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.
The Eleventh Amendment was the first amendment proposed and ratified after the Bill of Rights. It was created at a time when the newly formed United States was still trying to unify the separate states as one country. The Eleventh Amendment was created to resolve a problem not adequately addressed in the Constitution: what role the federal courts played in balancing the power between the federal government and state governments.
The amendment’s legal language is quite technical, but it simply means that a citizen of one state cannot use the federal court system to sue the government of another state. Also, a citizen of a foreign country cannot use the U.S. federal courts to sue a state government. If a citizen of one state wants to bring legal action against another state’s government, he or she must use the court system of that state, and the state must agree to be taken to court. Thus, a state government cannot be forced into a federal court against its will.
Submitted by Congress to the states on March 4, 1794.
Ratified by the required three-fourths of states (twelve of fifteen) on February 7, 1795. Declared to be part of the Constitution on January 8, 1798.
New York, March 27, 1794; Rhode Island, March 31, 1794; Connecticut, May 8, 1794; New Hampshire, June 16, 1794; Massachusetts, June 26, 1794; Vermont, between October 9, 1794 and November 9, 1794; Virginia, November 18, 1794; Georgia, November 29, 1794; Kentucky, December 7, 1794; Maryland, December 26, 1794; Delaware, January 23, 1795; North Carolina, February 7, 1795.
Origins of the Eleventh Amendment
The Eleventh Amendment is based on a concept called sovereign immunity. A sovereign is a king or a queen. The idea of sovereign immunity started in thirteenth-century England when kings had to maintain their authority. Sovereign immunity protected heads of state from being taken to court by private citizens.
However, the English also believed in the rights of the private citizen. The English courts made rules so that if citizens felt they had been harmed by the monarch, they could go to court and ask for compensation. A great deal of U.S. law comes from laws created in England. Some laws were created by Parliament (England’s law-making branch of government), and some were created by common law. (Common law is determined by how certain matters have been handled traditionally over a long period of time.) The idea of sovereign immunity derives from English common law.
Since the United States was not a monarchy (had not royal head of state), the federal government was considered the sovereign. In the early twenty-first century, sovereign immunity is used so that citizens cannot sue their government without the government’s consent. However, doing so is a little more complicated in the United States. The United States is a democracy, and the government represents the people. Ultimately, the people are the sovereigns.
Balancing Power in the New Government
Since the creation of the United States in the late eighteenth century, citizens and leaders have disagreed about how to balance the powers of state governments with the powers of the federal government while still protecting the rights of citizens.
The United States was established as a federation. That is, the separate state governments agreed to come together to form one country. Americans think of the United States as a single nation. However, the alliance between the separate states was not very stable at first. In fact, much of the Constitution spells out which powers and rights belong to the individual, to the states, and to the federal government.
The Eleventh Amendment recognizes that states have the rights of sovereign governments, including immunity, even though they belong to the Union. Under the doctrine of sovereign immunity, a state can be sued only if it has agreed to be sued and only if it has broken laws of the state. Thus, the English passed on two ideas to the United States. First, the state cannot be sued against its will by a citizen. Second, citizens have some legal way to fight back if harmed by the state. Balancing between these two principles makes for legal challenges.
Federalism: The Basis of U.S. Government
In the thirteen colonies of North America prior to the American Revolutionary War, people were very different from each other. For example, people seeking freedom to practice their religion founded Massachusetts; business people seeking new opportunities to make money founded Virginia; criminals from other countries came to the prison colony of Georgia to work off their sentences. By the time the American Revolution began in 1775, the colonies had developed their own separate governments.
After the Revolutionary War (1775–81) ended, people in the new United States faced the job of creating a government. They wanted the separate colonies to unite but still keep their independent identities. Federalists (those in favor of a strong national government) and anti-federalists (those against a strong national government) argued about how to proceed.
Federalists, or nationalists as they were known, felt a strong federal government would aid the survival of the Union. Anti-federalists wanted the states to stay strong, and they worked to limit the powers of the federal government. The men who drafted the Constitution tried to invent a new federalism that would balance the needs of the states with the powers of the national government.
Satisfying the states while forming a central government
Before the Constitutional Convention met in Philadelphia in 1787, the states were united under a very loose agreement called the Articles of Confederation. The Articles did not provide for a president, but rather a governing committee that had very little power. At first, the delegates (representatives sent to speak and act for others) only intended to change the Articles to make a stronger government for the new nation. But as they worked and debated, they came to see that a whole new document was needed. They sought a new constitution that provided for a central government strong enough to hold the states together but also allowed the states to keep their own separate governments.
