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.