Judicial Solicitude for State Dignity

• Published date: 01 March 2001
• Date: 01 March 2001
• DOI: 10.1177/000271620157400106
• Subject Matter: Articles

81

Judicial Solicitude

for

State

Dignity

By

EVAN

H.

CAMINKER

Evan

Caminker

is

a

professor

at

the

University

of Michigan

Law

School.

He

clerked

for

Justice

Brennan

and

taught

at

UCLA

School

of

Law

before

joining

the

Michigan

faculty.

He

wrote

this

article

while

on

leave

as

deputy

assistant

attorney

general

at

the

Office

of Legal

Counsel,

United

States

Department

of

Justice.

ABSTRACT:

The

Supreme

Court’s

recent

decisions

holding

that

Con-

gress

cannot

authorize

individuals

to

sue

states

proclaim

that

such

sovereign

immunity

serves

the

states’

"dignitary

interests"

by

em-

phasizing

"the

respect

owed

them

as

members

of

the

federation."

What

is

the

interpretive

significance

of

the

Court’s

apparent

refer-

ences

to

the

social

meaning

of

suits

against

states?

This

article

ex-

plores

whether

the

Court’s

professed

concern

with

maintaining

state

dignity

might

be

justificatory

rather

than

rhetorical,

with

the

Court

invalidating

statutes

subjecting

unconsenting

states

to

private

suit

because

those

statutes

entailed

social

meanings

that

contravene

fed-

eralism

values.

Specifically,

various

expressivist

rationales

for

the

Court’s

sovereign

immunity

jurisprudence

are

sketched,

and

it

is

sug-

gested

that

each

rationale

confronts

significant

difficulties

that

un-

dermine

the

propriety

of

expressivist

reasoning

in

this

context.

NOTE:

The

views

expressed

herein

do

not

necessarily

represent

the

views

of

the

U.S.

government.