CHAPTER 4

Special Limitations on Judicial Review of State Laws

§4.1 INTRODUCTION AND OVERVIEW

In Chapter 3 we saw that the ability of the federal courts to exercise the power of judicial review is constrained by the Article III case or controversy requirement and by the various justiciability doctrines that the Court has created in connection with it. In this chapter we explore five additional limitations that often arise when federal courts—and sometimes state courts—are asked to review the constitutionality of state laws. These limitations are the Eleventh Amendment, the Pullman doctrine, the Siler doctrine, the Younger doctrine, and the immunity of state and local officials from damages liability. While these limitations are distinct from one another, they share a common goal—rooted in principles of comity and federalism—of seeking to reduce or minimize federal judicial interference with the states.

§4.2 THE ELEVENTH AMENDMENT

§4.2.1 The Eleventh Amendment and Sovereign Immunity

Federal courts are courts of limited subject matter jurisdiction. As we have noted, Article III, §2, cl. 1 defines the “judicial power of the United States” as extending to nine enumerated categories of “cases or controversies.” No other type of case may enter a federal court. You might think of each of these categories—federal question cases, diversity cases, admiralty and maritime cases, etc.—as a door to the federal courthouse through which only that type of case may pass. Of the nine Article III, §2 categories or doors, seven would allow a suit to be brought against one of the 50 states in federal court. These seven categories of cases are (1) a suit “arising under” the Constitution or laws of the United States; (2) a suit brought by an ambassador, public minister, or consul; (3) a suit to which the United States is a party; (4) a suit between two or more states; (5) a suit filed by a citizen of another state (i.e., the Citizen-State Diversity Clause); (6) a suit brought by a foreign state, its citizens, or subjects (i.e., the Alien-State Diversity Clause); or (7) a suit brought in admiralty or maritime.

Almost immediately after the adoption of the Constitution, cases were brought against states in federal court. One of these was Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), a suit filed in the Supreme Court against the State of Georgia by two citizens of South Carolina to collect on a pre-Revolutionary War debt. This common law action for assumpsit fell within the federal judicial power by virtue of the Citizen-State Diversity Clause since it was “between a State and citizens of another State” (Art. III, §2, cl. 1); moreover, the suit came within the Supreme Court’s original jurisdiction as a case “in which a State shall be a Party. …” Art. III, §2, cl. 2. Georgia refused to appear in the action, claiming that the federal courts could not entertain a suit against a sovereign state. The Supreme Court disagreed and entered a default judgment on behalf of the plaintiffs.

Chisholm was bitterly received. The reaction stemmed in large part from the fact that the Constitution’s supporters had given express assurances that the federal courts would not be employed to enforce the claims of creditors, many of whom were Loyalists, against a recalcitrant state. In The Federalist, Alexander Hamilton had written: