1623

ELEVENTH AMENDMENT 

SUITS AGAINST STATES 

CONTENTS

Page

State Immunity .......................................................................................................................... 1625 

Purpose and Early Interpretation ..................................................................................... 1625 

Expansion of the Immunity of the States ................................................................. 1629 

The Nature of the States’ Immunity ................................................................................. 1633 

Suits Against States ........................................................................................................... 1636 

Consent to Suit and Waiver ....................................................................................... 1636 

Congressional Withdrawal of Immunity ................................................................... 1639 

Suits Against State Officials ..................................................................................................... 1643 

Tort Actions Against State Officials ................................................................................. 1651 

1625

1 C. WRIGHT, THE LAW OF FEDERAL COURTS § 48 at 286 (4th ed. 1983). 2 An extraordinary amount of writing on the Amendment and its interpretation 

has appeared in recent years. See, e.g., Field, The Eleventh Amendment and Other 

Sovereign Immunity Doctrines: Part One, 126 U. PA. L. REV. 515 (1978); Field, The

Eleventh Amendment and Other Sovereign Immunity Doctrines: Congressional Imposition of Suit Upon the States, 126 U. PA. L. REV. 1203 (1978); Baker, Federalism

and the Eleventh Amendment, 48 U. COLO. L. REV. 139 (1977); Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regulation: Separation of Powers 

Issues in Controversies About Federalism, 89 HARV. L. REV. 682 (1976); Gibbons, 

The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 

COLUM. L. REV. 1889 (1983); Fletcher, A Historical Interpretation of the Eleventh 

Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather 

than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033 (1983); Orth, The

Interpretation of the Eleventh Amendment, 1798–1908: A Case Study of Judicial 

Power, 1983 U. ILL. L. REV. 423; Nowak, The Scope of Congressional Power to Create 

Causes of Action Against State Government and the History of the Eleventh and 

Fourteenth Amendments, 75 COLUM. L. REV. 1413 (1975). 3 Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793). 

SUITS AGAINST STATES 

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. 

STATE SOVEREIGN IMMUNITY 

Purpose and Early Interpretation 

Eleventh Amendment jurisprudence has become over the years 

esoteric and abstruse and the decisions inconsistent. At the same 

time, it is a vital element of federal jurisdiction that ‘‘go[es] to the 

very heart of [the] federal system and affect[s] the allocation of 

power between the United States and the several states.’’ 1 Because

of the centrality of the Amendment at the intersection of federal judicial power and the accountability of the States and their officers 

to federal constitutional standards, it has occasioned considerable 

dispute within and without the Court. 2

The action of the Supreme Court in accepting jurisdiction of a 

suit against a State by a citizen of another State in 1793 3 provoked

such angry reaction in Georgia and such anxieties in other States 

that at the first meeting of Congress following the decision the 

Eleventh Amendment was proposed by an overwhelming vote of 

both Houses and ratified with, what was for that day, ‘‘vehement 

1626 AMENDMENT 11—SUITS AGAINST STATES 

4The phrase is Justice 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; 

ratification occurred on February 7, 1795, when the twelfth State acted, there then 

being fifteen States in the Union. 5The Convention adopted this provision largely as it came from the Committee 

on Detail, without recorded debate. 2 M. FARRAND, THE RECORDS OF THE FEDERAL

CONVENTION OF 1787 423–25 (rev. 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 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 526–27 (1836), but both 

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 Randolph 

(who had been a delegate, as well as a member of the Committee on 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. See

Hamilton, in THE FEDERALIST No. 81 (Modern Library ed. 1937), also denying state 

suability. See Fletcher, supra at 1045–53 (discussing sources and citing other discussions). 6 Ch. 20, § 13, 1 Stat. 80 (1789). See also Fletcher, supra, at 1053–54. For a 

thorough consideration of passage of the Act itself, see J. GOEBEL, HISTORY OF THE

SUPREME COURT OF THE UNITED STATES: VOL. 1, ANTECEDENTS AND BEGINNINGS TO

1801 457–508 (1971). 7 Id. at 723–34; Fletcher, supra, at 1054–58. 

8 Id. at 1058–63; Goebel, supra, at 736. 

speed.’’ 4 Chisholm had been brought under that part of the jurisdictional provision of Article III that authorized cognizance of ‘‘controversies ... between a State and Citizens of another State.’’ At the 

time of the ratification debates, opponents of the proposed Constitution had objected to the subjection of a State to suits in federal 

courts and had been met with conflicting responses—on the one 

hand, an admission that the accusation was true and that it was 

entirely proper so to provide, and, on the other hand, that the accusation was false and the clause applied only when a State was the 

party plaintiff. 5 So matters stood when Congress, in enacting the 

Judiciary Act of 1789, without recorded controversy gave the Supreme Court original jurisdiction of suits between States and citizens of other States. 6 Chisholm v. Georgia was brought under this 

jurisdictional provision to recover under a contract for supplies executed with the State during the Revolution. Four of the five Justices agreed that a State could be sued under this Article III jurisdictional provision and that under section 13 the Supreme Court 

properly had original jurisdiction. 7

The Amendment proposed by Congress and ratified by the 

States was directed specifically toward overturning the result in 

Chisholm and preventing suits against States by citizens of other 

States or by citizens or subjects of foreign jurisdictions. It did not, 

as other possible versions of the Amendment would have done, altogether bar suits against States in the federal courts. 8 That is, it 

AMENDMENT 11—SUITS AGAINST STATES 1627

9Party 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. 

10One square holding, however, was that of Justice Washington, on Circuit, in 

United States v. Bright, 24 Fed. Cas. 1232 (C.C.D.Pa. 1809) (No. 14,647), 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. This understanding, see

Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110, 124 (1828); 3 J. STORY, COMMENTARIES OF THE CONSTITUTION OF THE UNITED STATES 560–61 (1833), did not receive a holding of the Court during this period, see Georgia v. Madrazo, supra; 

United States v. Peters, 9 U.S. (5 Cr.) 115 (1809); Ex parte Madrazo, 32 U.S. (7 Pet.) 

627 (1833), and was held to be in error in Ex parte New York (No. 1), 256 U.S. 490 

(1921).

11 19 U.S. (6 Wheat.) 264 (1821). 

12 1 Stat. 73, 85. 

13 ‘‘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. The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this 

amendment was proposed in congress, and adopted by the state legislatures. 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. We 

must ascribe the amendment, then, to some other cause than the dignity of a state. 

There is no difficulty in finding this cause. 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. 

barred suits against States based on the status of the party plaintiff and did not address the instance of suits based on the nature 

of the subject matter. 9 The early decisions seemed to reflect this 

understanding of the Amendment, although the point was not necessary to the decisions and thus the language is dictum. 10 In

Cohens v. Virginia, 11 Chief Justice Marshall ruled for the Court 

that the prosecution of a writ of error to review a judgment of a 

state court alleged to be in violation of the Constitution or laws of 

the United States did not commence or prosecute a suit against the 

State but was simply a continuation of one commenced by the 

State, and thus could be brought under § 25 of the Judiciary Act 

of 1789. 12 But in the course of the opinion, the Chief Justice attributed adoption of the Eleventh Amendment not to objections to subjecting States to suits per se but to well-founded concerns about 

creditors being able to maintain suits in federal courts for payment, 13 and stated his view that the Eleventh Amendment did not 

1628 AMENDMENT 11—SUITS AGAINST STATES 

14 ‘‘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. The maintenance of these 

principles in their purity, is certainly among the great duties of the government. 

One of the instruments by which this duty may be peaceably performed, is the judicial department. It is authorized to decide all cases of every description, arising 

under the constitution or laws of the United States. From this general grant of jurisdiction, no exception is made of those cases in which a state may be a party. . 

. . [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. 

15 ‘‘If this writ of error be a suit, in the sense of the 11th 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. 

16 22 U.S. (9 Wheat.) 738 (1824). 

17The Bank of the United States was 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). 

18 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, 26 U.S. (1 Pet.) 110 (1828), in which 

it was 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. 

It is now well settled that 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).

bar suits against the States under federal question jurisdiction 14

and did not in any case reach suits against a State by its own citizens. 15

In Osborn v. Bank of the United States, 16 the Court, again 

through Chief Justice Marshall, held that the Bank of the United 

States 17 could sue the Treasurer of Ohio, over Eleventh Amendment objections, because the plaintiff sought relief against a state 

officer rather than against the State itself. This ruling embodied 

two principles, one of which has survived and one of which the 

Marshall Court itself soon abandoned. The latter holding was that 

a suit is not one against a State unless the State is a named party 

of record. 18 The former holding, the primary rationale through 

which the strictures of the Amendment are escaped, is that a state 

official possesses no official capacity when acting illegally and thus 

AMENDMENT 11—SUITS AGAINST STATES 1629

19 22 U.S. at 858-59, 868. For the flowering of the principle, see Ex parte Young, 

209 U.S. 123 (1908). 20 Act of March 3, 1875, ch. 137, § 1, 18 Stat. 470. See discussion under ‘‘Development of Federal Question Jurisdiction’’ supra. 21See, e.g., Orth, The Eleventh Amendment and the North Carolina State 

Debt, 59 N.C. L. REV. 747 (1981); Orth, The Fair Fame and Name of Louisiana: The 

Eleventh Amendment and the End of Reconstruction, 2 TUL. LAW. 2 (1980); 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). 22 Ex parte New York (No. 1), 256 U.S. 490, 497 (1921). 23 E.g., In re Ayers, 123 U.S. 443 (1887); Hagood v. Southern, 117 U.S. 52 

