Chisholm, the Eleventh Amendment, and Sovereign Immunity: On Alden's Return to Confederation Principles

Abstract

Recently, the United State Supreme Court has been expanding the scope of the Eleventh Amendment immunity afforded to the states. Ironically, that expansion cannot be justified in light of the constitutional text, original intent, or even good public policy. Indeed, current Eleventh Amendment jurisprudence more accurately reflects the status of the states under the Articles of Confederation than under the Constitution, and the relationship between the state and federal governments currently favored by the Court is precisely what the Framers, including Madison, Marshall, and Hamilton, were rejecting when arguing for constitutional ratification.