Correspondences between Guinier and Whatley

    1st T'HB

Cuprate (ta r t  nf %  Itutrfr States
October Term 1973

No. 72-1410

J oel E delman, etc.,

— v.—

J ohn J ordan, et al.

Petitioner,

ON WRIT OE CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF AMICUS CURIAE OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC.

J ack Greenberg 
Charles Stephen R alston 
E ric Schnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Amicus Curiae



TABLE OF CONTENTS

Statement of Interest of the Amicus Curiae ...............  1

Summary of Argument ...................... .... ..........................  3

Statement of the C ase......................................................... 5

A rgument

I. Neither the Eleventh Amendment nor sovereign 
immunity may be asserted to prevent effective 
relief for a violation of the Thirteenth, Four­
teenth or Fifteenth Amendments ....................... 8

A. The specific and more recent provisions of
the Reconstruction Amendments must pre­
vail over sovereign immunity and the earlier 
general language of the Eleventh Amend­
ment ............................      8

B. Sovereign immunity has no application to
activities which the Reconstruction Amend­
ments placed outside the sovereign power of 
the States .........................   12

C. The purposes of sovereign immunity and the
Eleventh Amendment are inconsistent with 
the purposes of the Reconstruction Amend­
ments ..................... ......................... ......... .........  18

1. Reliance on state enforcement................... 18

2. Problems of federal enforcement ...........  24

3. Remedial purpose of the Reconstruction
Amendments ..............................    28

PAGE



11

D. By ratifying the Reconstruction Amend­
ments the States consented to he sued for 
violations thereof ..............      34

E. An unwarranted expansion of the scope of
sovereign immunity and the Eleventh 
Amendment would greatly weaken the 
constitutional guarantees contained in the 
Reconstruction Amendments .............    39

Conclusion ......................................    42

Cases:

Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833) ------ 16
Bennett v. Gravelle, 323 F.Supp. 203 (D.Md. 1971) ------ 41
Bivens v. Six Unknown Fed. Narcotics Agents, 403, U.S.

338 (1971) ......... ........ ....... ................. .......... ......... .... -29 , 38
Board of Supervisors of Louisiana State U. v. Fleming,

265 F.2d 736 (5th Cir. 1959) ___________ ____________ 40
Board of Trustees of Arkansas A.&M. College v. Davis,

396 F.2d 730 (8th Cir. 1968) .................. .......................  40

Chicago, etc. R.R. Co. v. United Transportation Union,
402 U.S. 570 (1971) ...................................... ......... ....... . 12

Chisholm v. Georgia, 2 U.S. (2 Dali.) 419 (1793) ....12,13,19,
25, 34, 42

Civil Rights Cases, 109 U.S. 7 (1883) _____ _______ 28, 37, 38
Cohens v. Virginia, 19 U.S. 264 (1821) ....... 4,15, 35, 36, 37

Dillenberger v. Florida Probation and Parole Commis­
sion, Civ. No. 73-66 (N.D. Fla., Tallahassee Div.) .... 41 

Dorsey v. State Athletic Commission, 168 F.Supp. 149
(E.D. La. 1958) .................. ....... ........ .......... ............... . 40

Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) 16
Dugan v. Rank, 372 U.S. 609 (1963) ....... .................... . 10

PAGE



I l l

Employees v. Missouri Public Health Department, 411
TJ.S. 279 (1973) ...............................2, 5,11,14, 28, 37, 40, 41

Entick v. Carrington, 19 Howell St., Tr. 1029 (1765) .... 38
Ex Parte Ayers, 123 U.S. 443 (1887) ............... ..... ..........  9
Ex Parte Young, 209 U.S. 123 (1908) .......3, 6, 7, 8, 9,10,11

Fitts v. McGhee, 172 U.S. 516 (1899) ....... ................. .. 9

General Oil Company v. Crain, 209 U.S. 211 (1908) .....9, 30
Goldberg v. Kelly, 397, U.S. 254 (1970) ............................ 6
Graham v. Marshall, Civ. T-73-77 (N.D. Fla., Tallahas­

PAGE

see Div.) ...... ........... ............... ........................ ................ -  41
Griffin v. School Board of Prince Edward County, 377 

U.S. 218 (1964) ................................. ......................... 5,10, 40

Hans v. Louisiana, 134 U.S. 1 (1890) ............ ...... 19, 36, 37
Hawaii v. Gordon, 373 U.S. 57 (1963) ______ _____ _ 10
Henry v. Mississippi, 379 U.S. 443 (1965) ........ ..........  43

Jordan v. Weaver, 472 F.2d 985 (7th Cir. 1973) ...........  6

Katzenbach v. Morgan, 384 U.S. 641 (1966) .......... ........  6
Krause v. Rhodes, Ho. 72-1318 ........................................  2

Marbury v. Madison, 1 U.S. (Cranch) 137 (1803) .... . 29
McCoy v. Louisiana State Board of Education, 345

F.2d 720 (5th Cir. 1965) ............................................... 40
Mitchum v. Foster, 407 U.S. 225 (1972) ....... ...............  15
Monroe v. Pape, 365 U.S. 167 (1961) .............. ........ 21, 31, 32
Moultrie v. G eorgia........... .............................— .............  39

Orleans Parish School Board v. Bush, 242 F.2d 156
(5th Cir. 1957) .......... ...... ........... ...... ............................  40

Osborn v. The Bank of the United States, 22 U.S. (9 
Wheat.) 739 (1824) ....................................... ..... ........ 15,30



IV

PAGE

Parden v. Terminal R.R. of Alabama Docks Depart­
ment, 377 U.S. 184 (1964) .... ........................................  11

Perez v. Ledesma, 401 U.S. 82 (1971) ........ ............. .....10,38
Pollard v. United States, Civil Action No. 4126-N (M.D.

Ala.) ............ ..................... ......... ................. ........ ....... . 41
Proutt v. Starr, 188 U.S. 537 (1903) .......... ............. ......  30

Rhode Island v. Massachusetts, 37 U.S. (12 Peters)
657 (1833) ..... ........ ..... ............. ......... .................... .........  36

Richardson v. State Board of Law Examiners (Civil
Action No. 72-1219, D.S.C.) .... ........ ....... .....................  41

Rosado v. Wyman, 397 U.S. 397 (1970) ............. ....... .....  5
Rothstein v. Wyman, 303 F. Supp. 339 (S.D.N.Y. 1969) 6

Scheuer v. Rhodes, No. 72-914_________ ______ _______  2
School Board of Charlottesville v. Allen, 240 F.2d 59 

(4th Cir. 1956) ..... ....... ...... .......... .......... ........ ........ .....  40

United States v. Peters, 9 U.S. (5 Cranch) 115 (1809) 25

Virginia Coupon Cases, 114 U.S. 269 (1885) ....... .......  11

Wainwright v. State of Florida Department of Trans­
portation, Civ. No. 73-42 (N.D. Fla. Mariana Div.) 41

Zwickler v. Koota, 389 U.S. 241 (1967) .................. ........  15

Statutes and Regulations:

28 U.S.C. § 1331 ......... .....

42 U.S.C. § 1382(a) (8) ....

42 U.S.C, § 1981 ________

42 U.S.C. § 1983 ............ .

............................ .36, 39

............................... 5

............... ........... ..28,41

21, 28, 32, 33, 34, 39, 41



V

Civil Rights Act of 1964 .................................................. ....5,41

Civil Rights Act of 1871 .............................................. 21, 27, 31

Civil Rights Act of 1866 ......... .......... .... ..................... 20, 26, 30

Judiciary Act, section 2 5 ........... ......................................... 15

12 Stat. 765 ........ ................ ............. ....... ........ ..................  23

14 Stat. 9 ........... ....................................... ......... .................  23

14 Stat. 27 .............................................. .............................  27

17 Stat. 13 .................. ...... ........ ............. .... .......... .... .......  27

Articles of Confederation ................... ...... .......... ..... .......  24

45 C.F.R. § 106.10(3) ....................... ,.................... ..............  5

PAGE

Other Authorities:

Cong. Globe, 38th Cong. 1st Sess............................... ..... 19, 23

Cong. Globe 39th Cong. 1st Sess. .................. .16,17, 20, 21, 26,
30, 31, 32, 33, 37

Cong. Globe, 42nd Cong. 1st Sess. ....... .....17, 21, 27, 31, 33, 37

The Federalist, No. 1 6 ..... ............................... .............. .24, 25

The Federalist, No. 3 1 ...... ...... ........................... ...............  14

The Federalist, No. 81 ... ........... ..... .... .............. ..13,14,19, 25

Flack, The Adoption of the Fourteenth Amendment 
(1908) ...... ............... ........................ ............ ................. . 38

Jacobs, The Eleventh Amendment and Sovereign 
Immunity (1972) ...........................9,11,14, 25, 26, 30, 36, 39

Morrison, The Oxford History of the American People 
(1965) 26



YX

Sehlesinger and Israel, The State of the Union Mes­
sages of the Presidents (1966) ....................... ........... . 22

ten Broek, Equal Under Law (1965) ..... ......... ...... .17, 30, 32

Graham “ The ‘Conspiracy Theory’ of the Fourteenth 
Amendment,” 47 Yale L.J. 371 (1938) ________ ____ 30

Graham, “ The Early Antislavery Backgrounds of the 
Fourteenth Amendment” 1950 Wis. L. Rev. 479 .........  30

Memorandum of Administrator, Social and Rehabilita­
tion Service, dated April 1, 1971..... .......... ............. . 28

PAGE



I n  t h e

ffynpnmv dmtrt nf %  Inttefc BMm
October T erm 1973 

No. 72-1410

J oel Edelman, etc.,

—v.—

J ohn J ordan, et al.

Petitioner,

ON WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF AMICUS CURIAE OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC.

