# Someone explain the 11th Amendment to me **URL:** \ **Category:** Factual Questions\ **Created:** [November 9, 2001, 10:20pm UTC](https://boards.straightdope.com/t/someone-explain-the-11th-amendment-to-me/92521 "2001-11-09T22:20:10Z")\ **Posts on this page:** 16\ **Page:** 1
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [November 9, 2001, 10:20pm UTC](https://boards.straightdope.com/t/someone-explain-the-11th-amendment-to-me/92521/1 "2001-11-09T22:20:10Z")
> [@](#): > > 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. How does this translate into state immunity from civil suits brought under federal law? SCOTUS in recent years has immunized the states against a variety of suits under an Eleventh Amendment analysis, notably against suits brought under the Americans with Disabilities Act. But I’ve read it and read it and I just don’t see where it says “people who live in a state can’t sue the state.” Little help? ---
**Author:** ![BobT](https://avatars.discourse-cdn.com/v4/letter/b/8e8cbc/32.png) [@BobT](https://boards.straightdope.com/u/BobT)\ **Post date:** [November 9, 2001, 10:38pm UTC](https://boards.straightdope.com/t/someone-explain-the-11th-amendment-to-me/92521/2 "2001-11-09T22:38:03Z")
It seems pretty straightforward to me. If you live in State X you can’t sue State Y in a Federal Court. You have to sue State Y in State Y’s courts. ---
**Author:** ![kierk](https://avatars.discourse-cdn.com/v4/letter/k/8491ac/32.png) [@kierk](https://boards.straightdope.com/u/kierk)\ **Post date:** [November 9, 2001, 10:40pm UTC](https://boards.straightdope.com/t/someone-explain-the-11th-amendment-to-me/92521/3 "2001-11-09T22:40:19Z")
[QUOTE] \*Originally posted by Otto \* \*\* > [@](#): > > 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. I’m guessing it has to do with wether you think ‘citizens of another state’ in this sentence refers to ‘citizens of a state other than the one prosecuted’ or ‘citizens of any state in the union’. Redefine ‘judicial power of the united states’ as ‘federal law’ and you can see why any good federalist prefers definition 2 Kierk ---
**Author:** ![DPWhite](https://avatars.discourse-cdn.com/v4/letter/d/d26b3c/32.png) [@DPWhite](https://boards.straightdope.com/u/DPWhite)\ **Post date:** [November 9, 2001, 10:49pm UTC](https://boards.straightdope.com/t/someone-explain-the-11th-amendment-to-me/92521/4 "2001-11-09T22:49:28Z")
If someone could explain the 11th Amendment to you, they would be the first. It is considered bizarre and is not enforced. ---
**Author:** ![BobT](https://avatars.discourse-cdn.com/v4/letter/b/8e8cbc/32.png) [@BobT](https://boards.straightdope.com/u/BobT)\ **Post date:** [November 9, 2001, 10:52pm UTC](https://boards.straightdope.com/t/someone-explain-the-11th-amendment-to-me/92521/5 "2001-11-09T22:52:03Z")
You can read all about in the Annotated Version of the Constitution that is online. [http://www.access.gpo.gov/congress/senate/constitution/amdt11.html](http://www.access.gpo.gov/congress/senate/constitution/amdt11.html) I gave up after about 3 paragraphs. ---
**Author:** ![kniz](https://avatars.discourse-cdn.com/v4/letter/k/c37758/32.png) [@kniz](https://boards.straightdope.com/u/kniz)\ **Post date:** [November 9, 2001, 11:01pm UTC](https://boards.straightdope.com/t/someone-explain-the-11th-amendment-to-me/92521/6 "2001-11-09T23:01:43Z")
Go [here](http://gi.grolier.com/presidents/aae/side/11amend.html) Basically, I think it comes down to: you can’t sue the state unless the state is willing to let you. As to letting individuals off the hook, I believe the state can do that. Our state SC decided that our constitution didn’t cover state officals and boy did they get excited until a law was passed to cover them. ---
**Author:** ![Johanna](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johanna/32/8318_2.png) [@Johanna](https://boards.straightdope.com/u/Johanna)\ **Post date:** [November 9, 2001, 11:02pm UTC](https://boards.straightdope.com/t/someone-explain-the-11th-amendment-to-me/92521/7 "2001-11-09T23:02:52Z")
So if “it’s considered bizarre and not enforced,” why on earth did they bother with it in the first place? ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [November 9, 2001, 11:33pm UTC](https://boards.straightdope.com/t/someone-explain-the-11th-amendment-to-me/92521/8 "2001-11-09T23:33:25Z")
