Eleventh Amendment

• Author: Clyde E. Jacobs
• Pages: 876-878

Page 876

The Eleventh Amendment of the Constitution provides that "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 a foreign State." Congress submitted this amendment, on votes of twenty-three to two in the Senate and eighty-one to nine in the House of Representatives, for ratification in March 1794. By February 1795, the legislatures of three-fourths of the states had ratified, but, because of delays in certification of this action, adoption of the amendment was not proclaimed until 1798.

According to traditional theory the purpose of the amendment was to correct an erroneous interpretation of the Constitution by the Supreme Court. Impetus for the amendment undoubtedly was the unpopular decision in CHISHOLM V. GEORGIA (1793)?one of seven early suits instituted against a state by citizens of other states or by ALIENS. In Chisholm the Court, voting 4?1, held that the judicial power of the United States and the JURISDICTION of the Court reached such suits under the provision in Article III extending the federal judicial power to "Controversies between a State and Citizens of another State ? and between a State ? and foreign States, Citizens or Subjects."

Although the language of Article III is broad enough to support the Chisholm holding, proponents of the theory that the amendment was adopted to correct an error in constitutional interpretation have argued that (1) the doctrine of SOVEREIGN IMMUNITY, exempting the sovereign from unconsented suits, was part of the COMMON LAW heritage at the time the Constitution was adopted, and hence implicitly qualified some delegations of judicial power in Article III; and (2) an understanding to that effect emerged during the ratification debates.

Existence of an implicit common law qualification upon the various delegations of federal judicial power is doubtful, however. While the supposition that the immunity doctrine was already incorporated into American law appears

Page 877

sound, at least some state immunity surely was surrendered under the Constitution. The purpose behind the various delegations of judicial power to the United States was to create a judiciary competent to decide all cases "involving the National peace and harmony." Surrender?rather than retention?of state immunity is consonant with that...