The concept of sovereign immunity has long been a vibrant force in American law, overshadowing the inequities it created by the theory that government was responsible only for those wrongs it chose to recognize from a moral consciousness inherent within the state. When the thirteen colonies banded together to form the union known as the United States of America, state government played a relatively minor role in the lives of the people. Of the few disputes that did arise between states and citizens, mainly payment of bond obligations incurred during the Revolutionary War, most were settled out of court. As the role of government in the lives of its people has expanded, so have the claims against the state for wrongs done by the state to the people. However, when recovery has remained a matter discretionary with the state, an increasing number of wrongs committed have remained uncompensated. The state may simply choose not to recognize such wrongs, and the injured citizen is thus left without a remedy. The recent increase in civil rights legislation has demonstrated the shortcomings inherent in a system where the wrongdoer alone is left to decide whether to make redress for the damages it has caused. At best, such a system provides incongruous relief to those similarly injured; at worst, all recovery is denied. Federal and state governments have begun chipping away at the immunity doctrine through both the legislature and the judiciary. One great obstacle, however, still stands in the way of providing relief to those injured by acts of government. The eleventh amendment to the United States Constitution remains immovable in the face of this expanding scope of recovery for wrongs committed by government upon its people. Because of its constitutional nature, it has withstood all direct attacks upon a state's sovereign immunity in the federal courts, yielding only to the creation of fictions by which its effect is circumnavigated. The hardships it has wrought have far outweighed the good it was to have brought when incorporated into the Constitution in 1798. This note will examine the reasons for the passage of the amendment and its subsequent ramifications in American law. Its contemporary effects will be noted, particularly with reference to civil rights actions. Attention will also be directed to potential solutions to the problems it has created and continues to foster.
Devon L. Gosnell,
Constitutional Law--The Eleventh Amendment--Injustice for All,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol77/iss4/6