The Eleventh Amendment

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.

—Ernest A. Young

Introduction

The Eleventh Amendment’s seemingly technical language arose out of some of the oldest controversies in American history. The amendment implements to an extent the principle of sovereign immunity—an ancient rule that generally protects governments from suits by private persons and entities. This principle originated in monarchist notions of royal prerogative. Sovereign immunity has required considerable modification in a democratic republic that endows individuals with constitutional rights against government, and it becomes even more complex in a federal system in which state governments frequently assert their immunity to avoid liability for violations of supreme national law. Although the Eleventh Amendment arose in response to the Supreme Court’s first major constitutional decision in 1793, it continues to generate extensive litigation and academic controversy.

Backdrop of Sovereign Immunity

The notion of sovereign immunity traces back to the English common law as well as theories of unitary sovereignty associated with thinkers like Thomas Hobbes and Jean Bodin. Those theories held that “there must reside somewhere in every political unit a single, undivided final power, higher in legal authority than any other power, subject to no law, a law unto itself.”¹

Unitary sovereignty gave rise to two distinct legal rules of immunity: “[O]ne rule holds that the King or the Crown, as the font of law, is not bound by the law’s provisions; the other provides that the King or Crown, as the font of justice, is not subject to suit in its own courts.”² The first rule was largely rejected even in England and never found much purchase in this country. As Professor Louis L. Jaffe has observed, the notion that “the King can do no wrong” did not mean that the king was above the law; it meant that the king’s power did not extend to unlawful acts.³ The Supreme Court would affirm that “[n]o man in this country is so high that he is above the law.”⁴ The second principle—barring judicial remedies against the government—has proven to be more durable.

Sovereign immunity was part of the legal and intellectual backdrop against which the Framers drafted, debated, and ratified the Constitution.⁵ There is little evidence that the Constitution was intended to alter the states’ traditional immunity from private lawsuits, but the introduction of the Citizen-State Diversity Clause did raise fears that Article III would strip the states of their immunity and subject them to suit in federal court. (See Essay No. 130.) Those fears took on particular urgency in light of the considerable outstanding debts that state governments owed to creditors for Revolutionary War expenditures, as well as potential suits by persons disputing land titles under state law and by British citizens under the peace treaty of 1783.⁶

Several key Framers and ratifiers denied that the Constitution, of its own force, would deprive the states of this immunity. Hamilton made this point in Federalist No. 81, as did James Madison and John Marshall at the Virginia ratifying convention.⁷ The Supreme Court repudiated these assurances, however, just a few years later.

Chisholm v. Georgia and the Eleventh Amendment

Chisholm v. Georgia (1793) was the Court’s first major constitutional case.⁸ Alexander Chisholm was executor of the estate of Robert Farquhar, a deceased South Carolina merchant who had provided war material to Georgia during the Revolutionary War.⁹ The federal court’s jurisdiction to hear the case depended on Article III’s Citizen-State Diversity Clause. The majority of the Court found that the clause did override the state’s traditional immunity from suit¹⁰—just as the Anti-Federalists had feared. The Court’s holding sparked widespread outrage, largely because of concerns that enforcement of state Revolutionary War debts and pre-Revolutionary land claims would threaten many states’ solvency.¹¹

The Court observed a century later that Chisholm “created such a shock of surprise throughout the country that, at the first meeting of congress thereafter, the eleventh amendment to the constitution was almost unanimously proposed, and was in due course adopted by the legislatures of the states.”¹² The amendment provided that “[t]he 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.”¹³ It plainly rejected the result in Chisholm; the question is: What else does the language cover?

