SUITS AGAINST STATES

Amendment 11

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.

Purpose and Early Interpretation

The action of the Supreme Court in accepting jurisdiction of a suit
against a State by a citizen of another State in 1793, in Chisholm _v._
Georgia[1] provoked such angry reactions in Georgia and such anxieties
in other States that at the first meeting of Congress after this
decision what became the Eleventh Amendment was proposed by an
overwhelming vote and ratified with "vehement speed."[2] The earliest
decisions interpretative of the amendment were three by Chief Justice
Marshall. In Cohens _v._ Virginia,[3] speaking for the Court, he held
that the prosecution of a writ of error to review a judgment of a State
court, alleged to be in violation of the Constitution or laws of the
United States, "does not commence or prosecute a suit against the
State," but continues one commenced by the State. The contrary holding
would have virtually repealed the 25th Section of the Judiciary Act of
1789 (_see_ p. 554), and brought something like anarchy in its wake. In
Osborn _v._ Bank of the United States,[4] decided three years later, the
Court laid down two rules, one of which has survived and the other of
which was soon abandoned. The latter was the holding that a suit is not
one against a State unless the State is a party to the record.[5] This
rule the Court was forced to repudiate seven years later in Governor of
Georgia _v._ Madrazo,[6] in which it was conceded that the suit had been
brought against the governor solely in his official capacity and with
the design of forcing him to exercise his official powers. It is now a
well-settled rule that in determining whether a suit is prosecuted
against a State "the Court will look behind and through the nominal
parties on the record to ascertain who are the real parties to the
suit."[7] The other, more successful rule was that a State official
possesses no official capacity when acting illegally and hence can
derive no protection from an unconstitutional statute of a State.[8]

Expansion of State Immunity

Subsequent cases giving the amendment a restrictive effect are those
holding that counties and municipalities are suable in the federal
courts;[9] and that go