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PsN: CON040 VerDate Apr 14 2004 11:04 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00002 Fmt 8221 Sfmt 8221 C:\CONAN\CON040.XXX PRFM99 PsN: CON040 1625 1 C. WRIGHT, THE LAW OF FEDERAL COURTS § 48 at 286 (4th ed. 1983). 2 An extraordinary amount of writing on the Amendment and its interpretation has appeared in recent years. See, e.g., Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. PA. L. REV. 515 (1978); Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Congressional Imposition of Suit Upon the States, 126 U. PA. L. REV. 1203 (1978); Baker, Federalism and the Eleventh Amendment, 48 U. COLO. L. REV. 139 (1977); Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regulation: Separation of Powers Issues in Controversies About Federalism, 89 HARV. L. REV. 682 (1976); Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889 (1983); Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033 (1983); Orth, The Interpretation of the Eleventh Amendment, 1798–1908: A Case Study of Judicial Power, 1983 U. ILL. L. REV. 423; Nowak, The Scope of Congressional Power to Create Causes of Action Against State Government and the History of the Eleventh and Fourteenth Amendments, 75 COLUM. L. REV. 1413 (1975). 3 Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793). SUITS AGAINST STATES ELEVENTH AMENDMENT 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. STATE SOVEREIGN IMMUNITY Purpose and Early Interpretation Eleventh Amendment jurisprudence has become over the years esoteric and abstruse and the decisions inconsistent. At the same time, it is a vital element of federal jurisdiction that ‘‘go[es] to the very heart of [the] federal system and affect[s] the allocation of power between the United States and the several states.’’ 1 Because of the centrality of the Amendment at the intersection of federal judicial power and the accountability of the States and their officers to federal constitutional standards, it has occasioned considerable dispute within and without the Court. 2 The action of the Supreme Court in accepting jurisdiction of a suit against a State by a citizen of another State in 1793 3 provoked such angry reaction in Georgia and such anxieties in other States that at the first meeting of Congress following the decision the Eleventh Amendment was proposed by an overwhelming vote of both Houses and ratified with, what was for that day, ‘‘vehement VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00001 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 1626 AMENDMENT 11—SUITS AGAINST STATES 4 The phrase is Justice Frankfurter’s, from Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 708 (1949) (dissenting), a federal sovereign immunity case. The amendment was proposed on March 4, 1794, when it passed the House; ratification occurred on February 7, 1795, when the twelfth State acted, there then being fifteen States in the Union. 5 The Convention adopted this provision largely as it came from the Committee on Detail, without recorded debate. 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 423–25 (rev. ed. 1937). In the Virginia ratifying convention, George Mason, who had refused to sign the proposed Constitution, objected to making States subject to suit, 3 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 526–27 (1836), but both Madison and John Marshall (the latter had not been a delegate at Philadelphia) denied States could be made party defendants, id. at 533, 555–56, while Randolph (who had been a delegate, as well as a member of the Committee on Detail) granted that States could be and ought to be subject to suit. Id. at 573. James Wilson, a delegate and member of the Committee on Detail, seemed to say in the Pennsylvania ratifying convention that States would be subject to suit. 2 id. at 491. See Hamilton, in THE FEDERALIST No. 81 (Modern Library ed. 1937), also denying state suability. See Fletcher, supra at 1045–53 (discussing sources and citing other discussions). 6 Ch. 20, § 13, 1 Stat. 80 (1789). See also Fletcher, supra, at 1053–54. For a thorough consideration of passage of the Act itself, see J. GOEBEL, HISTORY OF THE SUPREME COURT OF THE UNITED STATES: VOL. 1, ANTECEDENTS AND BEGINNINGS TO 1801 457–508 (1971). 7 Id. at 723–34; Fletcher, supra, at 1054–58. 8 Id. at 1058–63; Goebel, supra, at 736. speed.’’ 4 Chisholm had been brought under that part of the jurisdictional provision of Article III that authorized cognizance of ‘‘controversies ... between a State and Citizens of another State.’’ At the time of the ratification debates, opponents of the proposed Constitution had objected to the subjection of a State to suits in federal courts and had been met with conflicting responses—on the one hand, an admission that the accusation was true and that it was entirely proper so to provide, and, on the other hand, that the accusation was false and the clause applied only when a State was the party plaintiff. 