Text Assist for
the 11th Amendment
The Eleventh Amendment, ratified in 1795, states that 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…”.
The Amendment was passed as a reaction to Chisholm v. Georgia, 2 U.S (2 Dall.) 419, 1 L.Ed. 440 (1793), where the Supreme Court found that it had jurisdiction when the executor of a South Carolina estate brought an action to recover the debt the state of Georgia owed his decedent.
The amendment recognizes that states have a certain degree of sovereign immunity. They are not mere subordinates to the federal government but instead virtual quasi-sovereigns. While the original Constitution gave the Supreme Court jurisdiction over States when non-citizens brought actions against them, the 11th amendment was a legitimate change to the original Constitution, ratified by three-fourths of the states and binding as a limit on judicial power. Only future amendments could abrogate such constitutional sovereign immunity.
Originally the 11th Amendment only forbade actions by non-citizens against a defendant state. But Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890) extended the doctrine of such sovereign immunity, holding that the 11th Amendment barred suit even by citizens of that defendant state. All private parties were subject to the amendment, although other states and the federal government could still bring actions against a state.
Where Federalism had created a tension between state and federal sovereignty, the 11th amendment had tried to resolve such tension in favor of the states. The result, however, was that states became virtually immune to federal law, since private parties could not sue. To avoid such problems, the Supreme Court eventually adopted the legal fiction of the Stripping Doctrine, which recognizes that private parties can sue state officers in their official capacity for injunctive relief.
“The judicial power”
Federal courts derive their power (jurisdiction) from Article III of our Constitution. That article creates one Supreme Court and such inferior federal courts (trial and intermediate appellate) as Congress ordains and establishes. The power exercised by federal courts is the “judicial power”, the power to hear and decide “cases and controversies” within 9 enumerated areas. For a look at the structure of judicial power under Article III see the Article III flowchart. For the limits of federal jurisdiction, see the Justiciability flowchart.
The 11th Amendment does not touch on Legislative or Executive power, and states are not immune to their jurisdiction. Although the Supreme Court has never decided whether or not the 11th Amendment applies to suits against States in federal administrative courts (which do not formally exercise “judicial power”), basic principles of federalism and state sovereignty would suggest that States cannot be sued there either.
…of the United States…
By its terms, the 11th Amendment applies only to suits against States in federal courts. State courts can hear such cases, although the Supreme Court has found States not suable in state court under 42 U.S.C. § 1983 (but not on 11th Amendment grounds).
While the Supreme Court has never decided the issue, basic principles of federalism and state sovereignty would suggest States cannot be sued in federal administrative courts either (as they are federal bodies).
“…shall not be construed to extend…”
The 11th Amendment recognizes a degree of sovereign immunity on the parts of the States. States are immune to actions brought by citizens in federal courts against them. But while the 11th Amendment provides States with such immunity from the outset, States can choose to waive their immunity. In certain circumstances such a waiver must be unequivocally expressed, while in others mere litigation waiver will suffice (ie.the State chooses to remove the action from a state court to a federal court).
“…to any suit in law or equity…”
Nominally, the amendment provides immunity to States from actions in both law and equity (ie.from both money damages and injunctive relief). But with the advent of the Stripping Doctrine, which allows citizens to sue state officials, the federal courts have drawn a line between injunctive and monetary relief.
Courts are willing to allow actions against state officers because foreclosure of such actions would ensure that no method existed of allowing enforcement of federal laws against the states. But they uphold the legal fiction that state officers can be sued in their official capacity even though they supposedly acted outside their official authority only to the extent of providing injunctive relief. Private parties cannot sue state officers in their official capacity for monetary damages, as such money would in reality come from the State treasury (depriving the states, as such, of their sovereign immunity). However, private citizens can sue state officers in their official capacity for injunctive relief and also bring monetary damage actions against them in their individual capacity.
“…commenced or prosecuted against…”
While States have a degree of sovereign immunity (as quasi-sovereigns), and cannot be sued in federal courts, they themselves can choose to bring actions there.
Note that while the 11th Amendment gives States immunity from actions by private parties (ie.citizens and private corporations), other States and the United States itself can still sue a State in federal court.
