Rights Without Remedies: Sovereign Immunity and the Incoherence of Modern Constitutional Law

By Mary Fahy ’29

In Alden v. Maine (1999), a group of probation officers sued the state of Maine, their employer, for refusing to pay them what the 1938 Fair Labor Standards Act (FLSA) required in its overtime provisions. The Supreme Court held that Maine could not be sued by private parties in their own court because Maine has state sovereign immunity, which applies when charges against states are based on federal law. Under the state sovereign immunity doctrine, “a state cannot be sued in federal and state court without its consent.” (1) They held that, under Article I of the Constitution, Congress lacks the power to subject nonconsenting states to private suits for damages in state courts. Thus, the workers were left with no forum in which to vindicate a right expressly granted by Congress. As Justice David Souter explicates in dissent, denying private enforcement of an FLSA claim is tantamount to “closing the courthouse door to state tort victims.” (2) Alden thus exposes a troubling incongruity at the core of American constitutional law: rights exist on paper, but state sovereign immunity systematically deprives constituents of meaningful remedies for their violation. This doctrine does not merely limit how Congress’s will is enforced—it nullifies it entirely. Through powers granted by the Constitution, Congress acts as the voice of the people, uniting diverse viewpoints to create national policies for the public good. Sovereign immunity renders congressional protections unenforceable against state governments. Such a doctrine cannot be reconciled with the Constitution's basic tenets and is thus inconformable to the fundamental law of our nation. 

The Framers carried the sovereign immunity doctrine into American law largely as an outdated residual of English law. Sovereign immunity is defined in the Eleventh Amendment, where it states that judicial power does not extend to “any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” (3) However, contemporary interpretations of the sovereign immunity doctrine have expanded well beyond the purpose of the Eleventh Amendment, allowing states to invoke sovereign immunity in all suits brought by their own citizens in federal court, anyone in a federal administrative procedure, foreign states, and private citizens in admiralty. (4) Exceptions to the doctrine include congressional abrogation, where Congress has the ability to nullify a state’s sovereign immunity, and Ex Parte Young, where suit can be brought against a state officer for “a continuing violation of federal law.” (5) Otherwise, states themselves may only waive their sovereign immunity on their own terms. (6)

The doctrine of state sovereign immunity compromises the constitutionally enshrined supremacy of federal law. The Supremacy Clause states that the Constitution is “the supreme Law of the Land…any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” (7) Yet sovereign immunity bars suits for relief against state governments, even when they violate the Constitution and federal laws. While individuals can still file a suit against the federal government, violations of the Constitution by the government are not confined to a single level. This doctrine leaves individuals without recourse from offenses committed by state governments. Sovereign immunity protection for state governments weakens the Supremacy Clause by allowing states to avoid compliance without consequence. (8) Sovereign immunity limits the ex post remedies available to enforce federal law by prohibiting lawsuits for damages or retroactive enforcement. (9) It also reduces the ex ante incentives for states to comply with federal law voluntarily by shielding them from the financial and legal consequences of their violations. (10) Sovereign immunity elevates states above the Constitution by allowing a common-law doctrine to prevail over the Constitution and the federal laws to which they are bound. When the Constitution cannot be imposed upon the states, it is internally contradictory and ineffective—the doctrine that renders it so demands reconsideration.