(1886); The Virginia Coupon Cases, 114 U.S. 269 (1885); Cunningham v. Macon & 

Brunswick R.R., 109 U.S. 446 (1883); Louisiana v. Jumel, 107 U.S. 711 (1882). In 

Antoni v. Greenhow, 107 U.S. 769, 783 (1883), three concurring Justices propounded 

the broader reading of the Amendment which soon prevailed. 24 134 U.S. 1 (1890). 25 134 U.S. at 11. 

can derive no protection from an unconstitutional statute of a 

State. 19

Expansion of the Immunity of the States.—Until the period 

following the Civil War, Chief Justice Marshall’s understanding of 

the Amendment generally prevailed. But in the aftermath of that 

conflict, Congress for the first time effectively gave the federal 

courts general federal question jurisdiction, 20 and a large number 

of States in the South defaulted upon their revenue bonds in violation of the Contracts Clause of the Constitution. 21 As bondholders 

sought relief in federal courts, the Supreme Court gradually 

worked itself into the position of holding that the Eleventh Amendment, or more properly speaking the principles ‘‘of which the 

Amendment is but an exemplification,’’ 22 is a bar not only of suits 

against a State by citizens of other States, but also of suits brought 

by citizens of that State itself. 23

Expansion as a formal holding occurred in Hans v. Louisiana, 24 a suit against the State by a resident of that State 

brought in federal court under federal question jurisdiction, alleging a violation of the Contracts Clause in the State’s repudiation 

of its obligation to pay interest on certain bonds. Admitting that 

the Amendment on its face prohibited only the entertaining of a 

suit against a State by citizens of another State, or citizens or subjects of a foreign state, the Court nonetheless thought the literal 

language was an insufficient basis for decision. Rather, wrote Justice Bradley for the Court, the Eleventh Amendment was a result 

of the ‘‘shock of surprise throughout the country’’ at the Chisholm decision and reflected the determination that the decision 

was wrong and that federal jurisdiction did not extend to making 

defendants of unwilling States. 25

1630 AMENDMENT 11—SUITS AGAINST STATES 

26 134 U.S. at 14-15. 27 134 U.S. at 15-16. 28 134 U.S. at 18-19. The Court acknowledged that Chief Justice 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. 29 256 U.S. 490 (1921). 30 256 U.S. at 497-98. 

Under this view, the amendment reversed an erroneous decision and restored the proper interpretation of the Constitution. The 

views of the opponents of subjecting States to suit ‘‘were most sensible and just’’ and those views ‘‘apply equally to the present case 

as to that then under discussion. The letter is appealed to now, as 

it was then, as a ground for sustaining a suit brought by an individual against a State. The reason against it is as strong in this 

case as it was in that. It is an attempt to strain the Constitution 

and the law to a construction never imagined or dreamed of.’’ 26

‘‘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.’’ 27 Thus, while the literal terms of the Amendment did not so provide, ‘‘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,’’ 28 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. 

Then, in Ex parte New York (No. 1), 29 the Court held that, absent consent to suit, a State was immune to suit in admiralty, the 

Eleventh Amendment’s reference to ‘‘any suit in law or equity’’ notwithstanding. ‘‘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.’’ 30 Just as Hans v. Louisiana had demonstrated the ‘‘impropriety of construing the Amendment’’ so as to permit federal 

question suits against a State, so ‘‘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 

AMENDMENT 11—SUITS AGAINST STATES 1631

31 256 U.S. at 498. See also Florida Dep’t of State v. Treasure Salvors, 458 U.S. 

670 (1982). And see Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 

468 (1987). 32 California v. Deep Sea Research, Inc., 523 U.S. 491 (1998) (application of the 

Abandoned Shipwreck Act) (distinguishing Ex parte New York and Treasure Salvors 

as involving in rem actions against property actually in possession of the State). 33Principality of Monaco v. Mississippi, 292 U.S. 313, 322–23 (1934) (quoting

THE FEDERALIST, No. 81); Breard v. Greene, 523 U.S. 371, 377 (1998) (foreign nation 

may not contest validity of criminal conviction after State’s failure at time of arrest 

to comply with notice requirements of Vienna Convention on Consular Relations). 

Similarly, the Court has recently held, relying on Monaco, the Amendment bars 

suits by Indian tribes against non-consenting states. Blatchford v. Native Village of 

Noatak, 501 U.S. 775 (1991). 34 E.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (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 Brennan were Justices Marshall, Blackmun, and Stevens. See also Pennsylvania v. Union Gas Co., 491 U.S. 1, 23 (1989) (Justice Stevens concurring). 35 E.g., Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97–103 

(1984) (opinion of the Court by Justice Powell); Atascadero State Hosp. v. Scanlon, 

473 U.S. 234, 237–40, 243–44 n.3 (1985) (opinion of the Court by Justice Powell); 

Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472–74, 478–95 

(1987) (plurality opinion of Justice Powell); Pennsylvania v. Union Gas Co., 491 U.S. 

1, 29 (1989) (Justice Scalia concurring in part and dissenting in part); Dellmuth v. 

Muth, 491 U.S. 223, 227–32 (opinion of the Court by Justice Kennedy); Hoffman v. 

Connecticut Dep’t of Income Maintenance, 492 U.S. 96, 101 (1989) (plurality opinion 

of Justice White); id. at 105 (concurring opinions of Justices O’Connor and Scalia); 

Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990) (opinion of 

the Court by Justice O’Connor). 

citizens or not.’’ 31 An in rem admiralty action may be brought, 

however, if the State is not in possession of the res. 32

And in extending protection against suits brought by foreign 

governments, the Court made clear the immunity flowed not from 

the Eleventh Amendment but from concepts of state sovereign immunity generally. ‘‘Manifestly, we cannot . . . assume that the letter of the Eleventh Amendment exhausts the restrictions upon 

suits against nonconsenting States. Behind the words of the constitutional provisions are postulates which limit and control. There 

is the . . . postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their 

consent, save where there has been ‘a surrender of this immunity 

in the plan of the convention.’’’ 33

In the 1980s four Justices, led by Justice Brennan, argued that 

Hans was incorrectly decided, that the Amendment was intended 

only to deny jurisdiction against the States in diversity cases, and 

that Hans and its progeny should be overruled. 34 But the remaining five Justices adhered to Hans and in fact stiffened it with a 

rule of construction quite severe in its effect. 35 The Hans interpretation was further solidified with the Court’s ruling in Seminole

1632 AMENDMENT 11—SUITS AGAINST STATES 

36 517 U.S. 44 (1996). 37 527 U.S. 706 (1999). 38 Employees of the Dep’t of Public Health and Welfare v. Department of Public 

Health and Welfare, 411 U.S. 279, 287 (1973). 39 Alden v. Maine, 527 U.S. 706 (1999). 40 527 U.S. at 713. 41 Chief Justice Rehnquist wrote the opinion of the Court in Seminole Tribe,

joined by Justices O’Connor, Scalia, Kennedy, and Thomas. Justice Stevens dissented, as did Justice Souter, whose opinion was joined by Justices Ginsburg and 

Breyer. In Alden, Justice Kennedy wrote the opinion of the Court, joined by the 

Chief Justice, and by Justices O’Connor, Scalia, and Thomas. Justice Souter’s dissenting opinion was joined by Justices Stevens, Ginsburg, and Breyer. 42 122 S. Ct. 1864 (2002). Justice Breyer’s dissenting opinion describes a need 

for ‘‘continued dissent’’ of the majority’s sovereign immunity holdings. 122 S. Ct. at 

1889.43 46 U.S.C. App. §1701 et. seq. (1994 ed. And Supp V). 

Tribe of Florida v. Florida, 36 that Congress lacks the power under 

Article I to abrogate state immunity under the Eleventh Amendment, and with its ruling in Alden v. Maine 37 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, 38 the Court in 

Alden v. Maine 39 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’’ 40 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 the ratification of the Constitution. 

Although this immunity is subject to the same limitations as apply 

in federal courts, the Court’s decision effectively limited the application of significant portions of federal law to state governments. 

Both Seminole Tribe and Alden were also 5–4 decisions with the 

four dissenting Justices maintaining that Hans was wrongly decided. 41

This now institutionalized 5-4 split continued with the Court’s 

ruling in Federal Maritime Commission v. South Carolina State 

Ports Authority, 42 which held that state sovereign immunity also 

applies to quasi-judicial proceedings in federal agencies. 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. 43 Justice Breyer, writing for the four dissenting justices, emphasized the executive (as opposed to judicial nature) of 

such agency adjudications, and pointed out that the ultimate enforcement of such proceedings in federal court was exercised by a 

AMENDMENT 11—SUITS AGAINST STATES 1633

44 122 S. Ct. at 1872, 1874. 45 E.g., Employees of the Dep’t of Public Health and Welfare v. Department of 

Public Health and Welfare, 411 U.S. 279, 291–92 (1973) (Justice Marshall concurring); Nevada v. Hall, 440 U.S. 410, 420–21 (1979); Patsy v. Florida Board of Regents, 457 U.S. 496, 520 (1982) (Justice Powell dissenting); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 64 (1996). 46 415 U.S. 651 (1974). 47 415 U.S. at 678. The Court relied on Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945), where the issue was whether state officials who had voluntarily appeared in federal court had authority under state law to waive the State’s 

immunity. Edelman has been followed in Sosna v. Iowa, 419 U.S. 393, 396 n.2 

(1975); Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977), with respect to the Court’s responsibility to raise the Eleventh Amendment jurisdictional 

issue on its own motion. 48See Patsy v. Florida Board of Regents, 457 U.S. 496, 515–16 n.19 (1982), in 

which the Court bypassed the Eleventh Amendment issue, which had been brought 

to its attention, because of the interest of the parties in having the question resolved 

on the merits. See id. at 520 (Justice Powell dissenting). 49 Clark v. Barnard, 108 U.S. 436 (1883). 

