The 222nd Anniversary of the 11th Amendment: A Constitutional Amendment Overturning a Supreme Court Decision

The 11th Amendment to the United States Constitution, changing a portion of Article III, Section 2, was ratified on February 7, 1795. The amendment reads –

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.

Article III, Section 2 states –

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—[between a State and Citizens of another State;-]8 between citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States [and between a State, or the Citizens thereof;—and foreign States, Citizens or Subjects.]9

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

The 11th Amendment was designed to overturn the U.S. Supreme Court’s decision in Chisholm v. Georgia.

The facts of that case were as follows

In 1777, the Executive Council of Georgia authorized the purchase of needed supplies from a South Carolina businessman. After receiving the supplies, Georgia did not deliver payments as promised. After the merchant’s death, the executor of his estate, Alexander Chisholm, took the case to court in an attempt to collect from the state. Georgia maintained that it was a sovereign state not subject to the authority of the federal courts.

The issue confronted by the Court was whether the state of Georgia was subject to the jurisdiction of the Supreme Court and the federal government? The importance of the case was laid out by Justice James Wilson in his opinion –

This is a case of uncommon magnitude. One of the parties to it is a State; certainly respectable, claiming to be sovereign. The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others, more important still; and, may, perhaps, be ultimately resolved into one, no less radical than this— “do the people of the United States form a Nation?”

The Court held in a 4-to-1 decision that “the people of the United States” intended to bind the states by the legislative, executive, and judicial powers of the national government. Further, the Court held that supreme or sovereign power was retained by citizens themselves, not by the “artificial person” of the State of Georgia. In the Court’s view, the Constitution made clear that controversies between individual states and citizens of other states were under the jurisdiction of federal courts. State conduct was, therefore, subject to judicial review.

At the time Chisholm was decided in 1793, there were a number of other suits against other states still pending. One case was Vassall v. Massachusetts, in which a British subject (Vassall) sued the states of Massachusetts for violating the Treaty of Peace when the state confiscated his property. Senator Caleb Strong of Massachusetts was alarmed by the Supreme Court’s opinion and quickly proposed language to Congress that would become the 11th Amendment to U.S. Constitution. The Amendment was passed by Congress on March 4, 1794, and was ratified on February 7, 1795.

To understand how the Supreme Court has interpreted the 11th Amendment, check out this explainer from the National Constitution Center

In some early interpretations, the Amendment was not read expansively. In Cohens v. Virginia (1821), the Court rejected a challenge to its jurisdiction to review a state court decision in a criminal case, in which Virginia prosecuted two brothers from Virginia for the crime of selling lottery tickets. The Cohens defended on the ground that a federal statute authorized the lottery and ticket sales. The Court first concluded “that, as the [C]onstitution originally stood, the appellate jurisdiction of this Court, in all cases arising under the [C]onstitution, laws, or treaties of the United States, was not arrested by the circumstance that a State was a party.” Turning to the Eleventh Amendment, the Court noted that a defendant who seeks appellate review of an adverse decision “does not commence or prosecute a suit against the State.” Moreover, the Court said, the Amendment would not in any event apply because the Cohens were citizens of Virginia, and thus their appeal against Virginia was not “by a citizen of another State, or by a citizen or subject of any foreign State.”

In its 1890 decision in Hans v. Louisiana, the Supreme Court interpreted the Eleventh Amendment immunity broadly to prohibit suits against a state not only by citizens of another state, but also by a state’s own citizens, and in cases arising under federal law. It essentially disavowed the contrary language in Cohens. The HansCourt placed weight on the speed with which the Amendment was adopted, and suggested that Chisholmhad erred in upholding jurisdiction under the original Constitution, which could not have contemplated individual suits against states.

As Congress in the twentieth century increasingly enacted regulatory legislation that applied to the states, questions arose about whether federal statutes could be enforced against states through suits in federal court. InFitzpatrick v. Bitzer (1976), the Court held that Congress could subject states to suit in federal court through laws enacted under its Fourteenth Amendment power to redress discriminatory state action. In Pennsylvania v. Union Gas Co. (1989), five Justices voted to allow Congress to subject states to suit under the Superfund Act, enacted under Congress’ Article I power to regulate interstate commerce. There was no majority opinion, however.

The Court quickly reversed itself on this issue. In Seminole Tribe v. Florida (1996), the Court issued a majority opinion for five Justices holding that Congress lacked power to subject states to suit when it legislated under its Article I Commerce Clause powers. Since Seminole Tribe, the Court has reaffirmed this holding and for the most part has limited Congress’s ability to subject states to suit in federal court, unless Congress acts pursuant to its powers to enforce the Fourteenth Amendment (in part on the theory that it was adopted after the Eleventh Amendment), or for some bankruptcy issues.

The Supreme Court’s decisions afford states immunities from suit that appear to go beyond the terms of the Eleventh Amendment. For example, as noted, suits by individuals against their own state have been barred; suits by foreign states are also barred. The Court has further held that states enjoy immunity in state court from suits based on federal law. Alden v. Maine (1999). Moreover, states may “consent” to suits that appear to be barred by the Amendment. These decisions suggest that the Court may regard state sovereign immunity—the legal privilege by which the state government cannot be sued, at least in its own courts, without its consent–as an underlying constitutional “postulate,”—an assumption reflected but not fully captured by the words of the Eleventh Amendment.

At least three other approaches have attracted support. First, some argue that the Eleventh Amendment should be applied according to a simple literal reading of its text to bar suits against states by out-of-state citizens, and foreign citizens or subjects (but only by these parties), even if their claim is based on federal law. Others have argued that the Eleventh Amendment’s language tracks a “party-based” head of jurisdiction, and thus should not be understood to prevent federal courts from hearing suits against a state by citizens of another state if the claim arises under federal law. Still a third view regards the Eleventh Amendment as addressed to the courts, prohibiting them from construing Article III’s jurisdictional grants to abrogate a state’s common law immunity but allowing Congress to override such immunity if it clearly expresses its intent to subject states to suit. (The accompanying commentaries present further scholarly views.)

While the states continue to enjoy broad sovereign immunity from suit, the Supreme Court does allow suits against state officers in certain circumstances, thus mitigating the effect of sovereign immunity. In particular, the Court does not read the Amendment to bar suits against state officers that seek court orders to prevent future violations of federal law. Moreover, suits by otherstates, and suits by the United States to enforce federal laws, are also permitted. The Eleventh Amendment is thus an important part, but only a part, of a web of constitutional doctrines that shape the nature of judicial remedies against states and their officials for alleged violations of law.



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