1519

ELEVENTH AMENDMENT

SUITS AGAINST STATES

CONTENTS

Page

State Immunity .......................................................................................................................... 1521

Purpose and Early Interpretation ..................................................................................... 1521

Expansion of the Immunity of the States ................................................................. 1525

The Nature of the States’ Immunity ................................................................................. 1527

Suits Against States ........................................................................................................... 1531

Consent to Suit and Waiver ....................................................................................... 1531

Congressional Withdrawal of Immunity ................................................................... 1533

Suits Against State Officials ..................................................................................................... 1537

Tort Actions Against State Officials ................................................................................. 1544

1521

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 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
1522 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 n.2, at 1045–53 (discussing sources and citing other discussions). 6 Ch. 20, § 13, 1 Stat. 80 (1789). See also Fletcher, supra n.2, 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 n.2, at 1054–58.

8 Id. at 1058–63; Goebel, supra n.6, 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 1523

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, supra, pp. 701–05, 723–25. 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.’’ 6 Wheat. 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
1524 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.’’ Id. 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.’’ Id. 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 9 Wheat. 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 1525

19 9 Wheat. 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 supra, pp. 713–

14. 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. Co., 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 Id. 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 that decision was wrong and that federal jurisdiction did not

extend to making defendants of unwilling States. 25 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
1526 AMENDMENT 11—SUITS AGAINST STATES

26 Id. at 14–15. 27 Id. at 15–16. 28 Id. 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. For the continuing vitality of Hans, see infra,

text at nn.55–56. 29 256 U.S. 490 (1921). 30 Id. at 497–98. 31 Id. 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).

‘‘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

citizens or not.’’ 31
AMENDMENT 11—SUITS AGAINST STATES 1527

32Principality of Monaco v. Mississippi, 292 U.S. 313, 322–23 (1934) (quoting

THE FEDERALIST No. 81). 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).

33 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).

34 415 U.S. 651 (1974).

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.’ ’’ 32

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. 33 It explains the

decision in Edelman v. Jordan, 34 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
1528 AMENDMENT 11—SUITS AGAINST STATES

35 Id. 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. But see infra, n.36. 36See 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). 37 Clark v. Barnard, 108 U.S. 436 (1883). 38 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). 39See, 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). 40 E.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). 41The principal citation is, of course, Marbury v. Madison, 5 U.S. (1 Cr.) 137

(1803). 42Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 99 (1984). 43 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). 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).

that it need not be raised in the trial court.’’ 35 But that the bar

is not wholly jurisdictional seems established as well. 36

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

against States, the settled principle that States may consent to

suit 37 becomes conceptually difficult, inasmuch as it is not possible

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

parties. 38 And there is jurisdiction under Article III of some suits

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

other States. 39 And, furthermore, Congress is able in at least some

instances to legislate away state immunity, 40 although it may not

enlarge Article III jurisdiction. 41 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.’’ 42

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. 43 The Court in dealing with questions of governmental

immunity from suit has traditionally treated interchangeably

precedents dealing with state immunity and those dealing with fed-
AMENDMENT 11—SUITS AGAINST STATES 1529

44See, 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). 45 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). 46See Fletcher, supra n.2. 47 440 U.S. 410 (1979). 48 Id. 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).

eral governmental immunity. 44 Viewing the Amendment and its

radiations into Article III in this way provides a consistent explanation of the consent to suit as a waiver. 45 The limited effect of

the doctrine in this context in federal court arises 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. 46

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

case of Nevada v. Hall, 47 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. 48

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
1530 AMENDMENT 11—SUITS AGAINST STATES

49For a while only Justice Brennan advocated this view, Parden v. Terminal

Ry., 377 U.S. 184 (1964); Employees of the Dep’t of Public Health and Welfare v.