BobT > [@](#): > > If you live in State X you can’t sue State Y in a Federal Court. You have to sue State Y in State Y’s courts. But what SCOTUS has said is that you can’t sue State X. And I don’t understand where they get that from. DPWhite > [@](#): > > It is considered bizarre and is not enforced. Considered bizarre by whom? If it’s not enforced, why has SCOTUS used it to bar ADA suits, among others, against states? Maybe I didn’t phrase the OP very well…sorry. ---
**Author:** ![Jodi](https://avatars.discourse-cdn.com/v4/letter/j/7feea3/32.png) [@Jodi](https://boards.straightdope.com/u/Jodi)\ **Post date:** [November 10, 2001, 12:03am UTC](https://boards.straightdope.com/t/someone-explain-the-11th-amendment-to-me/92521/9 "2001-11-10T00:03:13Z")
OTTO – > [@](#): > > How does this translate into state immunity from civil suits brought under federal law? Frankly, by interpreting it to mean something it pretty obviously doesn’t say – namely, that citizens of one state may not sue _their own_ state. Why not? Because the concept of “sovereign immunity” means that _no_ state can be sued without its permission. The courts have consistently held that this bar to suit is not dependent on where the plaintiff lives. In other words, states are either sovereign and immune or they are not, and the fact that the plaintiff is a citizen of that same state doesn’t change that. So basically the thinking is, “The same rationale that would bar suit of a state you _don’t_ live in (sovereign immunity) would reasonably bar suit of a state you _do_ live in, so we’re going to read that into the Amendment, even though it obviously doesn’t say that.” How can they do that? By declaring **“We have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms.”** Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 115 L. Ed. 2d 686, 111 S. Ct. 2578 (1991). Strange as it may seen, given that it is subject to the “But it doesn’t _say_ that!” attack, this point of Eleventh Amendment law is pretty conclusively settled. ---
**Author:** ![Jodi](https://avatars.discourse-cdn.com/v4/letter/j/7feea3/32.png) [@Jodi](https://boards.straightdope.com/u/Jodi)\ **Post date:** [November 10, 2001, 12:08am UTC](https://boards.straightdope.com/t/someone-explain-the-11th-amendment-to-me/92521/10 "2001-11-10T00:08:58Z")
By the way, it is IMO in no way accurate to say that the Eleventh Amendment is “considered bizarre” and “is not enforced.” In my former capacity as a state’s attorney, I used it routinely to get the State out of litigation brought against it in Federal court. I also believe it is the subject of much discussion and many scholarly articles, precisly because the “we’re going to declare it says something it doesn’t say” interpretation is obviously (a) extremely fluid and (b) without boundaries. So it’s "bizarre"ness is not in what it says – because really it’s quite clear in what it _does_ say – but rather in the parameters of deciding what else it will be _implied_ to say. But Eleveth Amendment issues come up frequently for anyone who routinely defends or sues state-level government. It’s a very, very common stick with which to whack a state-suing plaintiff. ---
**Author:** ![schplebordnik](https://avatars.discourse-cdn.com/v4/letter/s/91b2a8/32.png) [@schplebordnik](https://boards.straightdope.com/u/schplebordnik)\ **Post date:** [November 10, 2001, 3:50am UTC](https://boards.straightdope.com/t/someone-explain-the-11th-amendment-to-me/92521/11 "2001-11-10T03:50:40Z")
I think the amendment considered “bizarre” and “not enforced” is Amendment X (Tenth Amendment, not the Mystery Amendment). Although lots of conservative legal scholars think Amendment X is a good basis for limiting the powers of the Federal Government. So far, they haven’t been successful. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 10, 2001, 4:07pm UTC](https://boards.straightdope.com/t/someone-explain-the-11th-amendment-to-me/92521/12 "2001-11-10T16:07:54Z")
