Interpretation & Debate

The Eleventh Amendment

Matters of Debate

Common Interpretation

Bradford R. Clark Headshot
by Bradford R. Clark

William Cranch Research Professor of Law, George Washington University Law School

Vicki C. Jackson Headshot
by Vicki C. Jackson

Thurgood Marshall Professor of Constitutional Law at the Harvard Law School

The Eleventh Amendment’s text prohibits federal courts from construing the judicial power of the United State to extend to "any suit in law or equity" against a state by " Citizens of another State, or by Citizens or Subjects of any Foreign State." 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. Prominent Federalists such as Alexander Hamilton, James Madison, and John Marshall (who generally favored the Constitution) assured 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 contested language 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' jurisdiction did not extend to such suits 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” clearly encompassed 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 by its own terms because the Cohens were citizens of Virginia, and thus their appeal against Virginia was not an action “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 by individuals 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 because the Fourteenth Amendment was expressly directed at the states, empowered Congress to redress violations of the Amendment, and was adopted after the Eleventh Amendment.

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. For some time after Seminole Tribe, the Court reaffirmed this holding and limited Congress’s ability to subject states to suit in federal court, unless Congress was acting pursuant to its powers to enforce the Fourteenth Amendment. In subsequent decisions, however, the Court allowed Congress to subject states to suit. Initially, the Court held that Congress could authorize bankruptcy judges to recover preferential payments made by insolvent debtors to state entities, emphasizing “the singular nature of bankruptcy courts’ jurisdiction” to find “a surrender by the States of their sovereign immunity.” See Central Virginia Community College v. Katz (2006). More recently, the Court reasoned more broadly that Congress can subject states to suit if the Article I power at issue is “complete in itself” and the Court concludes that the states waived their immunity in the “plan of the Convention.” See Torres v. Texas Department of Public Safety (2022) (power to raise and support the armed forces); PennEast Pipeline Co. v. New Jersey (2021) (eminent domain). The Court declined to overrule Seminole Tribe and its progeny, but these recent decisions are in some tension with the Court’s earlier opinions, especially PennEast, which allowed states to be sued by private persons to whom federal legislation enacted under the commerce clause had delegated the federal government's power of eminent domain.

Supreme Court decisions have afforded states immunities from suit that appear to go beyond the terms of the Eleventh Amendment. In 1890 the Court first held that suits by individuals against their own state were barred; in 1934 suits by foreign states were also held barred and, likewise, in 1921, admiralty suits (even though the Amendment's text refers only to suits " in law or equity").  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 recognize a form of state sovereign immunity—by which a state government cannot be sued without its consent by private persons–as an underlying constitutional “postulate,”—an assumption reflected but not fully captured by the words of the Eleventh Amendment, but one subject to being overcome by some federal legislation as indicated above.

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, as are suits for damages against state officers in their individual capacities. 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.

The Original Understanding of the Eleventh Amendment

Bradford R. Clark Headshot
by Bradford R. Clark

William Cranch Research Professor of Law, George Washington University Law School

The Eleventh Amendment reinstated the Federalists’ original understanding that the Constitution of 1787 preserved each State’s sovereign immunity from suits by individuals in the courts of another sovereign—including the federal courts—and countermanded an early Supreme Court decision that contradicted this understanding and threatened to destabilize the nature of the Union.

Under the law of nations, all sovereign states possessed immunity from suit in the courts of another sovereign without their consent. This immunity was not derived from the common law but was an inherent attribute of sovereignty, capable of alienation in a legal instrument only through clear and express terms or by unavoidable implication. After the former British colonies declared independence in 1776 and secured recognition as “Free and Independent States” in 1783, they possessed this immunity as an attribute of their hard-won status as sovereign States.

The controversy that led to the Eleventh Amendment’s adoption began with Article III’s grant of federal judicial power over “Controversies… between a State and Citizens of another State” and “between a State… and foreign… Citizens or Subjects.” During the ratification debates, Anti-Federalists warned that this language might be construed to allow individuals to sue States in federal court. Federalists—including Alexander Hamilton, James Madison, and John Marshall—insisted Article III was not clear enough to alienate state sovereign immunity and should be read only to permit suits by States, but not against them. These assurances helped to secure ratification.