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. 44

The Nature of the States’ Immunity 

A great deal of the difficulty in interpreting and applying the 

Eleventh Amendment stems from the fact that the Court has not 

been clear, or at least has not been consistent, with respect to what 

the Amendment really does and how it relates to the other parts 

of the Constitution. One view of the Amendment, set out above in 

the discussion of Hans v. Louisiana, Ex parte New York, and Principality of Monaco, is that Chisholm was erroneously decided and 

that the Amendment’s effect, its express language notwithstanding, 

was to restore the ‘‘original understanding’’ that Article III’s grants 

of federal court jurisdiction did not extend to suits against the 

States. That view finds present day expression. 45 It explains the 

decision in Edelman v. Jordan, 46 in which the Court held that a 

State could properly raise its Eleventh Amendment defense on appeal after having defended and lost on the merits in the trial court. 

‘‘[I]t has been well settled . . . that the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so 

that it need not be raised in the trial court.’’ 47 But that the bar 

is not wholly jurisdictional seems established as well. 48

Moreover, if under Article III there is no jurisdiction of suits 

against States, the settled principle that States may consent to 

suit 49 becomes conceptually difficult, inasmuch as it is not possible 

1634 AMENDMENT 11—SUITS AGAINST STATES 

50 E.g., People’s Band v. Calhoun, 102 U.S. 256, 260–61 (1880). See Justice Powell’s explanation in Patsy v. Florida Board of Regents, 457 U.S. 496, 528 n.13 (1982) 

(dissenting) (no jurisdiction under Article III of suits against unconsenting States). 51See, e.g., the Court’s express rejection of the Eleventh Amendment defense in 

these cases. United States v. Texas, 143 U.S. 621 (1892); South Dakota v. North 

Carolina, 192 U.S. 286 (1904). 52 E.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Pennsylvania v. Union Gas 

Co., 491 U.S. 1 (1989). 53The principal citation is, of course, Marbury v. Madison, 5 U.S. (1 Cr.) 137 

(1803). 54Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 99 (1984). 55 As Justice Holmes explained, the doctrine is based ‘‘on the logical and practical ground that there can be no legal right as against the authority that makes 

the law on which the right depends.’’ Kawananakoa v. Polyblank, 205 U.S. 349, 353 

(1907). Of course, when a state is sued in federal court pursuant to federal law, the 

Federal Government, not the defendant state, is ‘‘the authority that makes the law’’ 

creating the right of action. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 

154 (1996) (Justice Souter dissenting). On the sovereign immunity of the United 

States, see supra pp. 746–48. For the history and jurisprudence, see Jaffe, Suits

Against Governments and Officers: Sovereign Immunity, 77 HARV. L. REV. 1 (1963). 56 Alden v. Maine, 527 U.S. 706, 713 (1999). 57See, e.g., United States v. Lee, 106 U.S. 196, 210–14 (1882); Belknap v. Schild, 

161 U.S. 10, 18 (1896); Hopkins v. Clemson Agricultural College, 221 U.S. 636, 642– 

43, 645 (1911). 58 A sovereign may consent to suit. E.g., United States v. Sherwood, 312 U.S. 

584, 586 (1941); United States v. United States Fidelity & Guaranty Co., 309 U.S. 

506, 514 (1940). 

to confer jurisdiction where it is lacking through the consent of the 

parties. 50 And there is jurisdiction under Article III of some suits 

against States, such as those brought by the United States or by 

other States. 51 And, furthermore, Congress is able in at least some 

instances to legislate away state immunity, 52 although it may not 

enlarge Article III jurisdiction. 53 The Court has recently declared 

that ‘‘the principle of sovereign immunity [reflected in the Eleventh 

Amendment] is a constitutional limitation on the federal judicial 

power established in Art. III,’’ but almost in the same breath has 

acknowledged that ‘‘[a] sovereign’s immunity may be waived.’’ 54

Another explanation of the Eleventh Amendment is that it recognizes the doctrine of sovereign immunity, which was clearly established at the time: a state was not subject to suit without its 

consent. 55 This view also has support in modern case law: ‘‘the 

State’s immunity from suit is a fundamental aspect of sovereignty 

which the States enjoyed before the ratification of the Constitution, 

and which they retain today . . .’’ 56 The Court in dealing with questions of governmental immunity from suit has traditionally treated 

interchangeably precedents dealing with state immunity and those 

dealing with federal governmental immunity. 57 Viewing the 

Amendment and its radiations into Article III in this way provides 

a consistent explanation of the consent to suit as a waiver. 58 The

limited effect of the doctrine in this context in federal court arises 

AMENDMENT 11—SUITS AGAINST STATES 1635

59See Fletcher, supra. 60 440 U.S. 410 (1979). 61 440 U.S. at 424 n.24. The Court looked to the full faith and credit clause as 

a possible constitutional limitation. The dissent would have found implicit constitutional assurance of state immunity as an essential component of federalism. Id. at 

427 (Justice Blackmun), 432 (Justice Rehnquist). 62For a while only Justice Brennan advocated this view, Parden v. Terminal 

Ry., 377 U.S. 184 (1964); Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279, 298 (1973) (dissenting), but in 

time he was joined by three others. See, e.g., Atascadero State Hosp. v. Scanlon, 473 

U.S. 234, 247 (1985) (Justice Brennan, joined by Justices Marshall, Blackmun, and 

Stevens, dissenting). 63 E.g., United States v. Texas, 143 U.S. 621 (1892); South Dakota v. North 

Carolina, 192 U.S. 286 (1904). See Kansas v. Colorado, 533 U.S. 1 (2001) (state may 

from the fact that traditional sovereign immunity arose in a unitary state, barring unconsented suit against a sovereign in its own 

courts or the courts of another sovereign. But upon entering the 

Union the States surrendered their sovereignty to some undetermined and changing degree to the national government, a sovereign that does not have plenary power over them but which is 

more than their coequal. 59

Thus, outside the area of federal court jurisdiction, there is the 

case of Nevada v. Hall, 60 which perfectly illustrates the difficulty. 

The case arose when a California resident sued a Nevada state 

agency in a California court because one of the agency’s employees 

negligently injured him in an automobile accident in California. 

While recognizing that the rule during the framing of the Constitution was that a State could not be sued without its consent in the 

courts of another sovereign, the Court discerned no evidence in the 

federal constitutional structure, in the specific language, or in the 

intention of the Framers that would impose a general, federal constitutional constraint upon the action of a State in authorizing suit 

in its own courts against another State. The Court did imply that 

in some cases a ‘‘substantial threat to our constitutional system of 

cooperative federalism’’ might arise and occasion a different result, 

but this was not such a case. 61

Within the area of federal court jurisdiction, the issue becomes 

the extent to which the States upon entering the Union gave up 

their immunity to suit in federal court. Chisholm held, and the 

Eleventh Amendment reversed the holding, that the States had 

given up their immunity to suit in diversity cases based on common law or state law causes of action; Hans v. Louisiana and subsequent cases held that the Amendment in effect codified an understanding of broader immunity to suits based on federal causes of 

action. 62 Other cases have held that the States did give up their 

immunity to suits by the United States or by other States and that 

subjection to suit continues. 63

1636 AMENDMENT 11—SUITS AGAINST STATES 

seek damages from another state, including damages to its citizens, provided it 

shows that the state has an independent interest in the proceeding). 64 E.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); Quern v. Jordan, 440 

U.S. 332, 337 (1979). 65See Hutto v. Finney, 437 U.S. 678 (1978), in which the various opinions differ 

among themselves on the degree of explicitness required. See also Quern v. Jordan, 

440 U.S. 332, 343–45 (1979). Later cases stiffened the rule of construction. See n.56,

infra, and text at nn. 79–84. The parallelism of congressional power to regulate and 

to legislate away immunity is not exact. Thus, in Employees of the Dep’t of Pub. 

Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279 (1973), 

the Court strictly construed congressional provision of suits as not reaching States, 

while in Maryland v. Wirtz, 392 U.S. 183 (1968), it had sustained the constitutionality of the substantive law. 66Gunter v. Atlantic Coast Line R.R., 200 U.S. 273, 284 (1906). 67Smith v. Reeves, 178 U.S. 436 (1900); Murray v. Wilson Distilling Co., 213 

U.S. 151, 172 (1909); Graves v. Texas Co., 298 U.S. 393, 403–04 (1936); Great 

Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944). 68Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 54 (1944); Ford Motor Co. 

v. Department of Treasury, 323 U.S. 459 (1945); Kennecott Copper Corp. v. State 

Tax Comm’n, 327 U.S. 573 (1947); Petty v. Tennessee-Missouri Bridge Comm’n, 359 

U.S. 275 (1959); Florida Dep’t of Health v. Florida Nursing Home Ass’n, 450 U.S. 

147 (1981). Compare Patsy v. Florida Bd. of Regents, 457 U.S. 496, 519 n.* (1982) 

(Justice White concurring), with id. at 522 and n.5 (Justice Powell dissenting). 

