State Sovereign Immunity, Ex Parte Young

[A18]

Ex Parte Young, 209 U.S. 123 (1908)

Sound or unsound?

[Emsworth]

To explain the facts of the case:

This case involved a Minnesota state official who allegedly violated the Fourteenth Amendment's due process clause. When taken to court, he asserted that he was immune from suit because was an agent of the state. If he was a state actor, then he was indeed immune from suit (according to precedent). If he was not a state actor, then he was not immune from suit, but he was not guilty of violating the Fourteenth Amendment either. Of course, the Fourteenth Amendment only restricts the actions of the states, not of private persons.

There was, therefore, a kind of legal Catch-22. If Young was not a state actor, then he did not violate the Constitution. If he was a state actor, then he could not be sued for violating the Constitution. The Supreme Court solved this problem by holding that Young was a state actor for Fourteenth Amendment purposes, but not for sovereign immunity purposes.

The ruling was representative of the Supreme Court's arcane sovereign immunity jurisprudence. The rule fashioned in Ex Parte Young--that an individual can be considered an agent of the state for Fourteenth Amendment purposes, but not for Eleventh Amendment purposes--is a singularly unfathomable and illogical one.

The whole doctrine of state sovereign immunity should be overruled. Instead, the courts should simply adhere the strict, limited, and narrow boundaries prescribed by the Eleventh Amendment.

[A18]

Sovereign immunity does not flow from the Eleventh Amendment. The Eleventh Amendment, by its own terms, merely patches a hole in the preexisting immunity states had from all suits created by the Supreme Court's outlandish decision in Chisholm v. Georgia.

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.

They key words there are "shall not be construed," indicating the amendment was intended to reverse a prior misconception.

To reverse a tradition deeply rooted in our nation's history, and embraced by all the most prominent founding figures, would be absolutely lawless. The Constitution would have never been ratified if the states were to be stripped of their sovereignty except as expressly provided by the Constitution itself.

[Emsworth]

To reverse a tradition deeply rooted in our nation's history, and embraced by all the most prominent founding figures, would be absolutely lawless.

Such a tradition does not seem to have been discovered by the Supreme Court until 1890, when it decided Hans v. Louisiana.

A few individuals did assert that their view that states were immune from suit, but this was in no way indicative of the general consensus. The original understanding, if anything, seems to be against rather than in favor of the doctrine of sovereign immunity in cases arising under the Constitution, under federal law, or under treaties. In cases reaching the federal courts due to diversity jurisdiction, it could perhaps be argued that the states had sovereign immunity in the first place, because they were being sued under their own laws rather than federal law. But this consideration obviously does not arise when a state is being sued under federal law rather than its own law.

For example, John Marshall maintained in Cohens v. Virginia:

[T]he sovereignty of the states is surrendered, in many instances ... to maintain the principles established in the constitution. The maintenance of these principles in their purity, is certainly among the great duties of the government. One of the instruments by which this duty may be peaceably performed, is the judicial department. It 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 ...

[A]re we at liberty to insert in this general grant, an exception of those cases in which a state may be a party? Will the spirit of the constitution justify this attempt to control its words? We think it will not. We think a case arising under the constitution or laws of the United States, is cognizable in the courts of the Union, whoever may be the parties to that case ...

[T]he judicial power was extended [by the Constitution] to all cases arising under the constitution or laws of the United States, without respect to parties.

[A18]

Yeah, so after the Constitution was ratified, a few Federalist extremists flip-flopped. Not really a big surprise.

One of the most potent objections to the Constitution was that it would strip states of sovereign immunity. The Federalists stated in unequivocal terms that this was not the case. That's why we're living under the Constitution today.

[Emsworth]

I would not accept the doctrine of state sovereign immunity merely on the basis of the statements of a few Framers, when the text of the Constitution does not support these remarks. There is nothing whatsoever in the Constitution--not one clause--that would even suggest that states are immune from suit. Every indication of the text is, on the contrary, that no such immunity exists.

