Respondent, who suffers from diabetes and has no sight in one
eye, brought an action in Federal District Court against
petitioners, alleging that petitioner California State Hospital
denied him employment because of his physical handicap, in
violation of § 504 of the Rehabilitation Act of 1973, and seeking
compensatory, injunctive, and declaratory relief. Section 504
provides that no handicapped person shall, solely by reason of his
handicap, be subjected to discrimination under any program
receiving federal financial assistance under the Act. Section
505(a) makes available to any person aggrieved by any act of any
recipient of federal assistance under the Act the remedies for
employment discrimination set forth in Title VI of the Civil Rights
Act of 1964. The District Court granted petitioners' motion to
dismiss the complaint on the ground that respondent's claims were
barred by the Eleventh Amendment. Ultimately, after initially
affirming on other grounds and upon remand from this Court, the
Court of Appeals reversed, holding that the Eleventh Amendment did
not bar the action because the State by receiving funds under the
Act had implicitly consented to be sued as a recipient under §
504.
Held: Respondent's action is proscribed by the Eleventh
Amendment. Pp.
473 U. S.
237-247.
(a) Article III, § 5, of the California Constitution, which
provides that "[s]uits may be brought against the State in such
manner and in such courts as shall be directed by law" does not
constitute a waiver of the State's Eleventh Amendment immunity from
suit in federal court. In order for a state statute or
constitutional provision to constitute such a waiver, it must
specify the State's intent to subject itself to suit in federal
court. Article III, § 5, does not specifically indicate the State's
willingness to be sued in federal court, but appears simply to
authorize the legislature to waive the State's sovereign immunity.
P.
473 U. S.
241.
(b) The Rehabilitation Act does not abrogate the Eleventh
Amendment bar to suits against the States. Congress must express
its intention to abrogate the Eleventh Amendment in unmistakable
language in the statute itself. Here, the general authorization for
suit in federal court is not the kind of unequivocal statutory
language sufficient to abrogate the Eleventh Amendment. Pp.
473 U. S.
242-246.
Page 473 U. S. 235
(c) The State's acceptance of funds and participation in
programs funded under the Rehabilitation Act are insufficient to
establish that it consented to suit in federal court. The Act falls
far short of manifesting a clear intention to condition
participation in programs under the Act on a State's consent to
waive its constitutional immunity. Pp.
473 U. S.
246-247.
735 F.2d 359, reversed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and WHITE, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J.,
filed a dissenting opinion, in which MARSHALL, BLACKMUN, and
STEVENS, JJ., joined,
post, p.
473 U. S. 247.
BLACKMUN, J., filed a dissenting opinion, in which BRENNAN,
MARSHALL, and STEVENS, JJ., joined,
post, p.
473 U. S. 302.
STEVENS, J., filed a dissenting opinion,
post, p.
473 U. S.
304.
JUSTICE POWELL delivered the opinion of the Court.
This case presents the question whether States and state
agencies are subject to suit in federal court by litigants seeking
retroactive monetary relief under § 504 of the Rehabilitation Act
of 1973, 29 U.S.C. § 794, or whether such suits are proscribed by
the Eleventh Amendment.
Page 473 U. S. 236
I
Respondent, Douglas James Scanlon, suffers from diabetes
mellitus and has no sight in one eye. In November, 1979, he filed
this action against petitioners, Atascadero State Hospital and the
California Department of Mental Health, in the United States
District Court for the Central District of California, alleging
that, in 1978, the hospital denied him employment as a graduate
student assistant recreational therapist solely because of his
physical handicaps. Respondent charged that the hospital's
discriminatory refusal to hire him violated § 504 of the
Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U.S.C. §
794, and certain state fair employment laws. Respondent sought
compensatory, injunctive, and declaratory relief.
Petitioners moved for dismissal of the complaint on the ground
that the Eleventh Amendment barred the federal court from
entertaining respondent's claims. Alternatively, petitioners argued
that, in a suit for employment discrimination under § 504 of the
Rehabilitation Act, a plaintiff must allege that the primary
objective of the federal assistance received by the defendants is
to provide employment, and that respondent's case should be
dismissed because he did not so allege. In January, 1980, the
District Court granted petitioners' motion to dismiss the complaint
on the ground that respondent's claims were barred by the Eleventh
Amendment. On appeal, the United States Court of Appeals for the
Ninth Circuit affirmed.
Scanlon v. Atascadero State
Hospital, 677 F.2d 1271 (1982). It did not reach the question
whether the Eleventh Amendment proscribed respondent's suit.
Rather, it affirmed the District Court on the ground that
respondent failed to allege an essential element of a claim under §
504, namely, that a primary objective of the federal funds received
by the defendants was to provide employment.
Id. at
1272.
Respondent then sought review by this Court. We granted
certiorari, 465 U.S. 1095 (1984), vacated the judgment
Page 473 U. S. 237
of the Court of Appeals, and remanded the case for further
consideration in light of
Consolidated Rail Corporation v.
Darrone, 465 U. S. 624
(1984), in which we held that § 504's bar on employment
discrimination is not limited to programs that receive federal aid
for the primary purpose of providing employment.
Id. at
465 U. S.
632-633. On remand, the Court of Appeals reversed the
judgment of the District Court. It held that
"the Eleventh Amendment does not bar [respondent's] action,
because the State, if it has participated in and received funds
from programs under the Rehabilitation Act, has implicitly
consented to be sued as a recipient under 29 U.S.C. § 794."
735 F.2d 359, 362 (1984). Although noting that the
Rehabilitation Act did not expressly abrogate the States' Eleventh
Amendment immunity, the court reasoned that a State's consent to
suit in federal court could be inferred from its participation in
programs funded by the Act. The court based its view on the fact
that the Act provided remedies, procedures, and rights against "any
recipient of Federal assistance" while implementing regulations
expressly defined the class of recipients to include the States.
Quoting our decision in
Edelman v. Jordan, 415 U.
S. 651,
415 U. S. 672
(1974), the court determined that the "
threshold fact of
congressional authorization to sue a class of defendants which
literally includes [the] States'" was present in this case. 735
F.2d at 361.
The court's decision in this case is in conflict with those of
the Courts of Appeals for the First and Eighth Circuits.
See
Ciampa v. Massachusetts Rehabilitation Comm'n, 718 F.2d 1 (CA1
1983);
Miener v. Missouri, 673 F.2d 969 (CA8),
cert.
denied, 459 U.S. 909 (1982). We granted certiorari to resolve
this conflict, 469 U.S. 1032 (1984), and we now reverse.
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
Page 473 U. S. 238
or Subjects of any Foreign State."
As we have recognized, the significance of this 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). Thus, in
Hans v.
Louisiana, 134 U. S. 1 (1890),
the Court held that the Amendment barred a citizen from bringing a
suit against his own State in federal court, even though the
express terms of the Amendment do not so provide.
There are, however, certain well-established exceptions to the
reach of the Eleventh Amendment. For example, if a State waives its
immunity and consents to suit in federal court, the Eleventh
Amendment does not bar the action.
See, e.g., Clark v.
Barnard, 108 U. S. 436,
108 U. S. 447
(1883). [
Footnote 1] Moreover,
the Eleventh Amendment is "necessarily limited by the enforcement
provisions of § 5 of the Fourteenth Amendment," that is, by
Congress' power "to enforce, by appropriate legislation, the
substantive provisions of the Fourteenth Amendment."
Fitzpatrick v. Bitzer, 427 U. S. 445,
427 U. S. 456
(1976). As a result, when acting pursuant to § 5 of the Fourteenth
Amendment, Congress can abrogate the Eleventh Amendment without the
States' consent.
Ibid.
But because the Eleventh Amendment implicates the fundamental
constitutional balance between the Federal Government and the
States, [
Footnote 2] this Court
consistently has held
Page 473 U. S. 239
that these exceptions apply only when certain specific
conditions are met. Thus, we have held that a State will be deemed
to have waived its immunity
"only where stated 'by
Page 473 U. S. 240
the most express language or by such overwhelming implication
from the text as [will] leave no room for any other reasonable
construction.'"
Edelman v. Jordan, 415 U.S. at
415 U. S. 673,
quoting
Murray v. Wilson Distilling Co., 213 U.
S. 151,
213 U. S. 171
(1909). Likewise, in determining whether Congress, in exercising
its Fourteenth Amendment powers, has abrogated the States' Eleventh
Amendment immunity, we have required
"an unequivocal expression of congressional intent to 'overturn
the constitutionally guaranteed immunity of the several
States.'"
Pennhurst II, 465 U.S. at
465 U. S. 99,
quoting
Quern v. Jordan, 440 U. S. 332,
440 U. S. 342
(1979).
Accord, Employees v. Missouri Dept. of Public Health
and Welfare, 411 U. S. 279
(1973).
In this case, we are asked to decide whether the State of
California is subject to suit in federal court for alleged
violations of § 504 of the Rehabilitation Act. Respondent makes
three arguments in support of his view that the Eleventh Amendment
does not bar such a suit: first, that the State has waived its
immunity by virtue of Art. III, § 5, of the California
Constitution; second, that, in enacting the Rehabilitation Act,
Congress has abrogated the constitutional immunity of the States;
third, that, by accepting federal funds under the Rehabilitation
Act, the State has consented to suit in federal court. Under the
prior decisions of this Court, none of these claims has merit.
Page 473 U. S. 241
III
Respondent argues that the State of California has waived its
immunity to suit in federal court, and thus the Eleventh Amendment
does not bar this suit.
See Clark v. Barnard, 108 U.
S. 436 (1883). Respondent relies on Art. III, § 5, of
the California Constitution, which provides: "Suits may be brought
against the State in such manner and in such courts as shall be
directed by law." In respondent's view, unless the California
Legislature affirmatively imposes sovereign immunity, the State is
potentially subject to suit in any court, federal as well as
state.
The test for determining whether a State has waived its immunity
from federal court jurisdiction is a stringent one. Although a
State's general waiver of sovereign immunity may subject it to suit
in state court, it is not enough to waive the immunity guaranteed
by the Eleventh Amendment.
Florida Dept. of Health v. Florida
Nursing Home Assn., 450 U. S. 147,
450 U. S. 150
(1981) (per curiam). As we explained just last Term, "a State's
constitutional interest in immunity encompasses not merely whether
it may be sued, but where it may be sued."
Pennhurst II,
supra, at
465 U. S. 99.
Thus, in order for a state statute or constitutional provision to
constitute a waiver of Eleventh Amendment immunity, it must specify
the State's intention to subject itself to suit in federal court.
See Smith v. Reeves, 178 U. S. 436,
178 U. S. 441
(1900);
Great Northern Life Insurance Co. v. Read,
322 U. S. 47,
322 U. S. 54
(1944). In view of these principles, we do not believe that Art.
III, § 5, of the California Constitution constitutes a waiver of
the State's constitutional immunity. This provision does not
specifically indicate the State's willingness to be sued in federal
court. Indeed, the provision appears simply to authorize the
legislature to waive the State's sovereign immunity. In the absence
of an unequivocal waiver specifically applicable to federal court
jurisdiction, we decline to find that California has waived its
constitutional immunity.
Page 473 U. S. 242
IV
Respondent also contends that, in enacting the Rehabilitation
Act, Congress abrogated the States' constitutional immunity. In
making this argument, respondent relies on the pre- and
post-enactment legislative history of the Act and inferences from
general statutory language. To reach respondent's conclusion, we
would have to temper the requirement, well established in our
cases, that Congress unequivocally express its intention to
abrogate the Eleventh Amendment bar to suits against the States in
federal court.
Pennhurst II, supra, at
465 U. S. 99;
Quern v. Jordan, supra, at
440 U. S.
342-345. We decline to do so, and affirm 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. The fundamental nature of the
interests implicated by the Eleventh Amendment dictates this
conclusion.
Only recently the Court reiterated that "the States occupy a
special and specific position in our constitutional system. . . ."
Garcia v. San Antonio Metropolitan Transit Authority,
469 U. S. 528,
469 U. S. 547
(1985). The "constitutionally mandated balance of power" between
the States and the Federal Government was adopted by the Framers to
ensure the protection of "our fundamental liberties."
Id.
at
469 U. S. 572
(POWELL, J., dissenting). By guaranteeing the sovereign immunity of
the States against suit in federal court, the Eleventh Amendment
serves to maintain this balance.
"Our reluctance to infer that a State's immunity from suit in
the federal courts has been negated stems from recognition of the
vital role of the doctrine of sovereign immunity in our federal
system."
Pennhurst II, supra, at
465 U. S.
99.
Congress' power to abrogate a State's immunity means that, in
certain circumstances, the usual constitutional balance between the
States and the Federal Government does not obtain.
"Congress may, in determining what is 'appropriate
Page 473 U. S. 243
legislation' for the purpose of enforcing the provisions of the
Fourteenth Amendment, provide for private suits against States or
state officials which are constitutionally impermissible in other
contexts."
Fitzatrck, 427 U.S. at
427 U. S. 456.
In view of this fact, it is incumbent upon the federal courts to be
certain of Congress' intent before finding that federal law
overrides the guarantees of the Eleventh Amendment. The requirement
that Congress unequivocally express this intention in the statutory
language ensures such certainty.
It is also significant that, in determining whether Congress has
abrogated the States' Eleventh Amendment immunity, the courts
themselves must decide whether their own jurisdiction has been
expanded. Although it is of course the duty of this Court "to say
what the law is,"
Marbury v.
Madison, 1 Cranch 137,
5 U. S. 177
(1803), it is appropriate that we rely only on the clearest
indications in holding that Congress has enhanced our power.
See American Fire & Cas. 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 . . . ").
For these reasons, we hold -- consistent with
Quern,
Edelman, and
Pennhurst II -- that Congress must
express its intention to abrogate the Eleventh Amendment in
unmistakable language in the statute itself. [
Footnote 3]
Page 473 U. S. 244
In light of this principle, we must determine whether Congress,
in adopting the Rehabilitation Act, has chosen to override the
Eleventh Amendment. [
Footnote
4] Section 504 of the Rehabilitation Act provides in pertinent
part:
Page 473 U. S. 245
"No otherwise qualified handicapped individual in the United
States, as defined in section 706(7) of this title, shall, solely
by reason of his handicap, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance or
under any program or activity conducted by any Executive agency or
by the United States Postal Service."
87 Stat. 394, as amended and as set forth in 29 U.S.C. §
794.
Section 505, which was added to the Act in 1978, as set forth in
29 U.S.C. § 794a, describes the available remedies under the Act,
including the provisions pertinent to this case:
"(a)(2) The remedies, procedures, and rights set forth in title
VI of the Civil Rights Act of 1964 [42 U.S.C. § 2000d
et
seq.] shall be available to any person aggrieved by any act or
failure to act by any recipient of Federal assistance or Federal
provider of such assistance under section 794 of this title."
"(b) In any action or proceeding to enforce or charge a
violation of a provision of this subchapter, the court, in its
discretion, may allow the prevailing party, other than the United
States, a reasonable attorney's fee as part of the costs."
The statute thus provides remedies for violations of § 504 by
"
any recipient of Federal assistance." There is no claim
here that the State of California is not a recipient of federal
Page 473 U. S. 246
aid under the statute. But given their constitutional role, the
States are not like any other class of recipients of federal aid. A
general authorization for suit in federal court is not the kind of
unequivocal statutory language sufficient to abrogate the Eleventh
Amendment. When Congress chooses to subject the States to federal
jurisdiction, it must do so specifically.
Pennhurst II,
465 U.S. at
465 U. S. 99,
citing
Quern v. Jordan, 440 U. S. 332
(1979). Accordingly, we hold that the Rehabilitation Act does not
abrogate the Eleventh Amendment bar to suits against the
States.
V
Finally, we consider the position adopted by the Court of
Appeals that the State consented to suit in federal court by
accepting funds under the Rehabilitation Act. [
Footnote 5] 735 F.2d at 361-362. In reaching this
conclusion, the Court of Appeals relied on "the extensive
provisions [of the Act] under which the states are the express
intended recipients of federal assistance."
