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.
One view of the Eleventh Amendment, set out above in the discussion of Hans v. Louisiana, Ex parte New York, and Principality of Monaco, is that Chisholm was erroneously decided and that the Amendment’s effect, its express language notwithstanding, was to restore the
original understanding that Article III’s grants of federal court jurisdiction did not extend to suits against the states. It explains the decision in Edelman v. Jordan, 1 in which the Court held that a state could properly raise its Eleventh Amendment defense on appeal after having defended and lost on the merits in the trial court.
[I]t has been well settled . . . that the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court. 2 But that the bar is not wholly jurisdictional seems established as well. 3
Moreover, if under Article III there is no jurisdiction of suits against states, the settled principle that states may consent to suit 4 becomes conceptually difficult, as it is not possible to confer jurisdiction where it is lacking through the consent of the parties. 5 And there is jurisdiction under Article III of some suits against states, such as those brought by the United States or by other states. 6 Furthermore, Congress is able in at least some instances to legislate away state immunity, 7 although it may not enlarge Article III jurisdiction. 8 The Court has declared that
the principle of sovereign immunity [reflected in the Eleventh Amendment] is a constitutional limitation on the federal judicial power established in Art. III, but almost in the same breath has acknowledged that
[a] sovereign’s immunity may be waived. 9
Another explanation of the Eleventh Amendment is that it merely recognized the continued vitality of the doctrine of sovereign immunity as established prior to the Constitution: a state was not subject to suit without its consent. 10 This view also has support in modern case law:
the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . . . 11 The Court in dealing with questions of governmental immunity from suit has traditionally treated interchangeably precedents dealing with state immunity and those dealing with Federal Governmental immunity. 12 Viewing the Amendment and its radiations into Article III in this way provides a consistent explanation of the consent to suit as a waiver. 13 The limited effect of the doctrine in this context in federal court arises from the fact that traditional sovereign immunity arose in a unitary state, barring unconsented suit against a sovereign in its own courts or the courts of another sovereign. But upon entering the Union the states surrendered their sovereignty to some undetermined and changing degree to the national government, a sovereign that does not have plenary power over them but that is more than their coequal. 14
Within the area of federal court jurisdiction, the issue becomes the extent to which the states upon entering the Union gave up their immunity to suit in federal court. Chisholm held, and enactment of the Eleventh Amendment reversed the holding, that the states had given up their immunity to suit in diversity cases based on common law or state law causes of action; Hans v. Louisiana and subsequent cases held that the Amendment in effect codified an understanding of broader immunity to suits based on federal causes of action. 15 Other cases have held that the states did give up their immunity to suits by the United States or by other states and that subjection to suit continues. 16
Still another view of the Eleventh Amendment is that it embodies a state sovereignty principle limiting the power of the Federal Government. 17 In this respect, the federal courts may not act without congressional guidance in subjecting states to suit, and Congress, which can act to the extent of its granted powers, is constrained by judicially created doctrines requiring it to be explicit when it legislates against state immunity. 18
Questions regarding the constitutional dimensions of sovereign immunity have also arisen in the context of interstate sovereign immunity when a private party institutes an action against a state in another state’s court. In the now-overturned 1979 decision of Nevada v. Hall, the Court held that while states are free as a matter of comity “to accord each other immunity or to respect any established limits on liability,” the Constitution does not compel a state to grant another state immunity in its courts. 19 In Hall, California residents who were severely injured in a car crash with a Nevada state university employee on official business sued the university and the State of Nevada in California court. 20 After considering the scope of sovereign immunity as it existed prior to and “in the early days of independence,” the doctrine’s effect on “the framing of the Constitution,” and specific “aspects of the Constitution that qualify the sovereignty of the several States,” such as the Full Faith and Credit Clause, 21 the Court concluded that “[n]othing in the Federal Constitution authorizes or obligates this Court to frustrate” California’s policy of “full compensation in its courts for injuries on its highways resulting from the negligence” of state or non-state actors “out of enforced respect for the sovereignty of Nevada.” 22
Forty years later, the Court overruled Hall in Franchise Tax Board of California v. Hyatt (Franchise Tax Board III), holding that “States retain their sovereign immunity from private suits brought in the courts of other States.” 23 The case involved a tort action by a private party against a California state agency in Nevada’s courts. 24 The “sole question” before the Court was whether to overrule Nevada v. Hall, a question over which the Court divided in 2016. 25 As the majority in Franchise Tax Board III read the historical record, although interstate sovereign immunity may have existed as a voluntary practice of comity at the time of the founding, the Constitution “fundamentally adjust[ed] the States’ relationship with each other and curtail[ed] their ability, as sovereigns, to decline to recognize each other’s immunity.” 26 The Court reiterated the view embraced in several of its decisions since Hall that in proposing the Eleventh Amendment in response to Chisholm v. Georgia, “Congress acted not to change but to restore the original constitutional design.” 27 Accordingly, the Court explained, the “sovereign immunity of the States . . . neither derives from, nor is limited by, the terms of the Eleventh Amendment.” 28 Moreover, the Court reasoned, “[n]umerous provisions” in the Constitution support the view that interstate sovereign immunity is “embe[dded] . . . within the constitutional design.” 29 Among other provisions, the Court cited Article I insofar as it “divests the States of the traditional diplomatic and military tools that foreign sovereigns possess” and Article IV’s Full Faith and Credit Clause, which requires that “state-court judgments be accorded full effect in other States and preclude[s] States from ‘adopt[ing] any policy of hostility to the public Acts’ of other States.” 30 Accordingly, because sovereign immunity was inherent in the constitutional design, the Court concluded that the State of California could not be sued in Nevada absent the former state’s consent. 31