The Nature of the States' Immunity

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.


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 subject ity 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.43 It explains the decision in Edelman v. Jordan,44 in which the Court held that a state could properly raise its Eleventh Amendment defense on appeal after having defended and lost on the merits in the trial court. “[I]t has been well settled . . . that the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.”45 But that the bar is not wholly jurisdictional seems established as well.46

Moreover, if under Article III there is no jurisdiction of suits against states, the settled principle that states may consent to suit47 becomes conceptually difficult, as it is not possible to confer jurisdiction where it is lacking through the consent of the parties.48 And there is jurisdiction under Article III of some suits against states, such as those brought by the United States or by other states.49 Furthermore, Congress is able in at least some instances to legislate away state immunity,50 although it may not enlarge Article III jurisdiction.51 The Court has 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.”52

Another explanation of the Eleventh Amendment is that it merely recognized the continued vitality of the doctrine of sovereign immunity as established prior to the Constitution: a state was not subject to suit without its consent.53 This view also has support in modern case law: “the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . . .”54 The Court in dealing with questions of governmental immunity from suit has traditionally treated interchangeably precedents dealing with state immunity and those dealing with Federal Governmental immunity.55 Viewing the Amendment and its radiations into Article III in this way provides a consistent explanation of the consent to suit as a waiver.56 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 that is more than their coequal.57

Outside the area of federal court jurisdiction, Nevada v. Hall,58 perfectly illustrates the difficulty. This 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. Although it recognized 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.59

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 enactment of the Eleventh Amendment reversed the holding, that the states had given up their immunity to suit in diversity cases based on common law or state law causes of action; Hans v. Louisiana and subsequent cases held that the Amendment in effect codified an understanding of broader immunity to suits based on federal causes of action.60 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.61

Still another view of the Eleventh Amendment is that it embodies a state sovereignty principle limiting the power of the Federal Government.62 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.63

43 E.g., Employees of the Dep’t of Public Health and Welfare v. Department of Public Health and Welfare, 411 U.S. 279, 291–92 (1973) (Justice Marshall concurring); Nevada v. Hall, 440 U.S. 410, 420–21 (1979); Patsy v. Florida Board of Regents, 457 U.S. 496, 520 (1982) (Justice Powell dissenting); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 64 (1996).

44 415 U.S. 651 (1974).

45 415 U.S. at 678. The Court relied on Ford Motor Co. v. Department of Treasury of Indiana, 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.

46 See 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).

47 Clark v. Barnard, 108 U.S. 436 (1883).

48 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).

49 See, 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).

50 E.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).

51 The principal citation is, of course, Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803).

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

53 As Justice Holmes explained, the doctrine is based “on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). Of course, when a state is sued in federal court pursuant to federal law, the Federal Government, not the defendant state, is “the authority that makes the law” creating the right of action. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 154 (1996) (Justice Souter dissenting). On the sovereign immunity of the United States, see supra pp. 746–48. For the history and jurisprudence, see Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1 (1963).

54 Alden v. Maine, 527 U.S. 706, 713 (1999).

55 See, 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).

56 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).

57 See Fletcher,supra.

58 440 U.S. 410 (1979).

59 440 U.S. at 424 n.24. The Court looked to the Full Faith and Credit Clause as a possible constitutional limitation. The dissent would have found implicit constitutional assurance of state immunity as an essential component of federalism. Id. at 427 (Justice Blackmun), 432 (Justice Rehnquist). In Franchise Tax Board v. Hyatt, the Court was equally divided on the question of whether to overrule Hall, signaling that Hall’s continued viability may be a subject of future debate at the Supreme Court. Franchise Tax Bd. of Cal. v. Hyatt, 578 U.S. ___, No. 14–1175, slip op. at 1 (2016).

60 For a while only Justice Brennan advocated this view, Parden v. Terminal Ry., 377 U.S. 184 (1964); Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279, 298 (1973) (dissenting), but in time he was joined by three others. See,e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985) (Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, dissenting).

61 E.g., United States v. Texas, 143 U.S. 621 (1892); South Dakota v. North Carolina, 192 U.S. 286 (1904). See Kansas v. Colorado, 533 U.S. 1 (2001) (state may seek damages from another state, including damages to its citizens, provided it shows that the state has an independent interest in the proceeding).

62 E.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); Quern v. Jordan, 440 U.S. 332, 337 (1979).

63 See Hutto v. Finney, 437 U.S. 678 (1978), in which the various opinions differ among themselves as to the degree of explicitness required. See also Quern v. Jordan, 440 U.S. 332, 343–45 (1979). As noted in the previous section, later cases stiffened the rule of construction. The parallelism of congressional power to regulate and to legislate away immunity is not exact. Thus, in Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279 (1973), the Court strictly construed congressional provision of suits as not reaching states, while in Maryland v. Wirtz, 392 U.S. 183 (1968), it had sustained the constitutionality of the substantive law.