Act allows the court to "order the State and Indian tribe to conclude such a compact" within sixty days.[89] The dispute between the Seminole Tribe and state of Florida occurred when negotiations broke down, and thereafter the Tribe sued the state of Florida and the Governor in federal court alleging that the defendants did not negotiate in “good faith.”[90]

Writing for the majority, Justice Rehnquist stated that while Congress does have power to abrogate sovereign immunity under Section 5 of the 14th Amendment, it does not have the constitutional authority to abrogate under Article I’s grant of legislative authority.[91] Rehnquist essentially reaffirmed that Article III, Section II did not override the states’ sovereign immunity and that this principle was clearly established with the Eleventh Amendment specifically rejecting the Chisholm decision.[92] Not only did Rehnquist reaffirm the Hans interpretation of the Eleventh Amendment, Rehnquist went further and overruled an earlier case entitled Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).[93]

In Union Gas, Justice Brennan, writing for the majority, had concluded that Congress did in fact possess Article I authority to abrogate state sovereign immunity.[94] In overruling this conclusion, Rehnquist defended the idea that the Eleventh Amendment embodies a broader principle that “state sovereign immunity limited the federal courts jurisdiction under Article III.”[95] From this premise, the Court held that allowing Congress to abrogate sovereign immunity of the states under Article I would contradict the fundamental principle that Congress cannot “expand the jurisdiction of the federal courts beyond the bounds of Article III.”[96]

Writing for the dissent in Union Gas, Justice Scalia remarked on the general nature of the Eleventh Amendment, and invoked the precedent and rationale set forth in Hans.[97] Scalia stated, “What we said in Hans was, essentially, that the Eleventh Amend-ment was important not merely for what is said but for what it reflected: a consensus that the doctrine of sovereign immunity, for States as well as for the Federal Government, was part of the understood background against which the Constitution was adopted, and which its jurisdictional provisions did not mean to sweep away.”[98]

Justice Souter, writing a dissenting opinion in Seminole Tribe, stated “There is almost no evidence that the generation of the Framers thought sovereign immunity was fundamental in the sense of being unalterable.”[99] Here, Souter is essentially suggesting that since the Founding Fathers never specifically said that Congress could not abrogate a states’ sovereign immunity from the Eleventh Amendment, then clearly Congress should have that power under the Commerce Clause. Souter is unfortunately framing the issue incorrectly. The reason there is little evidence on the Framers interpretation of abrogation of sovereign immunity is simply because the Framers never even considered it a possibility. Sovereign immunity for the states was embedded in the minds of our Framers, and surely Madison would never have agreed that the Commerce Clause could abrogate a states’ sovereignty.

As Justice Kennedy points out in the majority opinion in Alden v. Maine, “We believe, however, that the Founders’ silence is best explained by the simple fact that no one, not even the Constitution’s most ardent opponents, suggested the document might strip the States of the immunity…It suggests the sovereign’s right to assert immunity from suit in its own courts was a principle so well established that no one conceived it would be altered by the new Constitution.”[100]

Exceptions to Sovereign Immunity

Today, the concept of sovereign immunity has been limited and restricted in several different cases. Whether the Founders had intended that this concept be subject to restriction is most certainly unknown, most likely they would have supported these extensions for a state to be sued.

The first and foremost exception to sovereign immunity is an exception that even our Founders espoused. This is the notion that a state can in fact waive its sovereign immunity and consent to jurisdiction in court. As the majority in Alden v. Maine point out, “Sovereign immunity bars suits only in the absence of state consent.”[101] Consent can either be express or implied, and if a state brings a suit against an individual, countersuit is obviously a case of implied consent.[102] Often, a state may consent to suit if it wishes to hold itself accountable for actions or perhaps to set a precedent for future actions.

The second meaningful exception to sovereign immunity of the states is that state officers can be sued for prospective injunctive relief, or non-monetary relief. In a 1908 case entitled Ex Parte Young, the Supreme Court upheld an order restraining the state's attorney general from bringing suit under a statute alleged to trench on constitutional rights.[103] By authorizing suit in Young, the Supreme Court essentially established an implied cause of action for injunctive relief against state officials whose conduct violates the Fourteenth Amendment.[104] Accordingly, the majority held that state officials who act in violation of the Constitution are taken out of their official capacity and, thus, they lose the protection of state sovereign status.[105] The Supreme Court in Pennhurst State School & Hospital v Halderman, further recognized the principle in Young as "necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to 'the supreme authority of the United States."[106] Two years later, in Green v. Mansour, the Supreme Court interpreted the injunctive relief of Young as "giving life to the Supremacy Clause" because “remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law.”[107] Thus, sovereign immunity does not extend to state officials who enforce law that is in clear violation of the Constitution and are subject to suit in federal court.

