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.
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 jurisdiction 13 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 States 16 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
Expansion of the Immunity of the States
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
Expansion as a formal holding occurred in Hans v. Louisiana, 23 a suit against the state by a resident of that state brought in federal court under federal question jurisdiction, alleging a violation of the Contract Clause in the state’s repudiation of its obligation to pay interest on certain bonds. Admitting that the Amendment on its face prohibited only the entertaining of a suit against a state by citizens of another state, or citizens or subjects of a foreign state, the Court nonetheless thought the literal language was an insufficient basis for decision. Rather, wrote Justice Bradley for the Court, the Eleventh Amendment was a result of the
shock of surprise throughout the country at the Chisholm decision and reflected the determination that the decision was wrong and that federal jurisdiction did not extend to making defendants of unwilling states. 24
Under this view, the amendment reversed an erroneous decision and restored the proper interpretation of the Constitution. The views of the opponents of subjecting states to suit
were most sensible and just; and [those views] apply equally to the present case as to that then under discussion. The letter is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual against a State. The reason against it is as strong in this case as it was in that. It is an attempt to strain the Constitution and the law to a construction never imagined or dreamed of. 25
The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States. . . . The suability of a State without its consent was a thing unknown to the law. 26 Thus, although the literal terms of the Amendment did not so provide,
the manner in which [Chisholm] was received by the country, the adoption of the Eleventh Amendment, the light of history and the reason of the thing, 27 led the Court unanimously to hold that states could not be sued by their own citizens on grounds arising under the Constitution and laws of the United States.
Then, in Ex parte New York (No. 1), 28 the Court held that, absent consent to suit, a state was immune to suit in admiralty, the Eleventh Amendment’s reference to
any suit in law or equity notwithstanding.
That a State may not be sued without its consent is a fundamental rule of jurisprudence . . . of which the Amendment is but an exemplification. . . . It is true the Amendment speaks only of suits in law or equity; but this is because . . . the Amendment was the outcome of a purpose to set aside the effect of the decision of this court in Chisholm v. Georgia . . . from which it naturally came to pass that the language of the Amendment was particularly phrased so as to reverse the construction adopted in that case. 29 Just as Hans v. Louisiana had demonstrated the
impropriety of construing the Amendment so as to permit federal question suits against a state, so
it seems to us equally clear that it cannot with propriety be construed to leave open a suit against a State in the admiralty jurisdiction by individuals, whether its own citizens or not. 30 An in rem admiralty action may be brought, however, if the state is not in possession of the res. 31
And in extending protection against suits brought by foreign governments, the Court made clear the immunity flowed not from the Eleventh Amendment but from concepts of state sovereign immunity generally.
Manifestly, we cannot . . . assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. There is the . . . postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been 'a surrender of this immunity in the plan of the convention.' The Federalist, No. 81. 32
In the 1980s, four Justices, led by Justice Brennan, argued that Hans was incorrectly decided, that the Amendment was intended only to deny jurisdiction against the states in diversity cases, and that Hans and its progeny should be overruled. 33 But the remaining five Justices adhered to Hans and in fact stiffened it with a rule of construction quite severe in its effect. 34 The Hans interpretation was further solidified with the Court’s ruling in Seminole Tribe of Florida v. Florida, 35 that Congress lacks the power under Article I to abrogate state immunity under the Eleventh Amendment, and with its ruling in Alden v. Maine 36 that the broad principle of sovereign immunity reflected in the Eleventh Amendment bars suits against states in state courts as well as federal.
Having previously reserved the question of whether federal statutory rights could be enforced in state courts, 37 the Court in Alden v. Maine 38 held that states could also assert Eleventh Amendment
sovereign immunity in their own courts. Recognizing that the application of the Eleventh Amendment, which limits only the federal courts, was a
misnomer 39 as applied to state courts, the Court nonetheless concluded that the principles of common law sovereign immunity applied absent
compelling evidence that the states had surrendered such by the ratification of the Constitution. Although this immunity is subject to the same limitations as apply in federal courts, the Court’s decision effectively limited the application of significant portions of federal law to state governments. Both Seminole Tribe and Alden were also 5-4 decisions with the four dissenting Justices maintaining that Hans was wrongly decided.
This now-institutionalized 5-4 split continued with Federal Maritime Commission v. South Carolina State Ports Authority, 40 which held that state sovereign immunity also applies to quasi-judicial proceedings in federal agencies. The operator of a cruise ship devoted to gambling had been denied entry to the Port of Charleston, and subsequently filed a complaint with the Federal Maritime Commission, alleging a violation of the Shipping Act of 1984. 41 Justice Breyer, writing for the four dissenting justices, emphasized the executive (as opposed to judicial nature) of such agency adjudications, and pointed out that the ultimate enforcement of such proceedings in federal court was exercised by a federal agency (as is allowed under the doctrine of sovereign immunity). The majority, however, while admitting to a
relatively barren historical record, presumed that when a proceeding was
unheard of at the time of the founding of the Constitution, it could not subsequently be applied in derogation of a
State’s dignity within our system of federalism. 42