Id. at 360. It
reasoned that
"this is a case in which a 'congressional enactment . . . by its
terms authorized suit by designated plaintiffs against a general
class of defendants which literally included States or state
instrumentalities,' and 'the State, by its participation in the
program authorized by Congress, had in effect consented to the
abrogation of that immunity,'"
id. at 361, citing
Edelman v. Jordan, 415 U.S.
at
415 U. S. 672.
The Court of Appeals thus concluded that, if the State
"has participated in and received funds from programs under the
Rehabilitation Act, [it] has implicitly consented to be sued as a
recipient under 29 U.S.C. § 794."
735 F.2d at 362.
The court properly recognized that the mere receipt of federal
funds cannot establish that a State has consented to suit
Page 473 U. S. 247
in federal court.
Ibid., citing
Florida Dept. of
Health v. Florida Nursing Home Assn., 450 U.S. at
450 U. S. 150;
Edelman v. Jordan, supra, at
415 U. S. 673.
The court erred, however, in concluding that, because various
provisions of the Rehabilitation Act are addressed to the States, a
State necessarily consents to suit in federal court by
participating in programs funded under the statute. We have decided
today that the Rehabilitation Act does not evince an unmistakable
congressional purpose, pursuant to § 5 of the Fourteenth Amendment,
to subject unconsenting States to the jurisdiction of the federal
courts. The Act likewise falls far short of manifesting a clear
intent to condition participation in the programs funded under the
Act on a State's consent to waive its constitutional immunity.
Thus, were we to view this statute as an enactment pursuant to the
Spending Clause, Art. I, § 8,
see n 4,
supra, we would hold that there was no
indication that the State of California consented to federal
jurisdiction.
VI
The provisions of the Rehabilitation Act fall far short of
expressing an unequivocal congressional intent to abrogate the
States' Eleventh Amendment immunity. Nor has the State of
California specifically waived its immunity to suit in federal
court. In view of these determinations, the judgment of the Court
of Appeals must be reversed.
It is so ordered.
[
Footnote 1]
A State may effectuate a waiver of its constitutional immunity
by a state statute or constitutional provision, or by otherwise
waiving its immunity to suit in the context of a particular federal
program. In each of these situations, we require an unequivocal
indication that the State intends to consent to federal
jurisdiction that otherwise would be barred by the Eleventh
Amendment. As we said in
Edelman v. Jordan, 415 U.
S. 651,
415 U. S. 673
(1974), "[c]onstructive consent is not a doctrine commonly
associated with the surrender of constitutional rights, and we see
no place for it here."
[
Footnote 2]
JUSTICE BRENNAN's dissent repeatedly asserts that established
Eleventh Amendment doctrine is not
"grounded on principles essential to the structure of our
federal system or necessary to protect the cherished constitutional
liberties of our people. . . ."
Post at
473 U. S.
247-248;
see also post at
473 U.S. 258,
473 U. S. 302.
We believe, however, that our Eleventh Amendment doctrine is
necessary to support the view of the federal system held by the
Framers of the Constitution.
See n 3,
infra. The Framers believed that the
States played a vital role in our system and that strong state
governments were essential to serve as a "counterpoise" to the
power of the Federal Government.
See, e.g., The Federalist
No. 17, p. 107 (J. Cooke ed.1961); The Federalist No. 46, p. 316
(J. Cooke ed.1961). The "new evidence," discovered by the dissent
in The Federalist and in the records of the state ratifying
conventions, has been available to historians and Justices of this
Court for almost two centuries. Viewed in isolation, some of it is
subject to varying interpretations. But none of the Framers
questioned that the Constitution created a federal system with some
authority expressly granted the Federal Government and the
remainder retained by the several States.
See, e.g., The
Federalist Nos. 39, 45. The Constitution never would have been
ratified if the States and their courts were to be stripped of
their sovereign authority except as expressly provided by the
Constitution itself.
The principle that the jurisdiction of the federal courts is
limited by the sovereign immunity of the States "is, without
question, a reflection of concern for the sovereignty of the
States. . . ."
Employees v. Missouri Dept. of Public Health and
Welfare, 411 U. S. 279,
411 U. S. 293
(1973) (MARSHALL, J., concurring in result). As the Court explained
almost 65 years ago:
"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 the 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."
Ex parte New York, 256 U. S. 490,
256 U. S. 497
(1921) (citations omitted).
See also cases cited in
n 3,
infra.
JUSTICE BRENNAN's dissent also argues that, in the absence of
jurisdiction in the federal courts, the States are "exemp[t] . . .
from compliance with laws that bind every other legal actor in our
Nation."
Post at
473 U. S. 248.
This claim wholly misconceives our federal system. As JUSTICE
MARSALL has noted,
"the issue is not the general immunity of the States from
private suit, . . . but merely the susceptibility of the States to
suit before
federal tribunals."
Employees v. Missouri Dept. of Public Health and Welfare,
supra, at
411 U. S.
293-294 (concurring in result) (emphasis added). It
denigrates the judges who serve on the state courts to suggest that
they will not enforce the supreme law of the land.
See Martin v.
Hunter's Lessee, 1 Wheat. 304,
14 U. S.
341-344 (1816).
See also Stone v. Powell,
428 U. S. 465,
428 U. S. 493,
n. 35 (1976), and
post at
473 U. S. 256,
n. 8.
[
Footnote 3]
In a remarkable view of
stare decisis, JUSTICE
BRENNAN's dissent states that our decision today evinces a "lack of
respect for precedent."
Post at
473 U.S. 258. Not a single authority is
cited for this claim. In fact, adoption of the dissent's position
would require us to overrule numerous decisions of this Court.
However one may view the merits of the dissent's historical
argument, the principle of
Hans v. Louisiana, 134 U. S.
1 (1890), that "the fundamental principle of sovereign
immunity limits the grant of judicial authority in Art. III,"
Pennhurst II, 465 U.S. at
465 U. S. 98,
has been affirmed time and time again, up to the present day.
E.g., North Carolina v. Temple, 134 U. S.
22,
134 U. S. 30
(1890);
Fitts v. McGhee, 172 U. S. 516,
172 U. S. 524
(1899);
Bell v. Mississippi, 177 U.S. 693 (1900);
Smith v. Reeves, 178 U. S. 436,
178 U. S. 446
(1900);
Palmer v. Ohio, 248 U. S. 32,
248 U. S. 34
(1918);
Duhne v. New Jersey, 251 U.
S. 311,
251 U. S. 313
(1920);
Ex parte New York, 256 U.S. at
256 U. S. 497;
Missouri v. Fiske, 290 U. S. 18,
290 U. S. 26
(1933);
Great Northern Life Insurance Co. v. Read,
322 U. S. 47,
322 U. S. 51
(1944);
Ford Motor Co. v. Department of Treasury of
Indiana, 323 U. S. 459,
323 U. S. 464
(1945);
Georgia Railroad & Banking Co. v. Redwine,
342 U. S. 299,
342 U. S. 304,
n. 13 (1952);
Parden v. Terminal Railway of Ala. Docks
Dept., 377 U. S. 184,
377 U. S. 186
(1964);
United States v. Mississippi, 380 U.
S. 128,
380 U. S. 140
(1965);
Employees v. Missouri Public Health and Welfare
Dept., 411 U.S. at
411 U. S. 280;
Edelman v. Jordan, 415 U.S. at
415 U. S.
662-663;
Pennhurst II, supra. JUSTICE BRENNAN
long has maintained that the settled view of
Hans v.
Louisiana, as established in the holdings and reasoning of the
above cited cases, is wrong.
See, e.g., County of Oneida v.
Oneida Indian Nation, 470 U. S. 226,
470 U. S. 254
(1985) (BRENNAN, J., dissenting in part);
Pennhurst II,
supra, at
465 U. S. 125
(BRENNAN, J., dissenting);
Employees v. Missouri Dept. of
Public Health and Welfare, supra, at
411 U. S. 298
(BRENNAN, J., dissenting);
Edelman v. Jordan, 415 U.S. at
415 U. S. 687
(BRENNAN, J., dissenting). It is a view, of course, that he is
entitled to hold. But the Court has never accepted it, and we see
no reason to make a further response to the scholarly, 55-page
elaboration of it today.
In a dissent expressing his willingness to overrule
Edelman
v. Jordan, supra, as well as at least 16 other Supreme Court
decisions that have followed
Hans v. Louisiana, see supra,
JUSTICE STEVENS would "further unrave[l] the doctrine of
stare
decisis,"
Florida Dept. of Health v. Florida Nursing Home
Assn., 450 U. S. 147,
450 U. S. 155
(1981), because he views the Court's decision in
Pennhurst
II as "repudiat[ing] at least 28 cases."
Post at
473 U. S. 304,
citing
Pennhurst II, supra, at
465 U. S.
165-166, n. 50 (STEVENS, J., dissenting). We previously
have addressed at length his allegation that the decision in
Pennhurst II overruled precedents of this Court, and
decline to do so again here.
See Pennhurst II, supra, at
465 U. S.
109-111, nn.19, 20, and 21. JUSTICE STEVENS would ignore
stare decisis in this case because in the view of a
minority of the Court two prior decisions of the Court ignored it.
This reasoning would indeed "unravel" a doctrine upon which the
rule of law depends.
[
Footnote 4]
Petitioners assert that the Rehabilitation Act of 1973 does not
represent an exercise of Congress' Fourteenth Amendment authority,
but was enacted pursuant to the Spending Clause, Art. I, § 8, cl.
1. Petitioners conceded below, however, that the Rehabilitation Act
was passed pursuant to § 5 of the Fourteenth Amendment. Thus, we
first analyze § 504 in light of Congress' power under the
Fourteenth Amendment to subject unconsenting States to federal
court jurisdiction.
See Fitzpatrick v. Bitzer,
427 U. S. 445
(1976). In Part V,
infra, at
473 U. S. 246,
we address the reasoning of the Court of Appeals and conclude that,
by accepting funds under the Act, the State did not "implicitly
consen[t] to be sued. . . ." 735 F.2d 359, 362 (1984).
[
Footnote 5]
Although the Court of Appeals seemed to state that the
Rehabilitation Act was adopted pursuant to § 5 of the Fourteenth
Amendment, by focusing on whether the State consented to federal
jurisdiction it engaged in analysis relevant to Spending Clause
enactments.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN,
and JUSTICE STEVENS join, dissenting. If the Court's Eleventh
Amendment doctrine were grounded on principles essential to the
structure of our federal system or necessary to protect the
cherished constitutional liberties of our people, the doctrine
might be unobjectionable; the interpretation of the text of the
Constitution in light of changed circumstances and unforeseen
events -- and with full regard for the purposes underlying the text
-- has always been the unique role of this Court. But the
Court's
Page 473 U. S. 248
Eleventh Amendment doctrine diverges from text and history
virtually without regard to underlying purposes or genuinely
fundamental interests. In consequence, the Court has put the
federal judiciary in the unseemly position of exempting the States
from compliance with laws that bind every other legal actor in our
Nation. Because I believe that the doctrine rests on flawed
premises, misguided history, and an untenable vision of the needs
of the federal system it purports to protect, I believe that the
Court should take advantage of the opportunity provided by this
case to reexamine the doctrine's historical and jurisprudential
foundations. Such an inquiry would reveal that the Court, in
Professor Shapiro's words, has taken a wrong turn. [
Footnote 2/1] Because the Court today follows this
mistaken path, I respectfully dissent.
I
I first address the Court's holding that Congress did not
succeed in abrogating the States' sovereign immunity when it
enacted § 504 of the Rehabilitation Act, 29 U.S.C. § 794. If this
holding resulted from the Court's examination of the statute and
its legislative history to determine whether Congress intended in §
504 to impose an obligation on the States enforceable in federal
court, I would confine my dissent to the indisputable evidence to
the contrary in the language and history of § 504.
Section 504 imposes an obligation not to discriminate against
the handicapped in "any program or activity receiving Federal
financial assistance." This language is general and unqualified,
and contains no indication whatsoever that an exemption for the
States was intended. Moreover, state governmental programs and
activities are undoubtedly the recipients of a large percentage of
federal funds. [
Footnote 2/2] Given
this
Page 473 U. S. 249
widespread state dependence on federal funds, it is quite
incredible to assume that Congress did not intend that the States
should be fully subject to the strictures of § 504.
The legislative history confirms that the States were among the
primary targets of § 504. In introducing the predecessor of § 504
as an amendment to Title VI of the Civil Rights Act of 1964, 42
U.S.C. § 2000d, Representative Vanik clearly indicated that
governments would be among the primary targets of the
legislation:
"Our Governments tax [handicapped] people, their parents and
relatives, but fail to provide services for them. . . . The
opportunities provided by the Government almost always exclude the
handicapped."
117 Cong.Rec. 45974 (1971). He further referred approvingly to a
federal court suit against the State of Pennsylvania raising the
issue of educational opportunities for the handicapped.
See
id. at 45974-45975 (citing
Pennsylvania Assn. for Retarded
Children v. Pennsylvania, 343 F.
Supp. 279 (ED Pa 1972), and characterizing it as a "suit
against the State"). Two months later, Representative Vanik noted
the range of state actions that could disadvantage the handicapped.
He said that state governments "lack funds and facilities" for
medical care for handicapped children and "favor the higher income
families" in tuition funding. 118 Cong.Rec. 4341 (1972). He pointed
out that "the States are unable to define and deal with" the
illnesses of the handicapped child, and that "[e]xclusion of
handicapped children [from public schools] is illegal in some
States, but the States plead lack of funds."
Ibid.
Similarly, Senator Humphrey, the bill's sponsor in the Senate,
focused particularly on a suit against a state-operated institution
for the mentally retarded as demonstrating the need for the bill.
See id. at 9495, 9502.
The language used in the statute ("any program or activity
receiving Federal financial assistance") has long been used
Page 473 U. S. 250
to impose obligations on the States under other statutory
schemes. For example, Title VI, enacted in 1964, bans
discrimination on the basis of race, color, or national origin by
"any program or activity receiving Federal financial assistance."
42 U.S.C. § 2000d. Soon after its enactment, seven agencies
promulgated regulations that defined a recipient of federal
financial assistance to include "any State, political subdivision
of any State or instrumentality of any State or political
subdivision."
See, e.g., 29 Fed.Reg. 16274, § 15.2(e)
(1964).
See generally Guardians Assn. v. Civil Service Comm'n
of New York City, 463 U. S. 582,
463 U. S. 618
(1983) (MARSHALL, J., dissenting). Over 40 federal agencies and
every Cabinet Department adopted similar regulations.
Id.
at
463 U. S. 619.
As Senator Javits remarked in the debate on Title VI, "[w]e are
primarily trying to reach units of government, not individuals."
110 Cong.Rec. 13700 (1964).
Similarly Title IX of the Education Amendments of 1972, 20
U.S.C. § 1681(a), prohibits discrimination on the basis of sex by
"any education program or activity receiving Federal financial
assistance." The regulations governing Title IX use the same
definition of "recipient" -- which explicitly includes the States
-- as do the Title VI regulations.
See 34 CFR § 106.2(h)
(1985). The Congress that enacted § 504 had the examples of Titles
VI and IX before it, and plainly knew that the language of the
statute would include the States. [
Footnote 2/3]
Page 473 U. S. 251
Implementing regulations promulgated for § 504 included the same
definition of "recipient" that had previously been used to
implement Title VI and Title IX.
See 45 CFR § 84.3(f)
(1984). In 1977, Congress held hearings on the implementation of §
504, and subsequently produced amendments to the statute enacted in
1978. Pub.L. 95-602, 92 Stat. 2982, § 505(a)(2), 29 U.S.C. § 794a.
The Senate Report accompanying the amendments explicitly approved
the implementing regulations. S.Rep. No. 95-890, p.19 (1981). No
Member of Congress questioned the reach of the regulations. In
describing another section of the 1978 amendments which brought the
Federal Government within the reach of § 504, Representative
Jeffords noted that the section "applies 504 to the Federal
Government as well as State and local recipients of Federal
dollars." 124 Cong.Rec. 13901 (1978). [
Footnote 2/4] Representative Sarasin emphasized that
"[n]o one should discriminate against an individual because he
or she suffers from a handicap -- not private employers, not State
and local governments, and most certainly not the Federal
Government."
Id. at 38552.
