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Seminole Tribe of Florida v. Florida (No. 94-12)
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SOUTER, 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 SOUTER, with whom JUSTICE GINSBURG and JUSTICE BREYER join, dissenting.

In holding the State of Florida immune to suit under the Indian Gaming Regulatory Act, the Court today holds for the first time since the founding of the Republic that Congress has no authority to subject a State to the jurisdiction of a federal court at the behest of an individual asserting a federal right. Although the Court invokes the Eleventh Amendment as authority for this proposition, the only sense in which that amendment might be claimed as pertinent here was tolerantly phrased by JUSTICE STEVENS in his concurring opinion in Pennsylvania v. Union Gas, 491 U.S. 1, 23 (1989) (STEVENS, J., concurring). There, he explained how it has come about that we have two Eleventh Amendments, the one ratified in 1795, the other (so-called) invented by the Court nearly a century later in Hans v. Louisiana, 134 U.S. 1 (1890). JUSTICE STEVENS saw in that second Eleventh Amendment no bar to the exercise of congressional authority under the Commerce Clause in providing for suits on a federal question by individuals against a State, and I can only say that, after my own canvass of the matter, I believe he was entirely correct in that view, for reasons given below. His position, of course, was also the holding in Union Gas, which the Court now overrules and repudiates.

The fault I find with the majority today is not in its decision to reexamine Union Gas, for the Court in that case produced no majority for a single rationale supporting congressional authority. Instead, I part company from the Court because I am convinced that its decision is fundamentally mistaken, and for that reason I respectfully dissent.

I

It is useful to separate three questions: (1) whether the States enjoyed sovereign immunity if sued in their own courts in the period prior to ratification of the National Constitution; (2) if so, whether after ratification the States were entitled to claim some such immunity when sued in a federal court exercising jurisdiction either because the suit was between a State and a non-state litigant who was not its citizen, or because the issue in the case raised a federal question; and (3) whether any state sovereign immunity recognized in federal court may be abrogated by Congress.

The answer to the first question is not clear, although some of the Framers assumed that States did enjoy immunity in their own courts. The second question was not debated at the time of ratification, except as to citizen-state diversity jurisdiction; [n1] there was no unanimity, but, in due course, the Court, in Chisholm v. Georgia, 2 Dall. 419 (1793), answered that a state defendant enjoyed no such immunity. As to federal question jurisdiction, state sovereign immunity seems not to have been debated prior to ratification, the silence probably showing a general understanding at the time that the States would have no immunity in such cases.

The adoption of the Eleventh Amendment soon changed the result in Chisholm, not by mentioning sovereign immunity, but by eliminating citizen-state diversity jurisdiction over cases with state defendants. I will explain why the Eleventh Amendment did not affect federal question jurisdiction, a notion that needs to be understood for the light it casts on the soundness of Hans' holding that States did enjoy sovereign immunity in federal question suits. The Hans Court erroneously assumed that a State could plead sovereign immunity against a noncitizen suing under federal question jurisdiction, and for that reason held that a State must enjoy the same protection in a suit by one of its citizens. The error of Hans' reasoning is underscored by its clear inconsistency with the Founders' hostility to the implicit reception of common law doctrine as federal law, and with the Founders' conception of sovereign power as divided between the States and the National Government for the sake of very practical objectives.

The Court's answer today to the third question is likewise at odds with the Founders' view that common law, when it was received into the new American legal systems, was always subject to legislative amendment. In ignoring the reasons for this pervasive understanding at the time of the ratification, and in holding that a nontextual common law rule limits a clear grant of congressional power under Article I, the Court follows a course that has brought it to grief before in our history, and promises to do so again.

Beyond this third question that elicits today's holding, there is one further issue. To reach the Court's result, it must not only hold the Hans doctrine to be outside the reach of Congress, but must also displace the doctrine of Ex parte Young, 209 U.S. 123 (1908), that an officer of the government may be ordered prospectively to follow federal law, in cases in which the government may not itself be sued directly. None of its reasons for displacing Young's jurisdictional doctrine withstand scrutiny.

A

The doctrine of sovereign immunity comprises two distinct rules, which are not always separately recognized. The one rule holds that the King or the Crown, as the font of law, is not bound by the law's provisions; the other provides that the King or Crown, as the font of justice, is not subject to suit in its own courts. See, e.g., Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv.L.Rev. 1, 3-4 (1963). [n2] The one rule limits the reach of substantive law; the other, the jurisdiction of the courts. We are concerned here only with the latter rule, which took its common law form in the high middle ages. "At least as early as the thirteenth century, during the reign of Henry III (1216-1272), it was recognized that the king could not be sued in his own courts." C. Jacobs, Eleventh Amendment and Sovereign Immunity 5 (1972). See also 3 W. Blackstone, Commentaries, *244-*245; Jaffe, supra at 2 ("By the time of Bracton (1268) it was settled doctrine that the King could not be sued eo nomine in his own courts").

The significance of this doctrine in the nascent American law is less clear, however, than its early development and steady endurance in England might suggest. While some colonial governments may have enjoyed some such immunity, Jacobs, supra at 6-7, the scope (and even the existence) of this governmental immunity in pre-Revolutionary America remains disputed. See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L.Rev. 1889, 1895-1899 (1983).

Whatever the scope of sovereign immunity might have been in the Colonies, however, or during the period of Confederation, the proposal to establish a National Government under the Constitution drafted in 1787 presented a prospect unknown to the common law prior to the American experience: the States would become parts of a system in which sovereignty over even domestic matters would be divided or parcelled out between the States and the Nation, the latter to be invested with its own judicial power and the right to prevail against the States whenever their respective substantive laws might be in conflict. With this prospect in mind, the 1787 Constitution might have addressed state sovereign immunity by eliminating whatever sovereign immunity the States previously had, as to any matter subject to federal law or jurisdiction; by recognizing an analogue to the old immunity in the new context of federal jurisdiction, but subject to abrogation as to any matter within that jurisdiction; or by enshrining a doctrine of inviolable state sovereign immunity in the text, thereby giving it constitutional protection in the new federal jurisdiction. See Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U.Pa.L.Rev. 515, 536-538 (1977).

The 1787 draft in fact said nothing on the subject, and it was this very silence that occasioned some, though apparently not widespread, dispute among the Framers and others over whether ratification of the Constitution would preclude a State sued in federal court from asserting sovereign immunity as it could have done on any matter of nonfederal law litigated in its own courts. As it has come down to us, the discussion gave no attention to congressional power under the proposed Article I but focused entirely on the limits of the judicial power provided in Article III. And although the jurisdictional bases together constituting the judicial power of the national courts under section 2 of Article III included questions arising under federal law and cases between States and individuals who are not citizens, [n3] it was only upon the latter citizen-state diversity provisions that pre-ratification questions about state immunity from suit or liability centered. [n4]

Later in my discussion I will canvass the details of the debate among the Framers and other leaders of the time, see infra at ___; for now it is enough to say that there was no consensus on the issue. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 263-280 (1985) (Brennan, J., dissenting); Nevada v. Hall, 440 U.S. 410, 419 (1979); Jacobs, supra at 40 ("[T]he legislative history of the Constitution hardly warrants the conclusion drawn by some that there was a general understanding at the time of ratification, that the states would retain their sovereign immunity"). There was, on the contrary, a clear disagreement, which was left to fester during the ratification period, to be resolved only thereafter. One other point, however, was also clear: the debate addressed only the question whether ratification of the Constitution would, in diversity cases and without more, abrogate the state sovereign immunity or allow it to have some application. We have no record that anyone argued for the third option mentioned above, that the Constitution would affirmatively guarantee state sovereign immunity against any congressional action to the contrary. Nor would there have been any apparent justification for any such argument, since no clause in the proposed (and ratified) Constitution even so much as suggested such a position. It may have been reasonable to contend (as we will see that Madison, Marshall, and Hamilton did) that Article III would not alter States' preexisting common law immunity despite its unqualified grant of jurisdiction over diversity suits against States. But then, as now, there was no textual support for contending that Article III or any other provision would "constitutionalize" state sovereign immunity, and no one uttered any such contention.

