doernberg 00 fmt cx 1/19/05 10:20 AM Page i Sovereign Immunity or The Rule of Law

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3 doernberg 00 fmt cx 1/19/05 10:20 AM Page iii Sovereign Immunity or The Rule of Law The New Federalism s Choice Donald L. Doernberg CAROLINA ACADEMIC PRESS Durham, North Carolina

4 doernberg 00 fmt cx 1/19/05 10:20 AM Page iv Copyright 2005 Donald L. Doernberg All Rights Reserved Library of Congress Cataloging-in-Publication Data Doernberg, Donald L., 1945 Sovereign immunity or the rule of law : the new federalism s choice / by Donald L. Doernberg. p. cm. ISBN Federal government United States. 2. Government liability United States. 3. Rule of law United States. I. Title. KF4600.D '042--dc Carolina Academic Press 700 Kent Street Durham, North Carolina Telephone (919) Fax (919) cap@cap-press.com Printed in the United States of America

5 doernberg 00 fmt cx 1/19/05 10:20 AM Page v To Douglas L. Hurley Friend of a lifetime

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7 doernberg 00 fmt cx 1/19/05 10:20 AM Page vii Contents Foreword Acknowledgments ix xi Introduction 1 Chapter 1 Sovereignty 13 A. Jean Bodin 13 B. Thomas Hobbes 23 C. Robert Filmer 30 D. Samuel Pufendorf 36 E. John Locke 45 F. The Framers of the Constitution of the United States 63 Chapter 2 Sovereign Immunity 71 A. The English Approach 71 B. The American Approach The Immunity of Government Entities 81 a. The Immunity of the United States 81 b. The Immunity of the States Under State Law 83 c. The Immunity of the States Under Federal Law The Immunity of Officials Sovereign Immunity and Government Dignity 124 Chapter 3 The New Federalism 129 A. Withdrawal of Federal Judicial Power: Abstention Pullman Abstention Burford Abstention Thibodaux Abstention Younger Abstention 139 vii

8 doernberg 00 fmt cx 1/19/05 10:20 AM Page viii viii CONTENTS B. Withdrawal of Federal Judicial Power: The Eleventh Amendment 147 C. Withdrawal of Congressional Power: The Fourteenth Amendment Cases 150 D. Withdrawal of Congressional Power: The Commerce Clause Cases 160 E. Withdrawal of Congressional Power: Congress s Inability to Compel States to Implement Federal Programs 167 F. Conclusion 176 Chapter 4 The Rule of Law 179 A. Introduction 179 B. The Formalist View 183 C. The Substantive View 190 D. The Rule of Law in Anglo-American Constitutive Documents 197 E. The Rule of Law in Contemporary America 200 Chapter 5 Irreconcilable Differences 209 Table of Authorities 221 Constitutional Provisions 221 Statutes 222 Rules 224 Cases 224 Books 232 Articles 235 Other Authorities 241 Index 243

9 doernberg 00 fmt cx 1/19/05 10:20 AM Page ix Foreword Anyone who studies Federal Co u rts knows that the Su preme Co u rt has undertaken a massive redistribution of power in the United States over the past three decades. Under the rubric of federalism, the Court has systematically s h i f ted power aw ay from the federal govern m ent to the state s, doing so largely (though certainly not entirely) through procedural doctrines. Some constituti onal text underlies parts of what the Co u rt has don e, but mu ch of it fin d s no constitutional anchor at all. This is not a book abo ut wh et h er the new balance bet ween federal and state power that the Court is striking is good or bad. It may be either. It may even be bo t h. That is a discussion for the pundits and the con s ti tuti onal aut h ors of the future. This volume does, however, address the dominant theory that the Su preme Co u rt tru m pets as ju s ti f ying its federalism ru l i n gs : s overei gn immunity. Often, as in the Eleventh Amendment cases, the Court explicitly discusses soverei gn immu n i ty. Even wh ere it does not, h owever, the con cept lu rk s in the back gro u n d. For ex a m p l e, in recent cases limiting Con gre s s s power under the Commerce Clause and the Fourteenth Amendment, the Court has stressed the states independence from federal legislative interference. That is s overei gn immu n i ty by another name, and it is well to rem em ber Shakes pe a re s Wh a t s in a name? Irre s pective of the label, s overei gn immu n i ty s m ells as... well, h owever it smell s, wh i ch ad m i t tedly depends heavi ly on the perspective of the individual. This book grows out of my inability to accept the idea that within a society based on law, not force, a ny wron gdoer should be exem pt from the law. It is one thing to say that certain laws do not apply in certain situations or to certain actors ab initio. It is a far different thing to say, as the Supreme Court repeatedly does, that when there are laws that do apply by their terms parti c u l a rly con s ti tuti onal principles that can app ly on ly to govern m ent and its officials the targets of those laws are not accountable to them, and the victims of u n l awful official beh avi or have no ef fective reco u rse under the law. The ancient saw u bi jus, i bi rem ed i u m promises that wh ere there is a ri gh t, there is a remedy. Anglo-American law has operated under that principle for centuries. Great Britain still does. In the United States, one must now modify that statem en t : u bi jus, i bi rem ed i u m regi m en exceptu m. In that con tex t, ix

