Words Aside: How the Supreme Court Elevated Common Law Above Constitutional Text in Hans v. Louisiana

Jennifer Stegeman*

Be honest, did you know that sovereign immunity is not an enumerated constitutional protection for states? Rather, the sovereign immunity doctrine as we know it today comes from Hans v. Louisiana, and the Court pointing out an inherent illogic in allowing citizens to sue states.¹ In Hans, the Court looked to the Eleventh Amendment––which says that federal courts have no jurisdiction over suits brought by an out-of-state citizen against another state––and decided that the Amendment is meant to embody the principle that citizens cannot sue any states.² The Hans Court expanded the Eleventh Amendment to mean much more than it says.

That brazen extrapolation was sound enough to evolve into a century-long barrier for individuals seeking judicial redress from governments. It’s so sound that the Court has endorsed a rather peculiar constitutional interpretation method: “[B]lind reliance upon the text of the Eleventh Amendment ‘is to strain the Constitution and the law to a construction never imagined or dreamed of.’”³ No doubt, it is tough to reconcile how reading the text of an amendment amounts to misbegotten “blind reliance.” But these are the lengths the Court has gone to justify what some consider to be an unjustifiable constitutional interpretation.⁴

Still, however you look at it, the impact of Hans is clear: “[Sovereign] immunity . . .  substantially insulates states from federal power.”⁵ So it is crucial to understand how such a fundamental doctrine rests not on constitutional text, but on a willful misinterpretation of the Eleventh Amendment. It is maintained only through some amorphous mix of stare decisis and common law tradition.⁶ Unlike other judicially-crafted protections or liberties the Court has created and rescinded—like abortion—immunity stays secured on its specious Eleventh Amendment foundation.⁷

In this post, I offer an abbreviated (and unavoidably dense) exploration of how Hans decried constitutional text in favor of a constitutional principle. I’ll examine the judicial power provided by the Constitution, the Eleventh Amendment’s limitation to that power, and how the Hans Court disregarded both. Consider whether there exists a solid foundation for the Hans decision—and if so, whether it’s substantial enough to have justified its 135-year persistence.

I. Constitutional Context

a. Article III and the Judicial Power

To appreciate the expansive treatment the Court has given the Eleventh Amendment, you need to see just how narrow the Amendment is. First, the Constitution is the “supreme Law of the Land”.⁸ Article III establishes the judicial power of the United States, and the power extends first to all cases arising under the Constitution, federal law, and treaties.⁹ In such cases, there is no delineation for who may be a plaintiff or a defendant.

The Eleventh Amendment concerns only the clause in Art. III that declares the judicial power extends to controversies “between a State and Citizens of another State.”¹⁰

b. The Constitutional Understanding of Immunity

Hans would have you believe no person of sound mind ever contemplated a state being hauled to federal court.¹¹ However, there was no unanimity on immunity among the Constitution’s Framers or among early Supreme Court Justices. At state ratification conventions, several representatives understood Art. III explicitly made “the states liable in federal court.”¹² Others thought “the only operation it can have is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court.”¹³ To Chief Justice Marshall, though, “[t]he term ‘all cases,’ means all, without exception; and the States . . . cannot be excepted, by implication, because they have ceased to be absolutely sovereign and independent.”¹⁴ Some Justices thought embracing any notion of sovereign immunity fit uncomfortably given the differences in our government and that of England’s monarchy. In English common law sovereignty, sovereignty vested the King “with jurisdiction over others, it excluded all others from jurisdiction over him.”¹⁵ The purpose of states joining the union was to create a government of the people and “form . . . into a nation.”¹⁶ In so doing, states relinquished a portion of their sovereignty––a state is inescapably accountable to the federal government.¹⁷

c. The Case That Spurred the Eleventh Amendment

In 1793’s Chisholm v. Georgia, before the Amendment existed, the SupremeCourt was tasked to decide (amongst other quandaries) whether the state of Georgia could be made a party-defendant in the Court at the suit of a private citizen from another state.¹⁸ To find the answer, the Court “attend[ed] to the words” of Art. III and found the words were “[f]ree from ambiguity, and without room for such implied expressions” that states could only be plaintiffs.¹⁹ Indeed, to Chief Justice Jay, “not even an intimation of such intention appears in any part of the Constitution.”²⁰

In sum, Chisholm holds that Art. III means what it says: states were subject to judicial review. Of the five justices on the Court, lone Justice Iredell dissented––his opinion plays a key role ninety-seven years later in Hans.²¹ Debate exists as to the actual fervor or shock Chisholm caused, but regardless, the Eleventh Amendment was swiftly drafted and enacted.²²

d. The Eleventh Amendment: What It Does and Does Not Say

The Eleventh Amendment constrained the reach of Art. III’s judicial power and overruled Chisholm:

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.²³

The Amendment clarifies that Art. III’s grant of judicial power over “Controversies . . . between a State and Citizens of another State,”²⁴ does not reach cases where a state is the defendant against an out-of-state or foreign plaintiff. The Amendment does not say that federal courts have no jurisdiction over suits brought by citizens against their own state.