Still another view of the Eleventh Amendment is that it embodies a state sovereignty principle limiting the power of the Federal Government. 64 In this respect, the federal courts may not act 

without congressional guidance in subjecting States to suit, and 

Congress, which can act to the extent of its granted powers, is constrained by judicially-created doctrines requiring it to be explicit 

when it legislates against state immunity. 65

Suits Against States 

Aside from suits against States by the United States and by 

other States, there are permissible suits by individuals against 

States upon federal constitutional and statutory grounds and indeed upon grounds expressly covered by the Eleventh Amendment 

in somewhat fewer circumstances. 

Consent to Suit and Waiver.—The immunity of a State from 

suit is a privilege which it may waive at its pleasure. It may do 

so by a law specifically consenting to suit in the federal courts. 66

But the conclusion that there has been consent or a waiver is not 

lightly inferred; the Court strictly construes statutes alleged to consent to suit. Thus, a State may waive its immunity in its own 

courts without consenting to suit in federal court, 67 and a general 

authorization ‘‘to sue and be sued’’ is ordinarily insufficient to constitute consent. 68 ‘‘The Court will give effect to a State’s waiver of 

Eleventh Amendment immunity ‘only where stated by the most express language or by such overwhelming implication from the text 

as [will] leave no room for any other reasonable construction.’ . . . 

AMENDMENT 11—SUITS AGAINST STATES 1637

69Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305–06 (1990) 

(internal citations omitted; emphasis in original). 70 495 U.S. 299 (1990). 71 495 U.S. at 306-07. See, on the other hand, Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985). 72 377 U.S. 184 (1964). The alternative but interwoven ground had to do with 

Congress’ power to withdraw immunity. See also Petty v. Tennessee-Missouri Bridge 

Comm’n, 359 U.S. 275 (1959). 73 Edelman v. Jordan, 415 U.S. 651, 671–72 (1974). For the same distinction in 

the Tenth Amendment context, see National League of Cities v. Usery, 426 U.S. 833, 

854 n.18 (1976). 74 Edelman v. Jordan, 415 U.S. 651 (1974) (quoting id. at 673, Murray v. Wilson 

Distilling Co., 213 U.S. 151, 171 (1909)); Florida Dep’t of Health v. Florida Nursing 

Home Ass’n, 450 U.S. 147 (1981). Of the four Edelman dissenters, Justices Marshall 

and Blackmun found waiver through knowing participation, 415 U.S. at 688. In 

Florida Dep’t, Justice Stevens noted he would have agreed with them had he been 

on the Court at the time but that he would now adhere to Edelman. Id. at 151. 

A State does not waive its Eleventh Amendment immunity by consenting to suit only in its own courts . . . and ‘[t]hus, in order for 

a state statute or constitutional provision to constitute a waiver of 

Eleventh Amendment immunity, it must specify the State’s intention to subject itself to suit in federal court.’’’ 69

Thus, in Port Authority Trans-Hudson Corp. v. Feeney, 70 an expansive consent ‘‘to suits, actions, or proceedings of any form or nature at law, in equity or otherwise . . .’’ was deemed too ‘‘ambiguous 

and general’’ to waive immunity in federal court, since it might be 

interpreted to reflect only a State’s consent to suit in its own 

courts. But when combined with language specifying that consent 

was conditioned on venue being laid ‘‘within a county or judicial 

district, established by one of said States or by the United States, 

and situated wholly or partially within the Port of New York District,’’ waiver was effective. 71

While the Court in a few cases has found a waiver by implication, the current vitality of these cases is questionable. Thus, in 

Parden v. Terminal Railway, 72 the Court ruled that employees of 

a state-owned railroad could sue the State for damages under the 

Federal Employers’ Liability Act. One of the two primary grounds 

for finding lack of immunity was that by taking control of a railroad which was subject to the FELA, enacted some 20 years previously, the State had effectively accepted the imposition of the Act 

and consented to suit. 73 Distinguishing Parden as involving a proprietary activity, the Court subsequently refused to find any implied consent to suit by States participating in federal spending 

programs; participation was insufficient, and only when waiver has 

been ‘‘stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any 

other reasonable construction,’’ will it be found. 74 This aspect of 

1638 AMENDMENT 11—SUITS AGAINST STATES 

75Welch v. Texas Dep’t of Highways and Pub. Transp., 483 U.S. 468 (1987). Justice Powell’s plurality opinion was joined by Chief Justice Rehnquist and by Justices 

White and O’Connor. Justice Scalia, concurring, thought Parden should be overruled 

because it must be assumed that Congress enacted the FELA and other statutes 

with the understanding that Hans v. Louisiana shielded states from immunity. Id. 

at 495. 76 108 U.S. 436 (1883). 77Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466–467 (1945); 

Edelman v. Jordan, 415 U.S. 651, 677–678 (1974). 78Lapides v. Board of Regents of University System of Georgia, 122 S. Ct. 1640 

(2002). 79Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 400– 

01 (1979), citing Edelman v. Jordan, 415 U.S. 651 (1974); and Ford Motor Co. v. 

Department of Treasury, 323 U.S. 459 (1945). The fact that a state agency can be 

indemnified for the costs of litigation does not divest the agency of its Eleventh 

Amendment immunity. Regents of the University of California v. Doe, 519 U.S. 425 

(1997).

Parden has now been overruled, a plurality of the Court emphasizing that congressional abrogation of immunity must be express 

and unmistakable. 75

Similarly, a State may waive its immunity by initiating or participating in litigation. In Clark v. Barnard, 76 the State had filed 

a claim for disputed money deposited in a federal court, and the 

Court held that the State could not thereafter complain when the 

court awarded the money to another claimant. However, the Court 

is loath to find a waiver simply because of the decision of an official 

or an attorney representing the State to litigate the merits of a 

suit, so that a State may at any point in litigation raise a claim 

of immunity based on whether that official has the authority under 

state law to make a valid waiver. 77 However, this argument is only 

available when the State is brought into federal court involuntarily. If a State voluntarily agrees to removal of a state action to 

federal court, the Court has held it may not then invoke a defense 

of sovereign immunity and thereby gain an unfair tactical advantage. 78

With respect to governmental entities that derive their authority from the State, but are not the State, the Court closely examines state law to determine what the nature of the entity is, whether it is an arm of the State or whether it is to be treated like a 

municipal corporation or other political subdivision. An arm of the 

State has immunity: ‘‘agencies exercising state power have been 

permitted to invoke the Amendment in order to protect the state 

treasury from liability that would have had essentially the same 

practical consequences as a judgment against the State itself.’’ 79

Municipal corporations, though they partake under state law of the 

State’s immunity, do not have immunity in federal court and the 

AMENDMENT 11—SUITS AGAINST STATES 1639

80Lincoln County v. Luning, 133 U.S. 529 (1890); Chicot County v. Sherwood, 

148 U.S. 529 (1893); Workman v. City of New York, 179 U.S. 552 (1900); Moor v. 

County of Alameda, 411 U.S. 693 (1973); Mt. Healthy City Bd. of Educ. v. Doyle, 

429 U.S. 274 (1977). Notice that in National League of Cities v. Usery, 426 U.S. 833 

(1976), the Court extended the state immunity from regulation in that case to political subdivisions as well. 

81Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391 

(1979); Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275 (1959). 

82Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Hutto v. Finney, 437 U.S. 678 

(1978); City of Rome v. United States, 446 U.S. 156 (1980). More recent cases affirming Congress’ § 5 powers include: Pennhurst State School & Hosp. v. 

Halderman, 465 U.S. 89, 99 (1984); Atascadero State Hosp. v. Scanlon, 473 U.S. 

234, 238 (1985); Dellmuth v. Muth, 491 U.S. 223, 227 (1989). 

83Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). 

84 427 U.S. at 456 (under the Fourteenth Amendment, Congress may ‘‘provide 

for private suits against States or state officials which are constitutionally impermissible in other contexts.’’) 85 In Maher v. Gagne, 448 U.S. 122 (1980), the Court found that Congress could 

validly authorize imposition of attorneys’ fees on the State following settlement of 

a suit based on both constitutional and statutory grounds, even though settlement 

had prevented determination that there had been a constitutional violation. Maine 

v. Thiboutot, 448 U.S. 1 (1980), held that § 1983 suits could be premised on federal 

statutory as well as constitutional grounds. Other cases in which attorneys’ fees 

were awarded against States are Hutto v. Finney, 437 U.S. 678 (1978); and New 

York Gaslight Club v. Carey, 447 U.S. 54 (1980). 

States may not confer it. 80 Entities created through interstate compacts (subject to congressional approval) generally also are subject 

to suit. 81

Congressional Withdrawal of Immunity.—The Constitution 

grants to Congress power to legislate in ways that affect the States. 

At least in some instances when Congress does so, it may subject 

the States themselves to suit at the initiation of individuals to implement the legislation. The clearest example arises from the Reconstruction Amendments, which are direct restrictions upon state 

powers and which expressly provide for congressional implementing legislation. 82 Thus, ‘‘the Eleventh Amendment and the 

principle of state sovereignty which it embodies . . . are necessarily 

limited, by the enforcement provisions of § 5 of the Fourteenth 

Amendment.’’ 83 Dwelling on the fact that the Fourteenth Amendment was ratified after the Eleventh became part of the Constitution, the Court implied that earlier grants of legislative power to 

Congress in the body of the Constitution might not contain a similar power to authorize suits against the States. 84 The power to enforce the Civil War Amendments is substantive, however, not being 

limited to remedying judicially cognizable violations of the amendments, but extending as well to measures that in Congress’ judgment will promote compliance. 85 The principal judicial brake on 

this power to abrogate state immunity has been application of a 

1640 AMENDMENT 11—SUITS AGAINST STATES 

86 Even prior to the recent tightening of the rule to require clear expression in 

the statutory language itself (see n. and accompanying text, infra), application of the 

rule curbed congressional enforcement. Fitzpatrick v. Bitzer, 427 U.S. 445 451–53 

(1976); Hutto v. Finney, 437 U.S. 678, 693–98 (1978). Because of its rule of clear 

statement, the Court in Quern v. Jordan, 440 U.S. 332 (1979), held that in enacting 

42 U.S.C. § 1983, Congress had not intended to include States within the term ‘‘person’’ for the purpose of subjecting them to suit. The question arose after Monell v. 

