History and State Suability: An “Explanatory” Account of the Eleventh Amendment

This Article offers a new synthesis of the diversity explanation of the Eleventh Amendment and a new account of why its provisions do not apply to claims based on federal law. Drawing on primary source materials, this Article situates the state suability discussions of the 1780s and 90s in an ongoing national debate over fiscal policy that had helped to shape the new federal Constitution. That debate can best be understood as reflecting competing desires to ensure accountable state government and to shield state governments from the threatened judicial enforcement of the substantial debts they incurred in fighting the Revolutionary War.&nbsp; When participants discussed those competing goals, they agreed that old debts were actionable, if at all, only through Article III’s extension of diversity jurisdiction to disputes between states and individuals.&nbsp; By contrast, constitutional restrictions on state sovereignty, including prohibitions of state contract impairment and state bills of credits, were enforceable through federal question jurisdiction but did not take effect until ratification – well after state debts had been incurred. If the mistake in <i>Chisholm v. Georgia</i> was to threaten states with the use of diversity jurisdiction to enforce old debts, then the solution lay in an explanatory amendment to Article III that would foreclose diversity-based claims.&nbsp; Such an explanatory amendment would operate retroactively on diversity-based claims (many of which were pending on the Court’s docket) but would leave federal question jurisdiction intact to enforce constitutional restrictions. The Eleventh Amendment was understood and applied in precisely that way, foreclosing old claims but preserving federal question jurisdiction to ensure the enforcement of federal rights against the states under the Constitution and laws of the United States. This explanatory account of the state suability provisions of the Eleventh Amendment strongly supports revisionist challenges to the judge-made extension of state immunity to claims based on federal law in such decisions as <i>Hans v. Louisiana</i> and <i>Seminole Tribe v. Florida</i>.