Petitioner, an employee of the Texas Highways Department, was
injured while working on a ferry dock operated by the Department.
She filed suit against the Department and the State under § 33 of
the Jones Act, which provides that any seaman injured in the course
of his employment may maintain an action for damages at law in
federal district court, and which, in effect, applies the remedial
provisions of the Federal Employer's Liability Act (FELA) to such
suits. The District Court dismissed the action as barred by the
Eleventh Amendment, and the Court of Appeals affirmed. Although
recognizing that
Parden v. Terminal Railway of Alabama Docks
Dept., 377 U. S. 184,
held that an employee of a state-operated railroad may bring an
FELA action in federal court, the Court of Appeals held that the
decision was inapplicable in light of Congress' failure to include
in the Jones Act an unmistakably clear expression of its intention
to abrogate the States' Eleventh Amendment immunity from suit in
federal court. The court also held that Texas had not consented to
being sued under the Jones Act.
Held: The judgment is affirmed.
780 F.2d 1268, affirmed.
JUSTICE POWELL, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and
JUSTICE O'CONNOR, concluded that the Eleventh Amendment bars a
state employee from suing the State in federal court under the
Jones Act. Pp.
483 U.S.
472-495.
(a) Even though the express terms of the Eleventh Amendment's
prohibition are limited to federal court suits "in law or equity"
against a State by citizens of another State or a foreign country,
the Amendment bars a citizen from suing his own State,
Hans v.
Louisiana, 134 U. S. 1, and
prohibits admiralty suits against a State,
Ex parte New York,
No. 1, 256 U. S. 490,
unless the State expressly waives its immunity and consents to suit
in federal court. Moreover, assuming that Congress can abrogate the
Eleventh Amendment when it acts pursuant to the Commerce Clause, it
must express its intent to do so in unmistakable language in the
statute itself.
Atascadero State Hospital v. Scanlon,
473 U. S. 234. Pp.
483 U.S. 472-474.
Page 483 U. S. 469
(b) Congress has not expressed in unmistakable statutory
language its intention to allow States to be sued in federal court
under the Jones Act. Although the Act extends to "
[a]ny"
injured seaman, this general authorization for federal court suits
is not the kind of unequivocal statutory language that is
sufficient to abrogate the Eleventh Amendment, which marks a
constitutional distinction between the States and other employers
of seamen. Moreover, since both lower courts rejected petitioner's
contention that Texas waived its Eleventh Amendment immunity, and
since the petition for certiorari does not address this issue, it
need not be considered here. Pp.
483 U. S.
474-476.
(c) To the extent that
Parden is inconsistent with the
requirement that an abrogation of Eleventh Amendment immunity by
Congress must be expressed in unmistakably clear language, it is
overruled. Pp.
483 U. S.
476-478.
(d)
Hans, which firmly established that the Eleventh
Amendment embodies a broad constitutional principle of sovereign
immunity, and the long line of subsequent cases that reaffirmed
that principle, will not be overruled in the absence of "special
justification" for such a departure from the doctrine of
stare
decisis. The argument that the Amendment does not bar
citizens' federal question actions against the States in federal
court is not persuasive for several reasons. The historical records
show that, at most, the intentions of the Constitution's Framers
and Ratifiers were ambiguous on the subject. Moreover, since
federal question actions unquestionably are "suits in law or
equity," the plain language of the Amendment refutes the argument.
Nor does the argument offer any satisfactory explanation for the
overwhelming rejection of another amendment that would have allowed
citizen suits against States for causes of action arising under
treaties. The principle of sovereign immunity has been deeply
embedded in our federal system since its inception, and is required
because of the sensitive problems inherent in making one sovereign
appear against its will in the courts of another. That States may
not be sued absent waiver or congressional enactment is a necessary
consequence of their role in a system of dual sovereignties. Pp.
483 U. S.
478-488.
(e) The argument that the sovereign immunity doctrine has no
application to citizens' admiralty suits against unconsenting
States in federal courts is directly contrary to long-settled
authority, including
Ex parte New York, No. 1. The
suggestion that the latter case overruled settled law allowing such
suits is not supported by the earlier cases cited, which, on
balance, indicate that unconsenting States were immune from
admiralty suits, and, at the very least, demonstrate that the
question was not "settled." Pp.
483 U. S.
488-493.
Page 483 U. S. 470
JUSTICE SCALIA concluded that, regardless of the correctness of
Hans as an original matter, Congress enacted the Jones Act
and the FELA provisions which it incorporates on the assumption
that, as
Hans appears to have held, Article III of the
Constitution contains an implicit limitation on suits brought by
individuals against States. The statutes cannot now be read to
apply to States as though that assumption never existed. Thus,
Parden is properly overruled. Pp.
483 U. S.
495-496.
POWELL, J., announced the judgment of the Court and delivered an
opinion in which REHNQUIST, C.J., and WHITE and O'CONNOR, JJ.,
joined. WHITE, J., filed a concurring opinion,
post p.
483 U. S. 495.
SCALIA, J., filed an opinion concurring in part and concurring in
the judgment,
post p.
483 U. S. 495.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL,
BLACKMUN, and STEVENS, JJ., joined,
post p.
483 U. S.
496.
JUSTICE POWELL announced the judgment of the Court and delivered
an opinion in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE
O'CONNOR join.
The question in this case is whether the Eleventh Amendment bars
a state employee from suing the State in federal court under the
Jones Act, ch. 250, 41 Stat. 1007, 46 U.S.C. § 688.
I
The Texas Department of Highways and Public Transportation
operates a free automobile and passenger ferry between
Page 483 U. S. 471
Point Bolivar and Galveston, Texas. Petitioner Jean Welch, an
employee of the State Highway Department, was injured while working
on the ferry dock at Galveston. Relying on § 33 of the Jones Act,
46 U.S.C. § 688, she filed suit in the Federal District Court for
the Southern District of Texas against the Highway Department and
the State of Texas. [
Footnote
1]
The District Court dismissed the action as barred by the
Eleventh Amendment.
533 F.
Supp. 403,
407
(1982). A divided panel of the Court of Appeals for the Fifth
Circuit reversed, with each judge writing separately. 739 F.2d 1034
(1984). On rehearing en banc, the Court of Appeals affirmed the
judgment of the District Court. 780 F.2d 1268 (1986). The court
recognized that
Parden v. Terminal Railway of Alabama Docks
Dept., 377 U. S. 184
(1964), held that an employee of a state-operated railroad company
may bring an action in federal court under the Federal Employers'
Liability Act (FELA), 53 Stat. 1404, 45 U.S.C. §§ 51-60.
Parden is relevant to this case because the Jones Act
applied the remedial provisions of the FELA to seamen.
See
46 U.S.C. § 688(a). The court nevertheless concluded that
"the broad sweep of the
Parden decision, although it
has not been overruled, has overtly been limited by later decisions
as its full implications have surfaced."
780 F.2d at 1270. The court relied on our holding that
"Congress may abrogate the States' constitutionally secured
immunity from suit in federal court only by making its intention
unmistakably clear in the language of the statute."
Atascadero State Hospital
v.
Page 483 U. S. 472
Scanlon, 473 U. S. 234,
473 U. S. 242
(1985). [
Footnote 2] The Court
of Appeals found no unmistakable expression of such an intention in
the Jones Act. The court also held that Texas has not consented to
suit under the Jones Act. 780 F.2d at 1273-1274 (citing
Lyons
v. Texas A & M University, 545 S.W.2d 56
(Tex.Civ.App.1976),
writ refused, n.r.e.). We granted
certiorari, 479 U.S. 811 (1986), and now affirm.
II
The Eleventh Amendment provides:
"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."
The Court has recognized that the significance of the Amendment
"lies in its affirmation that the fundamental principle of
sovereign immunity limits the grant of judicial authority in Art.
III" of the Constitution.
Pennhurst State School and Hospital
v. Halderman, 465 U. S. 89,
465 U. S. 98
(1984) (
Pennhurst II). Accordingly, as discussed more
fully in
483 U. S. the
Court long ago held that the Eleventh Amendment bars a citizen from
bringing suit against the citizen's own State in federal court,
even though the express terms of the Amendment refer only to suits
by citizens of another State.
Hans v. Louisiana,
134 U. S. 1,
134 U. S. 10
(1890).
See Edelman v. Jordan, 415 U.
S. 651,
415 U. S.
662-663 (1974);
Employees v. Missouri Dept. of
Public Health and Welfare, 411 U. S. 279,
411 U. S. 280
(1973). For the same reason, the Court has
Page 483 U. S. 473
held that the Amendment bars suits in admiralty against the
States, even though such suits are not, strictly speaking, "suits
in law or equity."
Ex parte New York, No. 1, 256 U.
S. 490,
256 U. S. 497
(1921) (Eleventh Amendment bars
in personam actions
against a State by its citizens);
Ex parte New York, No.
2, 256 U. S. 503
(1921) (Eleventh Amendment bars actions
in rem against
vessel owned by the State and employed exclusively for governmental
purposes).
See Florida Dept. of State v. Treasure Salvors,
Inc., 458 U. S. 670,
458 U. S. 683,
n. 17 (1982) (plurality opinion of STEVENS, J.);
id. at
458 U. S.
706-710 (WHITE, J., concurring in judgment in part and
dissenting in part).
See infra at
483 U. S.
488-490. [
Footnote
3]
The Court has recognized certain exceptions to the reach of the
Eleventh Amendment. If a State waives its immunity and consents to
suit in federal court, the suit is not barred by the Eleventh
Amendment.
Clark v. Barnard, 108 U.
S. 436,
108 U. S. 447
(1883). But, because "[c]onstructive consent is not a doctrine
commonly associated with the surrender of constitutional rights,"
Edelman v. Jordan, 415 U.S. at
415 U. S. 673,
the Court will find a waiver by the State
"only where stated 'by the most express language or by such
overwhelming implications from the text as [will] leave no room for
any other reasonable construction.'"
Ibid. (quoting
Murray v. Wilson Distilling
Co., 213 U. S. 151,
213 U. S. 171
(1909)). Moreover, "[a] State's constitutional interest in immunity
encompasses not merely
whether it may be sued, but
where it may be sued."
Pennhurst II, 465 U.S. at
465 U. S. 99
(emphasis in original). Thus, a State does not waive Eleventh
Amendment immunity in federal
Page 483 U. S. 474
courts merely by waiving sovereign immunity in its own courts.
Id. at
465 U. S. 99, n.
9.
We also have recognized that the Eleventh Amendment "necessarily
[is] limited by the enforcement provisions of § 5 of the Fourteenth
Amendment."
Fitzpatrick v. Bitzer, 427 U.
S. 445,
427 U. S. 456
(1976). Consequently, Congress can abrogate the Eleventh Amendment
without the States' consent when it acts pursuant to its power
"
to enforce, by appropriate legislation' the substantive
provisions of the Fourteenth Amendment." Ibid. (quoting
U.S.Const., Amdt. 14, § 5). As the Court of Appeals noted in this
case, we have required that "Congress must express its intention to
abrogate the Eleventh Amendment in unmistakable language in the
statute itself." Atascadero State Hospital v. Scanlon, 473
U.S. at 473 U. S. 243.
We have been unwilling to infer that Congress intended to negate
the States' immunity from suit in federal court, given "the vital
role of the doctrine of sovereign immunity in our federal system."
Pennhurst II, supra, at 465 U. S. 99.
Moreover, the courts properly are reluctant to infer that Congress
has expanded our jurisdiction. See American Fire & Casualty
Co. v. Finn, 341 U. S. 6,
341 U. S. 17
(1951) ("The jurisdiction of the federal courts is carefully
guarded against expansion by judicial interpretation").
III
We now apply these principles to the Jones Act. We note that the
question whether the State of Texas has waived its Eleventh
Amendment immunity is not before us. Both the District Court and
the Court of Appeals held that the State has not consented to Jones
Act suits in federal court. The petition for certiorari does not
address this issue, and we do not regard it as fairly included in
the questions on which certiorari was granted. [
Footnote 4] Indeed, at oral argument counsel
for
Page 483 U. S. 475
petitioner conceded that the question of express waiver by the
State "is not before the Court. . . ." Tr. of Oral Arg. 18. We
therefore have no occasion to consider petitioner's argument in her
brief on the merits that the Texas Tort Claims Act,
Tex.Rev.Civ.Stat.Ann., Art. 6252-19 (Vernon, 1970, as amended 1973
Tex.Gen.Laws, ch. 50) constitutes an express waiver of the State's
Eleventh Amendment immunity. Brief for Petitioner 29-34. We accept
the holdings of the Court of Appeals and the District Court that it
does not.
Petitioner's remaining argument is that Congress has abrogated
the States' Eleventh Amendment immunity from suit under the Jones
Act. We assume, without deciding or intimating a view of the
question, that the authority of Congress to subject unconsenting
States to suit in federal court is not confined to § 5 of the
Fourteenth Amendment.
See County of Oneida v. Oneida Indian
Nation of New York, 470 U. S. 226,
470 U. S. 252
(1985). [
Footnote 5]
Petitioner's argument fails in any event, because Congress has not
expressed in unmistakable statutory language its intention to allow
States to be sued in federal court under the Jones Act. It is true
that the Act extends to "
[a]ny seaman who shall suffer
personal injury in the course of his employment," § 33 (emphasis
added). But the Eleventh Amendment marks a constitutional
distinction between the States and other employers of
Page 483 U. S. 476
seamen. Because of the role of the States in our federal
system,
"[a] general authorization for suit in federal court is not the
kind of unequivocal statutory language sufficient to abrogate the
Eleventh Amendment."
