We Americans inherited many extremely valuable legal concepts from our English forebears. Due process, common law causes of action, equitable remedies, and bars on cruel and unusual punishments are just a few examples of English innovations that protect our liberties and allow our Great Society* to flourish.

But even after setting aside all that stuff we fought over in the Revolution, the Brits weren’t perfect. Another idea of theirs was sovereign immunity, the notion that you cannot sue the Crown because the King can do no wrong. It’s been largely adopted under current caselaw. Now, whether this is an accurate understanding of the American system of government is another story. There’s a great debate over whether the U.S. Constitution and various state constitutions should be interpreted with sovereign immunity in mind given that these are documents of popular—not royal or even Parliamentary—sovereignty. This was a debate at the Founding as well. You can read a piece I wrote on the controversy here, and also visit IJ’s Project on Immunity and Accountability (IJPIA) for our efforts to limit the harm of sovereign immunity and its related doctrines, such as qualified immunity.

Some states, though, make sovereign immunity pretty explicit in their state constitutions. Arkansas is an interesting example, and its supreme court had a very interesting back-and-forth about its constitution this week. In Thurston v. League of Women Voters of Arkansas the court addressed whether the League and a few other plaintiffs could sue the Secretary of State and other state officials in their official capacities in the plaintiffs’ constitutional challenge to new election laws. At issue wasn’t whether the plaintiffs had standing to mount their challenge or even whether the defendants were the proper officials to sue. It was simply whether anyone could sue any state officials, as state officials, in the first place.

Ex Parte Arkansas

Some readers who have experience in constitutional litigation may be scratching their heads at this point. The U.S. Supreme Court has said, yes, that because of sovereign immunity a plaintiff cannot sue the United States itself, either for damages or for a ruling that a statute or rule is unconstitutional or otherwise unlawful. And a plaintiff can’t sue a state itself in federal court either. (The exception to these being if the United States or state waived its immunity, which they do sometimes do, but in frustratingly limited ways.) However, the Court has recognized since the 1908 case of Ex Parte Young that a plaintiff can sue an official in his or her official capacity not for damages but to test the legality of a statute or rule. (A suit for damages is a different story that IJPIA is working to make right.) And in most states suits against state officials for rulings on legality are not an issue, often because of state declaratory judgment acts waiving any immunity. Thus, given that suits against officials for non-monetary relief are pretty common, why is there an issue, at all, about suing Arkansas election officials who enforce election laws?

Well, in this week’s case the Arkansas Supreme Court indeed did conclude that there wasn’t an issue and the suit could go forward. But one justice dissented because of something specific to Arkansas’s constitution, a constitution that state has had since 1874. And that dissent provoked a concurrence. Reading their exchange is illuminating.

What’s “The State”?

Article 5, Section 20 of the Arkansas Constitution succinctly declares “The State of Arkansas shall never be made defendant in any of her courts.” The court has previously stated that unlike in federal court, the Arkansas legislature cannot waive this Arkansas state court immunity. Thus, the state cannot be made a defendant even if it (or at least the legislature speaking for “it”) wants to. This is based on the fact that the 1874 constitution modified the previous version in the Reconstruction constitution of 1868, where the pertinent language stated “The general assembly shall direct by law in what manner and in what courts suits may be brought by and against the state.” Textually, this change indicates that legislature’s hands are supposed to be tied in waiving the state’s sovereign immunity.

But hang on. The constitution says “the State” not “any state official.” So how is this provision even relevant to the League of Women Voters’ case? Neither “the State” nor an arm of it, like a department or a state university, are a defendant.

The court said that’s right, it’s not relevant. Suits that don’t ask for damages against state officials, even if brought against them in their official capacity, aren’t suits against the “State.” The majority opinion didn’t dig into this very deeply, but the concurrence of Justice Wood explained the distinction, applying, among other things, the reasoning of Ex Parte Young itself. Quoting that case she said

Nor does the provision bar claims against State officials who act illegally, unconstitutionally, or ultra vires. These actions are not truly against the State, but against rogue State officials whom the courts can enjoin. This is similar to the U.S. Supreme Court’s doctrine that a lawsuit to enjoin a State official from taking unlawful action does not implicate State sovereign immunity under the Eleventh Amendment because such an officer is “stripped of his official or representative character” and may be “subjected . . . to the consequences of his individual conduct.” In other words, a state official who acts unlawfully does so “without the authority of . . . the state in its sovereign . . . capacity.”

The concurrence additionally made the point that it would be bizarre if the Arkansas Constitution would prohibit any suit against a state official acting unconstitutionally while also adopting the state’s bill of rights: “Why would the people of Arkansas pass a constitution that gave them individual liberty, freedom of speech, freedom of assembly, and the right to bear arms, and at the same time destroy their ability to vindicate such rights in state court?”

Blackstone’s Irony

The dissent of Justice Womack heatedly focused on the “never” in Article 5, Section 20, asserting that there simply cannot be a suit against the state, and that includes state officials working in their official capacities. It claims that the distinction between officials and the state itself makes no sense. It also makes broad appeals to original meaning and that the original meaning of “state” encompasses officials. And it even raises the concept of “the King can do no wrong” as the original basis for sovereign immunity.

Which, to invoke Helen Mirren in the otherwise forgettable Teaching Mrs. Tingle, is quite ironic. The reason the aphorism “the King can do no wrong” exists is to limit sovereign immunity. As William Blackstone explained, you cannot sue the King himself, since the Crown is assumed to not act unlawfully. “[B]eing created for the benefit of the people, it cannot be exerted to their prejudice.” However, if his ministers and agents act unlawfully it’s a different story. In such a situation you can sue because they by definition are not acting in his name. Similarly, in the American context, perhaps you cannot sue the United States or the State itself, but you can sue its officials when they violate the constitution. Although Justice Peckham did not cite Blackstone or this aphorism in his opinion for the Court in Ex Parte Young, it essentially was the same thing.

Thus, in saying sovereign immunity means “the [state] can do no wrong” a full originalist analysis would discuss the flip-side of the original doctrine, something completely absent in the dissent. It would at least address the reasoning of Ex Parte Young, but it’s nowhere to be found in the dissent.

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.

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