The third exception of sovereign immunity is suits which have been abrogated by Congress. As this paper has already mentioned, the constitutional authority of Congressional abrogation of sovereign immunity cannot and does not rest in Article I pursuant to the Commerce Clause.[108] However, the Supreme Court has held that Congress can abrogate the sovereign immunity of states when acting appropriately under power granted by Section 5 of the Fourteenth Amendment.[109] As an example of this abrogation, the Supreme Court held in 1976 in a case entitled Fitzpatrick v. Bitzer, that the Fourteenth Amendment gives Congress the power to override a State's Eleventh Amendment sovereign immunity for the purpose of enforcing civil rights on the States.[110] The Supreme Court in Fitzpatrick stated, “Congress may authorize private suits against non-consenting States pursuant to its Section 5 enforcement power.”[111] It is more than likely the Framers would have considered this a valid abrogation of sovereign immunity since Madison and Jefferson both wrote Resolutions which considered nullifying federal law that was inconsistent with the provisions of the Constitution.[112]

These are the three most prominent and significant exceptions to sovereign immunity which the Supreme Court wholeheartedly accepts today. All three exceptions would most likely be viewed favorably by the Founders.


In conclusion, the concept of sovereign immunity was undoubtedly an English law precept that the Framers wished to carry over to American jurisprudence. The English jurists such as Blackstone and Coke both saw sovereign immunity and suits against the King as something instilled and embedded in natural law. From the ratification debates, it was clear that only a few individuals sought to interpret Article III, Section II as allowing private citizens to sue states as defendants in federal court. Madison, Hamilton, and Marshall all believed that this possibility was antithetical to the states’ retaining their sovereign status after the formation of the Union. Even though the Court in Chisholm held that states were not immune from suits, the Eleventh Amendment was quickly ratified to repudiate that very decision. In turn, the amendment was interpreted in Cohens and later in the Hans decision to bar all suits against states, even if the citizen resides in the state he seeks to sue. The spirit and historical intentions of our Founders were used to buttress these decisions. The Supreme Court limited Congressional abrogation in the Seminole Tribe decision, which further restricted Congress’ Commerce Clause reach onto the states. It can be said that the reason the Eleventh Amendment did not extend to all citizens was simply because the Founders never considered federal question jurisdiction, which came to light after 1875. The Supreme Court consistently acknowledged that the states retained their sovereign status after the formation of the Union, and in turn, retained the right not to be brought before a federal court by a private actor without its consent. Today, the major exceptions of sovereign immunity extend an avenue for a remedy to citizens that would not receive one if sovereign immunity was deemed absolute. Indeed it is not, and the Founders’ most likely would have agreed with these exceptions.

Sovereign immunity is a legal concept that the Framers clearly intended to keep intact when they structured the Constitution, and the historical debates, writings, and subsequent Supreme Court decisions prove this to hold true.