“…one of the United States…”
A State is a broad body, with many agencies and departments. All such non-political subdivisions of a State are immune under the 11th Amendment. However, the Stripping Doctrine extends to them as well, and private parties can bring actions against the officers of a state agency.
The 11th Amendment does not give political subdivisions of a State, such as a municipality, sovereign immunity. Private parties can bring actions against cities and their agencies. To determine whether a particular agency is an arm of the state or municipality, the courts will look to state law. In bringing such actions one has to be careful because certain agencies act in one capacity as a state agency, and in another capacity as a municipal agency; they can only be sued in their capacity as a municipal body.
“…by Citizens of another State, or by Citizens or Subjects of any Foreign State.
On its face, the 11th Amendment allows a State immunity from actions by non-citizens and foreigners (nominally applied to diversity suits only, but now extended to federal question jurisdiction). However, the Supreme Court in Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890) extended such sovereign immunity to actions brought by citizens of the defendant state as well. Now no citizen of the United States can sue a State. To ensure that States would not escape Federal law the courts created the Stripping Doctrine which allows citizens to bring actions against state officers in their official capacity for injunctive relief.
In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court provided an important exception to the 11th Amendment sovereign immunity States enjoy: the Stripping Doctrine.
The Stripping Doctrine is a legal fiction which allows injunctive relief against what are essentially state actions. While the 11th Amendment immunizes States from actions by private parties, the Stripping Doctrine argues that when a state officer takes an unconstitutional action, she acts beyond the scope of her authority, as no State could have authorized her to act unconstitutionally. When acting outside such authority the officer was “stripped” of her official power and cannot invoke the State’s immunity, although she remains subject to the consequences of her official conduct.
The doctrine is a legal fiction because the officer, in acting unconstitutionally, was outside her official duties, but the citizen can now sue her for injunctive relief in her official capacity. Unless a citizen can enjoin the action the officer took in her official capacity, no remedy could be provided for an otherwise unconstitutional action (as the State itself is immune from prosecution).
Suits Naming State Officers
While actions brought by private parties cannot name States as defendants, they can name State officers as defendants. The Stripping Doctrine provides that since a State could not authorize its agent to act unconstitutionally, the agent was acting outside her authority and cannot invoke the State’s sovereign immunity, even though they remain responsible for their official conduct.
Suits Naming States
Our federal government is one of enumerated powers, and those powers not given to it either by the Constitution or the by nature of federal sovereign power are retained by the states. As such, states are virtual quasi-sovereigns in our system. While tension exists between state and federal government due to the nature of our dual-sovereign system, the 11th amendment resolves a part of that conflict in favor of the states.
While the Framers disagreed on whether Article III abrogated state sovereignty, framers such as James Madison and Alexander Hamilton argued that states could not, in certain circumstances, be hailed into federal court. In the wake of Chisholm v. Georgia, 2 U.S (2 Dall.) 419, 1 L.Ed. 440 (1793), where the Supreme Court found it had jurisdiction over a State in an action brought by a non-citizen, the 11th amendment was enacted to prevent such future results.
Unless abrogated by an action brought under the 14th Amendment, the 11th Amendment provides these quasi-sovereigns with sovereign immunity: private parties cannot bring actions, in law or equity, against States without the State’s consent.
The Supreme Court’s decisions in Ex Parte Young, 209 U.S. 123 (1908), and Edelman v. Jordan, 415 U.S. 651 (1974), hold that federal courts may grant injunctions against unconstitutional actions taken by State officers. Since the officers were acting outside the scope of what a State could authorize them to do they were stripped of their power, and their official actions are as such void. Such relief is necessary to protect the Constitution’s Supremacy Clause; otherwise, immune states could take unconstitutional actions with impunity, invalidating the supremacy of our Constitution.
The Supreme Court’s decision in Edelman v. Jordan, 415 U.S. 651 (1974) held that when private parties sue State officers in their official capacity, federal courts could not award retroactive monetary relief (ie.money damages). Courts refuse to extend the legal fiction of the Stripping Doctrine to monetary relief since awarding damages would eliminate the constitutional immunity States have under the 11th Amendment. The damages would be coming from the coffers of the State Treasury. Injunctive relief against future conduct provides effective protection of the Supremacy Clause, and courts see money damages as prohibited by the 11th Amendment.