The 1978 amendments also addressed the remedies for violations
of § 504:
"The remedies, procedures, and rights set forth in title VI of
the Civil Rights Act of 1964 [42 U.S.C. 2000d
et seq.]
shall be available to any person aggrieved by any act or failure to
act by any recipient of Federal assistance or Federal provider of
such assistance under section 794 of this title."
29 U.S.C. § 794a(a)(2). Again, the amendment referred in general
and unqualified terms to "any recipient of Federal assistance." An
additional
Page 473 U. S. 252
provision of the 1978 amendments made available attorney's fees
to prevailing parties in actions brought to enforce § 504.
Discussing these two provisions, Senator Cranston presupposed that
States would be subject to suit under this section:
"[W]ith respect to State and local bodies or State and local
officials, attorney's fees, similar to other items of cost, would
be collected from the official, in his official capacity from funds
of his or her agency or under his or her control; or from the State
or local government -- regardless of whether such agency or
Government is a named party."
124 Cong.Rec. 30347 (1978)
Given the unequivocal legislative history, the Court's
conclusion that Congress did not abrogate the States' sovereign
immunity when it enacted § 504 obviously cannot rest on an analysis
of what Congress intended to do or on what Congress thought it was
doing. Congress intended to impose a legal obligation on the States
not to discriminate against the handicapped. In addition, Congress
fully intended that whatever remedies were available against other
entities -- including the Federal Government itself after the 1978
amendments -- be equally available against the States. There is
simply not a shred of evidence to the contrary.
II
Rather than an interpretation of the intent of Congress, the
Court's decision rests on the Court's current doctrine of Eleventh
Amendment sovereign immunity, which holds 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). Despite the presence of the most clearly lawless behavior
by the state government, the Court's doctrine holds that the
judicial authority of the United States
Page 473 U. S. 253
does not extend to suits by an individual against a State in
federal court.
The Court acknowledges that the supposed lack of judicial power
may be remedied, either by the State's consent [
Footnote 2/5] or by express congressional
abrogation pursuant to the Civil War Amendments,
see
Fitzpatrick v. Bitzer, 427 U. S. 445
(1976);
City of Rome v. United States, 446 U.
S. 156 (1980), or perhaps pursuant to other
congressional powers. But the Court has raised formidable obstacles
to congressional efforts to abrogate the States' immunity; the
Court has put in place a series of special rules of statutory
draftsmanship that Congress
Page 473 U. S. 254
must obey before the Court will accord recognition to its act.
Employees v. Missouri Dept. of Public Health and Welfare,
411 U. S. 279
(1973), held that Congress must make its intention "clear" if it
sought to lift the States' sovereign immunity conditional on their
participation in a federal program.
Id. at
411 U. S. 285.
Edelman v. Jordan, 415 U. S. 651
(1974), made it still more difficult for Congress to act, stating
that
"we will find waiver 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."
Id. at
415 U. S. 673.
Pennhurst State School and Hospital v. Halderman, supra,
required "an unequivocal expression of congressional intent."
Id. at
465 U. S. 99.
Finally, the Court today tightens the noose by requiring "that
Congress must express its intention to abrogate the Eleventh
Amendment in unmistakable language
in the statute itself."
Ante at
473 U. S. 243
(emphasis added).
These special rules of statutory drafting are not justified (nor
are they justifiable) as efforts to determine the genuine intent of
Congress; no reason has been advanced why ordinary canons of
statutory construction would be inadequate to ascertain the intent
of Congress. Rather, the special rules are designed as hurdles to
keep the disfavored suits out of the federal courts. In the Court's
words, the test flows from the need to maintain "the usual
constitutional balance between the States and the Federal
Government."
Ante at
473 U. S. 242.
[
Footnote 2/6] The doctrine is thus
based on a fundamental policy decision, vaguely attributed to the
Framers of Article III or the Eleventh Amendment, that the federal
courts ought not to hear suits brought by individuals against
States. This Court executes the policy by making it difficult, but
not impossible,
Page 473 U. S. 255
for Congress to create private rights of action against the
States. [
Footnote 2/7]
Reliance on this supposed constitutional policy reverses the
ordinary role of the federal courts in federal question cases.
Federal courts are instruments of the National Government, seeing
to it that constitutional limitations are obeyed while interpreting
the will of Congress in enforcing the federal laws. In the Eleventh
Amendment context, however, the Court instead relies on a supposed
constitutional policy disfavoring suits against States as
justification for ignoring the will of Congress; the goal seems to
be to obstruct the ability of Congress to achieve ends that are
otherwise constitutionally unexceptionable and well within the
reach of its Article I powers.
The Court's sovereign immunity doctrine has other unfortunate
results. Because the doctrine is inconsistent with the
Page 473 U. S. 256
essential function of the federal courts -- to provide a fair
and impartial forum for the uniform interpretation and enforcement
of the supreme law of the land -- it has led to the development of
a complex body of technical rules made necessary by the need to
circumvent the intolerable constriction of federal jurisdiction
that would otherwise occur. Under the rule of
Ex parte
Young, 209 U. S. 123
(1908), a State may be required to obey federal law, so long as the
plaintiff remembers to name a state official, rather than the State
itself, as defendant,
see Alabama v. Pugh, 438 U.
S. 781 (1978), and so long as the relief sought is
prospective, rather than retrospective.
Edelman v. Jordan,
415 U. S. 651
(1974). [
Footnote 2/8] These
intricate rules often create manifest injustices while failing to
respond to any legitimate needs of the States. A damages award may
often be the only practical remedy available to the plaintiff,
[
Footnote 2/9] and the threat of a
damages award may be the only effective
Page 473 U. S. 257
deterrent to a defendant's willful violation of federal law.
Cf. id. at
415 U. S.
691-692 (MARSHALL, J., dissenting). While the
prohibition of damages awards thus imposes substantial costs on
plaintiffs and on members of a class Congress sought to protect,
the injunctive relief that is permitted can often be more intrusive
-- and more expensive -- than a simple damages award would be.
[
Footnote 2/10]
The Court's doctrine itself has been unstable. As I shall
discuss below, the doctrine lacks a textual anchor, a firm
historical foundation, or a clear rationale. As a result, it has
been impossible to determine to what extent the principle of state
accountability to the rule of law can or should be accommodated
within the competing framework of state nonaccountability put into
place by the Court's sovereign immunity doctrine. For this reason,
we have been unable to agree on the content of the special "rules"
we have applied to Acts of Congress to determine whether they
abrogate state sovereign immunity.
Compare Parden v. Terminal
Railway of Ala. Docks Dept., 377 U. S. 184
(1964),
with Employees v. Missouri Dept. of Public Health and
Welfare, 411 U. S. 279
(1973). Whatever rule is decided upon at a given time is then
applied retroactively to actions taken by Congress.
See
473
U.S. 234fn2/7|>n. 7,
supra. Finally, in the absence
of any plausible
Page 473 U. S. 258
limiting principles, the Court has overruled and ignored past
cases that seemed to stand in the way of vindication of the
doubtful States' right the Court has created.
See Pennhurst
State School and Hospital v. Halderman, 465 U.S. at
465 U. S.
165-166, n. 50.
I might tolerate all of these results -- the unprecedented
intrusion on Congress' lawmaking power and consequent increase in
the power of the courts, the development of a complex set of rules
to circumvent the obviously untenable results that would otherwise
ensue, the lack of respect for precedent and the lessons of the
past evident in
Pennhurst -- if the Court's sovereign
immunity doctrine derived from essential constitutional values
protecting the freedom of our people or the structure of our
federal system. But that is sadly not the case. Instead, the
paradoxical effect of the Court's doctrine is to require the
federal courts to protect States that violate federal law from the
legal consequences of their conduct.
III
Since the Court began over a decade ago aggressively to expand
its doctrine of Eleventh Amendment sovereign immunity,
see
Employees v. Missouri Dept. of Public Health and Welfare,
supra, modern scholars and legal historians have taken a
critical look at the historical record that is said to support the
Court's result. [
Footnote 2/11]
Recent research has discovered
Page 473 U. S. 259
and collated substantial evidence that the Court's
constitutional doctrine of state sovereign immunity has rested on a
mistaken historical premise. The flawed underpinning is the premise
that either the Constitution or the Eleventh Amendment embodied a
principle of state sovereign immunity as a limit on the federal
judicial power. New evidence concerning the drafting and
ratification of the original Constitution indicates that the
Framers never intended to constitutionalize the doctrine of state
sovereign immunity. Consequently, the Eleventh Amendment could not
have been, as the Court has occasionally suggested, an effort to
reestablish a limitation on the federal judicial power granted in
Article III. Nor, given the limited terms in which it was written,
could the Amendment's narrow and technical language be understood
to have instituted a sweeping new limitation on the federal
judicial power whenever an individual attempts to sue a State. A
close examination of the historical records reveals a rather
different status for the doctrine of state sovereign immunity in
federal court. There simply is no constitutional principle of state
sovereign immunity, and no constitutionally mandated policy of
excluding suits against States from federal court.
A
In
Hans v. Louisiana, 134 U. S. 1 (1890),
the Court stated that to permit a citizen to bring a suit against a
State in federal court would be "an attempt to strain the
Constitution and the law to a construction never imagined or
dreamed of."
Id. at
134 U. S. 15. The
text of the Constitution, of course, contains no explicit adoption
of a principle of state sovereign immunity. The passage from
Hans thus implies that everyone involved in the framing or
ratification of the Constitution believed
Page 473 U. S. 260
that Article III included a tacit prohibition on the exercise of
the judicial power when a State was being sued in federal court.
The early history of the Constitution reveals, however, that the
Court in
Hans was mistaken. The unamended Article III was
often read, to the contrary, to prohibit not the exercise of the
judicial power, but the assertion of state sovereign immunity as a
defense, even in cases arising solely under state law.
It is useful to begin with the text of Article III. Section 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."
The judicial power of the federal courts thus extends only to
certain types of cases, identified either by subject matter or
parties. The subject matter heads of jurisdiction include federal
questions ("all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made")
and admiralty ("all Cases of admiralty and maritime Jurisdiction").
The party-based heads of jurisdiction include what might be called
ordinary diversity ("Controversies . . . between Citizens of
different States"), state-citizen diversity ("between a State and
Citizens of another State"), and state-alien diversity ("between a
State . . . and foreign . . . Citizens"). It is the latter two
clauses, providing for state-citizen and state-alien diversity,
that were
Page 473 U. S. 261
at the focus of the Court's decision in
Chisholm v.
Georgia, 2 Dall. 419 (1793), and the subsequent
ratification of the Eleventh Amendment.
To understand the dispute concerning the state-citizen and
state-alien diversity clauses, it is crucial to understand the
relationship between the party-based and subject matter heads of
jurisdiction. The grants of jurisdiction in Article III are to be
read disjunctively. The federal judicial power may extend to a case
if it falls within any of the enumerated jurisdictional heads.
Thus, a federal court can hear a federal question case even if the
parties are citizens of the same state; it can exercise
jurisdiction over cases between citizens of different states even
where the case does not arise under federal law. Most important for
present purposes, the language of the unamended Article III alone
would permit the federal courts to exercise jurisdiction over suits
in which a noncitizen or alien is suing a State on a claim of a
violation of state law.
This standard interpretation of Article III gave a special
importance to the interpretation of the state-citizen and
state-alien diversity clauses. The clauses, by their terms,
permitted federal jurisdiction over any suit between a State and a
noncitizen or a State and an alien, and in particular over suits in
which the plaintiff was the noncitizen or alien and the defendant
was the State. Yet in most of the States in 1789, the doctrine of
sovereign immunity formally forbade the maintenance of suits
against States in state courts, although the actual effect of this
bar in frustrating legal claims against the State was unclear.
[
Footnote 2/12] Thus, the
question left open by the terms of the two clauses was whether the
state law of
Page 473 U. S. 262
sovereign immunity barred the exercise of the federal judicial
power.
A plaintiff seeking federal jurisdiction against a State under
the state-citizen or state-alien diversity clauses would be
asserting a cause of action based on state law, since a federal
question or admiralty claim would provide an independent basis for
jurisdiction that did not depend on the identity of the parties. To
read the two clauses to abrogate the state law sovereign immunity
defense would be to find in Article III a substantive federal
limitation on state law. Although a State previously could create a
cause of action to which it would not itself be liable, this same
cause of action now could be used (at least by citizens of other
States or aliens) in federal courts to sue the State itself. This
was a particularly troublesome prospect to the States that had
incurred debts, some of which dated back to the Revolutionary War.
The debts would naturally find their way into the hands of
noncitizens and aliens, who at the first sign of default could be
expected promptly to sue the State in federal court. The State's
effort to retain its sovereign immunity in its own courts would
turn out to be futile. Moreover, the resulting abrogation of
sovereign immunity would operate retroactively; even debts incurred
years before the Constitution was adopted -- and before either of
the contracting parties expected that a judicial remedy against the
State would be available -- would become the basis for causes of
action brought under the two clauses in federal court.
In short, the danger of the state-citizen and state-alien
diversity clauses was that, if read to permit suits against States,
they would have the effect of limiting state law in a way not
otherwise provided for in the Constitution. The original
Constitution prior to the Bill of Rights contained only a few
express limitations on state power. Yet the States would now find
in Article III itself a further limit on state action: despite the
fact that the State as sovereign had created a given cause of
action, Article III would have made it impossible
Page 473 U. S. 263
for the State effectively to assert a sovereign immunity defense
to that action.
The records of the Constitutional Convention do not reveal any
substantial controversy concerning the state-citizen and
state-alien diversity clauses. [
Footnote 2/13] The language of Article III, [
Footnote 2/14] which provides one guide
to its meaning, is undoubtedly consistent with suits against States
under both subject matter heads of jurisdiction (for example, a
suit arising out of federal law brought by a citizen against a
State) and party-based heads of jurisdiction (for example, a suit
brought under the state-citizen diversity clause itself). However,
a federal question suit against a State does not threaten to
displace a prior state law defense of sovereign immunity, because
state law defenses would not, of their own force, be applicable to
federal causes of action. On the other hand, a state-citizen suit
against a State does, as suggested above, threaten to displace any
extant state law sovereign immunity defense.
An examination of the debates surrounding the state ratification
conventions proves more productive. The various
Page 473 U. S. 264
references to state sovereign immunity all appear in discussions
of the state-citizen diversity clause. Virtually all of the
comments were addressed to the problem created by state debts that
predated the Constitution, when the State's creditors may often
have had meager judicial remedies in the case of default. Yet, even
in this sensitive context, a number of participants in the debates
welcomed the abrogation of sovereign immunity that they thought
followed from the state-citizen and state-alien clauses. The
debates do not directly address the question of suits against
States in admiralty or federal question cases, where federal law
and not state law would govern. Nonetheless, the apparent
willingness of many delegates to read the state-citizen clause as
abrogating sovereign immunity in state law causes of action
suggests that they would have been even more willing to permit
suits against States in federal question cases, where Congress had
authorized such suits in the exercise of its Article I or other
powers.
The Virginia debates included the most detailed discussion of
the state-citizen diversity clause. [
Footnote 2/15] The first to mention the clause
explicitly was George Mason, an opponent of the new Constitution.
After quoting the clause, he referred to a
Page 473 U. S. 265
dispute about Virginia's confiscation of property belonging to
Lord Fairfax. [
Footnote 2/16] He
asserted:
"Claims respecting those lands, every liquidated account, or
other claim against this state, will be tried before the federal
court. Is not this disgraceful? Is this state to be brought to the
bar of justice like a delinquent individual? Is the sovereignty of
the state to be arraigned like a culprit, or private offender? Will
the states undergo this mortification? I think this power perfectly
unnecessary. But let us pursue this subject farther. What is to be
done if a judgment be obtained against a state? Will you issue a
fieri facias? It would be ludicrous to say that you could
put the state's body in jail. How is the judgment, then, to be
enforced? A power which cannot be executed ought not to be
granted."
3 Elliot's Debates, at 526-527. Mason thus believed that the
state-citizen diversity clause provided federal jurisdiction for
suits against the States and would have the effect of abrogating
the State's sovereign immunity defense in state law causes of
action for debt that would be brought in federal court.