[1] Morris, Richard. “The Great Peace of 1783,” Proceedings of the Massachusetts Historical Society, Third Series, Vol. 95 (1983) p. 29
[2] Chemerinsky, Erwin. “Against Sovereign Immunity.” Vol. 53 Stanford Law Review (2000-2001). pg. 1201
[3] Jaffe, Louis L. “Suits Against Governments and Officers: Sovereign Immunity.” Vol. 77 No. 1 Harvard Law Review (1963). pg. 4
[4] United States v. Lee, 106 U.S. 196 (1882) citing Chief Barons Comyns, 1 Digest, 132 Action C.
[5] 106 U.S. 196 (1882)
[6] Barry, Herbert. “The King Can Do No Wrong.” Vol. 11 No. 5 Virginia Law Review (1925). p. 352
[7] Barry, p. 353
[8] Barry, p. 353 quoting Coke’s Institutes, 73.
[9] Blackstone, William. Commentaries on the Laws of England 6 (Chitty Ed. 1855).
[10] Barry, p. 355
[11] Barry, p. 355
[12] Barry, p. 355
[13] Chemerinsky, p. 1206
[14] Chemerinsky, p. 1206
[15] “The Constitution of the United States," Article III, Section II.
[16] Chemerinsky, p. 1207
[17] Elliot, Jonathan. The Debates in the Several States Conventions on the Adoption of the Federal Constitution, (1937). p. 526-527
[18] Chemerinsky, p. 1207
[19] Chemerinsky, p. 1207
[20] Elliot, p. 543
[21] Chemerinsky, p. 1207-1208
[22] Elliot, p. 575
[23] Chemerinsky, p. 1207-1208
[24] Chemerinsky, p.1208
[25] Chemerinsky, p. 1208
[26] Philip B. Kurland and Ralph Lerner, eds., The Founders’ Constitution (Chicago: University of Chicago Press, 1987) Document 12.
[27] Chemerinsky, p. 1208
[28] Alexander Hamilton, "Federalist #81," in The Federalist Papers, ed. Clinton Rossiter (New York: New American Library, 1961)
[29] Hamilton, “Federalist No. 81”
[30] Manning, John. “The Eleventh Amendment and the Precise Reading of Constitutional Texts,” Vol. 113 No. 8 (2004) p. 1674
[31] Chemerinsky, p. 1208
[32] Elliot, p. 533
[33] Chemerinsky, p. 1208
[34] Field, Martha. “The Eleventh Amendment and other Sovereign Immunity Doctrines: Part 1,” University of Pennsylvania Law Review Vol. 126 No. 3 (1978) p. 527
[35] Field, p. 528
[36] Field, p. 528
[37] Field, p. 529
[38] Field, p. 529
[39] Field, p. 529
[40] Mathis, Doyle. “Chisholm v. Georgia: Background and Settlement,” The Journal of American History, Vol. 54 No. 1 (1967) p. 19
[41] Mathis, p. 20
[42] Mathis, p. 20
[43] Mathis, p. 21
[44] Mathis, p. 21
[45] Mathis, p. 21
[46] Mathis, p. 21
[47] Mathis, p. 25
[48] Mathis, p. 25
[49] Manning, p. 1679
[50] Manning, p. 1679
[51] Mathis, p. 25
[52] Mathis, p. 26
[53] Mathis, p. 26
[54] Mathis, p. 26
[55] “The Constitution of the United States," Eleventh Amendment
[56] Seminole Tribe v. Florida, 517 U.S. 44, 69-70 (1996)
[57] Warren, Charles. “New Light on the History of the Federal Judiciary Act of 1789.” Harvard Law Review Vol. 37 No.1 (1932) p. 62
[58] Warren, p. 62
[59] Roark, Mark L. Our Sovereign Body: Narrating the Fiction of Sovereign Immunity in the Supreme Court. Smith Gambrell & Russell (2006). p. 8
[60] Roark, p. 8
[61] Roark, p. 8
[62] Cohens v. Virginia, 19 U.S. 264, 53 (1821)
[63] Cohens, 19 U.S. at 54
[64] Principality of Monaco v. Mississippi, 292 U.S. 313 (1934)
[65] Monaco, 292 U.S. at 322
[66] Alden v. Maine, 527 U.S. 706, (1999) quoting Seminole Tribe of Fla. v. Florida, supra, at 71, n. 15; accord, Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991)
[67] Hans v. Louisiana, 134 U.S. 1, 21 (1890)
[68] Manning, p. 1681
[69] Manning, p. 1681
[70] Manning, p. 1681
[71] Manning, p. 1681
[72] Manning, p. 1681
[73] Hans v. Louisiana, 134 U.S. 1, 21 (1890)
[74] Hans, 134 U.S. at 18
[75] Manning, p. 1682
[76] Manning, p. 1682
[77] Manning, p. 1683
[78] Manning, p. 1683
[79] Hans, 134 U.S. at 16
[80] Manning, p. 1683
[81] Hans, 134 U.S. at 15
[82] Manning, p. 1683
[83] Manning, p. 1683
[84] Manning, p. 1667
[85] Hans, 134 U.S. at 15
[86] Meltzer, Daniel. “The Seminole Decision and State Sovereign Immunity,” The Supreme Court Review Vol. 1996 (1996) p. 2
[87] Meltzer, p. 2
[88] 10 Pub L No 100-497, 102 Stat 2374 (1988), codified at 25 USC 2701(d)(7)(A) et seq.
[89] Meltzer, p. 4
[90] Meltzer, p. 5
[91] Meltzer, p. 6
[92] Meltzer, p. 20
[93] Seminole Tribe v. Florida, 517 U.S. 44, 64 (1996)
[94] Manning, p. 1687 (footnote 92)
[95] Seminole Tribe v. Florida, 517 U.S. 44, 64 (1996)
[96] Seminole Tribe, 517 U.S. at 65
[97] Hovenkamp, Herbert. “Judicial Restraint and Constitutional Federalism: The Supreme Court’s Lopez and Seminole Tribe Decisions,” Columbia Law Review Vol. 96 No. 8 (1996) p. 2243
[98] Union Gas, 491 U.S. 1, 31-32 (1989)
[99] Seminole Tribe, 517 U.S. at 706, 764 (Souter, J. dissenting)
[100] Alden v. Maine, 527 U.S. 706, 741 (1999)
[101] Weiman, Theodore J. “Jurisdiction Stripping, Constitutional Supremacy, and the Implications of Ex Parte Young,” University of Pennsylvania Law Review Vol. 153, No. 5 (2005) p. 1695
[102] Ferrara, Donna. “Insurance Issues Surrounding Sovereign Immunity and Employment Practices Liability,” Public Entity Risk Institute (2005)

[103] Meltzer, p. 33
[104] Meltzer, p. 38
[105] Weiman, Theodore J. “Jurisdiction Stripping, Constitutional Supremacy, and the Implications of Ex Parte Young,” University of Pennsylvania Law Review Vol. 153, No. 5 (2005) p. 1696
[106] Pennhurst State School & Hospital v Halderman, 465 U. S. 89, 105 (1984)
[107] Green v. Mansour, 474 U.S. 64, 68 (1985)
[108] Seminole Tribe, 517 U.S. at 65
[109] Weiman, p. 1695
[110] Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)
[111] Alden, at 756 citing Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)
[112] Adrienne Koch and Harry Amon. “The Virginia and Kentucky Resolutions: An Episode in Jefferson’s and Madison’s Defense of Civil Liberties,” The William and Mary Quaterly, Third Series, Vol. 5, No. 2 (1948) p. 157