B

The argument among the Framers and their friends about sovereign immunity in federal citizen-state diversity cases, in any event, was short lived and ended when this Court, in Chisholm v. Georgia, 2 Dall. 419 (1793), chose between the constitutional alternatives of abrogation and recognition of the immunity enjoyed at common law. The 4-to-1 majority adopted the reasonable (although not compelled) interpretation that the first of the two Citizen-State Diversity Clauses abrogated for purposes of federal jurisdiction any immunity the States might have enjoyed in their own courts, and Georgia was accordingly held subject to the judicial power in a common law assumpsit action by a South Carolina citizen suing to collect a debt. [n5] The case also settled, by implication, any question there could possibly have been about recognizing state sovereign immunity in actions depending on the federal question (or "arising under") head of jurisdiction as well. The constitutional text on federal question jurisdiction, after all, was just as devoid of immunity language as it was on citizen-state diversity, and at the time of Chisholm any influence that general common law immunity might have had as an interpretive force in construing constitutional language would presumably have been no greater when addressing the federal question language of Article III than its Diversity Clauses. See Sherry, The Eleventh Amendment and Stare Decisis: Overruling Hans v Louisiana, 57 U.Chi.L.Rev. 1260, 1270 (1990).

Although Justice Iredell's dissent in Chisholm seems at times to reserve judgment on what I have called the third question, whether Congress could authorize suits against the States, Chisholm, supra at 434-435 (Iredell, J., dissenting), his argument is largely devoted to stating the position taken by several federalists that state sovereign immunity was cognizable under the Citizen-State Diversity Clauses, not that state immunity was somehow invisibly codified as an independent constitutional defense. As JUSTICE STEVENS persuasively explains in greater detail, ante at ___, Justice Iredell's dissent focused on the construction of the Judiciary Act of 1789, not Article III. See also Orth, The Truth About Justice Iredell's Dissent in Chisholm v. Georgia (1793), 73 N. C. L.Rev. 255 (1994). This would have been an odd focus, had he believed that Congress lacked the constitutional authority to impose liability. Instead, on Justice Iredell's view, States sued in diversity retained the common law sovereignty "where no special act of Legislation controls it, to be in force in each state, as it existed in England (unaltered by any statute) at the time of the first settlement of the country." 2 Dall. at 435. While, in at least some circumstances, States might be held liable to "the authority of the United States," id. at 436, any such liability would depend upon "laws passed under the Constitution and in conformity to it." Ibid. [n6] Finding no congressional action abrogating Georgia's common law immunity, Justice Iredell concluded that the State should not be liable to suit. [n7]

C

The Eleventh Amendment, of course, repudiated Chisholm and clearly divested federal courts of some jurisdiction as to cases against state parties:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

There are two plausible readings of this provision's text. Under the first, it simply repeals the Citizen-State Diversity Clauses of Article III for all cases in which the State appears as a defendant. Under the second, it strips the federal courts of jurisdiction in any case in which a state defendant is sued by a citizen not its own, even if jurisdiction might otherwise rest on the existence of a federal question in the suit. Neither reading of the Amendment, of course, furnishes authority for the Court's view in today's case, but we need to choose between the competing readings for the light that will be shed on the Hans doctrine and the legitimacy of inflating that doctrine to the point of constitutional immutability as the Court has chosen to do.

The history and structure of the Eleventh Amendment convincingly show that it reaches only to suits subject to federal jurisdiction exclusively under the Citizen-State Diversity Clauses. [n8] In precisely tracking the language in Article III providing for citizen-state diversity jurisdiction, the text of the Amendment does, after all, suggest to common sense that only the Diversity Clauses are being addressed. If the Framers had meant the Amendment to bar federal question suits as well, they could not only have made their intentions clearer very easily, but could simply have adopted the first post-Chisholm proposal, introduced in the House of Representatives by Theodore Sedgwick of Massachusetts on instructions from the Legislature of that Commonwealth. Its provisions would have had exactly that expansive effect:

[N]o state shall be liable to be made a party defendant, in any of the judicial courts, established, or which shall be established under the authority of the United States at the suit of any person or persons, whether a citizen or citizens, or a foreigner or foreigners, or of any body politic or corporate, whether within or without the United States.

Gazette of the United States 303 (Feb. 20, 1793).

With its references to suits by citizens as well as non-citizens, the Sedgwick amendment would necessarily have been applied beyond the Diversity Clauses, and for a reason that would have been wholly obvious to the people of the time. Sedgwick sought such a broad amendment because many of the States, including his own, owed debts subject to collection under the Treaty of Paris. Suits to collect such debts would "arise under" that Treaty, and thus be subject to federal question jurisdiction under Article III. Such a suit, indeed, was then already pending against Massachusetts, having been brought in this Court by Christopher Vassal, an erstwhile Bostonian whose move to England on the eve of revolutionary hostilities had presented his former neighbors with the irresistible temptation to confiscate his vacant mansion. 5 Documentary History of the Supreme Court of the United States, 1789-1800, pp. 352-449 (Marcus ed. 1994). [n9]

Congress took no action on Sedgwick's proposal, however, and the Amendment as ultimately adopted two years later could hardly have been meant to limit federal question jurisdiction, or it would never have left the states open to federal question suits by their own citizens. To be sure, the majority of state creditors were not citizens, but nothing in the Treaty would have prevented foreign creditors from selling their debt instruments (thereby assigning their claims) to citizens of the debtor State. If the Framers of the Eleventh Amendment had meant it to immunize States from federal question suits like those that might be brought to enforce the Treaty of Paris, they would surely have drafted the Amendment differently. See Fletcher, The Diversity Explanation of the Eleventh Amendment: A Reply to Critics, 56 U.Chi.L.Rev. 1261, 1280-1282 (1989).

It should accordingly come as no surprise that the weightiest commentary following the amendment's adoption described it simply as constricting the scope of the Citizen-State Diversity Clauses. In Cohens v. Virginia, 6 Wheat. 264 (1821), for instance, Chief Justice Marshall, writing for the Court, emphasized that the amendment had no effect on federal courts' jurisdiction grounded on the "arising under" provision of Article III and concluded that "a case arising under the constitution or laws of the United States, is cognizable in the Courts of the Union, whoever may be the parties to that case." Id. at 383. The point of the Eleventh Amendment, according to Cohens, was to bar jurisdiction in suits at common law by Revolutionary War debt creditors, not "to strip the government of the means of protecting, by the instrumentality of its Courts, the constitution and laws from active violation." Id. at 407.

The treatment of the amendment in Osborn v. Bank of United States, 9 Wheat. 738 (1824), was to the same effect. The Amendment was held there to be no bar to an action against the State seeking the return of an unconstitutional tax. "The eleventh amendment of the constitution has exempted a State from the suits of citizens of other States, or aliens," Marshall stated, omitting any reference to cases that arise under the Constitution or federal law. Id. at 847.

The good sense of this early construction of the Amendment as affecting the diversity jurisdiction and no more has the further virtue of making sense of this Court's repeated exercise of appellate jurisdiction in federal question suits brought against states in their own courts by out-of-staters. Exercising appellate jurisdiction in these cases would have been patent error if the Eleventh Amendment limited federal question jurisdiction, for the Amendment's unconditional language ("shall not be construed") makes no distinction between trial and appellate jurisdiction. [n10] And yet, again and again we have entertained such appellate cases, even when brought against the State in its own name by a private plaintiff for money damages. See, e.g., Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983). The best explanation for our practice belongs to Chief Justice Marshall: the Eleventh Amendment bars only those suits in which the sole basis for federal jurisdiction is diversity of citizenship. See Atascadero State Hospital v. Scanlon, 473 U.S. at 294 (Brennan, J., dissenting); Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L.J. 1, 44 (1988).