Atascadero State Hospital v. Scanlon, supra, at
473 U. S. 246.
See Quern v. Jordan, 440 U. S. 332,
440 U. S. 342
(1979).
See also Employees v. Missouri Dept. of Public Health
and Welfare, 411 U.S. at
411 U. S. 285.
In
Scanlon, the Court held that § 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794, which provides
remedies for "any recipient of Federal assistance," does not
contain the unmistakable language necessary to negate the States'
Eleventh Amendment immunity. For the same reasons, we hold today
that the general language of the Jones Act does not authorize suits
against the States in federal court. [
Footnote 6]
IV
In
Parden v. Terminal Railway of Alabama Docks Dept.,
377 U. S. 184
(1964), the Court considered whether an employee of a state-owned
railroad could sue the State in federal court under the FELA. The
Court concluded that the State of Alabama had waived its Eleventh
Amendment immunity.
Id. at
377 U. S. 186.
It reasoned that Congress evidenced an intention to abrogate
Eleventh Amendment immunity by making the FELA applicable to "every
common carrier by railroad while engaging in commerce between any
of the several States. . . ." § 1, 35 Stat. 65, 45 U.S.C. § 51. The
Court mistakenly relied on cases holding that general language in
the Safety Appliance Act, §§ 2, 6, and the Railway Labor Act, § 151
et seq., made those statutes applicable to the
Page 483 U. S. 477
States. [
Footnote 7] It
reasoned that it
"should not presume to say, in the absence of express provision
to the contrary, that [Congress] intended to exclude a particular
group of [railroad] workers from the benefits conferred by the
Act."
Parden v. Terminal Railway of Alabama Docks Dept.,
supra, at
377 U. S. 190.
But, as discussed above, the constitutional role of the States sets
them apart from other employers and defendants.
Atascadero
State Hospital v. Scanlon, 473 U.S. at
473 U. S. 246;
Pennhurst II, 465 U.S. at
465 U. S. 99;
Edelman v. Jordan, 415 U.S. at
415 U. S. 673;
Quern v. Jordan, supra, at
440 U. S.
342-343;
Employees v. Missouri Dept. of Public
Health and Welfare, supra. As the dissenting opinion in
Parden states:
"It should not be easily inferred that Congress, in legislating
pursuant to one article of the Constitution, intended to effect an
automatic and compulsory waiver of rights arising under another.
Only when Congress has clearly considered the problem and expressly
declared that any State which undertakes given regulable conduct
will be deemed thereby to have waived its immunity should courts
disallow the invocation of this defense."
377 U.S. at
377 U. S.
198-199 (WHITE, J., dissenting).
Page 483 U. S. 478
Although our later decisions do not expressly overrule
Parden, they leave no doubt that
Parden's
discussion of congressional intent to negate Eleventh Amendment
immunity is no longer good law. In
Employees v. Missouri Dept.
of Public Health and Welfare, the Court emphasized that
"
Parden was premised on the conclusion that [the State] .
. . had consented to suit in the federal courts. . . ." 411 U.S. at
411 U. S. 281,
n. 1. The Court refused to extend the reasoning of
Parden
to
"infer that Congress in legislating pursuant to the Commerce
Clause, which has grown to vast proportions in its applications,
desired silently to deprive the States of an immunity they have
long enjoyed under another part of the Constitution."
Id. at
411 U. S. 285.
In subsequent cases the Court consistently has required an
unequivocal expression that Congress intended to override Eleventh
Amendment immunity.
Atascadero State Hospital v. Scanlon,
supra, at
483 U. S. 242;
Pennhurst II, supra, at
465 U. S. 99;
Quern v. Jordan, supra, at
440 U. S.
342-345. Accordingly, to the extent that
Parden v.
Terminal Railway, supra, is inconsistent with the requirement
that an abrogation of Eleventh Amendment immunity by Congress must
be expressed in unmistakably clear language, it is overruled.
[
Footnote 8]
V
Today, for the fourth time in little more than two years,
see Papasan v. Allain, 478 U. S. 265,
478 U. S. 293
(1986) (BRENNAN, J., concurring in part and dissenting in part);
Green v. Mansour, 474 U. S. 64,
474 U. S. 74
(1985) (BRENNAN, J., dissenting);
Atascadero State Hospital v.
Scanlon, supra, at
473 U. S. 247
(BRENNAN, J., dissenting), four Members of the Court urge that we
overrule
Hans v. Louisiana, 134 U. S.
1 (1890), and the long line of cases that has followed
it. The rule of law depends in
Page 483 U. S. 479
large part on adherence to the doctrine of
stare
decisis. Indeed, the doctrine is "a natural evolution from the
very nature of our institutions." Lile, Some Views on the Rule of
Stare Decisis, 4 Va.L.Rev. 95, 97 (1916). It follows that
"any departure from the doctrine of
stare decisis demands
special justification."
Arizona v. Rumsey, 467 U.
S. 203,
467 U. S. 212
(1984). Although the doctrine is not rigidly observed in
constitutional cases,
"[w]e should not be . . . unmindful, even when constitutional
questions are involved, of the principle of
stare decisis,
by whose circumspect observance the wisdom of this Court as an
institution transcending the moment can alone be brought to bear on
the difficult problems that confront us."
Green v. United States, 355 U.
S. 184,
355 U. S. 215
(1957) (Frankfurter, J., dissenting). Despite these time-honored
principles, the dissenters -- on the basis of ambiguous historical
evidence -- would flatly overrule a number of major decisions of
the Court, and cast doubt on others.
See n 27,
infra. Once again, the
dissenters have placed in issue the fundamental nature of our
federal system. [
Footnote
9]
A
The constitutional foundation of state sovereign immunity has
been well described by JUSTICE MARSHALL in his separate opinion in
Employees v. Missouri Dept. of Public Health and Welfare,
411 U. S. 279
(1973):
"It had been widely understood prior to ratification of the
Constitution that the provision in Art. III, § 2, concerning
'Controversies . . . between a State and Citizens of another State'
would not provide a mechanism for making States unwilling
defendants in federal court. The Court in
Chisholm,
however, considered the plain meaning of the constitutional
provision to be controlling.
Page 483 U. S. 480
The Eleventh Amendment served effectively to reverse the
particular holding in
Chisholm, and, more generally, to
restore the original understanding,
see, e.g., Hans v.
Louisiana. . . . Thus, despite the narrowness of the language
of the Amendment, its spirit has consistently guided this Court in
interpreting the reach of the federal judicial power generally,
and"
"it has become established by repeated decisions of this court
that the entire judicial power granted by the Constitution does not
embrace authority to entertain a suit brought by private parties
against a State without consent given: not one brought by citizens
of another State, or by citizens or subjects of a foreign State,
because of the Eleventh Amendment; and not even one brought by its
own citizens, because of the fundamental rule of which the
Amendment is but an exemplification."
Id. at
411 U. S.
291-292 (MARSHALL, J., concurring in result) (citations
omitted). Although the dissent rejects the Court's reading of the
historical record, there is ample support for the Court's
rationale, which has provided the basis for many important
decisions.
1
JUSTICE BRENNAN has argued at length that "[a] close examination
of the historical records" demonstrates that "[t]here simply is no
constitutional principle of state sovereign immunity."
Atascadero State Hospital v. Scanlon, 473 U.S. at
473 U. S. 259
(dissenting opinion). In his dissent today, he repeats and expands
this historical argument.
Post at
483 U. S.
504-516. The dissent concedes, as it must, that three of
the most prominent supporters of the Constitution -- Madison,
Hamilton, and Marshall -- took the position that unconsenting
States would not be subject to suit in federal court. [
Footnote 10] The
Page 483 U. S. 481
Court has relied on these statements in the past.
See
Edelman v. Jordan, 415 U.S. at
415 U. S.
660-662, n. 9;
Monaco v. Mississippi,
292 U. S. 313,
292 U. S.
323-325 (1934);
Hans v. Louisiana, 134
Page 483 U. S. 482
U.S. at
134 U. S. 12-14.
Although the dissenters would read these statements to apply only
to cases in which no federal question is presented,
see
post at
483 U. S.
504-509;
Atascadero State Hospital v. Scanlon,
supra, at
473 U. S. 268,
473 U. S.
276-278, the statements themselves do not suggest such a
limitation. [
Footnote 11]
Moreover, the delicate problem of enforcing judgments against the
States, that was raised by both Federalists and anti-Federalists,
would have arisen in cases presenting a federal question as well as
in other cases.
It is true, as the Court observed in
Hans, supra, at
134 U. S. 14,
that opinions on this question differed during the ratification
debates. Among those who disagreed with Madison, Hamilton, and
Marshall were Edmund Randolph and James Wilson, both of whom
supported ratification. [
Footnote 12] Opponents of
Page 483 U. S. 483
ratification, including Patrick Henry, George Mason, and Richard
Henry Lee, feared that the Constitution would make unconsenting
States subject to suit in federal court. Despite the strong
rhetoric in the dissent, these statements fall far short of
demonstrating a consensus that ratification of the Constitution
would abrogate the sovereign immunity of the States. Indeed, the
representations of Madison, Hamilton, and Marshall that the
Constitution did
not abrogate the States' sovereign
immunity may have been essential to ratification. [
Footnote 13] For example, the New York
Convention appended to its ratification resolution a declaration of
understanding that
"the Judicial Power of the United States in cases in which a
State may be a party does not extend to criminal Prosecutions, or
to authorize any Suit by any Person against a State."
2 Documentary History of the Constitution of the United States
of America 194 (1894) [
Footnote
14] At most,
Page 483 U. S. 484
then, the historical materials show that -- to the extent this
question was debated -- the intentions of the Framers and Ratifiers
were ambiguous.
2
No one doubts that the Eleventh Amendment nullified the Court's
decision in
Chisholm v.
Georgia, 2 Dall. 419 (1793).
Chisholm was
an original action in assumpsit, filed by the South Carolina
executor of a South Carolina estate, to recover money owed to the
estate by Georgia. The Court held, over a dissent by Justice
Iredell, that it had jurisdiction. The reaction to
Chisholm was swift and hostile. The Eleventh Amendment
passed both Houses of Congress by large majorities in 1794. Within
two years of the
Chisholm decision, the Eleventh Amendment
was ratified by the necessary 12 States. [
Footnote 15]
The dissent, observing that jurisdiction in
Chisholm
itself was based solely on the fact that Chisholm was not a citizen
of Georgia, argues that the Eleventh Amendment does not apply to
cases presenting a federal question. [
Footnote 16] The text of the Amendment states that
"[t]he Judicial power of the
Page 483 U. S. 485
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."
(Emphasis added.) Federal question actions unquestionably are
suits "in law or equity"; thus, the plain language of the Amendment
refutes this argument. [
Footnote
17] Nor does the dissenting opinion offer any satisfactory
explanation for the rejection, by an overwhelming margin, of an
amendment offered by Senator Gallatin that would have allowed
citizens to sue the States for causes of action arising under
treaties. [
Footnote 18]
Page 483 U. S. 486
3
The Court's unanimous decision in
Hans v. Louisiana,
134 U. S. 1 (1890),
firmly established that the Eleventh Amendment embodies a broad
constitutional principle of sovereign immunity. Hans, a citizen of
Louisiana, brought an action against the State in federal court
alleging that its failure to pay interest on certain bonds violated
the Contract Clause. The Court considered substantially the same
historical materials relied on by the dissent, and unanimously held
that the action was barred by the doctrine of sovereign immunity.
Justice Bradley's opinion for the Court observed:
"Suppose that Congress, when proposing the Eleventh Amendment,
had appended to it a proviso that nothing therein contained should
prevent a State from being sued by its own citizens in cases
arising under the Constitution or laws of the United States: can we
imagine that it would have been adopted by the States? The
supposition that it would is almost an absurdity on its face."
Id. at
134 U. S. 15. In
a short concurring opinion, Justice Harlan agreed with the other
eight Members of the Court that
"a suit directly against a State by one of its own citizens is
not one to which the judicial power of the United States extends,
unless the State itself consents to be sued."
Id. at
134 U. S. 21.
Contrary to the suggestion in the dissent,
post at
483 U. S. 519,
the fundamental principle enunciated in
Hans has been
among the most stable in our constitutional jurisprudence.
Moreover, the dissent is simply wrong in asserting that the
doctrine lacks a clear rationale,
post at
483 U. S. 519.
Because of the sensitive problems "inherent in making one sovereign
appear against its will in the courts of the other,"
Employees
v. Missouri Dept. of Public Health and Welfare, 411 U.S. at
411 U. S. 294
(MARSHALL, J., concurring in result), the doctrine of sovereign
immunity
Page 483 U. S. 487
plays a vital role in our federal system. The contours of state
sovereign immunity are determined by the structure and requirements
of the federal system. The rationale has been set out most
completely in the Court's unanimous opinion, per Chief Justice
Hughes, in
Monaco v. Mississippi, 292 U.
S. 313 (1934). First, the United States may sue a State,
because that is "inherent in the Constitutional plan."
Id.
at
292 U. S. 329.
Absent such a provision, "
the permanence of the Union might be
endangered.'" Ibid. (quoting Oklahoma v. Texas,
258 U. S. 574,
258 U. S. 581
(1922)). Second, States may sue other States, because a federal
forum for suits between States is "essential to the peace of the
Union." Monaco v. Mississippi, supra, at 292 U. S. 328.
Third, States may not be sued by foreign states, because
"[c]ontroversies between a State and a foreign State may involve
international questions in relation to which the United States has
a sovereign prerogative."
