Plus Ca change ... or if hard cases make bad law, what do bad cases make?

• Author: Sherry, Suzanna
• Position: The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies

Excerpts from Ex parte Young, 209 U.S. 123 (1908)

Mr. Justice HARLAN delivered the opinion of the Court:

In this case, the court below issued an order enjoining Edward T. Young, the Attorney General of Minnesota, from enforcing certain state laws and regulations pertaining to railroad rates, on the ground that said laws were unconstitutional. When the Attorney General refused to comply, the court below held him in contempt. He thereupon brought a petition for a writ of habeas corpus, alleging that the court below lacked jurisdiction over the suit and thus could not properly issue the injunction....

Petitioner's objection is that the suit is, in effect, one against the state of Minnesota, and that the injunction issued against the attorney general illegally prohibits state action, either criminal or civil, to enforce obedience to the statutes of the state. This objection is to be considered with reference to the Eleventh Amendment to the Federal Constitution. The Eleventh Amendment prohibits the commencement or prosecution of any suit against one of the United States by citizens of another state or citizens or subjects of any foreign state.

It is argued that if the act to be enforced is unconstitutional, then the use of the name of the state to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of, and one which does not affect, the state in its sovereign or governmental capacity. It is further argued that as the act which the state attorney general seeks to enforce is a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States.

While the preceding arguments are a clever attempt to surmount the obstacles posed by the 11th Amendment, we do not find them persuasive. Let it be observed that the federal suit was, as to the defendant Young, one against him as, and only because he was, attorney general of Minnesota. No relief was sought against him individually, but only in his capacity as attorney general. And the manifest, indeed the avowed and admitted, object of seeking such relief, was to tie the hands of the state so that it...