Department of Public 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), and other cases cited in n.55, infra. 50 E.g., United States v. Texas, 143 U.S. 621 (1892); South Dakota v. North

Carolina, 192 U.S. 286 (1904). 51 Infra, pp. 1533–37. 52 E.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); Quern v. Jordan, 440

U.S. 332, 337 (1979). 53See 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 Public

Health and Welfare v. Department of Public 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. 54See infra, text accompanying n.76. 55 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) (disaction. 49 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. 50 These understandings continue and

the major question unresolved is the extent to which Congress

under its granted powers may remove state immunity to suit in

federal court. 51

Still another view of the Eleventh Amendment is that it embodies a state sovereignty principle limiting the power of the Federal Government. 52 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. 53

Considerable ideological agitation within a closely divided

Court has now resulted in parallel rulings that continue the inconsistencies, or, perhaps, the incoherence, of Eleventh Amendment jurisprudence. Thus, it is established, though somewhat tentatively,

that Congress may abrogate state immunity under its Article I

powers. 54 At the same time a narrow majority subscribes to the

Hans view of the meaning of the Amendment, that it is a constitutional bar to federal jurisdiction, across the board, without reference to its specific language.

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. 55 But the remain-
AMENDMENT 11—SUITS AGAINST STATES 1531

senting); 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). 56 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 (1989) (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 2824 (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). 57Gunter v. Atlantic Coast Line R.R., 200 U.S. 273, 284 (1906). 58Smith 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). 59Great 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).

ing five Justices adhered to Hans and in fact stiffened it with a

rule of construction quite severe in its effect. 56

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. 57

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, 58 and a general

authorization ‘‘to sue and be sued’’ is ordinarily insufficient to constitute consent. 59 ‘‘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.’ . . .

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 inten-
1532 AMENDMENT 11—SUITS AGAINST STATES

60Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305–06 (1990)

(internal citations omitted; emphasis in original). 61 Id. at 306–07. See, on the other hand, Atascadero State Hosp. v. Scanlon, 473

U.S. 234, 241 (1985). 62 377 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). 63 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). 64 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, id. at 415 U.S., 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. 65Welch 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.

tion to subject itself to suit in federal court.’ ’’ 60 In this case, 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. 61 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, 62 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, that had

been enacted some 20 years previously, the State had effectively

accepted the imposition of the Act and consented to suit. 63 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. 64 This aspect of Parden has now been overruled, a plurality of the Court emphasizing that congressional abrogation of

immunity must be express and unmistakable. 65
AMENDMENT 11—SUITS AGAINST STATES 1533

66 108 U.S. 436 (1883). 67Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466–467 (1945);

Edelman v. Jordan, 415 U.S. 651, 677–678 (1974). 68Lake 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). 69Lincoln 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. 70Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391

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

Similarly, the State may waive its immunity by initiating or

participating in litigation. In Clark v. Barnard, 66 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, because of the question of the ability of the individual to act under state law to make

a valid waiver, with the result that the State may at any point in

litigation raise a claim of immunity. 67

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.’’ 68

Municipal corporations, though they partake under state law of the

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

States may not confer it. 69 Entities created through interstate compacts (subject to congressional approval) generally also are subject

to suit. 70

Congressional Withdrawal of Immunity.—The Constitution

delegates to Congress power to legislate to affect the States in

some permissible ways. 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
1534 AMENDMENT 11—SUITS AGAINST STATES

71Fitzpatrick 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). 72Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). 73 Id. at 456 (under Fourteenth Amendment, Congress may ‘‘provide for private

suits against States or state officials which are constitutionally impermissible in

other contexts.’’) 74 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). 75 Even prior to the recent tightening of the rule to require clear expression in

the statutory language itself (see n.79 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.

congressional implementing legislation. 71 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.’’ 72 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. 73

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. 74 The principal judicial brake on this power to abrogate state immunity has been application of a clear statement rule requiring that congressional intent to subject States to suit must be clearly expressed. 75
AMENDMENT 11—SUITS AGAINST STATES 1535

76 491 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. 77Parden v. Terminal Railway, 377 U.S. 184, 190–92 (1964). See also Employees

of the Dep’t of Public Health and Welfare v. Department of Public Health and Welfare, 411 U.S. 279, 283, 284, 285–86 (1973). 78 Edelman v. Jordan, 415 U.S. 651, 672 (1974). 79 Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) (emphasis supplied).

In the 1989 case of Pennsylvania v. Union Gas Co., 76 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, 77 but only as an alternative

holding, and a later case had set forth a more restrictive rule. 78

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

states to enforce congressional enactments. The dissenters denied

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

Fourteenth Amendment abrogation power, would have held that

none existed under Article I. The narrowness of the majority, the

conflicted views of one of the Justices in the majority, and now

changed membership of the Court make uncertain the continuing

vitality of the decision.

