Of Sovereignty and Federalism Akhil Reed Amar Yale Law Journal 1987 Debates about sovereignty and federalism date back to the earliest days of the United States, even before the Constitution was ratified. But how do we draw the lines between state and federal authority today? Where does ultimate sovereignty reside? Professor Akhil Amar wrote a landmark law review article on these questions. He argues that the ultimate sovereign is neither the federal government nor the state governments — it is “We the People.” He argues that Federalism was not designed to protect states rights or the national government, but rather the rights of the citizens themselves. Professor Amar’s article addresses these issues in the context of “sovereign immunity”, which means that the government, state or federal, cannot be sued without its consent. Amar notes that the Supreme Court has used this as an excuse to deny proper remedies to citizens. “In one vital area of contemporary jurisprudence, however, the Supreme Court has fashioned doctrine wholly antithetical to the Constitution's organizing principle of popular sovereignty. By allowing both federal and state governments to invoke "sovereign immunity" from liability for constitutional violations, the Court has misinterpreted the Federalist Constitution's text, warped its unifying structure, and betrayed the intellectual history of the American Revolution that gave it birth.” Professor Amar begins his argument with an explanation of how these Revolutionary forebearers conceived of popular sovereignty and limited government. Next, he turns to the question of state sovereign immunity specifically. According to Amar, the Supreme Court has misinterpreted the Eleventh Amendment, which says that a citizen of one state cannot sue another state in a federal court. However, the Court has interpreted this to mean that states cannot ever be sued in federal court, even when they violate federal law. In Amar’s view, if a state violates an individual’s constitutional rights, the citizen ought to be able to seek redress in a federal court. “The icon of the federal courthouse open to remedy all constitutional wrongs gives way to a burlesque image of a doctrinal obstacle course on the courthouse steps. In the end, the Supreme Court's vision of state sovereign immunity warps the very notion of government under law.” Professor Amar advocates for a return to the original vision of the Founders, an approach he calls “neo-Federalism.” He suggests that not only could the federal government provide remedies for state violations, but that states ought to consider creating a mechanism whereby their citizens could seek remedies against federal violations of their constitutional rights. By reclaiming the concept of popular sovereignty and emphasizing the importance of state and federal governments working against each other as a check on government power, Amar presents a vision of federalism that seeks to provide remedies for constitutional violation. “Whenever the rhetoric of "states' rights" is deployed to defend states' wrongs, our servants have become our masters; our rescuers, our captors. The Constitution is two hundred years old this year. Perhaps the best way we could celebrate this enduring document would be to ask whether current legal doctrines do full justice to it, to its makers, and to ourselves.” State sovereign immunity is still the presumptive law of the land but Professor Amar’s counsel was effective. His scholarship helped usher in an era of academics and judges evaluating issues based on the original text and meaning of the Constitution. Interpreting the concepts of sovereignty and federalism according to the design of the Founders can reinvigorate safeguards for individual rights.