Re these posts–Jim Sheehan writes:
Your argument is well-supported by J. Kennedy in Alden v Maine, a recent case. Kennedy makes clear that sovereign immunity derives from the Constitution, and the immunity that the states retained upon ratification.
Stephan, correct me if I am wrong, but Alden appears to go even farther than you do, does it not? It looks to me like the Constitution never gave the SC appellate OR original jurisdiction in suits by individuals against their own state.
I believe the doctrine of ex parte Young (1908) has been used to abrogate state sovereignty by authorizing suits against state officials. I question whether Young is valid, but that is a separate question.
This all sounds about right. But I think Alden and sovereign immunity have to do with private suits against the state for damages. E.g., for breach of contract, that kind of thing. States have to consent to such suits. There are some exceptions, e.g. you can sue government officials directly. But states can also be directly sued by individuals, even if they don’t consent, presumably in the Lawrence v. Texas case. This may be because of the Fourteenth Amendment, or maybe because the case alleges a violation of federal law by the State. I am not sure.
The Alden case intimates this, when it says:
Sovereign immunity, moreover, does not bar all judicial review of state compliance with the Constitution and valid federal law. Rather, certain limits are implicit in the constitutional principle of state sovereign immunity. […] We have held also that in adopting the Fourteenth Amendment, the people required the States to surrender a portion of the sovereignty that had been preserved to them by the original Constitution, so that Congress may authorize private suits against nonconsenting States pursuant to its §5 enforcement power.
If this is true–if suits against states in federal courts for violation of the Constitution are permissible only because of the horrible 14th Amendment–this is yet another reason by it’s a good idea to limit this appellate jurisdiction.
If any bright law student of con law lawyer knows more about this, email daddy at stephan -at- kinsellalaw dot com.
11:50 am on September 17, 2004