The Constitution was adopted and signed by the Constitutional Convention on September 17, 1787. Afterwards, popular conventions were held in each state. Citizens talked about the new constitution and voted to approve or reject it. This process of discussion and voting marked the start of a new government, and people were excited about it. Many published their opinions in newspapers.
Many opinion letters were published in New York newspapers during the winter of 1787–1788. Among them were 85 essays published under the pen name Publius. The Publius letters were some of the most influential documents in support of the U.S. Constitution.
The Publius letters were written by three statesmen who were involved in creating the Constitution: Alexander Hamilton, James Madison, and John Jay. Hamilton and Madison wrote the majority of the letters, but Jay contributed five. Hamilton and Madison had been delegates to the Constitutional Convention. Jay had been the president of the Second Continental Congress in 1778 and 1779.
Alexander Hamilton, a New York lawyer, had been very active in the fight for independence. He eventually became secretary of the treasury under President George Washington. He was also influential in forming the domestic and foreign policies of the United States.
James Madison was sometimes called the “Father of the Constitution,” because in 1776 he drafted much of the U.S. Constitution and the Bill of Rights. He also helped write the state constitution for his home state of Virginia. Madison served in the Virginia legislature in the mid-1780s and served two terms as secretary of state under President Thomas Jefferson. He later served as the fourth president of the United States.
John Jay was another New York lawyer. He had been involved in creating the new government of the United States from the beginning of the Revolution. Jay later became the first chief justice of the Supreme Court (see sidebar).
Hamilton, Madison, and Jay wrote the Publius letters to explain the new Constitution and to gain support for it among voters. The letters detailed the political ideas contained in the Constitution. They presented the problems facing the new republic and posed solutions they believed the Constitution offered. The letters explained that the new Constitution proposed a strong central government. The papers also explained that the government’s power would be divided between separate entities: the presidency, the legislature, and the judiciary. This separation would create a strong central power and prevent upsetting the Union in the event that arguments occurred between the states.
The letters helped quiet the people’s concerns by explaining how the Constitution would work. Some people worried that giving the republic’s citizens a great deal of personal freedom would limit the government’s control. They feared all the different opinions would tear the country apart. But the letters argued that the Constitution was setting up a representative form of government to handle all the different opinions. The Constitution would not make the United States a “pure” or direct democracy. Instead, elected representatives would speak for the people in the legislature. The representatives would work out compromises to accommodate all the differing opinions.
Many wondered why the framers of the Constitution had included so many checks and balances in the government. James Madison used the fifty-first letter to describe why it was necessary to keep any one government official or agency from getting too much power. He wrote:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
The letters were later collected and published as The Federalist , also called The Federalist Papers . Thomas Jefferson declared The Federalist “the best commentaries on the principles of government … ever written.” Even in the twenty-first century the letters are considered an excellent statement of American political ideals, and Supreme Court justices still refer to them.
Though Hamilton and Madison worked together and wrote the Publius letters to persuade Americans to accept the new Constitution, they did not always agree with each other. By the 1790s, Hamilton and Madison had joined opposing political parties. Hamilton led the Federalist Party, and Madison led the Democratic-Republican Party.
Power and Liability of the States
The event that immediately sparked the proposal of the Eleventh Amendment was a court case brought before the Supreme Court in 1793. South Carolinian Alexander Chisholm wanted to sue the state of Georgia. During the Revolutionary War, the state of Georgia had bought supplies from a businessman from South Carolina but had never paid for them. The businessman was Robert Farquar, but he died. The job of handling his estate fell to Chisholm who decided to try and collect the money Georgia owed to Farquar.
The federal court system was only a few years old when Chisholm’s suit started. Article III of the Constitution outlines the structure and jurisdiction of the courts. However, the federal court for the District of Georgia was not certain it had the right to hear the Chisholm case.
Many of the states were very nervous when Chisholm went to the Supreme Court to ask permission to try his case in federal court, because many of them had war debts. If the federal court forced one of the states into court, perhaps it would not be long before all the states lost their power. If every one of the states that owed money were sued in federal court and forced to pay their debt, the states would soon go broke.
The Supreme Court heard the arguments of Chisholm’s lawyer. The state of Georgia was angry at being forced into court and did not send a lawyer to argue its case. The state simply refused to participate. All of the other states watched carefully to see what would happen.
