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.

During the ratification debates, opponents of the proposed Constitution expressed concern that Article III, Section 2, Clause 1— “The judicial Power shall extend . . . to Controversies between two or more States;—between a State and Citizens of another State;—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” 1 —could subject a state to suits in federal courts without the state’s consent. These concerns were met with conflicting responses—some agreeing and others stating that the provision only applied when a state was the plaintiff.2

In 1789, Congress, enacted the Judiciary Act, providing the Supreme Court original jurisdiction over suits between states and citizens of other states.3 Alexander Chisholm, a citizen of South Carolina, sued the state of Georgia under the Act to recover under a contract for supplies executed with Georgia during the Revolution. In the Supreme Court’s 1793 decision, Chisholm v. Georgia,4 four of the five Justices agreed that a state could be sued under the Article III jurisdictional provision and that the Supreme Court properly had original jurisdiction of the case pursuant to section 13 of the Judiciary Act.5 The fifth, Justice James Iredell, reasoned that, as the common law barred suits against a sovereign, this principle applied to the states in their capacity as sovereigns and, consequently, states could not be subject to suit without their consent.6

By construing the Constitution to provide for a state to be sued by a citizen of another state in Chisholm,7 the Supreme Court led Georgia and the other states to amend the Constitution. As a result, at the first meeting of Congress following the decision, the Eleventh Amendment was proposed by an overwhelming vote of both Houses and ratified with “vehement speed.” 8 As proposed by Congress and ratified by the states, the Eleventh Amendment was directed at overturning the result in Chisholm and preventing suits against states by citizens of other states or by citizens or subjects of foreign jurisdictions.9 It did not, as other possible versions of the Amendment might have done, altogether bar suits against states in the federal courts.10 That is, the Eleventh Amendment barred suits against states with reference to their status as a plaintiff but did not address suits potentially based on subject matter.11

Footnotes

1

U.S. Const. art. III, § 2, cl. 1.

2

The Convention adopted this provision largely as it came from the Committee on Detail, without recorded debate. 2 The Records of the Federal Convention of 1787, at 423–25 (Max Farrand ed., 1937). In the Virginia ratifying convention, George Mason, who had refused to sign the proposed Constitution, objected to making states subject to suit, 3 Jonathan Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 526–27 (1836), but both James Madison and John Marshall (the latter had not been a delegate at Philadelphia) denied states could be made party defendants, id. at 533, 555–56, while Edmund Randolph (who had been a delegate, as well as a member of the Committee of Detail) granted that states could be and ought to be subject to suit. Id. at 573. James Wilson, a delegate and member of the Committee on Detail, seemed to say in the Pennsylvania ratifying convention that states would be subject to suit. 2 id. at 491. Hamilton, in The Federalist No. 81 (Alexander Hamilton), also denied state suability.

3

Ch. 20, § 13, 1 Stat. 80 (1789). For a thorough consideration of passage of the Act itself, see Julius Goebel, History of the Supreme Court of the United States, Antecedents and Beginnings to 1801, at 457–508 (1971).

4

Chishom v.Georgia, 2 U.S. (2 Dall.) 419 (1793).

5

Goebel, supra note 3, at 726–34.

6

Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 435 (1793) (Iredell, J.) ( “No other part of the common law of England, it appears to me, can have any reference to this subject, but that part of it which prescribes remedies against the crown. Every State in the Union in every instance where its sovereignty has not been delegated to the United States, I consider to be completely sovereign, as the United States are in respect to the power surrendered.” ). Justice James Iredell noted that the only circumstance under which the common law allowed such suits to proceed was when the sovereign consented to the suit. He said: “Thus, it appears, that in England even in case of a private debt contracted by the King, in his own person, there is no remedy but by petition, which must receive his express sanction, otherwise, there can be no proceeding upon it.” Id. at 445.

7

Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).

8

The phrase is Justice Felix Frankfurter’s, from Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 708 (1949) (dissenting), a federal sovereign immunity case. The amendment was proposed on March 4, 1794, when it passed the House and it was ratified on February 7, 1795, when the twelfth state acted, there then being fifteen states in the Union.

9

Hollingsworth, et al. v. Virginia, 3 U.S. (3 Dall.) 378 (1798) ( “[T]he [Eleventh] amendment being constitutionally adopted, there could not be exercised in any jurisdiction, in any case, past or future, in which a State was sued by the citizens of another State or by citizens or subjects of any foreign state.” ).

10

Goebel, supra note 3, at 736.

11

Party status is one part of the Article III grant of jurisdiction, as in diversity of citizenship of the parties; subject matter jurisdiction is the other part, as in federal question or admiralty jurisdiction.