What is Eleventh Amendment Immunity?

Abstract:     
The Supreme Court's Eleventh Amendment decisions give conflicting signals about what the Amendment does. On one view, the Amendment functions as a forum-allocation principle--immunizing states from liability in suits filed in federal court, but leaving open the possibility that states may be compelled to entertain suits against themselves in their own courts. A separate line of cases, however, implies that state courts enjoy an immunity from suit in their own courts and that nothing in the Constitution withdraws such immunity; on this view, the Eleventh Amendment, by protecting the states from suit in the federal courts, effectively immunizes the states from any damage liability to individuals under federal law. This latter view finds strong support in last term's decision in Seminole Tribe of Florida v. Florida. This article examines the doctrinal support for these competing lines of cases, and looks for ways to reconcile them. The article also considers the rule-of-law ramifications of adopting the latter interpretation of the Amendment. It concludes that so long as officials remain personally liable in damages for their willful violations of federal law, the latter interpretation comports tolerably well with the rule-of-law ideal that for violations of federal rights there be a federally enforceable remedy. If so, then what matters most from a rule-of-law perspective is not so much which of the two interpretations of the Eleventh Amendment the Court adopts, but that it clearly and definitively adopt one or the other.

Number of Pages in PDF File: 125

Keywords: Eleventh Amendment, Supreme Court, appellate jurisdiction, due process, sovereignty, Immunity from liability, litigation, Supremacy Clause

JEL Classification: K30, K39, K00

Accepted Paper Series