In sum, reading the Eleventh Amendment solely as a limit on citizen-state diversity jurisdiction has the virtue of coherence with this Court's practice, with the views of John Marshall, with the history of the Amendment's drafting, and with its allusive language. Today's majority does not appear to disagree at least insofar as the constitutional text is concerned; the Court concedes, after all, that "the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts." Ante at 8. [n11]

Thus, regardless of which of the two plausible readings one adopts, the further point to note here is that there is no possible argument that the Eleventh Amendment, by its terms, deprives federal courts of jurisdiction over all citizen lawsuits against the States. Not even the Court advances that proposition, and there would be no textual basis for doing so. [n12] Because the plaintiffs in today's case are citizens of the State that they are suing, the Eleventh Amendment simply does not apply to them. We must therefore look elsewhere for the source of that immunity by which the Court says their suit is barred from a federal court. [n13]

II

The obvious place to look elsewhere, of course, is Hans v. Louisiana, 134 U.S. 1 (1890), and Hans was indeed a leap in the direction of today's holding, even though it does not take the Court all the way. The parties in Hans raised, and the Court in that case answered, only what I have called the second question, that is, whether the Constitution, without more, permits a State to plead sovereign immunity to bar the exercise of federal question jurisdiction. See id. at 9. Although the Court invoked a principle of sovereign immunity to cure what it took to be the Eleventh Amendment's anomaly of barring only those state suits brought by noncitizen plaintiffs, the Hans Court had no occasion to consider whether Congress could abrogate that background immunity by statute. Indeed (except in the special circumstance of Congress's power to enforce the Civil War Amendments), this question never came before our Court until Union Gas, and any intimations of an answer in prior cases were mere dicta. In Union Gas the Court held that the immunity recognized in Hans had no constitutional status and was subject to congressional abrogation. Today the Court overrules Union Gas and holds just the opposite. In deciding how to choose between these two positions, the place to begin is with Hans' holding that a principle of sovereign immunity derived from the common law insulates a state from federal question jurisdiction at the suit of its own citizen. A critical examination of that case will show that it was wrongly decided, as virtually every recent commentator has concluded. [n14] It follows that the Court's further step today of constitutionalizing Hans' rule against abrogation by Congress compounds and immensely magnifies the century-old mistake of Hans itself and takes its place with other historic examples of textually untethered elevations of judicially derived rules to the status of inviolable constitutional law.

A

The Louisiana plaintiff in Hans held bonds issued by that State, which, like virtually all of the Southern States, had issued them in substantial amounts during the Reconstruction era to finance public improvements aimed at stimulating industrial development. E. Foner, Reconstruction: America's Unfinished Revolution 1863-1877 pp. 383-384 (1988); Gibbons, 83 Colum. L.Rev. at 1976-1977. As Reconstruction governments collapsed, however, the post-Reconstruction regimes sought to repudiate these debts, and the Hans litigation arose out of Louisiana's attempt to renege on its bond obligations.

Hans sued the State in federal court, asserting that the State's default amounted to an impairment of the obligation of its contracts in violation of the Contract Clause. This Court affirmed the dismissal of the suit, despite the fact that the case fell within the federal court's "arising under," or federal question, jurisdiction. Justice Bradley's opinion did not purport to hold that the terms either of Article III or of the Eleventh Amendment barred the suit, but that the ancient doctrine of sovereign immunity that had inspired adoption of the Eleventh Amendment applied to cases beyond the Amendment's scope and otherwise within the federal question jurisdiction. Indeed, Bradley explicitly admitted that

[i]t is true, the amendment does so read [as to permit Hans' suit], and if there were no other reason or ground for abating his suit, it might be maintainable.

Hans, 134 U.S. at 10. The Court elected, nonetheless, to recognize a broader immunity doctrine, despite the want of any textual manifestation, because of what the Court described as the anomaly that would have resulted otherwise: the Eleventh Amendment (according to the Court) would have barred a federal question suit by a noncitizen, but the State would have been subject to federal jurisdiction at its own citizen's behest. Id. at 10-11. The State was accordingly held to be free to resist suit without its consent, which it might grant or withhold as it pleased.

Hans thus addressed the issue implicated (though not directly raised) in the pre-ratification debate about the Citizen-State Diversity Clauses and implicitly settled by Chisholm: whether state sovereign immunity was cognizable by federal courts on the exercise of federal question jurisdiction. According to Hans, and contrary to Chisholm, it was. But that is all that Hans held. Because no federal legislation purporting to pierce state immunity was at issue, it cannot fairly be said that Hans held state sovereign immunity to have attained some constitutional status immunizing it from abrogation. [n15]

Taking Hans only as far as its holding, its vulnerability is apparent. The Court rested its opinion on avoiding the supposed anomaly of recognizing jurisdiction to entertain a citizen's federal question suit, but not one brought by a noncitizen. See Hans, supra at 10-11. There was, however, no such anomaly at all. As already explained, federal question cases are not touched by the Eleventh Amendment, which leaves a State open to federal question suits by citizens and noncitizens alike. If Hans had been from Massachusetts the Eleventh Amendment would not have barred his action against Louisiana.

Although there was thus no anomaly to be cured by Hans, the case certainly created its own anomaly in leaving federal courts entirely without jurisdiction to enforce paramount federal law at the behest of a citizen against a State that broke it. It destroyed the congruence of the judicial power under Article III with the substantive guarantees of the Constitution, and with the provisions of statutes passed by Congress in the exercise of its power under Article I: when a State injured an individual in violation of federal law no federal forum could provide direct relief. Absent an alternative process to vindicate federal law (see ___ Part IV, infra) John Marshall saw just what the consequences of this anomaly would be in the early Republic, and he took that consequence as good evidence that the Framers could never have intended such a scheme.

Different States may entertain different opinions on the true construction of the constitutional powers of Congress. We know, that at one time, the assumption of the debts contracted by the several States, during the war of our revolution, was deemed unconstitutional by some of them. . . . States may legislate in conformity to their opinions and may enforce those opinions by penalties. It would be hazarding too much to assert, that the judicatures of the States will be exempt from the prejudices by which the legislatures and people are influenced, and will constitute perfectly impartial tribunals. In many States the judges are dependent for office and for salary on the will of the legislature. The constitution of the United States furnishes no security against the universal adoption of this principle. When we observe the importance which that constitution attaches to the independence of judges, we are less inclined to suppose that it can have intended to leave these constitutional questions to tribunals where this independence may not exist.

Cohens v. Virginia, 6 Wheat. at 386-387. And yet that is just what Hans threatened to do.

How such a result could have been threatened on the basis of a principle not so much as mentioned in the Constitution is difficult to understand. But history provides the explanation. As I have already said, Hans was one episode in a long story of debt repudiation by the States of the former Confederacy after the end of Reconstruction. The turning point in the States' favor came with the Compromise of 1877, when the Republican party agreed effectively to end Reconstruction and to withdraw federal troops from the South in return for Southern acquiescence in the decision of the Electoral Commission that awarded the disputed 1876 presidential election to Rutherford B. Hayes. See J. Orth, Judicial Power of the United States: The Eleventh Amendment in American History 53-57 (1987); Gibbons, 83 Colum.L.Rev. at 1978-1982; see generally Foner, Reconstruction at 575-587 (describing the events of 1877 and their aftermath). The troop withdrawal, of course, left the federal judiciary "effectively without power to resist the rapidly coalescing repudiation movement." Gibbons, 83 Colum.L.Rev. at 1981. Contract Clause suits like the one brought by Hans thus presented this Court with

a draconian choice between repudiation of some of its most inviolable constitutional doctrines and the humiliation of seeing its political authority compromised as its judgments met the resistance of hostile state governments.

Id. at 1974. Indeed, Louisiana's brief in Hans unmistakably bore witness to this Court's inability to enforce a judgment against a recalcitrant State:

The solemn obligation of a government arising on its own acknowledged bond would not be enhanced by a judgment rendered on such bond. If it either could not or would not make provision for paying the bond, it is probable that it could not or would not make provision for satisfying the judgment.

Brief for Respondent in No. 4, O.T. 1889, p. 25. Given the likelihood that a judgment against the State could not be enforced, it is not wholly surprising that the Hans Court found a way to avoid the certainty of the State's contempt. [n16]

So it is that history explains, but does not honor, Hans. The ultimate demerit of the case centers, however, not on its politics but on the legal errors on which it rested. [n17] Before considering those errors, it is necessary to address the Court's contention that subsequent cases have read into Hans what was not there to begin with, that is, a background principle of sovereign immunity that is constitutional in stature and therefore unalterable by Congress.

B

The majority does not dispute the point that Hans v. Louisiana, 134 U.S. 1 (1890), had no occasion to decide whether Congress could abrogate a State's immunity from federal question suits. The Court insists, however, that the negative answer to that question that it finds in Hans and subsequent opinions is not "mere obiter dicta, but rather . . . the well established rationale upon which the Court based the results of its earlier decisions." Ante at ___. The exact rationale to which the majority refers, unfortunately, is not easy to discern. The Court's opinion says, immediately after its discussion of stare decisis, that,

[f]or over a century, we have grounded our decisions in the oft-repeated understanding of state sovereign immunity as an essential part of the Eleventh Amendment.