New York City Dep’t of Social Services, 436 U.S. 658 (1978), reinterpreted ‘‘person’’ 

to include municipal corporations. Cf. Alabama v. Pugh, 438 U.S. 781 (1978). The 

Court has reserved the question whether the Fourteenth Amendment itself, without 

congressional action, modifies the Eleventh Amendment to permit suits against 

States, Milliken v. Bradley, 433 U.S. 267, 290 n.23 (1977), but the result in 

Milliken, holding that the Governor could be enjoined to pay half the cost of providing compensatory education for certain schools, which would come from the state 

treasury, and in Scheuer v. Rhodes, 416 U.S. 232 (1974), permitting imposition of 

damages upon the governor, which would come from the state treasury, is suggestive. But see Mauclet v. Nyquist, 406 F. Supp. 1233 (W.D.N.Y. 1976) (refusing 

money damages under the Fourteenth Amendment), appeal dismissed sub nom. 

Rabinovitch v. Nyquist, 433 U.S. 901 (1977). The Court declined in Ex parte Young, 

209 U.S. 123, 150 (1908), to view the Eleventh Amendment as modified by the Fourteenth. 87 491 U.S. 1 (1989). The plurality opinion of the Court was by Justice Brennan 

and was joined by the three other Justices who believed Hans was incorrectly decided. See id. at 23 (Justice Stevens concurring). The fifth vote was provided by Justice White, id. at 45, 55–56 (Justice White concurring), although he believed 

Hans was correctly decided and ought to be maintained and although he did not 

believe Congress had acted with sufficient clarity in the statutes before the Court 

to abrogate immunity. Justice Scalia thought the statutes were express enough but 

that Congress simply lacked the power. Id. at 29. Chief Justice Rehnquist and Justices O’Connor and Kennedy joined relevant portions of both opinions finding lack 

of power and lack of clarity. 88Parden v. Terminal Railway, 377 U.S. 184, 190–92 (1964). See also Employees

of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 

411 U.S. 279, 283, 284, 285–86 (1973). 89 Edelman v. Jordan, 415 U.S. 651, 672 (1974). 

clear statement rule requiring that congressional intent to subject 

States to suit must be clearly expressed. 86

In the 1989 case of Pennsylvania v. Union Gas Co., 87 the

Court—temporarily at least—ended years of uncertainty by holding 

expressly that Congress acting pursuant to its Article I powers may 

abrogate the Eleventh Amendment immunity of the states, so long 

as it does so with sufficient clarity. Twenty five years earlier the 

Court had stated that same principle, 88 but only as an alternative 

holding, and a later case had set forth a more restrictive rule. 89

The premises of Union Gas were that by consenting to ratification 

of the Constitution, with its Commerce Clause and other clauses 

empowering Congress and limiting the states, the states had implicitly authorized Congress to divest them of immunity, that the 

Eleventh Amendment was a restraint upon the courts and not 

similarly upon Congress, and that the exercises of Congress’ powers under the Commerce Clause and other clauses would be incomplete without the ability to authorize damage actions against the 

AMENDMENT 11—SUITS AGAINST STATES 1641

90 517 U.S. 44 (1996) (invalidating a provision of the Indian Gaming Regulatory 

Act authorizing an Indian tribe to sue a State in federal court to compel performance of a duty to negotiate in good faith toward the formation of a compact). 91 517 U.S. at 63. 92 134 U.S. 1 (1890). 93 517 U.S. at 64 (quoting Pennhurst State School & Hosp. v. Halderman, 465 

U.S. 89, 97–98 (1984). 94 517 U.S. at 72-73. Justice Souter’s dissent undertook a lengthy refutation of 

the majority’s analysis, asserting that the Eleventh Amendment is best understood, 

in keeping with its express language, as barring only suits based on diversity of citizenship, and as having no application to federal question litigation. Moreover, Justice Souter contended, the state sovereign immunity that the Court mistakenly recognized in Hans v. Louisiana was a common law concept that ‘‘had no constitutional 

status and was subject to congressional abrogation.’’ 517 U.S. at 117. The Constitution made no provision for wholesale adoption of the common law, but, on the contrary, was premised on the view that common law rules would always be subject 

to legislative alteration. This ‘‘imperative of legislative control grew directly out of 

the Framers’ revolutionary idea of popular sovereignty.’’ Id. at 160. 95 College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 

527 U.S. 666 (1999) (the Trademark Remedy Clarification Act, an amendment to the 

Lanham Act, did not validly abrogate state immunity); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) (amendment to patent laws abrogating state immunity from infringement suits is invalid); 

Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (abrogation of state immunity 

in the Age Discrimination in Employment Act is invalid). 96 427 U.S. 445 (1976). 

states to enforce congressional enactments. The dissenters denied 

each of these strands of the argument, and, while recognizing the 

Fourteenth Amendment abrogation power, would have held that 

none existed under Article I. 

Pennsylvania v. Union Gas lasted less than seven years before 

the Court overruled it in Seminole Tribe of Florida v. Florida. 90

Chief Justice Rehnquist, writing for a 5–4 majority, concluded that 

there is ‘‘no principled distinction in favor of the States to be drawn 

between the Indian Commerce Clause [at issue in Seminole

Tribe] and the Interstate Commerce Clause [relied upon in Union

Gas].’’ 91 In the majority’s view, Union Gas had deviated from a line 

of cases tracing back to Hans v. Louisiana 92 that viewed the Eleventh Amendment as implementing the ‘‘fundamental principle of 

sovereign immunity [that] limits the grant of judicial authority in 

Article III.’’ 93 Because ‘‘the Eleventh Amendment restricts the judicial power under Article III, . . . Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.’’ 94 Subsequent cases have confirmed this interpretation. 95

Section 5 of the Fourteenth Amendment, of course, is another 

matter. Fitzpatrick v. Bitzer, 96 ‘‘based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption of the Eleventh 

Amendment and the ratification of the Constitution, operated to 

alter the pre-existing balance between state and federal power 

1642 AMENDMENT 11—SUITS AGAINST STATES 

97 517 U.S. at 65-66. 98 Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) (emphasis supplied). 99See, particularly, Dellmuth v. Muth, 491 U.S. 223, 230 (1989) (‘‘legislative history generally will be irrelevant’’), and Hoffman v. Connecticut Dep’t of Income 

Maintenance, 492 U.S. 96, 103-04 (1989). 100 Justice Kennedy for the Court in Dellmuth, 491 U.S. at 231, expressly noted 

that the statute before the Court did not demonstrate abrogation with unmistakably 

clarity because, inter alia, it ‘‘makes no reference whatsoever to either the Eleventh 

Amendment or the States’ sovereign immunity.’’ Justice Scalia, one of four concurring Justices, expressed an ‘‘understanding’’ that the Court’s reasoning would allow 

for clearly expressed abrogation of immunity ‘‘without explicit reference to state sovereign immunity or the Eleventh Amendment.’’ Id. at 233. 101 Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985). And see 

Dellmuth v. Muth, 491 U.S. 223 (1989). 102Following Atascadero, in 1986 Congress provided that States were not to be 

immune under the Eleventh Amendment from suits under several laws barring discrimination by recipients of federal financial assistance. Pub. L. No. 99-506, § 1003, 

100 Stat. 1845 (1986), 42 U.S.C. § 2000d-7. Following Dellmuth, Congress amended 

the statute to insert the explicit language. Pub. L. No. 101-476, § 103, 104 Stat. 

1106 (1990), 20 U.S.C. § 1403. See also the Copyright Remedy Clarification Act, 

Pub. L. No. 101-553, § 2, 104 Stat. 2749 (1990), 17 U.S.C. § 511 (making States and 

state officials liable in damages for copyright violations). 103Kimel v. Florida Board of Regents, 528 U.S. 62, 74-78 (2000). In Kimel, statutory language authorized age discrimination suits ‘‘against any employer (including 

a public agency),’’ and a ‘‘public agency’’ was defined to include ‘‘the government of 

a State or political subdivision thereof.’’ The Court found this language to be suffiachieved by Article III and the Eleventh Amendment,’’ remains 

good law. 97

At the same time as these developments, however, a different 

majority secured a victory in circumscribing the manner in which 

Congress could express its decision to abrogate state immunity. 