The Supreme Court, under Chief Justice John Jay, ruled four to one that Chisholm could sue Georgia in federal court, even though the state was not willing to be sued. Justice James Iredell was the only justice who did not agree with the Court’s decision. Justice Iredell declared that it violated the state’s sovereign immunity.
Justice James Wilson, by contrast, firmly stated that the idea of sovereign immunity came from societies with kings and had no place in the new republic. “The pure source of equality and justice must be founded on the consent of those whose obedience they require,” he stated. “The Sovereign, when traced to his source, must be found in the man.” Creditors quickly filed lawsuits similar to Chisholm’s against the states of Georgia, Maryland, Massachusetts, New York, South Carolina, and Virginia.
A short lived victory
On February 19, 1793, the day following the Chisholm decision, legislators in the Senate heard the first resolution proposing an amendment to the Constitution. The new amendment assured sovereign immunity to the individual states.
Various states submitted similar resolutions to Congress for debate. Making fast work of the matter, Congress had an amendment for the states to ratify by March 4, 1794. Clearly, many of them felt strongly that the Court’s decision to hear the case against the state of Georgia was wrong.
The amendment’s immediate purpose was to overturn the Court’s verdict in Chisholm. The Eleventh Amendment represented the first time that Congress had legislatively overturned a U.S. Supreme Court decision. However, it also ensured that no federal court would be able to try a case against a state government in the future. Within a year, the states ratified the amendment. They were anxious to protect their own rights and powers. Strangely enough, the states did not let Congress know right away that they had ratified the Eleventh Amendment. The information about the ratification did not arrive at Congress until 1797. The amendment had begun its life under President George Washington, but it became law in January 1798 under President John Adams.
The nature of the Eleventh Amendment
The Eleventh Amendment was the first test of the young country’s amending process. The interpretation of the amending process rules became a significant point of discussion during the first court case that challenged the Eleventh Amendment.
In 1798, almost immediately after the amendment became law, a private company tried to sue the state of Virginia over land ownership in the case of Hollingsworth v. Virginia . Virginia declared its right to sovereign immunity, but Hollingsworth’s lawyers claimed that the Eleventh Amendment was not really law because President George Washington had not signed it.
They pointed to the Constitution that states the president must sign every “order, resolution, or vote” before it becomes law. This gives the executive branch of the government some control over lawmaking. However, the Constitution does not actually say that constitutional amendments must be signed. It does not specifically give the executive branch any role in amending the Constitution. Besides, President Washington had not signed any of the previous ten amendments that make up the Bill of Rights.
The Supreme Court did not accept Hollingsworth’s argument. The Court decided that the amendment process had been legal and correct according to the Constitution and simply declared that Amendments One through Eleven were all valid. National and state governments and courts have considered them valid ever since.
Chief Justice John Jay (1745–1829)
John Jay was the descendant of French Protestants who fled to the new world for religious freedom in the late 1600s. John Jay’s family was well established in the colonies by the time he was born in New York City in 1745. He graduated from King’s College (later called Columbia University), where he trained as a lawyer. He joined the New York Bar Association in 1768.
Young Jay was very interested in government and in the changes that were happening in his homeland. Because he was a respected lawyer from a prosperous old New York family, his opinions were in demand in the colonies. In 1773, Jay served the colonial government of New York as a royal commissioner. In the mid-1770s, he entered national politics when he was chosen as to be a delegate to the Continental Congress. He served in the First Continental Congress from 1774 to 1776 and in the Second Continental Congress from 1778–1779. In 1779, he was elected president of the Congress.
Though Jay worked throughout his life for the new nation of the United States, he was not originally in favor of independence. Like many who came from the wealthy merchant class, he favored working out a better relationship with Britain rather than breaking away. His signature is notably missing from the Declaration of Independence.
But once the Revolutionary War started, Jay supported his country. He helped to write the New York state constitution and represented the new country as a diplomat. In this role, he traveled to Spain in 1779. However, he failed to get Spain’s support for the newly independent colonies.
In 1782, he went to Paris with fellow statesmen Benjamin Franklin and John Adams to negotiate the treaty that ended the Revolutionary War. The Treaty of Paris that Jay and his fellow diplomats worked out guaranteed the independence of the United States of America. Britain gave up its claims on all land east of the Mississippi River and granted the new nation fishing rights in the Atlantic Ocean. It was a better deal for the new United States than anyone had thought possible.
