Eleventh Amendment to the U.S. Constitution

Congress passed the Eleventh Amendment a few years after the newly formed Supreme Court allowed an individual to file a lawsuit against a state. Although the Eleventh Amendment protects state sovereignty, it has taken a few centuries to clarify its application.

The function of the Eleventh Amendment is straightforward: it upholds state sovereign immunity, shielding states from certain types of lawsuits in Article III federal courts. Additionally, state courts have the discretion to refuse cases involving disputes between states under federal law. This is a notably rare amendment specifically aimed at overturning a Supreme Court decision, Chisholm v. Georgia.

A thorough understanding of the Eleventh Amendment requires an examination of its historical context and the interpretations by the Supreme Court following its ratification.

Historical Context

For most of American history, Congress has passed amendments to the U.S. Constitution to address societal ills. For example, Congress passed the Fourteenth Amendment in the aftermath of the U.S. Civil War to protect the rights of newly freed African Americans. The Twenty-First Amendment responded to the Temperance Movement in the early 20th Century. In this context, the Eleventh Amendment bears little resemblance to its sister amendments.

Chisholm v. State of Ga. was the catalyst for the Eleventh Amendment. Chisholm is a 1792 Supreme Court case in which the plaintiff, Alexander Chisholm, tried to sue the State of Georgia over a Revolutionary War debt. Chisholm represented the estate of a South Carolina resident. Georgia claimed state sovereignty and refused to appear in court.

Article III Courts

Article III, Section 1 of the U.S. Constitution established our federal judiciary, with the Supreme Court at the apex. It also grants Congress the power to establish "lesser" courts, such as our federal District Courts and Courts of Appeal.

Like other courts, federal courts need jurisdiction before hearing a court case. There are two ways in which federal courts can exercise subject-matter jurisdiction over a case:

• Federal question jurisdiction: Cases involving the federal government, the U.S. Constitution, or federal laws, such as the Americans with Disabilities Act

• Diversity jurisdiction: Often involves citizens of different states or a threshold amount of money damages

The Court found in favor of Chisholm. It held that in cases where the defendant is a state, Article III, Section II of the Constitution gave federal courts authority to hear cases against a state government brought by a citizen of another state.

The majority also determined that the Constitution gave them original jurisdiction over such cases.

Justice Iredell made a few notable arguments in his dissent. He looked to British Common Law to find precedent for state sovereignty and reasoned that such states could not proceed without consent from the defendant-state. Many credit Iredell's dissent with the language of the Eleventh Amendment.

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."

Supreme Court Decisions on the Eleventh Amendment

As with much of Constitutional law, we can look to Supreme Court jurisprudence to understand the Eleventh Amendment. The Court used Cohens v. Virginia to clarify the boundaries of the 11th Amendment.

In Cohens, the plaintiffs, citizens of Virginia, sold lottery tickets from the District of Columbia (D.C.) in violation of Virginia law. The state prosecuted and convicted the Cohens, who then appealed to the Supreme Court. However, state officials were of the opinion that the Supreme Court had no jurisdiction to review the appeal.

Chief Justice Marshal clarified the Court's authority to hear cases concerning all constitutional questions and state criminal hearings. He noted that Virginia had the power to regulate its own citizens. It upheld the Cohens' conviction.

The Court changed course a few years later through its decision in Hans v. State of Louisiana (also Hans v. Louisiana) In Cohens, the Court determined that a Virginia citizen could sue Virginia, while in Hans, the Court held that a state's citizens could not sue the state.

Ex-Parte Young established a unique doctrine involving unconstitutional state laws, the state officers who enforce them, and the persons impacted by them. In Ex-Parte Young, Minnesota passed laws dictating how much railroads could charge in Minnesota. On behalf of its shareholders, the railroad sued Minnesota to enjoin enforcement of these laws, arguing they restricted interstate travel. Minnesota invoked the 11th Amendment because the shareholders were essentially citizens of other states.

The Supreme Court was unpersuaded by this invocation and found in favor of the railroad shareholders. SCOTUS held that the Eleventh Amendment did not apply when a state official attempts to enforce an unconstitutional law.

In Fitzpatrick v. Bitzer, the Court recognized that Congress could use the Fourteenth Amendment to supersede the Eleventh Amendment. The Fourteenth Amendment grants Congress broad authority to address discriminatory state laws. State governments cannot enact discriminatory laws that violate the Fourteenth Amendment.

The Court took a bold step in Pennsylvania v. Union Gas Co. by allowing Congress to authorize lawsuits against states under CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.

Also known as the Superfund Act, CERCLA helps the Environmental Protection Agency to respond to hazardous waste sites and environmental disasters. In CERCLA, Congress created a cause of action for damages against states.

In this case, Pennsylvania sued Union Gas after Pennsylvania inadvertently created a hazardous waste site on Union Gas's property. The federal government and Pennsylvania worked together to clean up the site. Pennsylvania subsequently sued Union Gas to recover cleanup costs. Union Gas countersued, and the District Court dismissed the suit under the 11th Amendment.

The Court acknowledged that Congress could create a cause of action, subjecting states to lawsuits under Congress Article I powers. The Court reversed itself seven years later in Seminole Tribe v. Florida. In America, most Native American tribes, like the Seminole Tribe, enjoy sovereign immunity, which largely shields them from lawsuits in local, state, and federal courts.

In Seminole Tribe, the Seminole sued Florida after negotiations under the Indian Regulatory Gaming Act failed. Congress passed the IRGA to provide a framework for individual states and Native American tribes to develop Native American gaming. Under the IRGA, they could sue the state if the states failed to negotiate in good faith.

Both Seminole Tribe and Pennsylvania v. Union Gas Co. feature congressional actions that stripped states of sovereign immunity for a legislative purpose. The Court once again had to determine if Congress had the statutory power to strip states of their Eleventh Amendment immunity. The Court reversed itself and determined that Congress had overstepped its powers, possibly extending the jurisdiction of Article III courts.

In a subsequent 11th Amendment case, Alden v. Maine, the Court observed that states get sovereign immunity from the Constitution, not the 11th Amendment.

More recently, the Supreme Court unanimously resolved a rare case between two sovereign states, State of Florida v. State of Georgia. Florida sued Georgia over their belief that Georgia was overconsuming shared waterways and that this overconsumption harmed Florida's fishing industry. Florida sought an injunction forcing Georgia to share more water.

The Supreme Court was unpersuaded by Florida's argument, finding that Florida did not show that an inequitable water distribution harmed their fishing industry.