Statement o f  Interest o f  the Amicus Curiae1

Amicus N.A.A.C.P. Legal Defense and Educational Fund, 
Inc., is a non-profit corporation, incorporated under the 
laws of the State of New York in 1939. It was formed to 
assist Negroes to secure their constitutional rights by 
the prosecution of lawsuits. Its charter declares that its 
purposes include rendering legal services gratuitously to 
Negroes suffering injustice by reason of race who are 
unable, on account of poverty, to employ legal counsel on

1 Both the Petitioner and the Respondent have consented to the 
filing’ of this brief. Copies of their letters have been filed with the 
Clerk.



2

their own behalf. The charter has been approved by a 
New York Court, authorizing the organization to serve as 
a legal aid society. The N.A.A.C.P. Legal Defense and 
Educational Fund, Inc. (LDF) is independent of other 
organizations and is supported by contributions from the 
public. For many years its attorneys have represented 
parties before this Court and the lower courts, and it 
has participated as amicus curiae in this Court and other 
courts.

For many years LDF attorneys have represented plain­
tiffs in actions against state officials and state agencies 
seeking redress of violations of the Thirteenth, Fourteenth 
and Fifteenth Amendments. This litigation has challenged 
state discrimination in such disparate areas as education, 
public employment, voting, public assistance, public hous­
ing, and the administration of justice.

In the instant case the named plaintiff claimed the de­
fendant had violated both the Fourteenth Amendment and 
a federal statute and regulation implementing that Amend­
ment, and prevailed on the latter ground. The case thus 
requires the Court to consider the applicability of Em­
ployees v. Department of Public Health and Welfare, 411 
U.S. 279 (1973) to state action violating the Fourteenth 
Amendment or implementing legislation.2 The decision will 
necessarily have a substantial effect on the extent to which 
the prohibition against certain state action contained in 
the Thirteenth, Fourteenth and Fifteenth Amendments will 
remain enforceable in federal courts. Thus the Amicus has 
a vital interest in the present case, one beyond that of the 
immediate litigants, and therefore presents in the attached 
brief an alternative argument in support of the respon­
dents’ position.

2 See also Krause v. Rhodes, No. 72-1318; Scheuer v. Rhodes, 
No. 72-914.



3

Summary o f  Argument

This action arises under a federal statute and regulation 
which protect rights arising under the Fourteenth Amend­
ment, particularly the guarantees of equal protection and 
due process of law.

This Court has long recognized that neither sovereign 
immunity nor the Eleventh Amendment should he allowed 
to prevent enforcement of the Reconstruction Amendments. 
The legal fiction of Ex Parte Young, 209 U.S. 123 (1908) 
was established to avoid a direct conflict between the Elev­
enth Amendment and the Thirteenth, Fourteenth and F if­
teenth Amendments. When a conflict cannot be avoided 
in this manner the need to enforce the more recent and 
specific provisions of the Reconstruction Amendments must 
prevail over the Eleventh Amendment.

Sovereign immunity, as its eighteenth century and recent 
supporters conceded, is merely a procedural protection 
for the sovereign power of the states. It allows the states 
to conduct their affairs without threat of judicial interfer­
ence. That immunity has no application, however, to state 
discrimination which violates the Reconstruction Amend­
ments, for those Amendments stripped the states of their 
sovereign power to engage in such discrimination.

The primary justification for sovereign immunity and the 
Eleventh Amendment has traditionally been that the sover­
eign, state or federal, could be relied on to do justice to 
all claimants without judicial compunction. The Recon­
struction Amendments, however, were founded on the prem­
ise that the states could not be trusted to respect and 
protect the basic rights of freedmen and others.

Hamilton and other federalists who supported passage 
of the Eleventh Amendment were concerned that Federal



4

judicial control over the states might lead to serious and 
even armed confrontation between the states and the fed­
eral government when enforcement wTas sought. But the 
Congress which framed the Reconstruction Amendments 
was not unwilling to resort to such drastic measures if 
necessary. When the Amendments were enacted the coun­
try had just ended a civil war over the principles contained 
therein, and federal troops were stationed throughout the 
south to protect freedmen and others. It is hardly likely 
that those who framed the Amendments had great com­
punctions about resort to measures which had troubled 
Hamilton and others seventy years earlier.

I f  the states could assert sovereign immunity or the 
Eleventh Amendment to bar effective relief, aggrieved citi­
zens would have a right without a remedy. While such a 
situation may be appropriate under special circumstances, 
it is intolerable where the rights involved arise under the 
Reconstruction Amendments. Those Amendments were ex­
pressly regarded as remedial in nature; the men who 
framed them believed the rights described already existed 
under the Constitution, and were primarily concerned to 
provide a remedy where none had existed before.

The states may of course consent to be sued in federal 
court. When the Reconstruction Amendments were enacted 
every such creation of a federal right involved, under the 
decisions of this Court, pro tanto waiver of sovereign im­
munity because of the federal question provision of Article 
III. Cohens v. Virginia, 19 TT.S. 264 (1821). Thus by ratify­
ing the Reconstruction Amendments the states waived their 
Eleventh Amendment and sovereign immunity defense.

Throughout the last several decades states sued for viola­
tions of the Reconstruction Amendments, particularly the 
Fourteenth, have sought to defend their right to discrim­
inate by claiming immunity from suit. This Court has



5

rejected such claims. Griffin v. School Board of Prince 
Edward County, 377 U.S. 218 (1964). However, this Court’s 
recent decision in Employees v. Missouri Public Health 
Department, 411 U.S. 279 (1973), has suggested that 
there may be some vitality in this defense to constitutional 
litigation. Sovereign immunity and the Eleventh Amend­
ment have already been used to call into question the con­
stitutionality of claims against a state for back pay under 
Title VII of the 1964 Civil Eights Act, and to insulate 
state officials from personal liability for willful discrimina­
tory acts. A  clear statement from this Court is needed 
that neither sovereign immunity nor the Eleventh Amend­
ment may be asserted to prevent effective relief for 
violations of the Thirteenth, Fourteenth and Fifteenth 
Amendments.

Statement o f  the Case

This is an action challenging, as violative of both the 
Fourteenth Amendment and the applicable federal statute 
and regulations, Illinois’ failure to process promptly cer­
tain applications for public assistance. The courts below 
resolved this question in favor of the plaintiffs on the 
ground that the state was not in compliance with those 
federal regulations, which require that eligibility deter­
minations be made within thirty (30) days on applications 
for aid to the aged and blind and within sixty (60) days 
on applications for assistance to the disabled. See Rosado 
v. Wyman, 397 U.S. 397 (1970). It is however, clear that 
the federal statute3 and regulation4 involved in this case, 
serve to protect the constitutional rights to equal protec­

3 42 TJ.S.C. §1382(a)(8).
4 45 C.F.R. §106.10(3).



6

tion* 6 and due process of law6 guaranteed by the Fourteenth 
Amendment.

The question before the Court is whether, having con­
cluded that Illinois had been administering public assistance 
in violation of the law, the federal courts have the power 
to order the Director of the Illinois Department of Public 
Aid to pay to past applicants out of public funds the 
benefits to which they would have been entitled had the 
state properly administered the law from its inception. 
The defendant claims that such an order, though on its 
face directed at him individually, would render this a case 
against the state of Illinois, which cases are barred by the 
Eleventh Amendment and the state’s sovereign immunity. 
Plaintiffs urge and the Court of Appeals concluded that 
the disputed order was proper, both arguing that it fell 
within the power of the federal courts under Ex Parte 
Young, 209 U.S. 123 (1908), to rectify the conduct of state 
officials acting in violation of the Constitution or laws of 
the United States.

While agreeing with the position taken by the plaintiffs 
regarding- Ex Parte Young, the Amicus would urge that 
the case be resolved in favor of the plaintiffs on another 
ground. Defendant maintains that the order requiring back

6 The state’s failure to process all applications promptly yielded 
gross disparities in the actual grants received. Jordan v. Weaver, 
472 F.2d 985, 998 (7th Cir. 1973). These unjustifiable variances 
raise serious questions of equal protection. See Bothstein v. Wyman, 
303 F.Supp. 339 (S.D.N.Y. 1969), vacated on other grounds, 398 
U.S. 275 (1970).

6 The right to a prompt hearing and decision is an essential part 
of due process. Whether a decision denying, as opposed to termi­
nating, welfare entitlements is a taking of property or even a 
deprivation of liberty, is a question of no small difficulty. See 
Goldberg v. Kelly, 397 U.S. 254. 262 n.8 (1970). This is, however, 
precisely the sort of question which Congress has authority, under 
section 5 of the Fourteenth Amendment, to resolve in favor of the 
individual. See Katzenbach v. Morgan, 384 U.S. 641 (1966).



7

payment of benefits, though nominally directed to a state 
official, is really an order against the state. There is no 
claim that the Director of the Department of Public Aid 
has sufficient personal funds to make these back payments; 
the only way in which adequate relief can be obtained is if 
the Director releases benefits wrongfully withheld at an 
earlier time. Thus if, as defendant asserts, the disputed 
order is improper, there would be no way in which a viola­
tion of the statute and regulation could be remedied.7

The Amicus maintains, for the reasons set out below, 
that neither sovereign immunity nor the Eleventh Amend­
ment may be asserted to bar an effective remedy for a 
violation of the Thirteenth, Fourteenth and Fifteenth 
Amendments, or of legislation implementing those pro­
visions. This being so, it is unnecessary to decide whether 
this case is, in effect, a suit against the state, for even if 
it were the state could not obstruct the granting of meaning­
ful relief. Amicus suggests that it may be preferable to 
decide the case on this basis, rather than attempting an 
exposition of Ex Parte Young which might not be limited 
to litigation arising under the Reconstruction Amendments.