**Otto,** I think you’re asking the wrong question. The question isn’t: “What part of the federal constitution bars a citizen from suing his/her state in federal court?” The question really is: “What part of the federal constitution **gives** the federal courts jurisdiction to hear suits against the state by one of the state’s own citizens?” When you start from that point, the XIth Amendment becomes much easier to understand. (Note: “easier” not “easy.”) Go back to before the federal constitution was ratified. It was a long-standing doctrine that a sovereign state could not be sued in its own courts, unless the state consented to be sued. Absent consent, the state could not be sued. Then add on the federal constitution, which granted powers to the federal government. How does state immunity from suit operate when you have two different sets of courts, federal, and state? Well, the classic analysis is that the states retain their sovereignty, except as limited by the federal constitution. So the question then is: is there anything in the federal constitution which takes away the state’s immunity from suit and allows suits in federal courts? This point was vigourously debated at the time of the ratification of the Constitution, and there was no clear answer. The relevant provision of the Constitution was found in [Article III, § 2,](http://www.law.cornell.edu/constitution/constitution.articleiii.html#section2) dealing with the judicial power of the United States: > [@](#): > > Section 2. 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 affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–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. You would think the bolded passage is pretty straightforward: the federal courts have jurisdiction to suits between a citizen of another state and the state. That’s how George Mason and Patrick Henry of Virgina interpreted it in the debates in the Virginia Legislature, and gave it as one reason why they opposed ratification. Madison and Marshall, also members of the Virginia Legislature, disagreed. They responded that it only applied when the State was the _plaintiff_ in the federal courts; that it didn’t affect the State’s right to claim immunity when it was the _defendant_. Randolph, also in the Virginia debates, said that it did allow for states to be sued, and that was a good thing, in his opinion. Hamilton, writing in [Federalist No 81,](http://www.yale.edu/lawweb/avalon/federal/fed81.htm) denied that the states could be sued in federal courts. So much for that sacred cow of constitutional conservatives, Original Intent! (Mason, Madison, Randolph and Hamilton had all been delegates to the Philadelphia Convention.) But the key to your inquiry is that the provision which I have bolded, which on the face of it seems to grant at least some jurisdiction to the federal courts to hear suits against a state, only refers to suits involving a non-citizen of the state. Going on the analysis that the states retained what they did not cede, there is a very good argument that by specifically referring to suits involving non-citizens, and only non-citizens, the states which ratified the Constitution had not ceded their immunity from suits brought by their own citizens. This is the _expressio unis_ principle of interpretation: an express reference to an issue shows that the legislator has turned his mind to the issue, and if the law only deals with a specific issue, that is a good indication that it does not deal with other, related issues - the legislator decided not to include the other matters. So, although the issue of suits by citizens of the state against their own state did not arise prior to the XIth Amendment, the original text of Article III suggests that the federal courts did not have jurisdiction to hear such suits. So how does the XIth Amendment get cited in support of the proposition that the federal courts do not have jurisdiction for suits by citizens against their own state? The history of the Amendment helps to explain that point. Very soon after the Constitution came into force, the Supreme Court dealt with the issue of suits by non-citizens. In [Chisolm v. Georgia, 2 U.S. 419 (1793)](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=2&invol=419), the Court relied on the bolded passage of Article III, §2, to hold that the citizen of another state could sue the state of Georgia in the federal courts. Outrage resulted, and the XIth Amendment was speedily passed to prevent such suits in the future. Now, it’s true that the XIth Amendment does not speak to suits by the citizens of a state against their own state. But, we go back to the principle that the states retain their sovereignty unless surrendered. From the perspective of a federal system, presumably allowing non-citizens to