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Eleventh Amendment: Lawsuits Against States

The Eleventh Amendment limits the jurisdiction of federal courts granted by Article III of the Constitution, prohibiting them from hearing certain types of cases against state governments. The Supreme Court has also interpreted it to mean that state courts cannot preside over cases against state governments that involve federal law. It is also one of the few amendments that specifically aimed to overturn a Supreme Court decision.

What the Eleventh Amendment Says

"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."

What It Means

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

Though Eleventh Amendment jurisprudence can appear esoteric and abstruse and the decisions under it inconsistent, the Amendment remains a vital element of federal jurisdiction that "go[es] to the very heart of [the] federal system and affect[s] the allocation of power between the United States and the several states."1

The limit on state accountability in federal courts embodied through the Amendment might seem a discrete, straightforward adjustment of our federal structure precipitated by early case law, but discerning the implications of this embodiment continues to occasion heated dispute.

In accepting a suit against a state by a citizen of another state in 1793,2 the Supreme Court provoked such anger in Georgia and such anxiety in other states that, at the first meeting of Congress following the decision, the Eleventh Amendment was proposed by an overwhelming vote of both Houses and ratified with, what was for that day, "vehement speed."3 Chisholm had been brought under that part of the jurisdictional provision of Article III that authorized "cognizance of controversies . . . between a State and Citizens of another State."

At the time of the ratification debates, opponents of the proposed Constitution had objected to the subjection of a state to suits in federal courts and had been met with conflicting responses—on the one hand, an admission that the accusation was true and that it was entirely proper so to provide, and, on the other hand, that the accusation was false and the clause applied only when a state was the party plaintiff.4 So matters stood when Congress, in enacting the Judiciary Act of 1789, without recorded controversy gave the Supreme Court original jurisdiction of suits between states and citizens of other states.5 Chisholm v. Georgia was brought under this jurisdictional provision to recover under a contract for supplies executed with the state during the Revolution. Four of the five Justices agreed that a state could be sued under this Article III jurisdictional provision and that under section 13 of the Act the Supreme Court properly had original jurisdiction.6

The Amendment proposed by Congress and ratified by the states was directed specifically toward overturning the result in Chisholm and preventing suits against states by citizens of other states or by citizens or subjects of foreign jurisdictions. It did not, as other possible versions of the Amendment would have done, altogether bar suits against states in the federal courts.7 That is, it barred suits against states based on the status of the party plaintiff and did not address the instance of suits based on the nature of the subject matter.8

The early decisions seemed to reflect this understanding of the Amendment, although the point was not necessary to the decisions and thus the language is dictum.9 In Cohens v. Virginia,10 Chief Justice Marshall ruled for the Court that the prosecution of a writ of error to review a judgment of a state court alleged to be in violation of the Constitution or laws of the United States did not commence or prosecute a suit against the state but was simply a continuation of one commenced by the state, and thus could be brought under § 25 of the Judiciary Act of 1789.11 But, in the course of the opinion, the Chief Justice attributed adoption of the Eleventh Amendment not to objections to subjecting states to suits per se but to well-founded concerns about creditors being able to maintain suits in federal courts for payment,12 and stated his view that the Eleventh Amendment did not bar suits against the states under federal question jurisdiction13 and did not in any case reach suits against a state by its own citizens.14

In Osborn v. Bank of the United States,15 the Court, again through Chief Justice Marshall, held that the Bank of the United States16 could sue the Treasurer of Ohio, over Eleventh Amendment objections, because the plaintiff sought relief against a state officer rather than against the state itself. This ruling embodied two principles, one of which has survived and one of which the Marshall Court itself soon abandoned. The latter holding was that a suit is not one against a state unless the state is a named party of record.17 The former holding, the primary rationale through which the strictures of the Amendment are escaped, is that a state official possesses no official capacity when acting illegally and consequently can derive no protection from an unconstitutional statute of a state.18

