Eleventh Amendment: Postbellum Doctrine

Eleventh Amendment:

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.

Until the period following the Civil War, Chief Justice Marshall’s understanding of the Amendment generally prevailed. The aftermath of that conflict, however, presented the Court occasion to consider anew the circumstances and import of the Amendment's adoption. Following the war, Congress effectively gave the federal courts general federal question jurisdiction,1 at a time when a large number of states in the South were defaulting on their revenue bonds in violation of the Contract Clause of the Constitution.2 As bondholders consequently sought relief in federal courts, the Supreme Court gradually worked itself into the position of holding that the Eleventh Amendment, or, more properly speaking, the principles “of which the Amendment is but an exemplification,” 3 is a bar not only of suits against a state by citizens of other states, but also of suits brought by citizens of that state itself.4

Footnotes

1

Act of March 3, 1875, ch. 137, § 1, 18 Stat. 470. See discussion under “Development of Federal Question Jurisdiction,” supra.

2

See, e.g., Orth, The Eleventh Amendment and the North Carolina State Debt, 59 N.C. L. Rev. 747 (1981); Orth, The Fair Fame and Name of Louisiana: The Eleventh Amendment and the End of Reconstruction, 2 Tul. Law. 2 (1980); Orth, The Virginia State Debt and the Judicial Power of the United States, in Ambivalent Legacy: A Legal History of the South 106 (D. Bodenhamer & J. Ely eds., 1983).

3

Ex parte New York (No. 1), 256 U.S. 490, 497 (1921).

4

E.g., In re Ayers, 123 U.S. 443 (1887); Hagood v. Southern, 117 U.S. 52 (1886); The Virginia Coupon Cases, 114 U.S. 270 (1885); Cunningham v. Macon & Brunswick R.R., 109 U.S. 446 (1883); Louisiana v. Jumel, 107 U.S. 711 (1882). In Antoni v. Greenhow, 107 U.S. 769, 783 (1883), three concurring Justices propounded the broader reading of the Amendment that soon prevailed.