Eleventh Amendment

Eleventh Amendment is one of only two constitutional amendments adopted explicitly to repudiate a Supreme Court decision—the other being the Sixteenth Amendment (see Reversals of Court Decisions by Amendment). The Eleventh Amendment overturned Chisholm v. Georgia (1793), which upheld the right of a citizen of one state to sue another state in an original action in the Supreme Court, and which, it was feared, would allow financially ruinous suits against the states for payment of Revolutionary War debts.

Despite its brevity—a mere forty‐three words—the Eleventh Amendment has been cited as authority for an elaborate and perplexing body of jurisdictional rules extending far beyond its actual language. It has been reconceptualized as a broad doctrine of state sovereign immunity. The Eleventh Amendment by its terms denies federal courts the power to decide suits against states brought by two classes of plaintiffs: “Citizens of another State” and “Citizens or Subjects of any Foreign State.” Although referring only to suits “in law or equity,” the amendment was held in Ex parte New York (1921) to apply as well as to suits in admiralty jurisdiction. In the landmark federal jurisdiction case Hans v. Louisiana (1890), the Court extended the reach of the amendment by holding that citizens could not sue their own states in federal court. In Monaco v. Mississippi (1943), the Court denied federal jurisdiction over suits against states brought by foreign sovereigns, and in Seminole Tribe of Florida v. Florida (1996), it held that the bar also applied to suits by Native American tribes. In Alden v. Maine (1999), the Court ruled that Congress could not authorize private suits against states in state court, and in Federal Maritime Commission v. South Carolina Ports Authority (2002), it further barred proceedings against states before federal administrative agencies.

The Supreme Court in Alden v. Maine (1999) and other recent cases has referred to the doctrine of sovereign immunity as a broad principle deriving “not from the Eleventh Amendment but from the structure of the original Constitution itself” (p. 728) and to the phrase “Eleventh Amendment immunity” as “convenient shorthand” for a principle that “neither derives from nor is limited by the terms of the Eleventh Amendment” (p. 713). The most prominent dissenting view, both in these closely divided decisions and in the scholarly commentary, is that the Eleventh Amendment was intended only to reverse the holding in Chisolm v. Georgia, which permitted access to federal courts under Article III's grant of diversity jurisdiction for suits between “a State and Citizens of another state.” Under this view, the Eleventh Amendment would not prevent federal question suits against states.

Because restrictions on federal judicial power may threaten important national goals, the Eleventh Amendment and state sovereign immunity are subject to a number of significant exceptions. State immunity from suit does not extend to political subdivisions of states, such as counties and towns. Federal courts are open to suits against states brought by the United States or by other American states representing their own interests. States may waive the amendment and consent to suit—this despite the general rule that parties may not confer jurisdiction in court—so long as their waiver of immunity is explicit. Furthermore, Congress may abrogate sovereign immunity by virtue of its section 5 enforcement powers under the Fourteenth Amendment. In the landmark case of Seminole Tribe of Florida v. Florida (1996), however, the Court held that Congress may not abrogate sovereign immunity under any other source of power (or, read more narrowly, under any source of power predating the Eleventh Amendment), overruling Pennsylvania v. Union Gas Co. (1989), which had permitted Congress to abrogate pursuant to the Commerce Clause. Congressional power to abrogate under section 5 of the Fourteenth Amendment is itself subject to significant judicial oversight. Expanding on its holding in City of Boerne v. Flores (1997) that laws passed pursuant to the section 5 power must be narrowly tailored to addressing constitutional violations, the Court found that a series of laws—involving patent infringement, age discrimination, and discrimination against the disabled—exceeded the section 5 power of Congress and therefore could not be the basis for suits against state governmental entities.

A final important restriction on state immunity is the doctrine of Ex parte Young (1908), which permits suit against state officers for unconstitutional acts, though this is in effect a suit against the state itself. However, suits against state officers in which the remedy for past wrongs would be paid for out of the state treasury are still barred under the amendment (Edelman v. Jordan, 1974), effectively limiting the Ex Parte Young action to injunctive suits.

The line of 5 to 4 decisions, beginning with Seminole Tribe in 1996, evidences an entrenched split between a majority that views sovereign immunity less as a protection for state treasuries than as a broad principle concerned with safeguarding the dignity of the states, and a minority that would construe the Eleventh Amendment far more narrowly.

See also Constitutional Amendments; Judicial Power and Jurisdiction.

Bibliography

John V. Orth , The Judicial Power of the United States: The Eleventh Amendment in American History (1987). Federalism after Alden, Symposium, Rutgers Law Review 31 (2000): 631 [to 831].
State Sovereign Immunity and the Eleventh Amendment, Symposium, Notre Dame Law Review 75 (2000): 817–1182.

John V. Orth

; revised by

Susan A. Bandes