II. Hans v. Louisiana

a. Case Background

In 1890, a Louisianan plaintiff, Hans, sued the state of Louisiana in federal circuit court over interest payments on his state bonds.²⁵ This case could, theoretically, be brought in federal court since the state violated the Constitution’s Contract Clause, and that created a “federal question” within the meaning of both Art. III and the federal question statute.”²⁶ The plaintiff was “not embarrassed by the obstacle of the [E]leventh [A]mendment” because he was suing his own state.²⁷ The State answered “that the federal court lacked jurisdiction because a plaintiff ‘cannot sue the state without its permission.’”²⁸ And the Court took the bait––hook, line, and sinker.

b. The Court’s Analysis

The Court tossed the plaintiff’s federal question contention rather quickly.²⁹ But the Court did entertain the state citizenship argument and actually agreed with the plaintiff.³⁰ It defies logic that an inquiry into whether the Amendment could still bar the plaintiff’s action in federal court continues from there, but it does (otherwise we wouldn’t be here). Despite the Amendment’s textual limits, the Court continues to explain that allowing the plaintiff to sue his state would create an “anomalous result.”³¹

This is where the Court shows us how malleable it believes the Amendment is. The Court correctly deduces the literal, indisputable effect of the Amendment’s text––that it just prohibits out-of-state citizen-plaintiffs. But the Court frames it in a way to cast doubt that a textual interpretation is appropriate at all since the result is absurd: How could the Court allow a citizen to sue their own state but not another state? And more importantly, if the Court were to read the Amendment for its text, rather than its purpose, it would pervert a preexisting understanding of state immunity from suit.³² 

What is more, Hans implies the Chisholm majority should be ashamed because they “were more swayed by a close observance of the letter of the constitution, without regard to former experience and usage . . . .”³³ Are you swayed by Justice Bradley? Should it have been obvious to the Chisholm Court that precise constitutional text does not trump an inherent principle? To be sure, the Court does not engage with the Chisholm majority reasoning that outright rejects this inherent principle. For what it’s worth, Justice Harlan wrote separately to note that “[Chisholm] was based upon a sound interpretation of the [C]onstitution as that instrument then was.”³⁴

Because Congress enacted the Amendment to overturn Chisholm, this indicated to the Court that anything the Chisholm majority stood for was mistaken.³⁵ This necessarily elevated the overall message of Justice Iredell’s Chisholm dissent,³⁶ where he “intimated” that he “is strongly against any construction of [the Constitution], which will admit, under any circumstances, a compulsive suit against a State for the recovery of money.”³⁷ Essentially, the fact there was such an outcry after Chisholm confirms that the principle that no citizen can sue any state was firmly understood and embraced, even if unenumerated.

Put another way, Hans reasons the notion of citizens being unable to sue their own state is presumed. The inherent principle of sovereign immunity is so obvious it need not be explicitly said.³⁸ Except for that one time the Amendment had to be enacted. The Amendment specifies suits brought by out-of-staters against another state only because Chisholm disturbed this sacrosanct understanding by wrongly construing Art. III. The rest of Hans is more the same. Any contravening viewpoints are hurriedly brushed aside.³⁹ In varying ways, the Court passionately repeats how citizens suing a state is “unknown to the law. This is so often laid down and acknowledged by courts and jurists that it is hardly necessary to be formally asserted . . . . [I]t has been conceded in every case, where the question has, in any way, been presented . . . .”⁴⁰ Of course, to believe this, you must ignore fact: many other people, Framers and Supreme Court Justices alike, understood the very opposite was true.

III. Conclusion

I could go on, but you get the gist. The Hans Court didn’t need to address the Eleventh Amendment. But it did. And the Court showed us that an amendment’s text might create an untoward result, and the correct result can be reached only by putting constitutional text aside. Since Hans, the Court’s made clear that “the Eleventh Amendment . . . stand[s] not so much for what it says, but for the presupposition which . . . it confirms.”⁴¹

Now you have seen what the Constitution does and does not say. And you have seen the assertion that sovereign immunity is an unsaid, inherent, and obvious constitutional principle, even if many people have found otherwise. So, do you think Hans stands the test of time? Or are you surprised, based on your understanding of the Court’s other constitutional interpretations since 1890, that such a precise, narrow Amendment has amounted to mean so much more?

I hope the next time you come across a case in which a citizen-plaintiff sues the government (in any capacity), you will look for whether Hans is used as an authority for Eleventh Amendment sovereign immunity. I was close with, “now you have seen how the sovereign immunity sausage was made.” Then I learned the idiom’s potential origin is bizarrely apt, and I’ll leave you with that: “Laws, like sausages, cease to inspire respect in proportion as we know how they are made.”⁴²

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* Jennifer Stegeman, J.D. Candidate, University of St. Thomas School of Law Class of 2026 (Associate Editor).

