Eleventh Amendment

Original public meaning

The Eleventh Amendment is unusual among the amendments in having a single, well-documented cause: it directly overrules a specific Supreme Court decision. Article III's original text extended the judicial power to "controversies ... between a State and Citizens of another State" without stating whether a state could only be a plaintiff. In Chisholm v. Georgia (1793), the Court read that grant to permit a state to be sued by an out-of-state citizen, reasoning (through Chief Justice Jay) that American sovereignty rests in the people rather than in the states, and that the constitutional text drew no distinction between a state as plaintiff or defendant. Justice Iredell alone dissented, on the narrower ground that no statute had prescribed a mode of proceeding against a state.

The decision provoked an immediate and nearly unanimous political reaction. Congress proposed the amendment within months of the decision, and it was ratified within two years — the fastest amendment process to that point, and one of only a few amendments enacted specifically to reverse a Supreme Court holding.

Hollingsworth v. Virginia (1798) settled two further questions about the amendment itself. First, joint resolutions proposing constitutional amendments need not be presented to the President under Art. I §7's Presentment Clause, because Art. V supplies its own self-contained amendment procedure. Second, the amendment applied retroactively: the Court held unanimously that "there could not be exercised any jurisdiction, in any case, past or future," in which a state was sued by an out-of-state or foreign citizen, foreclosing suits Chisholm had already authorized.

Later cases mark the doctrinal boundary of what counts as a suit "against" a state. Cohens v. Virginia (1821) held the amendment does not bar Supreme Court appellate review of a state's own criminal judgments on federal questions, even though the state is the prosecuting party. Osborn v. Bank of the United States (1824) permitted suit against state officers enforcing an unconstitutional state law rather than against the state itself, holding that Eleventh Amendment immunity attaches only where a state is named as a party "on the record": "It may... be laid down as a rule, which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party named in the record." — Osborn v. Bank of the United States, quoted in Joseph Story, Commentaries on the Constitution, ch. 38 n.184 (1833). Bank of the United States v. Planters' Bank of Georgia (1824) held that a state-chartered corporation in which the state holds shares is not "the State" for immunity purposes, because a state that becomes a corporator "devests itself ... of its sovereign character" as to that corporation's transactions.

See State Sovereign Immunity for the doctrine these cases together establish.

Ratification-era debate

Opponents of the proposed Constitution had already raised, during ratification, the concern that Article III sec. 2 cl. 1's grant of judicial power over "Controversies ... between a State and Citizens of another State" could subject a nonconsenting state to suit. Responses to the concern were conflicting: at the Virginia convention George Mason objected to making states suable, while James Madison and John Marshall both denied states could be made party defendants and Edmund Randolph — a delegate and a member of the Committee of Detail — granted that states could be, and ought to be, subject to suit. James Wilson seemed to agree with Randolph in the Pennsylvania convention, while Hamilton, in *Federalist* No. 81, denied state suability. Congress's 1789 Judiciary Act gave the Supreme Court original jurisdiction over suits between states and citizens of other states, the provision Alexander Chisholm sued under. Chisholm thus resolved a genuine, recorded ratification-era ambiguity — one the ratifying conventions did not settle among themselves — against the position Madison, Marshall, Hamilton, and Mason (from the opposite political direction) had all separately taken.

The Virginia convention floor exchange, verbatim

Mason's objection, Madison's and Marshall's denial that a state could be sued as defendant, and Henry's rebuttal — summarized above from secondary reconstruction — are each recorded in Elliot's transcript of the 19-20 June 1788 floor debate. Mason first pressed the enforceability of any judgment reached against a nonconsenting state:

"What is to be done if a judgment be obtained against a state? Will you issue a fieri facias? It would be ludicrous to say that you could put the state's body in jail. How is the judgment, then, to be enforced? A power which cannot be executed ought not to be granted." — George Mason, Virginia Convention, 18 June 1788

James Madison answered that the grant runs only one direction — letting a state sue an out-of-state citizen, not the reverse:

"Its jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court." — James Madison, Virginia Convention, 20 June 1788

John Marshall gave the same one-way construction the next day, conceding the asymmetry openly rather than explaining it away:

"I see a difficulty in making a state defendant, which does not prevent its being plaintiff. If this be only what cannot be avoided, why object to the system on that account?" — John Marshall, Virginia Convention, 20 June 1788