7 The United States Department of Health, Education and Wel­
fare has taken the position that it lacks the power to compel the 
state to make such back payments.



8

ARGUMENT

I.
Neither the Eleventh Amendment nor sovereign im­

munity may be asserted to prevent effective relief for 
a violation o f  the Thirteenth, Fourteenth or Fifteenth 
Amendments.

A. The specific and more recent provisions o f the Recon­
struction Amendments must prevail over sovereign im­
munity and the earlier general language o f the Eleventh 
Amendment.

The potential conflict between the Reconstruction Amend­
ments on the one hand and the Eleventh Amendment on 
the other is apparent on the face of those provisions. While 
the Fourteenth and Fifteenth Amendments expressly, and 
the Thirteenth tacitly, create special rights in favor of 
private individuals and limit the power of the states, the 
Eleventh Amendment withdraws from the federal judicial 
power cases brought against one state by the citizen of 
another. Manifestly enforcement of those special rights 
against one state by the citizen of another would require 
precisely the remedy which the Eleventh Amendment ap­
pears to preclude. Similarly any doctrine of sovereign 
immunity, allowing the states to refuse to be sued by their 
own citizens, seems on its face inconsistent with the express 
grant of rights against the states to those citizens.

This Court has not heretofore been required to decide 
which principle should prevail if the only method of en­
forcing the post-Civil W ar Amendments is the type of 
action against the state usually precluded by sovereign 
immunity and the Eleventh Amendment. In Ex Parte 
Young, this Court expressly declined to decide whether the 
Fourteenth Amendment limited the effect of the Eleventh.



9

209 U.S. 123, 150 (1908).8 Bather than reach that question, 
this Court has consistently sought to fashion remedies for 
violations of the Thirteenth, Fourteenth and Fifteenth 
Amendments which would not require transgressing the 
usual limitations on suits against the states. Ex Parte 
Young itself was the most important such remedy; while 
suits against state officers had, to a limited extent, been 
sanctioned before, Young worked a substantial expansion 
of that mode of relief. See Jacobs, The Eleventh Amend­
ment and Sovereign Immunity 138-146 (1972).9

The policy considerations behind Ex Parte Young were 
expressly detailed in an opinion handed down the same day 
in General Oil Company v. Crain, 209 U.S. 211, 226-27 
(1908):

Necessarily, to give adequate protection to constitu­
tional rights a distinction must be made between valid 
and invalid state laws, as determining the character 
of the suit against state officers. And the suit at bar 
illustrates the necessity. If a suit against state officers 
is precluded in the national courts by the 11th Amend­
ment to the Constitution, and may be forbidden by 
a state to its courts, as it is contended in the case 
at bar that it may be, without power of review by 
this court, it must be evident that an easy way is open 
to prevent the enforcement of many provisions of the 
Constitution; and the 14th Amendment, which is di­
rected at state action, could be nullified as to much

8 “We think that, whatever the rights of complainants may be, 
they are largely founded upon that [Fourteenth] Amendment, but 
a decision in this case does not require an examination or decision 
of the question whether its adoption in any way altered or limited 
the effect of the earlier [Eleventh] Amendment.”

9 Ex Parte Young represented a substantial departure from the 
Court’s earlier decisions in Ex Parte Ayers, 123 U.S. 443 (1887) 
and Fitts v. McGhee, 172 U.S. 516 (1899).



10

of its operation. . . . The swift execution of the law 
may seem the only good, and the rights and interests 
which obstruct it be regarded as a kind of outlawry. 
See Ex Parte Young, where this subject is fully dis­
cussed and the cases reviewed.

Young represented, at the time it was decided, “ the cul­
mination of the efforts by this Court to harmonize the 
principles of the Eleventh Amendment with the effective 
supremacy of rights and powers secured elsewhere in the 
Constitution.” Perez v. Ledesma, 401 U.S. 82, 106 (1971) 
(Brennan, J. concurring and dissenting).

The Court’s unwillingness to permit the Eleventh Amend­
ment or sovereign immunity to preclude effective relief 
in cases such as this was further illustrated in Griffin v. 
School Board of Prince Edward County, 377 U.S. 218 
(1964). Ex Parte Young had stressed that the relief sought 
there was entirely preventative, and did not require “ affir­
mative action of any nature.” 209 U.S. at 159. Barely a 
year before Griffin this Court had reiterated, in two cases 
involving purely statutory causes of action, that a suit 
nominally against an officer was in fact a suit against the 
sovereign if affirmative action or the expenditure of public 
funds were the relief sought. Dugan v. Rank, 372 U.S. 609, 
620 (1963); Hawaii v. Gordon, 373 U.S. 57, 58 (1963)10 
Since the relief sought in Griffin included reopening and 
funding the public schools of Prince Edward County, the 
defendants urged at length that the case was one against

10 Both Dugan and Gordon were actions involving the United 
States, to which the government objected on the grounds of sov­
ereign immunity. Dugan questioned the statutory authority of the 
Secretary of the Interior to operate a particular water reclamation 
project. 372 U.S. at 615. Gordon involved the construction of a 
statute regarding the status of federally owned land in Hawaii. 
373 U.S. at 57.



11

the state and thus barred by the Eleventh Amendment. 
12 L.Ed. 2d 1106-1109; Jacobs, The Eleventh Amendment 
and Sovereign Immunity, 156-159 (1972). This Court, not­
ing that the complaint alleged a violation of constitutional 
rights protected by the Fourteenth Amendment, summarily 
rejected this objection. 377 U.S. at 228!1

The considerations underlying Young and Griffin sug­
gest that, while suits against a state should not be permitted 
when any other adequate remedy exists, if no such other 
relief is possible and such a choice cannot be avoided, 
vindication of the rights created by the Reconstruction 
Amendments must be given priority over the policies under­
lying the Eleventh Amendment and sovereign immunity. 
Such a case is very different from commonplace suits as­
serting essentially state law claims against the state, Par den 
v. Terminal R.R. of Alabama Docks Dept., 377 U.S. 184,187 
n.3 (1964), or in which the federal question does not 
involve the vindication of constitutionally protected rights. 
See Employees v. Department of Public Health and Wel­
fare, 411 U.S. 279 (1973). This conclusion is supported 
by the ordinary rule of construction stated by Mr. Justice 
Bradley in The Virginia Coupon Cases,

If the Contract Clause and the Eleventh Amendment 
come into conflict, the latter has paramount force. It 
was adopted as an amendment to the Constitution, and 
operates as an amendment of every part of the Con­
stitution to which it is at any time found to be repug- 11

11 The Court’s entire discussion of this matter was contained in 
but three sentences. “ It is contended that the case is an action 
against the State, is forbidden by the Eleventh Amendment, and 
therefore should be dismissed. The complaint, however, charged 
that state and county officials were depriving petitioners of rights 
guaranteed by the Fourteenth Amendment. It has been settled law 
since Ex Parte Young, 209 U.S. 123 . .  . (1908), that suits against 
state and county officials to enjoin them from invading constitu­
tional rights are not forbidden by the Eleventh Amendment.”



12

nant . . .  It is the last declared will of the law-maker, 
and has paramount force and effect. 114 U.S. 269, 331 
(1885) (dissenting opinion).

In the instant case, of course, it is the Reconstruction 
Amendments which represent the last declared will of the 
law-maker. Moreover, while the Eleventh Amendment and 
sovereign immunity deal in a general fashion with all dis­
putes between individuals and states, the Thirteenth, Four­
teenth and Fifteenth Amendments deal more narrowly with 
the creation of certain specific rights. In the case of a 
conflict such as this the more specific provision usually 
controls. Chicago, etc. B.R. Co. v. United Transportation 
Union, 402 U.S. 570, 582 (1971).

B. Sovereign immunity lias no application to activities which 
the Reconstruction Amendments placed outside the sov­
ereign power o f the States.

Sovereign immunity, the doctrine that a state cannot 
be sued without its consent, is but a procedural incident 
to sovereignty itself, the right and power of a state to 
conduct its affairs in whatever manner it sees fit and with­
out outside limitations. Sovereign immunity serves to 
protect the state, particularly the executive branch, in 
the exercise of this power from control or regulation by 
the judiciary.

In the discussions of sovereign immunity at the end of 
the eighteenth century, particularly those leading to the 
embodiment of that immunity in the Eleventh Amendment, 
the question of whether and to what extent a state had 
sovereign immunity was understood to turn on whether 
and to what extent the state itself was sovereign. The 
most important judicial exposition of the case for sovereign 
immunity is Justice Iredell’s historic dissent in Chisholm 
v. Georgia, 2 U.S. (2 Dali.) 419, 429 (1793). Justice Iredell



13

reasoned that the state had, subject to certain limitations, 
succeeded to the sovereignty of the King, and that the 
immunity from suit attendant to this sovereignty had not 
been waived or lifted by Article III of the Constitution:

No other parts of the common law of England, it 
appears to me, can have any reference to this subject, 
but that part of it which prescribes remedies against 
the crown. Every state in the union in every instance 
where its sovereignty has not been delegated to the 
United States, I  consider to be as completely sovereign, 
as the United States are in respect to the powers sur­
rendered. The United States are sovereign as to all 
the powers of government actually surrendered. Each 
state in the union is sovereign as to all the powers 
reserved. It must necessarily be so, because the United 
States have no claim to any authority but such as the 
states have surrendered to them. Of course the part 
not surrendered must remain as it did before.

