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Seminole Tribe of Florida v. Florida (No. 94-12)
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STEVENS, J., Dissenting Opinion

SUPREME COURT OF THE UNITED STATES


1995-41

Seminole Tribe of Florida v. Florida

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT


No. 94-12 Argued: October 11, 1995 --- Decided: March 27, 1996

JUSTICE STEVENS, dissenting.

This case is about power -- the power of the Congress of the United States to create a private federal cause of action against a State, or its Governor, for the violation of a federal right. In Chisholm v. Georgia, 2 Dall. 419 (1793), the entire Court -- including Justice Iredell, whose dissent provided the blueprint for the Eleventh Amendment -- assumed that Congress had such power. In Hans v. Louisiana, 134 U.S. 1 (1890) -- a case the Court purports to follow today -- the Court again assumed that Congress had such power. In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), and Pennsylvania v. Union Gas Co., 491 U.S. 1, 24 (1989) (STEVENS, J., concurring), the Court squarely held that Congress has such power. In a series of cases beginning with Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238-239 (1985), the Court formulated a special "clear statement rule" to determine whether specific Acts of Congress contained an effective exercise of that power. Nevertheless, in a sharp break with the past, today the Court holds that, with the narrow and illogical exception of statutes enacted pursuant to the Enforcement Clause of the Fourteenth Amendment, Congress has no such power.

The importance of the majority's decision to overrule the Court's holding in Pennsylvania v. Union Gas Co. cannot be overstated. The majority's opinion does not simply preclude Congress from establishing the rather curious statutory scheme under which Indian tribes may seek the aid of a federal court to secure a State's good faith negotiations over gaming regulations. Rather, it prevents Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy. [n1]

There may be room for debate over whether, in light of the Eleventh Amendment, Congress has the power to ensure that such a cause of action may be enforced in federal court by a citizen of another State or a foreign citizen. There can be no serious debate, however, over whether Congress has the power to ensure that such a cause of action may be brought by a citizen of the State being sued. Congress' authority in that regard is clear.

As JUSTICE SOUTER has convincingly demonstrated, the Court's contrary conclusion is profoundly misguided. Despite the thoroughness of his analysis, supported by sound reason, history, precedent, and strikingly uniform scholarly commentary, the shocking character of the majority's affront to a coequal branch of our Government merits additional comment.

I

For the purpose of deciding this case, I can readily assume that Justice Iredell's dissent in Chisholm v. Georgia, 2 Dall. at 429-450, and the Court's opinion in Hans v. Louisiana, 134 U.S. 1 (1890), correctly stated the law that should govern our decision today. As I shall explain, both of those opinions relied on an interpretation of an Act of Congress, rather than a want of congressional power to authorize a suit against the State.

In concluding that the federal courts could not entertain Chisholm's action against the State of Georgia, Justice Iredell relied on the text of the Judiciary Act of 1789, not the State's assertion that Article III did not extend the judicial power to suits against unconsenting States. Justice Iredell argued that, under Article III, federal courts possessed only such jurisdiction as Congress had provided, and that the Judiciary Act expressly limited federal court jurisdiction to that which could be exercised in accordance with "‘the principles and usages of law.'" Chisholm v. Georgia, 2 Dall. at 434 (quoting § 14 of the Judiciary Act of 1789). He reasoned that the inclusion of this phrase constituted a command to the federal courts to construe their jurisdiction in light of the prevailing common law, a background legal regime which he believed incorporated the doctrine of sovereign immunity. Chisholm v. Georgia, 2 Dall. at 434-436 (Iredell, J., dissenting). [n2]

Because Justice Iredell believed that the expansive text of Article III did not prevent Congress from imposing this common law limitation on federal court jurisdiction, he concluded that judges had no authority to entertain a suit against an unconsenting State. [n3] At the same time, although he acknowledged that the Constitution might allow Congress to extend federal court jurisdiction to such an action, he concluded that the terms of the Judiciary Act of 1789 plainly had not done so.

[Congress'] direction, I apprehend, we cannot supersede because it may appear to us not sufficiently extensive. If it be not, we must wait till other remedies are provided by the same authority. From this it is plain that the Legislature did not chuse to leave to our own discretion the path to justice, but has prescribed one of its own. In doing so, it has, I think, wisely, referred us to principles and usages of law already well known,and by their precision calculated to guard against the innovating spirit of Courts of Justice, which the Attorney-General in another case reprobated with so much warmth, and with whose sentiments in that particular I most cordially join.

Id. at 434 (emphasis added).

For Justice Iredell, then, it was enough to assume that Article III permitted Congress to impose sovereign immunity as a jurisdictional limitation; he did not proceed to resolve the further question whether the Constitution went so far as to prevent Congress from withdrawing a State's immunity. [n4] Thus, it would be ironic to construe the Chisholm dissent as precedent for the conclusion that Article III limits Congress' power to determine the scope of a State's sovereign immunity in federal court.