Friday, March 23, 2007

Part 3 of "Learn Some History!" Series: Why Italy fought with Germany in World War II

The advent of World War II brought upon the major European alliance of Italy and Germany. The Rome-Berlin Axis formally began in 1936 and lasted until the end of the war in 1945. Benito Mussolini, the fascist dictator in Italy, had aligned with Adolf Hitler in Nazi Germany. This partnership was established because of minor ideological similarities, the geographical conditions of Europe (i.e. the position of Italy and Germany), the complete deterioration of international relations between France/Britain and Italy which in turn led Hitler to exploit Italy’s seclusion by giving them military and economic aid, the military collaboration of Italy and Germany in the Spanish Civil War, and the similitude of the expansive territorial goals each nation desired. While indeed many of these reasons are the main cause of the alliance between the two countries, they were not the reason, or immediate cause for Italy to fight with Germany. The most important motivating factor for Italy to fight alongside of Germany was not any of the above reasons. In fact, it was not until Germany had defeated the French in 1940 that Mussolini had finally decided to enter battle in conjunction with the Germans. Had the Germans lost the campaign against the French, or even still waged a war of attrition with little end in sight, Mussolini would have possibly declared neutrality. Of course, the other reasons for Mussolini aligning with Hitler were also very prominent in the construction of their alliance, yet the French defeat actually brought Mussolini out of his ‘neutrality’ thoughts and in to the battlefield.

Understanding the historical significance of Hitler’s adoration for Mussolini is a crucial premise to the ideological factors of alignment. One must understand however, that by natural causes, fascism and Nazism did not necessarily have to align with one another. The ideological factors simply achieve a deeper understanding between the two sides. Hitler had admired Mussolini ever since he had come to power in 1922. The revulsion of Soviet Bolshevism displayed by Hitler ideologically aligned him with Mussolini and his corporative state. On one occasion, Hitler remarked to his entourage about Mussolini defeating Bolshevism “not by military force but by superior intellect, and we have to thank him by showing for the first time…that even in this twentieth century is it possible to recall a people to a sense of purely national pride.”1 Hitler also compared his regime progress to that of Mussolini as he said, “When I read the history of Fascism I feel as if I’m reading the history of our movement.”2 Hitler remarked in the 1930s, after he had total control over Germany, “…the Duce and I were both working in the building-trade. This explains that there is also a deep bond between us on a purely human level. I have a deep friendship for this extraordinary man.” The alliance between the two countries indeed seemed more masked in the friendship between the two individuals. Evidence of this can be seen when Hitler told his generals in 1939, “If anything happened to [Mussolini], the loyalty of Italy to the alliance would be no longer secure.”3

The only other key aspect of the alliance in terms of assessing the ideological factor of Hitler and Mussolini was the doctrine of denying democracy; exactly what the Western Powers had afforded their people by this time. Mussolini had thought the Peace Treaties at the end of World War I were unfair to Germany. Mussolini recognized that Germans had been coerced to swallow the ‘Immortal Principles’ of western democracy which was not in harmony with German mentality or tradition. Mussolini said, “Fascism denies, in democracy, the absur[d] conventional untruth of political equality dressed out in the garb of collective irresponsibility, and the myth of "happiness" and indefinite progress.”4 Here we see evidence that indeed Mussolini was not a proponent of democracy. The dissatisfaction with the Peace Treaties also led Italy to sympathize with German opposition. Mussolini stated in 1931, “And how then can we not talk of European reconstruction if certain clauses of the Peace Treaties, which have driven whole peoples to the edge of the abyss and of moral despair, are not modified?”5

Also, Hitler had visualized an alliance between Italy and Germany in 1920 as he declared, “Our basic demand is: Off with the [Versailles] Peace Treaty! To this end we must use everything we can. Especially the differences between France and Italy, in order to win Italy over to our side.” 6

Most of Hitler’s interpretation at the time was not that Italy was so perfect to align with Germany, but that France and Italy were in fact so opposite that Mussolini may have no other choice but to side with Germany. And in 1933, when Hitler came to power, ideology remained a backburner for this alliance. In fact, the ideological framework between the two countries did not make them born alliances. As much as Hitler made endearing remarks about Mussolini, there was a clear disconnect between the two leaders. As many perceptive observers noted at the time, the two men essentially lacked a real understanding and comprehension of one another.7 The only reality that lay within their personal bond was the fact that they both were supreme rulers of their respective countries.8 Also, there was a vast difference between the government of Hitler’s National Socialism and Mussolini’s fascistic government.9 When Hitler finally came to power, it proved very difficult for both men to initiate diplomatic relations since both were rampant nationalists, both with imperialistic ambitions.10 One of the most interesting ideological differences between the two leaders was their belief in the “Aryan” race. In 1934, Mussolini emphasized that German ‘Aryanism’ had many flaws and that their anti-Semitic policy was in fact a dangerous mistake that “played into the hands of international Jewry” which harmed Germany’s international reputation.11

