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The Eleventh Amendment to the U.S. Constitution deals with state sovereign immunity, in which a state cannot be sued without its consent.
The amendment prohibits the federal courts from hearing certain lawsuits against states.
Further, state courts can even refuse hearing certain cases against the state, if those suits are based on federal law.
The forerunner to the Constitution, the Articles of Confederation, allowed Congress the power to regulate states, but gave no power to enforce these commands.
Not surprisingly, states often ignored Congress' directives.
As the Constitution was being drafted, developed, and debated, one plan proposed giving Congress the power to use military force to coerce states into complying with federal commands.
This was widely criticized on the grounds that it could lead to a civil war, and therefore was not adopted.
Instead, the Constitution gave Congress the power to regulate individuals (rather than states), thereby enabling the federal government to enforce its laws and hold individuals accountable without challenging states directly.
In ratifying the Constitution, a major issue was raised by many states who thought that states would be vulnerable to litigation from disputes with citizens.
Through much debate and discussion, the founders reassured their members that state sovereignty was implied and it was understood that individuals would not be able to sue states.
However, in 1793, Chisholm v. Georgia, a citizen of South Carolina sued Georgia for unpaid debts incurred during the War of Independence.
Georgia claimed that federal courts were not allowed to hear suits against states, and refused to appear before the Supreme Court.
In 1793, the Supreme Court ruled, by a four-to-one vote, that Chisholm's suit against Georgia could proceed in federal court.
As there were several other pending suits against various states, this would have opened the door for those suits to also proceed.
In response, the 11th Amendment was quickly drafted to reassert the founders' original intention that states could not be sued by citizens.
It 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."
While this affirms a state's sovereign immunity, this does not mean all state actions are protected. State sovereign immunity does not extend to counties, cities, or towns within a state.
And because this 11th Amendment applies to states and not their subdivision, it does not automatically extend immunity to state agencies.
A state agency that wishes to claim state sovereign immunity must establish that it is acting as an arm of the state.
State agencies have successfully invoked the 11th Amendment in order to protect their state's treasury from liability that - without protection- would have resulted in a similar outcome as a judgment against the State itself, where bankruptcy or insolvency of the state could be the consequence.
In summary, the general rule is that private citizens and groups may not sue a state in federal court due to state sovereign immunity.
A state may consent to a private lawsuit in federal court, and Congress may also abrogate, that is to take away, a state's sovereign immunity.
However, private citizens generally may not sue their state or another state in federal court.
Betsy Cook is a member of Living Democracy: Engaging Citizens, a local citizen group.
Our mission is to inform and educate the Mid-Ohio Valley about how government works on the local, state, and federal levels and how citizens can be involved to make our democracy work.
Join us the third Monday of each month at 3:30 in the Armory.
Check out livingdemocracymov@gmail.com and facebook/speak foryourselfvote and Youtube channel@Living Democracy