Sovereign Immunity and the Uses of History

• Publication year: 2021

81 Nebraska L. Rev. 1. Sovereign Immunity and the Uses of History

1

Sovereign Immunity and the Uses of History

Susan Randall(fn*)

TABLE OF CONTENTS

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. The Supreme Court's Historical Account . . . . . . . . . . . . 8
III. Sovereign Immunity and Founding Generation. . . . . . . . . . 15
A. The Constitutional Convention's Deliberations. . . . . . . 15
1. The Proposals . . . . . . . . . . . . . . . . . . . . . 15
2. The Supreme Court and the Federal Judiciary . . . . . . 18
3. Federal Oversight of State Law . . . . . . . . . . . . 20
4. Article III . . . . . . . . . . . . . . . . . . . . . . 22
5. Conclusion . . . . . . . . . . . . . . . . . . . . . . 26
B. Sovereign Immunity in England . . . . . . . . . . . . . . 26
C. The Intent of the Founding Generation:
Ratification as Consent . . . . . . . . . . . . . . . . . 30
1. The Structure of the Federal Government and
the Necessity of a Powerful Judiciary . . . . . . . . . 33
2. The Constitutional Language . . . . . . . . . . . . . . 38
3. The Understandings Expressed in the
Ratification Process . . . . . . . . . . . . . . . . . 47
a. The State Ratification Debates . . . . . . . . . . . 47
b. The Popular Press . . . . . . . . . . . . . . . . . 49
c. Inferences from the Ratification Documents . . . . . 54
i. New York and Rhode Island: No Citizen
Suits Against States . . . . . . . . . . . . . . . . 55
ii. No Proposed Amendments; Inference
that Ratification Constituted Consent to
Suit . . . . . . . . . . . . . . . . . . . . . . . . 57
iii. Article III Amendments Proposed . . . . . . . . . . 58
iv. Virginia and North Carolina:
Amendments Affirming that Ratification
Constituted Consent to Suit. . . . . . . . . . . . . 60
D. Reasons for the Various Categories of Judicial
Power in Article III . . . . . . . . . . . . . . . . . . . 61
1. Cases Involving Federal Law . . . . . . . . . . . . . . 62
2. Cases Involving the United States as a Party. . . . . . 65
3. Cases Involving States and Diverse-State or
Foreign Citizens . . . . . . . . . . . . . . . . . . . 66
E. The Statements of Hamilton, Madison, and
Marshall Reconsidered . . . . . . . . . . . . . . . . . . 70
1. The Immediate Political Context . . . . . . . . . . . . 70
2. Alexander Hamilton . . . . . . . . . . . . . . . . . . 71
3. James Madison . . . . . . . . . . . . . . . . . . . . . 79
4. John Marshall . . . . . . . . . . . . . . . . . . . . . 84
5. Conclusion . . . . . . . . . . . . . . . . . . . . . . 85
F. Early Case Law Holding that Ratification
Constituted Consent . . . . . . . . . . . . . . . . . . . 85
G. The Eleventh Amendment . . . . . . . . . . . . . . . . . . 93
H. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . 96
IV. Nonhistorical Rationales for Sovereign Immunity. . . . . . . . 96
A. Early Case Law . . . . . . . . . . . . . . . . . . . . . . 97
B. Modern Rationales . . . . . . . . . . . . . . . . . . . . . 99
1. Protection of the Treasury . . . . . . . . . . . . . . . 99
2. Promotion of Government Efficiency . . . . . . . . . . . 100
3. The Dignity of the States . . . . . . . . . . . . . . . 101
4. Separation of Powers . . . . . . . . . . . . . . . . . . 102
V. Replacing Sovereign Immunity as a Jurisdictional Bar
with Prudential Doctrines . . . . . . . . . . . . . . . . . . 103
A. The Political Question Doctrine . . . . . . . . . . . . . . 105
B. Duty Questions: Ministerial vs. Discretionary
Functions; Governmental vs. Proprietary Functions;
The Public Duty Doctrine . . . . . . . . . . . . . . . . . 106
C. Discretionary Functions . . . . . . . . . . . . . . . . . . 108
D. Abstention Doctrines Based on Federalism
Concerns . . . . . . . . . . . . . . . . . . . . . . . . . 110
E. Foreign Sovereign Immunities Act and the Act of
State Doctrine. . . . . . . . . . . . . . . . . . . . . . . 113
VI. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 113

I. INTRODUCTION

The history of sovereign immunity in the United States is a history of mistakes. One mistake has engendered another, with the result that many federal laws are not enforced against the states, either in state or federal courts or federal administrative courts, and citizens

3

have limited (or in some instances, no) recourse against their federal, state, and local governments-and all of this seems reasonable, normal, and even inevitable. 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. Because stare decisis does not create historical fact, a great deal of modern doctrine is simply wrong from an historical perspective.

