Amendment to provide federal jurisdiction when a state violates your federal rights

Amendment to provide federal jurisdiction when a state violates your federal rights

I submit for the consideration of this board the following amendment to the United States Constitution:

SECTION 1. The eleventh article of amendment to the Constitution of the United States is hereby repealed.

SECTION 2. 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, unless such a case arises under this Constitution, the Laws of the United States, or Treaties made, or which shall be made, under their Authority.

SECTION 3. 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 or Subjects of any Foreign State.

I’m not a lawyer and if you agree with the gist but have a better way of putting it on paper, I’m definitely open to revision. I am also very interested your general opinion of this amendment. I’ve put a rather winded rationale below, but the main subject of this thread is above.

As originally written, Article III Section 2 of the United States Constitution reads thus:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Supreme Court originally ruled that it had original (but not exclusive) jurisdiction for cases brought against a state by a citizen of another state (Chisholm v. Georgia, 1793). This seems like the correct interpretation of the Constitution as it was then, my construction of the text would be “The judicial Power shall extend to all Cases… between a State and Citizens of another State” and “In all Cases… in which a State shall be a Party, the supreme Court shall have original jurisdiction”.

Just over a year later the Congress proposed the Eleventh Amendment which reads:

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.

In 1795 enough states ratified the amendment to make it part of the Constitution. I think that was a mistake, as a state could now violate the Constitution without worrying about mere citizens bringing suit in federal court. There weren’t many limits on state powers at the time, but even then the Constitution prohibited a state from passing a bill of attainder, ex post facto law, or law impairing the obligation of contracts. The prohibition on bills of attainder was basically the closest thing to civil rights guaranteed to all citizens, and the Eleventh Amendment removed that right from federal jurisdiction.

It is true that one state could bring suit against another state (in federal court) for violating the Constitution. This is reasonable for some violations, such as a state impairing a contract it made with another state. But I imagine other states might not always have standing. If the Georgia legislature passed a law unilaterally sentencing one of its citizens to twenty years in the galleys, South Carolina would have to use more than commerce-clause-style logic to show standing.

It is also true that the federal government itself could bring suit, but only if Congress finds the Constitutional authority in some other provision to override state law (see the enumerated powers in Article I Section 8, also the Tenth Amendment), and only then if Congress actually passed a law that contradicts the state law. That pretty much limited the federal government to the commerce clause, which was taken to mean actual interstate trade until Gibbons v. Ogden (1824), the necessary and proper cause, which has rarely been used except for the national bank and in conjunction with the commerce clause, the counterfeit clause, and the naturalization and bankruptcy clause (used in Dred Scott v. Sandford, 1857).

What are we left with? Unless another state or the federal government can show standing, the state itself (via its courts) must decide whether its own actions violate the federal Constitution. Do you see the conflict of interest here?

Luckily, or perhaps unluckily, the state of Missouri and the Supreme Court failed to even broach the issue of jurisdiction in Cummings v. Missouri (1867). As a result the Supreme Court did in fact hear and decide a case brought by a citizen against his own state, and even overturned the state Supreme Court, despite (in my opinion) lacking jurisdiction. Presumably Missouri waived her Eleventh Amendment rights and voluntarily asked the Supreme Court to act as an arbiter, but I feel like the Eleventh Amendment left a loophole so contrary to reason and justice that Missouri did not even realize it existed.

Enter the Fourteenth Amendment, passed in 1869 with its due process clause:

SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

SECTION 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Now, the Fourteenth Amendment is one of the best if not the best guarantee of civil rights in our Constitution. Think what you may about incorporation of the bill of rights, it is unquestionable that the Fourteenth Amendment allowed Congress to protect the basic civil rights of black people through the Civil Rights Act of 1866. It cannot be denied that the United States has direct standing to sue states who violate a Constitutional act of Congress. Therefore could a black man bring suit against his state for curtailing his Constitutionally guaranteed right to due process of law?

The answer is no, and it remains no to this day for all men and women. The mere citizen may only bring suit in federal court when provided a private cause of action by the grace of Congress (see Fitzpatrick v. Bitzer, 1976); otherwise his only remedy is in the state courts. And as I said before, the state has a major potential conflict of interest here. Don’t take my word for it: see Hans v. Louisiana (1890) where the Supreme Court said a private citizen could not sue Louisiana for passing a law invalidating his state bonds, despite the Constitutional prohibition on state laws impairing the obligations of contracts; also Alden v. Maine (1999) where employees of the state of Maine alleged FLSA violations, only to be told the federal courts have no jurisdiction, the state courts say it’s barred by sovereign immunity, and the Supreme Court says it has no jurisdiction to review the state court’s claim of sovereign immunity.


