Dignity: The New Frontier of State Sovereignty

Scott Dodson, University of Arkansas School of Law

Abstract

Few constitutional doctrines have had as turbulent a history as state sovereign immunity, the right of a state to refuse to appear as a defendant in court. The Court has, until recently, avoided a full explanation of the reason for immunizing states from certain suits. But in the 2002 decision Federal Maritime Commission v. South Carolina State Ports Authority, the Court asserted that the preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities. This “dignity rationale” lacks substantial justification and is untethered to any limiting principles. Given that, where does this “dignity rationale” for state sovereign immunity logically lead? How far might it be expanded? Does dignity help unify or confound a more coherent view of state sovereign immunity? Will its sudden acceptance in the sovereign immunity jurisprudence lead to application in other state sovereignty doctrines? This article hazards answers to these and other questions and considers what effects the rationale could have on existing doctrine. I conclude that the dignity rationale could be the lynchpin for the coherence this doctrine has been sorely lacking.