Even though it is important to get an understanding of the two dictators countries and rule being more similar to that of the Allied Powers, it would be a massive error to assume that these two powers aligned because of their ideological similarities. The ideological parallels played only a minor role, if any, in developing unity between the nation-states from the early inception of Mussolini and Hitler’s rise to power; it was not until France was defeated did Mussolini actually deploy troops to hopefully take an active part on the winning side of the war.

The geographical composition of these two states also played a small part in the determination of this ‘Axis.’ Italy has the unfortunate location of having no free access to an ocean. The country is positioned by an inland sea which is only connected through the Suez Canal and Straits of Gibraltar, both of which were dominated by the British.12 Mussolini’s Italy was captive to the Mediterranean, and Corisca, Tunisia, Malta, and Cyprus were the “bars of the prison.”13 Mussolini remarked that the purpose of Italian foreign policy “has not and never can have as objectives continental European territory except Albania, is in the first place to break the prison bars.”14 Mussolini further posited that after they had broken these pillars, Italy would ‘march to the ocean.’ Yet Mussolini knew he needed an ally before he commenced such an operation. “To brave the solution of such a problem without having our backs secured on the Continent would be absurd.”15 The ‘security’ which Mussolini ultimately depended upon was that of Nazi Germany, but only after they had destroyed France.

Mussolini wanted to secure an alliance with a strong land power so it could pursue and maintain its colonial conquests in the Mediterranean Sea and Northern Africa. The deep feel for Hitler to acquire Italian friendship was also prevalent in Mein Kampf as Hitler denounced the reclamation of South Tyrol to Germany. South Tyrol was a German-speaking province Italy had taken after World War I. Hitler stated, “All this fuss today is not made for love of the South Tyrol, which it does not help but only harms, but for fear of a possible German-Italian understanding.”16 The strategic placement of Italy and Germany within Europe was convenient in that Italy and Germany were not after the same territories for expansion. In fact, Hitler even acknowledged that Italy or Britain would be the ideal partnerships since Germany could focus on continental Europe, Britain would focus on its overseas imperial dominance, and Italy would stake claim in the Mediterranean. Hitler wrote, “In the predictable future there can be only two allies for Germany in Europe: England and Italy.”17

Yet again, the geographical location of the two countries played only a negligible role in the development of Italy actually going to war alongside of Germany. In fact, it was there very geographical positions in Europe which almost caused them to go to war with each other. One notable historical event between the two countries dealt with the independence of Austria. Austria was located smack in the middle between Italy to its south and Germany to its north. The Austrian government, in 1933, began to model itself off of Italian fascism when Chancellor Engelbert Dollfuss essentially dissolved the republic that had existed prior.18 Mussolini was very concerned about the independent Austria falling under the auspices of Nazi Germany at this time. In fact, Dollfuss began executing many Austrian Nazis for the sake of resisting German control.19 It was indeed in the interest of Italy to have Austria maintain their independence so that the country could serve as a buffer state between them and Germany.20

The first meeting between Hitler and Mussolini occurred on June 14th 1934 in Venice. Essentially it was a failure as Hitler demanded a new chancellor and new government in Austria and Mussolini demanded that the Nazi’s stop the terrorist methods of trying to overthrow Chancellor Dollfuss.21 Tensions were rising between the two powers after they met. Roughly one month later, Chancellor Dollfuss was assassinated by Nazi’s, and a coup tried to take over the government. Mussolini was outraged and subsequently sent Italian troops to Austria, the Brenner Pass, in a threatening anti-German gesture.22 After sending the troops to Austria Mussolini remarked, “We have defended and will defend the independence of the Austrian Republic.”23 Germany eventually backed down from this, and the relations became better with both countries after Germany was the only country that did not apply sanctions to Italy after they decided to invade Ethiopia.24 Thus, although Germany later did not share territorial ambitions to that of what Italy may have wanted, they still nonetheless almost warred against each other because of their very location in Europe. Geography could have well turned these two powers against each other which is the very reason why it was not the primary factor in their alliance.

The relationship between France and Italy also, to a much larger degree then the previous two reasons, played a role in the development of a Rome-Berlin Axis. The relationship between the two countries was somewhat of a pendulum, where sometimes Italy was outspoken against France, and often they were in accordance with the French government. One of the crucial issues between the two countries rise to bitterness was that of Tunisia. In 1883, many thousands of Italians had migrated from Sicily to Tunisia. In 1896 a Franco-Italian agreement was signed which permitted the Italians to keep their own nationality, build their own schools and were afforded other privileges.25 However, after WWI in 1918 France decided to revoke this agreement and began treating the Italians poorly while passing regulations on their rights and requiring them to attain French citizenship.26 The discussions about Tunisia represented bitterness between the two powers as many Frenchmen began to think that this territory was on scope for Italy to acquire in their imperialist ambitions.27 Here is evidence that suggests the two countries had difficulty in diplomacy even since the closure of WWI.

