Has the Supreme Court Confessed Error on the Eleventh Amendment? Revisionist Scholarship and State Immunity

Abstract

The simple text of the eleventh amendment belies the complexity of the jurisprudence surrounding it. Professor George D. Brown uses the United States Supreme Court's recent decision in Pennsylvania v. Union Gas Co. as a jumping-off point to determine where the Court stands today on the delicate balance between national supremacy and state sovereignty. In the divided Court's endorsement of congressional power to abrogate the states' immunity he detects a shift toward national supremacy. Professor Brown finds abrogation theory to be as problematic as what came before it. Nevertheless, he accepts the current framework as a compromise that protects state treasuries on the one hand, while advancing enforcement of federal substantive norms on the other. The compromise is a shaky one, and Professor Brown expects the Court to continue wrestling with the doctrinal difficulties surrounding the eleventh amendment.