Academic journal article Harvard Law Review

Reconciling State Sovereign Immunity with the Fourteenth Amendment

Academic journal article Harvard Law Review

Reconciling State Sovereign Immunity with the Fourteenth Amendment

Article excerpt

The United States was and is an experiment with a previously unknown form of government: not a single sovereign, not a loose coalition of independent states, but both together. (1) When ratified in 1788, the Constitution "split the atom of sovereignty" and established an "unprecedented" federal system. (2) The states remained autonomous, but--after the hard lessons of the disastrous Articles of Confederation--also ceded some of their independence to a powerful national government. Exactly how much sovereignty the states ceded, and precisely how powerful the national government should be, have remained subjects of great controversy since.

One particular challenge revolves around balancing the autonomy of the several states with the enforcement of federal law. Of course, federal law is "supreme" and binding on state courts, "any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." (3) Yet due to the Madisonian Compromise, state courts often serve as frontline arbiters of federal rights--not as mere conscripts in the federal court system, but as semi-autonomous actors that apply their own procedural and jurisdictional rules. (4) In particular, as courts of general jurisdiction, state courts are presumed to be available to hear claims for relief under federal law, including claims against the states themselves. (5) And given the whole host of barriers to access to federal court, the reality is that many claimants "depend, as a practical matter, entirely on state judges for the vindication of their federal rights." (6)

All this means that the balance between state autonomy and federal rights turns in large part on a concept not designed with dual federalism in mind: state sovereign immunity. That doctrine refers to the traditional common law immunity of a state from suit in its own courts without its consent, (7) and it extends to the federal courts as well through the Eleventh Amendment. (8) Where it applies, sovereign immunity is a powerful defensive mechanism, empowering states to bar consideration of a plaintiffs claims, however meritorious. The doctrine thus has a profound impact on the enforcement of federal rights. Such limits are justified in part on the basis that, were the states subjected to suit without limit, state autonomy would be substantially undermined and state treasuries might quickly bleed out. (9) Over the last two hundred years, the seemingly unattainable balance between these federal and state interests has played out in the pages of the U.S. Reports.

Today, an individual whose federal rights have been violated by a state has relatively limited options. If the violation is ongoing, she can bring suit in federal court against a state officer for injunctive or declaratory relief. But if the violation has run its course and she seeks only legal damages to compensate for her losses, she is often out of luck. (10) These strict limits on private suits for damages were once understood to operate only in federal court--implicitly directing litigants to the alternative of bringing suit in state court (11)--but that assumption proved misguided when the Supreme Court held that the Constitution preserves state immunity from private suit in state court as well. And while Congress does have the power to abrogate sovereign immunity for certain types of claims, that power too has been cut back. (12)

Thus, it is fair to say that state sovereign immunity has never been more impenetrable. These modern-day barriers could be seen as an uneasy stalemate, or even the appropriate balance. But pockets of significant doctrinal tension remain, particularly for two distinct types of constitutional claims: first, claims seeking just compensation for a temporary taking of property by a state; and second, claims seeking a refund of taxes paid unlawfully to the state. By definition, both seek a retroactive payment from the state treasury, making injunctions and declaratory relief insufficient. …

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