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. 79 No legislative history
1536 AMENDMENT 11—SUITS AGAINST STATES

80See, particularly, Dellmuth v. Muth, 491 U.S. 223, 230 (1989), and Hoffman

v. Connecticut Dep’t of Income Maintenance, 492 U.S. 96, 103–04 (1989). 81 Justice Scalia does not hold to this view. Dellmuth v. Muth, 491 U.S. 223,

233 (1989) (concurring). And see his statutory analysis in Pennsylvania v. Union

Gas Co., 491 U.S. 1, 29 (1989) (concurring in part and dissenting in part). Justice

White, for the plurality, denied this rigidity, id. at 56 n.7 (concurring); Justice Kennedy for the Court in Dellmuth, supra, 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.’’ 82 Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985). And see

Dellmuth v. Muth, 491 U.S. 223 (1989). 83 Hoffman v. Connecticut Dep’t of Income Maintenance, 492 U.S. 96, 103–04

(1989). 84Thus, following 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, which involved a fact situation occurring prior to the 1986 amendments, Congress overruled

it anyway. 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). 85The point was noted and reserved in Employees of the Dep’t of Public Health

and Welfare v. Department of Public Health and Welfare, 411 U.S. 279, 287 (1973),

while Justice Marshall argued that this was plainly the case. Id. at 298 (concurring). Suits under § 1983, for example, may be brought in state courts, Maine v.

Thiboutot, 448 U.S. 1 (1980), and state immunities are inapplicable. Id. at 9 n.7;

Maher v. Gagne, 448 U.S. 122, 130 n.12 (1980). Inasmuch as state courts are ordiwill suffice at all. 80 Indeed, a plurality is of the apparent view that

only if Congress refers specifically to state sovereign immunity and

the Eleventh Amendment will its language be unmistakably

clear. 81 Thus, 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.’’ 82

The Court also construes adversely language Congress chose to

reach the issue of state immunity while refusing to look at the legislative history which elaborates that language. 83 The result is

that Congress has begun to utilize the ‘‘magic words’’ the Court appears to insist on. 84

It should be noted that, even if the Court reverses itself and

holds that Congress lacks power to abrogate state immunity in federal courts under its commerce and other Article I powers, Congress is not barred by the Eleventh Amendment, nor apparently by

any other constitutional provision, from providing authority for

suits in state courts to implement federal statutory rights, thus

doing away for those purposes with common law sovereign immunity of the states. 85
AMENDMENT 11—SUITS AGAINST STATES 1537

narily obligated to enforce federal law, cf. Testa v. Katt, 330 U.S. 386 (1960), state

courts are presumably required to hear § 1983 and other claims, but the Court has

expressly reserved the issue. Martinez v. California, 444 U.S. 277, 283 n.7 (1980). 86Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989). 87 Hilton v. South Carolina Pub. Rys. Comm’n, 112 S. Ct. 560, 564–66 (1991)

(interest in ‘‘symmetry’’ is outweighed by stare decisis, the FELA action being controlled by Parden v. Terminal Ry. 88See, 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). 89 C. WRIGHT, THE LAW OF FEDERAL COURTS § 48 (4th ed. 1983). 90 209 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. 86 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. 87

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. 88 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. 89 The doctrine preceded but is most noteworthily

associated with the decision in Ex parte Young, 90 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

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
1538 AMENDMENT 11—SUITS AGAINST STATES

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

Cases (Simpson v. Shepard), 230 U.S. 352 (1913). 92Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). 93Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828). 94Davis 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). 95 United States v. Lee, 106 U.S. 196 (1882). See supra, pp. 748–51. 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. 96 134 U.S. 1 (1890).

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. 91 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, 92 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. 93 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. 94 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 95 and the Hans v. Louisiana decision

reading broadly the effect of the adoption of the Eleventh Amendment. 96
AMENDMENT 11—SUITS AGAINST STATES 1539

97See 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. 98 107 U.S. 711 (1882). 99 ‘‘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.’’ Id. at 721. See also Christian v. Atlantic & N.C.

R.R., 133 U.S. 233 (1890). 100 123 U.S. 443 (1887). 101 Id. at 500–01, 502. 102 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. Id. 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 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).