Ante at ___. This cannot be the "rationale," though, because this Court has repeatedly acknowledged that the Eleventh Amendment standing alone cannot bar a federal question suit against a State brought by a state citizen. See, e.g., Edelman v. Jordan, 415 U.S. 651, 662 (1974) (acknowledging that "the Amendment by its terms does not bar suits against a State by its own citizens"). [n18] Indeed, as I have noted, Justice Bradley's opinion in Hans conceded that Hans might successfully have pursued his claim "if there were no other reason or ground [other than the Amendment itself] for abating his suit." 134 U.S. at 10. The Hans Court, rather, held the suit barred by a nonconstitutional common law immunity. See supra at ___.

The "rationale" which the majority seeks to invoke is, I think, more nearly stated in its quotation from Principality of Monaco v. Mississippi, 292 U.S. 313, 321-323 (1934). There, the Court said that

we cannot rest with a mere literal application of the words of § 2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against nonconsenting States.

Id. at 322. [n19] This statement certainly is true to Hans, which clearly recognized a preexisting principle of sovereign immunity, broader than the Eleventh Amendment itself, that will ordinarily bar federal question suits against a nonconsenting State. That was the "rationale" which was sufficient to decide Hans and all of its progeny prior to Union Gas. But leaving aside the indefensibility of that rationale, which I will address further below, that was as far as it went.

The majority, however, would read the "rationale" of Hans and its line of subsequent cases as answering the further question whether the "postulate" of sovereign immunity that "limit[s] and control[s]" the exercise of Article III jurisdiction, Monaco, supra at 322, is constitutional in stature and therefore unalterable by Congress. It is true that there are statements in the cases that point toward just this conclusion. See, e.g., Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 98 (1984) ("In short, the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III"); Ex parte New York, 256 U.S. 490, 497 (1921) ("[T]he entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given . . ."). These statements, however, are dicta in the classic sense, that is, sheer speculation about what would happen in cases not before the court. [n20] But this is not the only weakness of these statements, which are counterbalanced by many other opinions that have either stated the immunity principle without more, see, e.g., Dellmuth v. Muth, 491 U.S. 223, 229, n. 2 (1989) (noting that "an unconsenting State is immune from liability for damages in a suit brought in federal court by one of its own citizens," without suggesting that the immunity was unalterable by Congress), [n21] or have suggested that the Hans immunity is not of constitutional stature. The very language quoted by the majority from Monaco, for example, likens state sovereign immunity to other "essential postulates" such as the rules of justiciability. 292 U.S. at 322. Many of those rules, as JUSTICE STEVENS points out, are prudential in nature and therefore not unalterable by Congress. See ante at ___. [n22] More generally, the proponents of the Court's theory have repeatedly referred to state sovereign immunity as a "background principle," ante at ___, "postulate," Nevada v. Hall, 440 U.S. at 437 (REHNQUIST, J., dissenting), or "implicit limitation," Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 496 (1987) (SCALIA, J., concurring in part and concurring in judgment), and as resting on the "inherent nature of sovereignty," Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 51 (1944), rather than any explicit constitutional provision. [n23] But whatever set of quotations one may prefer, taking heed of such jurisprudential creations in assessing the contents of federal common law is a very different thing from reading them into the Founding Document itself.

The most damning evidence for the Court's theory that Hans rests on a broad rationale of immunity unalterable by Congress, however, is the Court's proven tendency to disregard the post-Hans dicta in cases where that dicta would have mattered. [n24] If it is indeed true that "private suits against States [are] not permitted under Article III (by virtue of the understanding represented by the Eleventh Amendment)," Union Gas, 491 U.S. at 40 (SCALIA, J., concurring in part and dissenting in part), then it is hard to see how a State's sovereign immunity may be waived any more than it may be abrogated by Congress. See, e.g., Atascadero State Hospital v. Scanlon, 473 U.S. at 238 (recognizing that immunity may be waived). After all, consent of a party is in all other instances wholly insufficient to create subject matter jurisdiction where it would not otherwise exist. See, e.g., Sosna v. Iowa, 419 U.S. 393, 398 (1975); see also E. Chemerinsky, Federal Jurisdiction § 7.6 at 405 (2d ed. 1994) (noting that "allowing such waivers seems inconsistent with viewing the Eleventh Amendment as a restriction on the federal courts' subject matter jurisdiction"). Likewise, the Court's broad theory of immunity runs doubly afoul of the appellate jurisdiction problem that I noted earlier in rejecting an interpretation of the Eleventh Amendment's text that would bar federal question suits. See supra at ___. If

the whole sum of the judicial power granted by the Constitution to the United States does not embrace the authority to entertain a suit brought by a citizen against his own State without its consent,

Duhne v. New Jersey, 251 U.S. 311, 313 (1920), and if consent to suit in state court is not sufficient to show consent in federal court, see Atascadero, supra at 241, then Article III would hardly permit this Court to exercise appellate jurisdiction over issues of federal law arising in lawsuits brought against the States in their own courts. We have, however, quite rightly ignored any post-Hans dicta in that sort of case and exercised the jurisdiction that the plain text of Article III provides. See, e.g., Fulton Corp. v. Faulkner, 516 U.S. ___ (1996); see also supra at ___.

If these examples were not enough to distinguish Hans' rationale of a preexisting doctrine of sovereign immunity from the post-Hans dicta indicating that this immunity is constitutional, one would need only to consider a final set of cases: those in which we have assumed, without deciding, that congressional power to abrogate state sovereign immunity exists even when § 5 of the Fourteenth Amendment has an application. A majority of this Court was willing to make that assumption in Hoffman v. Connecticut Dept. of Income Maintenance, 492 U.S. 96, 101 (1989) (plurality opinion), in Welch v. Texas Dept. of Highways and Public Transp., supra at 475 (plurality opinion), and in County of Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226, 252 (1985). [n25] Although the Court in each of these cases failed to find abrogation for lack of a clear statement of congressional intent, the assumption that such power was available would hardly have been permissible if at that time, today's majority's view of the law had been firmly established. It is one thing, after all, to avoid an open constitutional question by assuming an answer and rejecting the claim on another ground; it is quite another to avoid a settled rationale (an emphatically settled one if the majority is to be taken seriously) only to reach an issue of statutory construction that the Court would otherwise not have to decide. Even worse, the Court could not have been unaware that its decision of cases like Hoffman and Welch, on the ground that the statutes at issue lacked a plain statement of intent to abrogate, would invite Congress to attempt abrogation in statutes like the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (IGRA). Such a course would have been wholly irresponsible if, as the majority now claims, the constitutionally unalterable nature of Hans immunity had been well established for a hundred years.

Hans itself recognized that an "observation [in a prior case that] was unnecessary to the decision, and in that sense extrajudicial . . . ought not to outweigh" present reasoning which points to a different conclusion. 134 U.S. at 20. That is good advice, which Members of today's majority have been willing to heed on other occasions. See, e.g., Kokkonen v. Guardian Life Ins. Co., 511 U.S. ___, ___ (1994) ("It is to the holdings of our cases, rather than their dicta, that we must attend"); Bennis v. Michigan, 516 U.S. ___, ___ (1996). But because the Court disregards this norm today, I must consider the soundness of Hans' original recognition of a background principle of sovereign immunity that applies even in federal question suits, and the reasons that counsel against the Court's extension of Hans' holding to the point of rendering its immunity unalterable by Congress.

III

Three critical errors in Hans weigh against constitutionalizing its holding as the majority does today. The first we have already seen: the Hans Court misread the Eleventh Amendment, see supra at ___. It also misunderstood the conditions under which common law doctrines were received or rejected at the time of the Founding, and it fundamentally mistook the very nature of sovereignty in the young Republic that was supposed to entail a State's immunity to federal question jurisdiction in a federal court. While I would not, as a matter of stare decisis, overrule Hans today, an understanding of its failings on these points will show how the Court today simply compounds already serious error in taking Hans the further step of investing its rule with constitutional inviolability against the considered judgment of Congress to abrogate it.

A

There is and could be no dispute that the doctrine of sovereign immunity that Hans purported to apply had its origins in the "familiar doctrine of the common law," The Siren, 74 U.S. 152, 153 (1869), "derived from the laws and practices of our English ancestors," United States v. Lee, 106 U.S. 196, 205 (1882). [n26] Although statutes came to affect its importance in the succeeding centuries, the doctrine was never reduced to codification, and Americans took their understanding of immunity doctrine from Blackstone, see 3 W. Blackstone, Commentaries on the Laws of England ch. 17 (1768). Here, as in the mother country, it remained a common law rule. See generally Jaffe, 77 Harv. L.Rev. at 2-19; Borchard, Governmental Responsibility in Tort, VI, 36 Yale L.J. 1, 17-41 (1926).