The precise holding in Chisholm is difficult to state, because each of the Justices in the majority wrote his own opinion. They seem to have held, however, not that the Judiciary Act of 1789 precluded the defense of sovereign immunity, but that Article III of the Constitution itself required the Supreme Court to entertain original actions against unconsenting States. [n5] I agree with Justice Iredell that such a construction of Article III is incorrect; that Article should not then have been construed, and should not now be construed, to prevent Congress from granting States a sovereign immunity defense in such cases. [n6] That reading of Article III, however, explains why the majority's holding in Chisholm could not have been reversed by a simple statutory amendment adopting Justice Iredell's interpretation of the Judiciary Act of 1789. There is a special irony in the fact that the error committed by the Chisholm majority was its decision that this Court, rather than Congress, should define the scope of the sovereign immunity defense. That, of course, is precisely the same error the Court commits today.

In light of the nature of the disagreement between Justice Iredell and his colleagues, Chisholm's holding could have been overturned by simply amending the Constitution to restore to Congress the authority to recognize the doctrine. As it was, the plain text of the Eleventh Amendment would seem to go further and to limit the judicial power itself in a certain class of cases. In doing so, however, the Amendment's quite explicit text establishes only a partial bar to a federal court's power to entertain a suit against a State. [n7]

Justice Brennan has persuasively explained that the Eleventh Amendment's jurisdictional restriction is best understood to apply only to suits premised on diversity jurisdiction, see Atascadero State Hospital v. Scanlon, 473 U.S. 234, 247 (1985) (dissenting opinion), and JUSTICE SCALIA has agreed that the plain text of the Amendment cannot be read to apply to federal question cases. See Pennsylvania v. Union Gas, 491 U.S. at 31 (dissenting opinion). [n8] Whatever the precise dimensions of the Amendment, its express terms plainly do not apply to all suits brought against unconsenting States. [n9] The question thus becomes whether the relatively modest jurisdictional bar that the Eleventh Amendment imposes should be understood to reveal that a more general jurisdictional bar implicitly inheres in Article III.

The language of Article III certainly gives no indication that such an implicit bar exists. That provision's text specifically provides for federal court jurisdiction over all cases arising under federal law. Moreover, as I have explained, Justice Iredell's dissent argued that it was the Judiciary Act of 1789, not Article III, that prevented the federal courts from entertaining Chisholm's diversity action against Georgia. Therefore, Justice Iredell's analysis at least suggests that it was by no means a fixed view at the time of the founding that Article III prevented Congress from rendering States suable in federal court by their own citizens. In sum, little more than speculation justifies the conclusion that the Eleventh Amendment's express but partial limitation on the scope of Article III reveals that an implicit but more general one was already in place.

II

The majority appears to acknowledge that one cannot deduce from either the text of Article III or the plain terms of the Eleventh Amendment that the judicial power does not extend to a congressionally created cause of action against a State brought by one of that State's citizens. Nevertheless, the majority asserts that precedent compels that same conclusion. I disagree. The majority relies first on our decision in Hans v. Louisiana, 134 U.S. 1 (1890), which involved a suit by a citizen of Louisiana against that State for a claimed violation of the Contracts Clause. The majority suggests that by dismissing the suit, Hans effectively held that federal courts have no power to hear federal question suits brought by same-state plaintiffs.

Hans does not hold, however, that the Eleventh Amendment, or any other constitutional provision, precludes federal courts from entertaining actions brought by citizens against their own States in the face of contrary congressional direction. As I have explained before, see Pennsylvania v. Union Gas Co., 491 U.S. at 25-26 (STEVENS, J., concurring), and as JUSTICE SOUTER effectively demonstrates, Hans instead reflects, at the most, this Court's conclusion that, as a matter of federal common law, federal courts should decline to entertain suits against unconsenting States. Because Hans did not announce a constitutionally mandated jurisdictional bar, one need not overrule Hans, or even question its reasoning, in order to conclude that Congress may direct the federal courts to reject sovereign immunity in those suits not mentioned by the Eleventh Amendment. Instead, one need only follow it.

Justice Bradley's somewhat cryptic opinion for the Court in Hans relied expressly on the reasoning of Justice Iredell's dissent in Chisholm, which, of course, was premised on the view that the doctrine of state sovereign immunity was a common law rule that Congress had directed federal courts to respect, not a constitutional immunity that Congress was powerless to displace. For that reason, Justice Bradley explained that the State's immunity from suit by one of its own citizens was based not on a constitutional rule but rather on the fact that Congress had not, by legislation, attempted to overcome the common law presumption of sovereign immunity. His analysis so clearly supports the position rejected by the majority today that it is worth quoting at length.