The other members of the Court, while concluding that 
Georgia could not claim immunity, agreed that procedural 
immunity and substantive sovereignty were inseparable.12 
Hamilton, in the oft quoted argument for immunity in The 
Federalist, was also of the view that immunity derived 
from, and could not be asserted in the absence of, state 
sovereignty:

It is inherent in the nature of sovereignty, not to 
be amenable to the suit of an individual without its

12 Justice Blair concluded that the states had waived both sov­
ereignty and immunity by ratifying Article III. 2 U.S. at 452. 
Justice Cushing believed that Article III had abridged the sover­
eignty of the states and with it their immunity. Id. at 468. Justice 
Wilson and Chief Justice Jay maintained the state had no immunity 
because the people, not the state, were the sovereign. Id. at 453-466, 
469-479.



14

consent. This is the general sense, and the general 
practice of mankind; and the exemption, as one of the 
attributes of sovereignty, is now enjoyed by the Gov­
ernment of every State in the Union. Unless therefore, 
there is a surrender of this immunity in the plan of 
the Convention, it will remain with the States, and the 
danger intimated must be merely ideal. The circum­
stances which are necessary to produce an alienation 
of State sovereignty, were discussed in considering the 
Article of taxation, and need not be repeated here. 
(Number 81).

The discussion of taxation, contained in The Federalist 
No. 31, dealt with the extent to which the states had sur­
rendered their power to enact certain types of taxes.13

Justice Iredell rejected the suggestion that the states 
had never been sovereign or that that sovereignty had been 
waived by ratifying Article III of the Constitution creat­
ing federal jurisdiction over actions between a state and 
a citizen of another state. See Jacobs, Sovereign Immunity 
and the Eleventh Amendment, 84-74 (1972). But both 
Iredell and Hamilton conceded state sovereignty could be 
lost by a substantive constitutional limitation on the powers 
of the states and that, in such a case, immunity would fail 
as well.

At the time this was a theoretical concession of no prac­
tical consequence. The Constitution as it existed prior to 
the Civil War contained few significant limitations on the 12

12 The same connection between the state’s power and procedural 
immunity is reflected in the opinions in Employees v. Missouri 
Public Health Dept., 411 U.S. 279 (1973). Justice Douglas’ 
opinion equates lifting immunity with “ lifting the sovereignty of 
the States.” 411 U.S. at 287. Justice Marshall’s opinion derives 
the principle of immunity from “ the inherent nature of sover­
eignty,” id., as does that of Justice Brennan, 411 U.S. at 317.



15

sovereignty of the states in dealing with individual citizens. 
The concept of federalism prevailing at that time left 
largely in the hands of the states decisions as to what basic 
rights, if any, individuals should have against state action, 
and how, if at all, those rights should be enforced. The 
national government assumed no substantial role under 
the Constitution in regulating the internal affairs of the 
states; such matters were conceived to properly be con­
signed to the exclusive jurisdiction of the states, and any 
federal interference would have transgressed the rights 
and reserved powers of the states. Disputes between states 
and individuals raising federal questions could reach the 
federal courts only under Section 25 of the Judiciary Act, 
providing for review in this Court. The few such cases 
which did reach this Court involved, not violations of 
federally protected rights, but state actions interfering with 
the conduct of the national government. See, e.g., Osborn v. 
Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824); 
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821). So long 
as the states’ sovereignty in dealing with individual citizens 
remained intact, the immunity incident to that sovereignty 
was entirely appropriate.

In the decade following the Civil War this situation was 
deliberately and drastically altered by adoption of the 
Thirteenth, Fourteenth and Fifteenth Amendments, which 
expressly limited the power of the states in their relations 
with private citizens. Those enactments, together with the 
statutes enforcing them, created a panoply of federal rights 
designed to implement the new national commitment to 
racial justice. Congress clearly conceived that it was alter­
ing the relationship between the states and the nation, and 
working a “ vast transformation” from the concepts of 
federalism that had prevailed in the late 18th century. 
Mitchum v. Foster, 407 U.S. 225, 242 (1972); Zwickler v.



16

Koota, 389 TI.S. 241, 245-46 (1967). The effect of those 
Amendments was to overturn several of this Court’s earlier 
decisions regarding the rights of individuals against the 
states and the ability of the national government to protect 
those rights. See Barron v. Baltimore, 32 U.S. (7 Pet.) 243 
(1833); Bred Scott v. Sandford, 60 U.S. (19 How.) 393 
(1857).

The changes wrought by the Reconstruction Amendments 
were understood to work a substantial restriction on the 
prior sovereignty and reserved rights of the states, and 
were opposed on just this ground. Congressman Edgerton, 
speaking against the Thirteenth Amendment, argued:

Better, sir, for our country, better for man, that negro 
slavery exist a thousand years than that American 
white men lose their constitutional liberty in the ex­
tinction of the constitutional sovereignty of the Federal 
States of the Union. Cong. Globe, 39th Cong. 1st Sess. 
2987.14 *

Congressman Rogers, opposing the 1866 Civil Rights Bill, 
the provisions of which were later codified in Section 1 of 
the Fourteenth Amendment, urged:

I ask you to stand by the law of the country and to 
regulate these Federal and State systems upon the 
grand principles upon which they were intended to be 
regulated, that we may hand down to those who are to 
come after us this bright jewel of civil liberty un­
impaired ; and I say that the Congress or men who will 
strip the people of these rights will be handed down 
to perdition for allowing this bright and beautiful

14 See also id. at 1366 (Remarks of Senator Saulsbury), 2939
(Remarks of Congressman Pruyn), 2941 (Remarks of Congressman 
W ood), 2943 (Remarks of Congressman Higby), 2962 (Remarks of 
Congressman Holman), 2994 (Remarks of Senator Pendleton).



17

heritage of civil liberty embodied in the powers and 
sovereign jurisdiction of the States to pass away from 
us. Cong. Globe, 39th Cong. 1st Sess. 1122-23.15

Congressman Shanklin protested that the Fourteenth 
Amendment struck down “the reserved rights of the 
states.” . Cong. Globe, 39th Cong. 1st Sess. 1865-66.16 Such 
objections, however, were to no effect, for such a restric­
tion on state power and sovereignty was precisely the goal 
of the proponents of these measures who believed that the 
rights of the states ought not include “the right to defeat 
the very object for which all government is made . . .  to 
inflict wrongs on free citizens by a denial of the full pro­
tection of the laws.” Cong. Globe, 42nd Cong. 1st Sess. 
84-85 App. (Remarks of Congressman Bingham).17

The Reconstruction Amendments created precisely the 
circumstance in which Iredell and Hamilton had agreed

16 See also id. at 604 (Remarks of Senator Cowan), 1415 (Re­
marks of Senator Davis), 1174 (Remarks of Congressman Rogers), 
1156 (Remarks of Congressman Thornton).

16 See also id. at 2530 (Remarks of Congressman Randall), 2538 
(Remarks of Congressman Rogers), 3147 (Remarks of Congress­
man Harding).

17 _ “ From the beginning, the program for the protection of men 
in their civil rights encountered the destruction of federalism 
argument. The Thirteenth Amendment, the first constitutional 
expression of that program, was proposed, encountered the 
federalism objection, and was adopted anyway. Next, the civil 
rights bill, designed to implement the Thirteenth Amendment, 
had heaped upon it the same charge. It was adopted notwith­
standing. Then, at last, came the Fourteenth Amendment, 
created to accomplish what the Thirteenth Amendment had 
been designed to do but had failed to do because of the con­
tinuation of the federalism objection, intended to remove from 
the Civil Rights Act the constitutional doubts arising from 
the federalism objection to it. the Fourteenth Amendment was 
itself, in turn, subjected to the very same criticisms. Despite 
that criticism, it too was adopted.” ten Broek, Equal Under 
Law 219-220 (1965).



18

immunity had no place, by stripping the states of their 
hitherto existing sovereign power to sanction slavery, deny 
equal protection or due process of the laws, or abridge the 
right to vote on account of race. In the limited areas 
prescribed by these Amendments the states have no au­
thority the free exercise of which can be protected from 
litigation, and in such case the purpose underlying sover­
eign immunity and the Eleventh Amendment cannot be 
served.

C. The purposes o f sovereign immunity and the Eleventh 
Amendment are inconsistent with the purposes o f the 
Reconstruction Amendments.

While sovereign immunity was properly conceived as 
no more than an incident to sovereignty itself, the grant 
of immunity, particularly within a federal system, reflected 
a number of policies other than the mere protection of 
sovereignty itself. The policies which immunity would 
advance are, however, the very policies expressly rejected 
by Congress when it approved the Thirteenth, Fourteenth 
and Fifteenth Amendments.

1. Reliance on state enforcement

Advocates of sovereign immunity both before and after 
passage of the Eleventh Amendment urged that judicial 
jurisdiction over claims against a sovereign was unneces­
sary because the King, or the executive and legislative 
branches of a state government, could and would do jus­
tice in any case brought to their attention. In England, 
Iredell argued, while the resolution of such grievances was 
technically at the discretion of the crown, it was the King’s 
practice, through the Chancellor, to do whatever justice 
required. “I f any person has, in point of property, a just 
demand upon a King, he must petition him in his court 
of chancery, where his chancellor will administer right,



19

as a matter of grace, though not upon compulsion.” Chis­
holm v. Georgia, 2 U.S. 419, 442 (1793). A citizen with a 
claim against a state, it was said, could rely on the legis­
lature’s good faith and sense of public duty. 2 U.S. at 
445-6. Hamilton urged that contracts between a nation 
and an individual were binding, not in a court of law, but 
“ on the conscience of the sovereign.” The Federalist, No. 
81. The argument was reiterated by Congressman Diven 
in 1862 urging retention of sovereign immunity by the 
federal government.

