Amendment 11 — Nature Of States Immunity

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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.

Hans v. Louisiana and Ex parte New York note that Chisholm was erroneously decided and that the Amendment’s intent was to restore the “original understanding” that a state could not be sued without its consent, and that nothing in the Constitution, including Article III’s grants of federal court jurisdiction, was intended to provide otherwise. In Edelman v. Jordan,[1](https://www.law.cornell.edu/constitution-conan/amendment-11/nature-of-states-immunity#fn1amd11 " 415 U.S. 651 (1974). ") 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. The Court stated: “[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](https://www.law.cornell.edu/constitution-conan/amendment-11/nature-of-states-immunity#fn2amd11 " 415 U.S. at 678. The Court relied on Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459 (1945), where the issue was whether state officials who had voluntarily appeared in federal court had authority under state law to waive the state’s immunity. Edelman has been followed in Sosna v. Iowa, 419 U.S. 393, 396 n.2 (1975); Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977), with respect to the Court’s responsibility to raise the Eleventh Amendment jurisdictional issue on its own motion. ") But that the bar is not wholly jurisdictional seems established as well.[3](https://www.law.cornell.edu/constitution-conan/amendment-11/nature-of-states-immunity#fn3amd11 " See Patsy v. Florida Board of Regents, 457 U.S. 496, 515–16 n.19 (1982), in which the Court bypassed the Eleventh Amendment issue, which had been brought to its attention, because of the interest of the parties in having the question resolved on the merits. See id. at 520 (Justice Lewis Powell dissenting). ")

Moreover, if under Article III there is no jurisdiction of suits against states, the settled principle that states may consent to suit[4](https://www.law.cornell.edu/constitution-conan/amendment-11/nature-of-states-immunity#fn4amd11 " Clark v. Barnard, 108 U.S. 436 (1883). ") becomes conceptually difficult, as jurisdiction may not be conferred if the state refuses its consent.[5](https://www.law.cornell.edu/constitution-conan/amendment-11/nature-of-states-immunity#fn5amd11 " E.g., People’s Band v. Calhoun, 102 U.S. 256, 260–61 (1880). See Justice Lewis Powell’s explanation in Patsy v. Florida Board of Regents, 457 U.S. 496, 528 n.13 (1982) (dissenting) (no jurisdiction under Article III of suits against unconsenting states). ") And Article III jurisdiction exists for some suits against states, such as those brought by the United States or by other states.[6](https://www.law.cornell.edu/constitution-conan/amendment-11/nature-of-states-immunity#fn6amd11 " See, e.g., the Court’s express rejection of the Eleventh Amendment defense in these cases. United States v. Texas, 143 U.S. 621 (1892); South Dakota v. North Carolina, 192 U.S. 286 (1904). ") Furthermore, Congress is able, in some instances, to legislate away state immunity,[7](https://www.law.cornell.edu/constitution-conan/amendment-11/nature-of-states-immunity#fn7amd11 " E.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989). ") although it may not enlarge Article III jurisdiction.[8](https://www.law.cornell.edu/constitution-conan/amendment-11/nature-of-states-immunity#fn8amd11 " The principal citation is Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803). ") 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,” while acknowledging that “[a] sovereign’s immunity may be waived.” [9](https://www.law.cornell.edu/constitution-conan/amendment-11/nature-of-states-immunity#fn9amd11 " Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 99 (1984). ")

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](https://www.law.cornell.edu/constitution-conan/amendment-11/nature-of-states-immunity#fn10amd11 " As Justice Oliver Holmes explained, the doctrine is based “on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). Of course, when a state is sued in federal court pursuant to federal law, the Federal Government, not the defendant state, is “the authority that makes the law” creating the right of action. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 154 (1996) (Souter, J., dissenting). For the history and jurisprudence, see Lewis J. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1 (1963). ") Modern case law supports this view. In the 1999 Alden v. Maine decision, the Court stated: “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](https://www.law.cornell.edu/constitution-conan/amendment-11/nature-of-states-immunity#fn11amd11 " Alden v. Maine, 527 U.S. 706, 713 (1999). ") The Court, in dealing with questions of governmental immunity from suit, has traditionally treated precedents dealing with state immunity and those dealing with Federal Governmental immunity interchangeably.[12](https://www.law.cornell.edu/constitution-conan/amendment-11/nature-of-states-immunity#fn12amd11 " See, e.g., United States v. Lee, 106 U.S. 196, 210–14 (1882); Belknap v. Schild, 161 U.S. 10, 18 (1896); Hopkins v. Clemson Agricultural College, 221 U.S. 636, 642–43, 645 (1911). ") Viewing the Amendment and Article III this way explains consent to suit as a waiver.[13](https://www.law.cornell.edu/constitution-conan/amendment-11/nature-of-states-immunity#fn13amd11 " A sovereign may consent to suit. E.g., United States v. Sherwood, 312 U.S. 584, 586 (1941); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 514 (1940). ") The limited effect of the doctrine in federal courts 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](https://www.law.cornell.edu/constitution-conan/amendment-11/nature-of-states-immunity#fn14amd11 " See Fletcher, supra. ")

Within the area of federal court jurisdiction, the issue becomes the extent to which the states, upon entering the Union, ceded their immunity to suit in federal court. Chisholm held—and the Eleventh Amendment reversed —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, recognized state immunity to suits based on federal causes of action.[15](https://www.law.cornell.edu/constitution-conan/amendment-11/nature-of-states-immunity#fn15amd11 " For a while only Justice William Brennan advocated this view, Parden v. Terminal Ry., 377 U.S. 184 (1964); Emps. of the Dep’t of Pub. Health and Welfare v. Dep’t of Pub. Health and Welfare, 411 U.S. 279, 298 (1973) (dissenting), but in time he was joined by three others. See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985) (Justice William Brennan, joined by Justices Thurgood Marshall, Harry Blackmun, and John Stevens, dissenting). ") Other cases have held that states ceded their immunity to suits by the United States or by other states.[16](https://www.law.cornell.edu/constitution-conan/amendment-11/nature-of-states-immunity#fn16amd11 " E.g., United States v. Texas, 143 U.S. 621 (1892); South Dakota v. North Carolina, 192 U.S. 286 (1904). See Kansas v. Colorado, 533 U.S. 1 (2001) (state may seek damages from another state, including damages to its citizens, provided it shows that the state has an independent interest in the proceeding). ")

Still another view of the Eleventh Amendment is that it embodies a state sovereignty principle limiting the Federal Government’s power.[17](https://www.law.cornell.edu/constitution-conan/amendment-11/nature-of-states-immunity#fn17amd11 " E.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); Quern v. Jordan, 440 U.S. 332, 337 (1979). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-11/nature-of-states-immunity#fn18amd11 " See Hutto v. Finney, 437 U.S. 678 (1978), in which the various opinions differ among themselves as to the degree of explicitness required. See also Quern v. Jordan, 440 U.S. 332, 343–45 (1979). As noted in the previous section, later cases stiffened the rule of construction. The parallelism of congressional power to regulate and to legislate away immunity is not exact. Thus, in Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279 (1973), the Court strictly construed congressional provision of suits as not reaching states, while in Maryland v. Wirtz, 392 U.S. 183 (1968), it had sustained the constitutionality of the substantive law. ")

Questions regarding the constitutional dimensions of sovereign immunity have 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 do