What is the 11th Amendment?

The 11th Amendment reads: '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.' Congress proposed the amendment on March 4, 1794, and it was ratified on February 7, 1795. The amendment was a direct legislative reversal of the Supreme Court's first major constitutional decision, Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793). In Chisholm, Alexander Chisholm, executor of the estate of a South Carolina merchant who had supplied goods to Georgia during the Revolutionary War, sued Georgia in the Supreme Court's original jurisdiction to recover payment. A 4-1 majority held that Article III's grant of judicial power extending to controversies 'between a State and Citizens of another State' meant what it said -- Georgia could be sued by an out-of-state citizen. The decision caused immediate alarm in state capitals: if states could be haled into federal court by private citizens, they might face judgment for their Revolutionary War debts. Congress moved quickly. Within a year of the Chisholm decision, it proposed the 11th Amendment to repudiate the ruling, and the states ratified it before the end of the following year.

The text of the 11th Amendment bars suits against states brought by citizens of other states or foreign citizens. It does not, by its plain terms, bar a state's own citizens from suing their own state in federal court. But the Supreme Court unanimously held in Hans v. Louisiana, 134 U.S. 1 (1890), that the amendment should be read as expressing a broader principle: no citizen -- whether from another state or from the forum state itself -- may sue a state in federal court without the state's consent. Hans was a Louisiana citizen who held Louisiana bonds; the state refused to pay, and Hans sued in federal court under the federal constitutional contracts clause. The Court, through Justice Bradley, held that sovereign immunity is a background principle of the constitutional structure, not merely the specific rule of the 11th Amendment's text. Although the amendment's text did not cover the Hans situation, the Court inferred that the Framers could not have intended to create a regime in which a state was more exposed to suit by its own citizens than by out-of-state citizens, especially given how quickly the country had moved to overturn Chisholm. Hans has been reaffirmed many times and remains the foundation of the modern sovereign immunity doctrine: states enjoy immunity from private suits in federal court regardless of the citizenship of the plaintiff.

The immunity is not absolute. The most important exception in practice is the Ex parte Young doctrine. In Ex parte Young, 209 U.S. 123 (1908), railroad shareholders sued Minnesota Attorney General Edward Young to enjoin him from enforcing a state railroad rate law they claimed violated the 14th Amendment. Young argued that sovereign immunity barred the suit. The Supreme Court held -- with only Justice Harlan dissenting -- that when a state officer acts in violation of federal constitutional or statutory law, that officer is stripped of state authority and may be sued as an individual for prospective injunctive relief. The fiction is transparent: the state itself is not formally named, but the injunction compels the officer to act in conformity with federal law going forward. Ex parte Young is the doctrinal mechanism through which federal courts enforce constitutional limits on state power: plaintiffs seeking to stop ongoing state violations of federal rights sue the responsible state officer by name. The doctrine permits only prospective relief -- an order requiring the officer to stop doing something or to start doing something going forward. It does not permit a federal court to order a state to pay money damages from the state treasury (that would effectively be a suit against the state itself, barred by the 11th Amendment).

The question of whether Congress may override state sovereign immunity by statute has generated a substantial body of doctrine. The controlling rule has two parts. First, Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), held unanimously that Congress may abrogate state sovereign immunity when acting under Section 5 of the 14th Amendment -- the provision empowering Congress to enforce the amendment by appropriate legislation. The 14th Amendment was specifically designed to restrict state power; it would be anomalous if states could invoke sovereign immunity as a shield against congressional enforcement of those very restrictions. Title VII of the Civil Rights Act of 1964 (as amended) is the paradigm: it validly abrogates state sovereign immunity because Congress enacted it in part under Section 5 and it addresses equal protection violations. Second, Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), held 5-4 that Congress may NOT abrogate state sovereign immunity when acting under Article I powers -- including the Commerce Clause, the Indian Commerce Clause, the Patent and Copyright Clause, or any other Article I grant. The Indian Gaming Regulatory Act (IGRA), passed under the Indian Commerce Clause, purported to authorize tribes to sue states in federal court; the Court struck that provision. The rule of Seminole Tribe means that the validity of a congressional abrogation depends entirely on whether it rests on Section 5 of the 14th Amendment versus any other constitutional grant. The one recognized Article I exception is bankruptcy: the Court held in Central Virginia Community College v. Katz, 546 U.S. 356 (2006), 5-4, that the bankruptcy power in Article I, Section 8, Clause 4 abrogates state sovereign immunity because the original Constitution contemplated uniform bankruptcy laws that necessarily applied to states, and state sovereign immunity from bankruptcy proceedings would defeat the uniformity the Framers intended. The Section 5 abrogation cases have produced important limitations. In Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), the Court held 5-4 that the Age Discrimination in Employment Act (ADEA) does not validly abrogate state sovereign immunity: age is only a rational basis classification under the 14th Amendment, so the ADEA goes beyond what is congruent and proportional to any 14th Amendment violation -- Congress cannot leverage a low-scrutiny category to impose sweeping obligations and strip immunity. Similarly, Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), held 5-4 that Title I of the Americans with Disabilities Act (ADA) does not validly abrogate immunity: disability is also a rational basis classification, and Congress did not identify a sufficient legislative record of unconstitutional state employment discrimination against people with disabilities. The contrast is Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), 6-3, in which the Court upheld the FMLA's family-care leave provision as a valid Section 5 abrogation because it addresses sex discrimination -- a heightened-scrutiny category -- and Congress had documented a pattern of discriminatory state leave policies rooted in gender stereotyping.

For the 2028 presidential election, the 11th Amendment is relevant in at least three ways. First, it determines the remedies available to state workers who face discrimination. Title VII sex-discrimination claims against state employers are fully litigable in federal court because of valid Section 5 abrogation; ADEA age-discrimination claims are not, following Kimel; ADA Title I disability claims are not, following Garrett. Candidates' positions on the ADA, labor law, and the scope of federal anti-discrimination protections intersect with the 11th Amendment question of whether enforcement can reach state employers. Second, the Ex parte Young doctrine is the mechanism by which federal courts issue injunctions against state enforcement of laws that violate federal rights -- reproductive rights cases, voting rights cases, immigration detainer disputes, and other constitutional litigation all rely on the ability to name a state official as defendant and seek prospective relief. The composition of the Supreme Court shapes the scope of that doctrine; judicial appointments are therefore directly relevant. Third, the 5-4 divisions in Seminole Tribe, Alden, Kimel, and Garrett show that the current sovereign immunity doctrine is not settled beyond dispute: a different Court composition could revisit the extension of immunity beyond the 11th Amendment's text or recalibrate the congruence-and-proportionality test for Section 5 abrogation. The 2028 election will determine which president makes future Supreme Court appointments.