Vol. 13 No. 3 (March 2003)

 

STATE SOVEREIGN IMMUNITY: A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION by Melvyn R Durchslag. Westport, Conn.: Praeger Publishers, 2002. 176 pp. Cloth $79.95. ISBN:0-313-31348-2.

 

Reviewed by Charles S. Lopeman, Department of Political Science, State University of West Georgia. Email: slopeman@westga.edu.

 

STATE SOVEREIGN IMMUNITY: A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION is principally an information source.  It is a factual and not a theoretical work and presents an historical and legal analysis of the present controversy between a limited, literal interpretation of the Eleventh Amendment (nationalist) and a broader, more expansive (statist) view.   The author does not have a stated hypothesis, although he subtly reveals a preference for the limited, nationalist view in the present controversy.

 

The author has chosen a writing style that is typically found in law review articles—long, complex and frequently convoluted sentences.  Consistent with this “law review” style, the author seeks to answer all questions presented in every case without targeting the question of interest in the work.  The use of this style is particularly difficult for the reader in the author’s analysis of Supreme Court cases.  It allows frequent references that appear irrelevant, or only tangentially relevant, without any explanation of the author’s purpose.  The reader is frequently left to wander in one direction only to find that the author has gone in another. 

 

The author analyzes the present state of the controversy in three parts: “Introduction,” “History,” and “Analysis.”  The “Introduction” gives an overview of the present controversy over the meaning and effect of the Eleventh Amendment to the United States Constitution but neglects an explanation of the opposed positions that define the controversy.  Without an early orientation the History and Analysis are difficult reading.  For the benefit of those who will read this work, there are two basic, opposed views of the meaning of the Eleventh Amendment that can be obtained from the book’s four corners: 1) the “immunity theory,”  that the Eleventh Amendment provides a state immunity from suit by its citizens as well as citizens of foreign states in both state and federal courts and that it prohibits Congress from abrogating that immunity except for remedial legislation authorized by Section 5 of the Fourteenth Amendment; and 2) the “diversity theory,” that the Eleventh Amendment provides immunity to the states only as it specifically provides, i.e. in federal courts when a state is sued by a citizen of a foreign state, and that it does not affect Congress’ power to abrogate state immunity in the exercise of its Article I and Fourteenth Amendment powers. The former view is based on a belief that the states enjoyed sovereign immunity prior to the adoption of the Constitution and that they surrendered only so much of that immunity as was specifically required by the Constitution as a condition of union. According to this view the Eleventh Amendment implicitly recognized the pre-existing immunity and its structural result and merely corrected the decision of the U.S. Supreme Court in CHISHOLM v. GEORGIA (1793) that ignored the state’s immunity and allowed a state to be sued in the federal courts by a citizen of another state.  The latter view is based on a belief that there was no pre-existing state immunity and that the Eleventh Amendment merely changed the effect of CHISHOLM by providing protection to a state only when it is sued by a citizen of a foreign state in a federal court.

 

Part One, the “History” section, is a survey account of the events preceding adoption of the Eleventh Amendment. It recognizes that the current Eleventh Amendment controversy has its origins in the states’ pre-Convention sovereign immunity, the historical antecedents to CHISHOLM and the proposal and adoption of the amendment.  The author makes a comprehensive presentation of the necessary bases for an understanding of the opposed theories.  His “History” identifies the genesis of the strands that work their way into support for the two theories and differing conclusions with respect to the states’ immunity from suit in federal and state courts and at the hands of Congress.  The “History” is a valuable resource for anyone who wants a more than bare-bones understanding of the current disagreement because each side relies on different interpretations of selected history from the pre-Convention period to the adoption of the Eleventh Amendment to support its views.  As the author notes, an interested observer must study this history “because the Court’s opinions on both sides leave us no choice.  The Court’s reading of history is either its salvation or poison.”

 

Part Two, “Analysis,” is a legal assessment of the Supreme Court’s Eleventh Amendment jurisprudence.  It is divided into three sections.  The first is a chronological analysis of the Court’s cases up to HANS v. LOUISIANA (1890) in which the Court decided that the Eleventh Amendment barred suits by a state’s citizens, because the states had sovereign immunity that preceded the Convention and it would have been “absurd” to think that the states would have ratified the Eleventh Amendment only to allow a state to be “sued by its own citizens in cases arising under the Constitution or laws of the United States.”  HANS is a logical breaking point because the Court assumed a direction in that case that has led to its present expansive, statist interpretation of the Eleventh Amendment.   Next, the Author analyzes separately the four doctrinal areas that were spawned by HANS: suits against state officers, suits against political subdivisions, waiver of state immunity, and congressional abrogation.  Finally, the author in his “Retrospective and Critique” associates recent Court decisions with the federal relationship between Congress and the states.

 

The author is a law school professor and, not surprisingly, treats the present controversy  as a problem of legal and constitutional analysis.  The work is subtitled “A Reference Guide to the United States Constitution,” and, because of the author’s legalistic approach and writing style, Part Two would be of interest to political scientists only as a reference.  The author neglects a political explanation of the Court’s recent decisions, although he does mention the states’ early fears that they would have to respond to pre-Convention debtors in federal courts as a possible reason for the Court’s early decisions.  The question of state sovereign immunity seems to have become a significant fault line within the Rehnquist Court.  At the very least the consistent 5-4 split, that has existed in the Court’s recent Eleventh Amendment cases and that reflects the Court’s ideological division, strongly suggests that there is something other than the history and language of the Amendment at work here.   This is particularly so inasmuch as the Court’s present Eleventh Amendment jurisprudence is consistent with and coincides with its recent Tenth Amendment jurisprudence. 

 

CASE REFERENCES

CHISHOLM v. GEORGIA, 2 US 419 (1793).

 

 HANS v. LOUISIANA, 134 US 1 (1890).                                                    

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Copyright 2003 by the author, Charles S. Lopeman