In 1789, President George Washington appointed John Jay the country’s first chief justice of the Supreme Court. During his time in this position, Jay and the other justices had the difficult job of interpreting the Constitution. When the Court made decisions, it had to both uphold the authority of the young federal government and protect the powers of the individual states. One of Jay’s most famous rulings was Chisholm v. Georgia, which led to the passage of the Eleventh Amendment.
Jay earned much respect as a chief justice, but he did upset the American public in 1795. The end of the Revolutionary War had not ended the problems between Britain and the United States. By 1795, these problems were leading to another war. The president sent Jay to England to negotiate an agreement with George III.
Jay worked out a treaty that prevented war, but what “Jay’s Treaty” gave Britain made the American public very angry. People blamed Jay for betraying U.S. interests, and some burned him in effigy (burned a dummy with his name on it to show how much they disliked him).
But Jay’s bad reputation did not last. Not long after he returned from England, he was elected governor of New York without even running for the office. During his two terms as governor, Jay improved life in New York. He helped to pass anti-slavery laws, he improved the treatment of state prisoners by ending such practices as flogging and locking people up for owing money, and he supported the building of more modern prisons.
After his last term as governor, Jay refused President John Adams’s request for him to serve again as chief justice of the Supreme Court. Instead, Jay retired from public service to his family estate in Bedford, New York. He lived there for twenty-eight years until his death on May 17, 1829.
The Extension of the Eleventh Amendment
When the Civil War ended in 1865, state governments in the South had a whole new set of problems. During the war, they had raised money by issuing bonds. A bond is a way a government can borrow money from its citizens. Citizens buy bonds in return for a certificate saying that they paid the money. After a period of time, they get their money back with interest (money paid for the use of loaned money). Unfortunately, sometimes governments default (fail to make payment) on their bonds, and no one gets any money back.
After the Civil War, the southern states were very poor. They had spent all of their money fighting the war, and most were deeply in debt. There was little left to pay to those who held Confederate bonds. Many southern citizens wanted to take the states to court and force them to repay the money.
Many complicated lawsuits followed, but the Eleventh Amendment prevented most from succeeding. By the 1890s, the Supreme Court extended the meaning of the Eleventh Amendment to forbid citizens of a state from suing their own state. That had not been the original wording of the amendment, but the justices argued that state governments should not be brought into court against their will.
Determining the legality of extending the force of an amendment beyond the amendment’s exact wording is part of the Supreme Court’s job. As interpreters of the Constitution, the justices establish rules for the country that adhere to the intent of the Constitution and its amendments. The Supreme Court has continued to extend the meaning of the Eleventh Amendment over the years. As recently as 1997, the Court expanded the meaning of the Eleventh Amendment to make it more difficult to sue state-run colleges and universities.
Unfairness in protecting states
Many people think it seems unfair not to be able to sue a state government if that government has harmed them or owes them money. Lawyers have argued and debated this point repeatedly since the Eleventh Amendment became law. Some insist that a state’s sovereign immunity keeps states from becoming bogged down in legal suits and frees them to govern. Others think that the idea of sovereign immunity is outdated and undemocratic. States that agree with this position have even waived their sovereign immunity, allowing citizens to bring them to court in certain situations.
Continued Challenges to the Eleventh Amendment
The Eleventh Amendment is controversial largely because of the rights it gives to the individual states. Courts, lawyers, legislators, and private citizens have debated the powers of the federal government and the powers of the states ever since the end of the Revolutionary War.
In order to prevent any one branch from getting too powerful, the Constitution set up three branches of the federal government: the executive, the legislative, and the judicial. The United States as a whole country works the same way. The federal and state governments negotiate, work together, and even argue over issues of power and authority, and this activity helps to keep political power in balance.
When a state government breaks a federal law
The Eleventh Amendment was studied during the civil rights movement of the 1950s and 1960s. The federal government made anti-discrimination laws that were very unpopular with the state governments in the South. Sometimes the state governments did not enforce the federal laws. In these instances, the federal courts heard cases brought by individuals against state governments and their institutions, such as state universities.
For example, the Supreme Court ruled in McLaurin v. Oklahoma State Regents (1950) that the University of Oklahoma could not force black students to sit separately from white students. The Supreme Court defended their jurisdiction over this case and ruled that the state government had violated the Fourteenth Amendment to the Constitution by allowing unequal treatment of African Americans. (The Fourteenth Amendment, adopted in 1868 to protect the newly freed slaves, guarantees, among other rights, equal rights and protection under the law to all U.S. citizens. Because it has been used so often to challenge the policies of state governments, the Fourteenth Amendment has been called an amendment to the Eleventh Amendment.)