Interpretations of the Eleventh Amendment

Courts and commentators have offered two primary interpretations of the Eleventh Amendment’s text. First, the “diversity reading” reads the amendment as simply removing citizen-state diversity of citizenship as an available ground of federal jurisdiction when a private party sues a state government. If another ground—such as a federal question—is available, the federal court’s jurisdiction would be unaffected.¹⁴ Second, under the “plain meaning reading,” the presence of an out-of-state plaintiff would always defeat jurisdiction whether or not some other ground is available.¹⁵

For many years, almost all academics, as well as both the majority and dissenting justices in the Supreme Court’s major state immunity cases, agreed that the diversity reading was the correct one with regard to the amendment’s actual text.¹⁶ For example, the Supreme Court recognized that “the terms of [the Eleventh] Amendment address only ‘the specific provisions of the Constitution that had raised concerns during the ratification debates and formed the basis of the Chisholm decision. . . .’”¹⁷ The Court also conceded that “the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts.”¹⁸

Judges and scholars disagreed, however, as to whether some sort of structural or common-law immunity existed alongside the textual one that barred suits in federal-question suits or other situations not covered by the amendment’s text. Alden v. Maine (1999) explained that “Eleventh Amendment immunity” is “something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment.”¹⁹ Some justices and academics have sought to revive the plain-meaning reading.²⁰ These authorities also believe in a broader common-law or structural immunity; the main significance of the textual bar would thus be that it could not be waived by the state or abrogated by Congress under any circumstances. In a dissenting opinion, Justice Neil Gorsuch has written that “States have two distinct federal-law immunities from suit”—one grounded in text and one in constitutional structure.²¹ Other commentators, however, have sought to ground a broader notion of immunity elsewhere in the text—for instance, in the original understanding of what it means to be a “state” in light of eighteenth-century conceptions of sovereignty under the law of nations.²²

Either the diversity or plain-meaning reading of the Eleventh Amendment would have barred suit in Chisholm: Chisholm’s claim rested on state law such that federal jurisdiction depended solely on diversity of citizenship. But the Amendment’s ambiguities left open several more difficult questions that the Framers had not confronted directly: Did the states’ immunity apply in suits based on federal law? Was that immunity constitutional in stature, or could Congress abrogate it by statute?

The Supreme Court answered the first question in Hans v. Louisiana (1890).²³ Hans sought to recover on a repudiated Louisiana bond, but instead of suing for breach of contract under state law, he invoked the federal Contracts Clause to claim that the state had impaired the obligation of the bond contract. The Court conceded that because Hans was a citizen of Louisiana and rested federal jurisdiction on a federal question, his suit fell outside the Eleventh Amendment’s textual bar to suits “by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Writing for the Court, Justice Joseph Bradley contended that it would be anomalous to allow Hans—a Louisiana native—to sue in circumstances where out-of-state individuals would be barred.²⁴ The leading explanation of this holding, relied upon in more recent cases, is that the sovereign immunity enjoyed by the states at the Founding was broadly applicable to all sorts of suits, and the Eleventh Amendment was intended only to fill the specific gap in that preexisting immunity created by the Court’s decision in Chisholm.²⁵

After Hans, the Court extended the states’ immunity in a number of other ways that are inconsistent with the amendment’s text. State immunity bars suits in admiralty (notwithstanding the textual limitation to “suit[s] in law or equity”)²⁶ and by foreign sovereigns and Indian tribes (notwithstanding the textual limitation to “Citizens” of a “State” or “Foreign State”).²⁷ The Court also limited state immunity in ways the text seems to foreclose. The Court allowed states to waive their immunity notwithstanding the amendment’s framing as a limit on subject-matter jurisdiction (which is generally unwaivable).²⁸ And it held in Ex parte Young (1908) that state immunity does not bar a suit against a state officer for prospective relief—even when, as in most such cases, the state is the real party in interest.²⁹

Statutory Abrogation of State Sovereign Immunity

If the states’ immunity extends more broadly than the Eleventh Amendment’s text, then it is ambiguous whether that immunity enjoys constitutional status. The Rehnquist and Roberts Courts have thus debated whether Congress may abrogate the states’ sovereign immunity by statute. There is little doubt that at the Founding, the states enjoyed the sort of sovereign immunity recognized at common law. Most common-law doctrines, however, are subject to legislative override. Debates at the Constitutional and ratification conventions focused on whether Article III was intended to override this traditional immunity, but they did not address whether Congress could do so by later legislative enactment.

