Sovereign Immunity v. One Nation:

Note: I wrote the following more than 5 years ago. The book I refer to -- Narrowing the Nation -- addresses "sovereign immunity" (the 11th Amendment)not the 10th Amendment and broader notions around state sovereignty. However, it seems fair to say that both Amendments are seen by strict constructionists as essential to "narrowing the nation", including by rolling back the ADA, the reach of equal protection, etc. Given the increasing demands of the Tea Party, the Tenth Amendment movement, Sarah Palin, Ron Paul and others to allow states to nullify and otherwise pick and choose what national laws they choose to follow, I am reposting it:

Sovereign Immunity v. One Nation:
One Nation, indivisible. I’ve been thinking about this tenet of our democracy and the need to reclaim it a lot lately. Perhaps this is because I’ve spent the summer reading several books about the civil war. Or because I just began a new one called Narrowing the Nation’s Power about the current Supreme Court’s attempts to inoculate States, localities and their agents against any and practically all efforts to enforce a national set of protections in our Constitution and civil rights laws (Noonan, 2002). One thing that my summer reading is making clear to me is that supporters of “States’ rights” during the Civil War and Jim Crow era and the majority on today’s Court seem to share the following in common: The belief that each State is a sovereign that is somehow equal to, if not superior to the Nation. And, that as such it must be free to act and mete out “justice” as it sees fits without fear of having its laws, policies or practices challenged or called into disrepute by its citizens (or subjects) or the Congress.

According to the Court, each State is entitled to this type of immunity under the 11 th Amendment because private lawsuits imperil its “sovereign dignity” or credibility to govern (Noonan, 2002). Its majority argues that the founders clearly meant this to be the case. However, in his book John Noonan, a senior federal appeals judge in California appointed by Ronald Reagan, takes their logic to task. He points out that the plain language of the 11th Amendment does not limit the rights of citizens living in a particular State to bring a lawsuit against that State. Rather, it merely says that the federal courts should not arbitrate legal disputes brought by citizens against a State other than the one where they reside. In other words, the amendment is completely silent on issues of immunity, sovereign or otherwise.

Noonan also takes issue with the Court’s assertion that the Framers somehow meant this to be its “original intent” even absent such language. English common law provided immunity to the king so that he would be viewed as the maker of the law and his authority could not be challenged. The Court, therefore, believes the Framers naturally would have wanted to accord this same divine right to States. But as Noonan points out those who had fought a revolution against such unbridled power were not likely to confer the same authority upon either the States or the new national government.

Unfortunately, while like many great dissents Judge Noonan’s writings can help to set the judicial stage for reversing several edicts the Court has handed down in recent years, there is much to be done and suffered through in the meantime. In a string of 5 to 4 decisions, the high court has held that State actions must be regarded as being beyond reproach in two key ways. First, it has ruled in several cases, including those involving employment discrimination by States on the basis of age and disability, that common citizens aggrieved by a State’s action cannot be granted damages even when they prove that they suffered harm as a result. The Court has similarly held that because States enjoy this supposed constitutional right to sovereign immunity that it will take it upon itself to police Congress to ensure that it does not overstep its authority to provide citizens a private right of action to sue States and localities.

The case of Garret v. the University of Alabama, which involved disability related job discrimination at a State funded institution, is a good example of how the Court is flexing its muscles in this regard. In a decision written by Chief Justice William Rehnquist the Court ruled that in passing the Americans with Disabilities Act Congress failed to show that employment discrimination on the basis of disability was such a pervasive problem that States should be made to pay damages in such cases.

The Chief Justice said that Congress relied on anecdotes and second hand information when designing the ADA's State employment discrimination provisions and doing so failed to meet constitutional muster. Under Garrett, people with disabilities still have the right to sue States and localities for injunctive or other relief targeted to remedy specific acts of discrimination.

For the time being the Garrett decision also leaves intact both the employment and public services provisions of ADA. However, many civil rights and disability rights leaders as well as independent legal experts believe that the reasoning used in the decision will be used by the States’ rights majority on the Court to whittle away at and do fundamental damage to the ADA and other civil rights laws in other cases in the future. Moreover, the Garrett decision and others like it are certain to have a chilling effect on two groups in particular. It will severely hamper the ability of individual citizens to compel States to comply with the ADA and other federal civil rights protections as well as effectively hamstring the ability of Congress to try to find legislative remedies to widespread civil rights, economic and social injustices in the future.

Why? Because the Supreme Court now believes that it along with each of the States are in a far superior position to the American people and our Congress to decide the great rights and wrongs of the day far atop of a hill. The Court seems hell bent on making itself and, its cause celebre, the States accountable to no one and with a sovereign immunity writ large enough to impress King George III. There is much about the doctrine of sovereign immunity as propounded by the Supreme Court that will, hopefully, cause many all along the political spectrum – especially those who are centrists – alarm that the Supreme Court and the States are indeed “narrowing the power of the Nation” while greatly expanding their own spheres of influence and domination. This is the one possible silver lining in this ominous storm cloud looming large on our national horizon.

Placed in its proper perspective, however, the legalizing of the notion that States should be immune from being made to pay for violating the federal civil rights of its citizens in the form of monetary damages is but one symptom of a far more endemic and serious problem. Since colonial times up to the present, States have exercised great “discretion” in deciding to what degree, if any, the poor, children, people with disabilities, minorities, prisoners and others are to be afforded the same dignity, liberty and tools to live their lives as freely and fully as other citizens. Today, this is done every time a State allocates both how and how much of its resources as well as a great deal of federal funds are to be spent on education, Medicaid, corrections, welfare to work efforts, etc.

This is very much of a “time honored tradition” in our country and one that is likely to not only continue to rule the day well into the foreseeable future but ruin the everyday lives and futures of millions of Americans, particularly those with significant disabilities and others easily marginalized. It is also a tradition that can and must be shown to be at irreconcilable odds with national principles of fundamental fairness and equal protection under the law. Future essays will explore why this is the case, why it matters and what must be done about it.


Source: Noonan, John, Jr. Narrowing the Nation’s Power. University of California Press, 2002.