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A Historical Interpretation of the Eleventh Amendment: a Narrow Construction of an Affirmative Grant of Jurisdiction Rather Than a Prohibition Against Jurisdiction

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A Historical Interpretation of the Eleventh Amendment: a Narrow Construction of an Affirmative Grant of Jurisdiction Rather Than a Prohibition Against Jurisdiction A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction William A. Fletcher* INTRODUCTION The eleventh amendment is one of the Constitution's most baf- fling provisions and, for its importance, one of the least analyzed. Its full text provides, 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. In a number of decisions, the Supreme Court has treated the amend- ment as prohibiting federal courts from taking jurisdiction over suits brought in federal court against a state by private citizens.2 The * Acting Professor of Law, Boalt Hall School of Law, University of California, Berke- ley. B.A. 1968, Harvard College; B.A. 1970, Oxford University; J.D. 1975, Yale Law School. I wish to thank the Boalt Hall School of Law for its generous financial assistance through the Walter Perry Johnson Fund. I also wish to thank my colleagues and friends Stephen R. Barnett, John E. Coons, Ronan E. Degnan, David E. Feller, Dennis J. Hutchinson, Thomas M. Jorde, James H. Kettner, Jean C. Love, Paul J. Mishkin, Stefan A. Riesenfeld, David B. Roe, Harry N. Scheiber, Martin Shapiro, Michael E. Smith, Therese M. Stewart, Preble Stolz, and Jan Vetter, and my father, Robert L. Fletcher, for their valuable criticism and suggestions. Finally, I wish to thank Kevin James for his excellent research assistance. 1. U.S. CONST. amend. XI. 2. See, e.g., Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 682 (1982) (characterizing the issue before the Court as a "determination of whether the Eleventh Amendment in fact barred an exercise ofjurisdiction by the federal court"); Cory v. White, 457 U.S. 85, 91 (1982) (holding that "the Eleventh Amendment bars the statutory inter- pleader sought"); Edelman v. Jordan, 415 U.S. 651, 663 (1974) (referring to the rule "that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment"). After a long period of quiescence, the Supreme Court's interest in the amendment has revived in recent years. The most.important cases are Q uern v. Jordan, 440 U.S. 332 (1979); 1033 HeinOnline -- 35 Stan. L. Rev. 1033 1982-1983 1034 STANFORD LAW REVIEW [Vol. 35:1033 Court apparently views the amendment as a form of jurisdictional bar that specifically limits the power of federal courts to hear private citizens' suits against unconsenting states. This article contends that as a historical matter this view of the amendment is mistaken. It contends that the amendment merely required a narrow construction of constitutional language affirmatively authorizing federal court ju- risdiction and that the amendment did nothing to prohibit federal court jurisdiction. The eleventh amendment was passed in the 1790's 3 in order to overrule a particular case--Chzisholm v. Georgia." In order to under- stand Chisholm and the amendment, one must have in mind that arti- cle III of the Constitution gives jurisdiction to the federal courts essentially on two grounds. First, article III confers jurisdiction where the parties to a case or controversy possess particular charac- teristics. Such party-based jurisdiction is conferred irrespective of the subject matter of the case. Today, the most prominent example of such jurisdiction is diversity jurisdiction.' Second, article III confers jurisdiction where a dispute involves certain subject matters. This type of jurisdiction is granted without regard to the characteristics of the parties involved. Today, the most important example is federal Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Edelman v. Jordan, 415 U.S. 651 (1974); Employ- ees of the Dep't of Pub. Health & Welfare v. Department of Pub. Health & Welfare, 411 U.S. 279 (1973); Parden v. Terminal Ry., 377 U.S. 184 (1964). The Court decided three cases involving eleventh amendment issues during October Term, 1981, see Treasure Salvors, 458 U.S. at 670; Patsy v. Board of Regents, 457 U.S. 496 (1982); Cory v. White, 457 U.S. 85 (1982), and it decided one case peripherally involving the amendment during October Term, 1982, see Colorado v. New Mexico, 103 S. Ct. 539 (1982). It has scheduled one case for argument this Term. See Halderman v. Pennhurst State School & Hosp., 673 F.2d 647 (3d Cir.), cert. granted, 457 U.S. 1131 (1982), restoredto calendarforreargument, 103 S. Ct. 3568 (1983). The recent Supreme Court decisions have rekindled academic interest in the subject. See, e.g., Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. PA. L. REV. 515 (1978) [hereinafter cited as Field, Part One]; Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: CongressionalImposition of Suit Upon the States, 126 U. PA. L. REV. 1203 (1978) [hereinafter cited as Field, Part Two]; Nowak, The Scope of CongressionalPower to Create Causes of Action Against State Governments and the Histoy of the Eleventh and Fourteenth Amendments, 75 COLUM. L. REV. 1413 (1975); Tribe, IntergovernmentalImmunities in Litigation. Taxation, and Regulation: Separationof Powers Issues in ControversiesAbout Federalism, 89 HARV. L. REV. 682 (1976); see also C. JAcoBs, THE ELEVENTH AMENDMENT AND SOVEREIGN IMMU- NITY (1972); Liberman, State Sovereign Immunity in Suits to Enforce FederalRights, 1977 WASH. U.L.Q. 195. 