5 So matters stood when Congress, in enacting the Judiciary Act of 1789, without recorded controversy gave the Supreme Court original jurisdiction of suits between States and citizens of other States. 6 Chisholm v. Georgia was brought under this jurisdictional provision to recover under a contract for supplies executed with the State during the Revolution. Four of the five Justices agreed that a State could be sued under this Article III jurisdictional provision and that under section 13 the Supreme Court properly had original jurisdiction. 7 The Amendment proposed by Congress and ratified by the States was directed specifically toward overturning the result in Chisholm and preventing suits against States by citizens of other States or by citizens or subjects of foreign jurisdictions. It did not, as other possible versions of the Amendment would have done, altogether bar suits against States in the federal courts. 8 That is, it VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00002 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 AMENDMENT 11—SUITS AGAINST STATES 1627 9 Party status is one part of the Article III grant of jurisdiction, as in diversity of citizenship of the parties; subject matter jurisdiction is the other part, as in federal question or admiralty jurisdiction. 10 One square holding, however, was that of Justice Washington, on Circuit, in United States v. Bright, 24 Fed. Cas. 1232 (C.C.D.Pa. 1809) (No. 14,647), that the Eleventh Amendment’s reference to ‘‘any suit in law or equity’’ excluded admiralty cases, so that States were subject to suits in admiralty. This understanding, see Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110, 124 (1828); 3 J. STORY, COMMENTARIES OF THE CONSTITUTION OF THE UNITED STATES 560–61 (1833), did not receive a holding of the Court during this period, see Georgia v. Madrazo, supra; United States v. Peters, 9 U.S. (5 Cr.) 115 (1809); Ex parte Madrazo, 32 U.S. (7 Pet.) 627 (1833), and was held to be in error in Ex parte New York (No. 1), 256 U.S. 490 (1921). 11 19 U.S. (6 Wheat.) 264 (1821). 12 1 Stat. 73, 85. 13 ‘‘It is a part of our history that, at the adoption of the constitution, all the states were greatly indebted; and the apprehension that these debts might be prosecuted in the federal courts, formed a very serious objection to that instrument. Suits were instituted; and the court maintained its jurisdiction. The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this amendment was proposed in congress, and adopted by the state legislatures. That its motive was not to maintain the sovereignty of a state from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. It does not comprehend controversies between two or more states, or between a state and a foreign state. The jurisdiction of the court still extends to these cases: and in these, a state may still be sued. We must ascribe the amendment, then, to some other cause than the dignity of a state. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a state, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister states would be creditors to any considerable amount, and there was reason to retain the jurisdiction of the court in those cases, because it might be essential to the preservation of peace. The amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by states.’’ 19 U.S. at 406-07. barred suits against States based on the status of the party plaintiff and did not address the instance of suits based on the nature of the subject matter. 9 The early decisions seemed to reflect this understanding of the Amendment, although the point was not necessary to the decisions and thus the language is dictum. 10 In Cohens v. Virginia, 11 Chief Justice Marshall ruled for the Court that the prosecution of a writ of error to review a judgment of a state court alleged to be in violation of the Constitution or laws of the United States did not commence or prosecute a suit against the State but was simply a continuation of one commenced by the State, and thus could be brought under § 25 of the Judiciary Act of 1789. 12 But in the course of the opinion, the Chief Justice attributed adoption of the Eleventh Amendment not to objections to subjecting States to suits per se but to well-founded concerns about creditors being able to maintain suits in federal courts for payment, 13 and stated his view that the Eleventh Amendment did not VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00003 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 1628 AMENDMENT 11—SUITS AGAINST STATES 14 ‘‘The powers of the Union, on the great subjects of war, peace and commerce, and on many others, are in themselves limitations of the sovereignty of the states; but in addition to these, the sovereignty of the states is surrendered, in many instances, where the surrender can only operate to the benefit of the people, and where, perhaps, no other power is conferred on congress than a conservative power 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.’’ 