But besides the presumption that no anomalous and unheard of proceedings or suits were intended to be raised up by the Constitution -- anomalous and unheard of when the Constitution was adopted -- an additional reason why the jurisdiction claimed for the Circuit Court does not exist, is the language of an act of Congress by which its jurisdiction is conferred. The words are these:

The circuit courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, . . . arising under the Constitution or laws of the United States, or treaties,

etc. -- "Concurrent with the Courts of the several States." Does not this qualification show that Congress, in legislating to carry the Constitution into effect, did not intend to invest its courts with any new and strange jurisdictions? The state courts have no power to entertain suits by individuals against a State without its consent. Then how does the Circuit Court, having only concurrent jurisdiction, acquire any such power? It is true that the same qualification existed in the judiciary act of 1789, which was before the court in Chisholm v. Georgia, and the majority of the court did not think that it was sufficient to limit the jurisdiction of the Circuit Court. Justice Iredell thought differently. In view of the manner in which that decision was received by the country, the adoption of the Eleventh Amendment, the light of history and the reason of the thing, we think we are at liberty to prefer Justice Iredell's view in this regard. Hans v. Louisiana, 134 U.S. at 18-19.

As this passage demonstrates, Hans itself looked to see whether Congress had displaced the presumption that sovereign immunity obtains. Although the opinion did go to great lengths to establish the quite uncontroversial historical proposition that unconsenting States generally were not subject to suit, that entire discussion preceded the opinion's statutory analysis. See Hans v. Louisiana, 134 U.S. at 10-18. Thus, the opinion's thorough historical investigation served only to establish a presumption against jurisdiction that Congress must overcome, not an inviolable jurisdictional restriction that inheres in the Constitution itself.

Indeed, the very fact that the Court characterized the doctrine of sovereign immunity as a "presumption" confirms its assumption that it could be displaced. The Hans Court's inquiry into congressional intent would have been wholly inappropriate if it had believed that the doctrine of sovereign immunity was a constitutionally inviolable jurisdictional limitation. Thus, Hans provides no basis for the majority's conclusion that Congress is powerless to make States suable in cases not mentioned by the text of the Eleventh Amendment. Instead, Hans provides affirmative support for the view that Congress may create federal court jurisdiction over private causes of action against unconsenting States brought by their own citizens.

It is true that the underlying jurisdictional statute involved in this case, 28 U.S.C. § 1331 does not itself purport to direct federal courts to ignore a State's sovereign immunity any more than did the underlying jurisdictional statute discussed in Hans, the Judiciary Act of 1875. However, unlike in Hans, in this case, Congress has, by virtue of the Indian Gaming Regulation Act, affirmatively manifested its intention to "invest its courts with" jurisdiction beyond the limits set forth in the general jurisdictional statute. 134 U.S. at 18. By contrast, because Hans involved only an implied cause of action based directly on the Constitution, the Judiciary Act of 1875 constituted the sole indication as to whether Congress intended federal court jurisdiction to extend to a suit against an unconsenting State. [n10]

Given the nature of the cause of action involved in Hans, as well as the terms of the underlying jurisdictional statute, the Court's decision to apply the common law doctrine of sovereign immunity in that case clearly should not control the outcome here. The reasons that may support a federal court's hesitancy to construe a judicially crafted constitutional remedy narrowly out of respect for a State's sovereignty do not bear on whether Congress may preclude a State's invocation of such a defense when it expressly establishes a federal remedy for the violation of a federal right.

No one has ever suggested that Congress would be powerless to displace the other common law immunity doctrines that this Court has recognized as appropriate defenses to certain federal claims such as the judicially fashioned Bivens remedy. See Mitchell v. Forsyth, 472 U.S. 511 (1985); Harlow v. Fitzgerald, 457 U.S. 800 (1982). Similarly, our cases recognizing qualified officer immunity in § 1983 actions rest on the conclusion that, in passing that statute, Congress did not intend to displace the common law immunity that officers would have retained under suits premised solely on the general jurisdictional statute. See Tower v. Glover, 467 U.S. 914, 920 (1984). For that reason, the federal common law of officer immunity that Congress meant to incorporate, not a contrary state immunity, applies in § 1983 cases. See Martinez v. California, 444 U.S. 277, 284 (1980). There is no reason why Congress' undoubted power to displace those common law immunities should be either greater or lesser than its power to displace the common law sovereign immunity defense.

Some of our precedents do state that the sovereign immunity doctrine rests on fundamental constitutional "postulates" and partakes of jurisdictional aspects rooted in Article III. See ante at ___. Most notably, that reasoning underlies this Court's holding in Principality of Monaco v. Mississippi, 292 U.S. 313 (1934).

Monaco is a most inapt precedent for the majority's holding today. That case barred a foreign sovereign from suing a State in an equitable state law action to recover payments due on State bonds. It did not, however, involve a claim based on federal law. Instead, the case concerned a purely state law question to which the State had interposed a federal defense. Principality of Monaco v. Mississippi, 292 U.S. 313, 317 (1934). Thus, Monaco reveals little about the power of Congress to create a private federal cause of action to remedy a State's violation of federal law.

