Sovereign and State: A Democratic Theory of Sovereign Immunity

Abstract

Sovereign immunity is an old idea, rooted in monarchy: the king cannot be sued without consent in his own courts. The American Constitution, by contrast, is committed to popular sovereignty and democratic self-rule. It is hardly surprising, then, that sovereign immunity doctrine comes riddled with confusion when awkwardly transplanted to a democratic context. But scholars have so far overlooked a cure for these confusions — to revisit the fundamental question of sovereignty in a democracy.

In this paper, we aim to reconcile the doctrine of sovereign immunity with the Constitution’s core commitment to democracy. On our view, a state is rightly immune from suit when it acts as the democratic sovereign. This includes the authority to make what we will call “sovereign mistakes.” For a plaintiff to raid the treasury to pay for losses stemming from public policy decisions, even in error, vitiates the sovereign power of the purse. But a necessary condition for democratic legitimacy is that the sovereign must respect citizens’ fundamental constitutional rights. And so when the state violates these rights, it no longer acts as the democratic sovereign, and it does not enjoy immunity from suit. The mantle of democratic sovereignty passes to the citizen-plaintiff, instead.

Part I considers and rejects the all-or-nothing approaches to sovereign immunity doctrine that dominate the literature. Part II then develops our democratic alternative. Parts III and IV apply this democratic principle of sovereign immunity to breathe new life into the doctrine — providing a normative justification for immunity where it lies while also carving out its limits.

Keywords: Constitutional Law, Constitutional Theory, Democratic Theory, Legal Theory, Federal Courts, Civil Procedure