The views of some Framers (which are incidentally contradicted by the views of some other Framers) cannot overrule the plain text of the Constitution. As Justice Story writes:

"[C]ontemporary interpretation must be resorted to with much qualification and reserve ... Opposite interpretations, and different explanations of different provisions, may well be presumed to have been presented in different bodies, to remove local objections, or to win local favour ...

"Contemporary construction is properly resorted to, to illustrate, and confirm the text, to explain a doubtful phrase, or to expound an obscure clause ... It can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries."

[A18]

Text is not rigid and exact: it is understood by reasonable construction. Should we say that, because the text itself does nothing to indicate that slander is exempt, the First Amendment protects this form of speech?

We are not talking about just a few framers. We are talking about the consensus view, and the only reason the Constitution was ratified in the first place. The historical record is quite clear on this: the founding generation understood sovereign immunity is an implicit truth. See the state ratifying conventions.

[Emsworth]

The judicial power clause of Article III is quite specific and plain, unlike vague and nebulous phrases such as "freedom of speech." Any attempt to resort to the views of some Framers to narrow the obvious boundaries of the text would violate the rules of construction and interpretation.

Firstly, I would consider the notion that sovereign immunity can be directly deduced from the text. The relevant part of the Constitution is:

"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 ... and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." (Article III, Section 2, Clause 1)

The Constitution is quite clear that the judicial power extends to all cases arising under federal law. No exception is made for cases in which a state is a defendant. Such an exception cannot be inferred, either; it would involve maintaining the view that "all" does not really mean "all."

Furthermore, the Constitution extends jurisdiction to controversies "between a State and Citizens of another State ... and foreign States, Citizens or Subjects." It has been contended that this language applies only where a state is a plaintiff, not when it is a defendant. Again, however, no such limitation appears anywhere in the text of the Constitution. A controversy between A and B is a controversy between B and A; the mere fact that the state was named first in the Constitution's text cannot be sufficient to conclude that states may bring suits against citizens, but not vice versa.

The text, if plainly understood, does not furnish support for the doctrine of sovereign immunity.

Secondly, it can be argued that sovereign immunity belongs to the states inherently, rather than by a specific constitutional grant.

The doctrine that the Crown cannot be sued in the courts of law is well-established. Sir William Blackstone explains this view as follows:

"[N]o suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him. For all jurisidiction implies superiority of power."

Needless to say, this justification does not apply in the United States. There is an authority superior to the states: the federal government. It could, I suppose, be argued that the federal government is immune from suit, but the logic underlying such an argument simply cannot extend to the states. 

Indeed, view that states inherently possess sovereign immunity is defeated by the part of the Constitution that extends the judicial power to "Controversies between two or more States." As Justice Wilson once asked, "Can the most consummate degree of professional ingenuity devise a mode by which this 'controversy between two states' can be brought before a court of law, and yet neither of those states be a defendant?" If the federal courts can take jurisdiction of a controversy between two states, then the assertion that states possess sovereign immunity makes very little sense. If a state is completely "sovereign," then it would logically possess immunity from all suits, not just some.

Thus, the inherent power argument must fail.

Finally, I would turn to the view that there was a "consensus" among the Framers that the states were immune from suit. This is, I think, an inaccurate position to take.

For example, at the Virginia Ratification Convention, Edmund Randolph (who previously attended the Constitutional Convention, and supported ratification) remarked:

"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 defendant, is taken away by the words where a state shall be a party. ... 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?"

Some Framers expressed the view that states could not be sued under the diversity clauses of Article III. Diversity cases are brought not under federal law, but under state law. It is perfectly logical to maintain that states are constitutionally immune from suits under their own law, and many Framers did hold this view. However, I do not know of a signle Framer who unequivocally expressed the view that states were immune from suits brought under federal law as well. In fact, every indication seems to be that, among supporters of the doctrine of state immunity, such immunity was limited to diversity cases alone, never to cases brought under federal law.

