The Misunderstood Eleventh Amendment
UNIVERSITY of PENNSYLVANIA LAW REVIEW Founded !"#$ Formerly AMERICAN LAW REGISTER © !"!# University of Pennsylvania Law Review VOL. !"# FEBRUARY $%$! NO. & ARTICLE THE MISUNDERSTOOD ELEVENTH AMENDMENT WILLIAM BAUDE† & STEPHEN E. SACHS†† The Eleventh Amendment might be the most misunderstood amendment to the Constitution. Both its friends and enemies have treated the Amendment’s written † Professor of Law, University of Chicago Law School. †† Colin W. Brown Professor of Law, Duke University School of Law. We are grateful for comments and suggestions from Sam Bray, Tom Colby, Scott Dodson, Jonathan Gienapp, Tara Grove, Julian Davis Mortenson, Caleb Nelson, Jim Pfander, Richard Re, Amanda Schwoerke, Eric Segall, Jonathan Urick, Ingrid Wuerth, and from participants in the Fall Speaker Series of the Georgetown Center for the Constitution, the Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference at the University of San Diego Law School, and Advanced Topics in Federal Courts at the University of Virginia School of Law. Thanks as well to Brendan Anderson, Kurtis Michael, and Scotty Schenck for research assistance, and to the SNR Denton Fund and Alumni Faculty Fund at Chicago for research support. (!"#) !"# University of Pennsylvania Law Review [Vol. "!$: !#$ 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.
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