Transcript Constitutional Law Spring 2008 Prof. Fischer

Constitutional Law
Spring 2008
Prof. Fischer
Class 15
Limits on Legislative Power/Judicial
Power: Sovereign Immunity and
Amendment XI
Amendment XI (ratified 1795)
• The judicial power of the United States
shall not be construed to extend to any
[suit] commenced or prosecuted
against one of the United States by
Citizens of another State, or by Citizens
or Subjects or any Foreign States.
History of Sovereign Immunity: Common Law
Doctrine - Crown Immunity
• "The State of monarchy is the
supreme thing on Earth........
As to dispute what God may
do is blasphemy, so is it
treason in subjects to dispute
what a king may do.....“
(James I – The Trew Law of
Monarchy (1598)
• "A good king will frame his
actions according to the law,
yet he is not bound thereto but
of his own goodwill.“ (James I 1598 – The Trew Law of
Monarchy (1598))
Is sovereign immunity an
anachronistic doctrine?
• Felix Frankfurter (born
1882 in the AustroHungarian Empire)
argued that it was “an
anachronistic survival of
monarchical privilege”
• In Great Northern Life
Ins. Co. v. , 322 U.S. 47
(1944) Frankfurter stated
that sovereign immunity
“undoubtedly runs
counter to modern
democratic notions of the
moral responsibility of the
State.”
History of Eleventh Amendment
• Reaction to Supreme
Court decision in
Chisholm v. Georgia
(1794) on whether Article
III authorized suit against
Georgia without its
consent
• Chief Justice John Jay
(left) agreed with Blair,
Wilson, Cushing that it
did. Iredell lone dissenter
Hans v. Louisiana (1890) [C p. 223]
• Suit by Hans (LA
citizen) against LA
• Claim: violation of
Contracts Clause A I
§ 10
• Justice Bradley
wrote the opinion of
the Court
Limits on Eleventh Amendment
immunity
• What are the three main limits on state
immunity?
1. Limit on state immunity: certain
lawsuits against state officials
•
•
•
•
Ex parte Young (1908) [C p. 223]
Lawsuits for injunctive relief
Damages?
Exceptions – no state claims via
supplemental (pendant) jurisdiction under
28 U.S.C. § 1367; lawsuits enforcing laws
with comprehensive enforcement
mechanisms (e.g. IGRA in Seminole Tribe
v. Florida (1996))
2. Limit on state immunity:
WAIVER/CONSENT
• Must be explicit.
• No constructive waivers
• No implied waivers.
3. Limit on state immunity:
abrogation
Other limits on state sovereign
immunity
• Lawsuits by federal government against
the states
• Lawsuits in admiralty
• Lawsuits by state against other states (as
long as state suing to protect own
interests, not that of citizens)
• Lawsuits against municipalities or political
subdivisions of states as long as not really
suing states
Seminole Tribe v. Florida (1996) [C
p. 228]
• Statute at issue:
IGRA
• Gaming has caused
Seminole Tribe to rise
from abject poverty to
huge wealth
Seminole Tribe v. Florida (1996) [C
p. 228]
• Majority opinion of
Justice Rehnquist,
joined by O’Connor,
Scalia, Kennedy, and
Thomas
Seminole Tribe v. Florida (1996) [C
p. 228]
• Dissent of Stevens
(who telecommutes
from Florida for
around 2 weeks each
month in the winter
months)
Seminole Tribe v. Florida (1996) [C
p. 228]
• Dissent of Souter,
joined by Ginsburg
and Breyer