Sunday, December 27, 2009

Sovereign Immunity: An Analysis of the Framers' Intent


“The law also ascribes to the King in his political capacity absolute perfection. The King can do no wrong” - Blackstone’s Commentaries Book III, Chapter 17 (1765-1769)

In 1783, the Treaty of Paris successfully ended America’s Revolutionary War against the military behemoth Great Britain.[1] America, the victor of the war, was finally able to claim its independence from British rule. American political philosophers such as James Madison, Thomas Jefferson, and Alexander Hamilton were more than ready to rid the colonies from the yoke of British monarchy, and in turn craft a new independent system of governance. In many ways, Madison and company sought to distance this new creation of governance from any of the precepts that were consistent with the British government. Nobility, primogeniture, little representation, and hardly any governmental accountability included some of the negative aspects of Britain that our Founders so deeply resented. Our Founders greatly succeeded in the establishment of a government and Constitution that looked nothing like Britain; they had created a Republic.

Interestingly enough, the Founding Fathers did not distance themselves from every aspect of English common law. A doctrine known as “sovereign immunity,” which has its basis in English common law, somehow remained intact in this new American government and in fact still remains today. Generally speaking, and for the purposes of this paper, sovereign immunity is essentially a legal privilege that asserts that the federal government and state governments cannot be sued by a private citizen in federal court without the government’s consent.
If one were to observe the historical underpinnings of how this republic was formulated, it seems rather peculiar how this doctrine of sovereign immunity could have been adopted by our Founders. How could the Founders have intended that the state or federal government could not be sued if they had done wrong to a private citizen? How could the Founders have believed and accepted a doctrine so antithetical to their belief system in government? Did the Founders even intend for sovereign immunity to remain as a legal concept and if so, why?

Even though a literal interpretation of the text of the Constitution does not establish an affirmative doctrine of sovereign immunity, it can be inferred from the Founders’ writings, debates, letters, and from the silence itself that undoubtedly, the Founders never intended for a private citizen to be able to sue a sovereign state in federal court without that state’s consent.

Historical Basis of Sovereign Immunity

As previously mentioned, the doctrine of sovereign immunity is a legal concept derived from English common law. The original phrasing of this doctrine comes from the idea that “the King can do no Wrong.”[2] As scholars have noted, this phrase has many possible meanings. One interpretation seems to suggest that when a wrong has occurred, someone else must have done it, since the King can do no wrong. Other interpretations suggest that perhaps it merely meant that because a King cannot do a wrong, a remedy must exist if harm has been done, or, that “the King must not, was not allowed, not entitled, to do wrong…”[3] While these interpretations may very well have had merit in the era and time of the Crown in England, certainly it can be said that the doctrine of sovereign immunity in American jurisprudence developed in such a way that meant to preclude suits against the sovereign.

The historical roots of sovereign immunity come from Edward the First’s reign in England from 1272 to 1307.[4] The United States Supreme Court has also accepted the origin of sovereign immunity to come from the time of Edward the First.[5] Before Edward the First, some scholars have postulated that it had been possible for British citizens to bring the Crown into court as a defendant like a common person, although this is not entirely clear.[6] However, when Edward the First came to power after his father, it seems certain that thereafter the principle became fully established that the King could not be made a defendant in any court, and was not subject to the writs and process of the courts.[7]

In Sir Edward Coke's Institutes, he states: "It is a maxim of the law that the King can do no wrong."[8] A glimpse into the meaning of this doctrine was formulated by Sir William Blackstone, who postulated on the concept of sovereign immunity by stating:

"This maxim is not to be understood as if everything trans-acted by the government was of course just and lawful, but means only two things: First, that whatever is exceptionable in the conduct of public affairs is not to be imputed to the King, nor is he answerable for it personally to the people. And secondly, it means that the prerogative of the Crown extends not to do any injury; it is created for the benefit of the people and therefore cannot be exerted to their prejudice… The King, moreover, is not only incapable of doing wrong, but even of thinking wrong: he can never mean to do an improper thing; in him is no folly or weakness.”[9](emphasis added)

From this passage it is obvious that even the most prominent British scholars and jurists of the 18th century believed the King to be something above the law. Even though this archaic legal concept was prominent, English law eventually began to develop and draw away from the complete bar of suit upon the King.[10] In fact, if the case was not involving a tort claim, the subject could by petition to the King, obtain leave to sue.[11] This principle was eventually codified in statute and the remedy extended to any cause or complaint for “injury to or deprivation of property or the breach of contract made by or on behalf of the Crown.”[12] It is unquestionably true that the precept of sovereign immunity was an established foundation in English law, and for better or worse, the legal concept found its way into American jurisprudence.

