The Misunderstood Eleventh Amendment

56 Pages Posted: 18 Oct 2019 Last revised: 18 May 2021

See all articles by William Baude

William Baude

University of Chicago - Law School

Stephen E. Sachs

Harvard Law School

Date Written: October 8, 2019

Abstract

The Eleventh Amendment might be the most misunderstood amendment to the Constitution. Both its friends and enemies have treated the Amendment’s written text, and the unwritten doctrines of state sovereign immunity, as one and the same—reading broad principles into its precise words, or treating the written Amendment as merely illustrative of unwritten doctrines. The result is a bewildering forest of case law, which takes neither the words nor the doctrines seriously.

The truth is simpler: the Eleventh Amendment means what it says. It strips the federal government of judicial power over suits against states, in law or equity, brought by diverse plaintiffs. It denies subject-matter jurisdiction in all such cases, to federal claims as well as state ones, and in only such cases. It can't be waived. It can't be abrogated. It applies on appeal. It means what it says. Likewise, the Amendment does not mean what it does not say: it neither abridges nor enlarges other, similar rules of sovereign immunity, derived from the common law and the law of nations, that limit the federal courts’ personal jurisdiction over unconsenting states.

Current case law runs roughshod over these distinction, exposing sound doctrines to needless criticism and sometimes leading the Court off track. Understanding the Amendment’s text lets us correct these errors and respect the unwritten law the Amendment left in place.

Keywords: Eleventh Amendment, sovereign immunity, suits against states, Article III, Chisholm, waiver, diversity theory, federal-question jurisdiction, abrogation, Supreme Court

JEL Classification: K3, K39, K4, K40, K41, K49

Suggested Citation

Baude, William and Sachs, Stephen E., The Misunderstood Eleventh Amendment (October 8, 2019). University of Pennsylvania Law Review, Vol. 169, pp. 609-663 (2021), Duke Law School Public Law & Legal Theory Series No. 2019-75, Available at SSRN: https://ssrn.com/abstract=3466298 or http://dx.doi.org/10.2139/ssrn.3466298

William Baude

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Stephen E. Sachs (Contact Author)

Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States
617-495-5009 (Phone)

HOME PAGE: http://https://hls.harvard.edu/faculty/directory/11417/Sachs

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