292 U.S. at
292 U. S. 331.
Fourth, the Eleventh Amendment established "an absolute bar" to
suits by citizens of other States or foreign states.
Id.
at
292 U. S. 329.
Finally, "[p]rotected by the same fundamental principle [of
sovereign immunity], the States, in the absence of consent, are
immune from suits brought against them by their own citizens. . .
."
Ibid. The Court has never questioned this basic
framework set out in
Monaco v. Mississippi.
The dissenters offer their unsupported view that the principle
of sovereign immunity is "
pernicious'" because it assertedly
protects States from the consequences of their illegal conduct and
prevents Congress from "`tak[ing] steps it deems necessary and
proper to achieve national goals within its constitutional
authority.'" Post at 483 U. S. 521
(quoting Atascadero State Hospital v. Scanlon, 473 U.S. at
473 U. S. 302
(BRENNAN, J., dissenting)). Of course, the dissent's assertion that
our cases construing the Eleventh Amendment deprive Congress of
some of its constitutional power is simply question-begging.
Moreover, as noted supra at 483 U. S. 475,
Congress clearly has authority to limit the Eleventh Amendment
when
Page 483 U. S. 488
it acts to enforce the Fourteenth Amendment.
Fitzpatrick v.
Bitzer, 427 U.S. at
427 U. S. 456.
The dissent's statement that sovereign immunity "protect[s] the
States from the consequences of their illegal conduct" erroneously
suggests that aggrieved individuals are left with no remedy for
harmful state actions. Relief often may be obtained through suits
against state officials, rather than the State itself, or through
injunctive or other prospective remedies.
Edelman v.
Jordan, 415 U. S. 651
(1974). Municipalities and other local government agencies may be
sued under 42 U.S.C. § 1983.
Monell v. New York City Dept. of
Social Services, 436 U. S. 658
(1978). In addition, the States may provide relief by waiving their
immunity from suit in state court on state law claims. [
Footnote 19] That States are not
liable in other circumstances is a necessary consequence of their
role in a system of dual sovereignties. Although the dissent denies
that sovereign immunity is "`required by the structure of the
federal system,'"
post at
483 U. S. 520
(quoting
Atascadero, supra, at
473 U. S.
302), the principle has been deeply embedded in our
federal system from its inception.
B
As a fallback position, the dissent argues that the doctrine of
sovereign immunity has no application to suits in admiralty against
unconsenting States.
Post at
483 U. S.
497-504. This argument also is directly contrary to
long-settled authority, as well as the Court's recognition that the
Eleventh Amendment affirms "the fundamental principle of sovereign
immunity,"
Pennhurst II, 465 U.S. at
465 U. S. 98;
Monaco v. Mississippi, supra, at
292 U. S.
329.
1
In
Ex parte New York, No. 1, 256 U.
S. 490 (1921), a unanimous Court held that unconsenting
States are immune from
Page 483 U. S. 489
in personam suits in admiralty brought by private
citizens. [
Footnote 20]
Today the dissent asserts that the Court's opinion in
Ex parte
New York, No. 1 "did not attempt to justify its obliteration"
of the traditional distinction between admiralty cases and cases in
law or equity.
Post at
483 U. S. 500.
On the contrary, the Court expressly recognized the distinction,
see 256 U.S. at
256 U. S. 497,
and provided a reasoned basis for its holding:
"That a State may not be sued without its consent is a
fundamental rule of jurisprudence having so important a bearing
upon the construction of the Constitution of the United States that
it has become established by repeated decisions of this court that
the entire judicial power granted by the Constitution does not
embrace authority to entertain a suit brought by private parties
against a State without consent given: not one brought by citizens
of another State, or by citizens or subjects of a foreign State,
because of the Eleventh Amendment; and not even one brought by its
own citizens, because of the fundamental rule of which the
Amendment is but an exemplification."
Ibid. (citations omitted).
The Court has adhered to this rule in subsequent cases.
In
re New York, No. 2, 256 U. S. 503
(1921), held that a private citizen may not bring an admiralty
action
in rem against a vessel owned by a State. The Court
concluded that
"'[t]o permit a creditor to seize and sell [a government-owned
vessel] to collect his debt would be to permit him in some degree
to destroy the government itself.'"
Id. at
256 U. S. 511
(quoting
Klein v. New Orleans, 99 U. S.
149,
99 U. S. 150
(1879)). [
Footnote 21] More
recently,
Page 483 U. S. 490
in
Florida Dept. of State v. Treasure Salvors, Inc.,
458 U. S. 670
(1982), eight Members of the Court reaffirmed the settled rule that
the Eleventh Amendment bars admiralty actions against the State or
its officials seeking damages to be paid from the state treasury.
Id. at
458 U. S.
698-699 (opinion of STEVENS, J.);
id. at
458 U. S.
706-710 (WHITE, J., concurring in judgment in part and
dissenting in part). To be sure, JUSTICE STEVENS' opinion states
that
"we need not decide the extent to which a federal district court
exercising admiralty
in rem jurisdiction over property
before the court may adjudicate the rights of claimants to that
property as against sovereigns that did not appear and voluntarily
assert any claim that they had to the
res."
Id. at
458 U. S. 697.
Of course, that statement has no application to an action
in
personam, such as Welch's suit under the Jones Act. [
Footnote 22]
2
The dissent suggests that
In re New York, No. 1,
decided in 1921, overruled settled law to the effect that the
Constitution does not bar private citizens from bringing
admiralty
Page 483 U. S. 491
suits against the States.
Post at
483 U. S. 500.
The dissent concedes that the Court "
did not pass on the
applicability of the Eleventh Amendment in admiralty'" prior to
1921. Post at 483 U.S.
499 (citation omitted). It nevertheless asserts that dicta
in United States v.
Peters, 5 Cranch 115 (1809), and Governor
of Georgia v. Madrazo, 1 Pet. 110 (1828), support
the "holding" of United States v. Bright, 24 Fed. Cas.
1232 (No. 14,647) (CC Pa. 1809), that the Eleventh Amendment does
not apply to suits in admiralty. In fact, these early cases cast
considerable doubt on the dissent's position.
United States v. Peters was a suit against the heirs of
David Rittenhouse, who had served as treasurer of the State of
Pennsylvania during the Revolutionary War. While Rittenhouse was
treasurer, the State had seized a British vessel and sold it as a
prize of war. Rittenhouse had deposited most of the proceeds in his
own account, and had not turned them over to the State at the time
of his death. Chief Justice Marshall's opinion for the Court turned
on the facts that "the suit was not instituted against the state,
or its treasurer, but against the executrixes of David
Rittenhouse," and that the State "had neither possession of, nor
right to, the property." 5 Cranch at
9 U. S. 139-141.
Indeed, language in the Court's opinion suggests that an action
against the State would have been barred by the Eleventh
Amendment:
"The [eleventh] amendment simply provides that no suit shall be
commenced or prosecuted against a state. The state cannot be made a
defendant to a suit brought by an individual; but it remains the
duty of the courts of the United States to decide all cases brought
before them by citizens of one state against citizens of a
different state where a state is not necessarily a defendant."
Id. at
9 U. S. 139.
Thus, Peters does not support the dissenters' position. [
Footnote 23]
Page 483 U. S. 492
The dissent's reliance on
Governor of Georgia v. Madrazo,
supra, also is misplaced. Madrazo, a Spanish subject, sued the
Governor of Georgia in admiralty to obtain possession of a cargo of
slaves or the proceeds from their sale. Chief Justice Marshall's
opinion for the Court held that the Eleventh Amendment applies
"where the chief magistrate of a state is sued, not by his name,
but by his style of office, and the claim made upon him is entirely
in his official character."
Id. at
26 U. S.
123-124. Although Madrazo argued that the Eleventh
Amendment does not apply to suits in admiralty, the Court carefully
avoided the question. Instead, it held that the District Court
where the action was filed had no jurisdiction regardless of
whether the Eleventh Amendment applied. [
Footnote 24]
Madrazo then filed an original admiralty proceeding directly
against Georgia in this Court. Once again, the Court avoided the
question whether the Eleventh Amendment applies
Page 483 U. S. 493
to suits in admiralty. Instead, the Court concluded that the
case was not an admiralty action, but was "a mere personal suit
against a state to recover proceeds in its possession."
Ex parte
Madrazzo, 7 Pet. 627,
32 U. S. 632
(1833). This rather strained conclusion was contrary to "the
assumption of all concerned" that the action was maritime in
nature. D. Currie, The Constitution and the Supreme Court,
1789-1888, p. 105, n. 98 (1985).
On balance, the early cases in fact indicate that unconsenting
States were immune from suits in admiralty. [
Footnote 25] At the very least, they demonstrate
that the dissent errs in suggesting that the amenability of States
to suits in admiralty was "settled,"
post at
483 U.S. 499. [
Footnote 26] We therefore decline to overrule
precedents that squarely reject the dissenters' position.
C
In deciding yet another Eleventh Amendment case, we do not write
on a clean slate. The general principle of state sovereign immunity
has been adhered to without exception by
Page 483 U. S. 494
this Court for almost a century. The dissent nevertheless urges
the Court to ignore
stare decisis and overrule the long
and unbroken series of precedents reaffirming this principle. If
the Court were to overrule these precedents, a number of other
major decisions also would have to reconsidered. [
Footnote 27] As we have stated,
supra at
483 U. S.
478-479, the doctrine of
stare decisis is of
fundamental importance to the rule of law. For this
Page 483 U. S. 495
reason, "any departure from the doctrine . . . demands special
justification."
Arizona v. Rumsey, 467 U.S. at
467 U. S. 212.
The arguments made in the dissent fall far short of justifying such
a drastic repudiation of this Court's prior decisions. [
Footnote 28]
VI
For the reasons we have stated, the judgment of the Court of
Appeals for the Fifth Circuit is affirmed.
It is so ordered.
[
Footnote 1]
Section 33 of the Jones Act provides in part:
"Any seaman who shall suffer personal injury in the course of
his employment may, at his election, maintain an action for damages
at law, with the right of trial by jury, and in such action all
statutes of the United States modifying or extending the common law
right or remedy in cases of personal injury to railway employees
shall apply. . . . Jurisdiction in such actions shall be under the
court of the district in which the defendant employer resides or in
which his principal office is located."
46 U.S.C. § 688(a).
[
Footnote 2]
The question in
Scanlon was whether § 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794, makes state agencies
subject to suits for retroactive monetary relief in federal court.
The Rehabilitation Act was passed pursuant to § 5 of the Fourteenth
Amendment.
Atascadero State Hospital v. Scanlon,
473 U. S. 234,
473 U. S.
244-245, n. 4 (1985). Congress therefore had the power
to subject unconsenting States to suit in federal court.
See
Fitzpatrick v. Bitzer, 427 U. S. 445
(1976).
[
Footnote 3]
In
Florida Dept. of State v. Treasure Salvors, Inc.,
458 U. S. 670
(1982), eight Members of the Court agreed that the Eleventh
Amendment bars suits in admiralty brought to recover damages from
the State or its officials.
Id. at
458 U. S.
698-699 (plurality opinion of STEVENS, J.);
id.
at
458 U. S.
706-710 (WHITE, J., concurring in judgment in part and
dissenting in part). An action under the Jones Act unquestionably
is an action to recover damages from the State.
[
Footnote 4]
The questions presented in the petition for certiorari are:
"1. Whether the State Department of Highways and the State of
Texas are immune from a Jones Act suit in U.S. District Court by a
state employee/seaman by operation of the Eleventh Amendment to the
U.S. Constitution."
"2. Whether the doctrine of implied waiver of sovereign immunity
as set forth in
Parden v. Terminal R. R. Co., 377 U. S.
184 (1964) is still viable."
Pet. for Cert. i (parallel citations omitted).
[
Footnote 5]
The argument for such an authority starts from the proposition
that the Constitution authorizes Congress to regulate matters
within the admiralty and maritime jurisdiction, either under the
Commerce Clause or the Necessary and Proper Clause.
See D.
Robertson, Admiralty and Federalism 142-145 (1970). By ratifying
the Constitution, the argument runs, the States necessarily
consented to suit in federal court with respect to enactments under
either Clause.
[
Footnote 6]
Because Eleventh Amendment immunity "partakes of the nature of a
jurisdictional bar,"
Edelman v. Jordan, 415 U.
S. 651,
415 U. S. 678
(1974), we have no occasion to consider the State's additional
argument that Congress did not intend to afford seamen employed by
the States a remedy under the Jones Act.
[
Footnote 7]
As the dissenting opinion in
Parden observed, these
cases do not support the Court's holding on the Eleventh Amendment
issue. 377 U.S. at
377 U. S. 200,
n. 2 (WHITE, J., dissenting, joined by Douglas, Harlan, and
Stewart, JJ.).
California v. Taylor, 353 U.
S. 553 (1957), was a suit against the National Railroad
Adjustment Board that expressly reserved the Eleventh Amendment
question.
Id. at
353 U. S. 568,
n. 16 ("The contention of the State that the Eleventh Amendment . .
. would bar an employee . . . from enforcing an award . . . in a
suit against the State in a United States District Court . . . is
not before us under the facts of this case").
United States v.
California, 297 U. S. 175
(1936), was a suit brought by the United States, against which the
States are not entitled to assert sovereign immunity.
See
United States v. Mississippi, 380 U.
S. 128,
380 U. S.
140-141 (1965).
Finally, Petty v. Tennessee-Missouri
Bridge Comm'n, 359 U. S. 275,
359 U. S.
280-282 (1959), involved an interstate compact that
expressly permitted the bistate corporation to sue and be sued.
