The Fourteenth Amendment: A Structural Waiver of State Sovereign Immunity from Constitutional Tort Suits

Abstract

The Court's state sovereign immunity jurisprudence employs the Immunity Theory as the authoritative methodology for interpreting the Eleventh Amendment. Under the modern Immunity Theory, state sovereign immunity is a constitutionalized feature of this Nation's federalist system, so that state sovereign immunity is detached from the Eleventh Amendment's text and is a universal default absent affirmative destruction. This Article utilizes the modern Immunity Theory's analytical tools of constitutional structure and constitutional history to explore the boundaries of state sovereign immunity. In particular, this Article ascertains the bounds of the Fourteenth Amendment's intrusion on state sovereign immunity, which is clear: Section 1 of the Fourteenth Amendment extinguished state sovereign immunity, so that a State's violation of substantive provisions of the Fourteenth Amendment — be it the protections found within that Amendment, or the constitutional protections incorporated against states through the Fourteenth Amendment — are unprotected by state sovereign immunity. That is, a Section 5 enactment is not required to abrogate state sovereign immunity, because Section 1 has already extinguished state sovereign immunity with respect to its provisions. Consequentially, by way of 42 U.S.C. § 1983, Congress has created a right of action against the States allowing citizens to vindicate violations of their constitutional rights.