Moreover, although Monaco attributes a quasi-constitutional status to sovereign immunity, even in cases not covered by the Eleventh Amendment's plain text, that characterization does not constitute precedent for the proposition that Congress is powerless to displace a State's immunity. Our abstention doctrines have roots in both the Tenth Amendment and Article III, and thus may be said to rest on constitutional "postulates" or to partake of jurisdictional aspects. Yet it has not been thought that the Constitution would prohibit Congress from barring federal courts from abstaining. The majority offers no reason for making the federal common law rule of sovereign immunity less susceptible to congressional displacement than any other quasi-jurisdictional common law rule.

In this regard, I note that Monaco itself analogized sovereign immunity to the prudential doctrine that "controversies" identified in Article III must be "justiciable" in order to be heard by federal courts. Id. at 329. The justiciability doctrine is a prudential, rather than a jurisdictional, one, and thus Congress' clearly expressed intention to create federal jurisdiction over a particular Article III controversy necessarily strips federal courts of the authority to decline jurisdiction on justiciability grounds. See Allen v. Wright, 468 U.S. 737, 791 (1984) (STEVENS, J., dissenting); Flast v. Cohen, 392 U.S. 83, 100-101 (1968). For that reason, Monaco, by its own terms, fails to resolve the question before us. [n11]

More generally, it is quite startling to learn that the reasoning of Hans and Monaco (even assuming that it did not undermine the majority's view) should have a stare decisis effect on the question whether Congress possesses the authority to provide a federal forum for the vindication of a federal right by a citizen against its own State. In light of the Court's development of a "clear statement" line of jurisprudence, see, e.g., Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238-239 (1985); Hoffman v. Connecticut Dept. of Income Maintenance, 492 U.S. 96 (1989), I would have thought that Hans and Monaco had at least left open the question whether Congress could permit the suit we consider here. Our clear statement cases would have been all but unintelligible if Hans and Monaco had already established that Congress lacked the constitutional power to make States suable in federal court by individuals no matter how clear its intention to do so. [n12]

Finally, the particular nature of the federal question involved in Hans renders the majority's reliance upon its rule even less defensible. Hans deduced its rebuttable presumption in favor of sovereign immunity largely on the basis of its extensive analysis of cases holding that the sovereign could not be forced to make good on its debts via a private suit. See Louisiana v. Jumel, 107 U.S. 711 (1883); Hagood v. Southern, 117 U.S. 52 (1886); In re Ayers, 123 U.S. 443 (1887). Because Hans, like these other cases, involved a suit that attempted to make a State honor its debt, its holding need not be read to stand even for the relatively limited proposition that there is a presumption in favor of sovereign immunity in all federal question cases. [n13]

In Hans, the plaintiff asserted a Contracts Clause claim against his State and thus asserted a federal right. To show that Louisiana had impaired its federal obligation, however, Hans first had to demonstrate that the State had entered into an enforceable contract as a matter of state law. That Hans chose to bring his claim in federal court as a Contract Clause action could not change the fact that he was at bottom, seeking to enforce a contract with the State. See Burnham, Taming the Eleventh Amendment Without Overruling Hans v. Louisiana, 40 Case W.Res.L.Rev. 931 (1990).

Because Hans' claimed federal right did not arise independently of state law, sovereign immunity was relevant to the threshold state law question of whether a valid contract existed. [n14] Hans expressly pointed out, however, that an individual who could show that he had an enforceable contract under state law would not be barred from bringing suit in federal court to prevent the State from impairing it.

To avoid misapprehension, it may be proper to add that, although the obligations of a State rest for their performance upon its honor and good faith, and cannot be made the subject of judicial cognizance unless the State consents to be sued, or comes itself into court; yet where property or rights are enjoyed under a grant or contract made by a State, they cannot wantonly be invaded. Whilst the State cannot be compelled by suit to perform its contracts, any attempt on its part to violate property or rights acquired under its contracts, may be judicially resisted; and any law impairing the obligation of contracts under which such property or rights are held is void and powerless to effect their enjoyment.

Hans v. Louisiana, 134 U.S. at 20-21.

That conclusion casts doubt on the absolutist view that Hans definitively establishes that Article III prohibits federal courts from entertaining federal question suits brought against States by their own citizens. At the very least, Hans suggests that such suits may be brought to enjoin States from impairing existing contractual obligations.

The view that the rule of Hans is more substantive than jurisdictional comports with Hamilton's famous discussion of sovereign immunity in The Federalist Papers. Hamilton offered his view that the federal judicial power would not extend to suits against unconsenting States only in the context of his contention that no contract with a State could be enforceable against the State's desire. He did not argue that a State's immunity from suit in federal court would be absolute.

[T]here is no color to pretend that the State governments would, by the adoption of [the plan of convention], be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will.

The Federalist No. 81, p. 488 (C. Rossiter ed. 1961).

Here, of course, no question of a State's contractual obligations is presented. The Seminole Tribe's only claim is that the State of Florida has failed to fulfill a duty to negotiate that federal statutory law alone imposes. Neither the Federalist Papers nor Hans provides support for the view that such a claim may not be heard in federal court.

