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U.S. News
11: Sovereign immunity

Wednesday, November 27, 2002


So infused with English common law was colonial-era jurisprudence, that understanding the Constitution is difficult without knowing its roots. So it was with the idea of "sovereign immunity" -- the concept that the government cannot be sued without its consent. But, just as the king, or sovereign, enjoyed a certain immunity, it presumed that he would do no wrong and would right any he might inadvertently commit.

Thus, in 1702, England's Chief Justice John Holt would write: "If the plaintiff has a right, he must of necessity have means of vindication if he is injured ... right and remedy, want of right and want of remedy, are reciprocal." In short: if the king had divine rights, he had hefty obligations to straighten things out when he erred. That thinking lay behind the passage of the 11th Amendment. This first change in the Constitution since the Bill of Rights was prompted by a case in Georgia, in which the Supreme Court ruled a foreigner could sue a state.

Through the years, sovereign immunity has been tested repeatedly. It is often difficult to sue the state when you must first obtain the state's permission. It was such a case against Pennsylvania that forced the Shaler School District to accommodate Matthew Burda, a severely disabled 10-year-old with mental deficits and who is deaf. The Burdas won their case in the late 1970s. Today, Burda, 37, lives in Shaler and sorts mail at RAMS Mailing Service in the Strip District. From a time when public schools could refuse education to disabled students, society has moved into the era in which all can be educated. To do so, they had to test the limits and meaning of an amendment that, on its face, first appears to be an impenetrable barrier.

Amendment XI: The judicial power of the United States shall not be construed to 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.

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