1. See generally Hans v. Louisiana, 134 U.S. 1 (1890). ↩︎
2. U.S. Const. amend. XI; See generally Hans, 134 U.S. 1 (holding that only a consenting state may be sued). ↩︎
3. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 69 (1996). ↩︎
4. See, e.g., Erwin Chemerinsky, Against Sovereign Immunity, 53 Stan. L. Rev. 1201, 1201 (2001) (“Sovereign immunity is justified neither by history nor, more importantly, by functional considerations . . . . [and] is inconsistent with fundamental constitutional requirements such as the supremacy of the Constitution and due process of law.”). ↩︎
5. Edward A. Purcell, Jr., The Particularly Dubious Case of Hans v. Louisiana: An Essay On Law, Race, History, and “Federal Courts”, 81 N.C. L. Rev. 1927, 1932 (2003). ↩︎
6. See, e.g., Seminole Tribe, 517 U.S. at 183 (Souter, J., dissenting) (“I would therefore treat Hans as it has always been treated in fact until today, as a doctrine of federal common law. For, as so understood, it has formed one of the strands of the federal relationship for over a century now, and the stability of that relationship is itself a value that stare decisis aims to respect.”). ↩︎
7. See generally Dobbs v. Jackson Women’s Health, 597 U.S. 215 (2022) (renouncing abortion as a liberty protected by the Constitution, overturning Roe v. Wade). ↩︎
8. U.S. Const. art. VI, § 2. ↩︎
9. U.S. Const. art. III, § 2 (“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made . . . .”). ↩︎
10. Id. (emphasis added). ↩︎
11. See generally Hans, 134 U.S. 1. ↩︎
12. See Chemerinsky, supra note 4, at 1207. ↩︎
13. Hans, 134 U.S. at 14 (quoting 3 Elliott, Debates, 533). ↩︎
14. See Cohens v. State of Virginia, 19 U.S. 264, 348 (1821). ↩︎
15. Chisholm v. Georgia, 2 U.S. 419, 458 (1793) (Wilson, J.). ↩︎
16. Id. at 465. ↩︎
17. See id. at 452 (Blair, J.) (“[A]nd if sovereignty be an exemption from suit in any other than the sovereign’s own Courts, it follows that when a State, by adopting the Constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty.”). ↩︎
18. Id. at 451 (Blair, J.). ↩︎
19. Id. at 476 (Jay, C.J.). ↩︎
20. Id. at 476–77 (Jay, C.J.). ↩︎
21. See Hans, 134 U.S. at 12. ↩︎
22. See id. at 11 (“[Chisholm] created such a shock of surprise throughout the country that, at the first meeting of congress thereafter, the eleventh amendment to the constitution was almost unanimously proposed . . . .”). But see John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1899 (1983) (“[Regarding the shock theory] . . . . evidence of a contemporaneous belief in state sovereign immunity from suit in the federal courts is extraordinarily weak.”). ↩︎
23. U.S. Const. amend. XI. ↩︎
24. U.S. Const. art. III, § 2. ↩︎
25. This is only fifteen years after the new federal question jurisdiction statute was enacted. See John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 Yale L.J. 1663, 1681 (2004). ↩︎
26. See Purcell, supra note 5, at 1935. ↩︎
27. Hans, 134 U.S. at 10–11. ↩︎
28. Purcell, supra note 5, at 1935. ↩︎
29. The Court had recently held that its other recent bond cases were virtually against the states themselves and violated the Eleventh Amendment. See Purcell, supra note 5, at 1935; Hans, 134 U.S. at 10 (“[A] state cannot be sued by a citizen of another state on the mere ground that the case is one arising under the constitution . . . ”). ↩︎
30. Hans, 134 U.S. at 10–11. ↩︎
31. Id. ↩︎
32. Gibbons, supra note 22, at 2001. ↩︎
33. Hans, 134 U.S. at 12. ↩︎
34. Id. at 21 (Harlan, J., concurring). ↩︎
35. Id. at 12. ↩︎
36. Id. ↩︎
37. Chisholm, 2 U.S. at 449–50 (Iredell, J.). ↩︎
38. See Hans, 134 U.S. at 16. ↩︎
39. To take the wind out of the sails of other contravening sources, Hans also reduces Chief Justice Marshall’s contrary reasoning from a prior case as dicta and thus unimportant. See id. at 19–21. ↩︎
40. Id. at 16. ↩︎
41. Seminole Tribe, 517 U.S. at 54 (1996) (emphasis added). ↩︎
42. Sven Yargs, Comment to A Peek Into The Sausage Factory, English Language & Usage (Jul. 30, 2013, 2:21 PM), https://english.stackexchange.com/questions/120739/a-peek-into-the-sausage-factory [https://perma.cc/54G4-CMBF]. ↩︎