III

In reaching my conclusion that the Constitution does not prevent Congress from making the State of Florida suable in federal court for violating one of its statutes, I emphasize that I agree with the majority that, in all cases to which the judicial power does not extend -- either because they are not within any category defined in Article III or because they are within the category withdrawn from Article III by the Eleventh Amendment -- Congress lacks the power to confer jurisdiction on the federal courts. As I have previously insisted: "A statute cannot amend the Constitution." Pennsylvania v. Union Gas Co., 491 U.S. at 24.

It was, therefore, misleading for the Court, in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), to imply that § 5 of the Fourteenth Amendment authorized Congress to confer jurisdiction over cases that had been withdrawn from Article III by the Eleventh Amendment. Because that action had been brought by Connecticut citizens against officials of the State of Connecticut, jurisdiction was not precluded by the Eleventh Amendment. As Justice Brennan pointed out in his concurrence, the congressional authority to enact the provisions at issue in the case was found in the Commerce Clause and provided a sufficient basis for refusing to allow the State to "avail itself of the nonconstitutional but ancient doctrine of sovereign immunity." Id. at 457 (opinion concurring in judgment).

In confronting the question whether a federal grant of jurisdiction is within the scope of Article III, as limited by the Eleventh Amendment, I see no reason to distinguish among statutes enacted pursuant to the power granted to Congress to regulate Commerce among the several States, and with the Indian Tribes, Art. I, § 8, cl. 3, the power to establish uniform laws on the subject of bankruptcy, Art. I, § 8, cl. 4, the power to promote the progress of science and the arts by granting exclusive rights to authors and inventors, Art. I, § 8, cl. 8, the power to enforce the provisions of the Fourteenth Amendment, § 5, or indeed any other provision of the Constitution. There is no language anywhere in the constitutional text that authorizes Congress to expand the borders of Article III jurisdiction or to limit the coverage of the Eleventh Amendment.

The Court's holdings in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), and Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), do unquestionably establish, however, that Congress has the power to deny the States and their officials the right to rely on the nonconstitutional defense of sovereign immunity in an action brought by one of their own citizens. As the opinions in the latter case demonstrate, there can be legitimate disagreement about whether Congress intended a particular statute to authorize litigation against a State. Nevertheless, the Court there squarely held that the Commerce Clause was an adequate source of authority for such a private remedy. In a rather novel rejection of the doctrine of stare decisis, the Court today demeans that holding by repeatedly describing it as a "plurality decision" because Justice White did not deem it necessary to set forth the reasons for his vote. As JUSTICE SOUTER's opinion today demonstrates, the arguments in support of Justice White's position are so patent and so powerful that his actual vote should be accorded full respect. Indeed, far more significant than the "plurality" character of the three opinions supporting the holding in Union Gas is the fact that the issue confronted today has been squarely addressed by a total of 13 Justices, 8 of whom cast their votes with the so-called "plurality". [n15]

The fundamental error that continues to lead the Court astray is its failure to acknowledge that its modern embodiment of the ancient doctrine of sovereign immunity "has absolutely nothing to do with the limit on judicial power contained in the Eleventh Amendment." Id. at 25 (STEVENS, J., concurring). It rests rather on concerns of federalism and comity that merit respect, but are nevertheless, in cases such as the one before us, subordinate to the plenary power of Congress.

IV

As I noted above, for the purpose of deciding this case, it is not necessary to question the wisdom of the Court's decision in Hans v. Louisiana. Given the absence of precedent for the Court's dramatic application of the sovereign immunity doctrine today, it is nevertheless appropriate to identify the questionable heritage of the doctrine and to suggest that there are valid reasons for limiting, or even rejecting that doctrine altogether, rather than expanding it.

Except insofar as it has been incorporated into the text of the Eleventh Amendment, the doctrine is entirely the product of judge-made law. Three features of its English ancestry make it particularly unsuitable for incorporation into the law of this democratic Nation.

First, the assumption that it could be supported by a belief that "the King can do no wrong" has always been absurd; the bloody path trod by English monarchs both before and after they reached the throne demonstrated the fictional character of any such assumption. Even if the fiction had been acceptable in Britain, the recitation in the Declaration of Independence of the wrongs committed by George III made that proposition unacceptable on this side of the Atlantic.

Second, centuries ago, the belief that the monarch served by divine right made it appropriate to assume that redress for wrongs committed by the sovereign should be the exclusive province of still higher authority. [n16] While such a justification for a rule that immunized the sovereign from suit in a secular tribunal might have been acceptable in a jurisdiction where a particular faith is endorsed by the government, it should give rise to skepticism concerning the legitimacy of comparable rules in a society where a constitutional wall separates the State from the Church.