Article III, Section II Debate

During the Constitutional Convention in Philadelphia in 1787, there is no evidence to suggest that there was any discussion regarding the concept of sovereign immunity.[13] Yet, the issue did arise in the state ratifying conventions, in particular, the Virginia Convention.[14]

In the Federalist and Anti-Federalist debates, there was a rigorous dispute over the meaning of Article III, Section II. This provision of the US Constitution permits suit “between a State and Citizens of another State.”[15] The Anti-Federalists were concerned that this provision allowed a private citizen of one state to sue another state in federal court. Two leading Anti-Federalists, George Mason and Patrick Henry, were very clear on the absolute rejection of this clause as they saw it taking away too much sovereignty from the states.[16] Mason, in interpreting Article III, Section II stated, “Claims respecting those lands, every liquidated account, or other claim against this state, will be tried before the federal court. Is not this disgraceful? Is this state to be brought to the bar of justice like a delinquent individual? Is the sovereignty of the state to be arraigned like a culprit, or private offender?”[17] Mason’s statement is significant in that it mirrors Sir Coke or Sir Blackstone’s steadfast contention that the sovereign must be protected from suits against private citizens. Of course in the American context, the sovereign implicated are the states that comprise the Union.

The Virginia statesman and Anti-Federalist Patrick Henry was equally discontent about the language in Article III, Section II.[18] He too believed that, without a doubt, the language allowed a private citizen to sue a state in federal court.[19] Henry, in response to the argument that Article III only warrants a State to be a plaintiff and not a defendant, stated, “What says the paper? That it shall have cognizance of controversies between a state and citizens of another state, without discriminating between plaintiff and defendant.”[20] Clearly, the philosophy of the Anti-Federalists was in direct conflict with Article III, Section II, and it is indeed apparent that the Anti-Federalists readily adopted the concept of sovereign immunity.

The Federalists interpreted Article III, Section II quite differently from that of their counterparts. While some scholars argue that there was a division between the Federalists on the interpretation of Article III, Section II, there is very little evidence supporting this claim. Two Federalists, Edmund Randolph and Timothy Pickering are said to support the Article III interpretation which holds that states should and could be sued in federal court without their consent.[21] The scant evidence of Randolph’s support is based on a theoretical statement he made as a member of the Committee of Detail at the Constitutional Convention, in which he said, “I ask the Convention of the free people of Virginia if there can be honesty in rejecting the government because justice is to be done by it? Are we to say that we shall discard this government because it would make us all honest?”[22] This is hardly an endorsement of the idea that sovereign immunity should not exist for the states and that they could and should be sued by private individuals. Somehow, contemporary scholars interpret this statement to mean that Randolph wanted people who were wronged by the government to have an effective avenue to receive redress.[23] Simply put, Randolph’s statement is ambiguous at best on the interpretation of Article III, Section II.

The other Federalist, Timothy Pickering, did in fact believe that the reading of Article III, Section II permitted private suits against states in federal court.[24] However, his main consideration was, assuming suits are allowed against states, they most certainly should be adjudicated in federal court rather than state court, for purposes of impartiality.[25] In interpreting Article III, Section II, Pickering stated, “…it seems to be a wise provision which puts it in the power of such foreigners and citizens to resort to a court where they may reasonably expect to obtain impartial justice.”[26] While it seems as though he accepted the idea of suit against state governments, Pickering was only addressing the concern that, assuming suits were allowed, it is best they be adjudicated in federal court and not state courts. Again, this is not an all-out endorsement of the idea that states should be sued, only that impartiality is better determined in federal court.

Most of the Federalists agreed with the views promulgated by James Madison, Alexander Hamilton, and John Marshall. The essential argument was that Article III did not override state sovereignty and, notwithstanding the provisions, states could only be sued in federal court if they consented to be a party in litigation.[27] According to Alexander Hamilton, Article III, Section II was not intended to mean that any state would be subject to suit by a private citizen. Hamilton wrote in The Federalist 81,

“It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. Unless, therefore, there is a surrender of this immunity, it will remain with the States.”[28]

Hamilton believed not only in the idea that the individual states could not be sued in federal court because of their sovereign status, but also that it was implicit in the natural order of law.[29] While Hamilton is noted for his extensive adoration of certain British doctrines, he was not the only fervent supporter of states being precluded from suit by private citizens.
James Madison, often dubbed the “Father of our Constitution,” also accepted and endorsed the extension of the legal precept of sovereign immunity to the states.[30]