Now, sir, what is the theory with regard to the sat­
isfaction of claims against Governments? Why it is 
this: that Governments are always disposed to deal 
justly with their subjects; that Governments are never 
required or compelled by legal process to render jus­
tice to their subjects; and that they are always ready 
to do right when the right is ascertained; and the only 
object of a Court of Claims should be to aid the Gov­
ernment in determining what is right, and then the 
Government will do right always. That is the theory 
of government. It was a maxim of the common law 
that “ the King can do no wrong,” and it is the theory 
that Governments can do no wrong, that exempts them 
from this trial in courts to compel them to do right 
to their own citizens. It is false in theory to suppose 
that when an individual has a just claim against the 
Government it is necessary for him to sue the Gov­
ernment in a court of law to recover it. Cong. Globe, 
38th Cong. 1st Sess. 1672.

This Court, in Hans v. Louisiana, 134 U.S. 1, (1890), rea­
soned that a state could be relied on to respect “ the highest 
demands of natural and political law to preserve justice,” 
and that the security for state loans “ is the plighted faith 
of the State.” 134 U.S. at 16, 21.



20

When the Reconstruction Amendments and legislation 
were proposed, opponents objected that such measures were 
unnecessary, and that reliance could be placed on the “hon­
est purpose of the several States” to protect the rights of 
citizens. Cong. Globe, 39th Cong. 1st Sess. 1294 (Remarks 
of Congressman W ilson). The conclusion of the Congress 
and the nation, however, was to the contrary: in particular 
that the southern states could not be relied upon to respect 
and protect the rights of freedmen. Speaking in favor of 
the 1866 Civil Rights Bill, whose principles were soon 
incorporated in Section 1 of the Fourteenth Amendment, 
Representative Wilson explained:

I f  the States would all observe the rights of our 
citizens, there would be no need for this bill . . .  I f 
they would recognize that “general citizenship” . . . 
which under this [privileges and immunities] clause 
entitles every citizen to security and protection of 
personal rights, . . .  we might safely Avithhold action. 
And if above all, Mr. Speaker, the States should ad­
mit, and practice the admission, that a citizen does 
not surrender these rights because he may happen to 
be a citizen of the State which would deprive him of 
them, we might, without doing violence to the duty 
devolved upon us, leave the whole subject to the 
States. But, sir, the practice of the States leaves us 
no avenue of escape, and we must do our duty by 
supplying the protection which the States deny. Cong. 
Globe, 39th Cong. 1st Sess. 1117-18.

Congressman Cook argued

Suppose . . . these States are restored to all the rights 
of sovereign States within this Union, and they carry 
out the same spirit they have already manifested to­
ward these freedmen. . . .  It is idle to say these men



21

will be protected by the States. The sufficient and con­
clusive answer to that position I submit is, that those 
States have already passed laws which would now 
virtually reenslave them . . . Does any man in this 
House believe that these people can be safely left in 
these States without the aid of Federal legislation or 
military power? Does anyone believe that their free­
dom can be preserved without this aid? If any man 
does so believe, he is strangely blind to the enact­
ments passed by legislatures touching those freed men. 
Id. at 1124-25.18

Six years of experience after the Civil War served only 
to confirm Congress’ fears in this regard, and the 1871 
Civil Eights Act, including the predecessor of Section 1983, 
was enacted “to afford a federal right in federal courts 
because, by reason of prejudice, passion, neglect, intolerance 
or otherwise, state laws might not be enforced and the 
claims of citizens to the enjoyment of rights, privileges, 
and immunities guaranteed by the Fourteenth Amendment 
might be denied by the state agencies.” Monroe v. Pape, 
365 TJ.S. 171, 179 (1961). The “plighted faith of the States” 
which this Court lias found an adequate alternative to 
judicial enforcement of the contract clause in Hans, was 
expressly rejected as a sufficient guarantee of the rights 
of freedmen and others under the Reconstruction Amend­
ments. Cong. Globe, 42nd Cong. 1st Sess. 85 (Remarks of 
Congressman Bingham).

The Congress which approved the Thirteenth, Four­
teenth and Fifteenth Amendments, had only a few years 
earlier ended the sovereign immunity of the federal gov-

18 See also id. at 503 (Remarks of Senator Howard), 602 (Re­
marks of Senator Lane).



22

eminent. In his first State of the Union message, Presi­
dent Lincoln had urged abolition of that immunity:

It is important that some more convenient means 
should be provided, if possible, for the adjustment of 
claims against the Government especially in view of 
their increased number by reason of the war. It is as 
much the duty of Government to render prompt jus­
tice against itself in favor of citizens as it is to admin­
ister the same between private individuals. The in­
vestigation and adjudication of claims in their nature 
belong to the judicial department.19

The debates on this proposal centered on whether or not 
the federal government was already providing a prompt 
and just resolution of claims against it, the procedure until 
that time being for Congress to enact a special appropria­
tion in the amount it felt fair. Proponents of immunity 
urged such justice was already being done. See p. 19, 
supra. A  majority of the Congress, however, concluded 
otherwise. Congressman Pendleton responded to the re­
marks of Congressman Diven quoted above,

My colleague on the committee has told us today 
that, in theory, the Government is always willing to do 
justice to the citizen, that it is always willing to do 
that which equity and justice requires it to do. Now, 
sir, that is very good in theory, but it is very bad in 
practice, and when that gentleman has had experience 
in examining the claims brought against this Govern­
ment year after year . . . he will find that there are 
innumerable claims on the calendar which have been 
examined and re-examined session after session . . .  If 
the Government of the United States owes a debt to

19 Schlesinger and Israel, The State of the Union Messages of 
the Presidents, v. 2, 1060 (1966).



23

a citizen of the United States, why should that citizen 
be forced to come to Congress year after year, and 
spend his time and his money in besieging individual 
members, in order to show to them the justice of his 
claim, depending, in the end, even in the justest case, 
not upon its merits, but upon their patience to hear 
him fully, and their impartiality to judge fairly. Cong. 
Globe, 38th Cong. 1st Sess. 1675.

Congressman Bingham, the aiithor of the Fourteenth 
Amendment, urged that the abolition of immunity would 
end the injustice of denying relief to citizens with legitimate 
grievances, and the corruption of the Congress by lobbyists 
pressing dubious claims. Id. at 1674. The statute con­
ferring binding jurisdiction on the Court of Claims was 
enacted in 1863, 12 Stat. 765, and the remedies available 
to citizens broadened further in 1866. 14 Stat. 9.

The existence of a sovereign immunity defense in an ac­
tion under the Reconstruction Amendments is manifestly 
incompatible with the purpose and background of those 
constitutional provisions. It cannot plausibly be urged 
that Congress first established a panoply of federal rights 
and remedies on the ground that the states would not 
voluntarily protect those rights, and yet intended to per­
mit the states to avoid judicial enforcement of those rights 
on the grounds that the states would voluntarily protect 
such rights and that judicial enforcement was thus un­
necessary. The same state legislature which enacted a 
discriminatory measure could hardly be expected, in re­
sponse to the claims of its victims, to repeal that measure 
and appropriate funds to compensate them for any injuries 
suffered. Whatever support sovereign immunity may have 
commanded in the 1790’s, by the 1860’s Congress shared 
Lincoln’s view that the courts were the most fair and ef­
ficient forum for resolving claims against the government.



24

2. Problems of federal enforcement

Federal jurisdiction over litigation against the states 
was opposed in the eighteenth century because of problems 
of enforcement which might arise. One of the great fail­
ings of the Articles of Confederation was that under it the 
national government could carry out its desires and policies 
only through the action and good will of the states. If 
a state was not amenable to this process, the two levels of 
government were necessarily arrayed directly against each 
other, at best resulting in a cumbersome process and at 
worst threatening more serious conflict. The federalists 
sought to give the national government power to carry out 
its policies directly, rather than relying on or resorting to 
action against the states. It was to avoid the need to coerce 
the states into compliance that the new constitution was 
designed. Under a continuation of a confederacy, Ham­
ilton warned, resort to such a military coercion was 
inevitable.

I f  there should not be a large army constantly at the 
disposal of the National Government, it would either 
not be able to employ force at all, or when this could 
be done, it would amount to a war between parts of 
the Confederacy, concerning the infractions of a league; 
in which the strongest combination would be most 
likely to prevail, whether it consisted of those who 
supported, or those who resisted, the general authority. 
It would rarely happen that the delinquency to be 
redressed would be confined to a single member; and 
if there were more than one, who had neglected their 
duty, similarity of the situation would induce them 
to unite for common defense. The Federalist, No. 16.

But, Hamilton pointed out,

I f  the execution of the laws of the National Govern­
ment should not require the intervention of the State



25

Legislatures; if they were to pass into immediate 
operation upon the citizens themselves, the particular 
Governments could not interrupt their progress with­
out an open and violent exertion of an unconstitutional 
power. Id.

Such affirmative efforts to obstruct enforcement of national 
laws were thought highly unlikely.

It was this same consideration which, for the federalists, 
militated against federal jurisdiction over the states. Ham­
ilton himself pressed this argument in the oft quoted pas­
sage in The Federalist on the meaning of Article III of 
the proposed constitution:

To what purpose would it be to authorize suits against 
the States for the debts they owe? How could recovery 
be enforced? It is evident, it could not be done, with­
out waging war against the contracting State, and to 
ascribe to the Federal Courts, by mere implication, 
and in destruction of a pre-existing right of the State 
Governments, a power which would involve such a 
consequence, would be altogether forced and unwar­
rantable. The Federalist, No. 81.

The fear that such jurisdiction over the states might lead 
to the use of force was, at the time, not unwarranted. In 
the face of Chisholm, the Georgia House of Delegates 
passed a statute making any effort by a federal marshal 
to enforce a judgment for Chisholm a felony punishable 
by death without benefit of clergy. Jacobs, The Eleventh 
Amendment and Sovereign. Immunity, 56-57 (1972). In 
another private action in 1809 seeking to collect funds held 
by the heirs of the state treasurer of Pennsylvania, decided 
suh nom. United States v. Peters, 9 U.S. (5 Cranch.) 115 
(1809), the governor deployed the state militia around the



26

home of the heirs to prevent execution of the judgment. 
The United States marshal enlisted a posse, and an armed 
clash was averted only when the state relented in the face 
of direct threats by President Madison. Jacobs, The Ele­
venth Amendment and Sovereign Immunity, 77-80 (1972).