[A18]

I never made the first argument, so I'll ignore that portion of your post.

Your second point is completely and absolutely irrelevant. There has never been a creature like the United States before: the English common law has nothing to say about our federalist system.

Although you try to rewrite history, to invent a new original understanding, your "evidence" is unpersuasive.

Under the Articles of Confederation, too, the sovereignty of the states was incomplete, and yet no one challenged their immunity from suit.

All leading proponents of ratification assured voters that the proposed constitution would not negate the sovereign immunity of the states.

The only two state conventions that explicitly addressed the issue are, to my knowledge, New York and Rhode Island.

The New York Convention "declare[d] and ma[d]e known" its understanding "[t]hat the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state."

The Rhode Island Convention proclaimed that, "It is declared by the Convention, that the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state."

When the Court took your view in Chisholm v. Georgia, the states responded with outrage. The Massachusetts Legislature denounced the decision as "repugnant to the first principles of a federal government," and called upon the state's congressmen to take all necessary steps to "remove any clause or article of the Constitution, which can be construed to imply or justify a decision, that, a State is compellable to answer in any suit by an individual or individuals in any Court of the United States."

Georgia went a "bit" further. Its House of Representatives passed a bill providing that anyone attempting to enforce the Chisholm  decision would be "guilty of felony and shall suffer death, without benefit of clergy, by being hanged."

The Chrisholm majority failed to address either the practice or the understanding that prevailed in the states at the time the Constitution was adopted. Second, the Chrisholm opinions themselves reveal an expectation that the decision would be unpopular. What does that tell you about the original understanding?

Also, two members of the majority asserted that the United States might still be immune from suit despite Article III's grant of jurisdiction over "Controversies to which the United States shall be a Party."

The text and history of the Eleventh Amendment also suggest that Congress acted to restore rather than change the original constitution design. The text "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..." was rejected in favor of "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."

So the Eleventh Amendment overruled the Court, rather than redefine Article III jurisdiction.

[Emsworth]

Despite the vehement utterances of the states, Congress passed a very narrow version of what is now the Eleventh Amendment. The specifically stated that 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." This is an exceedingly peculiar means of enshrining a broad principle of sovereign immunity. Congress could very easily have stated that states are immune from suit in all cases, but it chose not to do so. In fact, on February 19, 1793, a member of the House proposed a different, broad version of the amendment, that would have accomplished this goal; however, it was rejected.

The "shall not be construed" language is merely an indication that the states were supposed to be immune, even under the original Constitution, in diversity cases. There is no indication that they were supposed to be immune in cases under federal law as well.

The judiciary at the time certainly read the Constitution and the Amendment in the manner I have suggested. Thus, in U.S. v. Bright, Justice Washington held that states were subject to suits at admiralty, because only suits at law and equity were within the scope of the amendment. Justice Story confirms this view in his Commentaries. Chief Justice Marshall took a similar position, as I have indicated before.

[A18]

As I said, the amendment patched an artificial hole in state sovereign immunity; it did not define its scope.

All you have established is that some members of the founding generation disagreed with the claims of Hamilton, Iredell, Madison, and Marshall, as well as all the state conventions to deal with the matter.

The events leading up to the Eleventh Amendment, however, make it quite apparent that sovereign immunity was part of the original understanding.

You must be logged in to read this quote.

This conflicts with your 'strict,' 'textual' reading.

[Emsworth]

(Note: Please excuse the tedium in this reply.)

The argument for immunity in diversity cases is this: A state is normally immune from suit in its own courts. In other words, immunity is a defense against suits under state law. When federal courts decide diversity cases, they apply not federal law but state law. Thus, if the immunity defense is valid under state law in the state courts, it should be equally valid in the federal courts as well.

The fear of many individuals was that states would be sued under their own laws in federal courts, and would be unable to assert immunity. A curious dichotomy would arise: under the same laws, a state would be able to assert immunity against its own citizens, but not against citizens of other states.