Until the period following the Civil War, Chief Justice Marshall's understanding of the Amendment generally prevailed. The aftermath of that conflict, however, presented the Court occasion to consider anew the circumstances and import of the Amendment's adoption. Following the war, Congress effectively gave the federal courts general federal question jurisdiction,19 at a time when a large number of states in the South were defaulting on their revenue bonds in violation of the Contract Clause of the Constitution.20 As bondholders consequently sought relief in federal courts, the Supreme Court gradually worked itself into the position of holding that the Eleventh Amendment, or, more properly speaking, the principles of which the Amendment is but an exemplification,21 is a bar not only of suits against a state by citizens of other states, but also of suits brought by citizens of that state itself.22

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  1. C. Wright, The Law of Federal Courts § 48 at 286 (4th ed. 1983).
  2. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).
  3. The phrase is Justice Frankfurter's, from Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 708 (1949) (dissenting), a federal sovereign immunity case. The amendment was proposed on March 4, 1794, when it passed the House; ratification occurred on February 7, 1795, when the twelfth state acted, there then being fifteen states in the Union.
  4. The Convention adopted this provision largely as it came from the Committee on Detail, without recorded debate. 2 The Records of the Federal Convention of 1787, at 423–25 (Max Farrand ed., 1937). In the Virginia ratifying convention, George Mason, who had refused to sign the proposed Constitution, objected to making states subject to suit, 3 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 526–27 (1836), but both Madison and John Marshall (the latter had not been a delegate at Philadelphia) denied states could be made party defendants, id. at 533, 555–56, while Randolph (who had been a delegate, as well as a member of the Committee on Detail) granted that states could be and ought to be subject to suit. Id. at 573. James Wilson, a delegate and member of the Committee on Detail, seemed to say in the Pennsylvania ratifying convention that states would be subject to suit. 2 id. at 491. See Hamilton, in The Federalist No. 81 (Alexander Hamilton) (Modern Library ed., 1937), also denying state suability. See Fletcher, supra at 1045-53 (discussing sources and citing other discussions).
  5. Ch. 20, § 13, 1 Stat. 80 (1789). See also Fletcher, supra, at 1053-54. For a thorough consideration of passage of the Act itself, see J. Goebel, History of the Supreme Court of the United States: Vol. 1, Antecedents and Beginnings to 1801 457–508 (1971).
  6. Goebel, supra, at 726-34; Fletcher, supra, at 1054-58.
  7. Fletcher, supra, at 1058-63; Goebel, supra, at 736.
  8. Party status is one part of the Article III grant of jurisdiction, as in diversity of citizenship of the parties; subject matter jurisdiction is the other part, as in federal question or admiralty jurisdiction.
  9. One square holding, however, was that of Justice Washington, on Circuit, in United States v. Bright, 24 F. Cas. 1232 (No. 14647) (C.C.D. Pa. 1809), that the Eleventh Amendment's reference to any suit in law or equity excluded admiralty cases, so that states were subject to suits in admiralty. This understanding, see Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110, 124 (1828); 3 J. Story, Commentaries of the Constitution of the United States 560–61 (1833), did not receive a holding of the Court during this period, see Georgia v. MadrazosupraUnited States v. Peters, 9 U.S. (5 Cr.) 115 (1809)Ex parte Madrazo, 32 U.S. (7 Pet.) 627 (1833), and was held to be in error in In re New York (No. 1), 256 U.S. 490 (1921).
  10. 19 U.S. (6 Wheat.) 264 (1821).
  11. 1 Stat. 73, 85.