It cannot plausibly be maintained that those who framed 
the Reconstruction Amendments and civil rights legisla­
tion would have opposed suits against the states on the 
ground that force might be required to enforce the result­
ing court orders. Throughout the period when these meas­
ures were being enacted the armed forces of the federal 
government, with the enthusiastic support of Congress, 
were stationed throughout the former rebel states and 
were deeply involved in administering and policing those 
areas. See Morrison, The Oxford History of the American 
People, 717-725 (1965). After a four-year Civil War of 
unprecedented cost, the willingness of the national govern­
ment to resort to force to preserve the fruits of its victory 
cannot be doubted. During the debates on the 1866 Civil 
Rights Bill, Congressman Thayer openly expressed this 
willingness:

Why have laws if Government has not the physical 
force and strength to enforce them? Enforce them if 
you can through the forms of judical procedure and 
by the ordinary means at the command of judicial 
tribunals as this bill provides: but if there are com­
binations against the peaceful enforcement of these 
laws, why should not the military power of the United 
States, in pursuance of the express power given in 
the Constitution, come to the rescue of the civil power 
in order to enforce a law solemnly promulgated by the 
people of the United States? Cong. Globe, 39th Cong. 
1st Sess. 1153.



27

Senator Pool expressed the same conviction six years later 
in support of the 1871 Civil Rights Act regarding the con­
stitutional guarantee of equal rights:

I f  the states shall fail to secure and enforce this right 
of the colored man, and deny to him protection in the 
free exercise of it as a citizen of the State, then the 
United States, by virtue of Ms national citizenship, 
must and will, by appropriate legislation, by all the 
power of its courts, by its land and naval forces, ex­
tend over him within the States the shield of the 
national authority. . . .  I  yet hope it is possible to 
escape more violent means by a prompt resort to the 
ordinary federal tribunals of justice. Unless that re­
sort be promptly and efficiently taken, there is no hope 
of escaping for another year the application of the 
most stringent and ruinous military measures. Cong. 
Globe, 42nd Cong. 1st Sess. 609.

Both civil rights acts contained express provisions for re­
sort to military rule if civil measures proved inadequate to 
protect the rights of the freedmen. See 14 Stat. 27; 17 Stat. 
13.

To suggest that suits against the states under the Re­
construction Amendments should be forbidden to avoid 
problems of enforcement would be to ignore the fact that 
the congresses which framed those provisions were deter­
mined to use whatever measures were necessary to enforce 
the rights described therein. Nor are suits against state 
officers any less likely to incur virulent state opposition; 
the history of the last century, particularly since Brown, 
is studded with instances where extraordinary federal ac­
tion was necessary to effectuate the decree of a federal 
court against such officers.



3. Remedial purpose of the Reconstruction Amendments

The defense of sovereign immunity, if allowed in all 
eases, would operate in some circumstances to deny citizens 
an effective judicial remedy to enforce their rights. Un­
doubtedly there are circumstances under which such a 
normally incongruous situation might be appropriate. 
Where control of state conduct is not a primary concern 
of the provisions establishing those rights, it may be that 
subjecting the states to judicial control is too drastic a 
method of achieving a largely incidental purpose. Where 
there is little reason to doubt the states will voluntarily 
comply with the federal requirements, Congress might con­
clude that harmonious federalism would best be served 
by trusting the states to act without threat of litigation. 
And where a fully effective means of enforcement less 
drastic than federal litigation is available, the necessity 
for such litigation might be doubted. See generally Em­
ployees v. Department of Public Health and Welfare, 411 
U.S. 279 (1973).

None of these factors, however, are present here. Con­
trol of the states was not a merely incidental effect of the 
Reconstruction Amendments, it was the primary concern 
and goal. See The Civil Rights Cases, 109 U.S. 7 (1883). 
The Department of Health, Education and Welfare has 
taken the position that it lacks authority to compel pay­
ment of back benefits in a case such as this,20 and enforce­
ment of the Reconstruction Amendments has traditionally 
been left primarily in the hands of private litigants. See 
42 U.S.C. §§1981-1983. Those amendments and the con­
temporaneous legislation were founded on the conviction 
that the states could not be relied on to voluntarily comply 
with the law. See pp. 18-23 supra. The men who framed

20 Memorandum of Administrator, Social and Rehabilitation Ser­
vice, dated April 1, 1971, pp. 1-2.



29

those Amendments were primarily concerned, not with pre­
serving the delicate balance of harmonious federalism, but 
with assuring compliance by the recalcitrant states through 
whatever means necessary.

This Court has long recognized the particular unde­
sirability of leaving those asserting constitutional rights 
without an effective remedy. “ The very essence of civil 
liberty certainly consists in the right of every individual 
to claim the protection of the laws, wherever he receives 
an injury.” Marbury v. Madison, 1 TJ.S. (Cranch) 137, 
163 (1803), quoted in Bivens v. Six Unknown Fed. Nar­
cotics Agents, 403 U.S. 338, 397 (1971).

The Constitution of the United States, with the 
several amendments thereof, must be regarded as one 
instrument, all of whose provisions are to be deemed 
of equal validity. It would, indeed, be most un­
fortunate if the immunity of the individual states from 
suits by citizens of other states, provided or in the 
11th Amendment, were to be interpreted as nullifying 
those other provisions 'which confer power on Congress 
to regulate commerce among the several states, which 
forbid the states from entering into any treaty, al­
liance, or confederation, from passing any bill of 
attainder, ex post facto law, of law impairing the ob­
ligation of contracts or, without the consent of Con­
gress, from laying any duty of tonnage, entering into 
any agreement or compact with other states, or from 
engaging in war,— all of which provisions existed be­
fore the adoption of the 11th Amendment, which still 
exist, and which would be nullified and made of no 
effect if the judicial power of the United States could 
not be invoked to protect citizens affected by the 
passage of state laws disregarding those constitutional 
limitations. Much less can the 11th Amendment be



30

successfully pleaded as an invincible barrier to judicial 
inquiry whether the salutary provisions of the 14th 
Amendment have been disregarded by state enactments. 
Prout v. Starr, 188 U.S. 537, 543 (1903).

See also General Oil Co. v. Crane, 209 U.S. 211, 226-27 
(1908); Osborn v. The Bank of the United States, 22 U.S. 
(9 Wheat.) 739, 849 (1824); Jacobs, The Eleventh Amend­
ment and Sovereign Immunity 144 (1972).

That any rights arising under the Reconstruction Amend­
ments should be without a remedy is particularly inappro­
priate since these Amendments, especially the Fourteenth, 
were primarily remedial. The abolitionists who finally won 
control of the Congress and many states in the 1860’s and 
1870’s had long maintained that the rights described in 
the Thirteenth, Fourteenth and Fifteenth Amendments al­
ready existed, though not recognized, by virtue of the 
privileges and immunities clause and the Bill of Rights. 
See generally ten Broek, Equal Under Law (1965); Gra­
ham, “ The Early Anti-slavery Backgrounds of the Four­
teenth Amendment” 1950 Wis. L. Rev. 479; Graham, “ The 
‘Conspiracy Theory’ of the Fourteenth Amendment,” 47 
Yale L.J. 371 (1938). Congressman Wilson, speaking in 
favor of the 1866 Civil Rights Bill explained:

Mr. Speaker, I think I may safely affirm that this 
bill, so far as it declares the equality of all citizens 
in the enjoyment of civil rights and immunities, merely 
affirms existing law. We are following the Constitu­
tion. We are reducing to statute form the spirit of 
the Constitution. We are establishing no new right, 
declaring no new principle. It is not the object of this 
bill to establish new rights, but to protect and enforce 
those which already belong to every citizen. Cong. 
Globe, 39th Cong. 1st Sess. 1117.



31

Section 1 of the Fourteenth Amendment, according to Con­
gressman Bingham who drafted it, was not to create new 
substantive rights at the expense of the states.

[T]his amendment takes from no State any right 
that ever pertained to it. No State ever had the right, 
under forms of law or otherwise, to deny to any freed 
man the equal protection of the laws or to abridge the 
privileges or immunities of any citizen of the Republic, 
although many of them have assumed and exercised 
the power, and that without remedy. Id. at 2542.

The problem to which these Amendments and related 
legislation were addressed was the unenforceability of these 
rights. As Congressman Bingham detailed, in support of 
the 1871 Civil Rights Act,

The States did deny to citizens the equal protection 
of the laws, they did deny the rights of citizens under 
the Constitution, and except to the extent of the ex­
press limitations upon the States, as I have shown, the 
citizen had no remedy. They denied trial by jury, and 
he had no remedy. They took property without com­
pensation, and he had no remedy. They restricted the 
freedom of the press, and he had no remedy. They 
restricted the freedom of speech, and he had no remedy. 
They restricted the rights of conscience, and he had 
no remedy. They bought and sold men who had no 
remedy. Cong. Globe, 42nd Cong. 1st Sess. 85 App. 
(Emphasis added).

It was to create such a federal remedy for the aggrieved 
citizen—not for the Attorney General—that the Reconstruc­
tion Amendments, and Section 1983 in particular, were 
enacted. See Monroe v. Pape, 365 U.S. 167 (1961).