[
Footnote 8]
As discussed
supra at
483 U. S. 475
and n. 5, we have no occasion in this case to consider the validity
of the additional holding in
Parden that Congress has the
power to abrogate the States' Eleventh Amendment immunity under the
Commerce Clause to the extent that the States are engaged in
interstate commerce.
[
Footnote 9]
We address today only two principal arguments raised by the
dissent: that citizens may bring federal question actions against
the States in federal court,
see infra at
483 U. S.
480-488, and that citizens may bring admiralty suits
against the States,
see infra at
483 U. S.
488-493.
[
Footnote 10]
Madison, Hamilton, and Marshall took this position in response
to suggestions that the Clause in Article III, § 2, extended the
federal judicial power to controversies "between a State and
Citizens of another State." James Madison, often described as the
"father of the Constitution," addressed the effect of the first
Clause during the Virginia Convention:
"[The Supreme Court's] jurisdiction in controversies between a
state and citizens of another state is much objected to, and
perhaps without reason. It is not in the power of individuals to
call any state into court. The only operation [the Clause] can have
is that, if a state should wish to bring a suit against a citizen,
it must be brought before the federal court."
"
* * * *"
"It appears to me that this [Clause] can have no operation but
this -- to give a citizen a right to be heard in the federal
courts; and if a state should condescend to be a party, this court
may take cognizance of it."
3 J. Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 533 (2d ed. 1861).
The same day, John Marshall said to the Virginia Convention:
"I hope that no gentleman will think that a state will be called
to the bar of the federal court. Is there no such case at present?
Are there not many cases in which the legislature of Virginia is a
party, and yet the state is not sued? It is not rational to suppose
that the sovereign power should be dragged before a court. The
intent is to enable states to recover claims of individuals
residing in other states. I contend this construction is warranted
by the words. . . . I see a difficulty in making a state defendant,
which does not prevent its being plaintiff."
Id. at 555-556.
Later that year, Alexander Hamilton wrote in The Federalist:
"It is inherent in the nature of sovereignty not to be amenable
to the suit of an individual
without its consent. This is
the general sense, and the general practice of mankind; and the
exemption, as one of the attributes of sovereignty, is now enjoyed
by the government of every State in the Union. . . . [T]here is no
color to pretend that the State governments would, by the adoption
of that plan, be divested of the privilege of paying their own
debts in their own way, free from every constraint but that which
flows from the obligations of good faith. . . . To what purpose
would it be to authorize suits against States for the debts they
owe? How could recoveries be enforced? It is evident, it could not
be done without waging war against the contracting State; and to
ascribe to the federal courts, by mere implication, and in
destruction of a preexisting right of the State governments, a
power which would involve such a consequence would be altogether
forced and unwarrantable."
The Federalist No. 81, pp. 548-549 (J. Cooke ed.1961) (emphasis
in original).
[
Footnote 11]
The dissent relies heavily on later statements in Chief Justice
Marshall's opinions for the Court in
Cohens v.
Virginia, 6 Wheat. 264,
19 U. S.
382-383,
19 U. S. 412
(1821), and
Osborn v. Bank of the United
States, 9 Wheat. 738,
22 U. S.
857-858 (1824). Of course, the possibility that Marshall
changed his views on sovereign immunity after the Constitution was
ratified, or espoused a broader view of sovereign immunity only to
secure ratification, does not imply that the views he expressed at
the Virginia Convention should be disregarded. In any event, the
dissent places too much weight on
Cohens and
Osborn. In
Cohens, it was the State that began
criminal proceedings against the Cohenses. It had long been
understood that sovereign immunity did not prevent persons
convicted of crimes from appealing.
See D. Currie, The
Constitution and the Supreme Court, 1789-1888, p. 99 (1985).
Accordingly, Chief Justice Marshall's opinion in
Cohens
distinguished a writ of error, which is but "a continuation of the
same suit," from an independent suit against the State. 6 Wheat. at
19 U. S. 409.
Thus, as the Court properly noted in both
Hans v.
Louisiana, 134 U. S. 1,
134 U. S. 19
(1890), and
Monaco v. Mississippi, 292 U.
S. 313,
292 U. S. 327
(1934), the statements quoted in today's dissent were unnecessary
to the decision in
Cohens. In
Osborn, the Court
held that the Eleventh Amendment did not apply to a suit against a
state official, a holding that is not at issue today. Thus, the
statement quoted by the dissent,
post at
483 U. S. 509,
is dictum.
[
Footnote 12]
Both Wilson and Randolph had served on the Committee of Detail
that added the Clause in Article III, § 2, extending the judicial
power to controversies between a State and citizens of another
State. As a Member of the Court, Wilson sided with the majority in
Chisholm v.
Georgia, 2 Dall. 419 (1793). Randolph, while
Attorney General of the United States, argued the case for
Chisholm.
[
Footnote 13]
A leading historian has concluded:
"The right of the Federal Judiciary to summon a State as
defendant and to adjudicate its rights and liabilities had been the
subject of deep apprehension and of active debate at the time of
the adoption of the Constitution; but the existence of any such
right had been disclaimed by many of the most eminent advocates of
the new Federal Government, and it was largely owing to their
successful dissipation of the fear of the existence of such Federal
power that the Constitution was finally adopted."
1 C. Warren, The Supreme Court in United States History 91
(1923).
[
Footnote 14]
The New York Convention also stated its understanding that
"every Power, Jurisdiction and right, which is not by the said
Constitution clearly delegated to the Congress of the United
States, or the departments of the Government thereof, remains to
the People of the several States, or to their respective State
Governments to whom they may have granted the same."
2 Documentary History of the Constitution of the United States
of America 191 (1894). This view later was embodied in the Tenth
Amendment, which reserves to the States, or to the people, powers
not delegated to the United States by the Constitution. Of course,
the Constitution does not expressly abrogate the sovereign immunity
of the States. Thus, the principle that States cannot be sued
without their consent is broadly consistent with the Tenth
Amendment.
[
Footnote 15]
President Adams did not notify Congress that the Amendment had
been ratified by the necessary three-fourths of the States until
January, 1798. 1 J. Richardson, Messages and Papers of the
Presidents 260 (1899).
[
Footnote 16]
The dissent states that Justice Iredell's dissenting opinion in
Chisholm v. Georgia is "generally regarded as embodying
the rationale of the Eleventh Amendment."
Post at
483 U. S. 513.
As the dissent itself observes,
post at
483 U. S.
515-516, Justice Iredell's opinion rests primarily on
the absence of a
statutory provision conferring
jurisdiction on the Court in cases such as Chisholm's. To the
extent that Justice Iredell discussed the constitutional question,
his opinion is consistent with the more recent decisions of this
Court:
"So much, however, has been said on the Constitution that it may
not be improper to intimate that my present opinion is strongly
against any construction of it which will admit,
under any
circumstances, a compulsive suit against the State for the
recovery of money."
2 Dall. at
2 U. S. 449
(emphasis added). The dissent does not attempt to explain these
remarks, except to observe that they were unnecessary to Justice
Iredell's decision.
[
Footnote 17]
The dissent's principal textual argument rests on the similarity
between the language of the Amendment and the language of the
State-Citizen Diversity Clauses in Article III.
See Atascadero
State Hospital v. Scanlon, 473 U.S. at
473 U. S.
286-287 (BRENNAN, J., dissenting). This argument cannot
explain why Congress chose to apply the Amendment to "any suit in
law or equity," rather than any suit where jurisdiction is
predicated solely on diversity of citizenship. Instead, the dissent
reads the Amendment to accomplish even less than its plain language
suggests. As the Court long has recognized, the speed and vigor of
the Nation's response to
Chisholm suggests that the
Eleventh Amendment should be construed broadly so as to further the
federal interests that the Court misapprehended in
Chisholm. The dissent also has some difficulty explaining
the Clause in Article III, § 2, that extends the federal judicial
power "to Controversies to which the United States shall be a
Party." Although arguments analogous to those in the dissent would
suggest that this Clause abrogated the sovereign immunity of the
United States, the dissent stops short of such an extreme
conclusion.
[
Footnote 18]
In an effort to explain the overwhelming rejection of Gallatin's
amendment, the dissent suggests that Congress would have enumerated
all the Article III heads of jurisdiction if it had intended to bar
federal question actions against the States.
Atascadero State
Hospital v. Scanlon, 473 U.S. at
473 U. S. 287,
n. 40. The dissent also speculates, without citing a shred of
historical evidence, that the Senate may have rejected the proposed
amendment to avoid giving the impression that it was barring
federal question actions not based on a treaty. Finally, the
dissent observes that federal courts had no general original
federal question jurisdiction under the Judiciary Act of 1789. The
dissent thus implies that the question was regarded as unimportant
at the time. But the dissent also concedes that Senator Gallatin's
proposed amendment was so unpopular that its adoption might have
resulted in a constitutional convention.
Ibid. This
concession hardly is consistent with the dissent's assertion that
adoption of the Gallatin amendment would have had no practical
significance.
[
Footnote 19]
In this case, for example, Welch is not without a remedy: she
may file a workers' compensation claim against the State under the
Texas Tort Claims Act, ch. 292, 1969 Tex. Gen. Laws 874, amended by
ch. 50, 1973 Tex. Gen. Laws 77.
See Brief for Respondents
34-35.
[
Footnote 20]
The opinion was written by Justice Pitney for a strong Court
that included Justices Holmes and Brandeis. Chief Justice White,
who died 13 days before the decision was announced, presumably
concurred in the result and the reasoning.
[
Footnote 21]
The dissent insists that
In re New York, No. 2 does not
support our holding.
Post at
483 U. S.
500-501, n. 5. As noted
supra at
483 U. S. 473,
n. 3, eight Members of the Court recently have thought otherwise.
In
Florida Dept. of State v. Treasure Salvors, Inc.,
458 U. S. 670
(1982), JUSTICE STEVENS' opinion, joined by Chief Justice Burger
and JUSTICES MARSHALL and BLACKMUN, explains that
In re New
York, No. 2 holds:
"[A]n action -- otherwise barred as an
in personam
action against the State -- cannot be maintained through seizure of
property owned by the State. Otherwise, the Eleventh Amendment
could easily be circumvented; an action for damages could be
brought simply by first attaching property that belonged to the
State, and then proceeding
in rem."
458 U.S. at
458 U. S.
699.
JUSTICE WHlTE's opinion in
Treasure Salvors, joined by
JUSTICES POWELL., REHNQUIST, and O'CONNOR, reads
In re New
York, No. 2 even more broadly, as holding that "sovereign
immunity bars process against a
res in the hands of state
officers." 458 U.S. at
458 U. S.
709.
[
Footnote 22]
The dissent suggests that a distinction may exist between
admiralty suits based on a statute and other admiralty suits
against the States. The only argument the dissent advances in favor
of this distinction is that "admiralty is not mentioned in the
Eleventh Amendment."
Post at
483 U.S. 502. But that observation --
as well as the arguments that the Eleventh Amendment embodies a
principle of sovereign immunity -- applies to all admiralty suits.
The perceived distinction is simply unsound.
[
Footnote 23]
The trial in
United States v. Bright, 24 Fed.Cas. 1232
(No. 14,647) (CC Pa. 1809), occurred after the Court's decision in
Peters. Peters therefore cannot possibly have
"supported" the holding of
Bright in the sense of approval
or endorsement. Bright was an officer of the Pennsylvania state
militia who defended the Rittenhouse home against federal soldiers
attempting to enforce the judgment in
Peters. Circuit
Justice Washington's remarks, that the dissent characterizes as the
"holding" of the case,
post at
483 U. S. 498,
actually were part of his charge to the jury. The Court had no
opportunity to consider Justice Washington's statements, because it
lacked jurisdiction to hear an appeal from Bright's conviction.
[
Footnote 24]
The Court noted that the action was between a State and a
foreign subject, an action within the Court's original jurisdiction
under Article III, § 2, of the Constitution and § 13 of the
Judiciary Act of 1789, 1 Stat. 73, 80. Thus, the Court concluded
that, "if the 11th amendment . . . does not extend to proceedings
in admiralty, it was a case for the original jurisdiction of the
Supreme Court,"
Governor of Georgia v. Madrazo, 1 Pet. at
26 U. S. 124,
because it was a suit between a State and a foreign subject. This
conclusion is surprising in view of the fact that the Judiciary Act
of 1789, ch. 20, § 13, 1 Stat. 73, 80, conferred original, but not
exclusive, jurisdiction of such actions on the Court. Congress had
conferred admiralty jurisdiction on the district courts in § 9 of
the Judiciary Act, 1 Stat. 76-77. Moreover, Chief Justice
Marshall's opinion for the Court in
Cohens v. Virginia, 6
Wheat. at
19 U. S.
394-402, already had indicated that the Court's original
jurisdiction under Article III is not exclusive.
See D.
Currie, The Constitution and the Supreme Court, 1789-1888, p. 105,
n. 98 (1985).
[
Footnote 25]
It is of course true, as the dissent observes, that Justice
Story's treatise on the Constitution observed that a suit in
admiralty is not, strictly speaking, a suit in law or equity.
Post at
483 U.S.
499 (quoting 3 J. Story, Commentaries on the Constitution of
the United States 660-561 (1833)). Justice Story, however, merely
observed that "[i]t has been doubted whether [the eleventh]
amendment extends to cases of admiralty and maritime jurisdiction,"
id. at 560, and cited only the cases discussed above.
Moreover, Justice Story was noted for his expansive view of the
admiralty jurisdiction of federal courts.
