Constitutional Law Article

The Eleventh Amendment and the Nature of the Union

Vol. 123 No. 8 Leading theories of the Eleventh Amendment start from the premise that its text makes no sense. These theories regard the Amendment as either underinclusive, overinclusive, or an incoherent compromise because it prohibits federal courts from hearing “any suit” against a state by out-of-state citizens, but does not prohibit suits against a state by its own citizens. Two of these theories would either expand or contract the immunity conferred by the text of the Amendment in order to avoid this absurd or anomalous result. This Article suggests that the Eleventh Amendment made sense as written when understood in its full historical context.