This fact of the doctrine's common law status in the period covering the Founding and the later adoption of the Eleventh Amendment should have raised a warning flag to the Hans Court, and it should do the same for the Court today. For although the Court has persistently assumed that the common law's presence in the minds of the early Framers must have functioned as a limitation on their understanding of the new Nation's constitutional powers, this turns out not to be so at all. One of the characteristics of the Founding generation, on the contrary, was its joinder of an appreciation of its immediate and powerful common law heritage with caution in settling that inheritance on the political systems of the new Republic. It is not that the Framers failed to see themselves to be children of the common law; as one of their contemporaries put it,

[w]e live in the midst of the common law, we inhale it at every breath, imbibe it at every pore . . . [and] cannot learn another system of laws without learning at the same time another language.

P. Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States 91 (1824). But still it is clear that the adoption of English common law in America was not taken for granted, and that the exact manner and extent of the common law's reception were subject to careful consideration by courts and legislatures in each of the new States. [n27] An examination of the States' experience with common law reception will shed light on subsequent theory and practice at the national level, and demonstrate that our history is entirely at odds with Hans' resort to a common law principle to limit the Constitution's contrary text.

1

This American reluctance to import English common law wholesale into the New World is traceable to the early colonial period. One scholar of that time has written that

[t]he process which we may call the reception of the English common law by the colonies was not so simple as the legal theory would lead us to assume. While their general legal conceptions were conditioned by, and their terminology derived from, the common law, the early colonists were far from applying it as a technical system, they often ignored it or denied its subsidiary force, and they consciously departed from many of its most essential principles.

P. Reinsch, English Common Law in the Early American Colonies 58 (1899). [n28] For a variety of reasons, including the absence of trained lawyers and judges, the dearth of law books, the religious and ideological commitments of the early settlers, and the novel conditions of the New World, the colonists turned to a variety of other sources in addition to principles of common law. [n29]

It is true that, with the development of colonial society and the increasing sophistication of the colonial bar, English common law gained increasing acceptance in colonial practice. See Reinsch, supra at 7-8; Hall, The Common Law: An Account of Its Reception in the United States, 4 Vand. L.Rev. 791, 797 (1951). [n30] But even in the late colonial period, Americans insisted that

the whole body of the common law . . . was not transplanted, but only so much as was applicable to the colonists in their new relations and conditions. Much of the common law related to matters which were purely local, which existed under the English political organization, or was based upon the triple relation of king, lords and commons, or those peculiar social conditions, habits and customs which have no counterpart in the New World. Such portions of the common law, not being applicable to the new conditions of the colonists, were never recognised as part of their jurisprudence.

Dale, The Adoption of the Common Law by the American Colonies, 30 Am.L.Reg. 553, 554 (1882). [n31] The result was that

the increasing influx of common law principles by no means obliterated the indigenous systems which had developed during the colonial era and that there existed important differences in law in action on the two sides of the Atlantic.

Hall, supra at 797.

Understandably, even the trend toward acceptance of the common law that had developed in the late colonial period was imperiled by the Revolution and the ultimate break between the colonies and the old country. Dean Pound has observed that,

[f]or a generation after the Revolution, . . . political conditions gave rise to a general distrust of English law. . . . The books are full of illustrations of the hostility toward English law simply because it was English which prevailed at the end of the eighteenth and in the earlier years of the nineteenth century.

R. Pound, The Formative Era of American Law 7 (1938); see also C. Warren, A History of the American Bar 224-225 (1911) (noting a "prejudice against the system of English Common Law" in the years following the Revolution). James Monroe went so far as to write in 1802 that "the application of the principles of the English common law to our constitution" should be considered "good cause for impeachment." Letter from James Monroe to John Breckenridge (Jan. 15, 1802) (quoted in 3 A. Beveridge, The Life of John Marshall: Conflict and Construction 1800-1815, p. 59 (1919)). [n32] Nor was anti-English sentiment the only difficulty; according to Dean Pound, "[s]ocial and geographical conditions contributed also to make the work of receiving and reshaping the common law exceptionally difficult." Pound, supra at 7.

The consequence of this anti-English hostility and awareness of changed circumstances was that the independent States continued the colonists' practice of adopting only so much of the common law as they thought applicable to their local conditions. [n33] As Justice Story explained,

[t]he common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation.

Van Ness v. Pacard, 2 Pet. 137, 144 (1829). In 1800, John Marshall had expressed the similar view that

our ancestors brought with them the laws of England, both statute & common law as existing at the settlement of each colony, so far as they were applicable to our situation.

Letter from John Marshall to St. George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A at 1326, 1327. Accordingly, in the period following independence, "[l]egislatures and courts and doctrinal writers had to test the common law at every point with respect to its applicability to America." Pound, supra at 20; see also Jones 103 (observing that "suitab[ility] to local institutions and conditions" was "incomparably the most important" principle of reception in the new states).

2

While the States had limited their reception of English common law to principles appropriate to American conditions, the 1787 draft Constitution contained no provision for adopting the common law at all. This omission stood in sharp contrast to the state constitutions then extant, virtually all of which contained explicit provisions dealing with common law reception. See n. 55, infra. Since the experience in the States set the stage for thinking at the national level, see generally G. Wood, Creation of the American Republic, 1776-1787, p. 467 (1969) (Wood), this failure to address the notion of common law reception could not have been inadvertent. Instead, the Framers chose to recognize only particular common law concepts, such as the writ of habeas corpus, U.S.Const., Art. I, § 9, cl. 2, and the distinction between law and equity, U.S.Const., Amdt. VII, by specific reference in the constitutional text. See 1 J. Goebel, Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Antecedents and Beginnings to 1801, pp. 229-230 (1971). [n34] This approach reflected widespread agreement that ratification would not itself entail a general reception of the common law of England. See Letter from John Marshall to St. George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A at 1326 ("I do not believe one man can be found" who maintains "that the common law of England has . . . been adopted as the common law of America by the Constitution of the United States."); Jay II at 1255 (noting that the use of the term "laws" in Article III "could not have been meant to accomplish a general reception of British common law").

Records of the ratification debates support Marshall's understanding that everyone had to know that the new constitution would not draw the common law in its train. Antifederalists like George Mason went so far as to object that under the proposed Constitution the people would not be "secured even in the enjoyment of the benefit of the common law." Mason, Objections to This Constitution of Government, in 2 Records of the Federal Convention of 1787, p. 637 (M. Farrand ed. 1911) (Farrand); see also 3 Elliot's Debates 446-449 (Patrick Henry, Virginia Convention). In particular, the Antifederalists worried about the failure of the proposed Constitution to provide for a reception of "the great rights associated with due process" such as the right to a jury trial, Jay II at 1256, and they argued that "Congress's powers to regulate the proceedings of federal courts made the fate of these common law procedural protections uncertain." Id. at 1257. [n35] While Federalists met this objection by arguing that nothing in the Constitution necessarily excluded the fundamental common law protections associated with due process, see, e.g., 3 Elliot's Debates 451 (George Nicholas, Virginia Convention), they defended the decision against any general constitutional reception of the common law on the ground that constitutionalizing it would render it "immutable," see id. at 469-470 (Edmund Randolph, Virginia Convention), and not subject to revision by Congress, id. at 550 (Edmund Pendleton, Virginia Convention); see also infra at ___.

The Framers also recognized that the diverse development of the common law in the several states made a general federal reception impossible. "The common law was not the same in any two of the Colonies," Madison observed; "in some the modifications were materially and extensively different." Report on Resolutions, House of Delegates, Session of 1799-1800, Concerning Alien and Sedition Laws, in 6 Writings of James Madison 373 (G. Hunt ed. 1906) (Alien and Sedition Laws). [n36] In particular, although there is little evidence regarding the immunity enjoyed by the various colonial governments prior to the Revolution, the profound differences as to the source of colonial authority between chartered colonies, royal colonies, and so on seems unlikely, wholly apart from other differences in circumstance, to have given rise to a uniform body of immunity law. There was not, then, any unified "Common Law" in America that the Federal Constitution could adopt, Jay, "Origins of Federal Common Law: Part I," 133 U.Pa.L.Rev. 1003, 1056 (1985) (Jay I); Stoebuck, 10 Wm. & Mary L.Rev. at 401 ("The assumption that colonial law was essentially the same in all colonies is wholly without foundation"), and, in particular, probably no common principle of sovereign immunity, cf. Madison, supra at 376. The Framers may, as Madison, Hamilton, and Marshall argued, have contemplated that federal courts would respect state immunity law in diversity cases, but the generalized principle of immunity that today's majority would graft onto the Constitution itself may well never have developed with any common clarity and, in any event, has not been shown to have existed.