Federal Question Claim
While the Supreme Court has recognized that states have a degree of sovereign immunity, the Court continues to uphold the supremacy of federal law. The Court has held that States cannot be sued in federal court even on federal question claims without their consent. But while the 11th Amendment may shield the state from suits in federal court, the amendment cannot bar review of state court judgments in a federal question context. The Supremacy Clause by its nature requires that the Supreme Court be capable of reviewing federal questions, and the 11th Amendment cannot immunize a state from such review.
Pendant State Claim
The Supreme Court held in Penhurst State School & Hospital v. Halderman, 456 U.S. 89, 104 S.Ct. 900, 79 L.Ed. 2d 67 (1984) that supplemental state claims that States have violated State law cannot be heard by federal courts. The basis for the Stripping Doctrine was that it was necessary to protect the supremacy of the Constitution. “A federal court’s grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law”. The Court concluded that the Stripping Doctrine is inapplicable in an action against a state or a state officer based on state law; as such, states are immune from prosecution in federal court in such actions.
Officer Named in Individual Capacity
While the Supreme Court has held that only injunctive relief can be awarded against a state officer sued in his official capacity, retroactive monetary relief can be granted against an officer sued in his individual capacity. Bringing an action against an officer in his individual capacity does not implicate state sovereignty.
Officer Named in Official Capacity
The 11th Amendment grants states sovereign immunity, but the Stripping Doctrine allows State officers to be sued in their official capacities. When an officer acts unconstitutionally, he acts outside what a state could have authorized him to do, and has been “stripped” of his power.
To effectuate the Supremacy Clause, state officers can be sued in their official capacity over their official conduct (even though at the time stripped of their power), so long as the plaintiffs seek only injunctive relief. Where state officers are sued in their official capacities, federal courts cannot award monetary relief, since doing so would strip the states of their sovereign immunity (the money is coming from their treasuries).
Explicit State Waiver
While the 11th Amendment provides States with sovereign immunity to prosecution by private parties in federal courts, States can choose to waive their immunity. In certain circumstances such a waiver must be unequivocally expressed, while in others mere litigation waiver will suffice (ie.the State chooses to remove the action from a state court to a federal court).
Explicit § 5 Override
The original Constitution allowed States to be hailed into federal courts by private parties. But that constitution was amended with the consensus of three-fourths of the states in 1798, when the 11th Amendment was adopted. The 11th Amendment specifically removed such authority from federal courts.
But the Constitution was amended again in 1868 to protect various civil rights, and § 5 of that Amendment granted Congress the power to enforce, by appropriate legislation, the provisions of that amendment. The courts have recognized that this new amendment, again a consensus of the people, abrogates the immunity provided by the 11th amendment. When Congress enacts legislation under the auspices of §5 of the 14th Amendment they can specifically abrogate 11th amendment immunity, and states can under such federal statutes be prosecuted in federal courts.
However, in Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), the Supreme Court said that while Congress can use its 14th Amendment power to override a State’s 11th Amendment protection, it must speak clearly. “General authorization for suit in a federal court is not the kind of unequivocal statutory language sufficient to abrogate the 11th Amendment. When Congress chooses to subject the states to federal jurisdiction it must do so specifically.”
Note that those powers given to Congress in the original Constitution cannot be used to abrogate 11th Amendment immunity. The people chose to amend that Constitution to limit federal power, and, for example, Congress cannot use its power to regulate interstate commerce to abrogate 11th Amendment immunity, as that power was amended in 1798.
When an action brought by private parties names a state officer in her official capacity as a defendant, federal courts have the jurisdiction to hear it and grant injunctive relief. Courts permit such actions and such relief to protect the supremacy of the federal Constitution.
The 11th Amendment recognizes that states are quasi-sovereigns who possess a degree of sovereign immunity, and that they cannot be hailed into federal court by private parties. When an action names a State as a defendant, or seeks monetary relief from a State officer in her official capacity, federal courts are barred by the 11th Amendment from hearing such an action.