Eleventh Amendment (Update 2)

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The Eleventh Amendment was the first change in the Constitution in response to a Supreme Court decision. In 1793, chisholm v. georgia upheld the Court's original jurisdiction over an action on a contract by a citizen of South Carolina against the state of Georgia. The Eleventh Amendment, adopted in 1798, responded to that decision. It 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."

There is substantial disagreement over what this amendment means. The current view of the Court is that Chisholm created a "shock of surprise," because it had never been thought that a state could be sued by private persons, and that the amendment was intended to protect states from such suits. This view reads the amendment, though in terms a limitation on federal jurisdiction, as embodying a doctrine of state sovereign immunity. Tounderstand why this reading is controversial, more history is in order.

Pre–civil war decisions raised alternative and at times narrow interpretations of the amendment, for example, suggesting a "party of record" rule to avoid a bar when a state as such was not named as defendant, or hinting that the amendment did not apply when jurisdiction was based, not on who the parties were, but on the "arising under federal law" grant of power. By 1890, however, Hans v. Louisiana laid the basis for the current view, holding that a federal court could not hear a suit by a Louisiana bond-holder against his state on a federal claim of unconstitutional impairment of contract. Even though the Eleventh Amendment by terms prohibited only a limited class of plaintiffs from suing, Hans reasoned that the amendment would never have been passed had it been understood to permit claims by in-staters, and that it should be read to provide immunity to a state from a suit by any private person. Later decisions expanded this immunity to include, for example, suits brought by foreign states or suits in admiralty.

As the activities of modern governments grew and came to overlap, state and local governments increasingly became subject to the substantive reach of federal statutes. Under Lincoln Co. v. Luning (1890), local governments are not regarded as "the state" for purposes of the Eleventh Amendment and accordingly can be sued in federal court. In Parden v. Terminal Railway of Alabama (1964), the Court, in a 5–4 decision, permitted a federal statutory claim against a state in federal court, arguing that states "surrendered a portion of their sovereignty" in agreeing to Congress's enumerated powers and that by participating in the regulated activity (running a railroad) states waived their immunity. Soon the Court modulated its approach, insisting on more explicit "clear statements" to find congressional intent to authorize federal court suits against states or to find state waiver of immunity.

In a significant advance for state accountability under law, Fitzpatrick v. Bitzer (1974) upheld Congress's power, when acting to enforce the fourteenth amendment, to subject states to suit in federal courts. New scholarship began to reexamine the amendment's text and history, arguing that the amendment did not restrain Congress from specifically authorizing suits, based on federal laws, against states. Many concluded that the amendment did not embody a broad principle of state immunity from federal court suit, but rather was a carefully limited repeal of a party-based head of jurisdiction over states, that left intact both federal question and admiralty heads of power. This "diversity repeal" view made sense of the limited text of the amendment, of the support for its enactment from both federalists and anti-federalists, and of the Court's subsequent appellate practice in federal question cases coming from the state courts.

In 1989, Union Gas v. Pennsylvania, by a 5–4 vote, upheld Congress's power to authorize suits against states under Article I. The plurality opinion extended the reasoning of Fitzpatrick to the commerce clause, holding that if Congress spoke clearly enough, it could abrogate states' immunity when acting under the commerce clause, a plenary power that also limits state powers. In some tension with other doctrines, the plurality treated the amendment as a limit on the Court's power to construe jurisdictional provisions to abrogate sovereign immunity, but not as a limit on Congress's power to abrogate state sovereign immunity pursuant to its plenary powers. The plurality's rationale would permit congressional abrogation of immunity, if in clear terms, under other Article I provisions. But its reign was short. Union Gas was over-ruled by Seminole Tribe v. Florida (1996).

Endorsing Hans, Seminole Tribe, 5–4, concluded that Congress lacks power under Article I to abrogate states' constitutional immunity from suit. This immunity, merely exemplified by the amendment, protects state treasuries from federal judgments and state sovereignty from the "indignity" of being sued by individuals for any kind of relief. Thus, "[e]ven when the Constitution vests in Congress complete lawmaking authority over a particular area," Congress cannot authorize "suits by private parties against unconsenting states," and a law extending federal jurisdiction to disagreements between tribes and states over gambling on american indian reservations was thus unconstitutional. Seminole Tribe distinguished, and thus apparently preserved, Congress's power to abrogate immunity from suit under the Fourteenth Amendment, added to the Constitution after the Eleventh Amendment and designed as an explicit limit on state power.

Under Seminole Tribe, it is thus important to determine whether a particular federal statute that subjects states to suits in federal court has been properly enacted under Congress's powers under the fourteenth amendment, section 5, or instead has been validly enacted only under an Article I power, for example, over interstate commerce. For it is only under the Fourteenth Amendment (or possibly other post–Civil War amendments) that Congress may have power to create causes of action enforceable against states, as such, without their consent. Since Seminole Tribe, lower court decisions have considered whether Congress validly abrogated state immunity in enacting laws concerning, for example, bankruptcy, copyright patent, minimum wage, age discrimination, and disability discrimination under the Fourteenth Amendment. In two 1999 decisions, the Court gave a narrow reading to Congress's power under section 5 of the Fourteenth Amendment, holding unconstitutional two different federal remedial statutes authorizing suits against states. In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999), the Court held that, although patents were a form of property protected by the Fourteenth Amendment from state "deprivations" without due process of law, Congress's abrogation of states' immunity from suit for patent infringement was unconstitutional because of the possibility that state remedies would sufficiently compensate the patentholder and thereby provide due process. In College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board (1999), the Court held that injuries to a business from unfair competition in violation of the federal Lanham Act were not deprivations of "property interests" for due process purposes and thus Congress had no basis under the Fourteenth Amendment for abrogating states' immunity to such claims. As of this writing, the Court has granted certiorari in a case challenging the constitutionality of the Age Discrimination in Employment Act's abrogation of state immunity.

