Sovereign Immunity

Sovereign Immunity, a principle with origins in early English common law, declared that the king was immune from suit by his subjects. The rationale for the rule was that since law emanated from the sovereign, he could not be held accountable in courts of his own creation. In practice, however, numerous exceptions to this rule afforded aggrieved parties the opportunity to sue the Crown, especially where the sovereign expressly consented to suit.

In the United States, sovereign immunity was used during the nineteenth century to limit suits by individuals against both state and federal governments. The Eleventh Amendment, which was ratified in 1795, prohibited suits against states in federal courts. The highest courts of the states also recognized the doctrine. In Gibbons v. United States (1868), the Supreme Court held that the federal government could not be sued without the consent of Congress.

Today, the concept of sovereign immunity is in disfavor. Many states have narrowed the immunity through statutes and judicial decisions. With the adoption of the Federal Tort Claims Act (1946), Congress expressly authorized individuals to sue the federal government for specified claims, subject to various exceptions. This trend evinces a belief that governments should be accountable for losses they occasion.

Sovereign immunity has been eroded in an indirect fashion as well. Even where the principle of sovereign immunity bars suit against the government, the injured party may seek damages from individual officials who are personally liable for the judgment.

Philip L. Merkel