Madison responded the next day:
"[Federal] 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 it can have is that, if a state
should wish to bring a suit against a citizen, it must be brought
before the federal court. This will give satisfaction to
individuals, as it will prevent citizens, on whom a state may have
a claim, being dissatisfied with the state courts."
Id. at 533.
Page 473 U. S. 266
Madison seems to have believed that the Article III judicial
power, at least under the state-citizen diversity clause, was
limited to cases in which the States were plaintiffs. Although he
does deny that "[i]t is in the power of individuals to call any
State into court," this remark could be understood as an
explication of current state law which he believed would not be
displaced by the state-citizen diversity clause. His remarks
certainly do not suggest that Congress, acting under its enumerated
powers elsewhere in the Constitution, could not "call a state into
court," or, again acting within its own granted powers, provide a
citizen with the power to sue a State in federal court.
At any rate, the delegates were not wholly satisfied with
Madison's explanation. Patrick Henry, an opponent of ratification,
was the next speaker. Referring to Mason, he said:
"My honorable friend's remarks were right, with respect to
incarcerating a state. It would ease my mind, if the honorable
gentleman would tell me the manner in which money should be paid,
if, in a suit between a state and individuals, the state were
cast."
Id. at 542. Returning to the attack on Madison, Henry
had no doubt concerning the meaning of the state-citizen diversity
clause:
"As to controversies between a state and the citizens of another
state, his construction of it is to me perfectly incomprehensible.
He says it will seldom happen that a state has such demands on
individuals. There is nothing to warrant such an assertion. But he
says that the state may be plaintiff only. If gentlemen pervert the
most clear expressions, and the usual meaning of the language of
the people, there is an end of all argument. What says the paper?
That it shall have cognizance of controversies between a state and
citizens of another state, without discriminating between plaintiff
and defendant. What says the honorable gentleman? The contrary --
that the state can only be plaintiff. When the state is debtor,
there is no reciprocity. It seems to me that
Page 473 U. S. 267
gentlemen may put what construction they please on it. What! is
justice to be done to one party, and not to the other?"
Id. at 543.
Edmund Pendleton, the President of the Virginia Convention and
the next speaker, supported ratification but seems to have agreed
with Henry that the state-citizen diversity clause would subject
the States to suit in federal court. He said that
"[t]he impossibility of calling a sovereign state before the
jurisdiction of another sovereign state, shows the propriety and
necessity of vesting this tribunal with the decision of
controversies to which a state shall be a party."
Id. at 549.
John Marshall next took up the debate:
"With respect to disputes between
a state and the citizens
of another state, its jurisdiction has been decried with
unusual vehemence. I hope that no gentleman will think that a state
will be called at 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. But, say they, there will
be a partiality in it if a state cannot be defendant -- if an
individual cannot proceed to obtain judgment against a state,
though he may be sued by a state. It is necessary to be so, and
cannot be avoided. I see a difficulty in making a state defendant,
which does not prevent its being plaintiff. If this be only what
cannot be avoided, why object to the system on that account? If an
individual has a just claim against any particular state, is it to
be presumed that, on application to its legislature, he will not
obtain satisfaction? But how could a state recover any claim from a
citizen of another
Page 473 U. S. 268
state, without the establishment of these tribunals?"
Id. at 555-556. Marshall's remarks, like Madison's,
appear to suggest that the state-citizen diversity clause could not
be used to make an unwilling State a defendant in federal court.
The reason seems to be that "it is not rational to suppose that the
sovereign power should be dragged before a court." Of course, where
the cause of action is based on state law, as it would be in a suit
under the state-citizen diversity clause, the "sovereign power"
whose law governed would be the State, and Marshall is consequently
correct that it would be "irrational" to suppose that the sovereign
could be forced to abrogate the sovereign immunity defense that its
own law had created. However, where the cause of action is based on
a federal law enacted pursuant to Congress' Article I powers, it
would be far less clear that Marshall would have concluded that the
State still retained the relevant "sovereignty"; in such a case,
there is nothing "irrational" about supposing that the relevant
sovereign -- in this case, Congress -- had subjected the State to
suit. [
Footnote 2/17]
Marshall's observations did not go unanswered. Edmund Randolph,
a member of the Committee of Detail at the Constitutional
Convention and a proponent of the Constitution, referred back to
Mason's remarks:
"An honorable gentleman has asked, Will you put the body of the
state in prison? How is it between independent states? If a
government refuses to do justice to individuals, war is the
consequence. Is this the bloody alternative to which we are
referred. . . . I think, whatever the law of nations may say, that
any doubt respecting the construction that a state may be
plaintiff, and not
Page 473 U. S. 269
defendant, is taken away by the words
where a state shall be
a party."
Id. at 573. Randolph was convinced that a State could
be made a party defendant. Discussing some disputed land claims, he
remarked:
"One thing is certain -- that . . . the remedy will not be
sought against the settlers, but the state of Virginia. The court
of equity will direct a compensation to be made by the state."
Id. at 574. Finally, he concluded his discussion:
"I ask the Convention of the free people of Virginia if there
can be honesty in rejecting the government because justice is to be
done by it? . . . Are we to say that we shall discard this
government because it would make us all honest?"
Id. at 575. [
Footnote
2/18] One of the purposes of Article III was to vest in the
federal courts the power to settle disputes that might threaten the
peace and unity of the Nation. [
Footnote 2/19] Randolph saw the danger of just this
kind of internecine strife when a State reneges on debts owed to
citizens of another State, and consequently applauded the extension
of federal jurisdiction to avoid these consequences.
The Virginia Convention ratified the Constitution. The Madison
and Marshall remarks have been cited as evidence of an inherent
limitation on Article III jurisdiction.
See, e.g., Edelman v.
Jordan, 415 U.S. at
415 U. S. 660,
n. 9;
Monaco v. Mississippi, 292 U.
S. 313,
292 U. S.
323-325 (1934);
Hans v. Louisiana, 134 U.S. at
134 U. S. 14.
Even if this adequately characterized the substance of their views,
they were a minority of those given at the Convention. Mason,
Henry, Pendleton, and Randolph
Page 473 U. S. 270
all took an opposing position. [
Footnote 2/20] Equally important, the entire discussion
focused on the question of Virginia's liability for debts and land
claims that predated the Constitution and clearly arose under
Virginia law. The question that excited such interest was whether
the state-citizen diversity clause itself abrogated the sovereign
immunity defense that would be available to the State in a suit
concerning these issues in state court. [
Footnote 2/21] The same issue arose in a few other
state conventions, but did not receive the detailed attention that
it did in Virginia. [
Footnote
2/22]
Page 473 U. S. 271
The debate in the press sheds further light on the effect of the
Constitution on state sovereign immunity. A number of influential
anti-Federalist publications sounded the alarm at what they saw as
the unwarranted extension of the federal judicial power worked by
the state-citizen diversity clause. The "Federal Farmer," commonly
identified as Richard Henry Lee of Virginia, was one influential
and widely published anti-Federalist. He objected:
"There are some powers proposed to be lodged in the general
government in the judicial department, I think very unnecessarily,
I mean powers respecting questions arising upon the internal
laws of the respective states. It is proper the federal
judiciary should have powers co-extensive with the federal
legislature -- that is, the power of deciding finally on the laws
of the union. By Art. 3. Sect. 2, the powers of the federal
judiciary are extended (among other things) to all cases between a
state and citizens of another state -- between citizens of
different states -- between a state or the citizens thereof, and
foreign states, citizens of subjects. Actions in all these cases,
except against a state government, are now brought and finally
determined in the law courts of the states respectively; and as
there are no words to exclude these courts of their jurisdiction in
these cases, they will have concurrent jurisdiction with the
inferior federal courts in them."
14 The Documentary History of the Ratification of the
Constitution 40 (J. Kaminski & G. Saladino, eds., 1983)
(hereinafter Documentary History) (emphasis added). [
Footnote 2/23]
Page 473 U. S. 272
Later in the same essay, which was published and circulated in
1787 and 1788,
see id. at 14-17, the author becomes even
more explicit:
"How far it may be proper to admit a foreigner or the citizen of
another state to bring actions against state governments, which
have failed in performing so many promises made during the war, is
doubtful: how far it may be proper so to humble a state, as to
bring it to answer to an individual in a court of law is worthy of
consideration; the states are now subject to no such actions; and
this new jurisdiction will subject the states, and many defendants
to actions, and processes, which were not in the contemplation of
the parties when the contract was made; all engagements existing
between citizens of different states, citizens and foreigners,
states and foreigners; and states and citizens of other states were
made the parties contemplating the remedies then existing on the
laws of the states -- and the new remedy proposed to be given in
the federal courts, can be founded on no principle whatever."
Id. at 41-42. This discussion undoubtedly presupposes
that States would be parties defendant in suits on state law causes
of action under the state-citizen diversity clause; the author
objects to barring sovereign immunity defenses in cases "arising
upon the internal laws of the respective states." However, the
anti-Federalist author plainly also believes that the powers of the
federal courts are to be coextensive with the powers of Congress.
Thus, the deficiency of state-citizen diversity jurisdiction is not
that it permits the federal courts to hear suits against States
based on federal causes of action, but that it permits the federal
courts to exercise jurisdiction beyond the lawmaking powers of
Congress: it provides new remedies for state creditors "which were
not in the contemplation of the parties when the contract was
made."
Page 473 U. S. 273
Another noted anti-Federalist writer who published under the
pseudonym "Brutus" also attacked what he saw as the untoward
implications of the state-citizen diversity clause:
"I conceive the clause which extends the power of the judicial
to controversies arising between a state and citizens of another
state improper in itself, and will, in its exercise, prove most
pernicious and destructive."
"It is improper because it subjects a state to answer in a court
of law to the suit of an individual. This is humiliating and
degrading to a government, and, what I believe, the supreme
authority of no state ever submitted to."
"
* * * *"
"Every state in the union is largely indebted to individuals.
For the payment of these debts, they have given notes payable to
the bearer. At least this is the case in this state. Whenever a
citizen of another state becomes possessed of one of these notes,
he may commence an action in the supreme court of the general
government; and I cannot see any way in which he can be prevented
from recovering."
"
* * * *"
"If the power of the judicial under this clause will extend to
the cases above stated, it will, if executed, produce the utmost
confusion, and in its progress, will crush the states beneath its
weight. And if it does not extend to these cases, I confess myself
utterly at a loss to give it any meaning."
2 The Complete Anti-Federalist 429-431 (H. Storing ed.1981).
Other materials, from proponents and opponents of ratification,
similarly view Article III jurisdiction as extending to suits
against States. [
Footnote 2/24]
Timothy Pickering, a Pennsylvania
Page 473 U. S. 274
landowner who supported ratification and attended the
Pennsylvania Convention, wrote:
"The federal farmer, and other objectors, say the causes between
a state & citizens of another state -- between citizens of
different states -- and between a state, or the citizens thereof,
and the citizens of subjects of foreign states, should be left, as
they now are, to the decision of the particular state courts. The
other cases enumerated in the constitution seem to be admitted as
properly cognizable in the
federal courts. With respect to
all the former, it may be said generally that, as the local laws of
the several states may differ from each other -- as particular
states may pass laws unjust in their nature, or partially unjust as
they regard foreigners and the citizens of other states, it seems
to be a wise provision which puts it in the power of such
foreigners & citizens to resort to a court where they may
reasonably expect to obtain
impartial justice. . . . But
there is a particular & very cogent reason for securing to
foreigners a trial, either in the first instance or by
appeal, in a federal court. With respect to
foreigners,
all the states form but
one nation. This
nation
is responsible for the conduct of all its members towards foreign
nations, their citizens & subjects; and therefore ought to
possess the
Page 473 U. S. 275
power of doing justice to the latter. Without this power, a
single state, or one of its citizens, might embroil the whole union
in a foreign war."
14 Documentary History at 204. Pickering's comments are
particularly revealing because, unlike the previous comments, they
do not focus on the problem caused by the abrogation of sovereign
immunity in state law causes of action. In fact, his views seem to
be consistent with the view that a federal court adjudicating a
state law claim should apply an applicable state law sovereign
immunity defense. Pickering justifies the existence of
state-citizen diversity jurisdiction in part as a remedy for state
laws that are unjust or unfair to noncitizens. Such laws would, of
course, implicate the interests protected by the Privileges and
Immunities Clause of Article IV. His comments, like those of the
"Federal Farmer," thus suggest the recognized need for a federal
forum to adjudicate cases implicating the guarantees of the Federal
Constitution -- even those cases in which a State is the
defendant.
The Federalist Papers were written to influence the ratification
debate in New York. In No. 81, Hamilton discussed the issue of
state sovereign immunity in plain terms:
"I shall take occasion to mention here a supposition which has
excited some alarm upon very mistaken grounds: 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."
"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. Unless, therefore,
there is a surrender
Page 473 U. S. 276
of this immunity in the plan of the convention, it will remain
with the States, and the danger intimated must be merely ideal. The
circumstances which are necessary to produce an alienation of State
sovereignty were discussed in considering the article of taxation,
and need not be repeated here. 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."
The Federalist No. 81, pp. 548-549 (J. Cooke ed.1961) (emphasis
in original). Hamilton believed that the States could not be held
to their debts in federal court under the state-citizen diversity
clause. The Court has often cited the passage as support for its
view that the Constitution, even before the Eleventh Amendment,
gave the federal courts no authority to hear any case, under any
head of jurisdiction, in which a State was an unconsenting
defendant.
See, e.g., Edelman v. Jordan, 415 U.S. at
415 U. S.
660-662, n. 9;
Hans v. Louisiana, 134 U.S. at
134 U. S. 12-13.
A careful reading of this passage, however, in the context of
Hamilton's views elsewhere in The Federalist, demonstrates
precisely the opposite. In the cases arising under state law that
would find their way into federal court under the state-citizen
Page 473 U. S. 277
diversity clause, a defense of state sovereign immunity would be
as valid in federal court as it would be in state court. The States
retained their full sovereign authority over state-created causes
of action, as they did over their traditional sources of revenue.
See The Federalist No. 32 (discussing taxation). On the
other hand, where the Federal Government, in the "plan of the
convention," [
Footnote 2/25] had
substantive lawmaking authority, the States no longer retained
their full sovereignty, and could be subject to suit in federal
court. [
Footnote 2/26] In these
areas, in which the Federal Government
Page 473 U. S. 278
had substantive lawmaking authority, Article III's federal
question grant of jurisdiction gave the federal courts power that
extended just as far as the legislative power of Congress; as
Hamilton had said in discussing the judicial power, "every
government
ought to possess the means of executing its own
provisions by its own authority," The Federalist No. 80, p.
537 (J. Cooke ed.1961) (emphasis in original). [
Footnote 2/27] To interpret Article III to impose
an independent limit on the lawmaking power of Congress would be to
turn the "plan of the convention" on its head. [
Footnote 2/28]
A sober assessment of the ratification debates thus shows that
there was no firm consensus concerning the extent to which the
judicial power of the United States extended to suits against
States. Certain opponents of ratification, like
Page 473 U. S. 279
Mason, Henry, and the "Federal Farmer," believed that the
state-citizen diversity clause abrogated state sovereign immunity
on state causes of action and predicted dire consequences as a
result. On the other hand, certain proponents of the Constitution,
like Pendleton, Randolph, and Pickering, agreed concerning the
interpretation of Article III, but believed that this constituted
an argument in favor of the new Constitution. Finally, Madison,
Marshall, and Hamilton believed that a State could not be made a
defendant in federal court in a state-citizen diversity suit. The
majority of the recorded comments on the question contravene the
Court's statement in
Hans, see supra, at
473 U. S. 259,
that suits against States in federal court were inconceivable.
