Taking on a new case that could draw it back to the very origins of the Constitution, the Supreme Court agreed Monday to decide when Congress can take away the immunity of state governments to being sued in federal courts.
The case, to be decided at the Court’s next term, grows out of a fascinating controversy over who owns the rights to photos and films of the underwater wreckage of one of the flagship of the famous pirate, Blackbeard.
Besides requiring the Court to take a new look at what basic powers Congress has under the Constitution’s Article I to support national government supremacy, this review will reopen a controversy over federal and state authority that was a dominant part of the Justices’ so-called “new federalism” revolution in the 1990s, which significantly enhanced states’ rights.
At issue specifically in the new case is the constitutionality of a 1990 law that Congress passed to allow copyright owners to sue state governments in federal court for allegedly infringing on those rights. That was one of three laws that Congress would pass to overturn protections of the states’ sovereignty that they had won in Supreme Court decisions in that era. (The Court itself has since struck down the other two of those laws.)
Although the new case does focus on the scope of copyright law, the outcome could either add to, or subtract from, the authority of Congress to ensure that states, too, are bound by federal statutes, making the requirements uniform nationwide.
As the Court ponders the new case, it may well be reminded that before the Constitution was adopted in 1789 the state governments were as sovereign as entire nations customarily were. That was their status under the old Article of Confederation, following the separation of the colonies from Britain.
The Constitution, displacing the discredited Articles of Confederation, was based on the idea that the people themselves, not state governments, hold sovereignty in America. The states were required to yield to national supremacy (reinforced by Article V’s Supremacy Clause).
The new case focuses on what remains of state sovereignty and immunity under the Constitution’s 11th Amendment, which was quickly passed by Congress and formally ratified in 1795 in a move to override a Supreme Court decision that had opened state governments to federal court lawsuits by citizens of another state.
The overridden decision, Chisholm v. Georgia, issued in 1793, allowed Georgia to be sued by a South Carolina merchant in a dispute over a payment for a Revolutionary War debt. The 11th Amendment marked the first time in U.S. history that a decision by the Court was overturned by a constitutional amendment.
In the new case, the state of North Carolina relied partly on the 11th Amendment in trying to head off a lawsuit by a documentary filmmaker, Frederick L. Allen. The lawsuit claimed that the state government had violated copyrights held by Allen and his production company on images taken of the sunken remains of Blackbeard’s flagship, Queen Anne’s Revenge, which sank off the North Carolina coast; it was discovered there in 1996.
Allen argued that North Carolina did not have immunity to the lawsuit and relied in part on the 1990 law in which Congress declared flatly that states would no longer have legal immunity in federal court to copyright infringement lawsuits.
The historic and legal importance that the current Justices see in the new case was clearly reflected in the fact that they granted review even though there is no split among lower federal courts on the constitutional question in dispute; all of the lower courts that have ruled have struck down the 1990 law as beyond Congress’s power.
Lawyers who filed the new case at the Court for the filmmaker argued that this controversy shows that the lower federal courts have shown a “disregard of a law enacted by Congress as a co-equal branch,” compromising “vital principles that should properly define and limit each branch’s respective powers.”
North Carolina state officials tried to head off Supreme Court review, arguing among other points that the lack of a split among lower courts made it unnecessary for the Justices to get involved.
Because the Court is now so close to the end of its current term, the new case of Allen v. Cooper will be put over for hearing and decision in the Justices’ new term, opening next October 7. The case already has attracted outsiders’ written briefs from groups or individuals in the copyright field but is likely to draw the views of scholars of the Constitution and American history as it unfolds further.
The specific question that the Court agreed to decide is whether Congress had the constitutional authority to take away state governments’ sovereign immunity to federal copyright infringement lawsuits.
That question implicates both the power of Congress under the intellectual property clause of Article I, as well as the power that Congress has to enforce the 14th Amendment’s guarantee that states must respect rights created under federal law.
In the lower court ruling to be reviewed by the Justices, the U.S. Court of Appeals for the Fourth Circuit decided that the 1990 law could not be upheld either under Article I or the 14th Amendment, and that individual state officials sued in the case did not have legal immunity of their own.
Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.