Sovereign immunity is incompatible with the design and intent of the Fourteenth Amendment and its Due Process Clause. The clause imposes a “constitutional mandate that those who suffer a loss of life, liberty, or property at the hands of the government are entitled to redress.” (11) This guarantee is not merely procedural, and as such, requires the existence of a meaningful forum in which an injured party may seek relief. When a state violates a constitutional right, and the injured individual is barred from suing for damages—or barred from suing at all—the procedural guarantee of due process is stripped of force. A right with no available remedy is, in practice, no right at all. The Fourteenth Amendment addressed this structural problem by granting Congress “authority to enforce ‘by appropriate legislation’ [its] substantive provisions;”  the amendment fundamentally restructured the federal-state relationship to make states answerable for rights violations. (12) Fitzpatrick v. Bitzer (1976) confirmed this, holding that the Eleventh Amendment’s “principle of state sovereignty” is expressly limited by Section 5, which authorized Congress to “provide for suits against States that are constitutionally impermissible in other contexts.” (13) This design was intended precisely to ensure that states could not immunize themselves from accountability for constitutional violations. However, this power has since been restricted: in Seminole Tribe of Florida v. Florida (1996), the Court held that Article I of the Constitution did not give Congress the power to abrogate states’ sovereign immunity (14), while in City of Boerne v. Flores (1997), the Court imposed the further restriction that preventative legislation enforcing the Fourteenth Amendment must be “congruent and proportional to the goal that it is aiming to achieve.” (15) The practical consequences are severe. Private individuals cannot sue states in federal courts for Fair Labor Standards Act violations, and Congress cannot authorize such suits in state courts either. (16) Individuals cannot recover money damages from states for violating Title I of the Americans with Disabilities Act, leaving only injunctive relief as a remedy, which does nothing to compensate those already harmed. (17) Most consequentially, 42 U.S.C. Section 1983, enacted as part of the Civil Rights Act of 1871 and specifically designed to allow marginalized groups to bypass state courts and vindicate constitutional rights against state actors, is drastically constrained by sovereign immunity—undermining the mechanism Congress designed to enforce Fourteenth Amendment guarantees. (18) Across these exhibits, sovereign immunity operates in direct tension with the central tort maxim ubi jus ibi remedium, meaning “where there is a right, there is a remedy.” (19) By stripping individuals of any avenue for relief, the doctrine does not merely limit the procedural machinery of due process; it negates due process as a substantive guarantee. The Court’s sovereign immunity jurisprudence thus forces an artificial reconciliation between two irreconcilable principles: that individuals are entitled to redress when the government violates their rights, and that states are immune from suit for those same violations.

Proponents of the sovereign immunity doctrine have attempted to supply the coherence it lacks on its own. The most sustained scholarly defense of sovereign immunity comes from Alfred Hill of Columbia Law School, who offers three arguments in the doctrine’s favor, each of which ultimately fails. First, he contends that “immunity is an inherent attribute of sovereignty,” because, regardless of government form, states all independently arrive at sovereign immunity. (20) He reasons that “there is probably not a country in the world that permits itself to be sued except on terms satisfactory to it.” (21) However, this underlying logic of sovereign immunity reflects political expediency rather than a universal legal principle. The fact that many nations worldwide maintain principles similar to sovereign immunity does not provide for its constitutionality under American law. American sovereignty is distinct; it is derived solely from the consent of the governed, is constrained by a written constitution, and is built on a premise of government accountability. Importing the logic that the sovereign cannot be sued into a republic built on limited government contradicts the constitutional design at its foundation. A doctrine’s usage internationally does not provide for its basis under American law.

Second, Hill argues that “sovereign immunity is not common-law doctrine” because it lacks the defining characteristic of common-law doctrine: the ability to be modified or abolished by courts. (22) On this account, only legislatures, not courts, may alter sovereign immunity; sovereign immunity is beyond judicial reach. However, the doctrine has in fact been repeatedly reshaped by courts. Prior to 1945, the Supreme Court “treated state sovereign immunity like the defense of personal jurisdiction,” such that failure to claim immunity in a timely manner alone would have waived the immunity defense. (23) Historically, “courts regarded sovereign immunity as an archaic relic.” (24) It was only after 1945 that the Court’s rulings began to harden the doctrine’s ideological commitments, with Seminole Tribe beginning the methodical restriction or elimination of exceptions, consequently leading to increasingly strict modern enforcement. Throughout its history, the state sovereign immunity doctrine has followed a “meandering course, sometimes expanding, sometimes contracting, and frequently allowing by subterfuge what it has forbidden.” (25) If modifiability is the defining characteristic of common-law, then Hill’s argument that sovereign immunity is shielded from judicial revision fails.

Lastly, Hill argues that congressional power cannot override sovereign immunity because it is of a “constitutional dimension” that sits above ordinary legislative power. (26) Hill views allowing Congress to abrogate under Article I would void one of the Constitution’s own structural principles. (27) This interpretation reads the Fourteenth Amendment’s enforcement power out of the Constitution. State dignity should not trump individual dignity interests when states are the entities violating rights. More than that, legal responsibility for constitutional violations is a precondition of democratic self-governance, of which states must be subject for their authority to retain legitimacy. 

Beyond being flawed in application, the sovereign immunity doctrine proves incoherent at its very foundations. Sovereign immunity stands in irreconcilable tension with the Supremacy Clause, which supplies the Constitution as the supreme law of the land binding on the states; with the Fourteenth Amendment, which was specifically designed to make states answerable for rights violations; with due process, which demands forums for vindicating legal rights; and with the basic maxim that where there is a right, there must be a remedy. The doctrine endures, not by logical coherence, but through judicial entrenchment and empty guarantees that obscure its contradictions instead of resolving them. A constitutional order cannot coherently proclaim rights while shielding violators of those rights from suit. The defense offered in the sovereign immunity’s favor—namely, appeals to universal sovereignty, definitional arguments about common law, and structural claims about congressional power—collapses under scrutiny. Reform is constitutionally compelled. At minimum, courts should adopt a presumption of state suability for constitutional violations, placing the burden on governments to justify immunity rather than on injured individuals to overcome it. A constitutional system committed to enforceable rights cannot long sustain a doctrine whose central function is to prevent their enforcement.

