Georgetown Center for the Constitution

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.

Related Citations

Will Baude & Stephen E. Sachs, The Misunderstood Eleventh Amendment, 169 U. Pa. L. Rev. 609 (2020).

Arguing that the Eleventh Amendment means what it says and should not be read to encompass broad principles such as sovereign immunity in its precise words. Explaining how the Eleventh Amendment has been misunderstood in various ways and outlining the proper understanding of each phrase within the Amendment by examining its text, history, and relationship to the common law. Concluding that the Amendment eliminates federal judicial power over all cases filed against states by diverse plaintiffs and that it cannot be waived or abrogated.

Kurt T. Lash, Leaving the Chisholm Trail: The Eleventh Amendment and the Background Principle of Strict Construction, 50 Wm. & Mary L. Rev. 1577 (2008).

Providing a thorough summary of the Eleventh Amendment’s drafting. Looking to numerous sources of original meaning, such as letters and debates between the drafters. Arguing that the modern emphasis on Chisholm v. Georgia as the “generative source” of the Amendment is historically inaccurate. Concluding that a lesser focus on Chisholm provides better insight into the debate over state suability.

Randy E. Barnett, The People or the State?: Chisholm v. Georgia and Popular Sovereignty, 93 Va. L. Rev. 1729 (2007).

Comparing the Eleventh and Ninth Amendments to argue that the Eleventh Amendment was not a reversal of Chisholm v. Georgia’s view of popular sovereignty.

Andrew B. Coan, Text as Truce: A Peace Proposal for the Supreme Court’s Costly War Over the Eleventh Amendment, 74 Fordham L. Rev. 2511 (2005).

Claiming that the debate over the Eleventh Amendment has not focused enough on its text and that the result has made the Court appear partisan. Arguing that originalists should accept the textual reading because its drafters intended it to be applied just as it is read.

Arguing that contemporary atextual interpretations of the Eleventh Amendment should be anathema to conservatives, especially as those interpretations are not supported by history or the intent of the ratifiers.

Michael B. Rappaport, Reconciling Textualism and Federalism: The Proper Textual Basis of the Supreme Court’s Tenth and Eleventh Amendment Decisions, 93 Nw. U. L. Rev. 819 (1998).

Attempting to reconcile the clash between federalism and atextual Tenth and Eleventh Amendment decisions by providing a textual interpretation of these Amendments. Contending that conservatives should not favor departing from the text to further federalism, as they open themselves up to criticisms of hypocrisy for elevating a substantive end above proper interpretation. Offering an interpretation that relies on the word “State” to suggest state immunities exist.

James E. Pfander, History and State Suability: An “Explanatory” Account of the Eleventh Amendment, 83 Cornell L. Rev. 1269 (1998).

Arguing that a fuller interpretation of the Eleventh amendment is possible by looking to history and offering a new synthesis of it. Drawing on primary source material to analyze discussions of state suability in the 1790s. Noting that such debates happened against the broader context of a national debate over fiscal policy that helped shape the new federal Constitution.

David J. Bederman, Admiralty and the Eleventh Amendment, 72 Notre Dame L. Rev. 935 (1996).

William A. Fletcher, The Diversity Explanation of the Eleventh Amendment: A Reply to Critics, 56 U. Chi. L. Rev. 1261 (1989).

Analyze the “diversity explanation” of the Eleventh Amendment by looking to “known historical facts.” Also discussing the ratifying convention’s treatment of proposals for state-citizen diversity jurisdiction.

Lawrence C. Marshall, Fighting the Words of the Eleventh Amendment, 102 Harv. L. Rev. 1342 (1988).

Arguing that neither the prevailing “diversity theory” nor the “congressional abrogation” approach accords with the text of the Eleventh Amendment. Critiquing these theories’ reliance on the original intent of the Amendment’s Framers and Ratifiers and as reaching results that violate the Amendment’s plain text. Offering historical evidence of the Amendment’s passages and purposes to claim that the text is an effort to reconcile the competing values of state immunity from federal suit and government accountability.

John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889 (1983).

Looking to the history of the Federalist and Reconstruction Era to interpret the Eleventh Amendment. Noting that the foreign affairs crisis at the time of its drafting was a key contextual factor. Concluding that the doctrine of sovereign immunity was a product of an activist Court in the post-Reconstruction Era dealing with states’ refusals to pay their debts.

William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather Than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033 (1982).

Seeking to explain the original meaning of the Eleventh Amendment by looking to Article III’s state-citizen diversity clause’s drafting, early debates about state suability, and other historical sources. Concluding that the desired effect of the clause was that private citizens could not sue states without their consent due to their debts.