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 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.

The Eleventh Amendment: A Textual Approach

Bradford R. Clark Headshot
by Bradford R. Clark

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

The Eleventh Amendment arose out of a dispute that began during the ratification debates over the meaning of Article III of the original Constitution. Article III provided that “The judicial Power shall extend . . . to Controversies . . . between a State and Citizens of another State; . . . and between a State . . . and foreign . . . Citizens or Subjects.” Critics of the Constitution (“Anti-Federalists”) read these state-citizen diversity provisions to permit citizens of one U.S. state or of a foreign state to sue another U.S. state in federal court. Proponents of the Constitution (“Federalists”) assured critics that the Constitution would not permit these individuals to sue states in federal court. Based partly on these assurances, the states ratified the Constitution in 1789.

When the Supreme Court read Article III to permit a citizen of South Carolina to sue Georgia in federal court, Chisholm v. Georgia (1793), Congress and the states moved quickly to adopt the Eleventh Amendment, which 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.”

As written, the Eleventh Amendment appears to prevent federal courts from hearing any suit by an out-of-state or foreign citizen against a state, but does not prevent federal courts from hearing suits by citizens against their own states. Nevertheless, over time, judges and commentators have sought to expand or contract the states’ “immunity” from suit under the Amendment. The Supreme Court famously went beyond the Amendment’s text in Hans v. Louisiana (1890) by prohibiting a citizen of Louisiana from suing Louisiana in federal court. Conversely, starting in the 1980s, some dissenting Justices have urged the Court to narrow the Amendment’s text by allowing federal courts to hear suits against a state by citizens of another state if the claim arises under federal law.

Both of these readings of the Eleventh Amendment contradict the text. The proponents of both readings seek to justify their preferred departure from the text by pointing out that applying the text as written would draw an arbitrary distinction between in- and out-of-state citizens. They argue that it makes no sense to bar out-of-state citizens from suing a state, while allowing in-state citizens to do so.  While agreeing that this disparity creates a problem, they disagree on the solution. One group would expand Eleventh Amendment immunity, and the other group would narrow it.

The apparent anomaly created by the text disappears, however, when one considers the Eleventh Amendment in historical context. Those who ratified the Amendment would not have understood its text to create any disparity between in- and out-of-state citizens because they did not understand the Constitution to authorize any suits against any states by any citizens. Some background is helpful.  Under the Articles of Confederation, Congress could regulate states (as opposed to individuals), but had no power to enforce its commands. Not surprisingly, states often ignored Congress’s commands. At the Constitutional Convention, the Virginia Plan proposed giving Congress power to use military force to coerce states to comply with federal commands. This proposal was widely criticized on the ground that it could lead to a civil war, and was not adopted. Instead, the Constitution gave Congress power to regulate individuals (rather than states), thereby enabling the federal government to enforce its commands against individuals without confronting states.

This issue was of central—but largely forgotten—significance to the Constitution’s adoption. Congress originally charged the Philadelphia Convention with merely amending the Articles of Confederation, but the Convention concluded that it could not save the Articles without authorizing the use of force against states (and thereby risking a civil war). Thus, when the Convention proposed an entirely new Constitution, one of the first questions asked by skeptics was why the Articles could not simply be amended. Prominent Federalists explained that the new Constitution regulating individuals rather than states was necessary to avoid authorizing coercive force against states. As Alexander Hamilton explained, the federal government “must be founded, as to the objects committed to its care, upon the reverse of the principle” employed by the Articles. In his view, “we must extend the authority of the Union to the persons of the citizens—the only proper objects of government.” This change, he explained, would eliminate the need for “coercion of arms” against states and rely instead on “coercion of the magistracy” against individuals. The Federalist No. 15, 16.

Many found these arguments persuasive until Anti-Federalists pointed out that Article III of the proposed Constitution could be read to authorize suits against states in federal court. They argued that if Article III authorized such suits, then Congress would have power under the Necessary and Proper Clause to enforce any resulting judgment against a state through force if necessary. On this reading, Article III directly contradicted the Federalists’ claim that the Constitution was preferable to the Articles because it avoided reliance on coercive force against states. Federalists like Alexander Hamilton, James Madison, and John Marshall responded by denying that Article III should or would be read to authorize suits against states. They argued that the relevant provisions of Article III should be read only to permit suits by states. Based in part on these assurances, the Constitution was adopted.

When the Supreme Court subsequently read Article III to allow Chisholm (a citizen of South Carolina) to sue Georgia in federal court, Federalists and Anti-Federalists united to amend the Constitution and restore their preferred understanding of Article III. The text of the Eleventh Amendment reflects this shared goal. The Amendment did not purport to change the Constitution; rather, it sought to restore the preferred construction of Article III judicial power. This is why the Amendment states that the judicial power “shall not be construed to extend” to the prohibited suits. This kind of Amendment was known as an “explanatory amendment” because it merely sought to explain or correct a misinterpretation of a pre-existing legal text. The Amendment did not attempt to explain any other portions of Article III because the state-citizen diversity provisions of Article III were the only provisions that anyone ever suggested could be construed to permit individuals to sue states. 

In any event, the Amendment’s prohibition against extending “the judicial power” to “any suit” with the proscribed party alignment necessarily cut across all heads of Article III jurisdiction, including jurisdiction over cases arising under federal law. This was important because the author of the Amendment (Senator Strong of Massachusetts) undoubtedly meant it to bar the pending case of Vassall v. Massachusetts from proceeding in federal court—even though the plaintiff was seeking to enforce the Treaty of Peace. In sum, because the Eleventh Amendment made sense as written when adopted, the Supreme Court should follow the text of the Amendment today and reject calls to expand or contract its specific terms in favor of broader constitutional values.

For further elaboration, see 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