Henceforth, and even with respect to statutes that were enacted 

prior to promulgation of the judicial rule of construction, ‘‘Congress 

may abrogate the States’ constitutionally secured immunity from 

suit in federal court only by making its intention unmistakably 

clear in the language of the statute’’ itself. 98 This means that no 

legislative history will suffice at all. 99 Indeed, at one time a plurality of the Court was of the apparent view that only if Congress 

refers specifically to state sovereign immunity and the Eleventh 

Amendment will its language be unmistakably clear. 100 Thus, the 

Court held in Atascadero that general language subjecting to suit 

in federal court ‘‘any recipient of Federal assistance’’ under the Rehabilitation Act was deemed insufficient to satisfy this test, not because of any question about whether States are ‘‘recipients’’ within 

the meaning of the provision but because ‘‘given their constitutional role, the States are not like any other class of recipients of 

federal aid.’’ 101 As a result of these rulings, Congress began to utilize the ‘‘magic words’’ the Court appeared to insist on. 102 More recently, however, the Court has accepted less precise language. 103

AMENDMENT 11—SUITS AGAINST STATES 1643

ciently clear evidence of intent to abrogate state sovereign immunity. The relevant 

portion of the opinion was written by Justice O’Connor, and joined by Chief Justice 

Rehnquist and Justices Stevens, Scalia, Souter, Ginsberg, Breyer and Stevens. But

see Raygor v. Regents of the University of Minnesota, 122 S. Ct. 999 (2002) (federal 

supplemental jurisdiction statute which tolls limitations period for state claims during pendency of federal case not applicable to claim dismissed on the basis of 11th 

Amendment immunity) . 104Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989). 105 Hilton v. South Carolina Pub. Rys. Comm’n, 502 U.S. 197, 206 (1991) (interest in ‘‘symmetry’’ is outweighed by stare decisis, the FELA action being controlled 

by Parden v. Terminal Ry. 

106See, e.g., Larson v. Domestic and Foreign Corp., 337 U.S. 682 (1949), where 

the majority and dissenting opinions utilize both federal and Eleventh Amendment 

cases in a suit against a federal official. See also Tindal v. Wesley, 167 U.S. 204, 

213 (1897), applying to the States the federal rule of United States v. Lee, 106 U.S. 

196 (1882). 107 C. WRIGHT, THE LAW OF FEDERAL COURTS § 48 (4th ed. 1983). 108 209 U.S. 123 (1908). 

Although acknowledging that the Eleventh Amendment was 

not an issue because the § 1983 suit had been pursued in state 

court, nonetheless the Court applied its strict rule of construction, 

requiring ‘‘unmistakable clarity’’ by Congress in order to subject 

States to suit, in holding that States and state officials sued in 

their official capacity could not be made defendants in § 1983 actions in state courts. 104 While the Court is willing to recognize exceptions to the clear statement rule when the issue involves subjection of states to suit in state courts, the Court will normally opt 

for ‘‘symmetry’’ that treats the states’ liability or immunity the 

same in both state and federal courts. 105

Suits Against State Officials 

Mitigation of the wrongs possible when the State is immune 

from suit has been achieved under the doctrine that sovereign immunity, either of the States or of the Federal Government, does not 

ordinarily prevent a suit against an official to restrain him from 

commission of a wrong, even though the government is thereby restrained. 106 The doctrine is built upon a double fiction: that for 

purposes of the sovereign’s immunity, a suit against the official is 

not a suit against the government, but for the purpose of finding 

state action to which the Constitution applies, the official’s conduct 

is that of the State. 107 The doctrine preceded but is most 

noteworthily associated with the decision in Ex parte Young, 108 a

case truly deserving the overworked adjective, seminal. 

Young arose when a state legislature passed a law reducing 

railroad rates and providing severe penalties for any railroad that 

failed to comply with the law. Plaintiff railroad stockholders 

brought an action to enjoin Young, the state attorney general, from 

enforcing the law, alleging that it was unconstitutional and that 

1644 AMENDMENT 11—SUITS AGAINST STATES 

109 In fact, the statute was eventually held to be constitutional. Minnesota Rate 

Cases (Simpson v. Shepard), 230 U.S. 352 (1913). 110Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). 111Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828). 112Davis v. Gray, 83 U.S. (16 Wall.) 203 (1872); Board of Liquidation v. 

McComb, 92 U.S. 531 (1875); Allen v. Baltimore & Ohio R.R., 114 U.S. 311 (1885); 

Rolston v. Missouri Fund Comm’rs, 120 U.S. 390 (1887); Pennoyer v. McConnaughy, 

140 U.S. 1 (1891); Reagan v. Farmers’ Loan & Trust Co., 154 U.S. 362 (1894); 

Smyth v. Ames, 169 U.S. 466 (1898); Scranton v. Wheeler, 179 U.S. 141 (1900). 113 United States v. Lee, 106 U.S. 196 (1882). See ‘‘Suits Against United States 

Officials’’ under Article III. The Court sustained the suit against the federal officers 

by only a 5-to-4 vote, the dissent presenting the arguments that were soon to inform 

Eleventh Amendment cases. 

they would suffer irreparable harm if he were not prevented from 

acting. An injunction was granted forbidding Young from acting on 

the law, an injunction he violated by bringing an action in state 

court against noncomplying railroads; for this action he was adjudged in contempt. If the Supreme Court had held that the injunction was not impermissible, because the suit was one against the 

State, there would have been no practicable way for the railroads 

to attack the statute without placing themselves in great danger. 

They could have disobeyed it and alleged its unconstitutionality in 

the enforcement proceedings, but if they were wrong about the 

statute’s validity the penalties would have been devastating. 109 In

the modern context, the effectuation of federal constitutional rights 

against state action often depends upon the imposition of affirmative obligations through injunctions, and this relief would be impossible if such an injunction were in effect a suit against a State. 

In deciding Young, the Court was confronted with inconsistent 

lines of cases, including numerous precedents for permitting suits 

against state officers. Chief Justice Marshall had begun the process 

in Osborn by holding that suit was barred only when the State was 

formally named a party, 110 although he was presently required to 

modify that decision and preclude suit when an official, the governor of a State, was sued in his official capacity. 111 Relying on 

Osborn and reading Madrazo narrowly, the Court, seeming to treat 

the barrier to suit as common-law sovereign immunity, held in a 

series of cases that an official of a State could be sued to prevent 

him from executing a state law in conflict with the Constitution or 

a law of the United States, and the fact that the officer may be acting on behalf of the State or in response to a statutory obligation 

of the State does not make the suit one against the State. 112 Soon,

however, the Court began developing a more expansive concept of 

the Eleventh Amendment and sovereign immunity, beginning with 

the first case in which the sovereign immunity of the United States 

was claimed and rejected 113 and the Hans v. Louisiana decision

AMENDMENT 11—SUITS AGAINST STATES 1645

114 134 U.S. 1 (1890). 115See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889, 1968–2003 (1983); Orth, The Interpretation 

of the Eleventh Amendment, 1798–1908: A Case Study of Judicial Power, 1983 U. 

ILL. L. REV. 423. 116 107 U.S. 711 (1882). 117 ‘‘The relief asked will require the officers against whom the process is issued 

to act contrary to the positive orders of the supreme political power of the State, 

whose creatures they are, and to which they are ultimately responsible in law for 

what they do. They must use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation when the same power has declared that it shall not be done.’’ 107 U.S. at 721. See also Christian v. Atlantic & 

N.C. R.R., 133 U.S. 233 (1890). 118 123 U.S. 443 (1887). 119 123 U.S. at 500-01, 502. 120 Ayers was a suit by plaintiffs seeking to enjoin state officials from bringing 

suit under an allegedly unconstitutional statute purporting to overturn a contract 

between the State and the bondholders to receive the bond coupons for tax payments. The Court asserted that the State’s contracts impliedly contained the State’s 

immunity from suit, so that express withdrawal of a supposed consent to be sued 

was not a violation of the contract; but, in any event, inasmuch as any violation of 

the assumed contract was an act of the State, to which the officials were not parties, 

their actions as individuals in bringing suit did not breach the contract. 123 U.S. 

at 503, 505-06. The rationale had been asserted by a four-Justice concurrence in 

Antoni v. Greenhow, 107 U.S. 769, 783 (1882). See also Cunningham v. Macon & 

Brunswick R.R., 109 U.S. 446 (1883); Hagood v. Southern, 117 U.S. 52 (1886); North 

reading broadly the effect of the adoption of the Eleventh Amendment. 114

The two leading cases, as were many cases of this period, were 

suits attempting to prevent Southern States from defaulting on 

bonds. 115 In Louisiana v. Jumel, 116 a Louisiana citizen sought to 

compel the state treasurer to apply a sinking fund that had been 

created under the earlier constitution for the payment of the bonds 

after a subsequent constitution had abolished this provision for retiring the bonds. The proceeding was held to be a suit against the 

State. 117 Then, In re Ayers 118 purported to supply a rationale for 

the cases permitting the issuance of mandamus or injunctive relief 

against state officers in a way that would have severely curtailed 

federal judicial power. Suit against a state officer was not barred 

when his action, aside from any official authority claimed as its 

justification, was a wrong simply as an individual act, such as a 

trespass, but if the act of the officer did not constitute an individual wrong and was something that only a State, through its officers, could do, the suit was in actuality a suit against the State and 

was barred. 119 That is, the unconstitutional nature of the state 

statute under which the officer acted stripped him of the State’s 

shield against suit, but it did not itself constitute a private cause 

of action. For that, one must be able to point to an independent violation of a common law right. 120

1646 AMENDMENT 11—SUITS AGAINST STATES 

Carolina v. Temple, 134 U.S. 22 (1890); In re Tyler, 149 U.S. 164 (1893); Baltzer 

v. North Carolina, 161 U.S. 240 (1896); Fitts v. McGhee, 172 U.S. 516 (1899); Smith 

v. Reeves, 178 U.S. 436 (1900). 121 Ayers ‘‘would seem to be decisive of the Young litigation.’’ C. WRIGHT, THE

LAW OF FEDERAL COURTS § 48 at 288 (4th ed. 1983). The Young Court purported 

to distinguish and to preserve Ayers but on grounds that either were irrelevant to 

Ayers or that had been rejected in the earlier case. Ex parte Young, 209 U.S. 123, 

151, 167 (1908). Similarly, in a later case, the Court continued to distinguish 

Ayers but on grounds that did not in fact distinguish it from the case before the 

Court, in which it permitted a suit against a state revenue commissioner to enjoin 

him from collecting allegedly unconstitutional taxes. Georgia R.R. & Banking Co. v. 