In the late 1920s, Italy was on shaky ground with its supposed allies of France. On September 17th, 1927 Count Carlo Nardini, Italian Consul in Paris, was murdered by an Italian Anarchist named Modugno. The court in Paris then sentenced Modugno to only 2 years in prison with a fine of 200 francs.28 This angered the Italian people as Mussolini stated in the Cabinet Council after the incident: “The whole nation has in the last few days been seriously outraged by the verdict of the Paris jury…The government understands the indignant emotion of the Italian people.”29 The relations between countries got better after the French began arresting anti-fascists that were going to kill Italian officials.30 Franco-Italian naval relations were tensing up as well. On March 1, 1931 an agreement was drafted by the British and Italians which maintained Italy’s right to parity in terms of naval rearmaments. France rejected the proposal and insisted that Italy agree to never build up a fleet which is the equivalent of France. The disarmament discussions between the countries dragged on without any definite conclusions.31 This is all not mentioning the fact that British and Italian aims were relatively similar thus producing conflict as well. For example, the Fascist objective of an Italian Mediterranean indeed contrasted sharply to British influence and interests in the region.32

Yet while there was much disagreement between France and Italy, there was still an attempt on both governments to call for peace in Europe. One example of this would be the Briand-Kellogg Pact which called for providing for the “renunciation of war as an instrument of national policy.”33 This pact was signed by France, US, Great Britain and Italy in 1928- to which later Russia adhered to this pact. After this pact was signed Mussolini gave a speech on December 9, 1928 saysing, “ We are all for peace. We have signed the Kellogg-Briand Pact.”34 Mussolini even addressed the American people on Janurary 1st of 1931 stating that “Neither I nor my government, nor the Italian people wish to prepare for war. I have fought in a war as a private soldier, I know what war means.”35 The French government led by Daladier also stated in 1933 that they wished to regain better Italo-Franco relations and requested just an agreement between those two countries.36 The Italians also tried to issue peace through a new pact entitled the Four Powers Pact. This was drafted by Mussolini in 1933 and was signed by, although a more diluted version than the original, France, Britain and Germany.37 Essentially the Four Powers Pact said the following: “a policy of effective co-operation between all powers with a view to the maintenance of peace.”38 This is evidence that Italy and France were not born and hated enemies, but in fact engaged in realist determinations of alliances and sought possible genuine peace in Europe. This all changed when Italy invaded Ethiopia.

As stated, the tip of the iceberg was Italy’s invasion of Ethiopia, which was condemned by the League of Nations.39 Mussolini knew that he had to gain British and French acquiescence before he went and invaded Ethiopia. In fact, Mussolini was rather upset that Italy was condemned to be a second-rate power unless they acquired some colonial powers. Ethiopia was one of the few African territories that had not already been snatched up by other European powers, and since it proved to be rich in raw materials it proved to be a good agricultural industry for Italy.40 The international depression at this time was causing a stagnate Italian economy and colonial acquisitions seemed to be a quick fix in alleviating some of the economic pressures put upon the Italian economy. So by fall of 1933, the diplomatic relations in the Four Powers Pact had fizzled out and Mussolini was becoming restless with nonsensical talk of diplomacy.41 Finally on December 30th, 1934 Mussolini ordered an Italian invasion of Ethiopia.42 Mussolini attempted to downplay there invasion to Britain and France by sparking up heightened fears of a German rearmament and the taking of Austria.43

France and Britain were extremely upset about Italian action in Ethiopia and the League of Nations quickly acted against Italian aggression. They imposed the following sanctions on Italy: an embargo on arms and munitions, a ban on loan and credit, and a prohibition on the export of materials necessary for Italy’s ability to wage war.44 The crumbling of international alternatives for Italy paved the way for its acceptance into the German framework of being an ally. While Mussolini was now economically isolated from Europe, Hitler came along and supplied Italy with arms and materials. German goods were sent to Italy despite the Treaties sanctions.45 This proved to be an instrumental factor in a relationship between the two countries that did indeed last until 1945. However, as previously stated, just because Italy had justification to side with Germany did not ultimately mean they would fight alongside each other. The conquest did catapult the Rome-Berlin Axis in October of 1936 and also the cooperation of military support for Spain from both Italy and Germany. After the war however, Britain still tried not to alienate Italy from the Western powers, so that Mussolini would stay away from an alliance with Hitler. Britain actually lifted the sanctions which applied to Italy during the Ethiopian War by ending the Mediterranean Sea alerts and by withdrawing their warships to home-waters.46 This is important because it signifies that by the end of the Ethiopian War, Italy could have still sided with the Western powers of Europe as opposed to Germany.