Endnotes

1. Randolph, Edmund. “State Sovereign Immunity.” National Association of Attorneys General, 2017. https://www.naag.org/attorney-general-journal/state-sovereign-immunity/. 

2. Alden v. Maine, 527 U.S. 706 (1999) (dissenting opinion of Justice Souter).

3. U.S. Constitution Amendment 11. Library of Congress,  https://constitution.congress.gov/constitution/amendment-11/.

4. Randolph, Edmund. “State Sovereign Immunity.” National Association of Attorneys General, 2017. https://www.naag.org/attorney-general-journal/state-sovereign-immunity/.

5. Ex Parte Young, 209 U.S. 123 (1908).

6. Randolph, Edmund. “State Sovereign Immunity.” National Association of Attorneys General, 2017. https://www.naag.org/attorney-general-journal/state-sovereign-immunity/.

7. U.S. Constitution, Article VI § 2, cl. 2. Library of Congress, https://constitution.congress.gov/browse/essay/artVI-C2-2-2/ALDE_00013397/.

8. Chemerinsky, Erwin. “Against Sovereign Immunity.” Stanford Law Review, vol. 53, 2001, pp. 1201-1224. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1685&context=faculty_scholarship.

9. Randolph, Edmund. “State Sovereign Immunity.” National Association of Attorneys General, 2017. https://www.naag.org/attorney-general-journal/state-sovereign-immunity/.

10. Id. 

11. Chemerinsky, Erwin. “Against Sovereign Immunity.” Stanford Law Review, vol. 53, 2001, pp. 1201-1224. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1685&context=faculty_scholarship. 

12. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).

13. Id. at 427.

14. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).

15. City of Boerne v. Flores, 521 U.S. 507 (1999).

16. Herrera, Melinda. “Fair Labor Standards Act and Sovereign Immunity: Unlocking the Courthouse Door for Texas State Employees.” St. Mary's University School of Law, vol. 32, no. 2, 2000. https://commons.stmarytx.edu/thestmaryslawjournal/vol32/iss2/2/.

17. ADA. “Protecting the Constitutionality of the ADA.” ADA.gov. https://archive.ada.gov/5yearadarpt/iii_constitionality.html.

18. Crawford, Todd. “42 U.S.C. § 1983: Origins and History.” Stein Whatley Astorino, PLLC, 2025. https://steinwhatley.com/2025/01/the-origins-and-history-of-42-u-s-c-%C2%A7-1983/.

19. Thomas, Tracy A. “Ubi Jus, Ibi Remedium: The Fundamental Right to a Remedy Under Due Process.” University of San Diego Law Review, vol. 41, no. 4, 2004. https://digital.sandiego.edu/sdlr/vol41/iss4/12.

20. Hill, Alfred. “In Defense of Our Law of Sovereign Immunity.” Boston College Law Review, vol. 42, pp. 485-585. https://bclawreview.bc.edu/articles/1179/files/63bd676ea9cd1.pdf.

21. Id. at 489.

22. Id. at 490.

23. Siegel, Johnathan R. “Waivers of State Sovereign Immunity and the Ideology of the Eleventh Amendment.” Duke Law Journal, vol. 52, pp. 1167-1243. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1190&context=dlj.

24. Florey, Katherine. “Sovereign Immunity’s Penumbras: Common Law, “Accident,” and Policy in the Development of Sovereign Immunity Doctrine.” Wake Forest Law Review, vol 43, pp. 765-835. https://wakeforestlawreview.com/wp-content/uploads/2014/10/Florey_LawReview_12.08.pdf.

25. Siegel, Johnathan R. “Waivers of State Sovereign Immunity and the Ideology of the Eleventh Amendment.” Duke Law Journal, vol. 52, pp. 1167-1243. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1190&context=dlj.

26. Hill, Alfred. “In Defense of Our Law of Sovereign Immunity.” Boston College Law Review, vol. 42, pp. 485-585. https://bclawreview.bc.edu/articles/1179/files/63bd676ea9cd1.pdf. 

27. Id. at 485.