Redwine, 342 U.S. 299 (1952). 122 Ex parte Young, 209 U.S. 123, 159–60 (1908). The opinion did not address 

the issue of how an officer ‘‘stripped of his official . . . character’’ could violate the 

Constitution, inasmuch as the Constitution restricts only ‘‘state action,’’ but the double fiction has been expounded numerous times since. Thus, for example, it is well 

settled that an action unauthorized by state law is state action for purposes of the 

Fourteenth Amendment. Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 

(1913). The contrary premise of Barney v. City of New York, 193 U.S. 430 (1904), 

though eviscerated by Home Tel. & Tel. was not expressly disavowed until United 

States v. Raines, 362 U.S. 17, 25–26 (1960). 123 Ex parte Young, 209 U.S. 123, 173–74 (1908). In the process of limiting application of Young, a Court majority has recently referred to ‘‘the Young fiction.’’

Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 281 (1997). 124 E.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 156 n.6 (1978) (rejecting request of state officials being sued to restrain enforcement of state statute as preempted by federal law that Young be overruled); Florida Dep’t of State v. Treasure 

Salvors, 458 U.S. 670, 685 (1982). 

Although Ayers was in all relevant points on all fours with 

Young, 121 the Young Court held that the injunction had properly 

issued against the state attorney general, even though the State 

was in effect restrained as well. ‘‘The act to be enforced is alleged 

to be unconstitutional, and, if it be so, the use of the name of the 

state to enforce an unconstitutional act to the injury of the complainants is a proceeding without the authority of, and one which 

does not affect, the state in its sovereign or governmental capacity. 

It is simply an illegal act upon the part of a state official, in attempting by the use of the name of the state to enforce a legislative 

enactment which is void, because unconstitutional. If the act which 

the state Attorney General seeks to enforce be a violation of the 

federal Constitution, the officer in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subject in his person to the consequences of 

his individual conduct.’’ 122 Justice Harlan was the only dissenter, 

arguing that in law and fact the suit was one only against the 

State and that the suit against the individual was a mere ‘‘fiction.’’ 123

The ‘‘fiction’’ remains a mainstay of our jurisprudence. 124 It accounts for a great deal of the litigation brought by individuals to 

AMENDMENT 11—SUITS AGAINST STATES 1647

125See, e.g., Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913); 

Truax v. Raich, 239 U.S. 33 (1915); Cavanaugh v. Looney, 248 U.S. 453 (1919); Terrace v. Thompson, 263 U.S. 197 (1923); Hygrade Provision Co. v. Sherman, 266 U.S. 

497 (1925); Massachusetts State Grange v. Benton, 272 U.S. 525 (1926); Hawks v. 

Hamill, 288 U.S. 52 (1933). See also Graham v. Richardson, 403 U.S. 365 (1971) (enjoining state welfare officials from denying welfare benefits to otherwise qualified 

recipients because they were aliens); Goldberg v. Kelly, 397 U.S. 254 (1970) (enjoining city welfare officials from following state procedures for termination of benefits); 

Milliken v. Bradley, 433 U.S. 267 (1977) (imposing half the costs of mandated compensatory education programs upon State through order directed to governor and 

other officials). On injunctions against governors, see Continental Baking Co. v. 

Woodring, 286 U.S. 352 (1932); Sterling v. Constantin, 287 U.S. 378 (1932). Applicable to suits under this doctrine are principles of judicial restraint, constitutional, 

statutory, and prudential, discussed under Article III. 126 E.g., Edelman v. Jordan, 415 U.S. 651, 664–68 (1974); Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978). 127 E.g., Milliken v. Bradley, 433 U.S. 267 (1977); Edelman v. Jordan, 415 U.S. 

651, 664–68 (1974); Quern v. Jordan, 440 U.S. 332, 346–49 (1979). 128 E.g., Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Scully v. Bird, 209 U.S. 

481 (1908); Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912); Greene v. 

Louisville & Interurban R.R., 244 U.S. 499 (1977); Louisville & Nashville R.R. v. 

Greene, 244 U.S. 522 (1917). Property held by state officials on behalf of the State 

under claimed state authority may be recovered in suits against the officials, although the court may not conclusively resolve the State’s claims against it in such 

a suit. South Carolina v. Wesley, 155 U.S. 542 (1895); Tindal v. Wesley, 167 U.S. 

204 (1897); Hopkins v. Clemson College, 221 U.S. 636 (1911). See also Florida Dep’t 

of State v. Treasure Salvors, 458 U.S. 670 (1982), in which the eight Justices agreeing the Eleventh Amendment applied divided 4-to-4 over the proper interpretation. 129 E.g., Rolston v. Missouri Fund Comm’rs, 120 U.S. 390 (1887); Atchison, T. 

& S. F. Ry. v. O’Connor, 223 U.S. 280 (1912); Johnson v. Lankford, 245 U.S. 541, 

545 (1918); Lankford v. Platte Iron Works Co., 235 U.S. 461, 471 (1915); Davis v. 

Wallace, 257 U.S. 478, 482–85 (1922); Glenn v. Field Packing Co., 290 U.S. 177, 178 

(1933); Lee v. Bickell, 292 U.S. 415, 425 (1934). 130Typically, the plaintiff would be in federal court under diversity jurisdiction, 

cf. Martin v. Lankford, 245 U.S. 547, 551 (1918), perhaps under admiralty jurisdiction, Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670 (1982), or under federal question jurisdiction. Verizon Md. Inc. v. Public Serv. Comm’n of Md., 122 S. 

Ct. 1753 (2002). In the last instance, federal courts are obligated first to consider 

challenge the carrying out of state policies. Thus, suits against 

state officers alleging that they are acting pursuant to an unconstitutional statute are the standard device by which to test the validity of state legislation in federal courts prior to enforcement and 

thus interpretation in the state courts. 125 Similarly, suits to restrain state officials from taking certain actions in contravention of 

federal statutes 126 or to compel the undertaking of affirmative obligations imposed by the Constitution or federal laws 127 are common. 

For years, moreover, the accepted rule was that suits prosecuted 

against state officers in federal courts upon grounds that they are 

acting in excess of state statutory authority 128 or that they are not 

doing something required by state law 129 are not precluded by the 

Eleventh Amendment or its emanations of sovereign immunity, 

provided only that there are grounds to obtain federal jurisdiction. 130

1648 AMENDMENT 11—SUITS AGAINST STATES 

whether the issues presented may be decided on state law grounds before reaching 

federal constitutional grounds, and thus relief may be afforded on state law grounds 

solely. Cf. Siler v. Louisville & Nashville R.R., 213 U.S. 175, 193 (1909); Hagans 

v. Lavine, 415 U.S. 528, 546–47 & n.12 (1974). In a case removed from state court, 

presence of a claim barred by the Eleventh Amendment does not destroy jurisdiction 

over non-barred claims. Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381 

(1998). 131 465 U.S. 89 (1984). 132Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828). 133 E.g., Ford Motor Co. v. Department of the Treasury, 323 U.S. 459, 464 

(1945). 134Worcester County Co. v. Riley, 302 U.S. 292 (1937). See also Old Colony 

Trust Co. v. Seattle, 271 U.S. 426 (1926). Worcester County remains viable. Cory v. 

White, 457 U.S. 85 (1982). The actions were under the Federal Interpleader Act, 49 

Stat. 1096 (1936), 28 U.S.C. § 1335, under which other actions against officials have 

been allowed. E.g., Treines v. Sunshine Mining Co., 308 U.S. 66 (1939) (joinder of 

state court judge and receiver in interpleader proceeding in which State had no interest and neither judge nor receiver was enjoined by final decree). See also Missouri v. Fiske, 290 U.S. 18 (1933). 135Smith v. Reeves, 178 U.S. 436 (1900). 136 Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912). 137 322 U.S. 47 (1944). 

However, in Pennhurst State School & Hosp. v. Halderman, 131

the Court, five-to-four, held that Young did not permit suits in federal courts against state officers alleging violations of state law. In 

the Court’s view, Young was necessary to promote the supremacy 

of federal law, a basis that disappears if the violation alleged is of 

state law. The Court also still adheres to the doctrine, first pronounced in Madrazo, 132 that some suits against officers are ‘‘really’’ 

against the State 133 and are barred by the State’s immunity, such 

as when the suit involves state property or asks for relief which 

clearly calls for the exercise of official authority, such as paying 

money out of the treasury to remedy past harms. 