The dispute over the meaning of Article III was not merely semantic; it went to the heart of the nature of the Union envisioned by the Constitution. Under the Articles of Confederation, Congress could requisition States directly but lacked any mechanism to enforce its commands, prompting some delegates at the Philadelphia Convention to propose authorizing the use of coercive military force against recalcitrant States—an innovation rejected as a path to civil war. Instead, the Convention drafted a Constitution that abandoned the Articles’ reliance on commanding States and proposed the alternative of “extend[ing] the authority of the Union to the persons of the citizens,”—whom Hamilton regarded as “the only proper objects of government.” This substitution enabled enforcement of federal legislation by “coercion of the magistracy” rather than “coercion of arms” (The Federalist Nos. 15, 16). The disputed language of Article III threatened to unravel this new model. If Article III were construed to allow certain individuals to sue States, then presumably Congress could authorize federal enforcement of any resulting judgments against them—permitting the very coercion of States that Federalists had assured the public the Constitution was designed to avoid. For this reason, prominent Federalists forcefully and publicly argued that Article III would do no such thing.

Despite those assurances, the Supreme Court in Chisholm v. Georgia (1793) construed Article III to permit a citizen of South Carolina to sue the State of Georgia in federal court. In response, Congress and the States moved with unusual speed to adopt the Eleventh Amendment, thereby reinstating what they regarded as the Constitution’s proper construction:

“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.”

As written, the Amendment forbids extending federal judicial power to “any suit” against a State by an out-of-state or foreign citizen, but says nothing about suits by a State’s own citizens. Courts and commentators have long puzzled over this distinction because it seems arbitrary or irrational for the Amendment to bar suits against States by out-of-state citizens, but leave in-state citizens free to sue. Hans v. Louisiana (1890) responded by extending immunity beyond the text to suits by in-state citizens, while modern critics would contradict from the plain text by permitting both in-state and out-of-state citizens to sue States for violations of federal law. Both camps disregard the text as written on the theory that its distinction between plaintiffs based on state citizenship is arbitrary or absurd.

The anomaly they perceive disappears when the Eleventh Amendment is viewed in historical context. Those who drafted and ratified the Amendment did not believe the original Constitution’s text was clear enough to authorize any suits by individuals against States. They drafted the Amendment to target the citizen-State diversity provisions of Article III because those were the only provisions of the Constitution anyone at the time thought were even arguably clear and express enough to alienate the States’ pre-existing sovereign immunity. The Amendment was written as an “explanatory amendment,” restoring what its proponents regarded as the proper understanding of Article III advanced by Hamilton, Madison, and Marshall during the ratification debates. The Amendment’s phrasing—“shall not be construed to extend”—signaled a correction of a misconstruction, not a change in the Constitution’s original meaning.

This explains why the Amendment, on its face, forbids federal courts from exercising jurisdiction over “any suit” against States brought by out-of-state citizens—whether based on diversity or federal question jurisdiction. This was not inadvertent because suits against States by out-of-state citizens based on both heads of jurisdiction were pending when the Amendment was proposed. Specifically, Senator Caleb Strong, its author, sought to foreclose the pending case of Vassall v. Massachusetts, in which an out-of-state plaintiff sued Strong’s home State to redress a violation of the Treaty of Peace. By nullifying the only language in the original Constitution that could reasonably have been construed to allow such a suit, the Eleventh Amendment reinstated the Federalists’ understanding that the Constitution’s original text was simply not clear enough to transfer, surrender, or otherwise alienate the States’ preexisting sovereign immunity from any and all suits by individuals in the courts of another sovereign—including the United States.

For further elaboration, see Anthony J. Bellia Jr. and Bradford R. Clark, State Sovereign Immunity and the New Purposivism, 65 Wm. & Mary L. Rev. 485 (2024); Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817 (2010).

A Narrow Repeal of Party-Based Jurisdiction

Vicki C. Jackson Headshot
by Vicki C. Jackson

Thurgood Marshall Professor of Constitutional Law at the Harvard Law School

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. The Amendment withdraws jurisdiction of federal courts over “any suit in law or equity . . . against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” It thereby repealed part of the jurisdiction originally given, in Article III, over “Controversies . . . between a State and Citizens of another State . . . and between a State . . . and foreign . . . Citizens or Subjects.”   Properly read, it should pose no constitutional barrier to suits against states under federal law—in Article III’s words, to “Cases . . .  arising under this Constitution, the laws of the United States, and Treaties made . . .  under their Authority.”

If the Eleventh Amendment were intended to protect the states from all liability in suits by private parties (as Hans v. Louisiana suggested in 1890), it is poorly drafted to do so: there would be no need to recite that citizens of other states, and of foreign states, are the parties barred. Instead, the technical language of the Amendment tracks the language of the “state-party-based” head of jurisdiction in Article III, suggesting it was narrowly targeted at removing the specific basis for jurisdiction under which the Court decided Chisholm v. Georgia (1793), and under which all then-pending suits against states (including Massachusetts) appear to have been brought.