Patrick Henry rejected Madison's and Marshall's plaintiff-only reading on the clause's own words, arguing the text draws no such distinction — the same textual point Chisholm would vindicate five years later:

"What says the paper? That it shall have cognizance of controversies between a state and citizens of another state, without discriminating between plaintiff and defendant. What says the honorable gentleman? The contrary — that the state can only be plaintiff. When the state is debtor, there is no reciprocity." — Patrick Henry, Virginia Convention, 20 June 1788

key-insight

Henry's "without discriminating between plaintiff and defendant" is the same reading Chief Justice Jay's Chisholm opinion later adopts as the clause's plain meaning (see Chisholm v. Georgia) — a ratification-era Anti-Federalist objection anticipating, on identical textual grounds, the exact holding this Amendment was drafted to reverse. Madison's and Marshall's Virginia-convention denials that a state could be sued did not survive Chisholm; Henry's reading of the unamended text did.

New York's ratifying convention put the same concern into a formal floor resolution rather than a speaker's aside. As the committee worked through Article III without recorded debate, Mr. Jones proposed nine numbered amendments; the fourth barred state suability outright, five years before Chisholm and seven before this Amendment:

"Resolved, as the opinion of this committee, that nothing in the Constitution now under consideration contained, is to be construed to authorize any suit to be brought against any state, in any manner what ever." — Mr. Jones's proposed resolution (Res. 4), New York Convention, 1788

key-insight

Jones's resolution shows the New York convention treated state suability as a live, contestable reading of Art. III's text — not a settled question the Virginia and Pennsylvania exchanges (above) left open only in scattered individual statements. It is not yet confirmed in this wiki whether the resolution survived into New York's final list of recommended amendments transmitted with its ratification instrument; that check awaits ingest of the instrument's own text (see Elliot's Debates (Vol. II)).

Ratification certified

Congress proposed the Amendment by a resolution of 2 Dec. 1793, the date its own certification message later cites (below). Ratification proceeded state by state over four years — Elliot's Debates records New York, Massachusetts, Vermont, New Hampshire, Georgia, and Delaware ratifying by the second session of the Third Congress, Rhode Island and North Carolina adding their ratifications at the first session of the Fourth Congress, and a March 1797 congressional resolution asking President Washington to solicit confirmation from the eight states still silent. President Adams certified the result once the Secretary of State's count reached three-fourths:

"This amendment having been adopted by three fourths of the several states, may now be declared to be a part of the Constitution of the United States." — President John Adams, message to Congress, 8 Jan. 1798, quoted in Elliot's Debates vol. 1

This certification predates by weeks the same year's decision in Hollingsworth v. Virginia, which independently confirmed the Amendment applied retroactively to bar suits Chisholm had already authorized.

Postbellum jurisprudence

Following the Civil War, as a number of Southern states defaulted on Reconstruction-era bonds in violation of the Contract Clause, bondholders turned to the federal courts, which had recently received general federal-question jurisdiction. Louisiana v. Jumel (1882) and Hagood v. Southern (1886) held that plaintiffs could not evade a state's immunity by suing its officers when the suit's real object was, in substance, relief from the state's own default; In re Ayers (1887) held a federal court lacked jurisdiction to entertain a suit that would functionally compel a state to honor a repudiated bond obligation, even where styled against the state's attorney general, while clarifying in dicta that officers acting in violation of the Constitution or federal law under color of state authority remain personally answerable — a "double fiction" that Ex parte Young (1908) later built into the modern doctrine of officer suits. Most significantly, Hans v. Louisiana (1890) held that states are immune from suit even by their own citizens on federal questions, extending the Amendment's protection well beyond its literal text — see State Sovereign Immunity for the doctrine Hans founded.

Modern doctrine — general scope of sovereign immunity

Hans's premise that the Eleventh Amendment merely exemplifies a broader, unwritten sovereign-immunity principle governs the modern cases. Ex parte New York (No. 1), 256 U.S. 490 (1921), extended the immunity to suits in admiralty despite the Amendment's text speaking only of "suit[s] in law or equity." Seminole Tribe of Florida v. Florida (1996) held Congress cannot use Article I powers to abrogate that immunity, overruling Pennsylvania v. Union Gas Co. (1989). Alden v. Maine (1999) extended the immunity to bar private suits against nonconsenting states in their own state courts. Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002), extended it further still, to quasi-judicial proceedings before federal agencies. Most recently, Franchise Tax Board of California v. Hyatt (2019) — overruling Nevada v. Hall (1979) — extended sovereign immunity to bar private suits against a state in the courts of another state, holding that immunity "neither derives from, nor is limited by, the terms of the Eleventh Amendment" but is instead embedded in the constitutional design itself.