For example, a suit to prevent tax officials from collecting 

death taxes arising from the competing claims of two States as 

being the last domicile of the decedent floundered upon the conclusion that there could be no credible claim of violation of the Constitution or federal law; state law imposed the obligation upon the 

officials and ‘‘in reality’’ the action was against the State. 134 Suits

against state officials to recover taxes have also been made increasingly difficult to maintain. Although the Court long ago held that 

the sovereign immunity of the State prevented a suit to recover 

money in the state treasury, 135 it also held that a suit would lie 

against a revenue officer to recover tax moneys illegally collected 

and still in his possession. 136 Beginning, however, with Great

Northern Life Ins. Co. v. Read, 137 the Court has held that this kind 

of suit cannot be maintained unless the State expressly consents to 

suits in the federal courts. In this case, the state statute provided 

for the payment of taxes under protest and for suits afterward 

AMENDMENT 11—SUITS AGAINST STATES 1649

138See also Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945); 

Kennecott Copper Corp. v. Tax Comm’n, 327 U.S. 573 (1946). States may confine 

to their own courts suits to recover taxes. Smith v. Reeves, 178 U.S. 436 (1900); 

Murray v. Wilson Distilling Co., 213 U.S. 151 (1909); Chandler v. Dix, 194 U.S. 590 

(1904). 139 415 U.S. 651 (1974). 140 415 U.S. at 663. 141 415 U.S. at 667-68. Where the money at issue is not a State’s, but a private 

party’s, then the distinction between retroactive and prospective obligations is not 

important . In Verizon Md. Inc. v. Public Serv. Comm’n of Md., 122 S. Ct. 1753 

(2002), the Court held that a challenge to a State agency decision regarding a private party’s past and future contractual liabilities does not violate the Eleventh 

Amendment. Id. at 1760. In fact, three judges questioned whether the Eleventh 

Amendment is even implicated where there is a challenge to a state’s determination 

of liability between private parties. Id. at 1762-63 (Souter, J., concurring). 142 415 U.S. at 668. See also Quern v. Jordan, 440 U.S. 332 (1979) (reaffirming 

Edelman, but holding that state officials could be ordered to notify members of the 

class that had been denied retroactive relief in that case that they might seek back 

benefits by invoking state administrative procedures; the order did not direct the 

payment but left it to state discretion to award retroactive relief). But cf. Green v. 

Mansour, 474 U.S. 64 (1985). ‘‘Notice relief’’ permitted under Quern v. Jordan is

consistent with the Eleventh Amendment only insofar as it is ancillary to valid prospective relief designed to prevent ongoing violations of federal law. Thus, where 

against state tax collection officials for the recovery of taxes illegally collected, which revenues were required to be kept segregated. 138

In Edelman v. Jordan, 139 the Court appeared to begin to lay 

down new restrictive interpretations of what the Eleventh Amendment proscribed. The Court announced that a suit ‘‘seeking to impose a liability which must be paid from public funds in the state 

treasury is barred by the Eleventh Amendment.’’ 140 What the 

Court actually held, however, was that it was permissible for federal courts to require state officials to comply in the future with 

claims payment provisions of the welfare assistance sections of the 

Social Security Act, but that they were not permitted to hear 

claims seeking, or issue orders directing, payment of funds found 

to be wrongfully withheld. 141 Conceding that some of the characteristics of prospective and retroactive relief would be the same in 

their effects upon the state treasury, the Court nonetheless believed that retroactive payments were equivalent to the imposition 

of liabilities which must be paid from public funds in the treasury, 

and that this was barred by the Eleventh Amendment. The spending of money from the state treasury by state officials shaping their 

conduct in accordance with a prospective-only injunction is ‘‘an ancillary effect’’ which ‘‘is a permissible and often an inevitable consequence’’ of Ex parte Young, whereas ‘‘payment of state funds . . . 

as a form of compensation’’ to those wrongfully denied the funds in 

the past ‘‘is in practical effect indistinguishable in many aspects 

from an award of damages against the State.’’ 142

1650 AMENDMENT 11—SUITS AGAINST STATES 

Congress has changed the AFDC law and the State is complying with the new law, 

an order to state officials to notify claimants that past payments may have been inadequate conflicts with the Eleventh Amendment. 143 433 U.S. 267 (1977). 144 433 U.S. at 289. 145 433 U.S. at 290 n.22. See also Hutto v. Finney, 437 U.S. 678, 690–91 (1978) 

(affirming order to pay attorney’s fees out of state treasury as an ‘‘ancillary’’ order 

because of bad faith of State). 146 478 U.S. 265 (1986). 147 521 U.S. 261 (1997). 148 521 U.S. at 281. 

That Edelman in many instances will be a formal restriction 

rather than an actual one is illustrated by Milliken v. Bradley, 143

in which state officers were ordered to spend money from the state 

treasury in order to finance remedial educational programs to 

counteract the effects of past school segregation; the decree, the 

Court said, ‘‘fits squarely within the prospective-compliance exception reaffirmed by Edelman.’’ 144 Although the payments were a result of past wrongs, of past constitutional violations, the Court did 

not view them as ‘‘compensation,’’ inasmuch as they were not to be 

paid to victims of past discrimination but rather used to better conditions either for them or their successors. 145 The Court also applied Edelman in Papasan v. Allain, 146 holding that a claim 

against a state for payments representing a continuing obligation 

to meet trust responsibilities stemming from a 19th century grant 

of public lands for benefit of education of the Chickasaw Indian Nation is barred by the Eleventh Amendment as indistinguishable 

from an action for past loss of trust corpus, but that an Equal Protection claim for present unequal distribution of school land funds 

is the type of ongoing violation for which the Eleventh Amendment 

does not bar redress. 

In Idaho v. Coeur d’Alene Tribe, 147 the Court further narrowed 

Ex parte Young. The implications of the case are difficult to predict, 

due to the narrowness of the Court’s holding, the closeness of the 

vote (5–4), and the inability of the majority to agree on a rationale. 

The holding was that the Tribe’s suit against state officials for a 

declaratory judgment and injunction to establish the Tribe’s ownership and control of the submerged lands of Lake Coeur d’Alene is 

barred by the Eleventh Amendment. The Tribe’s claim was based 

on federal law—Executive Orders issued in the 1870s, prior to 

Idaho Statehood. The portion of Justice Kennedy’s opinion that represented the opinion of the Court concluded that the Tribe’s ‘‘unusual’’ suit was ‘‘the functional equivalent of a quiet title action 

which implicates special sovereignty interests.’’ 148 The case was 

‘‘unusual’’ because state ownership of submerged lands traces to 

the Constitution through the ‘‘equal footing doctrine,’’ and because 

AMENDMENT 11—SUITS AGAINST STATES 1651

149 521 U.S. at 284. 150 521 U.S. at 282. 151 521 U.S. at 296. 152See, e.g., Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670, 702 (1982) 

(dissenting opinion); Patsy v. Florida Board of Regents, 457 U.S. 496, 520 (1982) 

(dissenting opinion). And see Employees of the Dep’t of Public Health and Welfare 

v. Department of Public Health and Welfare, 411 U.S. 279 (1973). 153 167 U.S. 204 (1897). 154 106 U.S. 196 (1883). 155 Johnson v. Lankford, 245 U.S. 541 (1918); Martin v. Lankford, 245 U.S. 547 

(1918). 156 416 U.S. 233 (1974). 

navigable waters ‘‘uniquely implicate sovereign interests.’’ 149 This

was therefore no ordinary property dispute in which the State 

would retain regulatory control over land regardless of title. Rather, grant of the ‘‘far-reaching and invasive relief’’ sought by the 

Tribe ‘‘would diminish, even extinguish, the State’s control over a 

vast reach of lands and waters long . . . deemed to be an integral 

part of its territory.’’ 150

A separate part of Justice Kennedy’s opinion, joined only by 

Chief Justice Rehnquist, advocated more broadscale diminishment 

of Young. The two would apply case-by-case balancing, taking into 

account the availability of a state court forum to resolve the dispute and the importance of the federal right at issue. Concurring 

Justice O’Connor, joined by Justices Scalia and Thomas, rejected 

such balancing. Young was inapplicable, Justice O’Connor explained, because ‘‘it simply cannot be said’’ that a suit to divest the 

State of all regulatory power over submerged lands ‘‘is not a suit 

against the State.’’ 151

Thus, as with the cases dealing with suits facially against the 

States themselves, the Court’s recent greater attention to state immunity in the context of suits against state officials has resulted 

in a mixed picture, of some new restrictions, of the lessening of others. But a number of Justices have resorted to the Eleventh 

Amendment increasingly, as one means of reducing federal-state 

judicial conflict. 152 One may, therefore, expect this to be a continuingly contentious area. 

Tort Actions Against State Officials.—In Tindal v. Wesley, 153 the Court adopted the rule of United States v. Lee, 154 a tort 

suit against federal officials, to permit a tort action against state 

officials to recover real property held by them and claimed by the 

State and to obtain damages for the period of withholding. The immunity of a State from suit has long been held not to extend to actions against state officials for damages arising out of willful and 

negligent disregard of state laws. 155 The reach of the rule is evident in Scheuer v. Rhodes, 156 in which the Court held that plainVerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00027 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041
1652 AMENDMENT 11—SUITS AGAINST STATES 

157These suits, like suits against local officials and municipal corporations, are 

typically brought pursuant to 42 U.S.C. § 1983 and typically involve all the decisions respecting liability and immunities thereunder. On the scope of immunity of 

federal officials, see ‘‘Suits Against United States Officials,’’ supra. 

tiffs were not barred by the Eleventh Amendment or other immunity doctrines from suing the governor and other officials of a State 

alleging that they deprived plaintiffs of federal rights under color 

of state law and seeking damages, when it was clear that plaintiffs 

were seeking to impose individual and personal liability on the officials. There was no ‘‘executive immunity’’ from suit, the Court held; 

rather, the immunity of state officials is qualified and varies according to the scope of discretion and responsibilities of the particular office and the circumstances existing at the time the challenged action was taken. 157