[
Footnote 2/29]
Granted that most of the comments thus expressed a belief that
state sovereign immunity would not be a defense to suit in federal
court in state-citizen diversity cases, the question remains
whether the debates evince a contemporary understanding concerning
the amenability of States to suit under federal question or other
subject matter grants of jurisdiction. Although this question
received little direct attention, the debates permit some
conclusions to be drawn. First, the belief that the state-citizen
diversity clause abrogated state sovereign immunity in federal
court implies that the federal question and admiralty clauses would
have the same effect. It would be curious indeed if Article III
abrogated a State's immunity on causes of action that arose under
the State's own laws and over which the Federal Government had no
legislative authority, but gave a State an absolute right to a
sovereign immunity defense when it was charged with a violation of
federal law. Second, even Hamilton, who believed that the
state-citizen clause did not abrogate state sovereign immunity in
federal court, also left substantial room for suits
Page 473 U. S. 280
against States when "the plan of the convention" required this
result. Given the Supremacy Clause and the enumeration of
congressional powers in Article I, "the plan of the convention"
requires States to answer in federal courts for violations of
duties lawfully imposed on them by Congress in the exercise of its
Article I powers. Third, the repeated references by Hamilton and
others to the need for the federal courts to be able to exercise
jurisdiction that is as extensive as Congress' powers to legislate
suggests that, if Congress had the substantive power under Article
I to enact legislation providing rights of action against the
States, the federal courts under Article III could be given
jurisdiction to hear such cases.
B
After the ratification of the Constitution, Congress provided in
§ 13 of the First Judiciary Act, 1 Stat. 73, 80, that
"the Supreme Court shall have exclusive jurisdiction of all
controversies of a civil nature, where a state is a party, except
between a state and its citizens; and except also between a state
and citizens of other states, or aliens, in which latter case it
shall have original but not exclusive jurisdiction."
The Act did not provide the federal courts with original federal
question jurisdiction, although it did in § 25 provide the Supreme
Court with considerable jurisdiction over appeals in federal
question cases from state courts. Despite the controversy over the
suability of the States, the provision of the Act giving the
Supreme Court original jurisdiction under the state-citizen and
state-alien diversity clauses surprisingly aroused little or no
debate in Congress.
See Fletcher at 1053-1054. [
Footnote 2/30]
Page 473 U. S. 281
Those with disputes against States had no doubt that
state-citizen diversity jurisdiction gave them a remedy in federal
court. The first case docketed in this Court was
Vanstophorst v.
Maryland, 2 Dall. 401 (191), a suit by Dutch
creditors who sought judgments to recover principal and interest on
Revolutionary War loans to the State of Maryland. Although a number
of other cases were brought against States prior to the passage of
the Eleventh Amendment, [
Footnote
2/31] the most significant of course was
Chisholm v.
Georgia, 2 Dall. 419 (1793).
Chisholm was
an action in assumpsit by a citizen of South Carolina for the price
of military goods sold to Georgia in 1777. [
Footnote 2/32] The case squarely presented the question
whether a State could be sued in federal court.
The Court held that federal jurisdiction extended to suits
against States under the state-citizen diversity clause. Each of
the five sitting Justices delivered an opinion; only Justice
Iredell was in dissent. Several features of
Chisholm
are
Page 473 U. S. 282
crucial to an understanding of the meaning of the Eleventh
Amendment. First, two members of the Committee on Detail that had
drafted Article III at the Convention were involved in the
Chisholm case. Both believed that a State could be sued in
federal court. Edmund Randolph, Washington's Attorney General who
had previously represented the plaintiff in
Vanstophorst v.
Maryland, supra, represented the
Chisholm plaintiff
and argued strongly that a State must be amenable to suit in
federal court as a result of the plain words of Article III, 2
Dall. at 421 [argument of counsel omitted from electronic version],
the necessity for enforcing the constitutional prohibitions on the
States,
id. at 422, and the implicit consent to suit that
occurred on ratification of the Constitution,
id. at 423.
Justice James Wilson, another of the drafters of Article III,
delivered a lengthy opinion in which he urged that sovereign
immunity had no proper application within the new Republic.
Id. at
2 U. S.
453-466.
Second,
Chisholm was not a federal question case.
Although the case involved a contract, it was brought pursuant to
the state-citizen diversity clause, and not directly under the
Contracts Clause of the Constitution.
See id. at 420
(argument of counsel [omitted from electronic version). [
Footnote 2/33] The case thus squarely
raised the issue whether a suit against a State based on a state
law cause of action that was not maintainable in state court could
be brought in federal court pursuant to the state-citizen diversity
clause. The case did
not present the question whether
a
Page 473 U. S. 283
State could be sued in federal court where the cause of action
arose under federal law.
Third, even Justice Iredell's dissent did not go so far as to
argue that a State could
never be sued in federal court.
He sketched his argument as follows:
"I have now, I think, established the following particulars. --
1st. That the Constitution, so far as it respects the judicial
authority, can only be carried into effect by acts of the
Legislature appointing Courts, and prescribing their methods of
proceeding. 2d. That Congress has provided no new law in regard to
this case, but expressly referred us to the old. 3d. That there are
no principles of the old law, to which we must have recourse, that
in any manner authorize the present suit, either by precedent or by
analogy."
Id. at 449. He thus accurately perceived that the
question presented was whether Article III itself created a cause
of action in federal court to displace state law where a State was
being sued. Because he believed that it did not, and because he
found no
other source of law on which the State could be
held liable in the case, he believed that the suit could not be
maintained. [
Footnote 2/34]
The decision in
Chisholm was handed down on February
18, 1793. On February 19, a resolution was introduced in the House
of Representatives stating:
"[N]o State shall be liable to be made a party defendant in any
of the Judicial Courts established or to be established under the
authority of the United States, at the
Page 473 U. S. 284
suit of any person or persons, citizens or foreigners, or of any
body politic or corporate whether within or without the United
States."
1 C. Warren, The Supreme Court in United States History 101
(rev. ed.1937). [
Footnote 2/35]
Another resolution was introduced in the Senate on February 20.
That resolution provided:
"The Judicial power of the United States shall not extend to any
suits 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."
3 Annals of Cong. 651-652 (1793). Congress then recessed on
March 4, 1793, without taking any action on the proposed
Amendment.
By the time Congress reconvened in December, 1793, a suit had
been brought against Massachusetts in the Supreme Court by a
British Loyalist whose properties had been confiscated.
Vassal
v. Massachusetts. [
Footnote
2/36] Georgia had responded angrily to the decision in
Chisholm, and the Massachusetts Legislature reacted to the
suit against it by enacting a resolution calling for "the most
speedy and effectual measures" to obtain a constitutional
amendment, including a constitutional convention. Resolves of
Massachusetts 28 (1793) (No. 45). Virginia followed with a similar
resolution. Acts of Virginia 52 (1793). The issue had thus come to
a head, and the Federalists who controlled Congress no doubt felt
considerable pressure to act to avoid an open-ended constitutional
convention. [
Footnote 2/37]
Page 473 U. S. 285
On January 2, 1794, a resolution was introduced, by a Senator
whose identity is not now known, with the text of the Eleventh
Amendment as it was ultimately enacted:
"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."
4 Annals of Cong. 25 (1794) (emphasis added). This differed from
the original February 20 resolution only in the addition of the
three italicized words. Senator Gallatin moved to amend the
resolution to add the words "except in cases arising under treaties
made under the authority of the United States" after "The Judicial
power of the United States."
Id. at 30. After rejecting
Gallatin's proposal, the Senate then rejected an amendment offered
by an unknown Senator that would have forbidden suits against
States only "where the cause of action shall have arisen before the
ratification of this amendment."
Ibid. [
Footnote 2/38] The Senate ultimately voted 23-2 in
favor of the Amendment.
Ibid.
In the House of Representatives, there was only one attempt to
amend the resolution. The amendment would have added at the end of
the Senate version the following language: "[w]here such State[s]
shall have previously made provision in their own Courts, whereby
such suit may be prosecuted to effect."
Id. at 476. This
resolution, of course, would have ratified the
Chisholm
result that States could be sued under the state-citizen diversity
clause, but would have given the States an opportunity to shift the
litigation into
Page 473 U. S. 286
their own courts. It was rejected, 77-8, and the House proceeded
to ratify the Amendment by a vote of 81-9 on March 4, 1794.
Id. at 476-478. Although the chronology of ratification is
somewhat unclear, [
Footnote 2/39]
President Adams certified that it had been ratified four years
later on January 8, 1798. Those who have argued that the Eleventh
Amendment was intended to constitutionalize a broad principle of
state sovereign immunity have always elided the question of why
Congress would have chosen the language of the Amendment as enacted
to state such a broad principle. As shown above, there was -- to
say the least -- no consensus at the time of the Constitution's
ratification as to whether the doctrine of state sovereign immunity
would have any application in federal court. Even if there had been
such a consensus, however, the Eleventh Amendment would represent a
particularly cryptic way to embody that consensus in the
Constitution. Had Congress desired to enshrine state sovereign
immunity in federal courts for all cases, for instance, it could
easily have adopted the first resolution introduced on February 19,
1793, in the House. Alternatively, a strong sovereign immunity
principle could have been derived from an amendment that merely
omitted the last 14 words of the enacted resolution.
See
Gibbons at 1927. However, it does not take a particularly close
reading of the Eleventh Amendment to see that it stops far short of
that. Article III had provided: "The judicial Power shall extend .
. . to Controversies . . . between a State and Citizens of another
State" and "between a State . . . and foreign . . . Citizens or
Subjects." The Eleventh Amendment used the identical language in
stating that the judicial power did not extend to "any suit in law
or equity . . . against one of the United States by Citizens of
another State, or by Citizens of Subjects of any Foreign State."
The congruence of language suggests that the Amendment was
Page 473 U. S. 287
intended simply to adopt the narrow view of the state-citizen
and state-alien diversity clauses; henceforth, a State could not be
sued in federal court where the basis of jurisdiction was that the
plaintiff was a citizen of another State or an alien. [
Footnote 2/40]
It may be argued that the true intentions of the Second Congress
were revealed by its use of the words "shall not be
Page 473 U. S. 288
construed" in the text of the Amendment. According to this
argument, Congress intended not merely to qualify the state-citizen
and state-alien diversity clauses, but also to establish a rule of
construction barring exercise of the federal jurisdiction in any
case -- even one otherwise maintainable under the subject matter
heads of jurisdiction -- in which a noncitizen or alien was suing a
State. This view at least is consistent with the language of the
Amendment, and would lead to the conclusion that suits by
noncitizens or aliens against a State are never permitted, while
suits by a citizen are permissible. [
Footnote 2/41] Recent scholarship, however, suggests
strongly that this view is incorrect. In particular, two other
explanations for the use of these terms have been advanced. Some
have argued that the words were a natural means for Congress to
rebuke the Supreme Court for its construction of the words "between
a State and citizens of another State" in
Chisholm; no
longer should those words be construed to extend federal
jurisdiction to suits brought under that clause in which the State
was a defendant.
See, e.g., Fletcher at 1061-1062. Others
have argued that the words were added to assure the retrospective
application of the Eleventh Amendment.
See, e.g., Jacobs
at 68-69. Of course, if the latter meaning were intended, the words
had their intended effect, for the Court dismissed cases pending on
its docket under the state-citizen diversity clause when the
Amendment was ratified.
E.g., 3 U. S.
Virginia, 3 Dall. 378 (1798). [
Footnote 2/42]
Page 473 U. S. 289
The language of the Eleventh Amendment, its legislative history,
and the attendant historical circumstances all strongly suggest
that the Amendment was intended to remedy an interpretation of the
Constitution that would have had the state-citizen and state-alien
diversity clauses of Article III abrogating the state law of
sovereign immunity on state law causes of action brought in federal
courts. The economy of this explanation, which accounts for the
rather legalistic terms in which the Amendment and Article III were
written, does not require extravagant assumptions about the
unexpressed intent of Congress and the state legislatures, and is
itself a strong point in its favor. The original Constitution did
not embody a principle of sovereign immunity as a limit on the
federal judicial power. There is simply no reason to believe that
the Eleventh Amendment established such a broad principle for the
first time.
The historical record in fact confirms that, far from correcting
the error made in
Chisholm, the Court's interpretation of
the Eleventh Amendment makes a similar mistake. The
Chisholm Court had interpreted the state-citizen clause of
Article III to work a major substantive change in state law, or at
least in those cases arising under state law that found their way
to federal court. The Eleventh Amendment corrected that error, and
henceforth required that the party-based heads of jurisdiction in
Article III be construed not to work this kind of drastic
modification of state law. The Court's current interpretation of
the Eleventh Amendment makes the opposite mistake, construing the
Eleventh Amendment to work a major substantive change in federal
law. According to the Court, the Eleventh Amendment imposes a
substantive limit on the Necessary and Proper Clause of Article I,
limiting the remedies that Congress may authorize for state
violations of federal law. This construction suffers from the same
defect as that of
Chisholm: both construe the enumeration
of heads of jurisdiction to impose substantive limits on lawmaking
authority.
Page 473 U. S. 290
Article III grants a federal question jurisdiction to the
federal courts that is as broad as is the lawmaking authority of
Congress. If Congress acting within its Article I or other powers
creates a legal right and remedy, and if neither the right nor the
remedy violates any provision of the Constitution outside Article
III, then Congress may entrust adjudication of claims based on the
newly created right to the federal courts -- even if the defendant
is a State. Neither Article III nor the Eleventh Amendment imposes
an independent limit on the lawmaking authority of Congress. This
view makes sense of the language, history, and purposes of Article
III and of the Eleventh Amendment. It is also the view that was
adopted in the earliest interpretations of the Amendment by the
Marshall Court.
C
After the enactment of the Eleventh Amendment, the number of
suits against States in the federal courts was largely curtailed.
The Amendment itself had eliminated the constitutional basis for
the provisions of the First Judiciary Act granting the Supreme
Court original jurisdiction over suits against States by an alien
or noncitizen. Because there was no general statutory grant of
original federal question jurisdiction to the federal courts,
[
Footnote 2/43] suits against
States would not arise under that head of jurisdiction. [
Footnote 2/44] Nonetheless, the Marshall
Court did have a number of opportunities to confront the issue of
state sovereign immunity. The Court's decisions reflect a
consistent understanding of the limited effect of the Amendment on
the structure of federal jurisdiction outside the state-citizen and
state-alien diversity clauses. Because the Justices on the Marshall
Court lived through the
Page 473 U. S. 291
ratification of the Constitution, the decision in
Chisholm
v. Georgia, and the subsequent enactment of the Eleventh
Amendment, the Marshall Court's views on the meaning of the
Amendment should take on particular importance.
(1)
Admiralty was perhaps the most significant head of federal
jurisdiction in the early 19th century. As Hamilton noted in a
much-quoted passage from the Federalist Papers:
"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). Although few
admiralty cases could be expected to arise in which the States were
defendants, the Marshall Court, in the few instances in which it
confronted the issue, showed a strong reluctance to construe the
Eleventh Amendment to interfere with the admiralty jurisdiction of
the federal courts.
In
United States v.
Peters, 5 Cranch 115 (1809), the Court adjudicated
a controversy over whether certain funds, proceeds of an admiralty
prize sale dating from the 1770's, belonged to the Commonwealth of
Pennsylvania or to a private claimant.
Id. at
9 U. S. 136-139.
The Commonwealth claimed the money as the result of a state court
judgment in its favor, while the private claimant's claim was based
on a judgment received from a national prize court established
under the Articles of Confederation. The money claimed by the
Commonwealth had been held by the State Treasurer, who had since
died. Chief Justice Marshall, writing for the Court, held that the
Eleventh Amendment did not interfere with the traditional common
law suit against a state official for recovery of funds held with
notice of an adverse claim. According to Marshall, the suit could
be maintained against the state official, even though the relief
sought was a recovery of funds. Marshall carefully avoided deciding
whether the Eleventh Amendment would have barred the action if it
had been necessary
Page 473 U. S. 292
to bring it against the State itself:
"If these proceeds had been the actual property of Pennsylvania,
however wrongfully acquired, the disclosure of that fact would have
presented a case on which it was unnecessary to give an
opinion."
Id. at
9 U. S. 139.
Nonetheless, Marshall's construction of the Eleventh Amendment by
preserving the essential remedy of a money judgment that, in
effect, ran against the State, left federal admiralty jurisdiction
intact.
Later that same year, Justice Bushrod Washington, who had sat on
the
Peters Court, heard a sequel to
Peters that
arose when the State resisted the execution of the
Peters
judgment.
United States v. Bright, 24 F. Cas. 1232 (No.
