Its Hour Come Round at Last? State Sovereign Immunity and the Great State Debt Crisis of the Twenty-First Century

Abstract

State sovereign immunity is a sort of constitutional comet, streaking across the sky once a century to the amazement and consternation of legal commentators. The comet’s appearance has usually coincided with major state debt crises: The Revolutionary War debts brought us Chisholm v. Georgia and the Eleventh Amendment, and the Reconstruction debts brought us Hans v. Louisiana and the Amendment’s extension to federal question cases. This essay argues that much of our law of state sovereign immunity, including its odd fictions and otherwise-incongruous exceptions, can be understood as an effort to maintain immunity’s core purpose — protecting the states from potentially crippling financial liability on their debts — while at the same time maintaining courts’ power to enforce individual rights in cases where the states’ financial viability is not at stake. The comet’s most recent appearance — the Rehnquist Court’s significant expansion of state sovereign immunity in the 1990s in cases like Seminole Tribe v. Florida — fit the historic once-a-century timetable, but it lacked a bona fide state debt crisis. I suggest that this absence may have induced both the Court to forget the legitimate core purpose of state sovereign immunity, with two deleterious effects: First, the Court’s need to rest on more ephemeral justifications, such as state dignity, left the doctrine open to widespread criticism. And second, these broader rationales led the Court to extend state immunity in ways that threatened the traditional doctrine’s concern to preserve judicial authority to enforce individual rights.

The Rehnquist Court may simply have been fifteen years too early, however. Now we have a real state debt crisis, and I speculate that that crisis may both remind constitutional lawyers of state immunity’s legitimate role and — hopefully — redirect immunity doctrine into more traditional and appropriate channels.

Keywords: Eleventh Amendment, state sovereign immunity, federalism, state debt