Finally, the Framers' aversion to a general federal reception of the common law is evident from the Federalists' response to the Antifederalist claim that Article III granted an unduly broad jurisdiction to the federal courts. That response was to emphasize the limited powers of the National Government. See, e.g., 3 Elliot's Debates 553 (John Marshall, Virginia Convention) ("Has the government of the United States power to make laws on every subject? . . . Can they make laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? Can they go beyond the delegated powers?"); Jay II at 1260. [n37] That answer assumes, of course, no generalized reception of English common law as federal law; otherwise, "arising under" jurisdiction would have extended to any subject comprehended by the general common law.

Madison made this assumption absolutely clear during the subsequent debates over the Alien and Sedition Acts, which raised the issue of whether the Framers intended to recognize a general federal jurisdiction to try common law crimes. Rejecting the idea of any federal reception, Madison insisted that

the consequence of admitting the common law as the law of the United States, on the authority of the individual States, is as obvious as it would be fatal. As this law relates to every subject of legislation, and would be paramount to the Constitutions and laws of the States, the admission of it would overwhelm the residuary sovereignty of the States, and by one constructive operation new model the whole political fabric of the country.

Alien and Sedition Laws 381. See also Goebel, Oliver Wendell Holmes Devise History of the Supreme Court of the United States at 651-655 (discussing the lack of evidence to support the proposition that the Framers intended a general reception of the English common law through the Constitution); Jay II at 1254 (arguing that "[i]t would have been untenable to maintain that the body of British common law had been adopted by the Constitution . . . "). Madison concluded that

[i]t is . . . distressing to reflect that it ever should have been made a question, whether the Constitution, on the whole face of which is seen so much labor to enumerate and define the several objects of Federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law -- a law filling so many ample volumes; a law overspreading the entire field of legislation; and a law that would sap the foundation of the Constitution as a system of limited and specified powers.

Alien and Sedition Laws 382.

B

Given the refusal to entertain any wholesale reception of common law, given the failure of the new Constitution to make any provision for adoption of common law as such, and given the protests already quoted that no general reception had occurred, the Hans Court and the Court today cannot reasonably argue that something like the old immunity doctrine somehow slipped in as a tacit but enforceable background principle. But see ante at ___. The evidence is even more specific, however, that there was no pervasive understanding that sovereign immunity had limited federal question jurisdiction.

1

As I have already noted briefly, see supra at ___, the Framers and their contemporaries did not agree about the place of common law state sovereign immunity even as to federal jurisdiction resting on the Citizen-State Diversity Clauses. Edmund Randolph argued in favor of ratification on the ground that the immunity would not be recognized, leaving the States subject to jurisdiction. [n38] Patrick Henry opposed ratification on the basis of exactly the same reading. See 3 Elliot's Debates 543. On the other hand, James Madison, John Marshall, and Alexander Hamilton all appear to have believed that the common law immunity from suit would survive the ratification of Article III, so as to be at a State's disposal when jurisdiction would depend on diversity. This would have left the States free to enjoy a traditional immunity as defendants without barring the exercise of judicial power over them if they chose to enter the federal courts as diversity plaintiffs or to waive their immunity as diversity defendants. See id. at 533 (Madison: the Constitution "give[s] a citizen a right to be heard in the federal courts; and if a state should condescend to be a party, this court may take cognizance of it"); [n39] id. at 556 (Marshall: "I see a difficulty in making a state defendant, which does not prevent its being plaintiff"). As Hamilton stated in Federalist 81,

It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. Unless therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated must be merely ideal.

The Federalist No. 81, pp. 548-549 (J. Cooke ed. 1961). See generally Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan.L.Rev. 1033, 1045-1054 (1983) (discussing the adoption of the state-citizen diversity clause); Gibbons, 83 Colum.L.Rev. at 1902-1914. The majority sees in these statements, and chiefly in Hamilton's discussion of sovereign immunity in Federalist No. 81, an unequivocal mandate "which would preclude all federal jurisdiction over an unconsenting State." Ante at ___. But there is no such mandate to be found.

As I have already said, the immediate context of Hamilton's discussion in Federalist No. 81 has nothing to do with federal question cases. It addresses a suggestion

that an assignment of the public securities of one state to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities.

Federalist No. 81 at 548. Hamilton is plainly talking about a suit subject to a federal court's jurisdiction under the Citizen-State Diversity Clauses of Article III.

The general statement on sovereign immunity emphasized by the majority then follows, along with a reference back to Federalist No. 32. Ibid. What Hamilton draws from that prior paper, however, is not a general conclusion about state sovereignty but a particular point about state contracts:

A recurrence to the principles there established will satisfy us, that there is no colour to pretend that the state governments, would by the adoption of that plan, 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 at 549.

The most that can be inferred from this is, as noted above, that, in diversity cases applying state contract law, the immunity that a State would have enjoyed in its own courts is carried into the federal court. When, therefore, the Hans Court relied in part upon Hamilton's statement, see 134 U.S. at 20, its reliance was misplaced; Hamilton was addressing diversity jurisdiction, whereas Hans involved federal question jurisdiction under the Contracts Clause. No general theory of federal question immunity can be inferred from Hamilton's discussion of immunity in contract suits. But that is only the beginning of the difficulties that accrue to the majority from reliance on Federalist No. 81.

Hamilton says that a State is "not . . . amenable to the suit of an individual without its consent. . . . [u]nless . . . there is a surrender of this immunity in the plan of the convention." The Federalist No. 81 at 548-549 (emphasis omitted). He immediately adds, however, that "[t]he circumstances which are necessary to produce an alienation of state sovereignty, were discussed in considering the article of taxation, and need not be repeated here." Id. at 549. The reference is to Federalist No. 32, also by Hamilton, which has this to say about the alienation of state sovereignty:

[A]s the plan of the Convention aims only at a partial Union or consolidation, the State Governments would clearly retain all the rights of sovereignty which they before had and which were not by that act exclusively delegated to the United States. This exclusive delegation or rather this alienation of State sovereignty would only exist in three cases; where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant. I use these terms to distinguish this last case from another which might appear to resemble it; but which would in fact be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority.

The Federalist No. 32 at 200 (emphasis in original). As an instance of the last case, in which exercising concurrent jurisdiction may produce interferences in "policy," Hamilton gives the example of concurrent power to tax the same subjects:

It is indeed possible that a tax might be laid on a particular article by a State which might render it inexpedient that thus a further tax should be laid on the same article by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. It is not however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy, that can by implication alienate and extinguish a preexisting right of sovereignty.

Id. at 202 (emphasis in original).

The first embarrassment Hamilton's discussion creates for the majority turns on the fact that the power to regulate commerce with Indian Tribes has been interpreted as making "Indian relations . . . the exclusive province of federal law." County of Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226, 234 (1985). [n40] We have accordingly recognized that "[s]tate laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply." McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 170-171 (1973) (internal quotation marks omitted); see also Rice v. Olson, 324 U.S. 786, 789 (1945) ("The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation's history"). [n41] We have specifically held, moreover, that the states have no power to regulate gambling on Indian lands. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 221-222 (1987). In sum, since the States have no sovereignty in the regulation of commerce with the tribes, on Hamilton's view, there is no source of sovereign immunity to assert in a suit based on congressional regulation of that commerce. If Hamilton is good authority, the majority of the Court today is wrong.

Quite apart, however, from its application to this particular act of Congress exercising the Indian Commerce power, Hamilton's sovereignty discussion quoted above places the Court in an embarrassing dilemma. Hamilton posited four categories: (a) congressional legislation on subjects committed expressly and exclusively to Congress, (b) on subjects over which state authority is expressly negated, (c) on subjects over which concurrent authority would be impossible (as "contradictory and repugnant"), and (d) on subjects over which concurrent authority is not only possible, but its exercise by both is limited only by considerations of policy (as when one taxing authority is politically deterred from adding too much to the exaction the other authority is already making). But what of those situations involving concurrent powers, like the power over interstate commerce, see e.g., Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299 (1851) (recognizing power of states to engage in some regulation of interstate commerce), when a congressional statute not only binds the States but even creates an affirmative obligation on the State as such, as in this case? Hamilton's discussion does not seem to cover this (quite possibly because, as a good political polemicist, he did not wish to raise it). If in fact it is fair to say that Hamilton does not cover this situation, then the Court cannot claim him as authority for the preservation of state sovereignty and consequent immunity. If, however, on what I think is an implausible reading, one were to try to shoehorn this situation into Hamilton's category (c) (on the theory that concurrent authority is impossible after passage of the congressional legislation), then any claim of sovereignty and consequent immunity is gone entirely.

