Amendment XI

The Constitution had allocated to Federal Courts "diversity jurisdiction," over suits between citizens of two different states. In Chisolm v Georgia,(1793), the Supreme Court found that it had jurisdiction over a suit by citizens of South Carolina to collect a debt from the State of Georgia. In Federalist No. 81, Hamilton himself had suggested that states retained immunity from suit. The Supreme Court's decision was wildly unpopular. The Georgia House of Representatives passed a bill making it a felony punishable by hanging for a person to carry out the Supreme Court's decision. Ultimately the clamor and controversy resulted in passage of the Eleventh Amendment which states as follows:

• The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against any one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

What does this mean? Carefully read, the Eleventh Amendment does not seem to bar suits by citizens against their own state. In other words, might the Eleventh Amendment merely bar diversity cases, such as the Chisolm action to collect a debt, but continue to allow citizens to sue their own states to enforce constitutional rights or rights conferred by federal statutes?

But the Supreme Court has long regarded the Eleventh Amendment as an affirmance of some degree of State sovereign immunity from suit. In Han v Louisiana,(1890) a citizen of Louisiana sued his own state on defaulted bonds, claiming that the default constituted a breach of the Constitution's Contract Clause. The Court's decision plainly broadened the scope of the Eleventh Amendment to "federal question" cases, that is cases brought against states to vindicate federal rights. In a recent case (Seminole Tribes) the Court stated:

• Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, "we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition ... which it confirms." ...That presupposition, first observed over a century ago in Han v. Louisiana, 134 U.S. 1 (1890), has two parts: first, that each State is a sovereign entity in our federal system; and second, that " `[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.' " ...For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States "was not contemplated by the Constitution when establishing the judicial power of the United States."

Does this mean that the Eleventh Amendment immunized Louisiana from having to pay on the defaulted bonds, thus negating the contract clause? The answer is no. Han still had a right to sue his own state in the Louisiana state courts. And in those courts, he could assert his federal constitutional contract rights. The Supreme Court retained the right to review the Louisiana court's refusal to enforce the federal constitution. If you didn't understand why Martin v. Hunter's Lessee and Cohen v Virginia were controversial, now you should. See supct3.

The Plot Thickens Since the Han case, Eleventh Amendment cases have centered around a number of issues:

1. When can one sue a state employee acting in his official capacity to stop him from taking an unconstitutional action? And what relief is available against the official.
2. Do the later Constitutional amendments limit the Eleventh Amendment, thus authorizing the Congress to pass legislation allowing citizens to sue states to enforce rights conferred by later amendments?
3. May Congress force a State to waive its sovereign immunity under the eleventh amendment in return for the right to receive federal benefits, or in return for the right to enter a federally regulated area? If Congress can do so, how can we tell from legislation whether Congress demanded such a waiver and that the State consented.

There has been a fair amount of activity on each of these fronts in the last several decades.

The Young-Edelman Doctrines. In Ex Parte Young, the Court ruled that when a state official engages in an unconstitutional act, he in some sense ceases to act in his official capacity, because no official, state or federal, can violate the constitution. The Court thus opened the door to some federal suits seeking to enjoin state officials--as opposed to the State itself--from taking unconstitutional and therefore illegal actions. In Edelman v. Jordan (1974), the Rehnquist Court limited this power, declaring that a state official could not be ordered by way of injunction to release federally mandated welfare benefits. State officials could be ordered to refrain from violating federal rights in the future, but they could not be ordered to dip into the State treasury to redress past wrongs. The exact scope of available relief under the Young doctrine and its limitations under Edelman remain complex.

Other Constitutional Powers. In Fitzpatrick v Bitzer, (1976) the Court found that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had fundamentally altered the balance of state and federal power struck by the Constitution. Section 1 of the Fourteenth Amendment contains prohibitions expressly directed at the States and section 5 of the Amendment expressly provided that "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." Accordingly, Congress had power to over-ride Eleventh Amendment immunities when passing legislation designed to enforce Fourteenth Amendment protections. At first, it began to look as if the Court might find that other Constitutional powers might furnish the basis for Congressional assault on the Eleventh Amendment. But the door was slammed shut, or so it would seem, in the Seminole Tribe v Florida case. There, the Supreme Court stated:

• Even when the Constitution vests in Congress complete law-making authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States. The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.

