The judicial Power shall extend to ...Controversies...between a State and Citizens of another State ...and between a State...and foreign States, Citizens or Subjects.Article III, Section 2, Clause 1
Article III's provisions extending the federal judicial power "to Controversies between a State and Citizens of another State" and "between a State...and foreign States, Citizens or Subjects" are generally known as the Citizen-State Diversity Clauses. Although these clauses have a variety of applications, they have played a primary role in enduring controversies over the scope of state sovereign immunity in suits by private parties.
The Founding generation seems generally to have accepted the notion that the states enjoyed some form of sovereign immunity, derived from the common law, that shielded them against suits by private individuals. Article III's express provision for federal court jurisdiction over suits between individuals and state governments thus raised the possibility that ratification of the Constitution would override this common-law immunity. Some Framers, such as Edmund Randolph and James Wilson, seemed to embrace this possibility as a means for ensuring that state governments would honor their debts; Randolph, for example, asked, "Are we to say that we shall discard this government because it would make us all honest?" Anti-Federalists, on the other hand, opposed Article III based on the same expectation. George Mason stressed the threat of private lawsuits to a state's dignity, inquiring: "Is this state to be brought to the bar of justice like a delinquent individual?" Others stressed the practical consequences of state suability, given the financially precarious position of the states following the Revolutionary War. In particular, many feared that suits by private parties to enforce the states' war debts in federal courts might bankrupt the nascent state governments. The Anti-Federalist writer Brutus, for example, warned that Article III would "produce the utmost confusion, and in its progress, will crush the states beneath its weight."
James Madison, Alexander Hamilton, and other Federalists reacted to these concerns by insisting that Article III left the states' preexisting immunities intact. Madison explained that the Citizen-State Diversity Clauses were designed to allow state governments to come into federal court as plaintiffs, not to allow private citizens to overcome a state's immunity as defendant. And Hamilton acknowledged the states' fundamental immunity from such suits in The Federalist No. 81, stating that "[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent....[T]he exemption...is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States."
The Supreme Court rejected Madison's and Hamilton's reading, however, in Chisholm v. Georgia (1793). That case involved a suit by a South Carolina citizen to recover Revolutionary War debts owed by the State of Georgia. The State of Georgia insisted that it was immune from such suits, but the Court upheld its jurisdiction. While Justice Wilson rejected the very notion of state sovereign immunity on the broad ground that it was antithetical to republican government, Justices John Jay, John Blair, and William Cushing relied primarily on the Citizen-State Diversity Clauses. They argued that those clauses had in fact done precisely what the Anti-Federalists feared—that is, overridden the common-law immunity that the states would otherwise have enjoyed in a suit by a private individual. Only Justice James Iredell dissented, primarily on the ground that Congress had not passed any statute that clearly authorized private suits against state governments in the federal courts.
The Court would later say, in Hans v. State of Louisiana (1890), that Chisholm "created such a shock of surprise throughout the country that, at the first meeting of Congress thereafter, the Eleventh Amendment to the Constitution was almost unanimously proposed, and was in due course adopted by the legislatures of the States." That Amendment provided that "[t]he 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." Several commentators have noted the extent to which the latter part of the amendment tracks the language of the Citizen-State Diversity Clause; the "diversity theory" of the amendment thus infers that it was intended simply to "repeal" the Citizen-State Diversity Clauses in all cases in which a nonconsenting state is the defendant. Others have advanced somewhat different interpretations of the amendment's text and intent; the important point for present purposes is simply that the proper reading of the Eleventh Amendment—and the scope of state sovereign immunity generally—remains bound up with disputes about what the Framers intended to accomplish with the Citizen-State Diversity Clauses.
- Ernest A. Young
- Alston & Bird Professor of Law
- Duke University School of Law