In an essay for Law & Liberty titled “Originalism and Sovereign Immunity”, Prof. Ilan Wurman dissects modern sovereign immunity jurisprudence with an eye toward the original principles invoked in Chisholm v. Georgia. Wurman observes a gradual expansion of sovereign immunity rights engineered by the Supreme Court in cases like Seminole Tribe v. Florida, Alden v. Maine, and most recently, Franchise Tax Board v. Hyatt. Critical of the growing trend, he advises originalists to reach past the text of the Constitution to reconcile 11th Amendment jurisprudence with the concept of individual sovereignty articulated by James Wilson in Chisholm v. Georgia. Neither in Article III nor through Congress’s sweeping Necessary and Proper Clause power does the Constitution offer a mechanism to abrogate sovereign immunity. Instead, Wurman concludes that only those ideas standing outside the plain text of the Constitution can rightly abrogate sovereign immunity and return its jurisprudence to the solid ground of first principles.
Some excerpts from the piece:
“Thus the Supreme Court has stated that the Eleventh Amendment is merely declaratory of a broader sovereign immunity principle not expressly stated in the Constitution’s text. It is not surprising, then, that the Court’s sovereign immunity doctrine has been repeatedly criticized as inconsistent with originalism. I agree that the Court has indeed messed up sovereign immunity doctrine. But, as I explain in my book, A Debt Against the Living: An Introduction to Originalism, the results in most of these cases are consistent with both textualism and originalism (to the extent those are different methods).”
“The mistake that both the Supreme Court and the opponents of its sovereign immunity cases make is to presume that the answer to this specific question must be found in the Constitution. This gets the Constitution backward. The Constitution was not adopted on a tabula rasa, but rather atop many layers of preexisting law.”
“[T]he Court’s sovereign immunity cases, including last week’s, have been maligned for being inconsistent with the original meaning. The critics are partly right: the Supreme Court has effectively made up the doctrine in these cases. But they are wrong to suggest that the results in these cases are inconsistent with the Constitution’s original meaning. Quite the opposite.”
Read the whole essay here.