THE MYTH OF SOVEREIGN IMMUNITY: HOW THE COURTS REWROTE THE ELEVENTH AMENDMENT

Glenn Hancock June 8, 2026 0 Comments

I. INTRODUCTION

The doctrine of sovereign immunity — as applied by modern courts to shield state governments from suits by their own citizens — has no basis in the text of the Constitution, no basis in the founding principles of the republic, and no basis in the Eleventh Amendment that courts claim established it. It is a judicial invention, built on a misreading of a constitutional amendment that says something far narrower than what the courts have made of it.

This brief traces the doctrine from its proper origin in Chisholm v. Georgia, through the actual text of the Eleventh Amendment, to the judicial expansion that transformed a limited jurisdictional restriction into a blanket shield against accountability. The conclusion is straightforward: the states are not sovereign over their own citizens, have never been, and the Eleventh Amendment does not say otherwise.

I am from Georgia, so throughout this article, I will use that state as an example of how this plays out. Most of the states follow this same pattern, so you will probably be able to identify the problems in your own state by following these principles.

II. CHISHOLM V. GEORGIA — WHERE SOVEREIGNTY ACTUALLY RESIDES

In 1793, the Supreme Court decided Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793). Alexander Chisholm, a citizen of South Carolina, sued the State of Georgia to recover a debt. Georgia refused to appear, claiming it was a sovereign state and could not be sued without its consent.

The Supreme Court rejected Georgia’s claim. The reasoning was foundational and has never been logically refuted — only ignored.

A. Sovereignty Resides in the People, Not the State

The Court held that under the Constitution of the United States, sovereignty does not reside in the states. It resides in the people. The states are creations of the people — instruments formed to serve the people’s purposes. A creation cannot claim sovereignty over its creator.

Justice Wilson wrote:

“To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety… but that place is the preamble, where the people ordain and establish the Constitution… the people of the United States are sovereign.”

Justice Jay, the Chief Justice, stated:

“The people, in their collective and national capacity, established the present Constitution… every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner; and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves.”

B. A State Cannot Claim Immunity From Its Creator

The logic is inescapable:

The people are sovereign
The people created the states
The states serve at the pleasure of the people
A servant cannot claim immunity from its master
Therefore, the state cannot claim sovereign immunity from its own citizens

This is not a contested legal theory. It is the foundational principle of the American republic: government derives its authority from the consent of the governed. A government that claims immunity from the governed has severed the chain of accountability that justifies its existence.

C. The English Doctrine Does Not Apply

The Court explicitly rejected the English doctrine of sovereign immunity — the principle that “the King can do no wrong.” In England, sovereignty resided in the Crown. The King was the state. You could not sue the King because the King was the source of all law.

America rejected this. There is no king. Sovereignty was deliberately placed in the people. The entire purpose of the revolution was to establish that the government answers to the people, not the reverse. Importing the English doctrine of Crown immunity into a republic that was founded on its rejection is historically and logically incoherent.

III. THE ELEVENTH AMENDMENT — WHAT IT ACTUALLY SAYS

The reaction to Chisholm was swift. States were alarmed that citizens of other states could haul them into federal court to collect debts. The Eleventh Amendment was ratified in 1795. It reads:

“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.”

A. What the Text Says

Read the words. The amendment restricts federal judicial power over suits against a state by:

Citizens of another state
Citizens or subjects of any foreign state

That is all it says. Two categories. Both involve outsiders — people who are not citizens of the state being sued.

B. What the Text Does NOT Say

The amendment does not say:

That a state is immune from suits by its own citizens
That a state possesses sovereign immunity generally
That the state is sovereign at all
That the reasoning of Chisholm is overruled
That the people have surrendered their sovereignty to the state
That the state cannot be held accountable by the people who created it

The word “sovereign” does not appear in the Eleventh Amendment. The concept of state sovereignty over its own citizens does not appear. The idea that a state is immune from accountability to its own people does not appear.

C. The Amendment Addressed a Specific Problem

Chisholm involved a citizen of South Carolina suing Georgia. The states were concerned about outsiders — creditors from other states — dragging them into federal court. The Eleventh Amendment addressed that specific concern: outsiders cannot sue a state in federal court.

It did not address suits by a state’s own citizens because that was not the concern. The founders understood that citizens must be able to hold their own state accountable — that is the essence of self-governance. Stripping citizens of the ability to sue their own state would destroy the relationship between the governed and the government on which the entire constitutional structure depends.

IV. THE JUDICIAL EXPANSION — HOW THE COURTS REWROTE THE AMENDMENT

Despite the plain text of the Eleventh Amendment, the courts expanded it far beyond what it says.

A. Hans v. Louisiana (1890)

In Hans v. Louisiana, 134 U.S. 1 (1890), the Supreme Court held that the Eleventh Amendment bars suits against a state by its own citizens in federal court — even though the amendment’s text only mentions citizens of other states and foreign citizens.

The Court reasoned that the amendment reflected a broader principle of sovereign immunity that pre-existed the Constitution. It argued that the framers of the Eleventh Amendment intended to restore the “presupposition” that states cannot be sued without consent — even though the text does not say this.