It would be particularly incongruous if the states were 
able to deny such a remedy by closing to such litigation,



32

by means of sovereign immunity or the Eleventh Amend­
ment, both the federal and state courts. One of the dis­
criminatory practices of particular concern to Congress 
after the Civil War was state legislation forbidding blacks 
to institute litigation or testify in state courts. Monroe v. 
Pape, 365 U.S. 167, 176-178 (1961); ten Broek, Equal Under 
Law, 187n, 191n, 192 (1965). This denial of justice was 
particularly opprobrious when the basic rights were in­
volved. As Bingham urged even before the Civil War 
regarding the privileges and immunities clause,

This guarantee of the Constitution of the United 
States is useless and a mockery, if it does not limit 
State sovereignty and restrain each and every state 
from closing its territory and its courts of justice 
against citizens of the United States, ten Broek, Equal 
Under Law. 333-34 (1965).

Proponents of the Amendments rejected the suggestion 
that, because of considerations of federalism, federal 
“ courts must be closed to the appeal of our citizens.” Cong. 
Globe, 39th Cong. 1st Sess. 1924 (Remarks of Congress­
man Shellabarger). That the states should be able to close 
the federal or state courts to civil rights litigation is par­
ticularly inappropriate since, in most cases, the states have 
long ago opened their courts to litigation against them­
selves arising out of loans or other commercial activities.

The manifest desire of Congress, in framing the Recon­
struction Amendments and Section 1983, was to exercise all 
its power to create an effective remedy21 and to withdraw 
from the states any power to defeat or prevent enforce­
ment of certain basic rights. Congressman Bingham denied 
that the states had the right to deny constitutional rights

21 Subject to certain express limitations not applicable here. See 
Monroe v. Pape, 365 U.S. 167 (1961).



33

“under any pretext whatever.” Cong. Globe, 39th Cong. 
1st Sess. 1088. Congressman Lawrence declared

There are certain absolute rights which pertain to 
every citizen, which are inherent, and of wdiich a state 
cannot constitutionally deprive him. But not only are 
those rights inherent and indestructible, hut the means 
whereby they may be possessed and enjoyed are equally 
so. Id. at 1833 (Emphasis added).

The plethora of unprecedented legislation in the decade 
after the Civil War is ample evidence of the willingness 
of the Congress, in the words of one Senate critic, “ to over­
turn the whole Constitution in order to get at a remedy 
for these people.” Id. at 499 (Remarks of Senator Cowan). 
By the time Section 1983 was enacted, the dispute within 
Congress was no longer over what type of judicial remedy 
to afford. Liberals and conservatives agreed that vindica­
tion of constitutional rights should be sought first' from the 
federal judiciary, where the complainant wras to be afforded 
“all the power of its courts.” See Cong. Globe, 42nd Cong. 
1st Sess. 578 (Remarks of Senator Trumbull), 609 (Re­
marks of Senator Pool). The debate centered over what 
further remedies, such as martial law, Congress should 
provide if all the powers which could be conferred upon 
the courts were exhausted and found wanting. Congress 
can hardly have intended to deny the federal courts the 
authority, when needed, to entertain suits against the states, 
for such a limitation would have increased the need for 
resort to drastic extrajudicial measures which northerners 
and southerners alike wished to avoid.

Under these circumstances the existence of a sovereign 
immunity defense in litigation under the Reconstruction 
Amendments is entirely incompatible with the rights pro­
tected by those Amendments. The policies and assumptions



34

of fact wliicli underlie sovereign immunity are precisely tlie 
policies and assumptions repeatedly rejected by Congress 
in the decade following the Civil War. The existence of 
such a defense will invariably lead to situations in which 
no remedy exists for a violation of the rights secured by 
the Thirteenth, Fourteenth and Fifteenth Amendments, a 
totally impermissible result since those Amendments and 
Section 1983 were enacted for the express purpose of assur­
ing that persons whose rights were violated would no 
longer lack an effective remedy.

D. By ratifying the Reconstruction Amendments the States 
consented to be sued for violations thereof.

Inasmuch as the post-Civil War Amendments were, by 
their nature, inconsistent with the existence of a sovereign 
immunity defense, the states by ratifying those amend­
ments waived their general right not to be sued by a private 
citizen. Even without this inconsistency the ratification of 
those amendments would entail the same waiver, because 
the new constitutional provisions established new enforce­
able federal rights.

The nature of any knowing intelligent waivers by the 
states during the ratification years, from 1865 to 1870, de­
pends upon the understanding which existed at that time 
as to the consequences of enacting the three Amendments. 
The adoption of the Eleventh Amendment did not answer 
all the questions posed by Chisholm v. Georgia, 2 U.S. (2 
Dali.) 419 (1793). In Chisholm three of the five members of 
the Court agreed that the states were generally protected 
by sovereign immunity, but Justices Cushing and Blair 
held the immunity had been waived by the provision in 
Article III establishing federal jurisdiction over suits be­
tween a state and a citizen of another state. See 2 U.S. at 
452, 468. The Eleventh Amendment withdrew federal juris­



35

diction over such, suits, but said nothing about the existence 
of sovereign immunity under other circumstances. Un­
resolved by that Amendment, in particular, was whether 
the states might also have waived their sovereign immunity 
by authorizing, elsewhere in Article III, federal jurisdiction 
over eases arising under the Constitution and laws of the 
United States.

That question received a definite answer in Cohens v. 
Virginia, 19 U.S. 264 (1821). In Cohens a criminal defen­
dant sought to appeal from a state court to this Court on 
the ground that his conviction violated the constitution. 
The state of Virginia maintained that its sovereign immun­
ity precluded such an appeal since it had not consented to 
the exercise of federal jurisdiction over itself. See 5 L.Ed. at 
266-268. This Court, in an opinion written by Chief Justice 
Marshall, unanimously rejected the state’s contention on 
the ground that, in ratifying Article III, Virginia had 
consented to federal jurisdiction over questions arising 
under the constitution and laws of the United States.22

22 “With the ample powers confided to this supreme govern­
ment, for these interesting purposes, are connected many ex­
press and important limitations on the sovereignty of the 
states, which are made for the same purposes. The powers of 
the Union, on the great subjects of war, peace, and commerce, 
and on many others, are in themselves limitations of the sov­
ereignty of the states; hut in addition to these, the sovereignty 
of the states is surrendered in many instances where the sur­
render can only operate to the benefit of the people and where, 
perhaps no other power is conferred on Congress than a con­
servative 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 eases of every description, arising under the con­
stitution 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. When we consider the situation of the



36

See also Rhode Island v. Massachusetts, 37 U.S. (12 Peters) 
657, 720 (1833).23

This conclusion in Cohens was recognized at the time as 
of great import to the vitality of sovereign immunity and 
the nature of federalism. In Virginia the legislature nar­
rowly defeated a set of resolutions calling for constitutional 
amendments. Jacobs, The Eleventh Amendment and Sov­
ereign Immunity 91 (1972). Both Thomas Jefferson and 
James Madison objected to the court’s conclusion that a 
state might lack sovereign immunity in suits brought by 
its own citizens though such actions by citizen of other 
states were barred by the Eleventh Amendment. Id. at 92. 
Despite these criticisms, no constitutional amendments were 
seriously considered, and Cohens remained the law, un­
modified, from Chief Justice Marshall’s decision in 1821 
until at least 1890.24

government of the Union and of a state, in relation to each 
other; the nature of our Constitution; the subordination of 
the state governments to that constitution; the great purpose 
for which jurisdiction over all cases arising under the consti­
tution and laws of the United States is confided to the judicial 
department, are 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.” 2 U.S. at 393-394.

23 Although under Cohens the judicial power extended to Federal 
question litigation against the states, it was not until 1875 that 
Congress conferred nisi prius jurisdiction over such cases on the 
Federal courts. See 28 U.S.C. §1331.

24 In 1890 the Court, after considering Cohens, refused to apply 
Chief Justice Marshall’s conclusions to an action to collect a debt 
owed by Louisiana on the ostensible ground that the state had 
impaired the obligation of contracts. Hans v. Louisiana, 134 U.S. 
1, 18-21 (1890). With regard to constitutional provisions which 
are not self-executing, this Court has recently concluded that a 
state’s waiver merely confers on Congress the power to subject the



37

The legislators who enacted the post-Civil War Amend­
ments and civil rights legislation were well aware of 
Cohens, as might be expected. Congressman Bingham, the 
author of the first section of the Fourteenth Amendment, 
cited Cohens as proof of the federal power to protect in- 
divdual rights against claims that this would infringe state 
sovereignty. Cong. Globe, 42nd Cong. 1st Sess. 81-82 App. 
Opponents of this legislation made reference to Justice 
Marshall’s statement that the states were sovereign, urging 
that such sovereignty was inconsistent with the proposed 
federal role in protecting freedmen and others. See e.g. 
Cong. Globe, 39th Cong. 1st Sess. 1156 (Remarks of Con­
gressman Miller). In the face of Cohens, such opponents 
conceded that even the contract clause was enforceable 
against the states. Cong. Globe, 42nd Cong. 1st Sess. 577 
(Remarks of Senator Trumbull). Indeed, this Court in The 
Civil Rights Cases seemed to have believed that federal 
question jurisdiction included jurisdiction to hear actions 
against a state to enforce the contract clause. 109 U.S. 7,12 
(1883).* 26

There can be no doubt that the states understood that, 
under Cohens, every creation of a new federal constitu­

state to federal jurisdiction, and separate inquiry must be made 
in each case as to whether Congress elected to exercise the power 
conferred on it by the states. Employees v. Missouri Public Health 
Department^, 411 U.S. 279, 286-7 (1973). The continued vitality 
of Cohens in the case of self-executing constitutional provisions 
other than the contract clause is not clear.

26 “Probably Congress had power to pass a law giving to the 
courts of the United States direct jurisdiction over contracts 
alleged to be impaired by a state law; and under the broad pro­
visions of the Act of March 3, 1875, giving to the circuit courts 
jurisdiction of all cases arising under the Constitution and laws 
of the United States, it is possible that such jurisdiction now 
exists.” When presented squarely with that question seven years 
later, the Court concluded that no such jurisdiction existed. Hans 
v. Louisiana, 134 U.S.l (1890).