Other federal laws have questioned the idea of sovereign immunity, such as minimum wage laws and patent laws. In the 1999 case of Alden v. Maine, a worker tried to sue the state for paying less than the federal minimum wage. The Supreme Court ruled that the state’s sovereign immunity did not allow the worker to sue the state.
However, in College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board (1998), the Florida Prepaid Postsecondary Education Expense used a method of loaning money patented by the College Savings Bank. (A patent is a grant from the government that gives the inventor of a product or process the sole right to make the product or perform the process for a certain period of time.) In this case, the Court ruled that, because the Florida Prepaid Postsecondary Education Expense Board had accepted money from the federal government, it was no longer entitled to sovereign immunity, and the bank could sue the Florida board in federal court.
Resurgence of Eleventh Amendment Purposes
The Supreme Court in the 1990s breathed new life into the Eleventh Amendment by interpreting it as a broad grant of sovereign immunity—enough that it insulated the states from monetary damages in various types of civil rights suits. In Seminole Tribe of Florida v. Florida (1995), the Court ruled 5–4 that an Indian tribe could not sue the state of Florida in federal court because of the Eleventh Amendment. “Even when the Constitution vests in Congress complete law-making authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States,” wrote Chief Justice William Rehnquist.
In later decisions, the Court ruled that the Eleventh Amendment prevented states from being sued for monetary damages under the Age Discrimination in Employment Act in Kimel v. Florida Bar of Regents (2000) and under the Americans with Disabilities Act in Board of Trustees of the University of Alabama v. Garrett (2001). Under these laws, Congress had waived, or taken away, state immunity. Congress reasoned that it had the power to waive state immunity in order to further the remedial purposes of the Fourteenth Amendment. The Supreme Court reasoned that Congress acted unconstitutionally based on the Eleventh Amendment. These rulings stunned many who were concerned the Court might undo much federal civil rights legislation. However, the Court ruled in Nevada Department of Human Resources v. Hibbs (2003) that Congress could waive state immunity for violations of the Family Medical Leave Act.
Even if one disagrees with some of the Court’s decisions regarding the Eleventh Amendment, no one can disagree that the Court breathed new life into the amendment.
The Importance of the Eleventh Amendment
The American people have granted sovereignty to some areas of the federal government, some to state governments, and some to themselves. Likewise, the framers of the Constitution granted Congress the power to establish the jurisdiction of the federal court system. However, after the Supreme Court’s ruling in Chisholm v. Georgia, members of Congress soon recognized that an amendment to the Constitution was necessary to keep the unique relationship between the federal government and the state governments in balance. Laws could be changed, but constitutional amendments were permanent.
The Eleventh Amendment granted state governments more power. It gave both the federal government and the state governments some clear power over the federal courts by proving that constitutional amendments could overturn unpopular Supreme Court decisions (such as Chisholm ). Constitutional amendments were proven effective in compensating for the power of judicial review. In turn, Supreme Court decisions gained a greater degree of acceptance as solutions to constitutional legal disputes.
The Eleventh Amendment remains the only amendment written specifically for the federal judiciary.
FOR MORE INFORMATION
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Hudson, David L. Jr. The Rehnquist Court: Understanding Its Impact and Legacy. Westport, CT: Praeger, 2006.
Kyvig, David E., ed. Unintended Consequences of Constitutional Amendments. Athens: University of Georgia Press, 2000.
Lehman, Jeffrey, and Shirelle Phelps, eds. West’s Encyclopedia of American Law. Farmington Hills, MI: Thomson Gale, 2004.
Morris, Richard B. John Jay: The Nation and the Court. New York: Holmes & Meier Publishers, 1967.
Orth, John V. The Judicial Power of the United States: The Eleventh Amendment in American History. New York: Oxford University Press, 1987.
Arkes, Hadley. “More Supreme than Ever: Supreme Court Decisions Involving the Eleventh Amendment.” National Review 50 (July 26, 1999): 38–41.
Bladuell, Hector G. “Twins or Triplets? Protecting the Eleventh Amendment through a Three-prong Arm-of-the-state Test.” Michigan Law Review 105 (February 1, 2007): 837–866.
Bufford, Samuel L. “The Eleventh Amendment: Unfinished Judicial Business.” The Judges’ Journal 38 (winter 1999): 6–8.
Killenbeck, Mark R. “In (Re) Dignity: The New Federalism in Perspective.” Arkansas Law Review 57 (2004): 1–68.
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