Under what circumstances, then. may Congress use its powers to enforce the Fourteenth Amendment to allow citizen suits against a State. Clearly, Congress may authorize citizen suits for damages against the State when the State allegedly engages in racial discrimination. In Board of Trustees of the University of Alabama v. Garrett, the Court struck down Congressional authorization of suits for damages against the states to redress disability discrimination. In a 5-4 decision, the Court decided that Congress had failed to muster insufficient evidence to make out a record of discrimination by the States against the disabled in employment. Keep in mind that generally, the Court must defer to Congress in determining whether facts justify legislation. The Court noted that "Congress made a general finding in the ADA that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U. S. C. §12101(a)(2). The record assembled by Congress includes many instances to support such a finding." However, the Court continued, "the great majority of these incidents do not deal with the activities of States." In short, the Court scrutinized the legislative record and found it insufficient:

• Congress is the final authority as to desirable public policy, but in order to authorize private individuals to recover money damages against the States, there must be a pattern of discrimination by the States which violates the Fourteenth Amendment, and the remedy imposed by Congress must be congruent and proportional to the targeted violation. Those requirements are not met here...

his interference with the legislative function bothered the dissenting minority. There had been overwhelming evidence of discriminatory treatment of the disabled by the general population and by states. Unelected life-tenure judges were now substituting their judgment for the judgment of the elected representatives of the people. In what sense was the Court acting to preserve the rights of the people:

• The Court's failure to find sufficient evidentiary support may well rest upon its decision to hold Congress to a strict, judicially created evidentiary standard, particularly in respect to lack of justification. Justice Kennedy's empirical conclusion--which rejects that of Congress--rests heavily upon his failure to find "extensive litigation and discussion of constitutional violations," in "the courts of the United States." ....And the Court itself points out that, when economic or social legislation is challenged in court as irrational, hence unconstitutional, the "burden is upon the challenging party to negative any reasonably conceivable state of facts that could provide a rational basis for the classification."

• There is simply no reason to require Congress, seeking to determine facts relevant to the exercise of its §5 authority, to adopt rules or presumptions that reflect a court's institutional limitations. Unlike courts, Congress can readily gather facts from across the Nation, assess the magnitude of a problem, and more easily find an appropriate remedy. ... Unlike courts, Congress directly reflects public attitudes and beliefs, enabling Congress better to understand where, and to what extent, refusals to accommodate a disability amount to behavior that is callous or unreasonable to the point of lacking constitutional justification. Unlike judges, Members of Congress can directly obtain information from constituents who have first-hand experience with discrimination and related issues.

• Moreover, unlike judges, Members of Congress are elected. When the Court has applied the majority's burden of proof rule, it has explained that we, i.e., the courts, do not "sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations. " To apply a rule designed to restrict courts as if it restricted Congress' legislative power is to stand the underlying principle--a principle of judicial restraint--on its head. But without the use of this burden of proof rule or some other unusually stringent standard of review, it is difficult to see how the Court can find the legislative record here inadequate. Read with a reasonably favorable eye, the record indicates that state governments subjected those with disabilities to seriously adverse, disparate treatment. And Congress could have found, in a significant number of instances, that this treatment violated the substantive principles of justification--shorn of their judicial-restraint-related presumptions--that this Court recognized in Cleburne.

State Waiver Required. Congress can, however, demand that states waive eleventh amendment immunity in return for participation in federally regulated activities. This is another complex area for further inquiry. In the recent Seminole Tribes v Florida case, the Court has made it clear that Congressional intent to abrogate immunity must not be inferred or implied, it must be "unmistakably clear."

• To temper Congress' acknowledged powers of abrogation with due concern for the Eleventh Amendment's role as an essential component of our constitutional structure, we have applied a simple but stringent test: `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.