Third, in a society where noble birth can justify preferential treatment, it might have been unseemly to allow a commoner to hale the monarch into court. Justice Wilson explained how foreign such a justification is to this Nation's principles. See Chisholm v. Georgia, 2 Dall. at 455. Moreover, Chief Justice Marshall early on laid to rest the view that the purpose of the Eleventh Amendment was to protect a State's dignity. Cohens v. Virginia, 6 Wheat. 264, 406-407 (1821). Its purpose, he explained, was far more practical.

That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation may be inferred from the terms of the Amendment. . . . We must ascribe the amendment, then, to some other cause than the dignity of a State. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a State, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister States would be creditors to any considerable amount, and there was reason to retain the jurisdiction of the Court in those cases, because it might be essential to the preservation of peace.

Ibid. [n17]

Nevertheless, this Court later put forth the interest in preventing "indignity" as the "very object and purpose of the [Eleventh] Amendment." In re Ayers, 123 U.S. at 505. That, of course, is an "embarrassingly insufficient" rationale for the rule. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, ___ (1993) (STEVENS, J., dissenting.)

Moreover, I find unsatisfying Justice Holmes' explanation that

[a] sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.

Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). As I have explained before, Justice Holmes' justification fails in at least two respects.

First, it is nothing more than a restatement of the obvious proposition that a citizen may not sue the sovereign unless the sovereign has violated the citizen's legal rights. It cannot explain application of the immunity defense in cases like Chisholm, in which it is assumed that the plaintiff's rights have in fact been violated-and those cases are, of course, the only ones in which the immunity defense is needed. Second, Holmes's statement does not purport to explain why a general grant of jurisdiction to federal courts should not be treated as an adequate expression of the sovereign's consent to suits against itself as well as to suits against ordinary litigants.

STEVENS, Is Justice Irrelevant?, 87 Nw.U.L.Rev. 1121, 1126 (1993).

In sum, as far as its common law ancestry is concerned, there is no better reason for the rule of sovereign immunity "than that so it was laid down in the time of Henry IV." Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897). That "reason" for the perpetuation of this ancient doctrine certainly cannot justify the majority's expansion of it.

In this country. the sovereignty of the individual States is subordinate both to the citizenry of each State and to the supreme law of the federal sovereign. For that reason, Justice Holmes' explanation for a rule that allows a State to avoid suit in its own courts does not even speak to the question whether Congress should be able to authorize a federal court to provide a private remedy for a State's violation of federal law. In my view, neither the majority's opinion today, nor any earlier opinion by any Member of the Court, has identified any acceptable reason for concluding that the absence of a State's consent to be sued in federal court should affect the power of Congress to authorize federal courts to remedy violations of federal law by States or their officials in actions not covered by the Eleventh Amendment's explicit text. [n18]

While I am persuaded that there is no justification for permanently enshrining the judge-made law of sovereign immunity, I recognize that federalism concerns -- and even the interest in protecting the solvency of the States that was at work in Chisholm and Hans -- may well justify a grant of immunity from federal litigation in certain classes of cases. Such a grant, however, should be the product of a reasoned decision by the policymaking branch of our Government. For this Court to conclude that time-worn shibboleths iterated and reiterated by judges should take precedence over the deliberations of the Congress of the United States is simply irresponsible.

V

Fortunately, and somewhat fortuitously, a jurisdictional problem that is unmentioned by the Court may deprive its opinion of precedential significance. The Indian Gaming Regulatory Act establishes a unique set of procedures for resolving the dispute between the Tribe and the State. If each adversary adamantly adheres to its understanding of the law, if the District Court determines that the State's inflexibility constitutes a failure to negotiate in good faith, and if the State thereafter continues to insist that it is acting within its rights, the maximum sanction that the Court can impose is an order that refers the controversy to a member of the Executive Branch of the Government for resolution. 25 U.S.C. § 2710(d)(7)(B). As the Court of Appeals interpreted the Act, this final disposition is available even though the action against the State and its Governor may not be maintained. 11 F.3d 1016, 1029 (CA11 1994) (The Court does not tell us whether it agrees or disagrees with that disposition.) In my judgment, it is extremely doubtful that the obviously dispensable involvement of the judiciary in the intermediate stages of a procedure that begins and ends in the Executive Branch is a proper exercise of judicial power. See Gordon v. United States, 117 U.S. Appx. 697, 702-703 (1864) (opinion of Taney, C.J.); United States v. Ferreira, 13 How. 40, 48 (1851). It may well follow that the misguided opinion of today's majority has nothing more than an advisory character. Whether or not that be so, the better reasoning in JUSTICE SOUTER's far wiser and far more scholarly opinion will surely be the law one day.

For these reasons, as well as those set forth in JUSTICE SOUTER's opinion, I respectfully dissent.

1. See, e.g., Pennsylvania v. Union Gas Co., 496 U.S. 1 (1989) (holding that a federal court may order a State to pay cleanup costs pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980); In re Merchants Grain, Inc., 59 F.3d 630 (CA7 1995) (holding that the Eleventh Amendment does not bar a bankruptcy court from issuing a money judgment against a State under the Bankruptcy Code); Chavez v. Arte Publico Press, 59 F.3d 539 (CA5 1995) (holding that a state university could be sued in federal court for infringing an author's copyright). The conclusion that suits against States may not be brought in federal court is also incompatible with our cases concluding that state entities may be sued for antitrust violations. See, e.g, Goldfarb v. Virginia State Bar, 421 U.S. 773, 791-792 (1975).