The Supreme Court first addressed this question in Fitzpatrick v. Bitzer (1976).³⁰ Fitzpatrick held that Congress may abrogate state immunity when it acts pursuant to its power to enforce the Reconstruction (Thirteenth, Fourteenth, and Fifteenth) Amendments. Several reasons have been given: Those amendments postdate the Eleventh; they were designed by the Civil War victors to cut back on state sovereignty; and their textual grant of power to Congress to “enforce” their provisions may extend to subjecting the states to monetary remedies for violations.³¹ The Court likewise held that Congress could abrogate state immunity using its Commerce Power in Pennsylvania v. Union Gas (1989),³² but no majority agreed on a rationale, and the principle remained uncertain.

Seminole Tribe of Florida v. Florida (1996) overruled Union Gas and established general parameters for the state immunity jurisprudence.³³ Seminole Tribe held that the states’ traditional immunity was not a mere holdover from the common law but rather was a basic principle of the constitutional structure; hence, Congress may not abrogate state sovereign immunity by statute, at least when it acts pursuant to its enumerated powers in Article I.

Alden v. Maine (1999) held that, notwithstanding the Eleventh Amendment’s limited application to “[t]he Judicial power of the United States,” Congress also lacked power to override state sovereign immunity for suits in state courts.³⁴ Alden frankly acknowledged that no such principle could be gleaned from the amendment’s text. The Court relied instead on a structural principle that predated the text and applied much more broadly. “The Eleventh Amendment confirmed, rather than established, sovereign immunity as a constitutional principle,” Justice Anthony Kennedy explained for the Court. “[I]t follows that the scope of the States’ immunity from suit is demarcated not by the text of the Amendment alone but by fundamental postulates implicit in the constitutional design.”³⁵

Seminole Tribe reaffirmed that Congress retains power to abrogate state sovereign immunity when enforcing the Reconstruction Amendments. Such abrogation can proceed on either of two tracks.³⁶ The first track—“prophylactic” abrogation—subjects states to liability whenever they violate the abrogating statute. In such cases, courts apply a test formulated in City of Boerne v. Flores (1997) to ensure that the statute is “congruent and proportional” to the underlying constitutional violations it is meant to address.³⁷

That standard has proven difficult to meet. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999) rejected Congress’s attempt to use Section 5 of the Fourteenth Amendment to abrogate state sovereign immunity in patent suits as a way to prevent deprivations of property without due process of law. The Court noted that patent infringements that were unintentional or remediable under state law would not deny due process.³⁸ Similarly, Kimel v. Florida Board of Regents (2000) and Board of Trustees of the University of Alabama v. Garrett (2001) rejected claims that state liability under the Age Discrimination in Employment Act (ADEA) and Americans with Disabilities Act (ADA), respectively, would validly remedy violations of the Equal Protection Clause.³⁹ In each case, the Constitution forbade a far narrower set of distinctions based on age or disability than did the statutes in question.

Nonetheless, abrogation under the enforcement power is appropriate when a high proportion of statutory violations are also constitutional violations of rights protected by Section 1 of the Fourteenth Amendment. Thus, Nevada Department of Human Resources v. Hibbs (2003) held that Congress may subject a state to suits for money damages by state employees in the event of the state’s failure to comply with the family-care provision of the Family and Medical Leave Act (FMLA).⁴⁰ Hibbs and similar cases suggest that narrowly drawn abrogation statutes can pass muster under Section 5 of the Fourteenth Amendment, particularly when the rights being enforced call for heightened judicial scrutiny.

A second abrogation track allows courts to enforce a statute purporting to override state immunities on a case-by-case basis as long as the particular plaintiff can show an actual constitutional violation as well as a statutory one. United States v. Georgia (2006) held that a disabled prison inmate who alleged that he was confined under conditions that violated both the Americans with Disabilities Act and the Eighth Amendment and was able to prove those allegations at trial could recover damages against the state government.⁴¹ That was true whether or not the ADA provision at issue satisfied the “congruence and proportionality” test. Although relatively few plaintiffs have taken advantage of this theory successfully since 2006, Georgia appears to present an appealing alternative for plaintiffs who may struggle to establish that a federal statute abrogates state sovereign immunity across the board.

