Constitutional Opinions: Sovereign States

...The doctrine of sovereign immunity—that a state cannot be sued without its consent—is right there in the Constitution, whether we like it or not...

...The nth Amendment was narrowly worded only because it was aimed at reversing an early Supreme Court decision (Chisholm v. Georgia) which tried to authorize federal suits by a citizen of one state against the government of another state...

...Souter protests that such thinking is altogether inappropriate in a republican government where laws should apply equally to all...

...I am glad that five justices still regard the fixed provisions of our Constitution as a firm barrier to that...

...It is the operational core of every civil rights statute, of every health and welfare statute, of every environmental statute...

...It would seem to imply that judges, down the road, could order new taxes to finance liability claims whenever juries decide to really sock it to the deepest pockets of all...

...Liberal commentators then echoed their complaints...

...statute law) to foreign governments, in suits seeking redress against foreign nations in U.S...

...In Florida Prepaid Expense Board v. College Savings Bank, the Court faced a suit by a private bank in New Jersey which had patented a complex system to help investors finance college tuition payments...

...The Alden majority followed similar reasoning to conclude that the Constitution prohibits Congress from evading the uth Amendment by abrogating sovereign immunity in state courts...

...The real point of sovereign immunity is to prevent plaintiffs from reaching into the public treasury for compensatory payments—which is just what the plaintiffs sought to do in the cases before the Court this year...

...Why give more protection to state governments within the U.S., when they operate essentially commercial services such as tuition loan programs competing with private banks...

...This reasoning invites future challenges to a range of questionable "rights" protections that Congress has claimed authority to enact under the 4th Amendment...

...This is not some wild leap of activist imagination...

...In the College Savings cases, however, the Court insisted that patent and trademark protections were not essential property rights, and thus not directly protected by the 4th Amendment...

...The majority opinion summoned up the wealth of evidence (including express assurances from James Madison and Alexander Hamilton) that the framers had all along assumed the continuing existence of state sovereign immunity...

...Do we want the specific guarantees in the U.S...

...It is the sort of close reasoning by which courts infer The Constitution immunizes them, finds the Court...

...As my friend Michael Greve puts it in his new book Real Federalism: Private enforcement is Congress's preferred means of getting its way...

...It is a fair question...

...T he doctrine of sovereign immunity has never been quite such a barrier to litigation as it might sound...

...A fair answer is that the international version is rooted in customary law, which can (and has) changed with the changing practice of other countries...

...Recalling Chief Justice Marshall's dictum that "the power to tax is the power to destroy," we might accord the tax power alone an "awful respect" —just as we accord "awful respect" to the nuclear capacity of North Korea...

...It was also heart-warming to read Breyer's dissent, acknowledging that the Constitution established a system of "dual sovereignty," a phrase from nineteenth-century decisions which has been contemptuously dismissed by liberal justices schooled in New Deal pragmatism...

...The liberal dissenters interpret this prohibition to mean that states can't be sued against their will—except when Congress finds it "necessary and proper" to authorize such suits...

...Finally, there is a lot to be said for a doctrine that reminds us of the "awful respect" due to "sovereign" states in the international arena...

...His textual and historical arguments are a lot easier to debate...

...There is some question as to whether Congress can regulate the labor conditions of state employees...

...Can they all have been mistaken...

...College Savings claimed that the state government program in Florida had copied this system, JEREMY RABKIN is a professor of government at Cornell University...

...All those involve the appropriation of money or direct enforcement by federal agencies or both...

...and constitutional scholar Hadley Arkes, who voiced his objections in National Review...

...Oft} The American Spectator September 1999 47...

...The majority's reliance on historical evidence of original intent had a salutary effect...

...The Court's majority refused to disregard the obvious import of a specific constitutional provision...

...Constitution open to just that sort of open-ended "evolution...

...The surface difficulty in all of these cases is that, had the defendants been private corporations, the plaintiffs would certainly have been allowed to proceed with their claims...

...law now refuses to recognize such "foreign sovereign immunity" when foreign governments operate essentially commercial ventures (such as state-owned airlines...

...This indirect approach to limiting federal control promises some practical benefits...

...Justice Souter's dissent in Alden mocks the majority opinion for characterizing sovereign immunity from private suits as "central to sovereign dignity...

...But even in our republican system, government is not like an ordinary citizen...

...A government doesn't insure itself but it won't go bankrupt either—it can always raise taxes to finance its liabilities...

...In that case, the state employees had tried to pursue their claim in state courts (as the federal labor statute authorized) in order to get around the precise words of the nth Amendment (which, on their face, say only that the jurisdiction of federal courts cannot be extended to suits against a state...

...But the majority was not simply taking its stand on textual literalism, as the opinion in Alden demonstrated...

...He argues that what we need is "legislative flexibility," balanced by "democratic participation" which he identifies with citizens pursuing claims in federal courts...

