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.

In its 1890 decision, Hans v. Louisiana, the Supreme Court adopted Justice James Iredell’s position in Chisholm v. Georgia, that the states, as sovereigns, were immune from suit by their citizens under long-standing principles grounded in the common law.1 In Hans v. Louisiana,2 a resident of Louisiana brought a suit against that state in federal court under federal question jurisdiction, alleging a violation of the Contract Clause in the state’s repudiation of its obligation to pay interest on certain bonds. Admitting that the Amendment on its face prohibited only entertaining a suit against a state by citizens of another state, or citizens or subjects of a foreign state, the Court reasoned that the scope of the Eleventh Amendment was informed by the scope of Article III, Section 2, Clause 1, which provided federal courts jurisdiction over suits between a state and citizens of another state and foreign States, citizens or subjects. The court noted that the Eleventh Amendment was a result of the “shock of surprise throughout the country” at the Chisholm decision, which contravened long-established common law precedent that a sovereign cannot be sued absent its consent, and reflected the general consensus that the decision was wrong, and that federal jurisdiction did not extend to making defendants of unwilling states in lawsuits brought by individuals.3

In the Hans Court’s view, the Eleventh Amendment reversed an erroneous decision and restored the proper interpretation of the Constitution. Delivering the Court’s opinion, Justice Joseph Bradley stated: “The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States. The suability of a State without its consent was a thing unknown to the law.” 4 The Court reasoned that the Eleventh Amendment’s silence on whether a citizen of a state could sue that state should not be construed as permitting such suits. Instead “the manner in which [Chisholm] was received by the country, the adoption of the Eleventh Amendment, the light of history and the reason of the thing,” 5 led the Court unanimously to hold that states could not be sued by their own citizens on grounds arising under the Constitution and laws of the United States.

In line with Hans, the Court held, in Ex parte New York (No. 1),6 that, absent its consent, a state was immune to suit in admiralty, the Eleventh Amendment’s reference to “any suit in law or equity” notwithstanding. Writing for the Court, Justice Mahlon Pitney stated: “That a State may not be sued without its consent is a fundamental rule of jurisprudence . . . of which the Amendment is but an exemplification . . . . It is true the Amendment speaks only of suits in law or equity; but this is because the Amendment was the outcome of a purpose to set aside the effect of the decision of this court in Chisholm v. Georgia from which it naturally came to pass that the language of the Amendment was particularly phrased so as to reverse the construction adopted in that case.” 7 Just as Hans v. Louisiana had demonstrated the “impropriety of construing the Amendment” so as to permit federal question suits against a state, Justice Mahlon Pitney reasoned, “it seems to us equally clear that it cannot with propriety be construed to leave open a suit against a State in the admiralty jurisdiction by individuals, whether its own citizens or not.” 8

The Court has continued to rely on Hans9 although support for it has not been universal.10 In 1996, the Court further solidified Hans in Seminole Tribe of Florida v. Florida,11 holding that Congress lacks power under Article I to abrogate state immunity under the Eleventh Amendment. And, in 1999, the Court ruled in Alden v. Maine12 that the broad principle of sovereign immunity reflected in the Eleventh Amendment bars suits against states in state courts as well as federal.

Having previously reserved the question of whether federal statutory rights could be enforced in state courts,13 the Court in Alden v. Maine14 held that states could also assert Eleventh Amendment “sovereign immunity” in their own courts. Recognizing that the application of the Eleventh Amendment, which limits only the federal courts, was a “misnomer” 15 as applied to state courts, the Court nonetheless concluded that the principles of common law sovereign immunity applied absent “compelling evidence” that the states had surrendered such by ratifying the Constitution. Although this immunity is subject to the same limitations as apply in federal courts, the Court’s decision effectively limited applying significant portions of federal law to state governments.16 Both Seminole Tribe and Alden were 5-4 decisions with four dissenting Justices maintaining that Hans was wrongly decided.

This split continued with Federal Maritime Commission v. South Carolina State Ports Authority,17 which held that state sovereign immunity also applies to quasi-judicial proceedings in federal agencies. In this case, the operator of a cruise ship devoted to gambling had been denied entry to the Port of Charleston, and subsequently filed a complaint with the Federal Maritime Commission, alleging a violation of the Shipping Act of 1984.18 Justice Stephen Breyer, writing for the four dissenting Justices, emphasized the executive (as opposed to judicial) nature of such agency adjudications, noting that the ultimate enforcement of such proceedings in federal court was exercised by a federal agency (as is allowed under the doctrine of sovereign immunity). The majority, however, while admitting to a “relatively barren historical record,” presumed that when a proceeding was “unheard of” at the time of the founding of the Constitution, it could not subsequently be applied in derogation of a “State’s dignity” within our system of federalism.19

Footnotes

1

134 U.S. 1 (1890).

2

Id. at 11.

3

Id. at 13–14.

4

Id. at 15, 16.

5

134 U.S. at 18. The Court acknowledged that Chief Justice John Marshall’s opinion in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 382–83, 406–07, 410–12 (1821), was to the contrary, but observed that the language was unnecessary to the decision and thus dictum, “and though made by one who seldom used words without due reflection, ought not to outweigh the important considerations referred to which lead to a different conclusion.” 134 U.S. at 20.

6

256 U.S. 490 (1921).

7

Id. at 497–98.

8

Id. at 498. See also Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670 (1982); Welch v. Texas Dep’t of Highways and Transp., 483 U.S. 468 (1987).

9

E.g., Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97–103 (1984) (opinion of the Court by Justice Lewis Powell); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237–40, 243–44 n.3 (1985) (opinion of the Court by Justice Lewis Powell); Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472–74, 478–95 (1987) (plurality opinion of Justice Lewis Powell); Pennsylvania v. Union Gas Co., 491 U.S. 1, 29 (1989) (Justice Antonin Scalia concurring in part and dissenting in part); Dellmuth v. Muth, 491 U.S. 223, 227–32 (1989) (opinion of the Court by Justice Anthony Kennedy); Hoffman v. Connecticut Dep’t of Income Maintenance, 492 U.S. 96, 101 (1989) (plurality opinion of Justice Byron White); id. at 105 (concurring opinions of Justices Sandra Day O’Connor and Antonin Scalia); Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990) (opinion of the Court by Justice Sandra Day O’Connor).

10

E.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985) (dissenting); Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 496 (1987) (dissenting); Dellmuth v. Muth, 491 U.S. 223, 233 (1989) (dissenting); Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 309 (1990) (concurring). Joining Justice William Brennan were Justices Thurgood Marshall, Harry Blackmun, and John Stevens. See also Pennsylvania v. Union Gas Co., 491 U.S. 1, 23 (1989) (Justice Stevens concurring).

11

517 U.S. 44 (1996).

12

527 U.S. 706 (1999).

13

Employees of the Dep’t of Public Health and Welfare v. Department of Public Health and Welfare, 411 U.S. 279, 287 (1973). 16. 527 U.S. 706 (1999).

14

527 U.S. 706 (1999).

15

527 U.S. at 713.

16

Note, however, that at least one subsequent decision has seemingly enhanced the applicability of federal law to the states themselves. In PennEast Pipeline Co. v New Jersey (595 U.S. —), the Court held that a private company that was granted authority to exercise eminent domain by the federal government could exercise that authority to take possession of property interests owned by a state.

17

535 U.S. 743 (2002). Justice Breyer’s dissenting opinion describes a need for “continued dissent” from the majority’s sovereign immunity holdings. 535 U.S. at 788.

18

46 U.S.C. §§ 40101 et seq.

19

535 U.S. at 755, 760.