Alden v. Maine 527 U.S. 706 (1999)

Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)

Cummings v. Missouri, 71 U.S. 277 (1867)

Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)

Hans v. Louisiana 134 U.S. 1 (1890)

U.S. Const. amend. X

U.S. Const. amend. XI

U.S. Const. amend. XIV, sec 1 & 5

U.S. Const. art. I, sec 8

U.S. Const. art. III, sec 2

Don’t we already have what you proposed through 42 U.S.C 1983 lawsuits? Yes, those don’t permit you to sue the state directly, but they permit you to sue the official, acting under color of law for deprivation of constitutional rights.

The federal courts have jurisdictions via the US Code when civil liberties have been violated.

Also, 18 USC 242: 18 USC 245: 18 USC 249

But the proposal would restrict the rights of Mom-citizens to sue a state in federal court to protect the non-citizen’s rights under the US Constitution or federal statutes. And I’m not talking about illegal immigrants.

If I’m living in the States with a proper visa under federal law, and the state infringes my constitutional or federal statutory rights, why should I be barred from going to federal court to protect my constitutional or federal statutory rights?

State Courts are not divested of Complaints arising from violations of Federal law, with a few exceptions that give Federal Courts mandatory jurisdiction.

You can file a 1983 action in your State Court also.

The distinction is critical, and your conclusion only follows for injunctive relief and declatory judgement, not damages.

You can’t overcome sovereign immunity attached to an official state policy with a §1983 claim. §1983 claims can only be brought against a “person”. Tortfeasers are people (Monroe v. Pape). Municipal bodies can be considered a “person” if acting in an official capacity (not under a respondeat superior theory; Monell v. Department of Social Services, 1978). You can stretch the statute all the way up to county level (eg: Los Angeles County v. Humphries, 2010), but you can’t implicate the state itself, nor persons acting under state authority in their official capacities (Will v. Michigan Department of State Police, 1989).

An amendment would satisfy the formalists, who currently have to grapple with the disparity between injunctive and monetary relief (ex parte Young, 1908).

Ex parte Young some railroad shareholders sued Minnesota for allegedly setting railroad prices contrary to the due process and commerce clauses. They also sued Young, the Attorney General of Minnesota, to enjoin him from enforcing those laws. Young argued that the state was immune under the Eleventh Amendment and ignored an injunction from the circuit court. That landed him in the custody of the U.S. Marshals service, and the case was his writ of habeas corpus. The Court rejected this writ, but in my opinion their logic is quite contorted. To paraphrase,
The state attorney general enforcing this clearly written state law could not possibly be acting on behalf of the state, because no state would possibly pass an unconstitutional law. Nay, he must have become a tortfeasor at the moment he decided to enforce this law which the state, despite directing him to enforce the law with fines and penalties, could not possibly have intended to enforce. At the same time this state attorney general is clearly acting in his official capacity and therefore is immune from personal liability.

I mean, after all it is the state which decides whether an official can be sued in federal court. See the Federal Rules of Civil Procedure, rule 17(b):
(b) CAPACITY TO SUE OR BE SUED. Capacity to sue or be sued is determined as follows:
[ol][li]for an individual who is not acting in a representative capacity, by the law of the individual’s domicile;[/li][li]for a corporation, by the law under which it was organized; and[/li][li]for all other parties, by the law of the state where the court is located, except that:[/li][LIST=A][li]a partnership or other unincorporated association with no such capacity under that state’s law may sue or be sued in its common name to enforce a substantive right existing under the United States Constitution or laws; and[/li][li]28 U.S.C. §§754 and 959(a) govern the capacity of a receiver appointed by a United States court to sue or be sued in a United States court.[/ol][/LIST][/li]

Ex parte Young, 209 U.S. 123 (1908)

Los Angeles County v. Humphries, 562 U.S. 29 (2010)

Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978)

Monroe v. Pape, 365 U.S. 167 (1961)

Will v. Michigan Department of State Police, 491 U.S. 58 (1989)

I had in mind civil jurisdiction. None of these criminal statutes are guaranteed to help the victim, who is powerless to bring suit under criminal law and would not be entitled to a red cent even if the official was convicted.

