In Defense of Our Law of Sovereign Immunity

Professor Hill maintains that the Constitution was grounded on an understanding that the states would not be suable without their consent, either in the federal or state courts; the Eleventh Amendment, within its purview, is declaratory of this understanding. The Supreme Court has consistently treated sovereign immunity as of constitutional dimension. As such, the immunity has been deemed exempt from congressional modification under the Commerce Clause. However, without overt challenge to the immunity’s constitutional status, it has been held subject to congressional modification under Section 5 of the Fourteenth Amendment. The Supreme Court’s decision in this regard does not withstand critical analysis. Sovereign immunity is not the malign doctrine it is commonly thought to be. In general, it has not served as a bar to effective relief for lawless conduct by government officers. For the most part, it has operated to defeat claims arising from consensual relations with the government—and here the immunity has been almost completely eliminated by the federal and state legislatures within their respective areas of competeiice.