During the Virginia ratifying convention, Madison addressed the arguments against the proposed Article III, Section II provision. Madison agreed with his Anti-Federalist adversaries that states were in fact immune from suits brought by private citizens.[31] At the convention, Madison exclaimed, “Jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of any individuals to call any state into court.”[32] (emphasis added) Madison’s intention behind the language of Article III, Section II was merely to allow states to serve as plaintiffs, not as defendants.[33] He further stated in his speech before the Virginia state ratifying convention, “The only operation [Article III, Section II) can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court.”[34]

On the same date at the same Virginia convention, John Marshall exclaimed, “I hope that no gentleman will think that a state will be called at the bar of the federal court.”[35] Marshall then reinforced Madison’s interpretation of Article III, Section II by further stating, “It is not rational to suppose that the sovereign power should be dragged before a court. The intent is, to enable states to recover claims of individuals residing in other states.”[36] While the Virginia convention was debating this provision of the Constitution, the New York convention recommended an amendment to the Constitution that cleared up this confusion.[37] New York wanted to include language which said the Constitution should not “be construed to authorize any suit to be brought against any state, in any manner whatever.”[38] However, the amendment was never passed due to the fact that most considered it simply unnecessary.

It is quite clear that Madison, Hamilton, and Marshall, all three giants in the creation, construction and interpretation of the Constitution, were of the same mind on this issue: Article III, Section II did not mean that citizens of a state could not bring suit against another state in federal court without that state’s consent. Further, an entire convention in New York voted to amend the Constitution to exclude suits against states altogether.[39] While the text does not explicitly limit and provide the restriction that states cannot be defendants, the Framers’ writings and debates provide clear, unwavering evidence that the provision was solely meant to be read in the way the Federalists intended it to be read.

Chisholm v. Georgia & the
Ratification of the Eleventh Amendment

While it certainly seemed clear to the Federalists that Article III, Section II did not permit states to be sued as defendants, it wasn’t so clear for the Supreme Court. In 1793, the Supreme Court addressed the interpretation of Article III, Section II in a case entitled Chisholm v. Georgia. The issue before the Court was whether a suit could be brought against one of the American states by a citizen of another state.[40]

In 1777, the Executive Council of Georgia authorized Thomas Stone and Edward Davies, as commissioners of the state, to purchase goods from Robert Farquhar, a businessman in Charleston, South Carolina.[41] The goods were to be used for supplies in the Revolutionary War, and Georgia had contracted to pay Farquhar roughly $169,000 for the supplies.[42] The goods were delivered, but Farquhar never received payment from the Executive Council members.[43] Seven years later, still without having received payment on the supplies, Farquhar was knocked overboard from his boat and drowned after he was hit by a pilot boat coming into the harbor of Savannah.[44] One of the executors of Farquhar’s estate, Alexander Chisholm, decided to bring suit against the state of Georgia to recover payment that was never delivered, even though the obligations of Farquhar’s end of the contract had been completed.[45] Georgia rejected the complaint and claimed they were immune from suit because of sovereign immunity.[46]

Each of the five justices delivered their own opinion in the case, as was the customary rule in early Supreme Court cases. In a 4-1 decision, the Court decided to reject the views of Madison and Hamilton, and held that Georgia could act as a defendant in federal court when sued by a citizen of another state.[47] The Anti-Federalists concern about the wording of Article III, Section II had finally come to light. The Court in Chisholm based its rationale on the fact that Article III, Section II had fully abrogated the states’ sovereign immunity and essentially granted the federal courts to hear disputes between private citizens and states.[48] The lone dissenter, Justice Iredell, argued that the Judiciary Act of 1789 only authorized courts to issue writs “agreeable to the principles and usages of law.”[49] His rationale was that under common law, nothing deviated from the tradition pertaining to the sovereign immunity of the King. Iredell claimed that this tradition excluded a non-consenting common law action to recover a debt from a state.[50]

The Chisholm decision was not received well by the rest of the country, largely due to the fact that private citizens were now filing suits against other states at high volumes.[51] Less than a year from the Court’s holding, a resolution was passed in the House of Representatives and Senate which sought to amend the Constitution.[52] The Senate passed the amendment by a vote of 23-2, and a couple months later the House adopted it by a vote of 81-9.[53] On February 7, 1795, North Carolina became the twelfth and final necessary state to ratify the Eleventh Amendment to the US Constitution.[54] The amendment was a byproduct of the reaction to Chisholm, and amazingly it took only one year for three-fourths of the state legislatures to ratify the Eleventh Amendment.
The Eleventh Amendment of Constitution states,

“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.”[55]

The language in the Eleventh Amendment has perplexed jurists and scholars today since it did not bar all suits against states in federal court. The Amendment specifically forbids suits brought by a private citizen of State A against State B, but does not preclude a suit brought by a private citizen in State A against State A. Thus, a literal interpretation of the Amendment would not preclude all suits against states in federal courts.