See, e.g., De Lovio
v. Boit, 7 Fed. Cas. 418 (No. 3,776) (CC Mass. 1815); Note, 37
Am.L.Rev. 911, 916 (1903) ("It was said of the late Justice Story,
that, if a bucket of water were brought into his court with a corn
cob floating in it, he would at once extend the admiralty
jurisdiction of the United States over it").
[
Footnote 26]
In addition, the dissent accords little weight to early cases
applying the general admiralty principle that maritime property
belonging to a sovereign cannot be seized.
E.g., 11 U.
S. McFaddon, 7 Cranch 116 (1812);
L'Invincible,
1 Wheat. 238 (1816);
The Santissima
Trinidad, 7 Wheat. 283 (1822).
See Florida
Dept. of State v. Treasure Salvors, Inc., 458 U.S. at
458 U. S.
709-710, and n. 6 (opinion of WHITE, J.).
[
Footnote 27]
The dissent is written as if the slate had been clean since
Hans was decided 97 years ago. As noted above,
Hans has been reaffirmed in case after case, often
unanimously and by exceptionally strong Courts. The two principal
holdings of
Hans that the dissent challenges are that the
federal judicial power does not extend either to suits against
States that arise under federal law, or to suits brought against a
State by its own citizens. If these holdings were rejected, the
Court would overrule at least 17 cases, in addition to
Hans itself. Twelve of these cases relied on both of these
principles.
See Papasan v. Allain, 478 U.
S. 265 (1986);
Green v. Mansour, 474 U. S.
64 (1985);
Atascadero State Hospital v.
Scanlon, 473 U. S. 234
(1985);
Edelman v. Jordan, 415 U.
S. 651 (1974);
Quern v. Jordan, 440 U.
S. 332, 342 (1979);
Employees v. Missouri Dept. of
Public Health and Welfare, 411 U. S. 279
(1973);
Ford Motor Co. v. Department of Treasury of
Indiana, 323 U. S. 459
(1945);
Missouri v. Fiske, 290 U. S.
18 (1933);
Ex parte New York, No. 1,
256 U. S. 490
(1921);
Ex parte New York, No. 2, 256 U.
S. 503 (1921);
Dutane v. New Jersey,
251 U. S. 311
(1920);
Fitts v. McGhee, 172 U. S. 516
(1899). Four of them rested on the principles
Hans
established for determining when Congress has extended the federal
judicial power to include actions against States under federal law.
County of Oneida v. Oneida Indian Nation of New York,
470 U. S. 226
(1985);
Great Northern Life Insurance Co. v. Read,
322 U. S. 47
(1944);
Murray v. Wilson Distilling Co., 213 U.
S. 151 (1909);
Smith v. Reeves, 178 U.
S. 436 (1900). Finally, one would be overruled only to
the extent the Court rejected the principle that the federal
judicial power does not extend to suits against States by their own
citizens.
Pennhurst State School and Hospital v.
Halderman, 465 U. S. 89
(1984).
Repudiation of these principles also might justify
reconsideration of a variety of other cases that were concerned
with this Court's traditional treatment of sovereign immunity.
E.g., Florida Dept. of Health and Rehabilitative Services v.
Florida Nursing Home Assn., 450 U. S. 147
(1981);
Monell v. New York City Dept. of Social Services,
436 U. S. 658
(1978);
Monaco v. Mississippi, 292 U.
S. 313 (1934);
Hopkins v. Clemson Agricultural
College, 221 U. S. 636
(1911).
[
Footnote 28]
Apart from rhetoric, the dissent relies on two arguments: (i)
the "historical record," and (ii) the perceived "pernicious[ness]"
of the principle of sovereign immunity. As we have noted, the
fragments of historical evidence at the time of the adoption of the
Constitution are as supportive of
Hans v. Louisiana as
they are of the dissent. In attaching weight to this ambiguous
history, it is not immaterial that we are a century further removed
from the events at issue than were the Justices who unanimously
agreed in
Hans. Not one of the 17 cases the dissent would
overrule concludes that the historical evidence calls into question
the principle of state sovereign immunity or justifies the ignoring
of
stare decisis. As for the view that it would be
"pernicious" to protect States from liability for their "unlawful
conduct," we have noted above that an aggrieved citizen such as
petitioner in fact has a bundle of possible remedies.
See
supra, at
483 U. S. 488,
and n.19.
JUSTICE WHITE, concurring.
The Court expressly stops short of addressing the issue whether
the Jones Act affords a remedy to seamen employed by the States.
See ante at
483 U. S. 476,
n. 6. The Court, however, has already construed the Jones Act to
extend remedies to such seamen.
Petty v. Tennessee-Missouri
Bridge Comm'n, 359 U. S. 275,
359 U. S.
282-283 (1959). Congress has not disturbed this
construction, and the Court, as I understand it, does not now
purport to do so.
JUSTICE SCALIA, concurring in part and concurring in the
judgment.
Petitioner in this case did not assert as a basis for reversing
the judgment that
Hans v. Louisiana, 134 U. S.
1 (1890),
Page 483 U. S. 496
had been wrongly decided. That argument was introduced by an
amicus, addressed only briefly in respondents' brief, and
touched upon only lightly at oral argument. I find both the
correctness of
Hans as an original matter, and the
feasibility, if it was wrong, of correcting it without distorting
what we have done in tacit reliance upon it, complex enough
questions that I am unwilling to address them in a case whose
presentation focused on other matters.
I find it unnecessary to do so, in any event. Regardless of what
one may think of
Hans, it has been assumed to be the law
for nearly a century. During that time, Congress has enacted many
statutes -- including the Jones Act and the provisions of the
Federal Employers' Liability Act (FELA) which it incorporates -- on
the assumption that States were immune from suits by individuals.
Even if we were now to find that assumption to have been wrong, we
could not, in reason, interpret the statutes as though the
assumption never existed. Thus, although the terms of the Jones Act
(through its incorporation of the FELA) apply to all common
carriers by water, I do not read them to apply to States. For the
same reason, I do not read the FELA to apply to States, and
therefore agree with the Court that
Parden v. Terminal Railway
of Alabama Docks Dept., 377 U. S. 184
(1964), should be overruled. Whether or not, as
Hans
appears to have held, Article III of the Constitution contains an
implicit limitation on suits brought by individuals against States
by virtue of a nearly universal "understanding" that the federal
judicial power could not extend to such suits, such an
understanding clearly underlay the Jones Act and the FELA.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN,
and JUSTICE STEVENS join, dissenting.
The Court overrules
Parden v. Terminal Railway of Alabama
Docks Dept., 377 U. S. 184
(1964), and thereby continues aggressively to expand its doctrine
of Eleventh Amendment
Page 483 U. S. 497
sovereign immunity. I adhere to my belief that the doctrine
"rests on flawed premises, misguided history, and an untenable
vision of the needs of the federal system it purports to protect."
Atascadero State Hospital v. Scanlon, 473 U.
S. 234,
473 U. S. 248
(1985) (BRENNAN, J., dissenting). In my view, the Eleventh
Amendment does not bar the District Court's jurisdiction over the
Jones Act suit by Jean Welch against the State of Texas and the
Texas Highway Department for four independent reasons. First, the
Amendment does not limit federal jurisdiction over suits in
admiralty. Second, the Amendment bars only actions against a State
by citizens of another State or of a foreign nation. Third, the
Amendment applies only to diversity suits. Fourth, even assuming
the Eleventh Amendment were applicable to the present case,
Congress abrogated state immunity from suit under the Jones Act,
which incorporates the Federal Employers' Liability Act (FELA). I
therefore dissent.
I
Article III provides that the "judicial power" assigned to
federal courts extends not only to "Cases in Law and Equity," but
also "to all Cases of admiralty and maritime Jurisdiction."
[
Footnote 2/1] In the instant case,
the District Court stated that the "plaintiff brought this suit in
admiralty."
533 F.
Supp. 403, 404 (SD Tex.1982). The Eleventh Amendment limits
the
Page 483 U. S. 498
"Judicial power" in certain suits "in law or equity." [
Footnote 2/2] Therefore, even if the
Eleventh Amendment does bar federal jurisdiction over cases in
which a State is sued by its own citizen, its express language
reveals that it does so
only in "Cases in Law and Equity,"
and not in "Cases of admiralty and maritime Jurisdiction."
The leading case on the relationship between admiralty
jurisdiction and the Eleventh Amendment for over a century was
United States v. Bright, 24 Fed.Cas. 1232 (No. 14,647) (CC
Pa. 1809), which was written by Circuit Justice Bushrod Washington.
It held that the Eleventh Amendment does not bar a suit in
admiralty against a State. Justice Washington acknowledged that a
suit against a State raised sensitive issues, but believed himself
bound by the fact that the Amendment does not refer to suits in
admiralty. Furthermore, he noted that a court usually possesses the
subject matter of the suit (
i.e., the ship) in an
admiralty
in rem proceeding, and thereby avoids the
"delicate" issue of confronting a State with a decree commanding it
to relinquish certain property.
Id. at 1236. This was not
a controversial holding in its day. While the Court during Chief
Justice Marshall's tenure did not have an opportunity to reach this
issue, its dictum in
United States v.
Peters, 5 Cranch 115 (1809), and
Governor
of Georgia v. Madrazo, 1 Pet. 110 (1828), [
Footnote 2/3] supported the holding of
Bright. See Atascadero
Page 483 U. S. 499
State Hospital v. Scanlon, supra, at
473 U. S.
292-293 (BRENNAN, J., dissenting).
"Although the Supreme Court did not pass on the applicability of
the Eleventh Amendment in admiralty until more than a century
later, it was assumed by bench and bar in the meantime that
Bright was correctly reasoned."
J. Orth, The Judicial Power of the United States 37 (1987).
Justice Joseph Story wrote in 1833 that:
"[T]he language of the amendment is that 'the judicial power of
the United States shall not be construed to extend to any suit
in law or equity.' But a suit in the admiralty is not,
correctly speaking, a suit in law or in equity, but is often spoken
of in contradistinction to both."
3 J. Story, Commentaries on the Constitution of the United
States 560-561 (1833) (emphasis in original), citing
United
States v. Peters, supra; United States v. Bright, supra; Governor
of Georgia v. Madrazo, supra. Nineteenth-century commentators
regarded
Bright as having settled the matter. Peter du
Ponceau, in his lectures to the Law Academy of Philadelphia in 1834
simply stated: "It has been held that this restriction [by the
Eleventh Amendment] does not extend to cases of admiralty and
maritime jurisdiction." P. du Ponceau, A Brief View of the
Constitution of the United States 37-38 (1834).
See
Fletcher, A Historical
Page 483 U. S. 500
Interpretation of the Eleventh Amendment: A Narrow Construction
of an Affirmative Grant of Jurisdiction Rather than a Prohibition
Against Jurisdiction, 35 Stan.L.Rev. 1033, 1080-1081 (1983).
[
Footnote 2/4]
In 1921,
Bright was disapproved of, at least in part,
by
Ex parte New York, No. 1, 256 U.
S. 490 (1921).
Ex parte New York, No. 1
involved libel actions against a state official in his official
capacity in connection with vessels operated by the State of New
York. The Court held that a State was immune under the Eleventh
Amendment from an
in personam suit in admiralty brought by
a private individual without the State's consent.
The Court did not attempt to justify its obliteration of
Bright's distinction between cases in admiralty and cases
in law or equity, but simply referred in passing to
Hans v.
Louisiana, 134 U. S. 1 (1890).
256 U.S. at
256 U. S.
497-498. [
Footnote 2/5]
Merely
Page 483 U. S. 501
citing to
Hans is plainly an inadequate justification.
Hans was a suit based on federal question jurisdiction
and, moreover, relied primarily on materials that justified the
application of the Eleventh Amendment to cases in diversity
jurisdiction.
See infra at
483 U. S.
509-516. It did not address the effect of the Eleventh
Amendment on the extension of judicial power in Article III to
admiralty suits.
The distinction between admiralty cases and ordinary cases in
law or equity was not a casual or technical one from the viewpoint
of the Framers of the Constitution. Admiralty was a highly
significant, perhaps the most important, subject matter area for
federal jurisdiction at the end of the 18th century.
"Maritime commerce was then the jugular vein of the Thirteen
States. The need for a body of law applicable throughout the nation
was recognized by every shade of opinion in the Constitutional
Convention."
F. Frankfurter & J. Landis, The Business of the Supreme
Court 7 (1927). Alexander Hamilton noted in the Federalist No.
80:
"The most bigoted idolizers of state authority have not thus far
shewn a disposition to deny the national judiciary the cognizance
of maritime causes."
The Federalist No. 80, p. 538 (J. Cooke ed.1961). Outside of
Ex parte New York, No. 1, the Court has not ignored this
legal distinction between admiralty and other cases in any other
instance of constitutional and statutory interpretation.
See,
e.g., 358 U. S.
International
Page 483 U. S. 502
Terminal Operating Co., 358 U.
S. 354,
358 U. S. 368
(1959);
Atkins v. The Disintegrating
Co., 18 Wall. 272,
85 U. S.
302-303 (1874);
Waring v.
Clarke, 5 How. 441,
46 U. S.
459-460 (1847);
American Insurance Co. v.
Canter, 1 Pet. 511,
26 U. S.
545-546 (1828).
Cf. 28 U. S.
Bedford, 3 Pet. 433,
28 U. S.
446-447 (1830) (neither admiralty nor equity cases were
suits in law within the Seventh Amendment jury provision).
Even if the Court is not prepared to overrule
Ex parte New
York, No. 1, that case can and should be distinguished here.