As federal courts have exclusive jurisdiction over cases arising under these federal laws, the majority's conclusion that the Eleventh Amendment shields States from being sued under them in federal court suggests that persons harmed by state violations of federal copyright, bankruptcy, and antitrust laws have no remedy. See Harris & Kenny, Eleventh Amendment Jurisprudence After Atascadero: The Coming Clash With Antitrust, Copyright, and Other Causes of Action Over Which the Federal Courts Have Exclusive Jurisdiction, 37 Emory L.J. 645 (1988).

2. Because Justice Iredell read the Judiciary Act of 1789 to have incorporated the common law, he did not even conclude that Congress would have to make a clear statement in order to override the common law's recognition of sovereign immunity.

3. Actually, he limited his conclusion to the narrower question whether an action of assumpsit would lie against a State, which he distinguished from the more general question whether a State can ever be sued. Chisholm v. Georgia, 2 Dall. at 430. He did so because he recognized

that in England, certain judicial proceedings not inconsistent with the sovereignty, may take place against the Crown, but that an action of assumpsit will not lie,

and because he had "often found a great deal of confusion to arise from taking too large a view at once." Ibid.

4. In two sentences at the end of his lengthy opinion, Justice Iredell stated that his then-present view was that the Constitution would not permit a "compulsive suit against a State for the recovery of money." Id. at 449. In light of Justice Iredell's express statement that the only question before the Court was the propriety of an individual's action for assumpsit against a State, an action which, of course, results in a money judgment, see n. 2, supra, this dicta should not be understood to state the general view that the Constitution bars all suits against unconsenting States. Moreover, even as to the limited question whether the Constitution permits actions for money judgments, Justice Iredell took pains to reserve ultimate judgment. Chisholm v. Georgia, 2 Dall. at 449. Thus, nothing in Justice Iredell's two sentences of dicta provides a basis for concluding that Congress lacks the power to authorize the suit for the nonmonetary relief at issue here.

5. In this respect, Chisholm v. Georgia should be understood to be of a piece with the debate over judicial power famously joined in Martin v. Hunter's Lessee, 1 Wheat. 304, 337 (1816). There, too, the argument centered on whether Congress had the power to limit the seemingly expansive jurisdictional grant that Article III had conferred, not on whether Article III itself provided the relevant limitation.

6. The contention that Article III withdrew Georgia's sovereign immunity had special force precisely because Chisholm involved an action premised on the Supreme Court's original jurisdiction. While Article III leaves it to Congress to establish the lower federal courts, and to make exceptions to the Supreme Court's appellate jurisdiction, it specifically mandates that there be a Supreme Court and that it shall be vested with original jurisdiction over those actions in which "a State shall be a party." Article III, § 2. In light of that language, the Chisholm majority's conclusion that the Supreme Court had a constitutional obligation to take jurisdiction of all suits against States was not implausible.

7. It should be remembered that at the time of Chisholm, there was a general fear of what Justice Iredell termed the "innovating spirit" of the Federal Judiciary. See, e.g., 3 A. Beveridge, The Life of John Marshall 19-30 (1919) (discussing the consternation that the federal courts' creation of common law felonies engendered). Thus, there is good reason to believe that the reaction to Chisholm reflected the popular hostility to the Federal Judiciary more than any desire to restrain the National Legislature.

8. Of course, even if the Eleventh Amendment applies to federal question cases brought by a citizen of another State, its express terms pose no bar to a federal court assuming jurisdiction in a federal question case brought by an in-state plaintiff pursuant to Congress' express authorization. As that is precisely the posture of the suit before us, and as it was also precisely the posture of the suit at issue in Pennsylvania v. Union Gas, there is no need to decide here whether Congress would be barred from authorizing out-of-state plaintiffs to enforce federal rights against States in federal court. In fact, Justice Brennan left open that question in his dissent in Atascadero State Hospital v. Scanlon, 473 U.S. 234, 288, n. 41 (1985) (Brennan, J., dissenting).

When the Court is prepared to embark on a defensible interpretation of the Eleventh Amendment consistent with its history and purposes, the question whether the Amendment bars federal question or admiralty suits by a noncitizen or alien against a State would be open.

Ibid.