However, Chief Justice Rehnquist has argued that there is a reasonable and understandable explanation for this discrepancy. In Seminole Tribe v. Florida, 517 U.S. 44, (1996), Rehnquist argued “the text of the 11th Amendment dealt in terms only with the problem presented by the decision in Chisholm; in light of the fact that the federal courts did not have federal-question jurisdiction at the time the Amendment was passed (and would not have until 1875), it seems unlikely that much thought was given to the prospect of federal-question jurisdiction over the state.”[56] When Congress passed the Judiciary Act of 1789, the Act itself did not confer general federal question jurisdiction to the federal courts, but instead left remedies available in state courts with appeals to the Supreme Court if the claims were federal in nature.[57] As Rehnquist rightly points out, it was not until 1875 when the federal courts were finally vested with the broader judicial power to hear cases arising from a federal question.[58]

Thus, the main justification for the discrepancy upon the literal interpretation of the Eleventh Amendment is due not to the fact that the Framers’ sought to allow suits against states, but rather only that it was inconceivable that a citizen could bring forth a claim in federal court on any other basis than diversity jurisdiction. It is without a doubt that the Framers would have curbed the power of a citizen to sue his own state if they had conceived of this federal question jurisdiction possibility.

Cohens v. Virginia / Hans v. Louisiana:
Interpreting the Eleventh Amendment

One of then first Supreme Court cases that dealt with the idea of sovereign immunity was an 1821 case entitled Cohens v. Virginia.[59] Chief Justice Marshall delivered the majority opinion of the court and established that the federal court maintained no jurisdiction to hear a suit brought against the state of Virginia.[60] In support of this holding, Marshall keenly observed that the states had retained their sovereign status prior to country ratifying the Constitution and forming a Union.[61] Justice Marshall stated,

“It is an axiom in politics that a sovereign and independent state is not liable to the suit of any individual, nor amenable to any judicial power, without its own consent. All the States of this union were sovereign and independent before they became parties to the federal compact: hence I infer that the judicial power of the United States would not have extended to them”[62]

Justice Marshall then went on to interpret the Eleventh Amendment much more broadly than what the language actually read. Marshall stated, “The case of a contest between a State and one of its own citizens, is not included in this enumeration; and, consequently, if the principle which I have advanced be a sound one, the judicial power of the United States does not extend to it…then it is the simple case of a contest between a State and one of its own citizens, which does not fall within the pale of federal judicial power.”[63] (emphasis added) From Marshall’s opinion, it is quite obvious that in 1821, the federal courts were not to entertain suits brought by private citizens even if they resided in the state in which they brought a suit against, unless the sovereign state had consented. Chief Justice Hughes reiterated Justice Marshall’s sovereignty view some 100 years later in Monaco v. Mississippi.[64] Hughes stated, “There is also the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent.”[65] Justice Kennedy reinforced this view in the majority in Alden v. Maine as he stated, “The founding document specifically recognizes the states as sovereign entities… “[T]he States entered the federal system with their sovereignty intact.”[66]

In an 1890 case entitled Hans v. Louisiana, the Supreme Court again addressed the possibility of the Eleventh Amendment precluding suits against states from their own citizens.[67]

The Hans case involved a suit filed by a citizen of Louisiana against the state of Louisiana after Louisiana had essentially repudiated the interest on state bonds held by Hans.[68] Hans then sued in federal court, arguing that the state's refusal to make the payments as required by the contract with the state violated the Contract Clause of the Constitution.[69] On the notion that his case arose under the Constitution, Hans filed in federal circuit court under the fairly new statute providing for federal question jurisdiction.[70] Louisiana argued that it was not subject to suit and cited the Eleventh Amendment and the broad doctrine of sovereign immunity to support its claim.[71] Naturally, Hans asserted that he was not obstructed by the Eleventh Amendment since it only precluded suits against citizens from another state.[72]

Justice Joseph Bradley delivered the majority opinion for the Court, and by a vote of 9-0, the Supreme Court held that because Louisiana had not consented to jurisdiction in the present case, the Court could not exercise jurisdiction over the matter even if there were legal grounds for the underlying suit.[73] Like Marshall had done in Cohens v. Virginia, the Court extended the meaning of the Eleventh Amendment to bar any and all suits against states in federal court without their consent.[74] Bradley suggested that the Amendment’s history was a clear repudiation of the decision in Chisholm, and that it stood to reject suits against states regardless of where the citizen resided.[75] The majority opinion in Hans gave constitutional weight to Iredell’s Chisholm dissent and to the vision of Madison, Hamilton, and Justice Marshall whose declarations during the ratification debates “expressly disclaimed, and even resented" any notion that "the judicial Power" authorized non-consenting suits by citizens against the sovereign states.[76]