This is judicial gap-filling of the most consequential kind. The text says A (other states’ citizens and foreign citizens). The Court decided it means A + B (also the state’s own citizens). The additional meaning appears nowhere in the text.

B. The Irony of Hans

The Court in Hans claimed to be restoring the original understanding that Chisholm was wrongly decided, and the framers always intended states to have sovereign immunity. But:

Chisholm was decided by justices who were contemporaries of the framers, some of whom participated in the Constitutional Convention
The Eleventh Amendment was the response to Chisholm — and it did not overrule Chisholm‘s reasoning about where sovereignty resides
The amendment addressed only the specific jurisdictional issue (outsiders suing states in federal court) — not the broader principle that the people are sovereign
If the framers intended to establish broad sovereign immunity, they would have written an amendment that said so. They didn’t. They wrote a narrow jurisdictional restriction.

C. The Expansion Continues

After Hans, the courts continued to expand sovereign immunity:

States cannot be sued in federal court by their own citizens (Hans)
States cannot be sued in state court without consent (Alden v. Maine, 527 U.S. 706 (1999))
Sovereign immunity extends to state agencies and instrumentalities
State officials acting in their official capacity are protected (with limited exceptions)

Each expansion moved further from the text of the Eleventh Amendment and further from the principle established in Chisholm — that the people are sovereign and the state answers to them.

V. THE GEORGIA EXPERIENCE — CENTER FOR A SUSTAINABLE COAST

In Georgia, the expansion reached its logical extreme in Georgia Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593 (2014). The Georgia Supreme Court held:

“After a full review of this case and the history of sovereign immunity in our State, we find that IBM v. Evans is unsound for four reasons: (1) the clear language of our Constitution authorizes only the General Assembly to waive sovereign immunity; (2) our Constitution does not provide for an exception to the General Assembly’s exclusive authority to waive sovereign immunity; (3) in IBM v. Evans we mischaracterized a waiver of sovereign immunity as an exception to sovereign immunity; and (4) cases we relied on in IBM v. Evans either predate the incorporation of sovereign immunity into our state Constitution or ignored the impact thereof.”

The Georgia Supreme Court eliminated the ultra vires exception — the principle that officials acting outside their lawful authority are not protected by immunity. Under Center for a Sustainable Coast, only the General Assembly can waive sovereign immunity. Period. No judicial exceptions.

This means a Georgia citizen cannot sue a state official for violating the Constitution unless the General Assembly has specifically authorized the citizen to do so. The state has complete immunity from its own citizens unless it chooses to waive that immunity. The people — who created the state — have no recourse against the state unless it grants them permission.

Chisholm said the people are sovereign. Georgia says the state is sovereign. One of them is wrong, and it is not Chisholm.

VI. GEORGIA’S CONSTITUTION CONTRADICTS ITSELF

The contradiction in Georgia is not merely between the state and the federal Constitution. Georgia’s own founding document contradicts itself on this point.

The Preamble to the Georgia Constitution states:

“To perpetuate the principles of free government, insure justice to all, preserve peace, promote the interest and happiness of the citizen and of the family, and transmit to posterity the enjoyment of liberty, we the people of Georgia, relying upon the protection and guidance of Almighty God, do ordain and establish this Constitution.”

Three principles are declared in this single sentence:

“We the people of Georgia… do ordain and establish this Constitution.” The people created the state. The state did not create itself. The government of Georgia exists because the people of Georgia created it.
“To… insure justice to all.” Not to some. Not to those the government chooses. To all. Justice for all citizens is a stated purpose of the government’s existence.
“To perpetuate the principles of free government.” Free government — meaning government that answers to the people, not government that is free from accountability to the people.

Then, within the same document, the Georgia Constitution provides that the state is immune from suit unless the General Assembly consents. The Georgia Supreme Court in Center for a Sustainable Coast interpreted this to mean that no citizen can hold the state accountable without the state’s own permission — and that courts cannot create exceptions.

Read those two provisions together:

The Preamble says: the people created the government to insure justice to all
The immunity provision says: the government the people created is immune from the people unless it chooses not to be

The people created a government to serve them. That government then declared itself immune from them. The founding document promises justice to all, and the immunity provision ensures justice to none — unless the government consents.

This is not a tension between two competing principles that must be balanced. It is a logical impossibility. A government created by the people to insure justice to all cannot simultaneously be immune from those people. One provision must yield, and it cannot be the Preamble — because the Preamble is the statement of purpose from which the entire document derives its authority. Without the Preamble, the Constitution has no legitimacy. Without sovereign immunity, the Constitution still functions — it simply functions as the people intended: with accountability.

Georgia’s sovereign immunity provision does not merely conflict with the federal Constitution or with Chisholm v. Georgia. It conflicts with the stated purpose of Georgia’s own existence.

VII. THE FUNDAMENTAL CONTRADICTION

The doctrine of sovereign immunity as currently applied contains an irreconcilable internal contradiction:

The Constitution says the people are sovereign (”We the People”)
The Declaration of Independence says governments derive their just powers from the consent of the governed
Sovereign immunity says the government cannot be held accountable by the governed without the government’s own consent

If the people are sovereign, they cannot lose the right to hold their government accountable. The government cannot grant itself immunity from its creators. A servant who declares himself immune from his master has not acquired immunity — he has staged a coup.