Modern doctrine — waiver and abrogation

A state may waive its own immunity, but the Court construes waiver strictly: a general statutory authorization "to sue and be sued" ordinarily does not suffice, and waiver must be stated "in the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction." PennEast Pipeline Co. v. New Jersey (2021) found an exception through the "plan of the Convention" itself, holding the states implicitly consented at the founding to suits by private parties exercising federally delegated eminent-domain power. Torres v. Texas Department of Public Safety (2022) extended that same "plan of the Convention" theory to the Army Clause, holding the states implicitly agreed at ratification that their sovereignty would yield to federal war-powers policy, including private USERRA damages suits against a state employer.

Congressional abrogation is narrower still. Seminole Tribe of Florida v. Florida forecloses ordinary Article I abrogation. Fitzpatrick v. Bitzer (1976) holds Congress can abrogate immunity through legislation enforcing the Fourteenth Amendment's Section 5, because that later-ratified amendment qualifies the Eleventh. Atascadero State Hospital v. Scanlon (1985) requires that any abrogation — Section 5 or otherwise — be stated with "unmistakable clarity" in the statute's text; Central Virginia Community College v. Katz, 546 U.S. 356 (2006), is a narrow exception, holding the Bankruptcy Clause itself effected abrogation for core bankruptcy proceedings without need for such statutory clarity. Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc. (2023) applied Atascadero's unmistakable-clarity rule outside the state-immunity context proper, holding that the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) did not abrogate the sovereign immunity of a territorial entity it created, because Congress had not made its intent to abrogate unmistakably clear in the statute's text.

Modern doctrine — officer suits and Ex parte Young

Modern doctrine distinguishes a suit "against" a state from a suit against a state officer who, under the Ex parte Young fiction, is treated as acting outside his lawful authority — and so outside the state's own immunity — when enforcing an unconstitutional law. That fiction has been progressively narrowed. Pennhurst State School & Hospital v. Halderman (1984) held Young does not permit suits against state officers for violations of state law, because Young's rationale — promoting the supremacy of federal law — disappears when only state law is at issue; the Court there reaffirmed the older doctrine, first stated in Governor of Georgia v. Madrazo (1828), that some suits nominally against officers are actually suits against the state, as when the suit involves state property or relief that itself calls for the exercise of official authority.

Edelman v. Jordan (1974) drew a further line between prospective and retroactive relief: federal courts may order state officials to comply with federal law going forward, but a suit "seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment," even styled against an officer. Milliken v. Bradley ("Milliken II") and Papasan v. Allain both apply that prospective/retroactive line — the latter claim-by-claim within a single suit.

Idaho v. Coeur d'Alene Tribe of Idaho (1997) narrowed Young further for suits functionally seeking to strip a state of title to sovereign lands, and Whole Woman's Health v. Jackson (2021) — arising from a challenge to the Texas Heartbeat Act's privatized-enforcement scheme — confirmed that a Young suit may proceed only against an officer with an actual enforcement connection to the challenged law, barring the suit against state-court judges and clerks (not subject to suit under Young) and Texas's attorney general (who lacked S.B. 8 enforcement power), while permitting it against state medical-licensing officials who had some such power.

Modern doctrine — tort actions against state officials

The Amendment does not bar tort suits against state officials in their individual capacity. Tindal v. Wesley (1897) adopted the rule of United States v. Lee, 106 U.S. 196 (1882) (a federal-officer case), to permit a tort action against state officials to recover property they wrongfully held and to obtain damages for the period of withholding. Scheuer v. Rhodes (1974) confirmed there is no blanket "executive immunity" from suit for state officials sued for depriving plaintiffs of federal rights and seeking to impose personal liability; such suits instead turn on qualified immunity, which varies with the scope of the official's discretion and the circumstances at the time of the challenged action.