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The U.S. Constitution's Eleventh Amendment

The Eleventh Amendment, ratified in 1795, contains only 43 words, but it has been interpreted in at least four different ways. Here is what the amendment says:

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.

The Eleventh Amendment was passed to overturn the Supreme Court ruling in the 1793 case of Chisholm v. Georgia. Alexander Chisholm of South Carolina filed suit against the State of Georgia for breach of contract, seeking payment for goods supplied to Georgia during the War of Independence.

Georgia refused to play ball, saying that Chisholm couldn’t sue a state without its consent because it possessed sovereign immunity from suit. The court didn’t like this argument — not surprisingly, because it cut the court’s power. The court found in favor of Chisholm and ruled that Article III, Section 2 of the Constitution took away the states’ sovereign immunity because in the list of cases that could be heard by the U.S. Supreme Court that section included “Controversies . . . between a State and Citizens of another State.”

However, such was the outcry against this decision that two days after the Supreme Court handed down its decision, a senator put a proposal before Congress that was to become the Eleventh Amendment. The intention of the amendment was never a secret: It was passed to stop a federal lawsuit from being brought against a state without its consent. But is that really what the Eleventh Amendment says?

There are four main interpretations of the Eleventh Amendment:

  • The simplest and most straightforward interpretation of the amendment reads it as saying that nobody can sue a state in federal court without the consent of the state concerned.

  • The second interpretation reads the amendment as permitting a state to be sued by a citizen of another state or of a foreign country, but not by a citizen of the state itself. According to this reading, the State of Utah can’t be sued in federal court by a resident of Utah itself, but Utah can be sued by a resident of Nebraska or by a citizen of Outer Mongolia.

  • The third interpretation is exactly the opposite, excluding only lawsuits against a state by a citizen of a different state.

  • The fourth interpretation is broader. It says that in general federal courts can’t hear cases against states, but Congress can take away a state’s sovereign immunity. If Congress does so, that state is no longer protected against suits in federal court.

Cutting across these four different interpretations are four recognized exceptions to the ban on lawsuits against states:

  • A lawsuit can always be brought in federal court against a state’s subdivisions, such as counties, cities, and municipalities.

  • A state can always consent to a lawsuit being brought against it in federal court.

  • Congress can abrogate — or remove — a state’s immunity from suit in federal court, provided Congress’s intention to abrogate a state’s immunity is “unmistakably clear.”

    However, in the 1996 case of Seminole Tribe v. Florida, the Supreme Court ruled that the Commerce Clause in Article I, Section 8 of the Constitution does not give Congress the power to abrogate a state’s immunity from suit in federal court. This ruling calls into question the power of federal courts to hear lawsuits against states to enforce congressional legislation under the Commerce Clause relating to environmental law, bankruptcy, or intellectual property, to name but three major areas of commercial law.

  • If a state violates federal law, the state itself can’t be sued in federal court — but a federal court can order state officials in their own name to comply with federal law.

    This was decided by the Supreme Court in the controversial 1908 case Ex parte Young. This ruling was based on the fiction that a state official enforcing an unconstitutional state law is a private person — while still remaining a state agent when it comes to remedying the unconstitutional law! For example, in the 1993 ruling in Martin v. Voinovich, the high court ordered the governor of Ohio to construct housing for handicapped people to comply with the Americans with Disabilities Act.

The question that lies at the heart of the Eleventh Amendment is whether the individual states can still be regarded as possessing sovereignty: complete legal independence. This certainly was the position for the first decade of independence under the Articles of Confederation. But did this position continue under the U.S. Constitution, which was ratified in 1788?

In short, are, say, Maine, Ohio, Kentucky, and Texas as independent of one another and of the U.S. federal government as, say, France, India, Brazil, and Australia are of one another? Clearly not, but they obviously have a high degree of autonomy nevertheless. If the states were indeed sovereign states in the fullest sense, immunity from suit would follow. Because they don’t have full sovereignty, their immunity from suit is also only partial.

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