The Court has reopened questions about the use of Congress’s other powers to override sovereign immunity by developing Alexander Hamilton’s suggestion in Federalist No. 81 that states may have waived certain aspects of their immunity “in the plan of the [Constitutional] Convention.” That notion of a waiver inherent in the constitutional structure had long been used to justify suits against states by the United States itself or by other states in the original jurisdiction of the Supreme Court.⁴²

Central Virginia Community College v. Katz (2006) suggested that certain powers enumerated in Article I might also entail such a waiver of state immunity.⁴³ Katz found that the supposedly unique history, purpose, and nature of the Bankruptcy Clause justified such a waiver. The Court did not explore Katz’s potential to support waivers with respect to other powers for nearly a decade and a half. Allen v. Cooper (2020) rejected a similar argument under the Copyright Clause.⁴⁴

Notwithstanding Allen’s disavowal of any “general, clause-by-clause reexamination of Article I,” however, the Court has pursued just such a reexamination. PennEast Pipeline Co., LLC v. New Jersey (2021) found a waiver of state immunity inherent in the federal government’s eminent domain power,⁴⁵ and Torres v. Texas Department of Public Safety (2022) found a waiver inherent in Congress’s power to raise armies.⁴⁶ Such broad implied waivers of immunity have the practical effect of recognizing legislative power to abrogate state immunity under the same provisions. The Katz line of cases thus significantly undermines Seminole Tribe’s holding that Congress’s general Article I powers include no power to override state sovereign immunity.⁴⁷

Open Questions

Whether or not the Katz line of cases leads to a fundamental change in the Court’s immunity jurisprudence, Congress retains other important tools with which to hold state actors accountable for violations of federal law.

• Congress can induce the states to waive their immunities as a condition for receipt of federal grants under the Spending Clause (Article I, Section 8, Clause 1).⁴⁸ The Court has done little, however, to define the limits on such waivers.
• State sovereign immunity has never been understood to bar suits by the United States itself. Federal enforcement agencies thus may continue to enforce the ADEA and ADA against state governments, and whether Congress may delegate the United States’ enforcement power to private parties remains an open question.⁴⁹
• Nor does state immunity bar claims against state officers for injunctive relief under the doctrine of Ex parte Young (1908)⁵⁰ or (when the officer is sued in his personal capacity) for money damages.⁵¹ It is not always easy to define when relief under Young is available, however.⁵² As long as these options exist, the sovereign immunity embodied in the Eleventh Amendment and its extratextual background principles will tend to force suits against the states into certain channels without entirely eliminating the possibility of relief.

