Abstract

What are the constitutional parameters of state sovereign immunity? The Court has made clear that certain provisions of Article I contain no authority for overriding state sovereign immunity, while at least one other provision, the Fourteenth Amendment, permits Congress to abrogate the states’ sovereign immunity. How is this constitutional line drawn? It is temporally bound? In other words, are only certain Amendments enacted after the Eleventh Amendment free from absolute subservience to state sovereign immunity? Or, does it divide the original Constitution and its Amendments, meaning that state sovereign immunity permeates the original Constitution but does not infiltrate certain Amendments, even those ratified before the Eleventh? Is state sovereign immunity article-bound, which would prohibit Congress from subjecting the states to private suit under any Article I power, but leave open the possibility that Article II or Article IV might overcome immunity? Or perhaps it is clause-bound, which would really provide no rule at all, and require a clause-by-clause analysis of Hamilton's plan of the convention? I explore these questions and argue that the state sovereign immunity envisioned by the Court is an Amendment-driven inquiry: it is inviolable to the extent of the original Constitution, and even such nationalistic powers as Congress' Article I War Powers or the Treaty Power of Article II cater to it. However, the Fourteenth Amendment changed the rules. Thus certain Amendments may enable its abrogation, even those ratified before the Eleventh Amendment if their preceptswere incorporated into the Fourteenth.

Document Type

Article

Publication Information

29 Hastings Constitutional Law Quarterly 721-765 (2002)

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