ELEVENTH AMENDMENT (Update 1)

The Eleventh Amendment is at the center of an important debate about state accountability under federal law. Part of the debate is historical: What was the amendment originally intended to do? Part of the debate concerns modern doctrine: What should the amendment mean today?

Everyone agrees that the Eleventh Amendment was adopted to overturn the result reached by the Supreme Court in chisholm v. georgia (1793). In Chisholm, the Court heard a case brought by a citizen of South Carolina against the state of Georgia on a contract. The suit involved no question of federal law. It was brought under a provision of Article III conferring jurisdiction over "Controversies between a State and Citizens of another State." Despite Georgia's claim of sovereign immunity from suit, the Court held that Georgia could be compelled to appear.

The amendment 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." The historical debate concerns not whether but how the amendment was intended to overrule Chisholm. There are two ways to understand what the adopters of the amendment intended.

The first is to read the amendment as forbidding suits brought against states by out-of-state citizens or by foreign citizens or subjects. Under this reading, federal courts cannot take jurisdiction over such suits, even if a federal question is involved. The second is to read the amendment as repealing a jurisdiction that had previously been authorized. Under this reading, suits cannot be brought against states by out-of-state citizens or by foreign citizens or subjects merely because of the character of the parties. But if there is any other basis for jurisdiction, such as the existence of a federal question, suits are permitted. Under either reading of the amendment, admiralty and mari-time jurisdiction is not affected, for the amendment refers only to suits "in law or equity."

The Supreme Court was not forcEd to choose between the two readings of the amendment until after the civil war. Eventually, the Court chose to read the amendment as forbidding jurisdiction whenever an out-of-stater or a foreigner sued a state, as a way of protecting southern states from suit under the federal contract clause after they defaulted on state-issued revenue bonds. The Court then filled in the "missing" term of the amendment by holding in Hans v. Louisiana (1890) that the underlying principle of the amendment required that suits by instaters be forbidden as well. In this century, the Court has further expanded the prohibition of the amendment by reading it to prohibit suits by foreign countries (Principality of Monaco v. Mississippi, 1934) and in admiralty (Ex parte New York, No. 1, 1921).

In recent years, a number of legal scholars have argued that reading the amendment as only repealing the party-based jurisdiction of Article III is historically more accurate. Four Justices of the Supreme Court, led by Justice william j. brennan, have shared this view and have argued that modern doctrine should be brought into line with this understanding. In Pennsylvania v. Union Gas Co. (1989), however, a majority of the Court refused to incorporate this historical view into modern doctrine.

Although the Court reads the Eleventh Amendment to forbid federal court jurisdiction even when federal law provides the basis for private parties' suits against the states, the prohibition may be avoided or overcome in a number of ways. First, a state may waive its sovereign immunity by a voluntary appearance. As Edelman v. Jordan (1974) illustrates, however, a state may raise a sovereign immunity defense for the first time on appeal after having made a voluntary appearance at trial and having lost on the merits of the dispute. Second, the Supreme Court held in Cohens v. Virginia (1821) that the Eleventh Amendment does not apply to appeals to the Supreme Court from the state courts. Third, a state's subdivisions are not protected by the amendment. Under the principle enunciated in Lincoln County v. Luning (1890) a municipality, county, or school board may be sued in federal court under federal law without regard to the Eleventh Amendment.

Fourth, suit may be brought against a state officer for prospective relief. The foundation case is Ex parte Young(1908), in which the Court permitted an injunction prohibiting a state officer from acting unconstitutionally. The principle was expanded to permit injunctions ordering affirmative actions by state officials in Edelman v. Jordan (1974). But the same decision held that a federal court is forbidden to award monetary relief that will necessarily come out of the state treasury.

Finally, Congress may abrogate the states' sovereign immunity by statutes explicitly so providing. Under an abrogating statute, a state may be sued directly for the retroactive monetary relief otherwise unavailable under Edelman. The first case to allow congressional abrogation was Fitzpatrick v. Bitzer (1976), which sustained a statute enacted under the fourteenth amendment. The Court suggested in City of Rome v. United States (1980) that statutes passed under the fifteenth amendment could also abrogate state sovereign immunity. Most recently, the Court sustained an abrogating statute passed under the commerce clause in Pennsylvania v. Union Gas (1989). The combined reach of the Fourteenth Amendment and the commerce clause is such that Congress has considerable freedom to abrogate state sovereign immunity so long as it employs language making its intention clear.

After the Court's decision in Union Gas, the debate among the Justices over the original meaning of the amendment may have lost most of its practical significance. Under current doctrine there appears to be no significant constraint on the power of Congress to authorize suit against the states, beyond the limitations inherent in the enumerated powers under which Congress has acted. This position is not greatly different from that which would be achieved if the Eleventh Amendment were read as merely repealing party-based jurisdiction, leaving intact federal question jurisdiction for private suits brought under valid federal law. The most important difference is that the present doctrine requires Congress to speak clearly in lifting the states' Eleventh Amendment immunity from suit in federal court.

William A. Fletcher
(1992)

Bibliography

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 J. 1983 The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation. Columbia Law Review 83:1889–2005.

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