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Home > Journals > Michigan Law Review > MLR > Volume 45 > Issue 3 (1947)

 

Abstract

Although deriving its force and effect from the medieval period, the doctrine of sovereign immunity retains much of its original influence. Historically, the doctrine is based upon the rule that no suit may be brought against the King without his consent. This concept found its way into international law, and from this source was derived the freedom from suit that our individual states enjoy in their own courts. With the development of the federal union, new problems arose and many were resolved by the adoption of the Eleventh Amendment, which forbids suit against a state in a federal court by citizens of another state. The motivation for this amendment was a belief that the sovereign state must be free from judicial compulsion in the administration of its policies within the limits of the Constitution. For many years the states retained their immunity from suit with bulldog tenacity. Recent trends, however, have indicated a growing tendency to relax this sovereign immunity. With public justice as their objective, statutes have extended the state's suability in tort. Further relaxation of the immunity principle has resulted from judicial interpretation, some cases holding that a constitutional provision that private property shall not be taken without just compensation is a consent to suit. Other courts have interpreted legislative adoption of the Uniform Declaratory Judgments Act as a consent to suit. But despite these innovations, a spirit of strict construction has prevailed where statutes granting consent to suit are concerned. Three recent decisions of the United States Supreme Court are illustrative.

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