3. For discussion of the legislative history and ratification of the amendment, see notes 116-29 infra and accompanying text. 4. 2 U.S. (2 Dall.) 419 (1793). 5. See U.S. CONST. art. III, § 2, cl. 1 ("The judicial Power shall extend.., to Contro- versies . between Citizens of different States . "); see also 28 U.S.C. § 1332 (1976). HeinOnline -- 35 Stan. L. Rev. 1034 1982-1983 July 1983] ELEVENTH AMENDMENT 1035 question jurisdiction.6 Chisholm involved a form of party-based jurisdiction. A South Carolina citizen brought suit against the state of Georgia under a constitutional grant of federal judicial power over "controversies... between a State and Citizens of another State . ."' For ease of reference, we may call this form of party-based jurisdiction "state- citizen diversity" in order to distinguish it from the more familiar citizen-citizen diversity jurisdiction. In Chisholm, the Court held that this state-citizen diversity clause conferred jurisdiction to hear Chisholm's damage action against Georgia and that the clause abro- gated any sovereign immunity defense to the suit that Georgia might otherwise have had. The eleventh amendment was passed immedi- ately thereafter in order to overturn this result. The conventional modern view of the eleventh amendment is that it prohibits federal courts from exercising both party-based and subject matter-based jurisdiction over private citizens' suits against the states. This article suggests that the amendment originally had a more modest purpose: It was intended to require that the state-citi- zen diversity clause of article III be construed to confer federal juris- diction only over disputes in which the state was a plaintiff. So construed, the clause was a more limited grant of jurisdiction than the Court in Chisholm had construed it to be. And so understood, the eleventh amendment forbade nothing, but merely required this lim- iting construction on the jurisdiction granted by the state-citizen di- versity clause. This interpretation of the amendment is both strikingly simple and remarkably congruent with the available evidence concerning the circumstances surrounding the amendment and its passage. But the interpretation does not indicate whether state sovereign immu- nity to private suit in federal court exists under the Constitution viewed as a whole. Indeed, the interpretation eliminates what the Court has traditionally thought to be a partial answer provided by the amendment-that the amendment explicitly forbids suits brought against the states by out-of-state citizens. Thus, if the inter- pretation of the amendment suggested here is correct, it makes the question of state sovereign immunity to private suit more subtle, for 6. U.S. CONST. art. III, § 2, cl.I ("The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Law of the United States, and Treaties made, or which shall be made, under their authority . ); see also 28 U.S.C. § 1331 (Supp. V 1981). 7. U.S. CONST. art. III, § 2, cl.I. HeinOnline -- 35 Stan. L. Rev. 1035 1982-1983 1036 STANFORD LAW REVIEW [Vol. 35:1033 at least as a historical matter it requires us to put to one side the one part of the Constitution previously thought to speak directly to the issue. This interpretation of the amendment suggests that the question of state sovereign immunity under the party-based provision confer- ring jurisdiction over disputes between a state and an out-of-state citizen is a fundamentally different inquiry from the question of state sovereign immunity from private suit under federal question and ad- miralty jurisdiction. In cases decided under the state-citizen head of jurisdiction at the time the eleventh amendment was passed, the ap- plicable law generally was thought to be common law or state law. But under the latter two heads ofjurisdiction, the applicable law was either specifically federal (as in federal question jurisdiction) or strongly affected with a federal interest (as in admiralty jurisdic- tion).8 Even if the eleventh amendment made it clear that uncon- senting states could not be sued by out-of-state citizens under article III's party-based jurisdiction, the amendment said nothing about a private citizen's ability to sue an unconsenting state under federal question jurisdiction or in admiralty.
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