While the Court did acknowledge that the letter of the Eleventh Amendment did not extend to Hans lawsuit, the Court based its holding on the historical intentions of the Founding Fathers.[77] The majority in Hans also pointed out that under the Articles of Confederation, states could not be sued by private citizens.[78] Bradley stated in his opinion, quoting Justice McLean, “Under the Articles of Confederation, a State could be sued only in cases of boundary. It is believed that there is no case where a suit has been brought, at any time, on bills of credit against a State; and it is certain that no suit could have been maintained on this ground prior to the Constitution."[79] In essence, the Court simply found it inconceivable that the Framers would have allowed for federal question claims against the states.[80] Justice Bradley wrote,

“Can we suppose that, when the Eleventh Amendment was adopted, it was understood to be left open for citizens of a State to sue their own state in the federal courts, whilst the idea of suits by citizens of other states, or of foreign states, was indignantly repelled? Suppose that Congress, when proposing the Eleventh Amendment, had appended to it a proviso that nothing therein contained should prevent a State from being sued by its own citizens in cases arising under the Constitution or laws of the United States: can we imagine that it would have been adopted by the States? The supposition that it would is almost an absurdity on its face.”[81]

Basically, the majority in Hans relied on the broader political context and the sentiments of the Framers’ era to infer a more expansive spirit than the Amendment's text could bear, and then applied that spirit over the letter of the Amendment.[82] Accordingly, future Supreme Court decisions have in fact credited Hans in establishing "Eleventh Amendment immunity" against federal question actions brought against a state by its own citizens.[83] As previously mentioned, the majority opinion also gave weight to the “shock and surprise” of the American populace after Chisholm was handed down in 1793, and the Court was fearful of another sort of reaction by the states.[84] Thus, the majority in Hans concluded that "the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the constitution when establishing the judicial power of the United States.”[85]

Even though the Hans court did not abide by a purely textual interpretation of the Eleventh Amendment, the Court nonetheless came down on the correct side of the intentions of our Framers. In looking to history and the circumstances of how the Eleventh Amendment was enacted and adopted, the Court in Hans, without a doubt, applied the appropriate methodology in its approach to the decision and reached the most rational and historically accurate legal conclusion.

Seminole Tribe v. Florida
Congress and Sovereign Immunity

In Seminole Tribe v. Florida, the Supreme Court held, by a 5-4 margin, that Congress lacks the constitutional authority, when acting pursuant to the Commerce Clause, to abrogate sovereign immunity afforded to the states under the Eleventh Amendment of the U.S. Constitution.[86] This decision, while indeed controversial, was consistent with our Framers understanding of the necessity of sovereign immunity and the weakness of the Commerce Clause itself.

In 1988, Congress passed the Indian Regulatory Gaming Act which was designed to restore to the states a role in regulating gaming operated by Indian Tribes.[87] The section of the Act at issue stated, “The United States district courts shall have jurisdiction over (i) any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe.”[88] If the district court finds that the state failed to negotiate in good faith, then the Act allows the court to "order the State and Indian tribe to conclude such a compact" within sixty days.[89] The dispute between the Seminole Tribe and state of Florida occurred when negotiations broke down, and thereafter the Tribe sued the state of Florida and the Governor in federal court alleging that the defendants did not negotiate in “good faith.”[90]

Writing for the majority, Justice Rehnquist stated that while Congress does have power to abrogate sovereign immunity under Section 5 of the 14th Amendment, it does not have the constitutional authority to abrogate under Article I’s grant of legislative authority.[91] Rehnquist essentially reaffirmed that Article III, Section II did not override the states’ sovereign immunity and that this principle was clearly established with the Eleventh Amendment specifically rejecting the Chisholm decision.[92] Not only did Rehnquist reaffirm the Hans interpretation of the Eleventh Amendment, Rehnquist went further and overruled an earlier case entitled Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).[93]

In Union Gas, Justice Brennan, writing for the majority, had concluded that Congress did in fact possess Article I authority to abrogate state sovereign immunity.[94] In overruling this conclusion, Rehnquist defended the idea that the Eleventh Amendment embodies a broader principle that “state sovereign immunity limited the federal courts jurisdiction under Article III.”[95] From this premise, the Court held that allowing Congress to abrogate sovereign immunity of the states under Article I would contradict the fundamental principle that Congress cannot “expand the jurisdiction of the federal courts beyond the bounds of Article III.”[96]