The advent of the Spanish Civil War in 1936 also fused these two regimes in a militaristic way. The Nationalists and the Republicans in Spain were battling a civil war which would ultimately determine the fate of their country and the allegiance to certain powers in Europe. The ‘caudillo’ of the Nationalists, Francisco Franco, asked Hitler and Mussolini for help in his struggle.47 Hitler and Mussolini subsequently aided Franco in his war against the Republicans and they solidified some military coordination in the meantime. With this war, Hitler successfully created a partnership with Mussolini when he sent troops to fight what he called "Bolshevism" in Spain alongside the Italians. Hans Frank, Hitler’s personal envoy, arrived in Rome in September to discuss the Spanish conflict with Mussolini. Frank assured Mussolini that the only reason Hitler was intervening militarily in Spain was not because of territorial or imperialist aims but because of respect for Mussolin. The Italian Minister of Foreign Affairs Galeazzo Ciano stated about the meeting “the Fuehrer is anxious that we [Mussolini and Ciano] should know that he regards the Mediterranean as a purely Italian sea. Italy has a right to positions of privilege and control in the Mediterranean. The interests of the Germans are turned towards the Baltic which is their Mediterranean."48 The Italian government sent their air force along with 10,000 Germans who were airmen and gunners.49 Mussolini and Hitler’s actions in Spain were against international law at the time, especially against the wishes of the Non-Intervention Committee which was speaking out against action in Spain.50

In the meantime, France was supplying the Republicans with arms. Guns, tanks, and planes arrived in Spain to combat the anti-Republican forces. Hitler convinced Mussolini to increase aid in Spain, and by the end of the war Mussolini had ordered roughly 72,000 Italian troops in Spain in conjunction with many German troops as well.51 Mussolini around the end of 1936 was beginning to see Germany as a formidable ally in international relations. He stated, in a conversation with one of Hitler’s aides, “Between Italy and Germany there is a common fate. This is becoming stronger and stronger. That it cannot be denied. Italy and Germany are congruent cases.” Here we see the alliance beginning to solidify, although again, Mussolini still had reservations with this alliance as he also was wanting to keep it a secret from the rest of Europe. He also said, “We cannot openly show France and England our position towards Germany. Not yet!”52 Interpreting this, Mussolini may not have wanted to induce France and England into thinking that he wanted to align with Germany for the simple reason that he was still open to diplomatic relations, at least to a small degree, with those two countries.

The question of Austria still lingered during 1938. Hitler was exerting his expansionist policies towards the Austrian government, and even knowing that he could have taken Austria over without fear of Italian retaliation, Hitler wanted to remain on good terms with Mussolini so he subsequently asked for his approval. Mussolini approved the Anschluss as soon as he received it.53 Mussolini had no choice in the matter since most of his troops were in Spain at the time, much to the manipulation of Hitler’s aims. So it went that Hitler marched into Austria unopposed and annexed the country to its sovereignty of Germany.54

Yet, in 1939, in the midst of a solidifying alliance between the Axis powers of Spain, Italy, and Germany, Hitler decided to march into Prague, without forewarning Mussolini of his actions. The Italian government was infuriated by Hitler for not giving them an alert that this would be occurring.55 Ciano, speaking about the invasion of Prague remarked in his journal, “What weight can be given in the future to those declarations and promises which concern us more directly? It is useless to deny that all this worries and humiliates the Italian people.”56 Tensions between the two powers arose, and Mussolini then decided to counteract this move and invaded Albania, giving Hitler only one day warning.57 Also, after Hitler took Prague, Mussolini thought the German army would march and invade a weakened Yugoslavia. Thus, prior to Mussolini’s attack on Albania, he ordered the abandoned of the attack in preparation for Hitler’s attack against Yugoslavia.58 However, Germany assured Italy that the Balkans and the Mediterranean were clearly in their sphere of influence and that they had no intentions of disregarding this aspect of the pact.59

During the Spanish intervention, only Germany remained as a potential ally for Italy after the war subsided. Hitler and achieved a somewhat necessary ally in Italy. By convincing Mussolini to intervene in the Spanish conflict, Hitler pulled Italy closer to Germany by exploiting Italy’s increasing economic dependence on Germany, as well as Italy’s seclusion from the Western European powers. In Germany’s and Italy’s pursuit of distinguishable spheres of influence, (i.e. German interest in Austria and Central Europe and Italian interest in Ethiopia and Spain) the context for cooperation was enhanced. The ‘Axis’ was thus secure in large part as an effect of the isolation of Italy from the West, and their separate ambitious territorial goals by each ruler.60 But again, this does not mandate that Italy would wage war for German support. Territorial expansion was also a very principal factor in the alliance of these nations. The insatiable desire for more territory by both leaders put led them into the same line of thinking. Although it has been implicit in the arguments prior, territorial expansion was the convenient scheme that unified Italy and Germany in terms of the motivations for attacking other countries and regions.