19 U.S. at 382-83. 15 ‘‘If this writ of error be a suit, in the sense of the 11th amendment, it is not a suit commenced or prosecuted ‘by a citizen of another state, or by a citizen or subject of any foreign state.’ It is not, then, within the amendment, but is governed entirely by the constitution as originally framed, and we have already seen, that in its origin, the judicial power was extended to all cases arising under the constitution or laws of the United States, without respect to parties.’’ 19 U.S. at 412. 16 22 U.S. (9 Wheat.) 738 (1824). 17 The Bank of the United States was treated as if it were a private citizen, rather than as the United States itself, and hence a suit by it was a diversity suit by a corporation, as if it were a suit by the individual shareholders. Bank of the United States v. Deveaux, 9 U.S. (5 Cr.) 61 (1809). 18 22 U.S. at 850-58. For a reassertion of the Chief Justice’s view of the limited effect of the Amendment, see id. at 857–58. But compare id. at 849. The holding was repudiated in Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828), in which it was conceded that the suit had been brought against the governor solely in his official capacity and with the design of forcing him to exercise his official powers. It is now well settled that in determining whether a suit is prosecuted against a State ‘‘the Court will look behind and through the nominal parties on the record to ascertain who are the real parties to the suit.’’ In re Ayers, 123 U.S. 443, 487 (1887). bar suits against the States under federal question jurisdiction 14 and did not in any case reach suits against a State by its own citizens. 15 In Osborn v. Bank of the United States, 16 the Court, again through Chief Justice Marshall, held that the Bank of the United States 17 could sue the Treasurer of Ohio, over Eleventh Amendment objections, because the plaintiff sought relief against a state officer rather than against the State itself. This ruling embodied two principles, one of which has survived and one of which the Marshall Court itself soon abandoned. The latter holding was that a suit is not one against a State unless the State is a named party of record. 18 The former holding, the primary rationale through which the strictures of the Amendment are escaped, is that a state official possesses no official capacity when acting illegally and thus VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00004 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 AMENDMENT 11—SUITS AGAINST STATES 1629 19 22 U.S. at 858-59, 868. For the flowering of the principle, see Ex parte Young, 209 U.S. 123 (1908). 20 Act of March 3, 1875, ch. 137, § 1, 18 Stat. 470. See discussion under ‘‘Development of Federal Question Jurisdiction’’ supra. 21 See, e.g., Orth, The Eleventh Amendment and the North Carolina State Debt, 59 N.C. L. REV. 747 (1981); Orth, The Fair Fame and Name of Louisiana: The Eleventh Amendment and the End of Reconstruction, 2 TUL. LAW. 2 (1980); Orth, The Virginia State Debt and the Judicial Power of the United States, in AMBIVALENT LEGACY: A LEGAL HISTORY OF THE SOUTH 106 (D. Bodenhamer & J. Ely eds., 1983). 22 Ex parte New York (No. 1), 256 U.S. 490, 497 (1921). 23 E.g., In re Ayers, 123 U.S. 443 (1887); Hagood v. Southern, 117 U.S. 52 (1886); The Virginia Coupon Cases, 114 U.S. 269 (1885); Cunningham v. Macon & Brunswick R.R., 109 U.S. 446 (1883); Louisiana v. Jumel, 107 U.S. 711 (1882). In Antoni v. Greenhow, 107 U.S. 769, 783 (1883), three concurring Justices propounded the broader reading of the Amendment which soon prevailed. 24 134 U.S. 1 (1890). 25 134 U.S. at 11. can derive no protection from an unconstitutional statute of a State. 19 Expansion of the Immunity of the States.—Until the period following the Civil War, Chief Justice Marshall’s understanding of the Amendment generally prevailed. But in the aftermath of that conflict, Congress for the first time effectively gave the federal courts general federal question jurisdiction, 20 and a large number of States in the South defaulted upon their revenue bonds in violation of the Contracts Clause of the Constitution. 21 As bondholders sought relief in federal courts, the Supreme Court gradually worked itself into the position of holding that the Eleventh Amendment, or more properly speaking the principles ‘‘of which the Amendment is but an exemplification,’’ 22 is a bar not only of suits against a State by citizens of other States, but also of suits brought by citizens of that State itself. 