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

suits attempting to prevent Southern States from defaulting on

bonds. 97 In Louisiana v. Jumel, 98 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. 99 Then, In re Ayers 100 purported to supply a rationale for

the cases permitting the issuance of mandamus or injuctive 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. 101 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. 102
1540 AMENDMENT 11—SUITS AGAINST STATES

103 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). 104 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 eviserated by Home Tel. & Tel. was not expressly disavowed until United

States v. Raines, 362 U.S. 17, 25–26 (1960). 105 Ex parte Young, 209 U.S. 123, 173–74 (1908). 106 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, 103 the 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.’’ 104 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.’’ 105

The ‘‘fiction’’ remains a mainstay of our jurisprudence. 106 It accounts for a great deal of the litigation brought by individuals to

challenge the carrying out of state policies by officers. 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 enforce-
AMENDMENT 11—SUITS AGAINST STATES 1541

107See, 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. 108 E.g., Edelman v. Jordan, 415 U.S. 651, 664–68 (1974); Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978). 109 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). 110 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. Co., 244 U.S. 499 (1977); Louisville & Nashville R.R.

Co. 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. 111 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). 112Typically, 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. In the last instance, federal courts are obligated first to

consider 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). 113 465 U.S. 89 (1984).

ment and thus interpretation in the state courts. 107 Similarly,

suits to restrain state officials from taking certain actions in contravention of federal statutes 108 or to compel the undertaking of affirmative obligations imposed by the Constitution or federal

laws 109 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 110 or that they are not doing something required by state

law 111 are not precluded by the Eleventh Amendment or its emanations of sovereign immunity, provided only that there are

grounds to obtain federal jurisdiction. 112 However, in Pennhurst

State School & Hosp. v. Halderman, 113 the Court, five-to-four, held
1542 AMENDMENT 11—SUITS AGAINST STATES

114Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828). 115 E.g., Ford Motor Co. v. Department of the Treasury, 323 U.S. 459, 464

(1945). 116Worcester 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). 117Smith v. Reeves, 178 U.S. 436 (1900). 118 Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912). 119 322 U.S. 47 (1944). 120See 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).

that Young did not permit suits in federal courts against state officers alleging violations of state law. In the Court’s view, Young’s rationale was the necessity to promote the supremacy of federal law,

a basis that disappears if the violation alleged is of state law.

The Court still adheres to the doctrine, first pronounced in

Madrazo, 114 that some suits against officers are ‘‘really’’ against

the State 115 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. 116 Suits against state officials to recover

taxes have 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, 117 it also

held that a suit would lie against a revenue officer to recover tax

moneys illegally collected and still in his possession. 118 Beginning,

however, with Great Northern Life Ins. Co. v. Read, 119 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 against state tax collection officials for the

recovery of taxes illegally collected, which revenues were required

to be kept segregated. 120
AMENDMENT 11—SUITS AGAINST STATES 1543

121 415 U.S. 651 (1974). 122 Id. at 663. 123 Id. at 667–68. 124 Id. 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

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. 125 433 U.S. 267 (1977). 126 Id. at 289.

In Edelman v. Jordan, 121 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.’’ 122 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. 123 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.’’ 124

That Edelman in many instances will be a formal restriction

rather than an actual one is illustrated by Milliken v. Bradley, 125

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.’’ 126 Although the payments were a result of past wrongs, of past constitutional violations, the Court did
1544 AMENDMENT 11—SUITS AGAINST STATES

127 Id. 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). 128 478 U.S. 265 (1986). 129See, 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). 130 167 U.S. 204 (1897). 131 106 U.S. 196 (1883). 132 Johnson v. Lankford, 245 U.S. 541 (1918); Martin v. Lankford, 245 U.S. 547

(1918). 133 416 U.S. 233 (1974).

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. 127 The Court also applied Edelman in Papasan v. Allain, 128 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.

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 has resorted to the Eleventh Amendment increasingly, as one means of reducing federal-state judicial

conflict. 129 One may, therefore, expect this to be a continuingly

contentious area.

Tort Actions Against State Officials.—In Tindal v. Wesley, 130 the Court adopted the rule of United States v. Lee, 131 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. 132 The reach of the rule is evident in Scheuer v. Rhodes, 133 in which the Court held that plaintiffs 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 offi-
AMENDMENT 11—SUITS AGAINST STATES 1545

134These 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 supra, pp. 748–51.

cials. 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. 134