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The tragedy of the 11th Amendment

The Eleventh Amendment to the US Constitution is a rather arcane and little-known section of the Constitution. It is interesting, however, because it has a far larger, and more nefarious, impact on the American legal system than its inconspicuousness would belie.

When Aeschylus 2,500 years ago so accurately described the law : ‘let no man live uncurbed by law or curbed by tyranny’[1] he had the citizen, and his protection from other citizens, in mind. Government not bound by the law is far more dangerous than a citizen not bound by the law. ‘Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example’ goes a very famous dissent[2] – and so it must be able to be held to account when it violates the law. The Eleventh amendment, for reasons I shall explain, often prevents exactly this.

Let us begin with the text of 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.

The United States means the federal government, the judicial power thereof is the federal courts. The distinction between law and equity is immaterial.

The background to the idea of sovereign immunity, which the Eleventh protects is in order. Under common law, courts dispensed justice in the name of the king. Formally and initially the king himself tried cases and administered justice, but soon he came to delegate this to judges. It follows that since the king is the fount of justice and courts exist only by his order, he cannot be tried by them: rex non potest peccare, the king can do no wrong. This is the concept of sovereign immunity: the king, or a country, cannot be sued. In this country before 1947, the Crown was immune from all civil suit save by grant of petition of right. The monarch is still totally immune from suit or prosecution, and distraint cannot be levied on her property.

Under Article III of the Constitution (ratified in 1789), federal courts have subject-matter jurisdiction in cases about the federal Constitution, federal laws and treaties, admiralty or maritime law; personal jurisdiction cases in which the federal govt is a party, diversity cases (between citizens of two states), between a state and foreigners and between two states. Importantly, under Article III they can hear cases between a state and citizens of another state.

James Madison and John Marshall argued that states would enjoy sovereign immunity; that is, they couldn’t be sued in federal court, claiming the clause only allowed states to be plaintiffs against citizens of another state, not defendants in suits brought by citizens of another state.

Soon, in 1793, the Supreme Court had an opportunity to opine on sovereign immunity in its first ever decision of any importance. In the case of Chisholm v. Georgia, plaintiff Chisholm of South Carolina brought suit against state of Georgia to recover payment for military supplies sold to Georgia. That state argued it enjoyed sovereign immunity from such suit. The court, 4-1, disagreed. The Eleventh Amendment was swiftly ratified to overturn this decision. By its words, it prevents citizens of one state (or foreigners) suing another state in federal court.

In 1821, by then Chief Justice, John Marshall explained ‘its motive was not to maintain the sovereignty of a state from the degradation supposed to attend a compulsory appearance before the tribunal of the nation…[its motive was that] those who were inhibited from commencing a suit against a state…were persons who might probably be its creditors’[3]. The purpose, he said, is not to prevent states from appearing in federal court; after all, the Supreme Court has original jurisdiction in cases between two states; it is simply to prevent states from having to pay their debts to creditors from another state.

In 1890 in the case of Hans v. Louisiana, Louisianan holders of bonds issued by Louisiana sued that state in federal court when Louisiana defaulted on payments. In spite of the text of the amendment, the Supreme Court held that citizens could not sue their own state in federal court – states can’t be sued in federal court without their consent. The error is that the Eleventh bars only diversity suits; as Marshall said, its purpose is not to prevent the state appearing in federal court. That leaves common law, as opposed to constitutional, sovereign immunity. Surely the states surrendered this when entering the Union since the Supremacy Clause holds that, where there is a conflict between state and federal law, federal prevails.

In 1908 case of Ex parte Young the Court clarified its holding. Justice Peckham there held that a state official can be sued for violation of constitutional rights, Hans notwithstanding. The reasoning is that states have no power to act unconstitutionally, so any action depriving a citizen of his constitutional rights is null and void. The official who carried that action out cannot be acting for the state since the state has no power to violate the Constitution; so he is sued in his private capacity. This is a narrow technical point about the party of record, but it effectively allows state sovereign immunity to be abridged when the state acts unconstitutionally.

In 1976, the Court in Fitzpatrick v. Bitzer held that Congress can promulgate federal law abridging Eleventh in order to enforce the Fourteenth amendment (whose main provisions are equal protections of the law and a guarantee of due process of law). §5 of that amendment gives Congress the power to enforce it. Simply put, this means Congress can pass a statute to the effect that if a state violates the Fourteenth, you can sue it in federal court.

But then we get to Seminole Tribe of Florida v. Florida in 1996. The Indian Gaming Regulation Act required the states to negotiate with Indian tribes to create compacts governing Indian gaming. The statute itself is not of any interest; it provided that if a state failed to enter into such negotiations with Indian tribes as were required, the tribes could sue the state in federal court in order to compel the states to negotiate. Congress had asserted its power under the Commerce Clause of Article I to pass the statute: abrogating the immunity of states pursuant to its express power to regulate interstate commerce.

This case held that Article I (which gives Congress its legislative powers, including over interstate commerce) does not give Congress the power to abridge state sovereign immunity in passing general legislation; Congress can only abridge when enforcing the Constitution, primarily the Fourteenth Amendment. Note the parties in the case: both Floridian. The Eleventh should have nothing to do with this. Seminole Tribe is the full flowering of Hans v. Louisiana. Congress as a result cannot pass legislation to protect citizens from state governments except if the state government is violating the sections of the Constitution Congress has power to enforce.

Alden v. Maine three years later went even further. The Court there held that Congress cannot subject nonconsenting states to private suits for damages in its own courts. This is based not on the Eleventh – holding that the Eleventh has anything to do with state courts would be a step too far – but rather on federalism and the ‘structure of the Constitution’. I shan’t go into the federalism reasoning, but the result still pertinent to sovereign immunity.

So the Court, in my view, has massively increased the scope of the constitutional sovereign immunity – forbidding suit beyond diversity cases, and even forbidding suit in state courts.

But what is so bad about this? It can sound like mere jurisdictional technicalities.

The problem is that these persons were suing for recovery when a state had violated the law. Without consent of the state, it is very difficult to sue it for violation the law. This cuts at the very heart of what Aeschylus wrote. How in a democracy, where government derives its power from the people, such a rule preventing the people from holding to account in a court of law the government to which they have given rise is beyond me.

I shall quote from Justice Souter, who made clear the tragedy of Alden v. Maine in dissent:

‘There is much irony in the Court's profession that it grounds its opinion on a deeply rooted historical tradition of sovereign immunity, when the Court abandons a principle nearly as inveterate, and much closer to the hearts of the Framers: that where there is a right, there must be a remedy… Blackstone considered it "a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded."’[4]

Another dissenter in Alden, the late Justice John Paul Stevens, whose book has been useful in researching this topic, has suggested a constitutional amendment to overturn Hans and its progeny[5]. I agree.

[1] Eumenides (458 BCE) [2] Olmstead v. United States (1928), Brandeis, J., dissenting [3] Cohens v. Virginia (1821) [4] Alden v. Maine, Souter J., dissenting [5] See Six Amendments, Stevens, J.P. (

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