1. Bernard Bailyn, The Ideological Origins of the American Revolution 198 (1967). ↩︎
2. Seminole Tribe v. Florida, 517 U.S. 44, 102–03 (1996) (Souter, J., dissenting) (citing Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 3–4 (1963)). ↩︎
3. Jaffe, supra at 4; United States v. Lee, 106 U.S. (16 Otto) 196, 220 (1882). ↩︎
4. Lee, 106 U.S. (16 Otto) at 220. ↩︎
5. Stephen E. Sachs, Constitutional Backdrops, 80 Geo. Wash. L. Rev. 1813, 1869–72 (2012). ↩︎
6. See William A. Fletcher, The Diversity Explanation of the Eleventh Amendment: A Reply to Critics, 56 U. Chi. L. Rev. 1261, 1271 (1989); Clyde E. Jacobs, The Eleventh Amendment and Sovereign Immunity 43–64 (1972). ↩︎
7. William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033, 1045–54 (1983). ↩︎
8. 2 U.S. (2 Dall.) 419 (1793). ↩︎
9. Jacobs, supra at 47; Doyle Mathis, Chisholm v. Georgia: Background and Settlement, 54 J. Am. Hist. 19, 20–21 (1967). ↩︎
10. 2 U.S. (2 Dall.) at 450–51 (Blair, J.); David P. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789–1888, at 14–16 (1985). ↩︎
11. Kurt T. Lash, Leaving the Chisholm Trail: The Eleventh Amendment and the Background Principle of Strict Construction, 50 Wm. & Mary L. Rev. 1577, 1649 (2009). ↩︎
12. Hans v. Louisiana, 134 U.S. 1, 11 (1890). ↩︎
13. Amend. XI. ↩︎
14. Fletcher, The Diversity Explanation, supra at 1264. ↩︎
15. Lawrence C. Marshall, Fighting the Words of the Eleventh Amendment, 102 Harv. L. Rev. 1342, 1356–71 (1989). ↩︎
16. Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L.J. 1, 44 n.179 (1988). ↩︎
17. Franchise Tax Bd. v. Hyatt, 587 U.S. 230, 243 (2019) (quoting Alden v. Maine, 527 U.S. 706, 723 (1999)); Seminole Tribe, 517 U.S. at 54; Jackson, supra at 44 n.179. ↩︎
18. Seminole Tribe, 517 U.S. at 54. ↩︎
19. Alden, 527 U.S. at 713. ↩︎
20. PennEast Pipeline Co., LLC v. New Jersey, 594 U.S. 482, 509–12 (2021) (Gorsuch, J., dissenting); William Baude & Stephen E. Sachs, The Misunderstood Eleventh Amendment, 169 U. Pa. L. Rev. 609 (2021). ↩︎
21. PennEast, 594 U.S. at 509–10 (Gorsuch, J., dissenting). ↩︎
22. Anthony J. Bellia, Jr., & Bradford R. Clark, The International Law Origins of American Federalism, 120 Colum. L. Rev. 835 (2020); Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817 (2010). ↩︎
23. 134 U.S. 1 (1890). ↩︎
24. Id. at 15. ↩︎
25. Alden, 527 U.S. at 722–25. ↩︎
26. Ex parte New York, 256 U.S. 490 (1921). ↩︎
27. Principality of Monaco v. Mississippi, 292 U.S. 313 (1934); Blatchford v. Native Vill. of Noatak, 501 U.S. 775 (1991). ↩︎
28. Clark v. Barnard, 108 U.S. 436 (1883). ↩︎
29. 209 U.S. 123 (1908). ↩︎
30. 427 U.S. 445, 456 (1976). ↩︎
31. Ernest A. Young, State Sovereign Immunity After the Revolution, 102 Tex. L. Rev. 697, 715 n.119 (2024). ↩︎
32. 491 U.S. 1 (1989) (plurality opinion). ↩︎
33. 517 U.S. 44 (1996). ↩︎
34. 527 U.S. 706 (1999). ↩︎
35. Id. at 728. ↩︎
36. Young, supra at 718–20. ↩︎
37. 521 U.S. 507, 519–20 (1997). ↩︎
38. 527 U.S. 627 (1999). ↩︎
39. 528 U.S. 62 (2000); 531 U.S. 356 (2001). ↩︎
40. 538 US. 721 (2003). ↩︎
41. 546 U.S. 151 (2006). ↩︎
42. United States v. Texas, 143 U.S. 621 (1892); Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657 (1838). ↩︎
43. 546 U.S. 356 (2006). ↩︎
44. 589 U.S. 248 (2020). ↩︎
45. 594 U.S. 482 (2021). ↩︎
46. 597 U.S. 580 (2022). ↩︎
47. Anthony J. Bellia, Jr., & Bradford R. Clark, State Sovereign Immunity and the New Structuralism, 65 Wm. & Mary L. Rev. 485 (2024); Young, supra at 735–42. ↩︎
48. Sossamon v. Texas, 563 U.S. 277 (2011). ↩︎
49. Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765 (2000); Young, supra at 762–67. ↩︎
50. 209 U.S. 123 (1908). ↩︎
51. John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 Va. L. Rev. 47 (1998). ↩︎
52. Whole Woman’s Health v. Jackson, 595 U.S. 30 (2021). ↩︎