...Once the courts refuse to serve as an omnipotent legislature's handmaiden, Congress has to find other means of getting its way...

...In the nineteenth century the Supreme Court held that the spirit behind the nth Amendment must also block a suit against a state by one of its own citizens, though the wording does not precisely prohibit that...

...In Alden v. Maine, probation officers claimed that the state government had denied them overtime pay, thereby violating their rights under the federal Fair Labor Standards Act...

...The Court has long acknowledged that states can be sued to enforce basic constitutional rights guaranteed by the 4th Amendment, because states implicitly waived sovereign immunity in this area when they ratified that amendment...

...But the majority opinions were authored by Justices Rehnquist, Scalia, and Kennedy, and the sure-footed Justice Thomas endorsed them all, as did Justice O'Connor...

...violating its patent...

...The majority rulings have more going for them than sending liberals back to a better mode of constitutional argument...

...The dissenters were driven to their own competing historical examinations—in Alden, Justice Souter found it necessary to work his way back from Blackstone and the Founders, to the seventeenth-century doctrines of Hobbes, Locke, and Puffendorf, and the still earlier teachings of Jean Bodin and medieval commentaries on Justinian codification of Roman law...

...Some criticism was predictable...

...by which the people are led to...pay him that awful respect, which may enable him with greater ease to carry on the business of government...

...To drive home the point, he quotes Blackstone's description of "the royal dignity" that "ascribes" to the king "certain attributes of a great and transcendent nature...

...By applying the same doctrine in the College Savings cases, the Court limited the reach of patent and trademark laws whose propriety no one disputes (as Congress is explicitly authorized in the Constitution to enact patent protection laws...

...But the current Court ducked that question in Alden and simply argued that the regulation could not be enforced in private lawsuits...

...Privatedefendants carry insurance and if they don't have enough insurance, they can declare bankruptcy...

...It has the power to tax, the power to imprison, the power to impose capital punishment, even the power to send out military units to restore order or make war...

...It was only a few years ago that Souter was offering up existentialist prose poems to justify his reaffirmation of Roe v. Wade...

...Breyer is not reassuring when he argues for "legislative flexibility" to balance the goal of "democratic participation at all levels" with the need for controls at increasingly higher levels...

...CONSTITUTIONAL OPINIONS by Jeremy Rabkin Sovereign States T he Supreme Court stirred a surprising flurry of controversy as it ended its 1998-99 term last June with three cases on the seemingly obscure topic of sovereign immunity...

...If you want to talk about "republican principles," one of our core principles is "no taxation without representation...

...courts...

...In a separate case, the same bank protested that advertising on behalf of the same Florida program violated its rights under federal trademark protection law...

...Given that College Savings, as a corporate person, is the equivalent of a "citizen," it was defying the nth Amend-ment when it tried to sue in federal court (invoking "the judicial power of the United States") against Florida ("one of the United States...

...Two steps down that road and federal courts will be enforcing evolving international norms on unwilling state governments at the behest of private plaintiffs—as many of Breyer's former colleagues at the Harvard Law School now urge...

...In an era when courts routinely endorse multimillion dollar judgments in tort claims (and vastly larger claims in mass-tort cases), it is chilling to think of governments exposed to the same liabilities...

...46 The American Spectator September 1999 that constitutional provisions regarding "the Army" and "the Navy" must equally be applied to the Marines, the Coast Guard, and the Air Force, even though these last three services are not mentioned in the Constitution...

...Following a tradition that goes back to medieval English law, American courts have always distinguished between suits against the government itself and suits against officials of the government...

...That in itself was enough to stir the Court's liberal bloc (Justices Stevens, Souter, Ginsburg, and Breyer) to strong dissents in each case...

...Justice Breyer's dissent in College Savings tries to draw an analogy between the sovereign immunity of state governments and the sovereign immunity accorded (under U.S...

...I think the Court was right to rule as it did...

...This sort of regression is progress, even if Souter drew implausible conclusions from his historical inquiries...

...There was also criticism on the right side of the fence, from the likes of Charles Fried, Reagan's solicitor general, who chided the Court on the op-ed page of The New York Times...

...Citizens can protect themselves against many infringements of their rights by seeking injunctions against government enforcement officials...

...The Court has said yes, then no, then yes in different cases over the past three decades...

...By making it harder to sue state governments, these decisions are another step on the path to reviving states' rights...

...These critics protested that if the Court wants to enforce limits on the regulatory powers of Congress, it should do so directly, not by the mischievous tactic of exempting state governments (and only state governments) from legal liability...

...An unlimited financial liability for governments would threaten this principle...

...Read the nth Amendment: "The Judicial Power of the United States shall not be construed to extend to any suit...against one of the United States by Citizens of another State or by Citizens or Subjects of a Foreign State...