Since Hans v. Louisiana (1890), the Supreme Court has maintained that the Eleventh Amendment protects states from suits by plaintiffs who are citizens of other states and by citizens of that state, despite the text of the Eleventh Amendment specifying that only suits from citizens of other states are barred. Scholars have noted that what therefore protects the states from suits against their own citizens is not the Eleventh Amendment, but rather a common-law immunity that existed between nations at the founding. That immunity applied both to states and to foreign nations. This article argues that just as Congress has abrogated foreign sovereign immunity in certain contexts, so too may Congress abrogate state sovereign immunity pursuant to its Article I powers. Though the Eleventh Amendment bars federal courts from hearing diverse suits against states, it does not bar federal courts from hearing same-state suits. Congress may therefore, pursuant to its Article I powers, enable citizens to sue their own states in federal court. And though out-of-staters cannot sue other states in federal court, Congress may enable out-of-staters to sue in their state courts.
The Eleventh Amendment and Nondiverse Suits Against States,
91 U. Cin. L. Rev.
Available at: https://scholarship.law.uc.edu/uclr/vol91/iss3/3