Awakening the People’s Giant: Sovereign Immunity and the Constitution’s Republican Commitment

April 2, 2012

This Article explores the relationship between two constitutional doctrines that have faced withering criticisms. The first is the scant jurisprudence emanating from the Guarantee Clause, a provision that requires the United States to ensure republican forms of government in every state. John Hart Ely and Richard Posner, among others, have observed that the Clause has been interpreted in ways that demote it to a dormant aspiration, hibernating in a dusty corner of the Constitution where courts dare not enter. The second is sovereign immunity, which protects states from most federal lawsuits. Scholars have labeled sovereign immunity’s application as unprincipled and “embarrassing,” primarily because this jurisprudence has purportedly outpaced the language of the Constitution.

Taken seriously, however, the Guarantee Clause could reaffirm and reform the troubled doctrine of sovereign immunity. Reaffirm, because the Clause has the ability to pillar important aspects of sovereign immunity with a more plausible textual basis than any currently cited by the Supreme Court. The text and history of the Guarantee Clause illustrate that it protects representative democracy, a form of government that stands as one means of ensuring stability among the states. Protecting representative government and ensuring states’ stability are among the very aims that animate sovereign immunity jurisprudence. Reform, because the Clause also reflects a textual commitment to the principle of popular sovereignty. Therefore, any account of sovereign immunity must reconcile how the People and the States may both claim the mantle of sovereignty in our federal system. The Court’s current approach to sovereign immunity fails to engage, let alone resolve, this quandary.

I offer a detailed alternative approach to implementing sovereign immunity that is far more consonant with popular sovereignty and the principle of representative government. This proposal would expand plaintiffs’ ability to challenge states for violations of constitutional violations bearing a substantial nexus with representative government. It would also expand state legislatures’ ability to protect states from certain classes of statutory lawsuits through a new concept called “popular immunity.”

April 2012

No. 5