Guest Essayist: Kevin Theriot, Senior Counsel with the Alliance Defense Fund

Amendment XI

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 Immunity:  Good Legal Fiction

On its face, the Eleventh Amendment to the United States Constitution seems to provide a great deal of protection for states against lawsuits.  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.

Judicial interpretation has made it even broader.  For instance, the amendment appears to only prevent a private citizen of South Carolina from suing the State of Georgia in federal court.  But the Supreme Court has said that it also prohibits suits by citizens of Georgia from suing their own state in federal court, Hans v. Louisiana, 134 U.S. 1 (1890), and immunity even applies if the complaint is filed in Georgia’s state courts.  Alden v. Maine, 527 U.S. 706 (1999).

This judicial willingness to go well beyond the language of the Eleventh Amendment is based upon the idea that it is just one aspect of the broader doctrine of sovereign immunity, a doctrine that precedes the constitution itself.  Article III of the Constitution gives federal courts jurisdiction of cases “between a State and a citizen of another State.”  Historians suspect that most of the Founding Fathers anticipated that this would involve cases where a state is suing a citizen of another state, but not vice versa.  See 13 Charles Alan Wright, Miller, Federal Practice & Procedure § 3524 (3d ed. 2010).  The founders likely thought states were protected from suits by citizens by the well-established English Common Law rule that a sovereign could not be sued without its consent.  This foundational belief may explain the quick passage of the Eleventh Amendment, which was enacted shortly after the Supreme Court found in 1793 that a citizen of South Carolina could indeed sue the State of Georgia in federal court.  Chisholm v. Virginia, 2 U.S. (2 Dall.) 419 (1793).  It also explains why over the years the Court has viewed the Eleventh Amendment as just one aspect of a broader common law principle.

But it doesn’t explain why courts have made it so easy to circumvent the Eleventh Amendment.  For instance, someone who has had their civil rights violated by the state of Georgia cannot sue Georgia, but they can sue its head executive, Governor Deal.  For all practical purposes, the result for the plaintiff is the same.  If the plaintiff wins, the court will enter an injunction against the governor in his official capacity, which will affect all other state officials.  This principle was established in Ex Parte Young, 209 U.S. 123 (1908), and is often referred to as the “Ex Parte Young fiction.”  Practically, suing governors in their official capacity is just a suit against their state.  But the Court said the state officer could never really be given authority to violate the law, so it is not really a suit against the state.  One can understand why it is referred to as a “fiction,” since it resembles a Star Wars Jedi mind trick.  Later, the Court determined that a successful plaintiff can even obtain damages from state officials.  See Hafer v. Melo, 502 U.S. 21 (1991).

Why is it the Court feels justified in reading the Eleventh Amendment so broadly, but then completely undermining it with a legal fiction?  Most likely, it’s because judges understand that in a country built upon the concept of inalienable rights, state officials must be held accountable when they violate those rights.  In fact, in Chisholm, the case that prompted passage of the amendment, the Justices discussed “whether sovereign immunity—a doctrine born in a monarchy and based upon the notion that the crown could (or perhaps simply should) do no wrong—ought to play any role in the new democratic republic.”  Wright, Miller, supra, § 3524.

It seems unnecessarily complicated to adopt a legal fiction requiring plaintiffs to sue state officials in order to give lip service to a doctrine that shouldn’t even apply to our form of government.  But we do get the right result in the end – citizens have legal recourse against state officials that violate their rights. After all, subtle nuances, complicated plots, and happy endings are what good fiction is all about.

Kevin Theriot is senior counsel with the Alliance Defense Fund, a legal alliance that employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.


1 reply
  1. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    As good as this information is, and much I have wondered about, I have observed something else entirely different here. The US Constitution setup a problem where a citizen of a state could sue another state in federal court. Why is that a problem? Because it would choke the federal court system! The 11th then puts such cases in jurisdiction where it belongs, in the jurisdiction of the defendant who is supposedly the wrong doer or where the wrong was committed…not some jurisdiction far removed from the actual source of a complaint. But I have never taken the 11th to preclude any and all appealete actions to be banned from the federal courts; only to keep from starting entirely new court cases on such matters in the federal court system.


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