Writing for the dissent in Union Gas, Justice Scalia remarked on the general nature of the Eleventh Amendment, and invoked the precedent and rationale set forth in Hans.[97] Scalia stated, “What we said in Hans was, essentially, that the Eleventh Amend-ment was important not merely for what is said but for what it reflected: a consensus that the doctrine of sovereign immunity, for States as well as for the Federal Government, was part of the understood background against which the Constitution was adopted, and which its jurisdictional provisions did not mean to sweep away.”[98]

Justice Souter, writing a dissenting opinion in Seminole Tribe, stated “There is almost no evidence that the generation of the Framers thought sovereign immunity was fundamental in the sense of being unalterable.”[99] Here, Souter is essentially suggesting that since the Founding Fathers never specifically said that Congress could not abrogate a states’ sovereign immunity from the Eleventh Amendment, then clearly Congress should have that power under the Commerce Clause. Souter is unfortunately framing the issue incorrectly. The reason there is little evidence on the Framers interpretation of abrogation of sovereign immunity is simply because the Framers never even considered it a possibility. Sovereign immunity for the states was embedded in the minds of our Framers, and surely Madison would never have agreed that the Commerce Clause could abrogate a states’ sovereignty.

As Justice Kennedy points out in the majority opinion in Alden v. Maine, “We believe, however, that the Founders’ silence is best explained by the simple fact that no one, not even the Constitution’s most ardent opponents, suggested the document might strip the States of the immunity…It suggests the sovereign’s right to assert immunity from suit in its own courts was a principle so well established that no one conceived it would be altered by the new Constitution.”[100]

Exceptions to Sovereign Immunity

Today, the concept of sovereign immunity has been limited and restricted in several different cases. Whether the Founders had intended that this concept be subject to restriction is most certainly unknown, most likely they would have supported these extensions for a state to be sued.

The first and foremost exception to sovereign immunity is an exception that even our Founders espoused. This is the notion that a state can in fact waive its sovereign immunity and consent to jurisdiction in court. As the majority in Alden v. Maine point out, “Sovereign immunity bars suits only in the absence of state consent.”[101] Consent can either be express or implied, and if a state brings a suit against an individual, countersuit is obviously a case of implied consent.[102] Often, a state may consent to suit if it wishes to hold itself accountable for actions or perhaps to set a precedent for future actions.

The second meaningful exception to sovereign immunity of the states is that state officers can be sued for prospective injunctive relief, or non-monetary relief. In a 1908 case entitled Ex Parte Young, the Supreme Court upheld an order restraining the state's attorney general from bringing suit under a statute alleged to trench on constitutional rights.[103] By authorizing suit in Young, the Supreme Court essentially established an implied cause of action for injunctive relief against state officials whose conduct violates the Fourteenth Amendment.[104] Accordingly, the majority held that state officials who act in violation of the Constitution are taken out of their official capacity and, thus, they lose the protection of state sovereign status.[105] The Supreme Court in Pennhurst State School & Hospital v Halderman, further recognized the principle in Young as "necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to 'the supreme authority of the United States."[106] Two years later, in Green v. Mansour, the Supreme Court interpreted the injunctive relief of Young as "giving life to the Supremacy Clause" because “remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law.”[107] Thus, sovereign immunity does not extend to state officials who enforce law that is in clear violation of the Constitution and are subject to suit in federal court.

The third exception of sovereign immunity is suits which have been abrogated by Congress. As this paper has already mentioned, the constitutional authority of Congressional abrogation of sovereign immunity cannot and does not rest in Article I pursuant to the Commerce Clause.[108] However, the Supreme Court has held that Congress can abrogate the sovereign immunity of states when acting appropriately under power granted by Section 5 of the Fourteenth Amendment.[109] As an example of this abrogation, the Supreme Court held in 1976 in a case entitled Fitzpatrick v. Bitzer, that the Fourteenth Amendment gives Congress the power to override a State's Eleventh Amendment sovereign immunity for the purpose of enforcing civil rights on the States.[110] The Supreme Court in Fitzpatrick stated, “Congress may authorize private suits against non-consenting States pursuant to its Section 5 enforcement power.”[111] It is more than likely the Framers would have considered this a valid abrogation of sovereign immunity since Madison and Jefferson both wrote Resolutions which considered nullifying federal law that was inconsistent with the provisions of the Constitution.[112]

These are the three most prominent and significant exceptions to sovereign immunity which the Supreme Court wholeheartedly accepts today. All three exceptions would most likely be viewed favorably by the Founders.


