Seminole Tribe v. Florida: Sovereignty and the Eleventh Amendment Imag(in)ed

Abstract

The Eleventh Amendment to the U.S. Constitution, as ratified in the 1790s, reflects an abiding commitment to the idea that the states of the Union were entitled as sovereigns to a measure of immunity from suit in federal court. This chapter from a forthcoming collection, Painting Constitutional Law: Xavier Cortada’s Images of Constitutional Rights (H. Wasserman & M. Mirow eds. forthcoming 2021), explores the conflicting ideas of sovereignty that were embedded in that Amendment. In his painting of one leading modern judicial interpretation of the Eleventh Amendment, the Supreme Court’s 1996 decision in Seminole Tribe v. Florida, Xavier Cortada allows us to see state sovereignty both as a restriction on the sovereign power of Congress and as a special form of state power to deny the competing sovereignty claims of Native people. One finds in Cortada’s depiction of a tattered Native jacket both the imprint of the Eleventh Amendment and the weight of an indigenous people’s history.