Twins or Triplets?: Protecting the Eleventh Amendment through a Three-Prong Arm-of-the-State Test

In 1999, the Supreme Court held that the common law principle that the sovereign cannot be sued in its own courts without its consent was embedded in the Constitution’s structure when it was ratified. The Court, however, has not always adhered to this view. In 1793, when a citizen of South Carolina sued the State of Georgia to enforce a debt arising from the sale of Revolutionary War supplies, the Court ordered the State to fulfill its obligation even though the State had not consented to the suit. Alarmed by the sudden opening of their treasuries to federal courts over which they had no control, states swiftly pushed through Congress and ratified the Eleventh Amendment. Although the facts that triggered the adoption of the Eleventh Amendment are undisputed, the Amendment’s core purpose has long been the subject of debate. While the language of the Amendment suggests that the most immediate purpose was reversing Chisholm v. Georgia and closing state treasuries to federal courts, its broader purpose may have been confirming sovereign immunity as a constitutional principle and thus protecting the states’ dignity interests.