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.

Early Supreme Court decisions examined the Eleventh Amendment, although oftentimes in dictum.1 In Cohens v. Virginia,2 Chief Justice John Marshall, writing for the Court, ruled that prosecution of a writ of error to review a state court judgment alleged to violate the Constitution or laws of the United States did not commence or prosecute a suit against the state. Instead, it merely continued a suit that the state had commenced, and thus could be brought in federal court under section 25 of the Judiciary Act.3 In his Cohens opinion, the Chief Justice attributed the Eleventh Amendment’s adoption to concerns about creditors being able to sue states in federal courts for payment rather than general objections about states being subject to suit without their consent.4 He further stated his view that the Eleventh Amendment did not bar suits against states under federal question jurisdiction5 or reach suits against a state by its own citizens.6

Marshall further developed his Eleventh Amendment jurisprudence in Osborn v. Bank of the United States.7 Osborn concerned whether a state had authority to tax the Bank of the United States and whether federal courts could hear a suit against state officers seeking to collect a state tax from the bank notwithstanding the Eleventh Amendment.8 In resolving the dispute in favor of the bank, Marshall distinguished between suits against states and suits against state officers, ruling that the Eleventh Amendment barred suits where the state was the party of record rather than suits where the state merely had an interest in the result.9 Marshall further reasoned that a state officer cannot violate the Constitution under the cover of carrying out a state function.10 Consequently, Marshall’s Osborn ruling embodied two principles, one of which the Court soon abandoned and one of which has survived. The former holding was that a suit is not against a state unless the state is a named party of record.11 The latter holding provides that a state official possesses no official capacity when acting illegally and consequently can derive no protection from suit when acting under an unconstitutional state statute.12

Footnotes

1

Justice Bushrod Washington, on Circuit, held in United States v. Bright, 24 F. Cas. 1232 ( No. 14647) (C.C.D. Pa. 1809), that the Eleventh Amendment’s reference to “any suit in law or equity” excluded admiralty cases, so that states were subject to suits in admiralty. During this period, the Court did not rule on this understanding, see Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110, 124 (1828); 3 Joseph Story, Commentaries on the Constitution of the United States 560–61 (1833); United States v. Peters, 9 U.S. 115 (1809); Ex parte Madrazo, 32 U.S. (7 Pet.) 627 (1833). In 1921, the Court held it to be in error in Ex parte New York (No. 1), 256 U.S. 490 (1921).

2

19 U.S. (6 Wheat.) 264 (1821).

3

1 Stat. 73, 85.

4

Cohens, 19 U.S. at 406. Justice Marshall stated: “It is a part of our history that, at the adoption of the constitution, all the states were greatly indebted; and the apprehension that these debts might be prosecuted in the federal courts, formed a very serious objection to that instrument. Suits were instituted; and the court maintained its jurisdiction. . . . That 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, may be inferred from the terms of the amendment. It does not comprehend controversies between two or more states, or between a state and a foreign state. The jurisdiction of the court still extends to these cases: and in these, a state may still be sued. . . . Those who were inhibited from commencing a suit against a state, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister states would be creditors to any considerable amount, and there was reason to retain the jurisdiction of the court in those cases, because it might be essential to the preservation of peace. The amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by states.” 19 U.S. at 406–07.

5

Id. Justice John Marshall stated: “The powers of the Union, on the great subjects of war, peace and commerce, and on many others, are in themselves limitations of the sovereignty of the states; but in addition to these, the sovereignty of the states is surrendered, in many instances, where the surrender can only operate to the benefit of the people, and where, perhaps, no other power is conferred on Congress than a conservative power to maintain the principles established in the constitution . . . .[A]re we at liberty to insert in this general grant, an exception of those cases in which a state may be a party? Will the spirit of the constitution justify this attempt to control its words? We think it will not. We think a case arising under the constitution or laws of the United States, is cognizable in the courts of the Union, whoever may be the parties to that case.” 19 U.S. at 382–83.

6

Justice John Marshall stated: “If this writ of error be a suit, in the sense of the eleventh amendment, it is not a suit commenced or prosecuted ‘by a citizen of another state, or by a citizen or subject of any foreign state.’ It is not, then, within the amendment, but is governed entirely by the constitution as originally framed, and we have already seen, that in its origin, the judicial power was extended to all cases arising under the constitution or laws of the United States, without respect to parties.” 19 U.S. at 412 (citations omitted).

7

22 U.S. (9 Wheat.) 738 (1824)

8

The Bank of the United States was initially treated as if it were a private citizen, rather than as the United States itself, and hence a suit by it was a diversity suit by a corporation, as if it were a suit by the individual shareholders. Bank of the United States v. Deveaux, 9 U.S. (5 Cr.) 61 (1809).

9

Osborn v. Bank of the United States, 22 U.S. 738, 857 (1824) ( “[T]he eleventh amendment, which restrains the jurisdiction granted by the constitution over suits against States, is, of necessity, limited to those suits in which a State is a party of record.” ).

10

Id. at 868. For cases following Osborn, see Davis v. Gray, 16 Wall 203, 220 (1872) ( “In deciding who are parties to the suit the court will not look beyond the record. Making a state officer a party does not make the State a party, although her law may have prompted his action and the State may stand behind him as the real party in interest.” ); McComb v. Board of Liquidation, 92 U.S. 531 540, (1875) ( “A State, without its consent, cannot be sued by an individual; and a court cannot substitute its own discretion for that of executive officers in matters belonging to the proper jurisdiction of the latter. But it has been well settled, that, when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance; and when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it. . . . In either case, if the officer plead the authority of an unconstitutional law for the non-performance or violation of his duty, it will not prevent the issuing of the writ. An unconstitutional law will be treated by the courts as null and void.” ).

11

22 U.S. at 850–58. For a reassertion of the Chief Justice’s view of the limited effect of the Amendment, see id. at 857–58. But compare id. at 849. The holding was repudiated in Governor of Georgia v. Madrazo, wherein Marshall conceded that the suit had been brought against the governor solely in his official capacity and with the design of forcing him to exercise his official powers. Georgia v. Madrazo, 26 U.S. 110, 124 (1828) ( “[W]here the chief magistrate of a State is sued, not by his name, but by his style of office, and the claim made upon him is entirely in his official character, we think the State itself may be considered as a party on the record.” ). In determining whether a suit is prosecuted against a state “the Court will look behind and through the nominal parties on the record to ascertain who are the real parties to the suit.” In re Ayers, 123 U.S. 443, 487 (1887). See also Poindexter v. Greenhow, 114 U.S. 270, 287 (1885) ( “[T]he question whether a suit is within the prohibition of the eleventh Amendment is not always determined by reference to the nominal parties on the record.” ).

12

22 U.S. (9 Wheat.) 738 (1824).