On March 4th, 1794, the U.S. Congress passed the Eleventh Amendment, which would become the first amendment to the Constitution to follow the Bill of Rights. As explained in CAC’s brief in a related recent case:

The Framers of the Eleventh Amendment crafted precise constitutional language in response to a specific historical event. That event was [the Supreme] Court’s decision in Chisholm v. Georgia, which adjudicated a federal lawsuit by a citizen of one State against a State that was not his own. Subsequently, Congress passed, and the States ratified, an Amendment with language that targets that exact circumstance: “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.”

This area of law has been fraught with “originalist sins” by the conservative Justices on the Supreme Court in recent years. See commentary from David Gans on the 2011 case Coleman v. Maryland Court of Appeals.

There is no better example of how conservative Justices on the Supreme Court get the Constitution’s text and history dead wrong than the Court’s cases giving states immunity from suit in federal court for violations of federal law.  The Eleventh Amendment provides that 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 the Citizens of another State, or by Citizens or Subjects of any Foreign State.”  In a manifest departure from the clear and precise terms of the Eleventh Amendment, the Supreme Court has interpreted the Amendment as a protection of state sovereign immunity from all suits in federal court.  In a recent line of cases, the Supreme Court has held that Congress may only abrogate a state’s immunity from suit if it can point to a specific grant of authority to Congress at the expense of the states, such as the authority to enforce the provisions of the Fourteenth Amendment.  At the same time, the Court has sharply limited the scope of Congress’ power to enforce the guarantees of the Fourteenth Amendment, ignoring the fact that the Fourteenth Amendment gives Congress a leading role in ensuring that the rights to liberty and equality guaranteed by the Amendment are actually enjoyed by all Americans.  Both lines of rulings are built off of originalist sins.