It seems that the Diversity Clause of the US Constitution, which give jurisdiction to federal courts to hear cases between citizens of different States, was included by Framers to avoid a State court to favor its own citizens during a case.

Before developing how I think that States could bypass this clause, I'd say that nowadays this may be less useful that in the past, because since Erie Railroad Co. v. Tompkins (1938) even federal courts must apply state law when no federal question is involved in a case.

However, if a State would like for any reason to take civil suits between its citizens and citizens of another state in its own courts, I think it could use criminal law to do so.

Diversity jurisdiction only applies in civil cases, that I only define as cases arising between private parties, contrasting to criminal cases which oppose an offensor to the State, in violation of criminal law. However, this distinction between civil and criminal may be distorted in any way the statute law wants, such that something arising in fact between parties would rather being considered in law as a crime, and thus not be considered a civil case between citizens, but between a citizen and a State, as a criminal case.

Since the Eleventh Amendment, it is explicit that cases arising between a State and citizen of another state cannot be handled in a federal court, which means that something that would fall under diversity jurisdiction could, if determined by the State as a criminal offense, instead be handled in its own courts. Then the State may collect fines for the original plaintiff (which here becomes the complainant), and it has avoided diversity jurisdiction.

My question is, could the US Supreme Court declare this kind of state law, which would have the goal to resolve an informally civil suit under a criminal case to avoid diversity jurisdiction as a violation of the US Constitution ? I am not aware of any SCOTUS decision which would restrict what could be considered civil or criminal case under state law.

  • @Jen well, if the answer is yes the state has limits, those limits might still be above the ability for the state to bypass the diversity jurisdiction at least in some areas. So my question still stands. Even if there is a limit, and no matter where is this limit, I'd like to know if SCOTUS would strike down any attempt to treat a traditionally civil case as criminal case for the purpose described here.
    – endyx
    Commented Feb 4, 2023 at 11:05
  • @Jen my original question stands first; even though there is no limit to how a civil wrong could be considered by a state as a criminal offense, the SCOTUS might, on another basis, strike down this kind of state law as some sort of distortion of the original goals of the Constitution. And this is what I'd like to know (unless this could not happen at all because there is already a constitutionally-implied limit on what can be considered as a criminal offense).
    – endyx
    Commented Feb 4, 2023 at 11:30
  • Remember: criminal cases have a lot of due process protections that civil cases do not. For instance, a criminal case can’t end in conviction unless the jury is unanimously convinced beyond a reasonable doubt.
    – cpast
    Commented Feb 4, 2023 at 12:41
  • @cpast Yes, but still, I'd like to know if that sort of bypassing the diversity jurisdiction could stand in regards to the Constitution
    – endyx
    Commented Feb 4, 2023 at 19:21

1 Answer 1


Since the Eleventh Amendment, it is explicit that cases arising between a State and citizen of another state cannot be handled in a federal court, ...

This is not correct. What the 11th amendment actually says is that:

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.

That means that if a person from state A directly sues state B, that suit cannot be heard in Federal court. But if state B sues a person from state A, that suit can be herd in Federal court, and probably will be.

The amendment arose in part because of Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), in which A suit against the State of Georgia for an unpaid debt dating from the Revolutionary War was brought in he US Supreme Court by Alexander Chisholm, acting as executor of the Estate of Robert Farquhar. Both Chisholm and Farquhar were residents of South Carolina. The Court, voting 4-1, found for the plaintiff. This decision was overturned, as far as future cases went, by the 11th amendment.

In Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821), the Supreme Court ruled that the amendment did not bar an appeal of a state criminal court conviction from being heard ion a Federal court, when issues of Federal law were relevant.

In Hans v. Louisiana, 134 U.S. 1 (1890) the amendment was interpreted more broadly, and was held to prohibit suits by an individual even against that state ofm which that person was a citizen. This was confirmed in Alden v. Maine, 527 U.S. 706 (1999), in which state employees alleged violations of the overtime provisions laid out in the federal Fair Labor Standards Act (FLSA). The court held that such suits were not allowed, and that Congress had no power to waive state immunity in general, but that congress did have power to waive state immunity to enforce the guarantees, particularly the due process guarantee, of the 14th amendment. Specifically, it held:

in adopting the Fourteenth Amendment, the people required the States to surrender a portion of the sovereignty that had been preserved.... Congress may authorize private suits against nonconsenting States pursuant to its §5 enforcement power... When Congress enacts appropriate legislation to enforce this Amendment, see City of Boerne v. Flores, 521 U.S. 507 (1997), federal interests are paramount.

This ruling was later restricted by Central Virginia Community College v. Katz, 546 U.S. 356 (2006), in which the court held that the Bankruptcy clause of the constitution allowed federal bankruptcy law to authorize suits against states.

However, suits against state officials, which are not in name suits against the state, but have the effect of restricting state action, are allowed in Federal courts. In particular, requests for injunctions against state officials seeking to halt ongoing violations of Federal law, or to prevent clearly threatened future violations, are allowed.

Note that the existence of diversity jurisdiction permits cases to be heard in a Federal court, but it does not bar such cases from state courts. If an out-of-state defendant wishes, s/he may petition for removal of the case to a Federal court. An out-of-state plaintiff may bring the case in Federal court in the first place, but may chose to bring it in state court instead.

A state can pass laws making certain conduct a crime, and in proper cases apply those laws to out-of-state defendants. But that woulds not replace or eliminate a civil cause of action based on the same events. Moreover, in such a case the state would have to prove the conduct beyond a reasonable doubt, rather than the preponderance of the evidence standard normal in civil cases. All the special rights and protections of criminal defendants would apply. The state would have to assume the financial burden of bringing and prosecuting such a suit, costs which would normally be borne by the plaintiff. All this would make such laws, designed to restrict the use of diversity jurisdiction, unlikely.

The US Supreme Court cannot prevent a state from applying its criminal laws against a non-resident of the state. But it can and does enforce against the state the guarantees of the fourteenth amendment, and the various other rights that have been incorporated into the 14th against the states. A prosecution such as is described in the question might run afoul of some of these rights, particularly the right to Equal Protection of the laws. That would depend on exactly what was being prohibited by the state, and whether the law also applied to state residents. A law that applied only to non-residents might well be held to be a violation of the Equal Pprotection Clause of the 14th.

  • I have already read your answer some times ago but forgot to thank you, and coming back on SE after some time, there is something in your answer I would like to be further explained : "But that woulds not replace or eliminate a civil cause of action based on the same events". To me it seems that if a State makes its own law it can totally determine that some event does not constitute a civil tort but a criminal offense and so this would not constitute a civil cause of action, right ?
    – endyx
    Commented Jan 2 at 19:13

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