Sovereign Immunity and the Two Tiers of Article III

96 Pages Posted: 7 Jan 2022

Date Written: November 23, 2021


It is time to return sovereign immunity doctrine to the Constitution’s text. To that end, this Article resurrects the forgotten extension of the “judicial Power” to “all Cases” of federal question, admiralty, and ambassadorial jurisdiction, but merely to “[some] Controversies” between individuals and States (and five other categories of party-based jurisdiction). It then illuminates the connection between that crucial textual variation and the historically important doctrine of state sovereign immunity: reflecting the history at the founding, the result of this two-tiered structure of Article III is that there are indeed “words” to justify Marshall and Hamilton’s constitutional principle of state sovereign immunity in public debt cases, just as there are “words” to justify their understanding of Article III as preserving a separate zone of supreme federal authority.

The Supreme Court itself, in opinions spanning 1793 to 1838, propounded precisely the same two-tiered reading of Article III, before its precedent on this score was gradually forgotten. Reclaiming this textual and precedential understanding would do more than restore a careful balance between state sovereign immunity and federal judicial Power. This two-tiered reading of Article III also makes sense of the famously confounding text of the Eleventh Amendment; it resolves the “fiction” embedded in Ex Parte Young doctrine; it grounds, in text, a broader congressional abrogation power; and it grounds, in text, the existence of a constitutional form of state sovereign immunity. The result, in short, is a marked improvement over modern sovereign immunity doctrine.

Keywords: sovereign immunity, constitutional law, federal courts, Article III

Suggested Citation

Schultz, Alexander, Sovereign Immunity and the Two Tiers of Article III (November 23, 2021). George Mason Law Review (2021), Available at SSRN: or

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