The Misunderstood Eleventh Amendment
56 Pages Posted: 18 Oct 2019 Last revised: 18 May 2021
Date Written: October 8, 2019
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: Suggested Citation