Supreme Court decisions closer in time to its adoption treated the Amendment as narrow in scope. For example, in Osborn v. Bank of the United States (1824), the Court explained that the Eleventh Amendment should apply only where the state itself is named as a party; it did not constrain jurisdiction over state officers in an action to recover money due the Bank of the United States. In the late-nineteenth century, the Court began to expand the Amendment’s application; today the Court reads the Amendment to bar suits against state officers to recover money owed by the state.

When the Constitution and the Eleventh Amendment were adopted, there was uncertainty—reflecting a set of questions not fully answered—about the scope of the judicial power, especially over cases arising under federal law. Disagreement over whether states were suable under Article III at the time of ratification was noted in our joint statement; for example, Edmund Randolph, a member of the Committee of Detail that played a key role in drafting the Constitution and a supporter of ratification, argued in the Virginia ratifying convention that states could and should be subject to suit on their obligations. In the drafting of the Eleventh Amendment, broader and narrower proposals were rejected in Congress, leaving room for scholars to disagree about their import. This uncertainty in founding intentions suggests that we should let the Constitution’s words, and its basic structural assumptions, be our guides.

An important structural principle is that judicial power must be coextensive with the legislative power—expressed in The Federalist No. 82 (by Alexander Hamilton), in the Virginia Ratifying Convention (by James Madison), and in foundational decisions of the Marshall Court. The present Court’s interpretation of the Eleventh Amendment as limiting the judicial power in areas in which Congress can validly legislate is inconsistent with this principle.

Another basic principle is that the Supreme Court has jurisdiction to review decisions of the state courts, routinely acting upon and providing “mandates” to the states. Although arising from a dispute between private parties, Martin v. Hunter’s Lessee (1816) is instructive. There, the Virginia courts refused to comply with an earlier Supreme Court order, arguing that appellate jurisdiction over the state courts was “inconsistent with . . .  the spirit of the constitution[,] . . . [which] was never designed to act upon state sovereignties, but only upon the people . . . .” The Court unequivocally rejected Virginia’s argument:

It is a mistake that the constitution was not designed to operate upon states, in their corporate capacities. It is crowded with provisions which restrain or annul the sovereignty of the states . . .  contain[ing] a long list of disabilities and prohibitions imposed upon the states. . . . The courts of the United States can . . . [review] the proceedings of the executive and legislative authorities of the states, and if they are found to be contrary to the constitution, may declare them to be of no legal validity. Surely the exercise of the same right over judicial tribunals is not a . . .  more dangerous act . . . .

Not only did the Constitution impose obligations and prohibitions on states, it also gave the Supreme Court jurisdiction to resolve controversies between two or more States. Under Eleventh Amendment doctrine there is no immunity from suits by the United States, or by sister states. Coercive judicial power in such cases was plainly contemplated.

Although the Convention did not adopt proposals to authorize use of armed force specifically against states, this does not mean that it abandoned national power to impose legal requirements on the states. Rather, the Constitution added to the powers of the national government the powers to regulate and tax individuals directly—because doing so would work better than trying to compel the states to do so. The Court has held that the Constitution prohibits “commandeering” of states so as to require them to regulate private persons, while upholding federal laws that apply, coercively, to the states, in a wide range of areas—environmental law, minimum wage, and medical leave laws. The anti-commandeering rule is narrow; it does not preclude regulation of states by federal law, but rather it precludes federal mandates to the states, as governments, to regulate private persons on behalf of the federal government. This principle does not support the claim that the Framers and ratifiers of the Constitution or of the Eleventh Amendment would have wanted Congress to have the power to require states, for example, to pay the minimum wage, but disallow Congress from the best way of enforcing that obligation, through suits for damages by the individuals affected.

No interpretation of the Amendment as applied to cases arising under federal law is fully satisfactory: although there are powerful reasons to regard the Amendment as irrelevant to “federal question” jurisdiction, the “literal” text of the Amendment could be read to preclude out-of-state and foreign citizens from suing states for any claim. But the more expansive readings of the Amendment are not consistent with basic constitutional principles. Using this narrow, technical Amendment to prevent the U.S. Congress—in which all states are represented—from deciding to allow citizens to sue states that violate their rights under valid federal law is a mistake that undermines broader constitutional principles.

For elaboration, see Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L. J.  1 (1988) and Federalism and the Uses and Limits of Law: Printz and Principle, 111 Harvard Law Review 2180 (1998).

Matters of Debate