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.

Following the Civil War, the Supreme Court refined Chief Justice John Marshall’s understanding of the scope of the Eleventh Amendment articulated in Osborn. In 1875, Congress effectively gave federal courts general federal question jurisdiction,1 at a time when a large number of states in the South were defaulting on their revenue bonds in violation of the Contract Clause of the Constitution.2 As bondholders sought relief in federal courts, the Supreme Court further developed its Eleventh Amendment jurisprudence in a series of cases, finding that the Eleventh Amendment precluded states from being sued by citizens of other states or by citizens or subjects of foreign states even if the case had arisen under the Constitution or laws of the United States.3 The Court further found that the Eleventh Amendment barred suits that were filed against state officers, rather than the state itself, if the state was indispensable to the suit.

While Chief Justice John Marshall’s 1821 Osborn decision had permitted the Bank of the United States to sue the officers of the state rather than the state itself and thereby avoided the Eleventh Amendment proscription, the postbellum Court adopted a more nuanced approach to the problem. In Louisiana v Jumel,4 and Hagood v. Southern,5 the Court held that plaintiffs could not seek relief from a state’s bond default by suing the state’s officers in federal court. In these cases, the Court reasoned that the party was, to all extents and purposes, the state and not the officers who acted on its behalf. In Hans v. Louisiana, the Court summarized its findings in these cases, stating “This court held that the suits were virtually against the States themselves and were consequently violative of the Eleventh Amendment of the Constitution and could not be maintained. It was not denied that they presented cases arising under the Constitution, but, notwithstanding that, they were held to be prohibited by the amendment referred to.” 6 The Jumel Court noted, however, that the outcome would have been different had the state agreed to the federal court’s jurisdiction.7 Similarly, in Cunningham v. Macon & Brunswick Railroad, the Court found that if a state was an indispensable party to a suit, the Court could not take the case even if the state itself was not sued.8

In In re Ayres, a federal court cited the Attorney General of Virginia for contempt when he disobeyed a federal court’s restraining order barring him from complying with a state law to pursue judgment against the Baltimore and Ohio Railroad, which had sought to pay its state taxes with possibly spurious state-issued coupons. The Court granted a writ of habeas corpus filed by the Attorney General and concluded that the proceeding, which had resulted in his imprisonment, was effectively a suit against the State and thus a federal court did not have jurisdiction to entertain it.9 In dicta, however, the Court clarified that suits could be pursued against officers of a state when their action violated the Constitution or federal law. The Court stated:

Footnotes

1

Act of March 3, 1875, ch. 137, § 1, 18 Stat. 470 ( “That the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several states; of all suits of a civil nature at common law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made under their authority.” ). Article III, Section 2, Clause 1, of the Constitution provides “the judicial power of the United States shall extend to all cases in Law and Equity arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made under their Authority,” federal courts have jurisdiction over cases concerning the Constitution or federal law. See discussion under “Development of Federal Question Jurisdiction,” supra.

2

See, e.g., J.V. Orth, The Eleventh Amendment and the North Carolina State Debt, 59 N.C. L. Rev. 747 (1981); J.V. Orth, The Fair Fame and Name of Louisiana: The Eleventh Amendment and the End of Reconstruction, 2 Tul. Law. 2 (1980); J. V. Orth, The Virginia State Debt and the Judicial Power of the United States, in Ambivalent Legacy: a Legal History of the South 106 (D. Bodenhamer & J. Ely eds., 1983).

3

U.S. Const. Art. III Sec. 2, Clause 1 “(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . .” ).

4

107 U.S. 711, 721 (1882) ( “The question, then, is whether the contract can be enforced, notwithstanding the Constitution, by coercing the agents and officers of the State, whose authority has been withdraw in violation of the contract, without the State itself in its political capacity being a party to the proceedings.” ) .

5

117 U.S. 52, 67 (1886) ( “Though not nominally a party to the record, it is the real and only party in interest, the nominal defendants being the officers and agents of the State, having no personal interest in the subject-matter of the suit, and defending only as representing the State . . . . The State is not only the real party to the controversy, but the real party against which relief is sought by the suit, and the suit is, therefore, substantially within the prohibition of the eleventh amendment . . . .” )

6

Hans v. Louisiana, 134 U.S. 1, 10 (1890).

7

Louisiana v. Jumel, 107 U.S. 711, 728 (1882) ( “When a State submits itself, without reservation, to the jurisdiction of a court in a particular case, that jurisdiction may be used to give full effect to what the State has by its act of submission allowed to be done; . . . But this is very far from authorizing the courts, when a State cannot be sued, to set up its jurisdiction over the officers in charge of the public moneys, so as to control them as against the political power in their administration of the finances of the State.” ).

8

Cunningham v. Macon and Brunswick R.R. 109 U.S. 446, 451 (1883) ( “[W]henever it can be clearly seen that the State is an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction.” )

9

123 U.S. 443, 505 (1887) ( “[B]y virtue of the eleventh Amendment to the Constitution, there being no remedy by a suit against the State, the contract is substantially without sanction, except that which arises out of the honor and good faith of the State itself, and these are not subject to coercion.” ).

10

Ex parte Ayers, 123 U.S. 443, 507 (1887).