sue a state triggers a federal interest: the Constitution tends to give the federal government some powers in relation to conflicts crossing state boundaries, because a single state either cannot regulate such things, or cannot be impartial as between its own interests and the interests of another state, or citizens of another state. So, from a theoretical approach, there is a reasonable argument that the federal courts should have jurisdiction over suits between a non-citizen and a state. There is no similar argument that federal courts should have jurisdiction over suits between a state and its own citizens - there is no federal interest, according to classic federalism theory. [Note - I’m ignoring for the purposes of discussion the concept of the federal government as protector of a citizen’s civil rights against the citizen’s own state - that was a much later development in federalism theories, as indicated by the XIVth Amendment.] So, if there is a greater theoretical basis for non-citizens to be able to sue a state in federal courts, and the XIth Amendment says that the federal courts do not have that jurisdiction, then that express prohibition also supports the argument that implicitly, the federal Constitution does not give the federal courts jurisdiction to hear suits by a citizen against their own state, which has much less justification in federalism theory. That roughly is the position set out by the Supreme Court in [Hans v. State of Louisiana, 134 U.S. 1 (1890)](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=134&page=1), in which the Court held that a citizen of Louisiana could not sue the State of Louisiana in federal courts, even though the citizen’s claim was based on the “no impairment of contracts” clause of the federal Constitution. [Note: that holding did not mean that the citizen was barred from relying on the “impairment” clause to challenge state action; it just mean that the citizen had to sue Lousiana in state court, relying on the federal Constitution.] Whew. That’s a lot to explain a seemingly simple question. And what do I know? I’m just a Canuck. Would welcome comments on the above analysis. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 10, 2001, 7:26pm UTC](https://boards.straightdope.com/t/someone-explain-the-11th-amendment-to-me/92521/13 "2001-11-10T19:26:44Z")
Just remembered - forgot to include a reference to the [Findlaw Annotation](http://caselaw.lp.findlaw.com/data/constitution/amendment11/01.html#1) to the XIth Amendment - you might find that helpful as well. ---
**Author:** ![ignatius\_reilly](https://avatars.discourse-cdn.com/v4/letter/i/db5fbb/32.png) [@ignatius\_reilly](https://boards.straightdope.com/u/ignatius_reilly)\ **Post date:** [May 2, 2002, 1:48pm UTC](https://boards.straightdope.com/t/someone-explain-the-11th-amendment-to-me/92521/14 "2002-05-02T13:48:47Z")
Not to revive a long-dead thread, but here’s the test for soverign immunity we used in my Federal Courts class taught by Prof. Paul Salamanca at the University of Kentucky, Spring 2002: 11th Amendment Checklist Scenario #1: P Sues D in State Court 1. P asserts state law cause of action \*Suit may proceed; D may not invoke SI 2. P asserts federal cause of action \*Move on to Step #1 Step #1: Who is P? 1. The United States \*Suit may proceed; D may not invoke SI 2. Another state-Is the state a real party in interest? \*Yes-Suit may proceed; D may not invoke SI \*No-Move to analysis directly below 3. US citizen, foreign alien, foreign country, foreign corporation, Indian tribe \*Move on to Step #2 Step #2: Who is D? 1. Is D an entity or an individual? \*If D is an entity, move to Step #3 \*If D is an individual, move to Step #6 Step #3: D as an Entity 1. Is the entity a state, an arm of a state, or a subdivision of a state? 