It involved a suit based on the
common law of admiralty
and state law. In contrast, the present admiralty suit seeks to
enforce a
federal statute, the Jones Act. Although the
Jones Act is deemed not to satisfy the Court's requirement that
Congress use "unmistakable language" to abrogate a State's
sovereign immunity, it does explicitly provide for federal
jurisdiction for suits under the statute. Congress specifically
indicated in the Jones Act that "any seaman" [
Footnote 2/6] may maintain an action for personal injury
under the Act, and that "[J]urisdiction in such actions shall be
under the court of the district in which the defendant employer
resides or in which his principal office is located." 46 U.S.C. §
688. Whatever the merits of the "unmistakable language" requirement
in cases of law and equity, it is completely out of place in
admiralty cases resting on federal statute, in light of the fact
that admiralty is not mentioned in the Eleventh Amendment.
[
Footnote 2/7] Accordingly,
Page 483 U. S. 503
in admiralty cases involving federal legislation, any bar
implied by
Ex parte New York, No. 1 against common law
suits in admiralty is inapplicable. [
Footnote 2/8]
Thus, a narrow holding allowing federal jurisdiction over
Welch's suit in admiralty under the Jones Act against the State of
Texas is consistent with precedent and the will of Congress,
[
Footnote 2/9] and prevents further
erosion of a legal distinction
Page 483 U. S. 504
which is difficult, if not impossible, to rationalize. It is
patently improper to extend the Eleventh Amendment doctrine of
sovereign immunity any further. [
Footnote 2/10]
II
The Eleventh Amendment does not bar a suit under the Jones Act
by a Texas citizen against the State of Texas. The part of Article
III, § 2, that was affected by the Amendment provides: "The
judicial Power shall extend . . . to Controversies . . . between a
State and Citizens of
another State" and "between a State
. . . and foreign . . . Citizens or Subjects" (emphasis added). The
Amendment uses language identical to that in Article III to bar the
extension of the judicial power to a suit "against one of the
United States by Citizens of
another State, or by Citizens
or Subjects of any Foreign State" (emphasis added). The congruence
of the language suggests that the Amendment specifically limits
only the jurisdiction conferred by the above-referenced part of
Article III. Thus, the Amendment bars only federal actions brought
against a State by citizens of another State or by aliens.
Contrary to the Court's view,
ante at
483 U. S.
480-484, a proper assessment of the historical record of
the Constitutional Convention and the debates surrounding the state
ratification conventions confirms this interpretation.
See
Atascadero State Hospital v. Scanlon, 473 U.S. at
473 U. S.
263-280 (BRENNAN, J., dissenting). The Court exclusively
relies on the remarks of Madison, Hamilton, and Marshall at the
Virginia Convention to support its contrary position.
Ante
at
483 U. S.
480-484. But these statements must be considered in
context.
Page 483 U. S. 505
At the Virginia Convention, discussion focused on the question
of Virginia's liability for debts that arose under state law, and
which could be brought into federal court only through diversity
suits by citizens of
another State.
See 3 J.
Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 533 (2d ed. 1861) (hereinafter
Elliot's Debates) (Madison) ("[Federal] jurisdiction in
controversies between a state and citizens of
another
state is much objected to, and perhaps without reason . . .")
(emphasis added); The Federalist No. 81, p. 548 (J. Cooke ed.1961)
(Hamilton) ("It has been suggested that an assignment of the public
securities of one State to the citizens of
another would
enable them to prosecute that state in the federal courts for the
amount of those securities . . .") (emphasis added); 3 Elliot's
Debates 555 (Marshall) ("With respect to disputes between a state
and the citizens of
another state, its jurisdiction has
been decried with unusual vehemence . . .") (emphasis added).
Thus, the delegates to the Virginia Convention were not
objecting to suits initiated by citizens of the same State; what
concerned them were suits by citizens of
other States. The
majority of the delegates who spoke at the Virginia Convention,
including Mason, Henry, Pendleton, and Randolph, did not believe
that state sovereign immunity provided protection against suits
initiated by citizens of other States.
See Atascadero,
supra, at
473 U. S.
264-280. Moreover, those attending the Virginia
Convention evidently were not persuaded by the rhetoric of Madison,
Hamilton, and Marshall cited by the Court. The Convention endorsed
an amendment that would have explicitly denied the federal
judiciary authority over controversies between a State and citizens
of other States. 3 Elliot's Debates 660-661. The felt need for this
amendment shows that the delegates did not believe that state
sovereign immunity barred all suits against States. [
Footnote 2/11]
Page 483 U. S. 506
There is little evidence that Madison [
Footnote 2/12] or Hamilton [
Footnote 2/13] believed that Article III failed to
authorize diversity or federal question suits brought by citizens
against States. We know
Page 483 U. S. 507
Marshall's understanding of Article III from his opinions
written for the Court. The Chief Justice, in
Cohens v.
Virginia, 6 Wheat. 264 (1821), interpreted the
effect of Article III on the Court's jurisdiction to review an
appeal involving, as parties, a State and a citizen of the same
State. The State of Virginia was sued for a writ of error in the
United States Supreme Court. The writ challenged a criminal
conviction obtained in a Virginia state court. The Court rejected
the State's contention that the Constitution denied federal
jurisdiction over the appeal. It concluded that Article III
provides federal jurisdiction "to all [federal question cases]
without making in its terms any exception whatever, and without any
regard to the condition of party."
Id. at
19 U. S. 378.
The Chief Justice then considered whether, in the face of Article
III's clear language, a general principle of state sovereign
immunity could be implied. He concluded:
"From this general grant of jurisdiction [in federal question
cases], no exception is made of those cases in which a State may be
a party. When we consider the situation of the government of the
Union and of a State, in relation to each other; the nature of our
constitution; the subordination of the state governments to that
constitution; the great purpose for which jurisdiction over all
cases arising under the constitution and laws of the United States,
is confided to the judicial department;
are we at liberty to
insert in this general grant, an exception of those cases in which
a State may be a party? Will the spirit of the constitution justify
this attempt to control its words? We think it will not. We
think a case arising under the constitution or laws of the United
States,
Page 483 U. S. 508
is cognizable in the Courts of the Union, whoever may be the
parties to that case."
(Emphasis added).
Id. at
19 U. S.
382-383. [
Footnote
2/14]
The Court in
Cohens also clearly revealed its
understanding that the Eleventh Amendment was inapplicable to a
suit brought by a citizen against his or her own State. After
concluding that the petition for a writ of error was not properly
understood as a suit commenced or prosecuted against a State, the
Chief Justice stated an alternative holding:
"But should we in this be mistaken, the error does not affect
the case now before the Court. If this writ of error be a suit in
the sense of the 11th amendment, it is not a suit commenced or
prosecuted 'by a citizen of another State, or by a citizen or
subject of any foreign State.'
It is not then within the
amendment, but is governed entirely by the constitution as
originally framed, and we have already seen, that in its origin,
the judicial
Page 483 U. S. 509
power was extended to all cases arising under the constitution
or laws of the United States, without respect to parties."
Id. at
19 U. S. 412
(emphasis added).
Chief Justice Marshall reaffirmed this view of the Eleventh
Amendment when he wrote for the Court in
Osborn v.
Bank of the United States, 9 Wheat. 738,
22 U. S.
857-858 (1824):
"The amendment has its full effect, if the constitution be
construed as it would have been construed, had the jurisdiction of
the court never been extended to suits brought against a State, by
the citizens of another State, or by aliens."
The Court, however, chooses to ignore the clear meaning of the
Constitution text based on speculation that the intentions of a few
of the Framers and Ratifiers might have been otherwise. The
evidence available reveals that the views of Madison and Hamilton
on the issue are at best ambiguous,
see nn.
483
U.S. 468fn2/12|>12 and
483
U.S. 468fn2/13|>13,
supra, and that Marshall's
understanding runs directly counter to the Court's position. Thus,
the Eleventh Amendment only bars a federal suit initiated by
citizens of another State. Moreover, as Part III demonstrates, the
Amendment only bars a particular type of federal suit -- an action
based on diversity jurisdiction.
III
In my view, the Eleventh Amendment applies only to diversity
suits, and not to federal question or admiralty suits. The parallel
between the language in Article III's grant of diversity
jurisdiction ("to Controversies . . . between a State and Citizens
of another State . . . and between a State . . . and foreign
States, Citizens or Subjects") and the language in the Eleventh
Amendment ("any suit in law or equity . . . by Citizens of another
State or by Citizens or Subjects of any Foreign State") supports
this view. The Amendment prohibits federal jurisdiction over
all such suits in law or
Page 483 U. S. 510
equity which are based on diversity jurisdiction. Since Congress
had not granted federal question jurisdiction to federal courts
prior to the Amendment's ratification, the Amendment was not
intended to restrict that type of jurisdiction. Furthermore, the
controversy among the Ratifiers cited by the Court today,
ante at
483 U. S.
480-484, involved only diversity suits. Moreover, the
Court recognizes that the immediate impetus for adoption of the
Eleventh Amendment was
Chisholm v.
Georgia, 2 Dall. 419 (1793).
Ante at
483 U. S. 484.
Chisholm was a diversity case brought in federal court
upon a state cause of action against the State of Georgia by a
citizen of South Carolina. The Court relies on
Hans v.
Louisiana, 134 U. S. 1 (1890),
to hold that the Eleventh Amendment bars Welch's suit in
admiralty.
Hans, however, was a
federal question suit
brought by a Louisiana citizen against his own State. Ignoring this
fact, the Court in
Hans relied on materials that primarily
addressed the question of state sovereign immunity in diversity
cases, and not on federal question or admiralty cases. [
Footnote 2/15] It is plain from the face
of the
Hans opinion that the Court misunderstood those
materials. [
Footnote 2/16] In
particular, the Court in
Page 483 U. S. 511
Hans heavily relied on two sources: a statement by
Hamilton in The Federalist No. 81 and the views of Justice Iredell,
who wrote the dissent in
Chisholm. 134 U.S. at
134 U. S. 12,
134 U. S. 13-14,
134 U. S. 18-19.
A close examination of both these sources indicates that they
cannot serve as support for the holding of
Hans or of the
Court today.
A
The Court today relies on the same quotation of Hamilton in The
Federalist No. 81 cited by the Court in
Hans.
Compare 134 U.S. at
134 U. S. 12-13,
with ante at
483 U. S.
480-481, n. 10. The Court in
Hans used this
quotation as proof that all suits brought by individuals against
States were barred, absent their consent. 134 U.S. at
134 U. S. 14-15.
But, in that passage, Hamilton was discussing cases of diversity
jurisdiction, not of federal question jurisdiction:
"It has been suggested that an assignment of the
public
securities of one state to the citizens of another would
enable them to prosecute that state in the federal courts for the
amount of those securities. A suggestion which the following
considerations prove to be without foundation."
The Federalist No. 81, p. 548 (J. Cooke ed.1961) (emphasis
added). In the ensuing discussion, Hamilton described the
circumstances in which States can claim sovereign immunity. He
began with the general principle of sovereign immunity.
"It is inherent in the nature of sovereignty not to be amenable
to the suit of an individual
without its consent.
Page 483 U. S. 512
This is the general sense and the general practice of mankind;
and the exemption, as one of the attributes of sovereignty, is now
enjoyed by the government of every state in the union."
Id. at 548-549.
Hamilton believed that the States surrendered at least part of
their sovereign immunity when they agreed to the Constitution. The
States, however, retained their sovereign authority over
state-created causes of action.
"Unless, therefore, there is a surrender of this immunity in the
plan of the convention, it will remain with the states and the
danger intimated must be merely ideal."
Id. at 549. Thus, the States retained their sovereign
authority over diversity suits involving the state assignment of
public securities to citizens of other States.
"A recurrence to the principles there established will satisfy
us that there is no color to pretend that the State governments
would, by the adoption of that plan, be divested of the privilege
of paying their own debts in their own way, free from every
constraint but that which flows from the obligations of good faith.
The contracts between a nation and individuals are only binding on
the conscience of the sovereign, and have no pretensions to a
compulsive force. They confer no right of action independent of the
sovereign will. To what purpose would it be to authorize suits
against States for the debts they owe? How could recoveries be
enforced? It is evident, that it could not be done without waging
war against the contracting state; and to ascribe to the federal
courts, by mere implication and in destruction of a preexisting
right of the state governments, a power which would involve such a
consequence would be altogether forced and unwarrantable."
Ibid.
Hamilton therefore believed that States could not be sued in
federal court by citizens to collect debts in diversity
actions.
Page 483 U. S. 513
A careful reading of this passage demonstrates that it does not
support the general principle of sovereign immunity against all
suits brought by individuals against States, contrary to the
Court's views in
Hans and in the present case.
B
The Court in
Hans also heavily relied on the rationale
stated by Justice Iredell in
Chisholm. The Court in
Chisholm held that the case was within the jurisdiction of
the Federal District Court. The Eleventh Amendment was thereafter
enacted with "vehement speed," displacing the
Chisholm
ruling.
Larson v. Domestic & Foreign Commerce Corp.,
337 U. S. 682,
337 U. S. 708
(1949). The dissent of Justice Iredell is generally regarded as
embodying the rationale of the Eleventh Amendment by those who
broadly construe it.
See Hans v. Louisiana, supra, at 12,
14, 18-19;
see also Fletcher, 35 Stan.L.Rev. at 1077;
Field, The Eleventh Amendment and Other Sovereign Immunity
Doctrines: Part One, 126 Pa.L.Rev. 515, 541 (1978). Nevertheless, I
think it plain that Justice Iredell's conception of state sovereign
immunity
supports the notion that States should not be
immune from suit in federal court in federal question or admiralty
cases.
