Expansion of the Immunity of the States

Expansion of the Immunity of the States.—Until the period following the Civil War, Chief Justice Marshall's understanding of the Amendment generally prevailed. But in the aftermath of that conflict, Congress for the first time effectively gave the federal courts general federal question jurisdiction,20 and a large number of States in the South defaulted upon their revenue bonds in violation of the Contracts Clause of the Constitution.21 As bondholders sought relief in federal courts, the Supreme Court gradually worked itself into the position of holding that the Eleventh Amendment, or more properly speaking the principles "of which the Amendment is but an exemplification,"22 is a bar not only of suits against a State by citizens of other States, but also of suits brought by citizens of that State itself.23

Expansion as a formal holding occurred in Hans v. Louisiana,24 a suit against the State by a resident of that State brought in federal court under federal question jurisdiction, alleging a violation of the Contracts Clause in the State's repudiation of its obligation to pay interest on certain bonds. Admitting that the Amendment on its face prohibited only the entertaining of a suit against a State by citizens of another State, or citizens or subjects of a foreign state, the Court nonetheless thought the literal language was an insufficient basis for decision. Rather, wrote Justice Bradley for the Court, the Eleventh Amendment was a result of the "shock of surprise throughout the country" at the Chisholm decision and reflected the determination that the decision was wrong and that federal jurisdiction did not extend to making defendants of unwilling States.25

20 Act of March 3, 1875, ch. 137, § 1, 18 Stat. 470. See discussion under "Development of Federal Question Jurisdiction" supra.

21 See, e.g., Orth, The Eleventh Amendment and the North Carolina State Debt, 59 N.C. L. REV. 747 (1981); Orth, The Fair Fame and Name of Louisiana: The Eleventh Amendment and the End of Reconstruction, 2 TUL. LAW. 2 (1980); Orth, The Virginia State Debt and the Judicial Power of the United States, in AMBIVALENT LEGACY: A LEGAL HISTORY OF THE SOUTH 106 (D. Bodenhamer & J. Ely eds., 1983).

22 Ex parte New York (No. 1), 256 U.S. 490, 497 (1921).

23 E.g., In re Ayers, 123 U.S. 443 (1887); Hagood v. Southern, 117 U.S. 52 (1886); The Virginia Coupon Cases, 114 U.S. 269 (1885); Cunningham v. Macon & Brunswick R.R., 109 U.S. 446 (1883); Louisiana v. Jumel, 107 U.S. 711 (1882). In Antoni v. Greenhow, 107 U.S. 769, 783 (1883), three concurring Justices propounded the broader reading of the Amendment which soon prevailed.

24 134 U.S. 1 (1890).

25 134 U.S. at 11.

Under this view, the amendment reversed an erroneous decision and restored the proper interpretation of the Constitution. The views of the opponents of subjecting States to suit "were most sensible and just" and those views "apply equally to the present case as to that then under discussion. The letter is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual against a State. The reason against it is as strong in this case as it was in that. It is an attempt to strain the Constitution and the law to a construction never imagined or dreamed of."26 "The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States… The suability of a State without its consent was a thing unknown to the law."27 Thus, while the literal terms of the Amendment did not so provide, "the manner in which [Chisholm] was received by the country, the adoption of the Eleventh Amendment, the light of history and the reason of the thing,"28 led the Court unanimously to hold that States could not be sued by their own citizens on grounds arising under the Constitution and laws of the United States.

Then, in Ex parte New York (No. 1),29 the Court held that, absent consent to suit, a State was immune to suit in admiralty, the Eleventh Amendment's reference to "any suit in law or equity" notwithstanding. "That a State may not be sued without its consent is a fundamental rule of jurisprudence . . . of which the Amendment is but an exemplification… It is true the Amendment speaks only of suits in law or equity; but this is because . . . the Amendment was the outcome of a purpose to set aside the effect of the decision of this court in Chisholm v. Georgia . . . from which it naturally came to pass that the language of the Amendment was particularly phrased so as to reverse the construction adopted in that case."30 Just as Hans v. Louisiana had demonstrated the "impropriety of construing the Amendment" so as to permit federal question suits against a State, so "it seems to us equally clear that it cannot with propriety be construed to leave open a suit against a State in the admiralty jurisdiction by individuals, whether its citizens or not."31 An in rem admiralty action may be brought, however, if the State is not in possession of the res.32

26 134 U.S. at 14-15.

27 134 U.S. at 15-16.

28 134 U.S. at 18-19. The Court acknowledged that Chief Justice Marshall's opinion in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 382-83, 406-07, 410-12 (1821), was to the contrary, but observed that the language was unnecessary to the decision and thus dictum, "and though made by one who seldom used words without due reflection, ought not to outweigh the important considerations referred to which lead to a different conclusion." 134 U.S. at 20.

29 256 U.S. 490 (1921).

30 256 U.S. at 497-98.

31 256 U.S. at 498. See also Florida Dep't of State v. Treasure Salvors, 458 U.S. 670 (1982). And see Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468 (1987).

32 California v. Deep Sea Research, Inc., 523 U.S. 491 (1998) (application of the Abandoned Shipwreck Act) (distinguishing Ex parte New York and Treasure Salvors as involving in rem actions against property actually in possession of the State).

