Sovereign and State: A Democratic Theory of Sovereign Immunity

69 Pages Posted: 4 Feb 2014 Last revised: 28 Sep 2020

See all articles by Corey L. Brettschneider

Corey L. Brettschneider

Brown University - Department of Political Science; Fordham University School of Law

David McNamee

Princeton University, Department of Politics; State University of New York (SUNY) - Baldy Center for Law and Social Policy

Date Written: February 3, 2014

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

Suggested Citation

Brettschneider, Corey and McNamee, David, Sovereign and State: A Democratic Theory of Sovereign Immunity (February 3, 2014). 93 Tex. L. Rev. 1229 (2015), Fordham Law Legal Studies Research Paper No. 2387666, Available at SSRN: https://ssrn.com/abstract=2387666 or http://dx.doi.org/10.2139/ssrn.2387666

Corey Brettschneider

Brown University - Department of Political Science ( email )

Box 1844
Providence, RI 02912
United States

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

David McNamee (Contact Author)

Princeton University, Department of Politics ( email )

Princeton, NJ
United States

State University of New York (SUNY) - Baldy Center for Law and Social Policy ( email )

School of Law
528 O'Brian Hall
Buffalo, NY 14260-1100
United States
6153301521 (Phone)

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