23 Expansion as a formal holding occurred in Hans v. Louisiana, 24 a suit against the State by a resident of that State brought in federal court under federal question jurisdiction, alleging a violation of the Contracts Clause in the State’s repudiation of its obligation to pay interest on certain bonds. Admitting that the Amendment on its face prohibited only the entertaining of a suit against a State by citizens of another State, or citizens or subjects of a foreign state, the Court nonetheless thought the literal language was an insufficient basis for decision. Rather, wrote Justice Bradley for the Court, the Eleventh Amendment was a result of the ‘‘shock of surprise throughout the country’’ at the Chisholm decision and reflected the determination that the decision was wrong and that federal jurisdiction did not extend to making defendants of unwilling States. 25 VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00005 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 1630 AMENDMENT 11—SUITS AGAINST STATES 26 134 U.S. at 14-15. 27 134 U.S. at 15-16. 28 134 U.S. at 18-19. The Court acknowledged that Chief Justice Marshall’s opinion in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 382–83, 406–07, 410–12 (1821), was to the contrary, but observed that the language was unnecessary to the decision and thus dictum, ‘‘and though made by one who seldom used words without due reflection, ought not to outweigh the important considerations referred to which lead to a different conclusion.’’ 134 U.S. at 20. 29 256 U.S. 490 (1921). 30 256 U.S. at 497-98. Under this view, the amendment reversed an erroneous decision and restored the proper interpretation of the Constitution. The views of the opponents of subjecting States to suit ‘‘were most sensible and just’’ and those views ‘‘apply equally to the present case as to that then under discussion. The letter is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual against a State. The reason against it is as strong in this case as it was in that. It is an attempt to strain the Constitution and the law to a construction never imagined or dreamed of.’’ 26 ‘‘The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States. . . . The suability of a State without its consent was a thing unknown to the law.’’ 27 Thus, while the literal terms of the Amendment did not so provide, ‘‘the manner in which [Chisholm] was received by the country, the adoption of the Eleventh Amendment, the light of history and the reason of the thing,’’ 28 led the Court unanimously to hold that States could not be sued by their own citizens on grounds arising under the Constitution and laws of the United States. Then, in Ex parte New York (No. 1), 29 the Court held that, absent consent to suit, a State was immune to suit in admiralty, the Eleventh Amendment’s reference to ‘‘any suit in law or equity’’ notwithstanding. ‘‘That a State may not be sued without its consent is a fundamental rule of jurisprudence . . . of which the Amendment is but an exemplification. . . . It is true the Amendment speaks only of suits in law or equity; but this is because . . . the Amendment was the outcome of a purpose to set aside the effect of the decision of this court in Chisholm v. Georgia . . . from which it naturally came to pass that the language of the Amendment was particularly phrased so as to reverse the construction adopted in that case.’’ 30 Just as Hans v. Louisiana had demonstrated the ‘‘impropriety of construing the Amendment’’ so as to permit federal question suits against a State, so ‘‘it seems to us equally clear that it cannot with propriety be construed to leave open a suit against a State in the admiralty jurisdiction by individuals, whether its VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00006 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 AMENDMENT 11—SUITS AGAINST STATES 1631 31 256 U.S. at 498. See also Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670 (1982). And see Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468 (1987). 32 California v. Deep Sea Research, Inc., 523 U.S. 491 (1998) (application of the Abandoned Shipwreck Act) (distinguishing Ex parte New York and Treasure Salvors as involving in rem actions against property actually in possession of the State). 33 Principality of Monaco v. Mississippi, 292 U.S. 313, 322–23 (1934) (quoting THE FEDERALIST, No. 81); Breard v. Greene, 523 U.S. 371, 377 (1998) (foreign nation may not contest validity of criminal conviction after State’s failure at time of arrest to comply with notice requirements of Vienna Convention on Consular Relations). Similarly, the Court has recently held, relying on Monaco, the Amendment bars suits by Indian tribes against non-consenting states. Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991). 34 E.