38

tional right brought with it a pro tanto waiver of sovereign 
immunity. Opposition among the states to the Fourteenth 
Amendment, for example, was centered less on the new 
powers of Congress under Section 5 than the expanded 
powers of the federal judiciary under Section 1. See gen­
erally, Flack, The Adoption of the Fourteenth Amendment 
(1908). The Amendment, it was said, would give the federal 
courts occasion to interfere in local affairs, concentrate 
the judicial power in the federal tribunals, enlarge federal 
jurisdiction to include every state law relating to life, 
liberty or property, and authorize the federal courts to 
hear every conceivable criminal and civil case, no matter 
how important or trivial. Id. at 150, 152, 166, 194-95. This 
widely expressed opposition to expanded federal jurisdic­
tion, in the context of a constitutional amendment dealing 
primarily with state action, can only have been concerned 
with civil rights litigation which would be brought against 
the states themselves. See The Civil Rights Cases, 109 
U.S. 7 (1883).

There is no reason to believe that the Congress which 
enacted the post-Civil War Amendments and the states 
which ratified them thought that actions against the states 
pursuant to Cohens would be limited to actions for injunc­
tive relief. Historically, damages had been regarded as the 
ordinary remedy for invasion of individual rights. Bivens 
v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 
397, 399 (1971). See, e.g., Entick v. Carrington, 19 Howell 
St., Tr. 1029 (1765). Injunctive relief, particularly affect­
ing the conduct of government, has traditionally been re­
garded as “ strong medicine”  employed only when legal re­
lief was inadequate. See Peres v. Ledesma, 401 U.S. 22, 111 
(1971). (Brennan, J. concurring and dissenting.) The 
handful of cases filed against states in the Supreme Court 
prior to the ratification of the Eleventh Amendment were



39

not limited to monetary claims; Moultrie v. Georgia, for 
example, sought only a decree confirming the title to certain 
disputed land. Jacobs, The Eleventh, Amendment and Sov­
ereign Immunity 63-64 (1972).

The States, in ratifying the creation of new constitutional 
rights by the Thirteenth, Fourteenth and Fifteenth Amend­
ments, simultaneously waived the Eleventh Amendment and 
the defense of sovereign immunity in any federal court 
empowered to hear questions arising under the Constitution 
of the United States. Within a few years Congress author­
ized the lower Federal courts to hear just such litigation, 
enacting in 1871 the predecessor to 42 U.S.C. §1983 and in 
1875 the predecessor to 28 U.S.C. §1331. That prior consent 
would preclude assertion of sovereign immunity in a case 
under Section 1983 alleging a violation of the Fourteenth 
Amendment; it is no less applicable to a violation of con­
gressional legislation implementing that Amendment. Since 
the instant case alleges a violation of both that Amendment 
and such implementing legislation, the state cannot defeat 
jurisdiction by claiming immunity.

E. An unwarranted expansion o f the scope o f sovereign 
immunity and the Eleventh Amendment would greatly 
weaken the constitutional guarantees contained in the 
Reconstruction Amendments.

In tbe preceding sections of this brief we have discussed 
at length reasons why the Eleventh Amendment should 
not be held to bar actions brought to enforce rights founded 
in tbe Thirteenth, Fourteenth, and Fifteenth Amendments. 
The question is not academic; it is one with which Amicus 
has been required to deal over a period of time in litiga­
tion brought to vindicate the rights of those the Recon­
struction Amendments were intended to protect. A de­
cision that casts doubt on the power of tbe federal courts 
to entertain such suits or to render effective relief in



40

them would have a devastating impact on the future of 
civil rights enforcement.

In the period from 1957 until 1965, an Eleventh Amend­
ment defense to suits seeking to end unlawful racial dis­
crimination was raised in numerous instances, occasioning 
the Court of Appeals for the Fifth Circuit to remark:

“For the second time in the case and for the seventh 
time in recent years, we hold that a state agency is 
not immune from a suit to enjoin it from enforcing 
an unconstitutional statute. . . .” McCoy v. Louisiana 
State Board of Education, 345 F.2d 720, 721 (5th 
Cir. 1965).

See also, School Board of Charlottesville v. Allen, 240 
F.2d 59 (4th Cir. 1956); Orleans Parish School Board 
v. Bush, 242 F.2d 156 (5th Cir. 1957); Dorsey v. State 
Athletic Commission, 168 F.Supp. 149 (E.D. La. 1958); 
Board of Supervisors of Louisiana State U. v. Fleming, 
265 F.2d 736 (5th Cir. 1959); Board of Trustees of Ar­
kansas A.SM. College v. Davis, 396 F.2d 730 (8th Cir. 
1968).

The argument that private citizens could not enforce 
their constitutional rights in federal court because of sov­
ereign immunity and the Eleventh Amendment seemed to 
have been finally laid to rest by this Court in its unanimous 
decision in Griffin v. School Board of Prince Edward 
County, 377 U.S. 218 (1964).

However, six months ago this Court issued its opinion 
in Employees v. Department of Public Health and Wel­
fare, 411 U.S. 279 (1973), concerning the applicability 
of sovereign immunity and the Eleventh Amendment to 
federal legislation under the Commerce Clause. Since 
then state defendants have, with varying results, urged



41

that the rationale of Employees should be extended to 
bar enforcement against the states of the post-Civil War 
Amendments.

For example, the constitutionality of awards of back 
pay in Title Y II litigation against the states has been 
challenged in three related cases, Dillenberger v. Florida 
Probation and Parole Commission, Civ. No. 73-66 (N.D. 
Fla., Tallahassee D iv .); WainwrigM v. State of Florida 
Department of Transportation, Civ. No. 73-42 (N.D. Fla. 
Mariana D iv .); Graham v. Marshall, Civ. T-73-77 (N.D. 
Fla., Tallahassee Div.).26 State officials have successfully 
urged that sovereign immunity and the Eleventh Amend­
ment, as construed by Employees, protect them from even 
personal liability for intentionally failing to provide treat­
ment to Negro males suffering from syphilis. Pollard v. 
United States, Civil Action No. 4126-N (M.D. Ala.) (Order 
dated September 18, 1973). In Richardson v. State Board 
of Law Examiners, the defendants have asserted without 
success that Employees prohibited litigation to prevent 
discrimination against Negro applicants for the bar (Civil 
Action No. 72-1219, D.S.C.).

A decision by this Court that the Eleventh Amendment 
bars the relief sought in the present case would therefore 
cast serious doubt on the constitutionality of federal courts 
granting analogous retrospective relief in cases under Title 
V II of the Civil Rights Act of 1964 as it now applies to 
state agencies. Moreover, it would raise questions as to 
the power of the federal courts to grant certain kinds of 
prospective injunctive relief that would have the effect of 
requiring the expenditure of state funds, e.g., an order to

26 Even prior to Employees, at least one federal court had indi­
cated, in dictum, that the Eleventh Amendment barred suit against 
a state agency for employment discrimination under 42 TJ.S.C. 
§§1981 and 1983. Bennett v. Gravelle, 323 F. Supp. 203 (D. Md. 
1971).



42

hire a black job applicant who has been denied a position 
because of his race. Such restrictions on the power of 
Congress and the courts to enforce the Reconstruction 
Amendments would be wholly inconsistent with decisions 
of this Court since 1954 and can be avoided by a holding 
that, where a conflict is unavoidable, those Amendments 
restrict the reach of the Eleventh.

CONCLUSION

At the end of the eighteenth century, proponents of 
sovereign immunity urged its erection as a solid wall 
insulating the states in all cases from judicial control 
and enforceable civil liability. That uniform opposition 
by the states to being sued in state or federal courts has 
long since passed. At the time of Chisholm v. Georgia 
it was large businessmen and lenders trying to collect 
substantial debts who sought jurisdiction over the states. 
Since 1800, however, the growing political and economic 
influence of this class of plaintiffs has won for them, in 
Congress and the state legislatures, the right to litigate 
their claims against the states and the federal govern­
ment. State agencies wishing to do business with private 
firms must, in general, agree to provide them with some 
avenue of judicial relief. The legislation establishing 
agencies to raise substantial sums by the sale of state 
notes and bonds invariably contains a provision author­
izing the agency to sue and be sued. When a large firm 
finds its contractual arrangement with a state or the Fed­
eral government no longer profitable and the contract 
itself does not contain a remedy, the firm is usually able, 
by virtue of its unusual degree of influence over public 
officials, to persuade the government to waive its con­
tractual rights or assist the firm with loans or outright



43

gifts. For a large bank, building contractor, or aircraft 
manufacturer, the defense of sovereign immunity has been 
effectively abolished. But a private citizen, aggrieved by 
state misconduct far more serious under our constitutional 
system, has no such political or economic power; for him 
sovereign immunity is still used to preclude the sort of 
relief readily dispensed to others.

Under these circumstances the assertions of a defense 
of sovereign immunity resembles, not firm adherence to 
some uniformly applied principle, but the selective erec­
tion of a procedural barrier to the vindication of the con­
stitutional rights of the weak and unpopular. Whether 
a state has a legitimate interest in the creation of such 
an obstacle is a federal question of no small difficulty. 
See Henry v. Mississippi, 379 U.S. 443, 447-49 (1965). Cer­
tainly in a case such as this that question poses serious 
problems of equal protection.

For these reasons, the Amicus urges that the judgment 
of the Seventh Circuit Court of Appeals should be affirmed.

Respectfully submitted,

J ack Greenberg 
Charles Stephen Ralston 
E ric Schnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Amicus Curiae



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