10 doernberg 00 fmt cx 1/19/05 10:20 AM Page x x FOREWORD one must qu e s ti on what it means to say that ri ghts exist or that true limitati ons on govern m ent power vi s - à - vi s i n d ivi duals ex i s t. In some sen s e, t h i s book seeks to ex p l ore wh et h er we live under a con s ti tuti on or an illu s i on, a n d it flows in part from the current Su preme Co u rt majori ty s inabi l i ty or unwillingness to appreciate that repetition does not establish validity.

11 doernberg 00 fmt cx 1/19/05 10:20 AM Page xi Acknowledgments Som ewh ere there may be wri ters of s i n gl e - a ut h or works who genu i n ely work alon e, with the re sult that the produ ct is thei rs, f i rst to last. I am not one of t h em. The re s pon s i bi l i ty for the produ ct is mine, f i rst to last, but I ( gra tef u lly) lack the hu bris to think that I did it alon e. My wi fe Cynthia A. Pope is con s t a n t ly su pportive in ways that defy adequ a te de s c ri pti on. The least of it is her wel come ed i torial con tri buti on s, and they are con s i dera bl e. Beyon d t h a t, she to l era tes my bi z a rre sch edule and work habits and has far more faith in me than I do. That is a gift of inestimable value, and I am conscious of it every single day. Our children Doug and Emily also support me in very important ways, although I have not yet conscripted them as editors. My working on a project like this invariably impinges on their world; they nonetheless seem to derive pleasure and pride in whatever I am able to achieve, and that is very warming. I was fortu n a te to hold the James D. Hopkins Profe s s orship at Pace Un i- versity School of Law from 2001 to 2003, and I want to express my gratitude to Dean David Co h en for that hon or and for his constant su pport of this project. My co lleagues Profe s s ors Ba rb a ra Bl ack, S teve Goldber g, and Mi ch ell e Si m on (now serving as As s oc i a te De a n, but she is ex pected to recover) have also been gen erous with their ti m e, s erving as sounding boa rds (and som e- times vo l t a ge reg u l a tors) and of fering su gge s ti ons and new pers pective s. Th ey exem p l i f y, in every re s pect, the best that the ac ademy has to of fer, and my work would not be nearly so much fun without their friendship. One of the very best things abo ut te aching is the nu m ber of i n tell i gen t, ded i c a ted and talen ted young stu dents wh om one meet s. I have been extra ord i n a ri ly fortu n a te to work with re s e a rch assistants Sa rah Co u rtm a n, Mi ch ael Fra n kel, O ren Gel ber, Adam Ha s s on, Jen n i fer Lo Pre s ti, Si obhan Mo l t, Mi ch ael Schw a r z, Tamia Si m on i s, John Ten a gl i a, E dw a rd Va l e, Ma r ga ret Wa l ker, E l i z a beth Wh eel er and Ho lly Yo u n g, a ll pre s ent or past stu dents at Pace Law School. None of them fully accepts the magnitude of the contributions they make, including analysis, research, editing, arguing, proofreading and, most important being friends who respect me enough to tell me when I am once again headed off on the wrong track. xi

12 doernberg 00 fmt cx 1/19/05 10:20 AM Page xii xii ACKNOWLEDGMENTS I met Doug Hu rl ey on Mon d ay, Septem ber 17, , as we were begi n n i n g co ll ege. In the intervening forty - t wo ye a rs we have shared every import a n t event good and bad in each other s lives. Many people have role models for one part of their lives or another as parents or with respect to careers, for ex a m p l e. Doug is my role model for the best that it can mean to be a human being.

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