The proposal of this paper rests upon the main assumption that all of the above reasons played a minor to major role in establishing the framework for which Italy and Germany came to align upon. However, the primary factor which pitted the two into war against Western democracies was in fact the fatal blow delivered by Germany to the French army. In 1940, Germany invaded France and desecrated their army within less than two months. Prior to the onset of the war in 1940 however, Mussolini wrote to Hitler, “The two European powers need a period of peace lasting not less than 3 years. It is from 1943 onwards that a war effort will have the greatest prospects of victory. Fascists Italy, although convinced that it is inevitable, has no desire to participate in a European War.”61 This is telling, because it signifies that Italy was not prepared to go to war when Germany invaded France. Also, Hitler had no intention of preparing for a major war, and at no time after 1940 did Hitler show any interest in cooperation with the Italian military in the event of a major war.62 The only thought Hitler ever really gave to Italy was that it would serve as a neutralizer to Western European powers in terms of intervention from the Mediterranean or North Africa.

The actual outbreak of the war was completely uncoordinated between Italy and Germany. In fact, Hitler was so unconcerned with German-Italian relations by the end of 1939 that he signed a Nazi-Soviet Pact.63 The first invasion of the German army into Poland was not even laid out before hand with Mussolini and no consultation had been sought on account from Hitler. Mussolini thus declared Italy a “non-belligerency” and remained reluctantly neutral at the outbreak of the war.64 From the early onset of the war, all previous alliances between the Axis were really not solid and the real truth was that the Rome-Berlin Axis was more of a superficiality than an unyielding document with each state pursuing their own interests and their own protection of national security. The original timetable for Italian entrance into the war was 1942 or 1943, but it was all rendered useless after the German army had extremely successful campaigns in Norway and France, and the whole strategic situation had changed for Italy.65 A letter from an old guard member of the Italian Army, Farinacci wrote a letter to Mussolini stating what most of the individuals in the Italian government had believed. He said, “Naturally all those socialistoids, democratoids, and creotoids, are all beginning to say that if we intervene we should intervene on the side of France against Germany. This would be a grave misfortune for Italy since nobody would take us serious anymore and we would lose that prestige which you have secured for us in so many years of struggle.”66

The reasons for Italy aligning with Germany were all there, but the motivation and result of the intervention of Italian troops was only because of the result of French defeat. Even when Hitler received word that Italy was joining the war alongside of them, he had no enthusiasm towards the news.67 Even when Mussolini got involved in the war, he wasn’t involved because of the great vision or outlook Hitler had for Europe after the war, yet rather only because he thought the German armies were invincible and he wanted to maintain and establish territorial conquests in Greece and Egypt after the war.68 Evidence of the lack of solidarity and agreement within the Axis powers was evident when Mussolini decided to not help support German troops against the British, but instead waged a “parallel war” to protect his own interests in Greece.69 Mussolini stated to Ciano, “Hitler always faces me with a fait accompli. This time I am going to pay him back in his own coin. He will find out from the papers that I have occupied Greece. In this way the equilibrium will be reestablished.”70 Hitler was outraged that Mussolini would do this, yet he dare not speak out against Mussolini because it would indicate weakness in the Axis power alliance. Mussolini and Italy essentially waged a war for their personal interests, riding on a German wave of domination that only held up so long. Had France not been defeated so quickly, Mussolini may have declared neutrality and ended up fighting alongside the Allied Powers for fear of losing international reputation and imperial ambitions after the war was over. Whatever the winning side was indicating, that was what it seemed most likely for Mussolini to join.

Thus, in conclusion, factors regarding the alliance indeed weighed heavily upon the set of circumstances prior to the war. The history of ideological similarities, although not binding or perfect, at least opened up a dialogue of what two leaders ‘should’ be acting in accordance since they both looked upon the other as a resemblance of themselves (at least in Hitler’s case). The geographical location of the Italy and how the territorial conquests were in fact not what Germany wanted also played a large development in having Hitler not be belligerent towards Mussolini. The breakdown of relations and the isolation of Mussolini at the end of the 1930s almost made no choice for Italy but to form an alliance with Hitler. The Spanish Civil War which, ultimately led to European powers ostracizing Germany and Italy, aligning them closer together because of the lack of alternatives. Yet, while all of these have weight in determining the alliance, there is no question that the neutrality declared at the onset of the war, and the lack of coordination between the two powers, proved to all that the Axis powers were not bound militarily together. Mussolini was not consulted before Hitler’s attacks, and his army was clearly not ready to attack when they began the war as Hitler disregarded Mussolini’s requests for a war of attrition. The fall of France so quickly pushed Mussolini into the war, and the actions taken by Mussolini afterward, how he fought his own war of imperial aims, signifies that there was no ‘true’ alliance with Hitler, it was merely a way to get on the winning team and seek positive terms of agreement after the war was over. Mussolini fought alongside Hitler because of the effectiveness of blitzkrieg and the total collapse of the French army.