And in extending protection against suits brought by foreign governments, the Court made clear the immunity flowed not from the Eleventh Amendment but from concepts of state sovereign immunity generally. "Manifestly, we cannot . . . assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against nonconsenting States. Behind the words of the constitutional provisions are postulates which limit and control. There is the . . . postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been 'a surrender of this immunity in the plan of the convention."'33

In the 1980s four Justices, led by Justice Brennan, argued that Hans was incorrectly decided, that the Amendment was intended only to deny jurisdiction against the States in diversity cases, and that Hans and its progeny should be overruled.34 But the remaining five Justices adhered to Hans and in fact stiffened it with a rule of construction quite severe in its effect.35 The Hans interpretation was further solidified with the Court's ruling in Seminole Tribe of Florida v. Florida,36 that Congress lacks the power under Article I to abrogate state immunity under the Eleventh Amendment, and with its ruling in Alden v. Maine37 that the broad principle of sovereign immunity reflected in the Eleventh Amendment bars suits against states in state courts as well as federal.

33 Principality of Monaco v. Mississippi, 292 U.S. 313, 322-23 (1934) (quoting THE FEDERALIST, No. 81); Breard v. Greene, 523 U.S. 371, 377 (1998) (foreign nation may not contest validity of criminal conviction after State's failure at time of arrest to comply with notice requirements of Vienna Convention on Consular Relations). Similarly, the Court has recently held, relying on Monaco, the Amendment bars suits by Indian tribes against non-consenting states. Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991).

34 E.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985) (dissenting); Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468, 496 (1987) (dissenting); Dellmuth v. Muth, 491 U.S. 223, 233 (1989) (dissenting); Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 309 (1990) (concurring). Joining Justice Brennan were Justices Marshall, Blackmun, and Stevens. See also Pennsylvania v. Union Gas Co., 491 U.S. 1, 23 (1989) (Justice Stevens concurring).

35 E.g., Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97-103 (1984) (opinion of the Court by Justice Powell); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237-40, 243-44 n.3 (1985) (opinion of the Court by Justice Powell); Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468, 472-74, 478-95 (1987) (plurality opinion of Justice Powell); Pennsylvania v. Union Gas Co., 491 U.S. 1, 29 (1989) (Justice Scalia concurring in part and dissenting in part); Dellmuth v. Muth, 491 U.S. 223, 227-32 (opinion of the Court by Justice Kennedy); Hoffman v. Connecticut Dep't of Income Maintenance, 492 U.S. 96, 101 (1989) (plurality opinion of Justice White); id. at 105 (concurring opinions of Justices O'Connor and Scalia); Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990) (opinion of the Court by Justice O'Connor).

Having previously reserved the question of whether federal statutory rights could be enforced in state courts,38 the Court in Alden v. Maine39 held that states could also assert Eleventh Amendment "sovereign immunity" in their own courts. Recognizing that the application of the Eleventh Amendment, which limits only the federal courts, was a "misnomer"40 as applied to state courts, the Court nonetheless concluded that the principles of common law sovereign immunity applied absent "compelling evidence" that the States had surrendered such by the ratification of the Constitution. Although this immunity is subject to the same limitations as apply in federal courts, the Court's decision effectively limited the application of significant portions of federal law to state governments. Both Seminole Tribe and Alden were also 5-4 decisions with the four dissenting Justices maintaining that Hans was wrongly decided.41

This now institutionalized 5-4 split continued with the Court's ruling in Federal Maritime Commission v. South Carolina State Ports Authority,42 which held that state sovereign immunity also applies to quasi-judicial proceedings in federal agencies. The operator of a cruise ship devoted to gambling had been denied entry to the Port of Charleston, and subsequently filed a complaint with the Federal Maritime Commission, alleging a violation of the Shipping Act of 1984.43 Justice Breyer, writing for the four dissenting justices, emphasized the executive (as opposed to judicial nature) of such agency adjudications, and pointed out that the ultimate enforcement of such proceedings in federal court was exercised by a federal agency (as is allowed under the doctrine of sovereign immunity). The majority, however, while admitting to a "relatively barren historical record," presumed that when a proceeding was "unheard of" at the time of the founding of the Constitution, it could not subsequently be applied in derogation of a "State's dignity" within our system of federalism.44

36 517 U.S. 44 (1996).

37 527 U.S. 706 (1999).

38 Employees of the Dep't of Public Health and Welfare v. Department of Public Health and Welfare, 411 U.S. 279, 287 (1973).

39 Alden v. Maine, 527 U.S. 706 (1999).

40 527 U.S. at 713.

41 Chief Justice Rehnquist wrote the opinion of the Court in Seminole Tribe, joined by Justices O'Connor, Scalia, Kennedy, and Thomas. Justice Stevens dissented, as did Justice Souter, whose opinion was joined by Justices Ginsburg and Breyer. In Alden, Justice Kennedy wrote the opinion of the Court, joined by the Chief Justice, and by Justices O'Connor, Scalia, and Thomas. Justice Souter's dissenting opinion was joined by Justices Stevens, Ginsburg, and Breyer.

42 122 S. Ct. 1864 (2002). Justice Breyer's dissenting opinion describes a need for "continued dissent" of the majority's sovereign immunity holdings. 122 S. Ct. at 1889.

43 46 U.S.C. App. §1701 et. seq. (1994 ed. And Supp V).

44 122 S. Ct. at 1872, 1874.

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Last modified: June 9, 2014