Previous commentators have almost uniformly concerned themselves with the immunity of the states and questions of federalism. In fact, much of the historical record addresses whether the states enjoyed immunity from suit in the federal courts. This record is important for understanding sovereign immunity, and is treated for the insights it provides into the founding generation's view of sovereign immunity. This Article concludes that the founding generation did not intend state sovereign immunity and instead viewed the ratification of the Constitution as consent to Article III suits by the states individually and collectively for the United States.

The Article also focuses on the generally ignored issue of the immunity of the federal government, which implicates horizontal divisions of power among the legislative, executive, and judicial branches. Because courts have mistakenly read the historical record as affording sovereign immunities to the states, the issue of the federal government's immunity has not been treated. It is simply assumed that if the Constitution afforded the states full immunities, the federal government must be immune. This Article adds to the arguments of others that the Constitution contemplates actions against the states in Article III cases and further asserts, relying on history and the structural predicates of our government, that the federal government similarly enjoys no constitutional immunity in Article III cases.

Briefly, the errors that account for sovereign immunity in its modern form are these. First, sovereign immunity is based on a modern misunderstanding of eighteenth century English law as prohibiting any form of recovery against the sovereign. Despite this popular misconception, English procedure permitted several forms of action against the Crown as a matter of course.(fn1) Second, modern observers have assumed, based on scant historical evidence, that the English law of sovereign immunity was received into the law of the newly

4

formed United States, despite its inconsistencies with the structures and governing philosophies of the Union. This reception by Revolutionaries, whose actions constituted treason under English law and whose aim was the overthrow of the sovereign and institution of a representative government, has been repeatedly described as "one of the mysteries of legal evolution."(fn2) This Article argues that there was no such "reception," and that the founding generation did not accept or adopt sovereign immunity. The constitutional language and structure, debate in the Convention and in the press, and ratification debates in the states support this theory. The Supreme Court's acceptance of sovereign immunity as a constitutional principle depends on its determination of the intent of the Framers, which ignores a great deal of historical evidence from the time of the founding and relies primarily on a discredited account of the Eleventh Amendment first articulated in the 1890 case of Hans v. Louisiana.(fn3) Third, modern justifications for sovereign immunity, such as promotion of government efficiency and protection of public funds, are tainted by these errors. Non-historical rationales for sovereign immunity derive much of their force from the simple fact that we believe sovereign immunity has been part of our history from the beginning.

Central to the modern doctrine of sovereign immunity is an historical account of the founding which is deeply flawed. This flawed account of the founding relies almost exclusively on an isolated statement of Alexander Hamilton in a Federalist paper, later supported by one statement of James Madison and one statement of John Marshall during the Virginia ratification debates. These three statements, which address federal judicial power over the states, interpret the national judicial power afforded in the Constitution as being subject to common law sovereign immunities.

Instead, the Founders believed that the states' ratification of the Constitution supplied consent to suit by individual states and by the

5

states collectively on behalf of the United States in Article III cases. This belief is evidenced by an examination of the records of the Constitutional Convention, which do not discuss sovereign immunity, but which proceed from and adopt structural predicates inconsistent with immunities, the state conventions, ratification documents, debate in the popular press, private correspondence at the time, and early case law. These materials demonstrate that the founding generation's interpretation of the Constitution with regard to sovereign immunity is at odds with the Supreme Court's long-standing view that the sovereign immunity is a constitutional doctrine, with the Eleventh Amendment standing for the broad "presupposition" of immunity implicitly embodied in Article III.

The implications of this mistaken acceptance of Hamilton's, Madison's, and Marshall's statements as authoritative are far-ranging. If this Article is correct in its interpretation of...