In particular, states were able to avoid paying debts to their own citizens, because suits for debt were stopped by sovereign immunity. However, a similar protection might not have been enjoyed with regard to debts owed to citizens of other states.

The assurances of the proponents of ratification were entirely concerned with the fear of states being sued under their own laws. I do not believe that there is a single, unequivocal indication that state immunity applied to cases brought under federal law as well (because the above-stated considerations do not arise).

All you have established is that some members of the founding generation disagreed with the claims of Hamilton, Iredell, Madison, and Marshall, as well as all the state conventions to deal with the matter.

The courts have often relied on Federalist No. 81 (by Hamilton) to justify this doctrine. However, I would argue that a careful reading of this document reveals Hamilton's view that immunity applied only in diversity cases:

"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. [...]

"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 of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. 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."

Hamilton is (quite clearly) speaking with regard to diversity cases arising under state law; the law of debts is, as we all know, a state subject. There is no indication that Hamilton believed that immunity applies to purely federal cases as well. In fact, Federalist No. 80 seems to directly contradict the view that the states are immune in such cases:

"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 imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. This power must either be a direct negative on the State laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union. There is no third course that I can imagine. The latter appears to have been thought by the convention preferable to the former, and, I presume, will be most agreeable to the States."

Here, Hamilton seems to contemplate federal courts deciding cases arising under federal law, even when the states are involved.

Iredell did not argue in Chisholm that states were immune from suit. His dissent was based only on the idea that federal courts not entitled to grant a writ of assumpsit.

Madison's remarks at the Virginia Convention were:

"[J]urisdiction 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."

Taken literally, Madison's second statement might justify the view that an individual cannot call a state to court under any circumstance. However, these remarks as a whole seem to be confined to "controversies between a state and citizens of another state," i.e., diversity cases only. This is not, perhaps, the most convincing argument to make, but the next one (with regard to Marshall) is, I hope, more persuasive.

(Continued in next post)

[Emsworth]

Marshall said at the same convention:

"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. [...] 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."

It is obvious that Marshall is only speaking about diversity cases, not federal law cases. Marshall's own words, from later opinions, clearly indicate that he did not believe that immunity extended to cases arising under federal law:

"[The Supreme Court] 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. When we consider the [...] the nature of our constitution; the subordination of the State governments to that constitution; the great purpose for which jurisdiction over all cases arising under the constitution and laws of the United States, is confided to the judicial department; are we at liberty to insert in this general grant, an exception of those cases in which a state may be a party? Will the spirit of the constitution justify this attempt to control its words? We think it will not. We think a case arising under the constitution or laws of the United States, is cognizable in the courts of the Union, whoever may be the parties to that case."

I will admit that the New York Convention seems to have disagreed with my view. However, the declarations of the Convention seem less like declarations per se, and more like suggestions for amendment. For example, the same list of declarations includes the suggestion that "the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state."

The Convention did make a few statements with regard to the construction of the Constitution. However, even these statements seem more like suggestions than declarations. For instance, the Convention proclaimed that "no treaty is to be construed so to operate as to alter the Constitution of any state." It is rather difficult to reconcile this declaration with the supremacy clause, which is quite clear that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Are constitutions that conflict with treaties (but not state laws that conflict with treaties) to gain an exemption from the supremacy clause, merely because the New York Convention suggested it?

I would, therefore, not be inclined to pay too much heed to the New York Convention's mere suggestions. 

Next is the Rhode Island Convention's instrument of ratification:

"It is declared by the Convention, that the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state; but, to remove all doubts or controversies respecting the same, that it be especially expressed, as a part of the Constitution of the United States, that Congress shall not, directly or indirectly, either by themselves or through the judiciary, interfere with any one of the states, in the redemption of paper money already emitted, and now in circulation, or in liquidating and discharging the public securities of any one state; that each and every state shall have the exclusive right of making such laws and regulations for the before-mentioned purpose as they shall think proper."

