Sovereign immunity has become a place of contest between important values of constitutionalism. On the one hand, constitutionalism entails a commitment that government should be limited by law and accountable under law for the protection of fundamental rights; if the "essence of civil liberty" is that the law provide remedies for violations of rights, immunizing government from ordinary remedies is in considerable tension with all but the most formalist understandings of law and rights.1 On the other hand, a commitment to democratic decisionmaking may underlie judicial hesitation about applying the ordinary law of remedies to afford access to the public fisc to satisfy private claims,2 in the absence of clear legislative authorization. These competing and important values can and should be worked out without reliance on the abstract or dignitary notions of sovereignty implicit in the very phrase "sovereign immunity."
As I suggest below in Part I, federal sovereign immunity was a doctrine of limited effect in the early years of this republic and allowed for a number of remedies for governmental wrongdoing. Moreover, the constitutional provenance of federal "sovereign immunity" is obscure, and was a matter of genuine uncertainty in early years. Over time the doctrine developed, drawing support from some aspects of constitutional architecture as well as from unreasoning and mistaken extensions of other versions of "sovereign immunity." Among the strands of constitutional structure behind federal "sovereign immunity" are Congress' powers over appropriations and the jurisdiction of the federal courts, powers that do not necessarily require but may help explain the early attraction of sovereign immunity as a doctrine.
As described in Part II, the "sovereign immunity" doctrine has been dynamic, not static, as judges make choices about how broadly or narrowly to characterize its reach in response to legislation by Congress. In the inter-branch dynamic, both Congress and the Court have refrained at critical junctures from pressing constitutional limits, a restraint that has created an arguably beneficial ambiguity about the relationship of the judicial power to the legislative power in resolving claims against the government. Yet given the adverse effects of sovereign immunity on courts' capacities to provide individual justice, it is past time for that dynamic to move back towards more restrictive understandings of the doctrine's scope.
In Part III, I consider federal sovereign immunity's relation to aspects of the idea of judicial independence embodied in Article III of the United States Constitution. Doctrines that article III courts will not enter ineffective or advisory judgments, nor judgments subject to legislative or executive revision or direction, coalesce in cases involving claims against the government, in ways that suggest that sovereign immunity may have been thought to preserve an aura of judicial independence. In light of the competing constitutional norms at stake and the well-established independence of the federal courts today, I end by urging re-interpretation of federal sovereign immunity doctrines so as to close rather than widen remedial gaps in the law.
I. SOVEREIGN IMMUNITY, ITS MEANING, HISTORY AND SCOPE
Sovereign immunity's meaning is contested and contestable.3 If we assume that it is a rule that the government cannot be sued without its consent, it is a rule that-unless consent is presumed from the Constitution-stands in tension with Marbury v. Madison4's assertion that the "essence of civil liberty" is that the law provide a remedy for the violations of rights. Judicial remedies not only protect individual rights but can function as an important mechanism of government accountability. To the extent that sovereign immunity protects the government from being held to account through generally available judicial remedies, it is in considerable tension with these rule-of-law "essences. …