14,647) (CC Pa. 1809). After agreeing with the
Peters
Court that the State Treasurer could be sued for the funds in his
private capacity, he went on to note that the Eleventh Amendment,
in terms, applies only to suits "in law or equity." Because the
Framers of the Amendment did
not add the words "or to
cases of admiralty and maritime jurisdiction,"
id. at
1236, the Amendment should not be construed to extend to admiralty
cases. [
Footnote 2/45] Washington
thus did not read the Amendment to require a broad constitutional
prohibition of suits against States in federal court. Moreover,
given the importance of admiralty jurisdiction at the time,
Congress' failure to include admiralty suits in the express terms
of the statute was unlikely to have been an oversight.
The Marshall Court again refused to hold that the Eleventh
Amendment barred suits in admiralty against States in
Governor of Georgia v.
Madrazo, 1 Pet. 110 (1828). On appeal
Page 473 U. S. 293
from a Federal Circuit Court decision, a claimant alleged that
he, and not the State of Georgia, was entitled to the proceeds of a
prize sale. Chief Justice Marshall, writing for the Court, held
that the suit was in reality a suit against the State. Although the
Governor was named as defendant, there was no allegation that he
had violated any federal or state law, and thus "no case is made
which justifies a decree against him personally."
Id. at
26 U. S. 123.
The Court then dismissed the case because the Circuit Court had no
jurisdiction over it:
"[I]f the 11th amendment to the Constitution does not extend to
proceedings in admiralty, it was a case for the original
jurisdiction of the Supreme Court."
Ibid. [
Footnote
2/46]
Writing in 1833, Justice Joseph Story noted:
"It has been doubted, whether this amendment extends to cases of
admiralty and maritime jurisdiction, where the proceeding is
in
rem and not
in personam. There, the jurisdiction of
the court is founded upon the possession of the thing; and if the
state should interpose a claim for the property, it does not act
merely in the character of a defendant, but as an actor. Besides
the 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). [
Footnote
2/47]
Page 473 U. S. 294
As Justice Story pointed out, the result of the early admiralty
cases was that the Eleventh Amendment was not seen as an obstacle
to the exercise of otherwise legitimate federal admiralty
jurisdiction.
(2)
Until 1875, Congress did not endow the federal courts with
general federal question jurisdiction. Nonetheless, the Supreme
Court had several opportunities to decide federal question cases
against States. In some of these, suit was brought against a State
in state court and an appeal was taken to the Supreme Court. If the
Eleventh Amendment had constitutionalized state sovereign immunity
as a limit to the Article III federal judicial power, it would have
operated as a limit on both original
and appellate federal
question jurisdiction, for nothing in the text or subsequent
interpretations of Article III suggests that the federal judicial
power extends more broadly to hear appeals than to decide original
cases. [
Footnote 2/48] Although
the Court has largely ignored this consequence of its
constitutional sovereign immunity doctrine, [
Footnote 2/49] it was a consequence that the Marshall
Court squarely faced.
In
Cohens v.
Virginia, 6 Wheat. 264 (1821), Chief Justice
Marshall addressed the question of the effect of the Eleventh
Amendment on the Supreme Court's appellate jurisdiction to review a
criminal conviction obtained in a Virginia state court. Counsel for
the State argued that either the original
Page 473 U. S. 295
Constitution or the Eleventh Amendment denied the federal courts
the power to hear such an appeal, in which a State was being "sued"
for a writ of error in the Supreme Court. Marshall noted at the
outset of his opinion for the Court that Article III provides
federal jurisdiction "to all the cases described, without making in
its terms any exception whatever, and without any regard to the
condition of the party."
Id. at
19 U. S. 378.
After repeating this principle several times, [
Footnote 2/50] the Chief Justice stated:
"We think, then, that as the constitution originally stood, the
appellate jurisdiction of this Court, in all cases arising under
the constitution, laws, or treaties of the United States, was not
arrested by the circumstance that a State was a party."
Id. at
19 U. S.
405.
Marshall then went on to consider the applicability of the
Eleventh Amendment. After holding that a criminal defendant's
petition for a writ of error is not properly understood to be a
suit "commenced" or "prosecuted" by an individual against a State,
Marshall 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
Page 473 U. S. 296
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 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.
[
Footnote 2/51] Thus, the
Marshall Court in
Cohens squarely confronted the issue of
the extent to which the Eleventh Amendment encroached on federal
question jurisdiction, and concluded that it made no encroachment
at all. This result is not distinguishable on the ground that it
concerned only the exercise of appellate, and not original, federal
question jurisdiction. As was made clear three years later in
Osborn v. Bank of the United
States, 9 Wheat. 738 (1824):
"In those cases in which original jurisdiction is given to the
supreme court, the judicial power of the United States cannot be
exercised in its appellate form. In every other case, the power is
to be exercised in its original
Page 473 U. S. 297
or appellate form, or both, as the wisdom of congress may
direct. With the exception of these cases in which original
jurisdiction is given to this court, there is none to which the
judicial power extends, from which the original jurisdiction of the
inferior courts is excluded by the constitution. Original
jurisdiction, so far as the constitution gives a rule, is
co-extensive with the judicial power. We find in the constitution
no prohibition to its exercise in every case in which the judicial
power can be exercised."
Id. at
22 U. S.
820-821. The Court continued, speaking of federal
question jurisdiction:
"It would be a very bold construction to say that [the judicial]
power could be applied in its appellate form only to the most
important class of cases to which it is applicable."
Ibid.
Osborn itself involved several important Eleventh
Amendment issues. The State of Ohio had seized bank notes and
specie of the Bank of the United States pursuant to a statute
imposing a tax on the Bank. The statute was evidently
unconstitutional under the Court's holding in
McCulloch
v. Maryland, 4 Wheat. 316 (1819). The Bank, which
was treated as a private corporation, and not a division of the
Federal Government, for purposes of the suit, obtained an
injunction in federal court prohibiting the State from enforcing
the tax and requiring the return of the seized funds. The State of
Ohio appealed to the Supreme Court, relying in part on the Eleventh
Amendment as a bar to the proceedings.
Chief Justice Marshall's opinion for the Court carefully
explains that the sovereign immunity principles of the Eleventh
Amendment have no application where the State is not a party of
record:
"It may, we think, be laid down as a rule which admits of no
exception that, in all cases where jurisdiction depends on the
party, it is the party named in the record. Consequently, the 11th
amendment, which restrains
Page 473 U. S. 298
the jurisdiction granted by the constitution over suits against
States, is, of necessity, limited to those suits in which a State
is a party on the record."
9 Wheat. at
22 U. S. 857.
Technically, this principle does not address the question whether a
suit may be brought against a State, but rather the question
whether a suit is indeed to be understood as a suit against a
State. [
Footnote 2/52]
Nonetheless, it represents a narrow, technical construction of the
Eleventh Amendment, and is thus of a piece with the immediately
following language:
"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."
Id. at
22 U. S.
857-858. The restatement of the principle of
Cohens demonstrates Marshall's understanding that neither
Article III nor the Eleventh Amendment limits the ability of the
federal courts to hear the full range of cases arising under
federal law.
The lack of original federal question jurisdiction, combined
with the paucity of admiralty actions against the States, deprived
the Marshall Court of the opportunity to rule often on the effect
of the Eleventh Amendment on state sovereign immunity in federal
court. Moreover, the Court's rulings demonstrate a certain
reluctance squarely to decide the extent to which the States were
suable in federal court. This was perhaps a result of the Court's
sensitivity to the unpopular decision in
Chisholm v.
Georgia, the lack of effective governmental power to enforce
its decisions, and the centripetal forces that were driving the
Nation toward civil war. Nonetheless,
Page 473 U. S. 299
a careful reading of the Marshall Court's precedents indicates
that the Marshall Court consistently adopted narrow and technical
readings of the Amendment's import, and thus carefully retained the
full measure of federal question and admiralty jurisdiction.
The Marshall Court's precedents, and the original understanding
of the Eleventh Amendment, survived until near the end of the 19th
century. In 1875, Congress gave the federal courts general original
federal question jurisdiction. 18 Stat. 470. For the first time,
suits could now be brought against States in federal court based on
the existence of a federal cause of action. In
Hans v.
Louisiana, 134 U. S. 1 (1890),
a citizen of Louisiana sued his State for payment on some bonds
that the state government had repudiated. The plaintiff claimed a
violation of the Contracts Clause. The Court held in favor of the
State and ordered the suit dismissed.
Hans has been taken to stand for the proposition that
the Eleventh Amendment, despite its terms, bars the federal courts
from hearing federal question suits by citizens against their own
State. [
Footnote 2/53] As I have
argued before, the Court's ambiguous opinion need not be
interpreted in this way.
See Employees v. Missouri Dept. of
Public Health and Welfare, 411 U.S. at
411 U. S.
313-315 (BRENNAN, J., dissenting). The
Hans
Court relied on Justice Iredell's dissent in
Chisholm,
which as noted above,
supra, at
473 U. S. 283,
rested on the absence of a statutory cause of action for Mr.
Chisholm against the State of Georgia and reserved the question of
the constitutional status of state sovereign immunity.
See
Hans, 134 U.S. at
134 U. S. 18-19.
The Court further noted the
"presumption that
Page 473 U. S. 300
no anomalous and unheard-of proceedings or suits were intended
to be raised up by the Constitution -- anomalous and unheard of
when the Constitution was adopted."
Id. at
134 U. S. 18. The
opinion can thus sensibly be read to have dismissed the suit before
it on the ground that no federal cause of action supported the
plaintiff's suit and that state law causes of action would of
course be subject to the ancient common law doctrine of sovereign
immunity.
Whether the Court's departure from a sound interpretation of the
Eleventh Amendment occurred in
Hans or only in later cases
that misread
Hans, however, is relatively unimportant. If
Hans is a constitutional holding, it rests by its own
terms on two premises.
First, the opinion cites the comments by Madison, Marshall, and
Hamilton in the ratification debates.
Id. at
134 U. S. 12-14.
The Court concludes that permitting suits against States would be
"startling and unexpected,"
id. at
134 U. S. 11, and
would "strain the Constitution and the law to a construction never
imagined or dreamed of."
Id. at
134 U. S. 15. The
historical record outlined above demonstrates that the Court's
history was plainly mistaken. Numerous individuals at the time of
the Constitution's ratification believed that it would have exactly
the effect the
Hans Court found unimaginable. Moreover,
even the comments of Madison, Marshall, and Hamilton need not be
taken to advocate a constitutional doctrine of state sovereign
immunity. Read literally and in context, all three were explicitly
addressed to the particular problem of the state-citizen diversity
clause. All three were vitally concerned with the constitutionally
unauthorized displacement of the state law of creditors' rights and
remedies that would be worked by an incorrect reading of the
state-citizen diversity clause. All three are fully consistent with
a recognition that the Constitution neither abrogated nor
instituted state sovereign immunity, but rather left the ancient
doctrine as it found it: a state law defense available in state law
causes of action prosecuted in federal court.
Page 473 U. S. 301
Second, the opinion relies heavily on the supposedly "anomalous"
result that, if the Eleventh Amendment were read literally,
"in cases arising under the Constitution or laws of the United
States, a State may be sued in the federal courts by its own
citizens, though it cannot be sued for a like cause of action by
the citizens of other States, or of a foreign state."
Id. at
134 U. S. 10.
Even if such an "anomaly" existed, it would not justify judicial
rewriting of the Eleventh Amendment and Article III and the
wholesale disregard of precedents. But in any event, a close look
at the historical record reveals that the "anomaly" can easily be
avoided without a general expansion of a constitutionalized
sovereign immunity doctrine. The Eleventh Amendment can and should
be interpreted in accordance with its original purpose to
reestablish the ancient doctrine of sovereign immunity in state law
causes of action based on the state-citizen and state-alien
diversity clauses; in such a state law action, the identity of the
parties is not, alone, sufficient to permit federal jurisdiction.
If federal jurisdiction is based on the existence of a federal
question or some other clause of Article III, however, the Eleventh
Amendment has no relevance. There is thus no Article III limitation
on otherwise proper suits against States by citizens, noncitizens,
or aliens, and no "anomaly" that requires such drastic
"correction."
The Court has repeatedly relied on
Hans as establishing
a broad principle of state immunity from suit in federal court.
[
Footnote 2/54] The historical
record demonstrates that, if
Hans was a constitutional
Page 473 U. S. 302
holding, it rested on misconceived history and misguided logic.
[
Footnote 2/55]
The 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,
see, e.g., Great Northern Life Ins. Co. v.
Read, 322 U. S. 47,
322 U. S. 57
(1944) (Frankfurter, J., dissenting);
Muskopf v. Corning
Hospital Dist., 55 Cal. 2d
211, 359 P.2d 457 (1961); W. Prosser, The Law of Torts 984-987
(4th ed.1971), 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
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.
I respectfully dissent.
[
Footnote 2/1]
See Shapiro, Wrong Turns: The Eleventh Amendment and
the Pennhurst Case, 98 Harv.L.Rev. 61 (1984).
[
Footnote 2/2]
For instance, in 1972-1973, the year in which Congress was
considering § 504, state governments received over $31 billion in
revenue from the Federal Government. By 1981-1982, this had grown
to $66 billion. Bureau of the Census, Historical Statistics on
Governmental Finances and Employment 34 (1982).
[
Footnote 2/3]
The Rehabilitation Act was amended in 1974, a year after its
original enactment. Pub.L. 93-516, 88 Stat. 1617. The Senate Report
that accompanied the amendment acknowledged that
"Section 504 was patterned after, and is almost identical to,
the antidiscrimination language of section 601 of the Civil Rights
Act of 1964, . . . and section 901 of the Education Amendments of
1974 [
sic]."
S.Rep. No. 93-1297, pp. 39-40 (1974). These amendments and their
history "clarified the scope of § 504" and "shed significant light
on the intent with which § 504 was enacted."
Alexander v.
Choate, 469 U. S. 287,
469 U. S.
306-307, n. 27 (1985).
[
Footnote 2/4]
Representative Jeffords also noted that
"it did not seem right to me that the Federal Government should
require States and localities to eliminate discrimination against
the handicapped wherever it exists and remain exempt
themselves."
124 Cong.Rec. 38551 (1978).
[
Footnote 2/5]
The "stringent,"
see ante at
473 U. S. 241,
test that the Court applies to purported state waivers of sovereign
immunity is a mirror image of the test it applies to congressional
abrogation of state sovereign immunity. Just as the Court today
decides that Congress, if it desires effectively to abrogate a
State's sovereign immunity, must do so expressly in the statutory
language, so the Court similarly decides that a State's waiver, to
be effective, must be "specifically applicable to federal court
jurisdiction."
Ibid. In the Court's words,
"[a]lthough a State's general waiver of sovereign immunity may
subject it to suit in state court, it is not enough to waive the
immunity guaranteed by the Eleventh Amendment."
Ibid. Ordinarily, a federal court is expected
faithfully to decide state law questions before it as the courts of
a State would. I would think that a federal court deciding the
scope of a state waiver of sovereign immunity should attempt to
construe the state law of sovereign immunity as a state court
would, making use of relevant legislative history and legal
precedents. Yet, despite the absence of any identifiable federal
interest that would justify a departure from state law, the Court
eschews any effort to construe California's constitutional waiver
requirement in accordance with California law.
See e.g.,
Muskopf v. Corning Hospital Dist., 55 Cal. 2d
211, 216, 359 P.2d 457, 460 (1961) (abrogating state sovereign
immunity for all tort cases and holding it to be an "anachronism,
without rational basis, and exist[ing] only by the force of
inertia").
Id. at 216, 359 P.2d at 460. Instead, the Court
seems to believe that the Eleventh Amendment justifies the Court in
imposing on the state legislatures, as well as Congress, special
rules of statutory draftsmanship if they would make a waiver of
state sovereign immunity in federal court successful. Apparently,
even States that want to make a federal forum available for the
fair adjudication of grievances arising under federal law ought to
be deterred from doing so.
[
Footnote 2/6]
See also Pennhurst State School and Hospital v.
Halderman, 465 U. S. 89,
465 U. S. 99
(1984) ("Our reluctance to infer that a State's immunity from suit
in the federal courts has been negated stems from recognition of
the vital role of the doctrine of sovereign immunity in our federal
system").
