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"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.
• The meaning of the 11th Amendment, to not stand so much for what it says but for the pre-supposition
which it confirms.
○ That each state is sovereign
○ That it is inherent in the nature of sovereignty not to be amenable to an individual without their
consent.
Now this was true in the case of the king of England.
• Now states inherented sovereignity not from the king but from the parliament
○ But the majority doesn't look at this
○ They asume that it is the monarchial sovereignity that the king of England had.
• There is no question that part of the reason that we rebelled against England is that we didn't like the
idea that someone is above the law.
• And if they did, was this undone by the constitution
• In that any sovereign immunity that they might have had is removed by the fact that they must adhere
to federal law.
○ How will they follow federal law if you can't sue them.
There is nothing in the Constitution that says that states may abrogate state sovereign immunity.
However, over the years, the supreme court had already held that there were two provisions that
allowed abrogation of sovereign immunity.
○ Article 5 of the 14th Amendment
Congress has the power to enforce the 14th Amendment
○ The Commerce clause
• The problem they have is that there is the Pennsylvania union gas case that already said that congress
may use its congress power to abrogate sovereign immunity.
• The court overrules Pennsylvania Union Gas
○ This case is easier to overrule because they didn't have a majority opinion, it was only a 5-4
opinion and one justice went alogn with it but he disagreed with the rationale
So they are not overruling the rationale, they are just limiting the holding.
• Ex Parte Young
○ Decided in 1908, at a time when the supreme court did not rush out of property and contracts
right
○ Ex Parte Young got around sovereign immunity and you cold go after them for injuctive relief.
They were violating the constitution, therefore, it could not have been done under the
instructions of the state.
□ Because the state could not instruct its agents to do something when it is illegal.
F a law violates the constitution, it is not really a law, and a state official
cannot act under this law.
◊ So if you find a state official acting illegally, you could say that the police
officer was acting illegally.
Ex Parte Young is a little bit of a legal fiction because most of the cases around this time have been
overruled
But this particular case cannot be looked upon under Ex Parte Young, because Congress did
actually make it clear that Congress wanted the states as states to be sued for damages.
Therefore, Ex Parte Young has no purchase here.
Souter's Dissent
• He believes that when America adopted the common law, it was under the assumption that they could
adjust it by statute.
• Another very important argument is the fact that we have two sovereigns. So you can't just assume that
we incorporated the English system of sovereign immunity here because what we did is actually alter it
and are using a dual sovereign immunity system.
• Remember that the majority thinks that the 11th Amendment does not stand for what it says but for
the principles
• The Implication is that Congress can abrogate state sovereign immunity whenever it is advantegous
for it to do so.
○ There is a debate between the majority and the senate Han v. Louisiana
Souter thinks that it was simply based on common law and common law could be
ovrerruled by statute
□ Moreover, Han was not a diversity issue.
• Reihnquist says though that its not based only on the common law of England, but is based on a
So Souter though, is saysing that one thing that the 11th Amendment is doing is that you can't sue a
state in federal courts without the state's permission when it is a federal question.
Souter also says that you can sue the agent of the state, So he looks at Ex Parte
Notes
Alby v. Maine
• You can't sue a state without its consent in state courts.
• So this is an extension to Seminole Tribes
• But wait a second The 11th Amendment limits what the federal power can do, so how can it be used in
Maine to prevent parties from suing the state in state courts.
○ The want the court in maine did this is by ctually saying that it is a background information and
they rely on the 10th Amendment to say that states should have sovereign immunity in state
courts as well.
• Underthe 14th Amendment equal protection there are three standards of review for discriminatory acts
by the state
○ Strict scrutiny - race, alienage
The state almost looses
There are certain kinds of affirmative action, strict scrutiny is satisfied
○ Intermediate scrutiny - sex, illegitimacy
The means chosen has to be substantially related to that standard
○ Rational basis test
It doesn't have to the most rational.
• However, since disability is subject to the rational basis test, you can't say that something is
unconstitutional discrimination.
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• The dissent
○ This was not about sex discrimination
○ If it was about sex discrimination why doesn't it say that they must give man and women equal
amount of time.
• Reihnquist
○ Isn't normally pro woman rights
○ However, there are two options
Maybe he did actually care because his wife died
Or maybe he took ove rthe opinion so that I doesn ecome overly liberal if some other justice
writes it.
• The five justice still appear to agree though that sovereign immunity may only be abrogated when
congress speaks clearly and it is proprotionl pursuit of congress
Majority
"Congress ma not abrogate th States' sovereign immunity pursuant to its Article I power over
commerce"
"However, Congress may abrogate States' sovereign immunity through a valid exercise of its Section 5 of
the 14th Amendment, for the purpose that the Eleventh Amendment, and the principle of state
sovereignity which it embodies, are necessarily limited by the enforcement provision of section 5 of the
fourteenth amendment."
• Congress believed that there was a history of states engaging in discriminatory behavior either facially or
in practice.
Once they find that the FMLA was aimed not just at the public policy but also aimed at sex
discrimination, we are not looking at sex discrimination.
However, they will claim that they have a rational basis for doing so
And this is a lot harder to do so for the state.
• The majority points to cases where the states were engaging in sex discrimination.
• However, this might run counter to the majority because could you really say 30 years later that they
were acting illegal.
Dissent
• Bernstein thinks that the dissenters are right and this was not about sex discrimination.
Notes
• Remember that it has to be congruent and proportional
• But suppose that the majority had concluded that this was not based on sexual discrimination.
So the only way, now, that you can abrogate the sovereign immunit power of the states is through the
14th Amendment and by using Section 5 of the 14th Amendment.
The commerce power is not enough
The principle of state sovereignty found in the 11th Amendment is subject to Section 5 of the 14th
Amendment
THEREFORE, THE ONLY QUESTION HERE IS WHETHER THIS FALLS UNDER THE 14 THE AMENDMENT
(EQUAL PROTECTION