In conclusion, the concept of sovereign immunity was undoubtedly an English law precept that the Framers wished to carry over to American jurisprudence. The English jurists such as Blackstone and Coke both saw sovereign immunity and suits against the King as something instilled and embedded in natural law. From the ratification debates, it was clear that only a few individuals sought to interpret Article III, Section II as allowing private citizens to sue states as defendants in federal court. Madison, Hamilton, and Marshall all believed that this possibility was antithetical to the states’ retaining their sovereign status after the formation of the Union. Even though the Court in Chisholm held that states were not immune from suits, the Eleventh Amendment was quickly ratified to repudiate that very decision. In turn, the amendment was interpreted in Cohens and later in the Hans decision to bar all suits against states, even if the citizen resides in the state he seeks to sue. The spirit and historical intentions of our Founders were used to buttress these decisions. The Supreme Court limited Congressional abrogation in the Seminole Tribe decision, which further restricted Congress’ Commerce Clause reach onto the states. It can be said that the reason the Eleventh Amendment did not extend to all citizens was simply because the Founders never considered federal question jurisdiction, which came to light after 1875. The Supreme Court consistently acknowledged that the states retained their sovereign status after the formation of the Union, and in turn, retained the right not to be brought before a federal court by a private actor without its consent. Today, the major exceptions of sovereign immunity extend an avenue for a remedy to citizens that would not receive one if sovereign immunity was deemed absolute. Indeed it is not, and the Founders’ most likely would have agreed with these exceptions.

Sovereign immunity is a legal concept that the Framers clearly intended to keep intact when they structured the Constitution, and the historical debates, writings, and subsequent Supreme Court decisions prove this to hold true.