[
Footnote 2/7]
In this case, the Court's decision relentlessly to apply its
"clear statement rule" demonstrates how that rule serves no purpose
other than obstructing the will of Congress. When Congress enacted
§ 504, it could have had no idea that it must obey the extreme
clear statement rule adopted by the Court for the first time today.
The roots of that rule are found in
Employees v. Missouri Dept.
of Public Health and Welfare, 411 U.
S. 279 (1973), which was decided on April 18, 1973.
Cf. Parden v. Terminal Railway of Ala. Docks Dept.,
377 U. S. 184
(1964). The
Employees case, of course, did not itself lay
down the extreme rule adopted today. In any event, the bill which
became § 504 had been first enacted six months previously.
See 118 Cong.Rec. 35841 (Oct. 13, 1972) (enactment of bill
by Senate);
id. at 36409 (Oct. 14, 1972) (enactment of
bill by House). It was then vetoed by the President and reenacted
in February, 1973.
See 119 Cong.Rec. 5901 (Feb. 28, 1973)
(Senate);
id. at 7139 (Mar. 8, 1973) (House). Another veto
followed, and the legislation was finally signed into law on
September 26, 1973.
See id. at 29633 (Sept. 13, 1973)
(Senate enactment of final bill);
id. at 30151 (Sept. 18,
1973) (House enactment of final bill). Given this chronology, for
the Court now to hold that Congress did not abrogate the States'
immunity because it did not "unequivocally express this intention
in the statutory language" is to change the rules for lawmaking
after Congress has already acted. Congress, like other officials,
"cannot be expected to predict the future course of constitutional
law."
Procunier v. Navarette, 434 U.
S. 555,
434 U. S. 562
(1978).
[
Footnote 2/8]
There are other rules created specifically to permit suits that
would appear to be barred by any thoroughgoing interpretation of
the Eleventh Amendment as a bar to exercise of the federal judicial
power in suits against States. For instance,
Lincoln County v.
Lunin, 133 U. S. 529,
133 U. S. 530
(1890), established that the Eleventh Amendment is not a bar to
suits against local governmental units. In addition, it seems to
have been a longstanding, though unarticulated, rule that the
Eleventh Amendment does not limit exercise of otherwise proper
federal appellate jurisdiction over suits from state courts. For
instance, in
Bacchus Imports, Ltd. v. Dias, 468 U.
S. 263 (1984), we adjudicated a taxpayer's appeal from
an unfavorable judgment in a suit against state officials for
refund of taxes.
Cf. Edelman v. Jordan. Compare
Martinez v. California, 444 U. S. 277
(1980) (adjudicating appeal of § 1983 action brought against State
in state court)
with Quern v. Jordan, 440 U.
S. 332 (1979) (holding that § 1983 does not abrogate
state sovereign immunity in federal court).
See also Williams
v. Vermont, 472 U. S. 14
(1985);
Summa Corp. v. California ex rel State Lands
Comm'n, 466 U. S. 198
(1984);
Aloha Airlines, Inc. v. Director of Taxation of
Hawaii, 464 U. S. 7 (1983);
Thomas v. Review Board of Ind. Employment Security Div.,
450 U. S. 707
(1981);
Bonelli Cattle Co. v. Arizona, 414 U.
S. 313 (1973).
[
Footnote 2/9]
In this case, for instance, damages may well be the only
practical relief available for respondent. He originally brought
suit in 1979 alleging that the State had improperly denied him
employment as a graduate student assistant recreational therapist.
Even if he had brought suit against state officials as well as the
State itself, it is reasonable to suppose that now -- six years
later -- he has attained his degree and would obtain no benefit
from an injunction ordering the end of discrimination against the
handicapped in hiring graduate student assistants. "For people in
[Scanlon's] shoes, it is damages or nothing."
Biven v. Six
Unknown Federal Narcotic Agents, 403 U.
S. 388,
403 U. S. 410
(1971).
[
Footnote 2/10]
Congress, of course, may decide in a given case that a remedial
scheme should be limited to either damages or injunctive relief.
Cf. 42 U.S.C. § 2000a-3(a) (statute limiting remedy to
"preventive" relief against
all defendants). Our role in
such a case is to interpret the will of Congress with respect to
the scope of the permissible relief. In the Eleventh Amendment
context, however, the Court seems to have decided that the supposed
constitutional policy disfavoring suits against States justifies
limiting the scope of relief regardless of the apparent will of
Congress.
[
Footnote 2/11]
See, e.g., Fletcher, A Historical 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 (1983) (hereinafter Fletcher); Gibbons, The
Eleventh Amendment and State Sovereign Immunity: A
Reinterpretation, 83 Colum.L.Rev. 1889 (1983) (hereinafter
Gibbons); C. Jacobs, The Eleventh Amendment and Sovereign Immunity
(1972) (hereinafter Jacobs); Field, The Eleventh Amendment and
Other Sovereign Immunity Doctrines, 126 U.Pa.L.Rev. 515, 1203
(1978) (hereinafter Field); Nowak, The Scope of Congressional Power
to Create Causes of Action Against State Governments and the
History of the Eleventh and Fourteenth Amendments, 75 Colum.L.Rev.
1413 (1975); Orth, The Interpretation of the Eleventh Amendment,
1798-1908: A Case Study of Judicial Power, 1983 U.Ill.L.Rev. 423;
Shapiro, Wrong Turns: The Eleventh Amendment and the
Pennhurst Case, 98 Harv.L.Rev. 61 (1984); Engdahl,
Immunity and Accountability for Positive Governmental Wrongs, 44
U.Colo.L.Rev. 1 (1972).
[
Footnote 2/12]
Professor Jaffe has explained that the doctrine of sovereign
immunity in English practice prior to 1789 rarely was a bar to
effective relief for those who had legitimate claims against the
government.
See Jaffe, Suits Against Governments and
Officers: Sovereign Immunity, 77 Harv.L.Rev. 1 (1963). Judge
Gibbons' recent essay similarly points out that the doctrine of
sovereign immunity in the Colonies may also have had a very limited
scope.
See Gibbons, at 1895-1899.
[
Footnote 2/13]
See Fletcher, at 1045-1046; Jacobs, at 14-20.
[
Footnote 2/14]
As reported by the Committee on Detail, the original draft
provided that
"[t]he jurisdiction of the supreme tribunal shall extend . . .
to such other cases, as the national legislature may assign, as
involving the national peace and harmony, in the collection of the
revenue[,] in disputes between citizens of different states[,] in
disputes between a State & a Citizen or Citizens of another
State[,] in disputes between different states; and in disputes, in
which subjects or citizens of other countries are concerned[,]
& in Cases of Admiralty Jurisdiction."
(Angle brackets in source omitted.) 2 M. Farrand, Records of the
Federal Convention of 1787, pp. 146-147 (rev. ed.1937) (hereinafter
Farrand). This jurisdiction was to be appellate only, "except in .
. . those instances, in which the legislature shall make it
original."
Ibid. Interestingly, the Committee's draft of
Article III was in James Wilson's handwriting, but the
state-citizen diversity clause was written in the margin by another
Committee member, John Rutledge of South Carolina.
See
Putnam, How the Federal Courts were Given Admiralty Jurisdiction,
10 Cornell L.Q. 460, 467 (1925) (facsimile of original
document).
[
Footnote 2/15]
A number of possible grounds for state liability existed in
Virginia on the eve of that State's Ratification Convention. Aside
from the problem of debts owed by the State, the Treaty of Paris of
1783, 8 Stat. 80, between Britain and the United States included a
number of provisions that could subject the States to liability to
British creditors. Article V of the Treaty recognized completed
state confiscations, or escheats, of British property. Article VI,
however, prohibited escheats that had not yet been completed.
Virginia, like other States, had provided for the confiscation of
debts owed to British creditors or the discharge of such debts by
payment into the state treasury.
See Gibbons at 1903. The
Treaty thus potentially subjected Virginia to substantial liability
to British creditors trying to collect these debts, although
enforcement of the Treaty's provisions was largely impossible under
the Articles of Confederation.
See generally id. at
1899-1902, 1903-1908.
[
Footnote 2/16]
See also 3 J. Elliot, Debates on the Federal
Constitution 529 (1891) (hereinafter Elliot's Debates) (further
discussion of problem of land confiscation).
[
Footnote 2/17]
To interpret Marshall's remarks to endorse a principle of
wholesale state immunity from suit on any cause of action -- state
or federal -- in federal court would render them inconsistent with
the views he later expressed as Chief Justice.
See infra
at
473 U. S.
292-299.
[
Footnote 2/18]
Before the discussion of the state-citizen clause initiated by
Mason, Randolph had earlier made much the same point while
summarizing his views of the Constitution: "I admire that part
which forces Virginia to pay her debts." 3 Elliot's Debates, at
207.
[
Footnote 2/19]
For example the draft of the Constitution referred to the
Committee on Detail at the Convention had provided
"[t]hat the jurisdiction of the national Judiciary shall extend
to cases arising under laws passed by the general Legislature, and
to such other questions as involve the National peace and
harmony."
2 Farrand at 39.
[
Footnote 2/20]
It has been suggested that the remarks of the opponents of the
Constitution should be given less weight. However, the same
argument could be made concerning the remarks of Madison and
Marshall, especially in light of Marshall's later interpretation of
Article III as Chief Justice.
See infra, at
473 U.S. 295. Their fervent desire for
ratification could have led them to downplay the features of the
new document that were arousing controversy.
See Field at
534.
[
Footnote 2/21]
The only element of the debate that suggests a broader concern
is the repeated reference to the problem of enforcing a judgment
against the State. Of course, even these statements were made in
the context of the discussion of the state-citizen diversity
clause, and the participants in the debate may well not have had
their attention directed to the need, ultimately vindicated by the
Civil War, to enforce federal law against the States, regardless of
the means necessary for enforcement. In any event, the Court has
categorically rejected the difficulty of enforcing judgments
against the States as ground for permitting States to avoid their
obligations. It has long been established that a State may not
claim sovereign immunity when it is sued by another State under the
Article III State-State clause,
see South Dakota v. North
Carolina, 192 U. S. 286
(1904), or when it is sued by the United States.
See United
States v. Texas, 143 U. S. 621,
143 U. S.
642-646 (1892). Moreover, the prospective and injunctive
relief that is permitted in actions pleaded against a state
official,
see Edelman v. Jordan, 415 U.
S. 651 (1974), may raise enforcement problems as
difficult as those raised by a judgment for damages in a suit
against a State.
Cf. Cooper v. Aaron, 358 U. S.
1 (1958).
[
Footnote 2/22]
For discussion of the state-citizen clause in other conventions,
see Gibbons, at 1902-1903 (Pennsylvania), 1912-1914 (North
Carolina); Fletcher, at 1050-1051; Jacobs, at 27-40 (Pennsylvania).
In the Pennsylvania Convention, for instance, James Wilson approved
of the state-citizen clause that had been drafted in his own
Committee on Detail: "When a citizen has a controversy with another
state, there ought to be a tribunal where both parties may stand on
a just and equal footing." 2 Elliot's Debates at 491.
[
Footnote 2/23]
The essay cited here can also be found at 2 The Complete
Anti-Federalist 245 (H. Storing ed.1981). Professor Storing has
questioned its attribution to Richard Henry Lee.
Id. at
214-216.
[
Footnote 2/24]
See, e.g., J. Main, The Antifederalists 157 (1961)
(quoting 178 letter raising question whether state-citizen
diversity clause would not "expose every State to be sued in the
New Court, on their public securities holden by Citizens of other
States"); 13 Documentary History, at 434 (widely reprinted essay by
Federalist Tench Coxe) ("[W]hen a trial is to be had between the
citizens of any state and those of another, or the government of
another, the private citizen will not be obliged to go into a court
constituted by the state, with which, or with the citizens
of which,
his dispute is. He can appeal to a
disinterested federal court"); 14 Documentary History, at 72
(pro-Federalist pamphlet published in Philadelphia and reprinted
elsewhere) ("[States] will indeed have the privilege of oppressing
their own citizens by bad laws or bad administration; but
the moment the mischief extends beyond their own State, and begins
to affect the citizens of other States[,] strangers, or the
national welfare, -- the salutary controul of the supreme power
will check the evil, and restore
strength and security, as
well as
honesty and right, to the offending state").
[
Footnote 2/25]
Hamilton used the phrase "plan of the convention" frequently as
a synonym for the Constitution.
See The Federalist
Concordance 403-404 (Engeman, Erler, & Hofeller, eds.1980). In
No. 32, the discussion of taxation to which Hamilton adverted in
No. 81, Hamilton had said that,
"as the plan of the convention aims only at a partial Union or
consolidation, the State Governments would clearly retain all the
rights of sovereignty which they before had and which were not by
that act
exclusively delegated to the United States."
The Federalist No. 32, p. 200 (J. Cooke ed.1961) (emphasis in
original). The Constitution had not delegated to the National
Government the general power to define defenses to state law causes
of action; consequently, nothing in Article III abrogated state
sovereign immunity in state law causes of action in federal or
state courts. On the other hand, the Constitution
had
delegated to the National Government a series of enumerated powers,
and had made federal laws enacted pursuant thereto the supreme law
of the land. Therefore, the States had surrendered their immunity
from suit on federal causes of action when the Constitution was
ratified.
In No. 80, Hamilton discussed the need for the federal question
jurisdiction:
"What, for instance, would avail restrictions on the authority
of the state legislatures without some constitutional mode of
enforcing the observance of them? The states, by the plan of the
convention, are prohibited from doing a variety of things; some of
which are incompatible with the interests of the union, and others
with the principles of good government."
The Federalist No. 80, p. 350 (J. Cooke ed.1961). The
constitutional mode for enforcing the federal laws, according to
Hamilton, was the federal judiciary.
Ibid. Again, insofar
as the States have thus given up powers to the Federal Government
in the "plan of the convention," they are no longer full sovereigns
and may be subjected to suit.
[
Footnote 2/26]
A number of scholars have noted comments by Hamilton elsewhere
in The Federalist Papers that strongly suggest that he foresaw the
necessity for suits against States in federal court.
See
Fletcher at 1048; Gibbons at 1908-1912; Field at 534-535.
[
Footnote 2/27]
The view that the power of the federal courts under federal
question jurisdiction had to be congruent with the power of
Congress to legislate under Article I is strongly supported by
other writings of Hamilton, as well as by other comments made in
defense of Article III.
See, e.g., The Federalist, No. 80,
p. 535 (J. Cooke ed.1961) ("If there are such things as political
axioms, the propriety of the judicial power of a government being
co-extensive with its legislative may be ranked among the number");
3 Elliot's Debates, at 532 (remarks of Madison) ("With respect to
the laws of the Union, it is so necessary and expedient that the
judicial power should correspond with the legislative, that it has
not been objected to").
[
Footnote 2/28]
One final piece of evidence concerning the meaning of the
original Article III comes from the amendments proposed by the
various state ratification conventions. The New York Convention
submitted an amendment to the First Congress that
"nothing in the Constitution now under consideration contained
is to be construed to authorize any suit to be brought against any
state, in any manner whatever."
2 Elliot's Debates at 409. This suggests at least that the New
York delegates did not agree with Hamilton's reading of the
state-citizen diversity clause. Virginia, North Carolina, Rhode
Island, Massachusetts, and New Hampshire also proposed amendments
that would have modified or eliminated the state-citizen diversity
clause.
See Fletcher at 1051-1052. The felt need for such
amendments suggests that the delegates to these conventions did not
find such a limitation in Article III itself.
[
Footnote 2/29]
Indeed, recent scholarship seems unanimously to agree that the
weight of the evidence is against the Court's statement in
Hans. See Jacobs at 40; Field at 531; Gibbons at
1913-1914; Fletcher at 1054.
[
Footnote 2/30]
The First Judiciary Act itself may well suggest Congress'
understanding that States would be suable in federal court under
the state-citizen diversity clause. Although § 13 of the Act did
not differentiate between States as plaintiffs and States as
defendants, the same section provided that the Supreme Court
"shall have exclusively all such jurisdiction of suits or
proceedings against ambassadors . . . as a court of law can have or
exercise consistently with the law of nations."
