Note:
Edith A. Wittig, Retroactive Recovery of Payment Made to the State: Resolving the Conflict Between the Eleventh and Fourteenth Amendments, 55 TEXAS L. REV. 1074 (1977).
 

Abstract:
This Note explores some of the conflicts between the fourteenth amendment and its widespread application to the states and the sovereign immunity doctrine of the eleventh amendment. Wittig argues that the Supreme Court distinction between prospective and retroactive relief flows from a realization of both the rights of the citizens and the concerns of the state. Its refusal to require the state to bear retroactively a monetary burden further rests on the respect for Congress’ constitutionally assigned role in defining judicial power and granting jurisdiction. She concludes that although the interpretation of the Constitution has always been in the hand of the judiciary, the nature of section 5 of the fourteenth amendment as an enforcement provision calls for a judicial deference to Congress when that amendment conflicts with the eleventh amendment’s restriction on judicial power vis-à-vis the states.