  12. It is a part of our history that, at the adoption of the constitution, all the states were greatly indebted; and the apprehension that these debts might be prosecuted in the federal courts, formed a very serious objection to that instrument. Suits were instituted; and the court maintained its jurisdiction. The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this amendment was proposed in congress, and adopted by the state legislatures. That its motive was not to maintain the sovereignty of a state from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. It does not comprehend controversies between two or more states, or between a state and a foreign state. The jurisdiction of the court still extends to these cases: and in these, a state may still be sued. We must ascribe the amendment, then, to some other cause than the dignity of a state. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a state, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister states would be creditors to any considerable amount, and there was reason to retain the jurisdiction of the court in those cases, because it might be essential to the preservation of peace. The amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by states. 19 U.S. at 406–07.
  13. The powers of the Union, on the great subjects of war, peace and commerce, and on many others, are in themselves limitations of the sovereignty of the states; but in addition to these, the sovereignty of the states is surrendered, in many instances, where the surrender can only operate to the benefit of the people, and where, perhaps, no other power is conferred on Congress than a conservative power to maintain the principles established in the constitution. The maintenance of these principles in their purity, is certainly among the great duties of the government. One of the instruments by which this duty may be peaceably performed, is the judicial department. It is authorized to decide all cases of every description, arising under the constitution or laws of the United States. From this general grant of jurisdiction, no exception is made of those cases in which a state may be a party. . . . [A]re we at liberty to insert in this general grant, an exception of those cases in which a state may be a party? Will the spirit of the constitution justify this attempt to control its words? We think it will not. We think a case arising under the constitution or laws of the United States, is cognizable in the courts of the Union, whoever may be the parties to that case. 19 U.S. at 382–83.
  14. If this writ of error be a suit, in the sense of the 11th amendment, it is not a suit commenced or prosecuted 'by a citizen of another state, or by a citizen or subject of any foreign state.' It is not, then, within the amendment, but is governed entirely by the constitution as originally framed, and we have already seen, that in its origin, the judicial power was extended to all cases arising under the constitution or laws of the United States, without respect to parties. 19 U.S. at 412.
  15. 22 U.S. (9 Wheat.) 738 (1824).
  16. The Bank of the United States was treated as if it were a private citizen, rather than as the United States itself, and hence a suit by it was a diversity suit by a corporation, as if it were a suit by the individual shareholders. Bank of the United States v. Deveaux, 9 U.S. (5 Cr.) 61 (1809).
  17. 22 U.S. at 850–58. For a reassertion of the Chief Justice's view of the limited effect of the Amendment, see id. at 857–58. But compare id. at 849. The holding was repudiated in Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828), in which it was conceded that the suit had been brought against the governor solely in his official capacity and with the design of forcing him to exercise his official powers. It is now well settled that in determining whether a suit is prosecuted against a state the Court will look behind and through the nominal parties on the record to ascertain who are the real parties to the suit. In re Ayers, 123 U.S. 443, 487 (1887).
  18. 22 U.S. at 858–59, 868. For the flowering of the principle, see Ex parte Young, 209 U.S. 123 (1908).
  19. Act of March 3, 1875, ch. 137, § 1, 18 Stat. 470. See discussion under Development of Federal Question Jurisdiction, supra.
  20. See, e.g., Orth, The Eleventh Amendment and the North Carolina State Debt, 59 N.C. L. Rev. 747 (1981); Orth, The Fair Fame and Name of Louisiana: The Eleventh Amendment and the End of Reconstruction, 2 Tul. Law. 2 (1980); Orth, The Virginia State Debt and the Judicial Power of the United States, in Ambivalent Legacy: A Legal History of the South 106 (D. Bodenhamer & J. Ely eds., 1983).
  21. Ex parte New York (No. 1), 256 U.S. 490, 497 (1921).
  22. E.g.In re Ayers, 123 U.S. 443 (1887)Hagood v. Southern, 117 U.S. 52 (1886)The Virginia Coupon Cases, 114 U.S. 270 (1885); Cunningham v. Macon & Brunswick R.R., 109 U.S. 446 (1883); Louisiana v. Jumel, 107 U.S. 711 (1882). In Antoni v. Greenhow, 107 U.S. 769, 783 (1883), three concurring Justices propounded the broader reading of the Amendment that soon prevailed.
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