If Congress had thought that States could not, or ought not, be
suable in federal court under the state-citizen diversity clause,
it easily could have provided that the Supreme Court shall exercise
such jurisdiction against a State "as a court can have or exercise
consistently with that state's law." In addition, elsewhere in the
Act, Congress assigned jurisdiction over cases in which the United
States was the
plaintiff. See § 9, 1 Stat. 77
(district court jurisdiction of "all suits at common law where the
United States sue" subject to jurisdictional amount); § 11, 1 Stat.
78 (circuit court jurisdiction of all civil suits where $500 or
more is in dispute "and the United States are plaintiffs, or
petitioners"). Congress exercised no such discrimination in
assigning jurisdiction in cases "between a state and citizens of
another state."
[
Footnote 2/31]
See Mathis, The Eleventh Amendment: Adoption and
Interpretation, 2 Ga.L.Rev. 207, 215-230 (1968) (discussing cases);
Jacobs at 41-47, 57-64 (same).
[
Footnote 2/32]
The precise facts of
Chisholm have been the subject of
some scholarly dispute.
Compare 1 C. Warren, The Supreme
Court in United States History 93, n. 1 (1922) (plaintiff in
Chisholm was executor asserting claim on behalf of estate
of British citizen),
with Mathis, 2 Ga.L.Rev. at 217-218
(plaintiff in
Chisholm was executor of estate of South
Carolina citizen). The traditional account, in which the plaintiff
was identified as acting on behalf of a British citizen, may
explain why the Eleventh Amendment modified the state-alien
diversity clause as well as the state-citizen diversity clause.
[
Footnote 2/33]
Most likely,
Chisholm could not have been brought
directly under the Contracts Clause of the Constitution. Prior to
Fletcher v.
Peck, 6 Cranch 87 (1810), it was not at all clear
that the Contracts Clause applied to contracts to which a State was
a party. Moreover, the case involved a simple breach of contract,
not a "law impairing the obligation of the contract" to which the
Clause would have applied.
See Shawnee Sewerage & Drainage
Co. v. Stearns, 220 U. S. 462,
220 U. S. 471
(1911);
Brown v. Colorado, 106 U. S.
95,
106 U. S. 98
(1882). Finally, it was certainly not clear at the time of
Chisholm that the Contracts Clause provided a plaintiff
with a private right of action for damages.
Chisholm was
thus a suit on a state law cause of action in assumpsit against the
State of Georgia pursuant to the state-citizen diversity
clause.
[
Footnote 2/34]
Justice Iredell added, in what he conceded to be dicta:
"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."
2 Dall. at
2 U. S. 449. He
emphasized, however, that he need not decide this broader
question:
"This 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 2/35]
The resolution was not reported in the Annals of Congress, but
was reported in contemporary newspaper accounts.
See
Gibbons at 1926, n. 186.
[
Footnote 2/36]
The case is unreported, but is discussed in 1 J. Goebel, History
of the Supreme Court of the United States 734-735 (1971).
[
Footnote 2/37]
For a more detailed explanation of the political situation
facing the Washington administration and the Congress at the time,
see Gibbons at 1927-1932.
[
Footnote 2/38]
The Amendment read in full:
"The Judicial power of the United States extends to all cases in
law and equity in which one of the United States is a party; but no
suit shall be prosecuted against one of the United States by
citizens of another State, or by citizens of subjects of a foreign
State, where the cause of action shall have arisen before the
ratification of this amendment."
[
Footnote 2/39]
See Jacobs at 67, nn. 95-99.
[
Footnote 2/40]
It might be argued that, because Congress rejected Senator
Gallatin's proposal, which would have exempted treaty-based causes
of action from the operation of the Amendment, Congress intended to
leave intact no part of the federal question jurisdiction that
would potentially have left the States open to suit. This argument,
however, is untenable. First, it ignores the language of the
Amendment. If Congress were generally concerned with suits against
States under
all Article III heads of jurisdiction, it
would have had no rational reason to direct the Eleventh Amendment
only against suits by noncitizens or foreigners. Second, Congress
may well have rejected Gallatin's proposal precisely because to
adopt that proposal would have implied some limitation on the
ability of the federal courts to hear nontreaty-based federal
question claims. Thus, Congress' rejection of the proposal may well
have been based on its desire to preserve the full contours of
Article III federal question jurisdiction, rather than on a desire
to limit it. Third, the federal courts had no general original
federal question jurisdiction under the First Judiciary Act,
although the Supreme Court did have substantial appellate federal
question jurisdiction over cases originating in state courts. In
refusing in the First Judiciary Act to grant original federal
question jurisdiction to the federal courts, Congress had evidently
decided that federal question cases, even those arising out of the
Treaty of Paris, should be heard in the first instance in state
court. In deciding to enact the Eleventh Amendment to overrule
Chisholm, Congress had decided that the state-citizen and
state-alien clauses ought not permit suits against States in
federal court. Given these two decisions, Congress had little
reason to make an exception to both decisions for suits that arose
out of the Treaty. Finally, the case of
Vassal v.
Massachusetts, in which a British Loyalist had brought a
challenge under the state-alien clause to the State's confiscation
of his property, had triggered a movement for a constitutional
convention.
See supra at
473 U. S. 284.
By rejecting the Gallatin proposal, which would have authorized the
Vassal suit, Congress no doubt acted in part to squelch
the movement for an open-ended constitutional convention.
[
Footnote 2/41]
When the Court is prepared to embark on a defensible
interpretation of the Eleventh Amendment consistent with its
history and purposes, the question whether the Amendment bars
federal question or admiralty suits by a noncitizen or alien
against a State would be open. At the current time, as the text
states, the commentators' arguments against this interpretation
seem to me quite plausible.
[
Footnote 2/42]
In any event, I find it much more plausible to leave the
construction of these words somewhat unclear than to leave the
construction of much of the Amendment a superfluity, as the Court's
construction would do.
[
Footnote 2/43]
The Judiciary Act of 1801, 2 Stat. 89, did grant general federal
question jurisdiction to the federal circuit courts, but that grant
was repealed one year later. 2 Stat. 132, 156 (1802).
[
Footnote 2/44]
Nor could a suit against a State be brought under diversity
jurisdiction, because a State is not a citizen of itself for such
purposes.
See Postal Telegraph Cable Co. v. Alabama,
155 U. S. 482
(1894).
[
Footnote 2/45]
Justice Washington explained the exclusion of admiralty
jurisdiction in part on the ground that admiralty proceedings are
often
in rem, and that a judgment could thus be enforced
without implicating the "delicate" question of how to execute a
judgment against a State.
United States v. Bright, 24 F.
Cas. at 1236. Although this concern echoed some of the difficulties
raised in the debate over ratification of the Constitution, the
difficulty of executing a judgment against a State was ultimately
rejected by the Court as a ground to expand state sovereign
immunity in federal court.
See supra at
473 U. S. 270,
n. 21.
[
Footnote 2/46]
In 1833, the Court dismissed an original action brought by
Madrazzo based on the same claim.
Ex parte
Madrazzo, 7 Pet. 627 (1833). The Court's
one-paragraph opinion apparently dismissed the case on Eleventh
Amendment grounds because it "is a mere personal suit against a
state to recover proceeds in its possession."
Id. at
32 U. S. 632.
This was the only case dismissed by the Supreme Court on Eleventh
Amendment grounds between
Hollingsworth v.
Virginia, 3 Dall. 378 (1798), and the Civil
War.
[
Footnote 2/47]
Justice Story cited
Peters, Bright, and
Madrazzo in support of his statement.
[
Footnote 2/48]
See Doremus v. Board of Education, 342 U.
S. 429 (1952) (Article III limits on federal
jurisdiction apply to appeal of case from New Jersey state
courts).
[
Footnote 2/49]
Cf. Smith v. Reeves, 178 U. S. 436,
178 U. S. 445
(1900) (State may consent to suit in its own courts "subject always
to the condition, arising out of the supremacy of the Constitution
of the United States and the laws made in pursuance thereof, that
the final judgment of the highest court of the State in any action
brought against it with its consent may be reviewed or reexamined,
as prescribed by the act of Congress, if it denies to the plaintiff
any right, title, privilege or immunity secured to him and
specially claimed under the Constitution or laws of the United
States").
[
Footnote 2/50]
The repetitions of this principle make the point unmistakably.
He states that the judicial department
"is authorized to decide all cases, of every description,
arising under the constitution or laws of the United States. From
this general grant of jurisdiction, no exception is made of those
cases in which a State may be a party."
6 Wheat. at
19 U. S.
382.
"We think a case arising under the constitution or laws of the
United States is cognizable in the courts of the Union, whoever may
be the parties to that case."
Id. at
19 U. S.
383.
"[W]e think that the judicial power, as originally given,
extends to all cases arising under the constitution or a law of the
United States, whoever may be the parties."
Id. at
19 U. S. 392.
It is worth noting that the Court has often given a broad reading
to Marshall's statements in the Virginia Ratification Convention,
interpreting those statements to express Marshall's view that a
constitutional doctrine of state sovereign immunity in federal
courts was an element of the original understanding of Article III.
See, e.g., Hans v. Louisiana, 134 U. S.
1 (1890);
Monaco v. Mississippi, 292 U.
S. 313,
292 U. S. 324
(1934). The Chief Justice's discussion in
Cohens, however,
demonstrates that it may be prudent to give his earlier statements
the less expansive interpretation suggested
supra, at
473 U. S.
267-268.
[
Footnote 2/51]
Marshall's statement is, of course, consistent with the view
that the Eleventh Amendment bars federal question jurisdiction over
suits that are prosecuted against States by noncitizens or aliens,
but does not bar federal jurisdiction over suits by citizens of the
State being sued. But it is flatly inconsistent with the Court's
current position that the Amendment, despite its language and
history, should be interpreted as constitutionalizing a broad
sovereign immunity principle. Like the discussion earlier in
Cohens, it evinces the Marshall Court's understanding that
the Eleventh Amendment was to be construed narrowly to accomplish
the purpose for which it was adopted. It is worth noting that, when
the troublesome case hypothesized in
Cohens -- in which a
writ of error was taken by a noncitizen of a State -- arose 10
years later, the Marshall Court reached the merits of the claim
without even discussing any possible Eleventh Amendment bar.
See Worcester v.
Georgia, 6 Pet. 515 (1832). Although the Court in
Worcester did not discuss the Eleventh Amendment issue,
the issue was raised by the plaintiff in error.
See id. at
31 U. S.
533-534.
[
Footnote 2/52]
This conclusion is in some tension with the Court's holding in
Governor of Georgia v.
Madrazo, 1 Pet. 110 (1828), discussed
supra, at
473 U. S.
292-293.
But see 1 Pet. at
26 U. S.
122-123. It has been suggested that the distinction
between the cases is that there was no cause of action available
under federal or admiralty law against the Governor personally in
Madrazo, while the contrary was the case here.
See Fletcher at 1086-1087.
[
Footnote 2/53]
For example, the Court today states that, in
Hans,
"the Court held that the [Eleventh] Amendment barred a citizen
from bringing a suit against his own State in federal court, even
though the express terms of the Amendment do not so provide."
Ante at
473 U. S.
238.
[
Footnote 2/54]
In
Ex parte New York, 256 U. S. 490
(1921), the Court even extended
Hans (or its view of
Hans) to admiralty jurisdiction, thus overruling Justice
Washington's 110-year-old holding that the Eleventh Amendment did
not apply to admiralty actions.
See United States v.
Bright, 24 F. Cas. 1232 (No. 14,647) (CC Pa. 1809), discussed
supra at
473 U. S.
292.
[
Footnote 2/55]
If
Hans was not a constitutional holding, however, its
use of the Madison, Marshall, and Hamilton comments would be
substantially more justifiable; the relevance of this material was
simply to show that the common law did not recognize a cause of
action on a debt against a sovereign. Since Congress had not
created any such action, the Court justifiably refused to do so
itself.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL,
and JUSTICE STEVENS join, dissenting.
I, too, dissent, and join JUSTICE BRENNAN's opinion. Its
exhaustive historical review and analysis demonstrate the Eleventh
Amendment error in which the Court today persists. As JUSTICE
BRENNAN shows, if
Hans v. Louisiana, 134 U. S.
1 (1890), is a constitutional holding, it then reads
into the Amendment words that are not there and that cannot
Page 473 U. S. 303
be reconciled with any principled view of congressional power;
JUSTICE BRENNAN is surely correct when he says,
ante at
473 U. S. 302,
that the case rests on "misconceived history and misguided logic."
Thus, the Court today compounds a longstanding constitutional
mistake. The shield against just legal obligations afforded the
States by the Court's prevailing construction of the Eleventh
Amendment as an "exemplification" of the rule of sovereign
immunity,
ante at
473 U. S. 239, n. 2, quoting
Ex parte New York,
256 U. S. 490,
256 U. S. 497
(1921), simply cannot be reconciled with the federal system
envisioned by our Basic Document and its Amendments.
Indeed, though of more mature vintage, the Court's Eleventh
Amendment cases spring from the same soil as the Tenth Amendment
jurisprudence recently abandoned in
Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.
S. 528 (1985). Both in its modern reading of
Hans,
supra, and in
National League of Cities v. Usery,
426 U. S. 833
(1976), the Court, in derogation of otherwise unquestioned
congressional power, gave broad scope to circumscribed language by
reference to principles of federalism said to inform that language.
* The intuition
underlying
Hans and its contemporary progeny is no truer
to the federal structure or to a proper view of congressional power
than was that underlying
National League of Cities.
But I would dissent from the Court's spare opinion and
predictable result on other grounds as well. There is no
Page 473 U. S. 304
need to expatiate on them here, where so much already has been
written. It suffices to say that I adhere to the views expressed in
the dissenting opinion in
Edelman v. Jordan, 415 U.
S. 651,
415 U. S. 688
(1974).
See also Florida Dept. of Health v. Florida Nursing
Home Assn., 450 U. S. 147,
450 U. S. 151
(1981) (dissenting statement). Thus, I would affirm the judgment
here on the ground that California, as a willing recipient of
federal funds under the Rehabilitation Act, consented to suit when
it accepted such assistance. And a fair reading of the statute and
its legislative history indicates for me that Congress produced the
Act in exercise of its power under § 5 of the Fourteenth Amendment,
and thereby abrogated any claim of immunity the State otherwise
might raise.
*
See Fry v. United States, 421 U.
S. 542,
421 U. S. 557
(1975) (dissenting opinion) ("As it was not the Eleventh Amendment,
by its terms, which justified the result in
Hans, it is
not the Tenth Amendment, by its terms, that prohibits congressional
action which sets a mandatory ceiling on the wages of all state
employees. Both Amendments are simply examples of the understanding
of those who drafted and ratified the Constitution that the States
were sovereign in many respects, and that, although their
legislative authority could be superseded by Congress in many areas
where Congress was competent to act, Congress was nonetheless not
free to deal with a State as if it were just another individual or
business enterprise subject to regulation").
JUSTICE STEVENS, dissenting.
Because my decision to join JUSTICE BRENNAN's dissent is a
departure from the opinion I expressed in
Florida Dept. of
Health v. Florida Nursing Home Assn., 450 U.
S. 147,
450 U. S. 151
(1981), a word of explanation is in order. As I then explained,
notwithstanding my belief that
Edelman v. Jordan,
415 U. S. 651
(1974), was incorrectly decided,
see 450 U.S. at
450 U. S. 151,
n. 2, I then concluded that the doctrine of
stare decisis
required that
Edelman be followed. Since then, however,
the Court has not felt constrained by
stare decisis in its
expansion of the protective mantle of sovereign immunity -- having
repudiated at least 28 cases in its decision in
Pennhurst State
School and Hospital v. Halderman, 465 U. S.
89,
465 U. S.
165-166, n. 50 (1984) (STEVENS, J., dissenting) -- and
additional study has made it abundantly clear that not only
Edelman, but
Hans v. Louisiana, 134 U. S.
1 (1890), as well, can properly be characterized as
"egregiously incorrect." 450 U.S. at
450 U. S. 153.
I am now persuaded that a fresh examination of the Court's Eleventh
Amendment jurisprudence will produce benefits that far outweigh
"the consequences of further unraveling the doctrine of
stare
decisis" in this area of the law.
Id. at
450 U. S.
155.