The Burger and
and Roberts Courts have looked to the Eleventh Amendment as a building
new federalism." The amendment has been interpreted as a
limitation both on the power of the federal judiciary and the powers of
Congress--although the Eleventh Amendment, by its own
would appear to be only a limitation on judicial power.
11th Amendment/ Sovereign Immunity
The Eleventh Amendment was a response to the Supreme Court's unpopular decision in Chisholm v Georgia, in which the Court ordered Georgia to pay two South Carolina residents a debt the Court found was owed them. Georgia legislators were so outraged by the decision that the passed a law declaring that anyone who attempted to carrry out the Court's mandate would be hanged with benefit of clergy!
Read literally, the Eleventh Amendment places no limitations on the power of the judiciary to entertain suits brought by against a state by residents of that same state. Nonetheless, the Court in a controversial 1890 decision, Hans v Louisiana, concluded that the Eleventh Amendment was in fact a bar to to federal suits against a state by that state's own citizens. The Court reasoned that at the time of the amendment's ratification in 1798 that such a limitation was taken for granted.
The Court limited the effect of Hans somewhat in the 1908 case of Ex Parte Young. The Court allowed a suit for injunctive relief against a state official reasoning that if a state official violated the Constitution he can't be acting on behalf of a state, which can only act constitutionally. Thus, state officials--but not states--might be sued when the violate the Constitution, even when they do so in the name of the state. Ex Parte Young was in turn limited by the Court in Edelman v Jordan (1974), holding that the Eleventh Amendment also bars suits against state officials for restitution or damages that will in fact be paid out of the state treasury.
In Seminole Tribe of Florida v Florida (1996), the Court indicated for the first time that Congress is without power under the Commerce Clause (or Indian Commerce Clause) to abrogate a state's sovereign immunity. In so doing, the Court overruled an earlier (Pennsylvania v Union Gas, 1989) decision that found such authority to exist. According to the Court, only under the Fourteenth Amendment does the Congress have the power to abrogate state sovereign immunity. In dissent, Justice Stevens warned of the far-reaching consequences of the Court's decision, which he called "a shocking affront to a co-equal branch of government."
In Alden v Maine (1999), the Court, by the same 5-4 margin seen in Seminole and Printz, extended constitutional protection to states sued in their own STATE courts for federal law violations. Clearly, as the Court recognized, this result is not dictated (or even supported) by the language of the Eleventh Amendment. Instead, the Court concluded that the English common-law notion of sovereign immunity--reaching even suits against sovereigns in their own courts--was implicitly adopted by the framers and ratifiers of the Constitution.
The 5-4 majority extended the constitutionalized sovereign immunity doctrine yet again in 2002, in the case of Federal Maritime Commission v South Carolina State Ports Authority. Writing for the Court, Justice Thomas concluded that the Constitution shielded states from having to answer private complaints before federal agencies. The case represented the first time that the sovereign immunity doctrine had been extended beyond the courtroom to executive branch agencies. In dissent, Justice Breyer said that the majority opinion had no support "in any text, in any tradition, or in any relevant purpose."
2. The Court has said that any abrogation of state immunity by Congress under its 14th Amendment powers must be crystal clear. Why? If Congress in fact has the power to abrogate, doesn't the Constitution demand that the Court try to determine as best it can whether Congress has exercised that power?
3. Should the 11th Amendment be read as a limitation only on the power of the judiciary, or is it a limitation on the power of other branches as well?
4. Why should Congress have a power to abrogate state sovereign immunity under its 14th Amendment power, but not under other powers?
5. Does the Court's decision in Seminole Tribe of Florida v Florida mean that states are free to ignore federal bankruptcy law, federal copyright law, or federal anti-trust law? Could a state, for example, be sued for republishing without authorization a copyrighted textbook and then distributing it to public schools throughout the state?
6. Which side has the better argument as to whether the Constitution creates a broad right of state sovereign immunity, even beyond that suggested by the 11th Amendment standing alone?