The Eleventh Amendment did not grant the states sovereignty over their own citizens. It restricted federal jurisdiction over suits by outsiders. The courts took that narrow text and built a doctrine that insulates the government from the people — the exact relationship the founding documents say cannot exist.

VIII. THE PATH FORWARD

A. The Text Controls

Under any legitimate theory of constitutional interpretation — textualism, originalism, plain meaning — the Eleventh Amendment says what it says. It applies to citizens of other states and foreign citizens. It does not apply to a state’s own citizens. Hans v. Louisiana is wrong. It has been wrong since 1890. Every expansion built on Hans compounds the error.

B. Ex Parte Young Already Destroyed Sovereign Immunity — The States Just Haven’t Accepted It

Ex Parte Young, 209 U.S. 123 (1908), is not a crack in the immunity wall. It is a demolition of the wall’s foundation. The states and their courts have simply refused to acknowledge what the decision necessarily means.

The Supreme Court held in Ex Parte Young that when a state official violates the federal Constitution, he is stripped of his official character. He is not acting as the state. He is an individual acting without authority. Because he is not the state, sovereign immunity — which protects the state — does not apply. There is no state action to immunize.

This is not an exception to sovereign immunity. It is a declaration that sovereign immunity does not apply to unconstitutional conduct. The distinction is critical. An exception presupposes a rule that otherwise applies and carves out a limited departure. Ex Parte Young says the rule never applied in the first place because the official who violates the Constitution was never acting as the state.

If that is true — and it is binding Supreme Court precedent — then sovereign immunity as currently applied by state courts rests on a premise the Supreme Court rejected in 1908. Every time a state court dismisses a constitutional claim on sovereign immunity grounds, it is applying a shield to conduct that the Supreme Court has already declared is not state action. You cannot immunize what is not a state act.

The Supremacy Clause makes this binding on state courts.

Haywood v. Drown, 556 U.S. 729 (2009), held that state courts cannot refuse to hear federal constitutional claims. If a state court generally has jurisdiction over similar types of cases, it must hear § 1983 and other federal claims. States cannot create procedural rules designed to avoid federal constitutional questions.

Applied together:

Ex Parte Young says unconstitutional conduct is not state action
Haywood v. Drown says state courts must hear federal constitutional claims
The Supremacy Clause says federal constitutional principles override state law

Georgia’s Center for a Sustainable Coast says only the General Assembly can waive sovereign immunity. But the General Assembly cannot grant immunity that the federal Constitution says does not exist. Georgia cannot legislate or adjudicate its way around a Supreme Court holding that unconstitutional conduct is not state action. The General Assembly’s exclusive authority to waive sovereign immunity is limited to the space the federal Constitution permits — and Ex Parte Young says that space does not include unconstitutional conduct.

Why hasn’t this brought the whole system down?

State courts have treated Ex Parte Young as a narrow federal jurisdictional doctrine — a procedural tool that federal courts use to hear cases against state officials — rather than what it actually is: a constitutional principle that unconstitutional conduct is never state action and therefore never entitled to sovereign immunity in any court.

This mischaracterization serves the states’ interest in preserving immunity. If Ex Parte Young were applied as written — in every court, to every claim of unconstitutional conduct, sovereign immunity would protect only lawful state action. Every claim that a state official violated the Constitution would proceed, because the official would not be “the state” for purposes of immunity.

That is exactly what should happen. Sovereign immunity, if it has any legitimate function, protects the state when it acts within its authority. It was never intended to protect the state when it violates the Constitution. Ex Parte Young says so. The Supremacy Clause makes it binding. The states simply refuse to comply.

The question is not whether Ex Parte Young provides authority to bring sovereign immunity into question. It does. The question is whether any court will apply it as written rather than limiting it to a procedural convenience that preserves as much immunity as possible.

C. The 28th Amendment

My proposed Twenty-Eighth Amendment to the Constitution would address this by requiring that all laws be interpreted in their plain meaning. Under plain meaning interpretation, the Eleventh Amendment restricts federal jurisdiction over suits by outsiders. Period. The judicial expansion beyond that text — Hans, Alden, and every case that followed — is abrogated because it supplies meaning the text does not contain.

Section 2 of the proposed amendment provides: “Silence in the law is not authority to act.” The Eleventh Amendment is silent about suits by a state’s own citizens. That silence is not a grant of immunity — it is the absence of one.

See the post here:

IX. CONCLUSION

Sovereign immunity as currently applied is a fiction — a judicial invention that contradicts the foundational principles of the American republic, misreads the plain text of the Eleventh Amendment, and insulates government from the people who created it.

Chisholm v. Georgia was right. The people are sovereign. The states are their creation. A creation does not have immunity from its creator. The Eleventh Amendment did not change this — it addressed a narrow jurisdictional question about outsiders suing states in federal court. Everything built beyond that text is judicial construction without constitutional authority.

The question is not whether sovereign immunity will eventually be corrected. The question is how much damage it will do before it is.

Constitutional County