The Fourteenth Amendment: A Structural Waiver of State Sovereign Immunity from Constitutional Tort Suits
The Supreme Court's state sovereign immunity jurisprudence has undergone a fundamental change. Although the Immunity Theory of the Eleventh Amendment remains the approved methodology for assessing a State's sovereign immunity from suit, the modern Court has transformed state sovereign immunity into a constitutionally-derived aspect of the States' sovereignty, detached from the Eleventh Amendment's text. This Article explores what has been overlooked by other commentators: in detaching state sovereign immunity from the Eleventh Amendment's text, the modern Court used new analytical tools to justify the scope of state sovereign immunity. The modern Immunity Theory now emphasizes constitutional structure and constitutional history to establish the boundaries of state sovereign immunity. This Article uses those analytical tools to determine the extent the Fourteenth Amendment restricts state sovereign immunity. Ultimately, this Article will show that Section 1 of the Fourteenth Amendment extinguished a State's sovereign immunity from suit for violating the substantive provisions of the Fourteenth Amendment – including the constitutional rights found within that Amendment, and those rights incorporated against States through the Fourteenth Amendment. This analysis will also counsel for reading 42 U.S.C. § 1983 as creating a right of action against States as "persons" for the violation of such constitutional rights.