The history of sovereign immunity in the United States is a history of mistakes. The result is that many federal laws are not enforced against the states, and citizens have limited (or in some instances, no) recourse against their federal, state, and local governments. This article attempts to identify the reasons why extensive immunities have become the norm in our legal system, and to demonstrate that this entrenched system of immunities owes its existence to multiple errors made by judges, scholars, and legislators in attempting to understand our early history. Part II of this article describes the Supreme Court's understanding of sovereign immunity and identifies the historical account which grounds that understanding. Part III demonstrates the flaws in the Supreme Court's historical account and shows that the framers and ratifiers of the Constitution understood that ratification constituted consent of the individual states, and collective consent of the states for the newly created United States to suit in federal court under Article III. This conclusion depends on an examination of the law of sovereign immunity in England at the time of the framing, constitutional language, the structure of the new government, and the understandings of Framers and ratifiers as expressed in ratification debates, the popular press, and the ratification documents of the states. This part also examines the statements of Hamilton, Madison, and Marshall in the political context of the times. It demonstrates that those statements were politically motivated and inconsistent with other views taken by those three men, as well as with the understanding expressed by other framers and ratifiers. The conclusion that there is no constitutional immunity is also supported by early decisional law which holds that ratification constituted consent to suit in the categories of cases enumerated in Article III, Section 2. Part IV examines the underpinnings of sovereign immunity, independent of its mistaken historical and constitutional basis, concluding that the only valid basis for immunity is the principle of separation of powers. The last part suggests eliminating sovereign immunity while preserving its separation of powers functions through existing prudential doctrines, such as the political question doctrine, duty determinations, and discretionary function immunities. Such doctrines demonstrate that separation of powers concerns inherent in sovereign immunity can be protected prudentially rather than jurisdictionally.
Sovereign Immunity and the Uses of History,
81 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol81/iss1/2