Justice Iredell's dissent focused on whether the States
delegated part of their sovereignty to the Federal Government upon
entering into the Union and agreeing to the Constitution.
"Every State in the Union, in every instance where its
sovereignty has not been delegated to the United States, I consider
to be as completely sovereign as the United States are in respect
to the powers surrendered. The United States are sovereign as to
all the powers of Government actually surrendered. Each State in
the Union is sovereign as to all the powers reserved."
2 Dall. at
2 U. S. 435.
Page 483 U. S. 514
Justice Iredell defined the powers surrendered by the States in
terms of the authority that resides in the Congress and the
Executive Branch.
"The powers of the general Government, either of a Legislative
or executive nature, or which particularly concern Treaties with
Foreign Powers, do for the most part (if not wholly) affect
individuals, and not States. They require no aid from any State
authority. This is the great leading distinction between the old
articles of confederation and the present constitution."
Ibid.
He then defined the "judicial power" of Article III. Justice
Iredell found that the federal judicial power "is of a peculiar
kind" because of its hybrid nature.
Ibid. His conception
of state sovereign immunity centered on the dual sources of federal
judicial authority. First, he delineated the portion of federal
jurisdiction that
"is indeed commensurate with the ordinary Legislature and
Executive powers of the general government, and the Power which
concerns treaties."
Ibid. This category encompasses matters wholly within
the federal sovereignty. Justice Iredell plainly was describing the
federal question and admiralty jurisdiction where federal courts
have jurisdiction based on the federal subject matter of the cases.
[
Footnote 2/17]
Page 483 U. S. 515
Justice Iredell then stated: "But [the judicial power] also goes
further."
Ibid. It was in the further extension of
judicial power that the sovereign immunity of the States was
implicated. In diversity cases, the federal judiciary was not
dealing with subject matter within the realm of federal
sovereignty, but was instead providing a neutral forum for the
resolution of state law issues over which the States had not given
up their sovereignty.
"Where certain parties are concerned, although the subject in
controversy does not relate to any of the special objects of
authority of the general Government, wherein the separate
sovereignties of the States are blended in one common mass of
supremacy, yet the general Government has a Judicial Authority in
regard to such subjects of controversy, and the Legislature of the
United States may pass all laws necessary to give such Judicial
Authority its proper effect. So far as States under the
Constitution can be made legally liable to this authority, so far
to be sure they are subordinate to the authority of the United
States, and their individual sovereignty is in this respect
limited. But it is limited no farther than the necessary execution
of such authority requires."
Id. at
2 U. S.
435-436.
Justice Iredell was concerned with "the limit of our authority"
in the diversity case before the Court, since
"we can exercise no authority in the present instance
consistently with the clear intention of the [Judiciary Act] but
such as a proper State Court would have been at least competent to
exercise at the time the act was passed."
Id. at
2 U. S.
436-437.
Page 483 U. S. 516
"If therefore, no new remedy be provided (as plainly is the
case), and consequently we have no other rule to govern us but the
principles of the preexistent [state] laws, which must remain in
force till superceded by others, then it is incumbent upon us to
enquire whether, previous to the adoption of the Constitution, . .
. an action of the nature like this before the Court could have
been maintained against one of the States in the Union upon the
principles of the common law, which I have shown to be alone
applicable. If it could, I think it is now maintainable here: if it
could not, I think, as the law stands at present, it is not
maintainable. . . ."
Id. at
2 U. S. 437.
Thus, Justice Iredell's dissenting opinion rested on a
conception of state sovereignty that justified the incorporation of
the sovereign immunity doctrine through the state common law, but
only in
diversity suits. His opinion
traditionally has been cited as key to the underlying meaning of
the Eleventh Amendment.
See Hans v. Louisiana, 134 U.S. at
134 U. S. 12. Yet
it provides no more support for the result in
Hans than
does the plain language of the Eleventh Amendment. [
Footnote 2/18]
I will not repeat the exhaustive evidence presented in my
dissent in
Atascadero that further buttresses my view of
the Eleventh Amendment sovereign immunity.
See Atascadero,
473 U.S. at
473 U. S.
247-304. I adhere to the view that a suit brought under
a federal law against a State is not barred.
Page 483 U. S. 517
IV
The Court today overrules, in part,
Parden v. Terminal
Railway of Alabama Docks Dept., 377 U.
S. 184 (1964). It rejects the holding in
Parden
that Congress evidenced an intention to abrogate Eleventh Amendment
immunity by making FELA applicable to "every common carrier by
railroad while engaging in commerce between any of the several
States. . . ." § 1, 35 Stat. 65, 45 U.S.C. § 51. The Court instead
concludes that Congress did not abrogate the sovereign immunity of
States, because it did not express this intent in unmistakably
clear language.
The Court's departure from normal rules of statutory
construction frustrates the will of Congress. The Court's holding
in
Parden that Congress intended to abrogate the sovereign
immunity of States in FELA has not been disturbed by Congress for
the past two decades. In FELA, Congress not only indicated that
"every common carrier . . . shall be liable in damages to any
person suffering injury while he is employed by such carrier in
such commerce," but also expressed in unequivocal language that the
"action may be brought in a district court of the United States."
45 U.S.C. §§ 51, 56. The Court in
Parden noted that the
legislative history of FELA revealed that Congress meant to extend
the scope to apply to "all commerce," without exception for
state-owned carriers. 377 U.S. at
377 U. S. 187,
n. 5.
In
Parden, the Court also comprehensively reviewed
other federal statutes regulating railroads in interstate commerce,
which used similar terminology. It found that we had consistently
interpreted those statutes to apply to state-owned railroads.
Id. at
377 U. S.
188-189, quoting
United States v. California,
297 U. S. 175,
297 U. S. 185
(1936) ("
No convincing reason is advanced why interstate
commerce and persons and property concerned in it should not
receive the protection of the act whenever a state, as well as a
privately-owned carrier, brings itself within the sweep of the
statute"'); California v. Taylor, 353 U.
S. 553, 353 U. S. 564
(1957) ("The fact that Congress
Page 483 U. S. 518
chose to phrase the coverage of the Act in all-embracing terms
indicates that state railroads were included within it"). This
conclusion confirmed the Court's determination in
Petty v.
Tennessee-Missouri Bridge Comm'n, 359 U.
S. 275 (1959):
"In [Taylor], we reviewed at length federal legislation
governing employer-employee relationships and said, 'When Congress
wished to exclude state employees, it expressly so provided.'"
Id. at
359 U. S. 282
(citation omitted).
The Court today repeatedly relies on a bare assertion that "the
constitutional role of the States sets them apart from other
employers and defendants."
Ante at
483 U. S. 477.
This may be true in many contexts, but it is not applicable in the
sphere of interstate commerce. Congress has plenary authority in
regulating this area. In
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 196-197
(1824), the Court stated:
"If, as has always been understood, the sovereignty of congress,
though limited to specified objects, is plenary as to those
objects, the power over commerce with foreign nations, and among
the several States, is vested in congress as absolutely as it would
be in a single government, having in its constitution the same
restrictions on the exercise of the power as are found in the
constitution of the United States."
Thus, the Court in
Parden concluded that the decision
to regulate employers of interstate workers, be they private
individuals or States, was for Congress to make:
"While a State's immunity from suit by a citizen without its
consent has been said to be rooted in 'the inherent nature of
sovereignty,' . . . the States surrendered a portion of their
sovereignty when they granted Congress the power to regulate
commerce."
"If Congress made the judgment that, in view of the dangers of
railroad work and the difficulty of recovering for personal
injuries under existing rules, railroad workers in interstate
commerce should be provided with the
Page 483 U. S. 519
right of action created by the FELA, we should not presume to
say, in the absence of express provision to the contrary, that it
intended to exclude a particular group of such workers from the
benefits conferred by the Act."
377 U.S. at
377 U. S.
189-190.
Until today,
Parden has been repeatedly cited by the
Court as an established approach "to the test of waiver of the
Eleventh Amendment."
County of Oneida v. Oneida Indian Nation
of New York, 470 U. S. 226,
470 U. S. 252,
n. 26 (1985) (POWELL, J.);
see, e.g., Fitzpatrick v.
Bitzer, 427 U. S. 445,
427 U. S. 452
(1976). I believe that
Parden was correctly decided.
"[B]y engaging in the railroad business, a State cannot withdraw
the railroad from the power of the federal government to regulate
commerce."
New York v. United States, 326 U.
S. 572,
326 U. S. 582
(1946). In my view, Congress abrogated state immunity to suits
under FELA, a statute incorporated by the Jones Act.
V
Sound precedent should produce progeny whose subsequent
application of principle in light of experience confirms the
original wisdom. Tested by this standard,
Hans has proved
to be unsound. The doctrine has been unstable, because it lacks a
textual anchor, an established historical foundation, or a clear
rationale. [
Footnote 2/19] We
should not forget that the
Page 483 U. S. 520
irrationality of the doctrine has its costs. It has led to the
development of a complex set of rules to avoid unfair results.
[
Footnote 2/20]
See, e.g., Ex
parte Young, 209 U. S. 123
(1908) (Amendment does not bar suit if plaintiff names state
official, rather than State itself, as defendant);
Edelman v.
Jordan, 415 U. S. 651
(1974) (Amendment does not bar prospective, but only retrospective,
relief). The doctrine, based on a notion of kingship, intrudes
impermissibly on Congress' lawmaking power. I adhere to my belief
that:
"[T]he doctrine that has thus been created is pernicious. In an
era when sovereign immunity has been generally recognized by courts
and legislatures as an anachronistic and unnecessary remnant of a
feudal legal system, . . . the Court has aggressively expanded its
scope. If this doctrine were required to enhance the liberty of our
people in accordance with the Constitution's protections, I could
accept it. If the doctrine were required by the structure of the
federal system created by the Framers, I could accept it. Yet the
current doctrine intrudes on the ideal of liberty under law by
protecting the States from the consequences of their illegal
conduct. And the
Page 483 U. S. 521
decision obstructs the sound operation of our federal system by
limiting the ability of Congress to take steps it deems necessary
and proper to achieve national goals within its constitutional
authority."
Atascadero State Hospital v. Scanlon, 473 U.S. at
473 U. S. 302
(dissenting opinion) (citations omitted). By clinging to
Hans, the Court today erases yet another traditional legal
distinction and overrules yet another principle that defined the
limits of that decision. In my view, we should at minimum confine
Hans to its current domain. More fundamentally, however,
it is time to begin a fresh examination of Eleventh Amendment
jurisprudence without the weight of that mistaken precedent. I
therefore dissent.
[
Footnote 2/1]
Article III, § 2, provides:
"The judicial power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United
States, and Treaties made, or which shall be made, under their
Authority; -- to all Cases affecting Ambassadors, other public
Ministers and Consuls; -- to all Cases of admiralty and maritime
Jurisdiction; -- to Controversies to which the United States shall
be a Party; -- to Controversies between two or more States; between
a State and Citizens of another State; -- between Citizens of
different States; -- between Citizens of the same State claiming
Lands under Grants of different States, and between a State, or the
Citizens thereof, and foreign States, Citizens or Subjects."
[
Footnote 2/2]
The Eleventh Amendment provides:
"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."
[
Footnote 2/3]
None of these Marshall Court cases casts any doubt on the
correctness of
United States v. Bright, 24 Fed.Cas. 1232
(No. 14,647) (CC Pa. 1809). The Court, however, asserts that
language in
United States v. Peters, 5 Cranch at
9 U. S. 139-141,
supports its viewpoint. The language it cites,
ante at
483 U. S. 491,
is taken out of context. In
Peters, the Court found that
the suit was not instituted against the State, but against a state
official, as an individual party. 5 Cranch at
9 U. S. 139.
Thus, the suit was not barred because "[t]he amendment simply
provides, that no suit shall be commenced or prosecuted against a
state."
Ibid. The Court was focusing only on the identity
of the defendant, and not on the identity of the plaintiff. Indeed,
the suit was brought by the United States Government, and States
are not immune from actions brought by the United States.
Ante at
483 U. S. 487.
Read in context, the quotation from
Peters cited by the
Court provides no support for the Court's position.
The Court in
Peters heavily relied on the Amendment's
plain language to justify its view that the Amendment applied only
to States, and not to state officials. 5 Cranch at
9 U. S. 139. The
Bright case resulted from an attempt to enforce the
judgment rendered in
Peters. As indicated
supra
at
483 U. S. 498,
the court in
Bright also heavily relied on the plain
language of the Amendment in holding that the Amendment did not
affect admiralty suits.
[
Footnote 2/4]
The universal acceptance of
Bright's holding suggests
that States were not accorded status equal to foreign sovereigns in
the early 19th century.
See, e.g., 11 U.
S. McFaddon, 7 Cranch 116,
11 U. S. 136
(1812) ("The jurisdiction of the nation within its own territory is
necessarily exclusive and absolute. It is susceptible of no
limitation not imposed by itself"). The early admiralty cases cited
today by the Court,
ante at
483 U. S. 493,
n. 25, indicate that foreign countries were accorded sovereign
immunity based on the international consequences of a federal
court's intervention.
See, e.g., 20 U.
S. 7 Wheat. 283,
20 U. S. 337
(1822) (Story, J.) ("The government of the United States has
recognized the existence of a civil war between Spain and her
colonies, and has avowed a determination to remain neutral between
the parties, and to allow to each the same rights of asylum and
hospitality and intercourse").
[
Footnote 2/5]
The Court also cites two other cases that do not support its
holding on the Eleventh Amendment issue. In
Ex parte New York,
No. 2, 256 U. S. 503
(1921), the Court held that an
in rem action against a
State was barred by the common law principle that
"property and revenue necessary for the exercise of powers [by
government] are to be considered as part of the machinery of
government exempt from seizure and sale under process against the
city. . . ."
