The Diversity Explanation of the Eleventh Amendment: A Reply to Critics

Abstract

During the past dozen years the original meaning of the Eleventh Amendment has become a matter of active controversy, both among legal scholars and among the justices of the Supreme Court.' Modern Eleventh Amendment doctrine remains governed by the traditional view, which in gross outline holds that the amendment is a jurisdictional bar prohibiting the federal courts from hearing unconsented suits brought against states by out-ofstate citizens or by foreign citizens or subjects.2 The principle from which the amendment derives, though not the text of the amendment, similarly bars unconsented suits brought by in-state citizens.3 The amendment's bar may be avoided or overcome in a number of ways, the most significant of which are suits against individual state officers for prospective relief,4 Congressional abrogation of the amendment by explicit statutory language,5 and volun-