Sovereign Immunity

Author:Clyde E. Jacobs

Page 2459

At COMMON LAW the sovereign, although subject to the law, was immune from the JURISDICTION of its own courts. The English doctrine of sovereign immunity was established at an early time, probably in the thirteenth century; but long before the American Revolution the jurisdictional exemption of the sovereign, though remaining theoretically absolute, was riddled with exceptions. Judicial process against the sovereign was available through petition of right and other procedures resting upon waiver of immunity, and subordinate officers could be sued for damages attributable to official acts and were subject to process by prerogative writ.

Because sovereign immunity was part of the common law heritage existing when the Constitution was adopted, the courts later embraced the doctrine as an implicit limitation upon their jurisdiction. Hence, some provisions of Article III of the Constitution were interpreted as subject to this qualification. The immunity of the United States, first acknowledged by the Supreme Court in United States v. McLemore (1846), became a complete exemption, protecting the federal government and its agencies from unconsented suit in any court by any plaintiff. State immunity was initially rejected by the Court in CHISHOLM V. GEORGIA (1793), but that unpopular HOLDING was quickly reversed by the ELEVENTH AMENDMENT. The amendment, in juxtaposition with Article III, was subsequently construed to immunize the states from unconsented suits by private plaintiffs and by foreign governments in federal court.

The states, however, are not immune from suit by either the United States or other states. As a matter of state law, states commonly have claimed immunity from suit by private plaintiffs in state court. The power of Congress to lift the states' common law immunity seems restricted only by the limitations of the JUDICIAL POWER of the United States as defined in Article III, the general limitations of congressional power, and?arguably?some core notion of state sovereignty. (See NATIONAL LEAGUE OF CITIES V. USERY.)

The immunity doctrine is in tension with the RULE OF LAW, and pragmatic justifications for its perpetuation are unpersuasive. By means of statutes waiving immunity and through judicial interpretation, the ambit of the exemption has been drastically reduced. Congressional legislation creating the COURT OF CLAIMS in 1855 and later enactments, such as the Tucker Act (1887) and the FEDERAL TORT...

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