"Judicial Solicitude for State Dignity"

Michigan Law Authors
Publish Date
Annals of the American Academy of Political and Social Science
Publication Type
Journal Article

The Supreme Court's recent decisions holding that Congress cannot authorize individuals to sue states proclaim that such sovereign immunity serves the states' "dignitary interests" by emphasizing "the respect owed them as members of the federation." What is the interpretive significance of the Court's apparent references to the social meaning of suits against states? This article explores whether the Court's professed concern with maintaining state dignity might be justificatory rather than rhetorical, with the Court invalidating statutes subjecting unconsenting states to private suit because those statutes entailed social meanings that contravene federalism values. Specifically, various expressivist rationales for the Court's sovereign immunity jurisprudence are sketched, and it is suggested that each rationale confronts significant difficulties that undermine the propriety of expressivist reasoning in this context.

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