That being said, 242 and 249 could be used by the federal government to fine or possibly imprison state officials for depriving someone of their rights, regardless of whether the official was following state law. To do so for an official acting according to the letter of the state law, rather than admonish the state, would be distasteful to some people. Then again, that’s the difference between us and Nazis. That might make for an interesting debate thread: a state passes a law directing its officials to act unconstitutionally. What should the officials do?

243 makes itself inapplicable for official state policies that violate the Constitution. I quote:
(1)(A)Nothing in this section shall be construed as indicating an intent on the part of Congress to prevent any State, any possession or Commonwealth of the United States, or the District of Columbia, from exercising jurisdiction over any offense over which it would have jurisdiction in the absence of this section, nor shall anything in this section be construed as depriving State and local law enforcement authorities of responsibility for prosecuting acts that may be violations of this section and that are violations of State and local law…


Correct to a point. The courts have ruled that 1983 suits still retain common law immunities like judicial immunity, legislative immunity, and prosecutorial immunity and the like. The trick is to sue the right person.

Let’s say that Alabama passes a law against interracial marriage. Clearly unconstitutional. You cannot sue the Legislature or the Governor or even the District Attorney who charges you under the law.

But Dudley Doright of the local sheriff’s department who arrested you? He’s not immune. When he cuffed you and put you in jail he restricted your liberty under the 14th amendment without due process of law, and he violated your 4th amendment right against an unreasonable seizure.

And when he did so, he is not entitled to qualified immunity because if he was a reasonable trained police officer versed in the law, he should have known that he had no power to arrest you like he did and is liable for damages.

If you are convicted and sent to jail or prison, the Sheriff or the Warden of the penitentiary is also violating your constitutional rights and you can sue them.

It is sort of a contrivance, but it preserves the polite legal fiction that the state itself would never intentionally violate your rights, it has to be some rogue agent. Even when that agent is acting on orders from the state.

Oh, ok Max.

I found this online, 1983 isn’t as easy as I thought.

I believe this is explicitly not allowed under the Eleventh Amendment, but then that is overruled by the Fourteenth Amendment if the Congress provides you with a cause of action, and my proposal does not (purposely) change that situation.


You can’t sue them for monetary damages. I believe ex parte Young is still good law, and the Court seemed to uphold the injunction against the Minnesota AG.

Yes he can be, in certain jurisdictions (Alabama) and depending entirely on state law. If the sheriff’s actions represent county policy, then the county is responsible. If the sheriff’s actions represent state policy, both he and the state are entitled to sovereign immunity (McMillan v. Monroe County, 1997).


McMillian v. Monroe County, 520 U.S. 781 (1997)

I dispute this too. The warden is not liable for a false conviction. He relied on the due process of the trial. The U.S.C. provides for monetary relief, but again this is entirely the goodwill of Congress. Unless you find something in the FTCA or elsewhere to implicate the warden for the judge’s mistake in failing to rule out the sheriff’s poisoned fruits, you don’t have a case.


But it seems you are arguing that the situation should be changed for citizens of other states, but should remain the same for citizens of foreign countries. Why not treat them the same?

I did not argue that the situation should stay the same for foreign citizens, but neither did I attempt to change it. I would not be averse to a revision that affords aliens with federal jurisdiction should their rights be curtailed by state powers.

I would not extend this jurisdiction to treaties. States are expressly prohibited from being a party to any treaty, and aliens are rarely a party either. Therefore should a State curtail the alien’s rights guaranteed by treaty, if the State claims sovereign immunity, the alien’s cause of action must be joined by their home country against the federal government, under a doctrine of respondeat superior.

Here is a revised section 3:
SECTION 3. 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 or Subjects of any Foreign State, unless such a case arises under this Constitution or the Laws of the United States.


I would like to add that if the federal government is found not to have the authority to enforce the treaty, such a case might very well end up with the treaty being declared unconstitutional and void (which has never happened, to my knowledge). If the treaty was enforceable, but no federal legislation was enacted to enforce its terms, that constitutes a shortcoming on the federal government’s part for failing to implement the treaty. If the treaty was enforceable and federal legislation was enacted to enforce its terms, and if that legislation provided the alien with rights, then the alien has a cause of action against the state not under the treaty, but under said federal legislation.