Amendment XII
567
ereign immunity,’’ and interpreted the clause literally to mean that a citizen of the State of South Carolina could sue the State of Georgia without
its consent.
The Eleventh Amendment reversed that decision, thereby limiting Federal judicial power, at least in theory. In reality, it affords the States little
protection against Federal courts. The Supreme Court has interpreted the
Amendment to mean that any citizen can sue a State official if that official
is allegedly acting in an illegal or unconstitutional manner. The Court has
reasoned that a State officer who acts beyond the law ceases to be an official of his State. Congress also frequently gets around the Amendment
by conditioning State participation in Federal programs on the States’
willingness to waive immunity.
The Fourteenth Amendment, which prohibits the States from denying
any person life, liberty, or property without due process of law or equal
protection of the law, also blunts the effect of the Eleventh Amendment.
The Supreme Court has held under this Amendment that Federal courts
may stop State officials from enforcing a State law, even if its constitutionality has not yet been determined and has simply been challenged.
The Court has also held that the Eleventh Amendment is limited by the
Enforcement Clause of the Fourteenth Amendment, and that Congress
may authorize persons to sue the States, cities, and counties directly, rather
than State officers, to remedy denials of due process and equal protection.
b . a m e n d m e n t x i i (1804)
The Electors shall meet in their respective States, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the
same State with themselves; they shall name in their ballots the person voted
for as President, and in distinct ballots the person voted for as Vice-President,
and they shall make distinct lists of all persons voted for as President, and of all
persons voted for as Vice-President, and of the number of votes for each, which
lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;— The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The
person having the greatest number of votes for President, shall be the President,