In sum, either the majority reads Hamilton as I do, to say nothing about sovereignty or immunity in such a case, or it will have to read him to say something about it that bars any state immunity claim. That is the dilemma of the majority's reliance on Hamilton's Federalist No. 81, with its reference to No. 32. Either way, he is no authority for the Court's position.

Thus, the Court's attempt to convert isolated statements by the Framers into answers to questions not before them is fundamentally misguided. [n42] The Court's difficulty is far more fundamental however, than inconsistency with a particular quotation, for the Court's position runs afoul of the general theory of sovereignty that gave shape to the Framers' enterprise. An enquiry into the development of that concept demonstrates that American political thought had so revolutionized the concept of sovereignty itself that calling for the immunity of a State as against the jurisdiction of the national courts would have been sheer illogic.

2

We said in Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991) that "the States entered the federal system with their sovereignty intact," but we surely did not mean that they entered that system with the sovereignty they would have claimed if each State had assumed independent existence in the community of nations, for even the Articles of Confederation allowed for less than that. See Articles of Confederation, Art. VI, § 1 ("No State without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or treaty, with any king, prince or state. . . . "). While there is no need here to calculate exactly how close the American States came to sovereignty in the classic sense prior to ratification of the Constitution, it is clear that the act of ratification affected their sovereignty in a way different from any previous political event in America or anywhere else. For the adoption of the Constitution made them members of a novel federal system that sought to balance the States' exercise of some sovereign prerogatives delegated from their own people with the principle of a limited but centralizing federal supremacy.

As a matter of political theory, this federal arrangement of dual delegated sovereign powers truly was a more revolutionary turn than the late war had been. See, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. ___, ___ (1995) (KENNEDY, J., concurring) ("Federalism was our Nation's own discovery. The Framers split the atom of sovereignty"). [n43] Before the new federal scheme appeared, 18th-century political theorists had assumed that

there must reside somewhere in every political unit a single, undivided, final power, higher in legal authority than any other power, subject to no law, a law unto itself.

B. Bailyn, The Ideological Origins of the American Revolution 198 (1967); see also Wood 345. [n44] The American development of divided sovereign powers, which "shatter[ed] . . . the categories of government that had dominated Western thinking for centuries," id. at 385, was made possible only by a recognition that the ultimate sovereignty rests in the people themselves. See id. at 530 (noting that because "none of these arguments about ‘joint jurisdictions' and ‘coequal sovereignties' convincingly refuted the Antifederalist doctrine of a supreme and indivisible sovereignty," the Federalists could succeed only by emphasizing that the supreme power "‘resides in the PEOPLE, as the fountain of government'" (citing 1 Pennsylvania and the Federal Constitution, 1787-1788, p. 302 (J. McMaster & F. Stone, eds. 1888) (quoting James Wilson))). [n45] The people possessing this plenary bundle of specific powers were free to parcel them out to different governments and different branches of the same government as they saw fit. See McDonald, Novus Ordo Seclorum at 278. As James Wilson emphasized, the location of ultimate sovereignty in the People meant that

[t]hey can distribute one portion of power to the more contracted circle called State governments; they can also furnish another proportion to the government of the United States.

1 Pennsylvania and the Federal Constitution, 1787-1788, supra at 302. [n46]

Under such a scheme, Alexander Hamilton explained,

[i]t does not follow . . . that each of the portions of powers delegated to [the national or state government] is not sovereign with regard to its proper objects.

Hamilton, Opinion on the Constitutionality of an Act to Establish a Bank, in 8 Papers of Alexander Hamilton 98 (Syrett ed. 1965) (emphasis in original). [n47] A necessary consequence of this view was that "the Government of the United States has sovereign power as to its declared purposes & trusts." Ibid. Justice Iredell was to make the same observation in his Chisholm dissent, commenting that

[t]he United States are sovereign as to all the powers of government actually surrendered: each State in the Union is sovereign, as to all the powers reserved.

2 Dall. at 434. And to the same point was Chief Justice Marshall's description of the National and State Governments as "each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other." McCulloch v. Maryland, 4 Wheat. 316, 410 (1819).

Given this metamorphosis of the idea of sovereignty in the years leading up to 1789, the question whether the old immunity doctrine might have been received as something suitable for the new world of federal question jurisdiction is a crucial one. [n48] The answer is that sovereign immunity as it would have been known to the Framers before ratification thereafter became inapplicable as a matter of logic in a federal suit raising a federal question. The old doctrine, after all, barred the involuntary subjection of a sovereign to the system of justice and law of which it was itself the font, since to do otherwise would have struck the common law mind from the Middle Ages onward as both impractical and absurd. See, e.g., Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907) (Holmes, J.) ("A sovereign is exempt from suit . . . 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"). [n49] But the ratification demonstrated that state governments were subject to a superior regime of law in a judicial system established, not by the State, but by the people through a specific delegation of their sovereign power to a National Government that was paramount within its delegated sphere. When individuals sued States to enforce federal rights, the Government that corresponded to the "sovereign" in the traditional common law sense was not the State but the National Government, and any state immunity from the jurisdiction of the Nation's courts would have required a grant from the true sovereign, the people, in their Constitution, or from the Congress that the Constitution had empowered. We made a similar point in Nevada v. Hall, 440 U.S. at 416, where we considered a suit against a State in another State's courts:

This [traditional] explanation [of sovereign immunity] adequately supports the conclusion that no sovereign may be sued in its own courts without its consent, but it affords no support for a claim of immunity in another sovereign's courts. Such a claim necessarily implicates the power and authority of a second sovereign; its source must be found either in an agreement, express or implied, between the two sovereigns, or in the voluntary decision of the second to respect the dignity of the first as a matter of comity.

Cf. United States v. Texas, 143 U.S. 621, 646 (1892) (recognizing that a suit by the National Government against a State "does no violence to the inherent nature of sovereignty"). Subjecting States to federal jurisdiction in federal question cases brought by individuals thus reflected nothing more than Professor Amar's apt summary that "[w]here governments are acting within the bounds of their delegated ‘sovereign' power, they may partake of sovereign immunity; where not, not." Amar, 96 Yale L.J. at 1490-1491 n. 261.

State immunity to federal question jurisdiction would, moreover, have run up against the common understanding of the practical necessity for the new federal relationship. According to Madison, the "multiplicity," "mutability," and "injustice" of then-extant state laws were prime factors requiring the formation of a new government. 1 Farrand 318-319 (remarks of J. Madison). [n50] These factors, Madison wrote to Jefferson,

contributed more to that uneasiness which produced the Convention, and prepared the Public mind for a general reform, than those which accrued to our national character and interest from the inadequacy of the Confederation to its immediate objects.

5 Writings of James Madison 27 (G. Hunt ed. 1904). These concerns ultimately found concrete expression in a number of specific limitations on state power, including provisions barring the States from enacting bills of attainder or ex post facto laws, coining money or emitting bills of credit, denying the privileges and immunities of out-of-staters, or impairing the obligation of contracts. But the proposed Constitution also dealt with the old problems affirmatively by granting the powers to Congress enumerated in Article I, § 8, and by providing through the Supremacy Clause that Congress could preempt State action in areas of concurrent state and federal authority.

Given the Framers' general concern with curbing abuses by state governments, it would be amazing if the scheme of delegated powers embodied in the Constitution had left the National Government powerless to render the States judicially accountable for violations of federal rights. And of course the Framers did not understand the scheme to leave the government powerless. In The Federalist No. 80 at 535, Hamilton observed that

[n]o man of sense will believe that such prohibitions [running against the states] would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them,

and that "an authority in the federal courts, to overrule such as might be in manifest contravention of the articles of union" was the Convention's preferred remedy. By speaking in the plural of an authority in the federal "courts," Hamilton made it clear that he envisioned more than this Court's exercise of appellate jurisdiction to review federal questions decided by state courts. Nor is it plausible that he was thinking merely of suits brought against States by the National Government itself, which The Federalist's authors did not describe in the paternalistic terms that would pass without an eyebrow raised today. Hamilton's power of the Government to restrain violations of citizens' rights was a power to be exercised by the federal courts at the citizens' behest. See also Marshall, 102 Harv. L.Rev. at 1367-1371 (discussing the Framers' concern with preserving as much state accountability as possible even in the course of enacting the Eleventh Amendment).