Eleventh Amendment doctrine does permit mechanisms for affirmative enforcement of federal law other than suits against states in federal courts. The most important of these are ex parte young (1908) actions against state officers for prospective injunctive relief against violations of federal (though not state) law. But while state officers may be sued for damages in their individual capacities, suits against state officers for such "retroactive" relief as accrued monetary liabilities payable from the state treasury are prohibited, as are some suits against state officers involving state interests in property. Seminole Tribe preserves the rule that prospective relief against state officers to prevent continuing violations of federal law is generally permitted, though the Court there refused to permit such an action on the somewhat implausible ground that it was impliedly precluded by the federal statute's authorization (held unconstitutional) of suit against the state directly. Whether the Ex parte Young doctrine will be substantially narrowed remains to be seen.

Other mechanisms for enforcing federal law against states include suits by the federal government, consented-to suits in state or federal courts, and suits by other states. The Eleventh Amendment does not bar the United States from suing a state. Some federal statutes, for example, the Fair Labor Standards Act, include provisions authorizing suit by the United States with recoveries ultimately payable over to individual beneficiaries. (The constitutionality of "qui tam" actions against states—that is, actions brought by private parties in the name of the United States to recover damages for fraud against the federal government, a portion of which recovery goes to the private party—is before the Court as of this writing.) States are not immune from suits by sister states, so long as the plaintiff state is not suing merely as parens patriae for a small number of private interests. Although the amendment does not apply to a suit against one state in the courts of another under Nevada v. Hall (1979), Alden v. Maine (1999) holds that states can constitutionally refuse to consent to suits against themselves in their own courts under federal law, thereby substantially limiting the practical availability of relief in state courts.

Finally, unlike other constitutional limits on federal judicial power that cannot be disregarded on the parties' consent, a state can waive its constitutional immunity, consenting to jurisdiction in either federal or state court. However, in College Savings Bank the Court overruled Parden and held that Congress may not require states to consent to suit as a condition of being permitted to engage in activity subject to regulation under the commerce clause. Such a constructive waiver theory, the Court said, was indistinguishable from abrogation, and the "voluntariness of the waiver [is] destroyed when what is attached to the refusal to waive is the exclusion of the State from otherwise lawful activity." The Court, however, preserved Congress's authority to insist on a consent-to-suit clause in approving bi-state compacts, or as a condition for receiving federal funds.

The recent expansion of states' immunity from federal jurisdiction is in tension with rule of law ideas spreading elsewhere in the world. While this entry describes the current state of the law, the closely split decisions of the decade beginning in 1989 may foreshadow further uncertainties on the amenability of states to federal court process for enforcement of federal law, particularly considering Seminole Tribe 's interaction with other developments in federalism. For now, the Eleventh Amendment bars Congress from subjecting states to suits in federal court for violations of federal laws enacted under Article I of the Constitution, and limits the relief that may be sought against state officers, and a comparable doctrine of constitutional sovereign immunity protects states from suit on federal claims in their own courts.

Postscript. In Kimel v. Florida Board of Regents (2000), the Court held that Congress's attempted abrogation of states' Eleventh Amendment immunity for claims under the Age Discrimination in Employment Act (ADEA) was not constitutional. Application of the ADEA to the states had been upheld as an exercise of commerce clause power in equal employment opportunity commission (eeoc) V. wyoming (1983), but Seminole Tribe held that Congress lacks power to abrogate sovereign immunity from suit under that clause. The basic question in Kimel was whether the ADEA was a valid exercise of Congress's power under the Fourteenth Amendment, section 5, so as to authorize Congress to abrogate the states' immunity from suit. The Court, finding that the ADEA was clearly intended to abrogate the states' immunity, nonetheless held that Congress lacked power to act under the Fourteenth Amendment. The Court reasoned that age is not a "suspect" basis for classification, and that states accordingly had latitude to make rational age classifications; yet the ADEA generally prohibits state employers from relying on "age as a proxy for other qualities." Because rational age classifications by states are permissible under the Constitution, the Court held that the act could not be justified as "proportional" to violations of section 1 that Congress has power to remedy. And because the ADEA could not be upheld as an exercise of Fourteenth Amendment power, it could not constitutionally abrogate the states' immunity from suit.

Vicki C. Jackson


Amar, Akhil Reed 1987 Of Sovereignty and Federalism. Yale Law Journal 96:1425–1520.

Fletcher, William A. 1983 A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather Than A Prohibition Against Jurisdiction. Stanford Law Review 35:1033–1131.

Gibbons, John 1983 The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation. Columbia Law Review 83:1889–2129.

Jackson, Vicki C. 1988 The Supreme Court, The Eleventh Amendment, and State Sovereign Immunity. Yale Law Journal 88:1–126.

——1997 Seminole Tribe, the Eleventh Amendment and the Potential Evisceration of Ex Parte Young. New York University Law Review 72:495–546.

Marshall, William P. 1989 The Diversity Theory of the Eleventh Amendment: A Critical Evaluation. Harvard Law Review 102:1372–1396.

Meltzer, Daniel J. 1996 The Seminole Decision and State Sovereign Immunity. Supreme Court Review 1996:1–65.

Orth, John V. 1987 The Judicial Power of the United States: The Eleventh Amendment in American History. New York: Oxford University Press.

Vazquez, Carlos 1997 What Is Eleventh Amendment Immunity? Yale Law Journal 106:1683–1806.