The Supreme Court under the late Chief Justice Rehnquist and now Chief Justice Roberts takes the Tenth Amendment and state sovereignty seriously. It also takes the Eleventh Amendment and state sovereign immunity seriously. Moreover, the contemporary Court’s interpretations of Congress’s Article I powers are based on its concomitant interpretations of the Tenth and Eleventh Amendments, which the Court has infused with the idea that an inherent part of a state’s sovereignty is not just its prerogative not to have its treasuries invaded, but also includes its right not to have its dignity assaulted. Protecting the dignity of states and other critical principles that inform the Court’s Article I, Tenth Amendment and Eleventh Amendment jurisprudence have made their way into cases about Congress’s enforcement powers under Section 5 of the Fourteenth Amendment. Indeed, the Court’s strong coupling of state sovereignty and state sovereign immunity suggests that they are an inseparable part of the federalism balance.
This Article explores the development of the contemporary Court’s strong emphasis on the importance of states as evidenced by its interpretations at the intersection of Article I, the Tenth, the Eleventh, and Fourteenth Amendments (the “Intersection”). When all is said and done, the path to obtaining damage remedies against a state has been significantly blocked by developments at the Intersection, notwithstanding Congress’s enforcement power under Section 5 to abrogate states’ immunity. Yet the adequacy of state remedies is largely irrelevant under § 1983, the primary statute that provides a cause of action for alleged violations of federal law by state actors. Significantly, though, almost all state constitutions protect the principle that “where there’s a right, there must be a remedy.”
In light of this development, the Court’s message about the importance of states under Article I, and the Tenth and Eleventh Amendments, does not include a concomitantly strong message about their importance under the Fourteenth Amendment. To emphasize, this Article does not attempt to lay out the contours of the role state remedies can and should play at the Intersection; that is the focus of future scholarship. Rather, this Article explores the strength and breadth of the Court’s message about the importance of states under Article I, and the Tenth and Eleventh Amendments, and highlights the curious absence of a concomitantly strong message about the importance of the states in protecting individual rights and providing remedies for violations of those rights. Certainly, if states are important under Article I, and the Tenth and Eleventh Amendments, they also are important under the Fourteenth Amendment. Including a message about the importance of state remedies at the Intersection bolsters the Court’s overall message about the importance of states in the constitutional design.
Sharon E. Rush, Oh, What a Truism the Tenth Amendment Is: State Sovereignty, Sovereign Immunity, and Individual Liberties, 71 Fla. L. Rev. 1095 (2019)