Cite as: 517 U. S. 44 (1996)
Souter, J., dissenting
not "to strip the government of the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation." Id., at 407.
The treatment of the Amendment in Osborn v. Bank of United States, 9 Wheat. 738 (1824), was to the same effect. The Amendment was held there to be no bar to an action against the State seeking the return of an unconstitutional tax. "The eleventh amendment of the constitution has exempted a State from the suits of citizens of other States, or aliens," Marshall stated, omitting any reference to cases that arise under the Constitution or federal law. Id., at 847.
The good sense of this early construction of the Amendment as affecting the diversity jurisdiction and no more has the further virtue of making sense of this Court's repeated exercise of appellate jurisdiction in federal-question suits brought against States in their own courts by out-of-staters. Exercising appellate jurisdiction in these cases would have been patent error if the Eleventh Amendment limited federal-question jurisdiction, for the Amendment's unconditional language ("shall not be construed") makes no distinction between trial and appellate jurisdiction.10 And yet,
again and again we have entertained such appellate cases, even when brought against the State in its own name by a
10 We have generally rejected Eleventh Amendment challenges to our appellate jurisdiction on the specious ground that an appeal is not a "suit" for purposes of the Amendment. See, e. g., McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18, 27 (1990). Although Cohens v. Virginia, 6 Wheat. 264, 412 (1821), is cited for this proposition, that case involved a State as plaintiff. See generally Jackson, 98 Yale L. J., at 32-35 (rejecting the appeal/suit distinction). The appeal/suit distinction, in any case, makes no sense. Whether or not an appeal is a "suit" in its own right, it is certainly a means by which an appellate court exercises jurisdiction over a "suit" that began in the courts below. Cf. Griggs v. Provident Consumer Discount Co., 459 U. S. 56, 58 (1982) (per curiam) ("The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal").
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