The first Supreme Court case to matter was Chisholm v. Georgia, in which the majority found that states are not sovereign entities, rather, the people hold the supreme sovereign power in our government. Chisholm, a disgruntled landowner, sued the state of Georgia over mistreatment after the Revolutionary War: Georgia had not paid debts arranged in contract, so Chisholm sued the state in frustration. Georgia argued that they had sovereign immunity and thus could not be sued. This is known as the sovereign immunity principle, based on English common law- at the time, the court decided that this now fundamental principle didn’t exist- the people were sovereign, not the states, so the power to sue is, in effect, a form of popular sovereignty. Justice Iredell was the lone dissenter, and his opinion was the basis for crafting the 11th Amendment. 

When the decision was announced, the state legislatures rose in rebellion. Not literally, but they assembled, and with “popular” support, they amended the Constitution. At this time amending the Consitution certainly proved much easier: it was passed in only 11 months, while the usual ratification process takes about twice that. There was a pressing need to fix the Constitution- the problem fell in Article III Section II: 

“The judicial Power shall extend to Cases… between a State and Citizens of another State…”

While the 11th Amendment reads: 

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

Now, Chisholm (who was a citizen of South Carolina) couldn’t sue Georgia over debts. This amendment left holes, though, when other forms of legal disputes eventually took to the court. Hans v. Louisiana answered these holes, addressing what would happen if a citizen sued his/her own state- the Hans court, decades later, followed Chisholm, bolstering states’ sovereign immunity- a citizen cannot sue his/her own state in a court of law. 

If you take a second to observe what’s happening here, you become startled by the facts. Although this took place centuries ago, Chisholm still has an immense impact on our states’ legal systems. States are immune from prosecution. States can only take the side of the plaintiffs, but of course, they can always consent to being sued. Why would the state consent? In Chisholm’s case, why would Georgia pay a citizen if it wasn’t obligatory? You come to realize that this history has its effects today. I am certainly concerned: how is this democratic? 

The response defends sovereign immunity: if a state was under constant threat of suit, this threat would hinder state government functionality. A prominent supporter of this principle, Constitutional Scholar Raoul Berger writes: 

“Sovereign immunity protects the states from the vexations of litigation in federal courts, preserving their dignity and independence.”

While Constitutional Scholar Bruce Ackerman writes: 

“Sovereign immunity is a relic that obstructs the very function of judicial review, which is meant to protect individual rights against government overreach.”

My beliefs take root in this quote, backed by both contemporary and historical accounts for reasoning against this outdated, destructive, and anti-democratic principle. 

Starting with centuries-old history, and as Bruce Ackerman so brilliantly pointed out, judicial review is truly a counterpart to the principle of sovereign immunity. Historically speaking, with Marbury v. Madison in 1803, sovereign immunity came before judicial review. The latter had every right to replace the former. If Chief Justice John Marshall was able to say that the role of the court is to protect the people from undue governmental interference, then he had every right to eradicate state immunity, which essentially made state legislatures kings above the law. The only problem was that it was written into the Constitution- still, in the same time period, we saw two polar opposite frameworks for accountability; one with dedication to democracy and the other with none. 

Now, today, we see Trump v. United States- the executive branch is now morphing into the state legislatures, and most people (legal pundits included) are horrified. But we act as if this is the first instance of subversion- we have a Constitutional Amendment devoted to undermining the rule of law. I believe the court needs to do its best to minimize the impacts of the 11th Amendment. Unfortunately, the Roberts Court would do the opposite, given the chance. The future courts need to first handle the mess that the Trump decision created, and then, over time, we can hopefully see the disintegration of baseless immunity in our government. The last thing our elected officials need is immunity, especially in the greatest Constitutional Republic in the world.