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.
The Eleventh AmendmentBy Bradford R. Clark and Vicki C. Jackson
The Eleventh Amendment’s text prohibits the federal courts from hearing certain lawsuits against states. The Amendment has also been interpreted to mean that state courts do not have to hear certain suits against the state, if those suits are based on federal law. During the debates over whether to ratify the Constitution, controversy arose over one provision of Article III that allowed federal courts to hear disputes “between” a state and citizens of another state, or citizens or subjects of a foreign state. Anti-Federalists (who generally opposed the Constitution) feared that this provision would allow individuals to sue states in federal court. Several prominent Federalists (who generally favored the Constitution) assured their critics that Article III would not be interpreted to permit a state to be sued without its consent. However, some other Federalists accepted that Article III permitted suits against states, arguing that it would be just for federal courts to hold states accountable.
Soon after ratification, individuals relied on this Clause in Article III to sue several states in the Supreme Court. One of these suits was Chisholm v. Georgia (1793), in which a citizen of South Carolina (Chisholm) sued Georgia for unpaid debts it incurred during the War of Independence. Georgia claimed that federal courts were not allowed to hear suits against states, and refused to appear before the Supreme Court. In 1793, the Supreme Court ruled, by a four-to-one vote, that Chisholm’s suit against Georgia could proceed in federal court. The Court relied in part on the text of Article III, explaining that “between” encompasses suits “by” and “against” a state.
Several other suits against other states were pending at the time Chisholm was decided in 1793, including Vassall v. Massachusetts, in which a British subject (William Vassall) sued Massachusetts for violating the Treaty of Peace by confiscating his property. Alarmed by the Supreme Court’s decision in Chisholm, Senator Caleb Strong, of Massachusetts, quickly proposed an amendment that ultimately became the Eleventh Amendment. As ratified, the Amendment provides: “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.” Following its ratification, pending suits against states were generally dismissed.
In some early interpretations, the Amendment was not read expansively. In Cohens v. Virginia (1821), the Court rejected a challenge to its jurisdiction to review a state court decision in a criminal case, in which Virginia prosecuted two brothers from Virginia for the crime of selling lottery tickets. The Cohens defended on the ground that a federal statute authorized the lottery and ticket sales. The Court first concluded “that, as the [C]onstitution originally stood, the appellate jurisdiction of this Court, in all cases arising under the [C]onstitution, laws, or treaties of the United States, was not arrested by the circumstance that a State was a party.” Turning to the Eleventh Amendment, the Court noted that a defendant who seeks appellate review of an adverse decision “does not commence or prosecute a suit against the State.” Moreover, the Court said, the Amendment would not in any event apply because the Cohens were citizens of Virginia, and thus their appeal against Virginia was not “by a citizen of another State, or by a citizen or subject of any foreign State.”
In its 1890 decision in Hans v. Louisiana, the Supreme Court interpreted the Eleventh Amendment immunity broadly to prohibit suits against a state not only by citizens of another state, but also by a state’s own citizens, and in cases arising under federal law. It essentially disavowed the contrary language in Cohens. The Hans Court placed weight on the speed with which the Amendment was adopted, and suggested that Chisholm had erred in upholding jurisdiction under the original Constitution, which could not have contemplated individual suits against states.
As Congress in the twentieth century increasingly enacted regulatory legislation that applied to the states, questions arose about whether federal statutes could be enforced against states through suits in federal court. In Fitzpatrick v. Bitzer (1976), the Court held that Congress could subject states to suit in federal court through laws enacted under its Fourteenth Amendment power to redress discriminatory state action. In Pennsylvania v. Union Gas Co. (1989), five Justices voted to allow Congress to subject states to suit under the Superfund Act, enacted under Congress’ Article I power to regulate interstate commerce. There was no majority opinion, however.
The Court quickly reversed itself on this issue. In Seminole Tribe v. Florida (1996), the Court issued a majority opinion for five Justices holding that Congress lacked power to subject states to suit when it legislated under its Article I Commerce Clause powers. Since Seminole Tribe, the Court has reaffirmed this holding and for the most part has limited Congress’s ability to subject states to suit in federal court, unless Congress acts pursuant to its powers to enforce the Fourteenth Amendment (in part on the theory that it was adopted after the Eleventh Amendment), or for some bankruptcy issues.
The Supreme Court’s decisions afford states immunities from suit that appear to go beyond the terms of the Eleventh Amendment. For example, as noted, suits by individuals against their own state have been barred; suits by foreign states are also barred. The Court has further held that states enjoy immunity in state court from suits based on federal law. Alden v. Maine (1999). Moreover, states may “consent” to suits that appear to be barred by the Amendment. These decisions suggest that the Court may regard state sovereign immunity—the legal privilege by which the state government cannot be sued, at least in its own courts, without its consent–as an underlying constitutional “postulate,”—an assumption reflected but not fully captured by the words of the Eleventh Amendment.
At least three other approaches have attracted support. First, some argue that the Eleventh Amendment should be applied according to a simple literal reading of its text to bar suits against states by out-of-state citizens, and foreign citizens or subjects (but only by these parties), even if their claim is based on federal law. Others have argued that the Eleventh Amendment's language tracks a “party-based” head of jurisdiction, and thus should not be understood to prevent federal courts from hearing suits against a state by citizens of another state if the claim arises under federal law. Still a third view regards the Eleventh Amendment as addressed to the courts, prohibiting them from construing Article III’s jurisdictional grants to abrogate a state’s common law immunity but allowing Congress to override such immunity if it clearly expresses its intent to subject states to suit. (The accompanying commentaries present further scholarly views.)
While the states continue to enjoy broad sovereign immunity from suit, the Supreme Court does allow suits against state officers in certain circumstances, thus mitigating the effect of sovereign immunity. In particular, the Court does not read the Amendment to bar suits against state officers that seek court orders to prevent future violations of federal law. Moreover, suits by other states, and suits by the United States to enforce federal laws, are also permitted. The Eleventh Amendment is thus an important part, but only a part, of a web of constitutional doctrines that shape the nature of judicial remedies against states and their officials for alleged violations of law.
Matters of Debate
Bradford R. Clark William Cranch Research Professor of Law, George Washington University Law School
The Eleventh Amendment: A Textual Approach by Bradford R. Clark
The Eleventh Amendment arose out of a dispute that began during the ratification debates over the meaning of Article III of the original Constitution.Full Text
Vicki C. Jackson Thurgood Marshall Professor of Constitutional Law, Harvard Law School
A Narrow Repeal of Party-Based Jurisdiction by Vicki C. Jackson
Some forms of jurisdiction authorized by Article III of the Constitution are based on the parties; others are based on the subject matter. The Eleventh Amendment is best read as a specific repeal of a party-based grant of jurisdiction originally found in Article III.Full Text