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985) (dissenting); Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 496 (1987) (dissenting); Dellmuth v. Muth, 491 U.S. 223, 233 (1989) (dissenting); Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 309 (1990) (concurring). Joining Justice Brennan were Justices Marshall, Blackmun, and Stevens. See also Pennsylvania v. Union Gas Co., 491 U.S. 1, 23 (1989) (Justice Stevens concurring). 35 E.g., Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97–103 (1984) (opinion of the Court by Justice Powell); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237–40, 243–44 n.3 (1985) (opinion of the Court by Justice Powell); Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472–74, 478–95 (1987) (plurality opinion of Justice Powell); Pennsylvania v. Union Gas Co., 491 U.S. 1, 29 (1989) (Justice Scalia concurring in part and dissenting in part); Dellmuth v. Muth, 491 U.S. 223, 227–32 (opinion of the Court by Justice Kennedy); Hoffman v. Connecticut Dep’t of Income Maintenance, 492 U.S. 96, 101 (1989) (plurality opinion of Justice White); id. at 105 (concurring opinions of Justices O’Connor and Scalia); Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990) (opinion of the Court by Justice O’Connor). citizens or not.’’ 31 An in rem admiralty action may be brought, however, if the State is not in possession of the res. 32 And in extending protection against suits brought by foreign governments, the Court made clear the immunity flowed not from the Eleventh Amendment but from concepts of state sovereign immunity generally. ‘‘Manifestly, we cannot . . . assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against nonconsenting States. Behind the words of the constitutional provisions are postulates which limit and control. There is the . . . postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been ‘a surrender of this immunity in the plan of the convention.’’’ 33 In the 1980s four Justices, led by Justice Brennan, argued that Hans was incorrectly decided, that the Amendment was intended only to deny jurisdiction against the States in diversity cases, and that Hans and its progeny should be overruled. 34 But the remaining five Justices adhered to Hans and in fact stiffened it with a rule of construction quite severe in its effect. 35 The Hans interpretation was further solidified with the Court’s ruling in Seminole VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00007 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 1632 AMENDMENT 11—SUITS AGAINST STATES 36 517 U.S. 44 (1996). 37 527 U.S. 706 (1999). 38 Employees of the Dep’t of Public Health and Welfare v. Department of Public Health and Welfare, 411 U.S. 279, 287 (1973). 39 Alden v. Maine, 527 U.S. 706 (1999). 40 527 U.S. at 713. 41 Chief Justice Rehnquist wrote the opinion of the Court in Seminole Tribe, joined by Justices O’Connor, Scalia, Kennedy, and Thomas. Justice Stevens dissented, as did Justice Souter, whose opinion was joined by Justices Ginsburg and Breyer. In Alden, Justice Kennedy wrote the opinion of the Court, joined by the Chief Justice, and by Justices O’Connor, Scalia, and Thomas. Justice Souter’s dissenting opinion was joined by Justices Stevens, Ginsburg, and Breyer. 42 122 S. Ct. 1864 (2002). Justice Breyer’s dissenting opinion describes a need for ‘‘continued dissent’’ of the majority’s sovereign immunity holdings. 122 S. Ct. at 1889. 43 46 U.S.C. App. §1701 et. seq. (1994 ed. And Supp V). Tribe of Florida v. Florida, 36 that Congress lacks the power under Article I to abrogate state immunity under the Eleventh Amendment, and with its ruling in Alden v. Maine 37 that the broad principle of sovereign immunity reflected in the Eleventh Amendment bars suits against states in state courts as well as federal. Having previously reserved the question of whether federal statutory rights could be enforced in state courts, 38 the Court in Alden v. Maine 39 held that states could also assert Eleventh Amendment ‘‘sovereign immunity’’ in their own courts. Recognizing that the application of the Eleventh Amendment, which limits only the federal courts, was a ‘‘misnomer’’ 40 as applied to state courts, the Court nonetheless concluded that the principles of common law sovereign immunity applied absent ‘‘compelling evidence’’ that the States had surrendered such by the ratification of the Constitution. Although this immunity is subject to the same limitations as apply in federal courts, the Court’s decision effectively limited the application of significant portions of federal law to state governments. Both Seminole Tribe and Alden were also 5–4 decisions with the four dissenting Justices maintaining that Hans was wrongly decided. 41 This now institutionalized 5-4 split continued with the Court’s

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