Thus, in addition to making a declaration about the judicial power, the Rhode Island Convention suggested an amendment to remedy all doubt relating to that declaration. But what does the amendment say? Not that states should be immune from suit in all cases whatsoever. No, it suggests that the federal government should not interfere with state laws on debt. It would seem to me, therefore, that the declaration pertains to cases brought under state law alone; it is at best equivocal as to cases brought under federal law.


At the North Carolina Convention, William Davie said:

"It appears to me that the judiciary ought to be competent to the decision of any question arising out of the Constitution itself. [...] [T]he Constitution might be violated with impunity, if there were no power in the general government to correct and counteract such laws. This great object can only be safely and completely obtained by the instrumentality of the federal judiciary. Would not Virginia, who has raised many thousand pounds out of our citizens by her imposts, still avail herself of the same advantage if there were no constitutional power to counteract her regulations? If cases arising under the Constitution were left to her own courts, might she not still continue the same practices? But we are now to look for justice to the controlling power of the judiciary of the United States."

Davie suggests quite clearly that states would not enjoy immunity in cases arising under federal law. Similar views were expressed in the Pennsylvania Convention by James Wilson.

It should also be noted that the North Carolina and Virginia Conventions both proposed the deletion of the "Controversies ... between a State and Citizens of another State" language from the Constitution. This was probably because they believed that their immunity from suit was insecure. At the very least, this indicates that two conventions had doubts about the extent of sovereign immunity under Article III. The original understanding was by no means crystal-clear.

Thus, a few individuals expressed the view that states enjoyed immunity in diversity cases, while others indicated that no such immunity existed. This issue, however, was put to rest by the Eleventh Amendment.

On the other hand, there seems to be no indication that the states would enjoy immunity in cases arising under federal law as well. On the contrary, the indications of Hamilton, Marshall, and others seem to be that the exact opposite was the case.

[A18]

Wilson had a startlingly nationalistic interpretation of the Constitution. He does not represent the mainstream.

Although it is true the Framers were dealing with diversity jurisdiction, that fact is, taken out of context, greatly misleading. At the time the Constitution was written, it was largely unthinkable that Congress could make a law that would be binding on the states under any of its enumerated powers.

With regard to Davie's comment, it is quite obvious that a state law, violating the Constitution, may be overturned on appeal to the Supreme Court. That is not at issue here.

[Emsworth]

Although it is true the Framers were dealing with diversity jurisdiction, that fact is, taken out of context, greatly misleading. At the time the Constitution was written, it was largely unthinkable that Congress could make a law that would be binding on the states under any of its enumerated powers.

I would respectfully disagree with that view. The Constitution specifically provides that federal law is the supreme law of the land, anything in the laws of the states to the contrary notwithstanding. The implication must be that federal laws are binding on the states.

My view is this: When a state law violates the Constitution, the federal courts may properly take cognizance of any suit that results, regardless of whether the state consents. The Constitution does not, however, authorize federal courts to award damages whenever one of its provisions have been violated. The only remedy available is invalidation of the law. (Of course, under certain constitutional amendments, thirteenth and beyond, Congress may make additional remedies available.)

[A18]

Binding on the state governments themselves. As in, the Americans with Disabilities Act.

If a state law is violated, the state should be the plaintiff, and it can be appealed to the Supreme Court.

[Emsworth]

If a state law is violated, the state should be the plaintiff, and it can be appealed to the Supreme Court.

What happens if (for example) the government seizes someone's property without a judicial proceeding?

[A18]

Congress could abrogate the immunity under the Enforcement Clause of the Fourteenth Amendment.

[A18]

Actually, the Supreme Court has consistently held that the Privileges or Immunities Clause encompasses all those "privileges" and "immunities" created by valid federal laws, pursuant to Congress's Article I powers.

Since Congress can abrogate a state's sovereign immunity in order to enforce the Fourteenth Amendment, this might be an argument worth raising in a future case.