As I said Wednesday, the amendment process in the United States is unique and it’s a blessing. It allows for flexibility in the governing process while also preventing chaos. The Constitution, our government’s job description, has been updated and edited twenty-seven times over the course of the past two and a half centuries. It’s about time we not only know, but understand, what these edits are and what they did.
Full disclosure. Until this blog post, I couldn’t have told you off the top of the my head what the Eleventh Amendment did, much less, any details about it. And that’s kinda the issue. We take so much of our liberty for granted, forgetting that it’s our job to protect it… NOT government’s. That means that it’s our job to know and understand how the job description of government has been changed.
“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.”Eleventh Amendment of the U.S. Constitution
In order to understand the historical context of the Eleventh Amendment, it’s first important to understand the concept of sovereign immunity.
Sovereign immunity is the idea that the King or government cannot be liable to civil suit unless the government consents. The English government first introduced the concept in 13th Century England, giving the King an immense amount of sovereign immunity. In other words, he can’t be liable for wrong doing or for doing his job poorly. This concept exists in governments around the world and has been taken to mean that governments can’t be sued by their own citizenries but also can’t be sued by the governments and citizenries of other countries.
The English colonists brought the concept of sovereign immunity from England to America, and although, technically the Constitution says nothing about sovereign immunity as it relates to the federal government, sovereign immunity is a concept that exists here.
The Constitution does vaguely mention the concept in Article III, Section 2 of the Constitution. It says: “The judicial Power shall extend . . . to Controversies . . . between a State and Citizens of another State; . . . and between a State . . . and foreign . . . Citizens or Subjects.”
In other words, can citizens sue states in federal court?
The Anti-Federalists, the members against the new Constitution and a stronger federal government, felt that this section opened the door for citizens of one U.S. state or a foreign state to sue another U.S. state in federal court, while members of the Federalists, the members who supported the new Constitution and a stronger federal government, believed that this section did not permit individuals to sue states in federal court.
The reason? All the writers of the Constitution agreed that it would create a dangerous precedent for citizens to be able to sue other state governments, for whatever reason, in federal court. Why? Because this would likely result in the use of federal power to coerce the state government in some way. And this is an issue because:
"This issue was of central—but largely forgotten—significance to the Constitution’s adoption. Congress originally charged the Philadelphia Convention with merely amending the Articles of Confederation, but the Convention concluded that it could not save the Articles without authorizing the use of force against states (and thereby risking a civil war). Thus, when the Convention proposed an entirely new Constitution, one of the first questions asked by skeptics was why the Articles could not simply be amended. Prominent Federalists explained that the new Constitution regulating individuals rather than states was necessary to avoid authorizing coercive force against states. As Alexander Hamilton explained, the federal government “must be founded, as to the objects committed to its care, upon the reverse of the principle” employed by the Articles. In his view, “we must extend the authority of the Union to the persons of the citizens—the only proper objects of government.” This change, he explained, would eliminate the need for “coercion of arms” against states and rely instead on “coercion of the magistracy” against individuals. The Federalist No. 15, 16.
Many found these arguments persuasive until Anti-Federalists pointed out that Article III of the proposed Constitution could be read to authorize suits against states in federal court. They argued that if Article III authorized such suits, then Congress would have power under the Necessary and Proper Clause to enforce any resulting judgment against a state through force if necessary. On this reading, Article III directly contradicted the Federalists’ claim that the Constitution was preferable to the Articles because it avoided reliance on coercive force against states. Federalists like Alexander Hamilton, James Madison, and John Marshall responded by denying that Article III should or would be read to authorize suits against states. They argued that the relevant provisions of Article III should be read only to permit suits by states. Based in part on these assurances, the Constitution was adopted." - Clark, George Washington University Law School
With all of this as the backdrop then, when the Supreme Court held, in Chislom vs. Georgia (1793) that a citizen of South Carolina could sue the government of Georgia in the early 1790s, federalists and anti-federalists in Congress were quick to remedy the problem. This was the first amendment to the Constitution and was much less a change to the Constitution than it was a clarification of what they already assumed to be clear from the Constitution.
"The Amendment did not purport to change the Constitution; rather, it sought to restore the preferred construction of Article III judicial power. This is why the Amendment states that the judicial power 'shall not be construed to extend' to the prohibited suits. This kind of Amendment was known as an 'explanatory amendment' because it merely sought to explain or correct a misinterpretation of a pre-existing legal text."
What It 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.”
This, taken in context then, means that states cannot be sued by their own citizens or citizens of another state in federal court. The founders believed this would give the federal government too much power over the states, something the founders expressly wanted to avoid.
While the principle of “sovereign immunity” is questionable, (unlike a business, government can’t be sued–separate from Constitutional claims–for poor service.) the principle that the federal government shouldn’t possess so much power over state governments is just another example of the importance place federalism holds in the make up of our nation’s government.
Exceptions to Rule
Does this amendment mean that no private individual or company can sue state governments (whether their own or another state) unless given permission by the state?
Kind of. Every state is going to have its own method of handling sovereign immunity in their court systems and Constitutions. However, federally, there are some exceptions to the rule. In other words, the Supreme Court has re-interpreted the Eleventh Amendment to mean that in some cases the federal government can allow the state government to be sued in federal court. Ex Parte v. Young (1908), Central Virginia Community College v. Katz (2005) and Fitzpatrick v. Bitzer (1972) all expanded Congressional power related to the Eleventh Amendment.
I won’t unpack them all in this article; however, I will leave you with a brief understanding of Fitzpatrick v. Bitzer. The Court, in this case, interpreted the Fourteenth Amendment to mean that the Eleventh Amendment can be violated in specific cases. In other words, the Supreme Court held that Congress has the authority, per the Fourteenth Amendment, to authorize private suits against states for monetary damages in specific cases.
“The case of ‘Fitzpatrick v. Bitzer’ was a landmark decision concerning jurisprudence concerning the 11th Amendment at the limits of state sovereignty. The case examined a discrimination case that pitted the 14th Amendment against the 11th Amendment.” States can be sued for discrimination and Congress has the power to allow this. As Chief Justice Rehnquist explained, “There can be no doubt that this line of cases has sanctioned intrusions by Congress, acting under the Civil War Amendments…”
I could unpack so much more, but I think I’ve already given you much to chew on. There’s an immense amount of knowledge to arm ourselves with as government’s employers. While few of us have likely every studied or understood the Eleventh Amendment, knowledge about the Eleventh Amendment may end up being what saves liberty.
The Liberty Belle