2. Pagan test (formulated by Prof. John Pagan)-If answers to these are “yes” entity is an arm of the state \*Would judgment against the entity be paid out of state funds? \*Does the state get to exert control over the entity’s decisions? \*Does the state’s executive or legisature appoint the entity’s policymakers? \*Does state law characterize the entity as a state agency rather than a subdivision? Step #4: D as a State or an Arm of a State 1. Did the state unequivocally waive immunity? \*Yes-Suit may proceed; D may not invoke SI \*No-Move on to #2 2. Did Congress enact the statute which created the cause of action pursuant to powers under the Reconstruction Amendments? If so: \*Did Congress say with unmistakable clarity that P could sue states in federal court for violation of the statute? \*Yes-D may not invoke SI \*No-D may invoke SI 3. Did Congress enact the statute pursuant to powers which existed before the enactment of the 11th Amendment? If so: \*Did Congress act pursuant to its spending power? \*Yes-If so: \*Did Congress unambiguously require as a condition for receiving federal money that states waive their soverign immunity? \*Yes-D may not invoke SI \*No-D may invoke SI \*No-D may not invoke SI Step #5: D as a Subdivision of a State 1. If D is a subdivision of a state, D may not invoke SI Step #6: D as an Individual 1. Is D an officer of a state or an arm of a state or is D an officer of a subdivision of a state? 2. Pagan test-If answers to these are “yes” D is an officer of an arm of a state \*Would judgment against the entity be paid out of state funds? \*Does the state get to exert control over the entity’s decisions? \*Does the state’s executive or legisature appoint the entity’s policymakers? \*Does state law characterize the entity as a state agency rather than a subdivision? Step #7: D as an Officer of a State or an Arm of a State 1. How intrusive is the remedy P seeks? \*If remedy is unintrusive (ex. damages), D may not invoke SI \*If remedy is moderately intrusive (ex. declaratory judgment, injunction, replevin), move on to Step #8 \*If remedy is highly intrusive (the remedy controls disposition of the state’s assets), move on to Step #9 Step #8: P Seeks a Moderately Intrusive Remedy 1. If P claims that D breached a personal duty to obey federal law, ask if Congress set forth an elaborate mechanism for suit (that effectively can’t be bypassed) against a state or its officers to compel obedience to federal law \*Yes-Analyze using Step #4 \*No-D may not invoke SI 2. If P claims that D breached a personal duty to obey state law: \*If P sues D in state court, court may predicate an order on state law if it so chooses \*If P sues D in federal court, analyze using Step #4 Step #9: P Seeks a Highly Intrusive Remedy 1. Analyze using Step #4 Scenario #2: P Sues D in Federal Court 1. Is the case in the Supreme Court on a writ of certiorari? \*If so, the 11th Amendment DOESN’T apply 2. Did the case originate in federal court? \*If so, analyze using Steps 1-9 See why this stuff is so %&%^% difficult to figure out? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 2, 2002, 3:42pm UTC](https://boards.straightdope.com/t/someone-explain-the-11th-amendment-to-me/92521/15 "2002-05-02T15:42:21Z")
Just out of curiosity exactly _who_ ‘consents’ to allow a state to be sued? The Governor of that state? The state’s legislature? A state Supreme Court judge? Any old judge? The President of the US? SCOTUS? A referendum? Sorry for the hijack… ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [May 2, 2002, 3:54pm UTC](https://boards.straightdope.com/t/someone-explain-the-11th-amendment-to-me/92521/16 "2002-05-02T15:54:48Z")
> [@](#): > > \*Originally posted by Whack-a-Mole \* > **Just out of curiosity exactly _who_ ‘consents’ to allow a state to be sued? The Governor of that state? The state’s legislature? A state Supreme Court judge? Any old judge? The President of the US? SCOTUS? A referendum?** For I would guess the majority of cases, consent is given via statute. For instance, the Federal Tort Claims Act states that it waives federal sovereign immunity in certain cases when plaintiffs have a tort claim against the government. Before the existence of the Act (and still today, but less frequently, probably), permission to sue can be granted to via a private bill, which is an Act, passed by Congress in the normal way, but which applies only to one or a few named persons instead of the population generally. Another major source of waiver is in contracts between the government and private vendors or service providers. No one’s going to sell to the government if they have no recouse should the government take delivery and refuse to pay. Agencies should be expected to have the power to waive their own immunity. (And most gov’t contracts are made in accordance with very specific federal laws on the, which themselves authorize waiver when they are employed.) –Cliffy