Id. at
256 U. S.
511.
In
Florida Dept. of State v. Treasure Salvors, Inc.,
458 U. S. 670
(1982) (opinion of STEVENS, J.), a four-Justice plurality held that
the Eleventh Amendment did not bar the process issued by the
District Court to secure possession of artifacts held by state
officials. The plurality distinguished the
Ex parte New
York cases because the "action [was] not an
in
personam action brought to recover damages from the State."
458 U.S. at
458 U. S. 699.
The Court carefully emphasized the narrowness of its holding:
"In ruling that the Eleventh Amendment does not bar execution of
the warrant, we need not decide the extent to which a federal
district court exercising admiralty
in rem jurisdiction
over property before the court may adjudicate the rights of
claimants to that property against sovereigns that did not appear
and voluntarily assert any claim that they had to the
res."
Id. at
458 U. S. 697.
Four Justices dissented in part from the judgment on the ground
that the action was a suit against the State, and therefore barred
by the Eleventh Amendment.
Id. at
458 U. S. 705,
706 (opinion of WHITE, J., joined by POWELL, REHNQUIST, and
O'CONNOR, JJ.).
[
Footnote 2/6]
Welch's "status as a
seaman' under the Jones Act is assumed,
and is not at issue." 780 F.2d 1268, 1269 (CA5 1986).
[
Footnote 2/7]
In my view, there is no reason to depart from normal rules of
statutory construction to determine Congress' intent regarding
admiralty suits against States in federal court. The Court has
applied normal rules of statutory construction when Congress
exercises its authority under an Amendment that expressly
contemplates limitations on States' authority,
see Fitzpatrick
v. Bitzer, 427 U. S. 445,
427 U. S.
452-453 (1976), despite the Eleventh Amendment's express
jurisdictional bar against certain suits in law or equity.
A
fortiori, we should apply normal statutory construction when
Congress exercises its express authority to extend federal
jurisdiction over admiralty cases and the Eleventh Amendment
does not expressly bar the exercise of that authority.
It seems odd for the Court to impose an "unmistakable language"
requirement on the Jones Act, especially based on an interpretation
of the Eleventh Amendment that incorporates words that are not
there. Departing from normal rules of statutory construction
inevitably will frustrate the will of Congress. When the Jones Act
was enacted,
Bright was the prevailing precedent.
Moreover, in my view, Congress expressed its intent in unmistakable
language when it extended liability to employers of "any seaman"
and explicitly provided for federal jurisdiction over such
actions.
[
Footnote 2/8]
In addition, as Part IV discusses,
infra, at
483 U. S.
517-519, we should be especially hesitant to incorporate
the concept of state sovereign immunity with respect to those
subjects over which the Constitution expressly grants authority to
the National Government. Foreign and interstate commerce, which
necessarily encompasses matters of admiralty, is obviously such a
subject area. As we said in
United States v. California,
297 U. S. 175
(1936), in rejecting an argument that a State was not subject in
its sovereign capacity to a federal statute regulating interstate
commerce:
"We can perceive no reason for extending [the canon of
construction that a sovereign is presumptively not intended to be
bound by a statute unless named in it] as to exempt a business
carried on by a state from the otherwise applicable provisions of
an act of Congress, all-embracing in scope and national in its
purpose, which is capable of being obstructed by state as by
individual action. Language and objectives so plain are not to be
thwarted by resort to a rule of construction whose purpose is but
to resolve doubts, and whose application in the circumstances would
be highly artificial."
Id. at
297 U. S.
186-187.
[
Footnote 2/9]
In
Petty v. Tennessee-Missouri Bridge Comm'n,
359 U. S. 275,
359 U. S. 282
(1959), the Court considered the substantive applicability of the
Jones Act to state employees:
"'When Congress wished to exclude state employees, it expressly
so provided.' . . . The Jones Act . . . has no exceptions from the
broad sweep of the words 'Any seaman who shall suffer personal
injury in the course of his employment may' etc."
(citations omitted). The Court today does not disturb this
holding.
See ante at
483 U. S. 495
(WHITE, J., concurring).
[
Footnote 2/10]
Cf. United States v. Johnson, 481 U.
S. 681,
481 U. S. 692
(1987) (SCALIA, J., dissenting) (arguing against extension of the
Feres doctrine (
Feres v. United States,
340 U. S. 135
(1950)) in order to "limit our clearly wrong decision in
Feres and confine the unfairness and irrationality that
decision has bred").
[
Footnote 2/11]
Similar proposals submitted in New York, North Carolina, and
Rhode Island urged amendments depriving federal courts of
jurisdiction over cases instituted against a State by a citizen of
another State or by an alien.
See C. Jacobs, The Eleventh
Amendment and Sovereign Immunity 64 (1972).
[
Footnote 2/12]
Madison's view of this issue is not clear. As legal historian
Clyde Jacobs concluded,
"[w]hether Madison thought that federal courts should possess
any jurisdiction over suits instituted against a state by citizens
of another state or by foreigners must remain a matter of some
conjecture; indeed there is no direct evidence that he considered
the question at all. . . ."
Id. at 12. Professor Jacobs also noted:
"Madison and other nationalists believed that the federal
judiciary should be armed with powers not only to maintain the
supremacy of national law but also to review state judicial
decisions that might have interstate or foreign ramifications. Thus
one of the principal reasons nationalists advanced for extending
the federal judicial power -- the maintenance of international
peace and domestic harmony -- would appear to necessitate national
jurisdiction in cases where the good faith of the states
vis-a-vis foreigners and citizens of other states had been
engaged. If, however, this proposed federal judicial jurisdiction
were qualified by the doctrine of state immunity, a broad avenue
would have been left open to defeat every claim made upon them by
citizens of other states and by aliens. The exception to the
jurisdiction would have made the proposed jurisdiction futile or,
at least, negligible."
Id. at 13-14.
[
Footnote 2/13]
Hamilton's writings in The Federalist, No. 80, suggest that he
did not believe that Article III barred all suits against
States:
"It may be esteemed the basis of the union that 'the citizens of
each state shall be entitled to all the privileges and immunities
of citizens of the several states.' And if it be a just principle
that every government
ought to possess the means of executing
its own provisions by its own authority, it will follow that,
in order to the inviolable maintenance of that equality of
privileges and immunities to which the citizens of the union will
be entitled,
the national judiciary ought to preside in all
cases in which one state or its citizens are opposed to another
state or its citizens. To secure the full effect of so
fundamental a provision against all evasion and subterfuge, it is
necessary that its construction should be committed to that
tribunal which, having no local attachments, will be likely to be
impartial between the different states and their citizens, and
which, owing its official existence to the union, will never be
likely to feel any bias inauspicious to the principles on which it
is founded."
The Federalist No. 80, pp. 537-538 (J. Cooke ed.1961) (first
emphasis in original; second emphasis added).
[
Footnote 2/14]
In
Cohens, Chief Justice Marshall explained in detail
the effect of the general principle of sovereign immunity on the
scope of Article III:
"The Counsel for the [State] . . . have laid down the general
proposition that a sovereign independent state is not suable except
by its own consent."
"This general proposition will not be controverted. But its
consent is not requisite in each particular case. It may be given
in a general law. And if a state has surrendered any portion of its
sovereignty, the question whether a liability to suit be a part of
this portion depends on the instrument by which the surrender is
made. If, upon a just construction of that instrument, it shall
appear that the state has submitted to be sued, then it has parted
with this sovereign right of judging in every case on the justice
of its own pretensions, and has entrusted that power to a tribunal
in whose impartiality it confides."
Cohens v. Virginia, 6 Wheat. at
19 U. S.
380.
The Court then found that, in agreeing to the Constitution, the
States had surrendered a significant measure of their sovereignty.
It stated that the Supremacy Clause is evidence of this surrender.
Id. at
19 U. S.
380-381. The Court therefore found that Article III
extended jurisdiction to all federal question suits, and that "no
exception is made of those cases in which a state may be party."
Id. at
19 U. S.
382-383.
[
Footnote 2/15]
See generally Brief of the American Federation of Labor
and Congress of Industrial Organizations as
Amicus Curiae
11-23.
[
Footnote 2/16]
A legal historian, Professor John Orth, recently described the
historical approach taken by the Court in
Hans:
"In
Hans v. Louisiana, . . . Justice Bradley rewrote
the history of the Eleventh Amendment. . . . Only half a dozen
years before, in [
New Hampshire v. Louisiana, 108 U. S. 76
(1883),] written by Chief Justice Waite and joined by Justice
Bradley, the Court had accepted
Chisholm as a correct
interpretation of the Constitution as it then stood. . . ."
"How did Justice Bradley suddenly attain such unhedged certitude
about the original understanding and the Eleventh Amendment? No
surprising discoveries about the historical record had been made in
the decade of the 1880s. The Justice himself merely rehashed the
familiar quotations from Madison, Marshall, and Hamilton. With
regard to
Chisholm, Bradley declaimed:"
"In view of the manner in which that decision was received by
the country, the adoption of the Eleventh Amendment, the light of
history and the reason of the thing, we think we are at liberty to
prefer Justice Iredell's views. . . ."
"Yet Iredell's dissent was manhandled. . . . Attributing
sovereign immunity to the states, Bradley began the confusion that
still prevails between federal and state sovereignty."
"Nothing had arisen since the decision of the New Hampshire case
to change Bradley's view of the past -- except the pressing need
for a new rationale to justify a new result. If sovereign immunity
had not existed, the Justice would have had to invent it. As it
was, all that was required was to rewrite a little history."
J. Orth, The Judicial Power of the United States 74-75 (1987)
(Orth).
[
Footnote 2/17]
Justice Story later drew the same distinction between federal
subject matter jurisdiction and federal diversity jurisdiction as
did Justice Iredell:
"The vital importance of all the cases enumerated in the first
class to the national sovereignty might warrant such a distinction.
In the first place, as to cases arriving under the constitution,
laws, and treaties of the United States. Here the state courts
could not ordinarily possess a direct jurisdiction. The
jurisdiction over such cases could not exist in the state courts
previous to the adoption of the constitution, and it could not
afterwards be directly conferred on them; for the constitution
expressly requires the judicial powers to be vested in courts
ordained and established by the United States. . . . The same
remarks may be urged as to cases affecting ambassadors, other
public ministers, and consuls . . . and as to cases of admiralty
and maritime jurisdiction. . . . All these cases, then, enter into
the national policy, affect the national rights, and may compromise
the national sovereignty. . . ."
"A different policy might well be adopted in reference to the
second class of cases. . . ."
Martin v. Hunter's
Lessee, 1 Wheat. 304,
14 U. S.
334-335 (1816).
See generally Amar, A
Neo-Federalist View of Article III: Separating the Two Tiers of
Federal Jurisdiction, 65 B.U.L.Rev. 205 (1985).
[
Footnote 2/18]
Justice Iredell avoided committing himself on the broader
constitutional question concerning whether suits, other than those
in diversity, were barred by the Eleventh Amendment. He noted:
"So much, however, has been said on the Constitution that it may
not be improper to intimate that my present opinion is strongly
against any construction of it which will admit, under any
circumstances, a compulsive suit against a State for the recovery
of money."
Chisholm v.
Georgia, 2 Dall. 419,
2 U. S. 449
(1793). Nonetheless, he conceded,
"[t]his opinion I hold, however, with all the reserve proper for
one, which, according to my sentiments in this case, may be deemed
in some measure extrajudicial."
Id. at
2 U. S. 450.
[
Footnote 2/19]
Today only four Members of the Court advocate adherence to
Hans. Three factors counsel against continued reliance
upon
Hans. First,
Hans misinterpreted the intent
of the Framers and those who ratified the Eleventh Amendment.
Cf. Michelin Tire Corp. v. Wages, 423 U.
S. 276,
423 U. S.
297-298 (1976) (overruling
Low v.
Austin, 13 Wall. 29 (1872), because it ignored the
language and objectives of the Import-Export Clause and misread
earlier Court precedent). Second, the progeny of
Hans has
produced erratic and irrational results. If a general principle of
state sovereign immunity is based on the sensitive problems
inherent in making one sovereign appear against its will in the
courts of other sovereigns,
ante at
483 U. S.
486-487, then it is inexplicable why States can be sued
in some cases (by other States, by the Federal Government, or when
prospective relief is sought) and not in other instances (by
foreign countries, by citizens of the same State, or when
retrospective relief is sought). The Court's recital of the rules
of sovereign immunity in
Monaco v. Mississippi,
292 U. S. 313
(1934), indicates the crazy-quilt pattern of the
Hans
doctrine.
Ante at
483 U. S. 487. Third, the Eleventh Amendment doctrine
creates inconsistencies in constitutional interpretation. For
example, under the Seventh Amendment, the Court has stated that a
right to a jury trial does not extend to admiralty cases because
these suits in admiralty are distinguishable from suits in law.
See Parsons v.
Bedford, 3 Pet. 433,
28 U. S.
446-447 (1830). Yet today the Court ignores the
distinction between suits in admiralty and in law in arriving at
its decision.
[
Footnote 2/20]
As Professor Orth concludes:
"By the late twentieth century, the law of the Eleventh
Amendment exhibited a baffling complexity. . . . 'The case law of
the eleventh amendment is replete with historical anomalies,
internal inconsistencies, and senseless distinctions.' Marked by
its history as were few other branches of constitutional law,
interpretation of the Amendment has become an arcane specialty of
lawyers and federal judges."
Orth 11 (citation omitted).