9. Under the "plain text" of the Eleventh Amendment, I note that there would appear to be no more basis for the conclusion that States may consent to federal court jurisdiction in actions brought by out-of-state or foreign citizens, than there would be for the view that States should be permitted to consent to the jurisdiction of a federal court in a case that poses no federal question. See, e.g., Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 377, n. 21 (1978); Sosna v. Iowa, 419 U.S. 393, 398 (1975); California v. LaRue, 409 U.S. 109, 112-113, n. 3 (1972); American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18, and n. 17 (1951); Mitchell v. Maurer, 293 U.S. 237, 244 (1934); Jackson v. Ashton, 8 Pet. 148, 149 (1834). We have, however, construed the Amendment, despite its text, to apply only to unconsenting States. See, e.g., Clark v. Barnard, 108 U.S. 436, 447 (1883). In so doing, we of course left it for Congress to determine whether federal courts should entertain any claim against a State in federal court. A departure from the text to expand the class of plaintiffs to whom the Eleventh Amendment's bar applies would, however, limit Congress' authority to exercise its considered judgment as to the propriety of federal court jurisdiction. The absence of a textual warrant for imposing such a broad limitation on the legislative branch counsels against this Court extratextually imposing one.

10. In his dissent in Pennsylvania v. Union Gas Co., 491 U.S. at 36-37, JUSTICE SCALIA contended that the existence of the Judiciary Act of 1875 at the time of Hans requires one to accept the

gossamer distinction between cases in which Congress has assertedly sought to eliminate state sovereign immunity pursuant to its powers to create and organize courts, and cases in which it has assertedly sought to do so pursuant to some of its other powers,

in order to conclude that, in spite of Hans, Congress may authorize federal courts to hear a suit against an unconsenting State. I rely on no such "gossamer distinction" here.

Congress has the authority to withdraw sovereign immunity in cases not covered by the Eleventh Amendment under all of its various powers. Nothing in Hans is to the contrary. As the passage quoted above demonstrates, Hans merely concluded that Congress, in enacting the Judiciary Act of 1875, did not manifest a desire to withdraw state sovereign immunity with sufficient clarity to overcome the countervailing presumption. Therefore, I rely only on the distinction between a statute that clearly directs federal courts to entertain suits against States, such as the one before us here, and a statute that does not, such as the Judiciary Act of 1875. In light of our repeated application of a clear statement rule in Eleventh Amendment cases, from Hans onward, I would be surprised to learn that such a distinction is too thin to be acceptable.

11. Indeed, to the extent the reasoning of Monaco was premised on the ground that a contrary ruling might permit foreign governments and States indirectly to frustrate Congress' treaty power, Principality of Monaco v. Mississippi, 292 U.S. 313, 331 (1934), the opinion suggests that its outcome would have been quite different had Congress expressly authorized suits by foreign governments against individual States as part of its administration of foreign policy.

12. Moreover, they would have most unnecessarily burdened Congress. For example, after deciding that Congress had not made sufficiently explicit its intention to withdraw the state sovereign immunity defense in certain bankruptcy actions, see Hoffman v. Connecticut Dept. of Income Maintenance, 492 U.S. 96 (1989), Congress understandably concluded that it could correct the confusion by amending the relevant statute to make its intentions to override such a defense unmistakably clear. See In re Merchants Grain, Inc., 59 F.3d 630 (CA7 1995). Congress will no doubt be surprised to learn that its exercise in legislative clarification, which it undertook for our benefit, was for naught because the Constitution makes it so.

13. Significantly, Chief Justice Marshall understood the Eleventh Amendment's bar to have been designed primarily to protect States from being sued for their debts. See Cohens v. Virginia, 6 Wheat. 264, 406 (1821).

14. Significantly, many of the cases decided after Hans in which this Court has recognized State sovereign immunity involved claims premised on the breach of rights that were rooted in state law. See Ford Motor Co. v. Department of Treasury of Ind., 323 U.S. 459 (1945); Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944); Smith v. Reeves, 178 U.S. 436 (1900). In such cases, the Court's application of the state law immunity appears simply to foreshadow (or follow) the rule of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), not to demark the limits of Article III.

15. It is significant that JUSTICE SOUTER's opinion makes it perfectly clear that JUSTICE GINSBURG, JUSTICE BREYER, and he did not consider it necessary to rely on the holding in Union Gas to support their conclusion. I find today's decision particularly unfortunate because of its failure to advance an acceptable reason for refusing to adhere to a precedent upon which the Congress, a well as the courts, should be entitled to rely.

16. See STEVENS, Is Justice Irrelevant?, 87 NW Law Rev. 1121, 1124-1125 (1993).

17. Interestingly, this passage demonstrates that the Court's application of a common law sovereign immunity defense in Principality of Monaco v. Mississippi, 292 U.S. 313 (1934), was quite probably justified. There, a foreign State sued a State as a substantial creditor, and thus implicated the very purpose of the Eleventh Amendment.

18. Because Hans v. Louisiana, 134 U.S. 1 (1890), was the first case in which the Court held that a State could not be sued in federal court by one of its citizens, this comment is of interest:

It is not necessary that we should enter upon an examination of the reason or the expediency of the rule which exempts a sovereign State from prosecution in a court of justice at the suit of individuals. This is fully discussed by writers on public law. It is enough for us to declare its existence.

Id. at 21. So it is today.