Part I considers what we would theoretically expect from waiver law if we accepted the Court’s suggestion that constitutional waivers, no matter the underlying right, must at minimum meet Johnson’s requirements of voluntariness and knowingness. This Note takes a closer look at that oft-invoked comparison. 2001) (comparing a state’s choice to waive its immunity with “any case of a knowing and intelligent waiver of rights”) Garcia v. 2004) (explaining that waiver of sovereign immunity must be “knowing,” id. 2005) (stating that consent to suit must be “ knowing and voluntary,” and citing Johnson to define waiver) Barbour v. 2008) (applying the Johnson standard) Pace v. 2020) (“As is usually true for waivers, any waiver must be knowing and voluntary.”) Pettigrew v. Lower courts have picked up the trend of drawing connections between sovereign immunity waivers and the classic individual waiver standard, even repeating Johnson’s language to articulate the rule for states. at 681, and that “he classic description of an effective waiver of a constitutional right is the ‘intentional relinquishment or abandonment of a known right or privilege,’” id. at 681–82 (stating that “ Parden-style waivers are simply unheard of in the context of other constitutionally protected privileges,” id.
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it invoked Johnson once again, noting that state sovereign immunity is no less constitutionally protected than the right to trial by jury in criminal cases.
Florida Prepaid Postsecondary Education Expense Board, 14 × 14. and when the Court overruled what was left of Parden in College Savings Bank v. 139, 163 (1977) (describing the Court’s “useful” analogy of state immunity to individual rights). Baker, Federalism and the Eleventh Amendment, 48 U. 651, 673 (1974) (“Constructive consent is not a doctrine commonly associated with the surrender of constitutional rights. 279, 296 (1973) (Marshall, J., concurring in the result) (“he concept of implied consent or waiver relied upon in Parden approaches . . . the outer limit of the sort of voluntary choice which we generally associate with the concept of constitutional waiver.” (citing, inter alia, Johnson, 304 U.S. Other Justices later continued that line of reasoning, 13 × 13. at 200 (White, J., dissenting) (quoting Johnson v. Justice White’s dissent argued that the holding rendered impossible the state’s “intentional relinquishment. where the Court found that a state had constructively waived its immunity by participating in a federally regulated activity, 11 × 11. Terminal Railway of the Alabama State Docks Department, 10 × 10. And occasionally, the Court has gone so far as to draw explicit comparisons to other rights when shaping its sovereign immunity jurisprudence. The voluntariness and knowingness concerns underlying Johnson consistently emerge in the Court’s analyses of immunity waivers. That canonical definition of waiver, as well as the broader notion that there is some uniformity to waiver standards across constitutional rights, has figured in the Court’s conversations about waivers of a very different kind of right: state sovereign immunity. to the privilege against self-incrimination 7 × 7. Specifically, when it comes to criminal constitutional protections, the Court has almost uniformly applied this familiar requirement regardless of the substantive right, from the Sixth Amendment right to counsel, which Johnson addressed, 6 × 6. Rubin, Toward a General Theory of Waiver, 28 UCLA L. or to use the Court’s subsequent rephrasing, the waiver must be “voluntary knowing.” 5 × 5. : a valid waiver is the “intentional relinquishment or abandonment of a known right or privilege,” 4 × 4. 761, 796 (1989) (dubbing this standard “the starting point for modern constitutional waiver doctrines”). Stuntz, Waiving Rights in Criminal Procedure, 75 Va. And to answer that question, despite the range of constitutional rights available to be waived, the Court has returned time and time again to the same paradigmatic definition 2 × 2. Where there is a waiver, the question of its validity arises. 801, 801 (2003) (pointing out that certain constitutional rights, like First Amendment rights and other noncriminal protections, are not freely waivable). See, e.g., Jason Mazzone, The Waiver Paradox, 97 Nw. Where there is a right, there is (usually) a way to waive it.
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