[1] Morris, Richard. “The Great Peace of 1783,” Proceedings of the Massachusetts Historical Society, Third Series, Vol. 95 (1983) p. 29
[2] Chemerinsky, Erwin. “Against Sovereign Immunity.” Vol. 53 Stanford Law Review (2000-2001). pg. 1201
[3] Jaffe, Louis L. “Suits Against Governments and Officers: Sovereign Immunity.” Vol. 77 No. 1 Harvard Law Review (1963). pg. 4
[4] United States v. Lee, 106 U.S. 196 (1882) citing Chief Barons Comyns, 1 Digest, 132 Action C.
[5] 106 U.S. 196 (1882)
[6] Barry, Herbert. “The King Can Do No Wrong.” Vol. 11 No. 5 Virginia Law Review (1925). p. 352
[7] Barry, p. 353
[8] Barry, p. 353 quoting Coke’s Institutes, 73.
[9] Blackstone, William. Commentaries on the Laws of England 6 (Chitty Ed. 1855).
[10] Barry, p. 355
[11] Barry, p. 355
[12] Barry, p. 355
[13] Chemerinsky, p. 1206
[14] Chemerinsky, p. 1206
[15] “The Constitution of the United States," Article III, Section II.
[16] Chemerinsky, p. 1207
[17] Elliot, Jonathan. The Debates in the Several States Conventions on the Adoption of the Federal Constitution, (1937). p. 526-527
[18] Chemerinsky, p. 1207
[19] Chemerinsky, p. 1207
[20] Elliot, p. 543
[21] Chemerinsky, p. 1207-1208
[22] Elliot, p. 575
[23] Chemerinsky, p. 1207-1208
[24] Chemerinsky, p.1208
[25] Chemerinsky, p. 1208
[26] Philip B. Kurland and Ralph Lerner, eds., The Founders’ Constitution (Chicago: University of Chicago Press, 1987) Document 12.
[27] Chemerinsky, p. 1208
[28] Alexander Hamilton, "Federalist #81," in The Federalist Papers, ed. Clinton Rossiter (New York: New American Library, 1961)
[29] Hamilton, “Federalist No. 81”
[30] Manning, John. “The Eleventh Amendment and the Precise Reading of Constitutional Texts,” Vol. 113 No. 8 (2004) p. 1674
[31] Chemerinsky, p. 1208
[32] Elliot, p. 533
[33] Chemerinsky, p. 1208
[34] Field, Martha. “The Eleventh Amendment and other Sovereign Immunity Doctrines: Part 1,” University of Pennsylvania Law Review Vol. 126 No. 3 (1978) p. 527
[35] Field, p. 528
[36] Field, p. 528
[37] Field, p. 529
[38] Field, p. 529
[39] Field, p. 529
[40] Mathis, Doyle. “Chisholm v. Georgia: Background and Settlement,” The Journal of American History, Vol. 54 No. 1 (1967) p. 19
[41] Mathis, p. 20
[42] Mathis, p. 20
[43] Mathis, p. 21
[44] Mathis, p. 21
[45] Mathis, p. 21
[46] Mathis, p. 21
[47] Mathis, p. 25
[48] Mathis, p. 25
[49] Manning, p. 1679
[50] Manning, p. 1679
[51] Mathis, p. 25
[52] Mathis, p. 26
[53] Mathis, p. 26
[54] Mathis, p. 26
[55] “The Constitution of the United States," Eleventh Amendment
[56] Seminole Tribe v. Florida, 517 U.S. 44, 69-70 (1996)
[57] Warren, Charles. “New Light on the History of the Federal Judiciary Act of 1789.” Harvard Law Review Vol. 37 No.1 (1932) p. 62
[58] Warren, p. 62
[59] Roark, Mark L. Our Sovereign Body: Narrating the Fiction of Sovereign Immunity in the Supreme Court. Smith Gambrell & Russell (2006). p. 8
[60] Roark, p. 8
[61] Roark, p. 8
[62] Cohens v. Virginia, 19 U.S. 264, 53 (1821)
[63] Cohens, 19 U.S. at 54
[64] Principality of Monaco v. Mississippi, 292 U.S. 313 (1934)
[65] Monaco, 292 U.S. at 322
[66] Alden v. Maine, 527 U.S. 706, (1999) quoting Seminole Tribe of Fla. v. Florida, supra, at 71, n. 15; accord, Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991)
[67] Hans v. Louisiana, 134 U.S. 1, 21 (1890)
[68] Manning, p. 1681
[69] Manning, p. 1681
[70] Manning, p. 1681
[71] Manning, p. 1681
[72] Manning, p. 1681
[73] Hans v. Louisiana, 134 U.S. 1, 21 (1890)
[74] Hans, 134 U.S. at 18
[75] Manning, p. 1682
[76] Manning, p. 1682
[77] Manning, p. 1683
[78] Manning, p. 1683
[79] Hans, 134 U.S. at 16
[80] Manning, p. 1683
[81] Hans, 134 U.S. at 15
[82] Manning, p. 1683
[83] Manning, p. 1683
[84] Manning, p. 1667
[85] Hans, 134 U.S. at 15
[86] Meltzer, Daniel. “The Seminole Decision and State Sovereign Immunity,” The Supreme Court Review Vol. 1996 (1996) p. 2
[87] Meltzer, p. 2
[88] 10 Pub L No 100-497, 102 Stat 2374 (1988), codified at 25 USC 2701(d)(7)(A) et seq.
[89] Meltzer, p. 4
[90] Meltzer, p. 5
[91] Meltzer, p. 6
[92] Meltzer, p. 20
[93] Seminole Tribe v. Florida, 517 U.S. 44, 64 (1996)
[94] Manning, p. 1687 (footnote 92)
[95] Seminole Tribe v. Florida, 517 U.S. 44, 64 (1996)
[96] Seminole Tribe, 517 U.S. at 65
[97] Hovenkamp, Herbert. “Judicial Restraint and Constitutional Federalism: The Supreme Court’s Lopez and Seminole Tribe Decisions,” Columbia Law Review Vol. 96 No. 8 (1996) p. 2243
[98] Union Gas, 491 U.S. 1, 31-32 (1989)
[99] Seminole Tribe, 517 U.S. at 706, 764 (Souter, J. dissenting)
[100] Alden v. Maine, 527 U.S. 706, 741 (1999)
[101] Weiman, Theodore J. “Jurisdiction Stripping, Constitutional Supremacy, and the Implications of Ex Parte Young,” University of Pennsylvania Law Review Vol. 153, No. 5 (2005) p. 1695
[102] Ferrara, Donna. “Insurance Issues Surrounding Sovereign Immunity and Employment Practices Liability,” Public Entity Risk Institute (2005)

[103] Meltzer, p. 33
[104] Meltzer, p. 38
[105] Weiman, Theodore J. “Jurisdiction Stripping, Constitutional Supremacy, and the Implications of Ex Parte Young,” University of Pennsylvania Law Review Vol. 153, No. 5 (2005) p. 1696
[106] Pennhurst State School & Hospital v Halderman, 465 U. S. 89, 105 (1984)
[107] Green v. Mansour, 474 U.S. 64, 68 (1985)
[108] Seminole Tribe, 517 U.S. at 65
[109] Weiman, p. 1695
[110] Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)
[111] Alden, at 756 citing Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)
[112] Adrienne Koch and Harry Amon. “The Virginia and Kentucky Resolutions: An Episode in Jefferson’s and Madison’s Defense of Civil Liberties,” The William and Mary Quaterly, Third Series, Vol. 5, No. 2 (1948) p. 157