This sketch of the logic and objectives of the new federal order is confirmed by what we have previously seen of the pre-ratification debate on state sovereign immunity, which in turn becomes entirely intelligible both in what it addressed and what it ignored. It is understandable that reasonable minds differed on the applicability of the immunity doctrine in suits that made it to federal court only under the original Diversity Clauses, for their features were not wholly novel. While they were, of course, in the courts of the new and, for some purposes, paramount National Government, the law that they implicated was largely the old common law (and in any case was not federal law). It was not foolish, therefore, to ask whether the old law brought the old defenses with it. But it is equally understandable that questions seem not to have been raised about state sovereign immunity in federal question cases. The very idea of a federal question depended on the rejection of the simple concept of sovereignty from which the immunity doctrine had developed; under the English common law, the question of immunity in a system of layered sovereignty simply could not have arisen. Cf., e.g., Jay II at 1282-1284; Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States at 6-7. [n51] The Framers' principal objectives in rejecting English theories of unitary sovereignty, moreover, would have been impeded if a new concept of sovereign immunity had taken its place in federal question cases, and would have been substantially thwarted if that new immunity had been held to be untouchable by any congressional effort to abrogate it. [n52]

Today's majority discounts this concern. Without citing a single source to the contrary, the Court dismisses the historical evidence regarding the Framers' vision of the relationship between national and state sovereignty, and reassures us that "the Nation survived for nearly two centuries without the question of the existence of [the abrogation] power ever being presented to this Court." Ante at ___. [n53] But we are concerned here not with the survival of the Nation but the opportunity of its citizens to enforce federal rights in a way that Congress provides. The absence of any general federal question statute for nearly a century following ratification of Article III (with a brief exception in 1800) hardly counts against the importance of that jurisdiction either in the Framers' conception or in current reality; likewise, the fact that Congress has not often seen fit to use its power of abrogation (outside the Fourteenth Amendment context at least) does not compel a conclusion that the power is not important to the federal scheme. In the end, is it plausible to contend that the plan of the convention was meant to leave the National Government without any way to render individuals capable of enforcing their federal rights directly against an intransigent state?

C

The considerations expressed so far, based on text, Chisholm, caution in common law reception, and sovereignty theory, have pointed both to the mistakes inherent in Hans and, even more strongly, to the error of today's holding. Although, for reasons of stare decisis, I would not today disturb the century-old precedent, I surely would not extend its error by placing the common law immunity it mistakenly recognized beyond the power of Congress to abrogate. In doing just that, however, today's decision declaring state sovereign immunity itself immune from abrogation in federal question cases is open to a further set of objections peculiar to itself. For today's decision stands condemned alike by the Framers' abhorrence of any notion that such common law rules as might be received into the new legal systems would be beyond the legislative power to alter or repeal, and by its resonance with this Court's previous essays in constitutionalizing common law rules at the expense of legislative authority.

1

I have already pointed out how the views of the Framers reflected the caution of state constitutionalists and legislators over reception of common law rules, a caution that the Framers exalted to the point of vigorous resistance to any idea that English common law rules might be imported wholesale through the new Constitution. The state politicians also took pains to guarantee that once a common law rule had been received, it would always be subject to legislative alteration, and again the state experience was reflected in the Framers' thought. Indeed, the Framers' very insistence that no common law doctrine would be received by virtue of ratification was focused in their fear that elements of the common law might thereby have been placed beyond the power of Congress to alter by legislation.

The imperative of legislative control grew directly out of the Framers' revolutionary idea of popular sovereignty. According to one historian,

[s]hared ideas about the sovereignty of the people and the accountability of government to the people resulted at an early date in a new understanding of the role of legislation in the legal system. . . . Whereas a constitution had been seen in the colonial period as a body of vague and unidentifiable precedents and principles of common law origin that imposed ambiguous restrictions on the power of men to make or change law, after independence it came to be seen as a written charter by which the people delegated powers to various institutions of government and imposed limitations on the exercise of those powers. . . . [T]he power to modify or even entirely to repeal the common law . . . now fell explicitly within the jurisdiction of the legislature.

W. Nelson, Americanization of the Common Law 90 (1975). [n54]

Virtually every state reception provision, be it constitutional or statutory, explicitly provided that the common law was subject to alteration by statute. See Wood 299-300; Jones 99. The New Jersey Constitution of 1776, for instance, provided that

the common law of England, as well as so much of the statute law, as have been heretofore practised in this Colony, shall still remain in force, until they shall be altered by a future law. . . .

N.J.Const., Art. XXII (1776), in 6 W. Swindler, Sources and Documents of United States Constitutions 452 (1976). [n55] Just as the early state governments did not leave reception of the common law to implication, then, neither did they receive it as law immune to legislative alteration. [n56]

I have already indicated that the Framers did not forget the state law examples. When Antifederalists objected that the 1787 draft failed to make an explicit adoption of certain common law protections of the individual, part of the Federalists' answer was that a general constitutional reception of the common law would bar congressional revision. Madison was particularly concerned with the necessity for legislative control, noting in a letter to George Washington that "every State has made great inroads & with great propriety on this monarchical code." Letter from James Madison to George Washington (Oct. 18, 1787), reprinted in 3 Farrand 130, App. A (emphasis in original). [n57] Madison went on to insist that "[t]he Common law is nothing more than the unwritten law, and is left by all the Constitutions equally liable to legislative alterations." Ibid. [n58] Indeed, Madison anticipated, and rejected, the Court's approach today when he wrote that if

the common law be admitted as . . . of constitutional obligation, it would confer on the judicial department a discretion little short of a legislative power . . . [which] would be permanent and irremediable by the Legislature.

Report on the Virginia Resolutions Concerning the Alien and Sedition Acts, in 6 Writings of James Madison 380. "A discretion of this sort," he insisted, "has always been lamented as incongruous and dangerous. . . ." Id. at 381. [n59]

2

History confirms the wisdom of Madison's abhorrence of constitutionalizing common law rules to place them beyond the reach of congressional amendment. The Framers feared judicial power over substantive policy and the ossification of law that would result from transforming common law into constitutional law, and their fears have been borne out every time the Court has ignored Madison's counsel on subjects that we generally group under economic and social policy. It is, in fact, remarkable that, as we near the end of this century, the Court should choose to open a new constitutional chapter in confining legislative judgments on these matters by resort to textually unwarranted common law rules, for it was just this practice in the century's early decades that brought this Court to the nadir of competence that we identify with Lochner v. New York, 198 U.S. 45 (1905). [n60]

It was the defining characteristic of the Lochner era, and its characteristic vice, that the Court treated the common law background (in those days, common law property rights and contractual autonomy) as paramount, while regarding congressional legislation to abrogate the common law on these economic matters as constitutionally suspect. See, e.g., Adkins v. Childrens Hospital of D.C., 261 U.S. 525, 557 (1923) (finding abrogation of common law freedom to contract for any wage an unconstitutional "compulsory exaction"); see generally Sunstein, Lochner's Legacy, 87 Colum. L.Rev. 873 (1987). And yet the superseding lesson that seemed clear after West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), that action within the legislative power is not subject to greater scrutiny merely because it trenches upon the case law's ordering of economic and social relationships, seems to have been lost on the Court.

The majority today, indeed, seems to be going Lochner one better. When the Court has previously constrained the express Article I powers by resort to common law or background principles, it has done so at least in an ostensible effort to give content to some other written provision of the Constitution, like the Due Process Clause, the very object of which is to limit the exercise of governmental power. See, e.g., Adair v. United States, 208 U.S. 161 (1908). Some textual argument at least, could be made that the Court was doing no more than defining one provision that happened to be at odds with another. Today, however, the Court is not struggling to fulfill a responsibility to reconcile two arguably conflicting and Delphic constitutional provisions, nor is it struggling with any Delphic text at all. For even the Court concedes that the Constitution's grant to Congress of plenary power over relations with Indian tribes at the expense of any state claim to the contrary is unmistakably clear, and this case does not even arguably implicate a textual trump to the grant of federal question jurisdiction.

I know of only one other occasion on which the Court has spoken of extending its reach so far as to declare that the plain text of the Constitution is subordinate to judicially discoverable principles untethered to any written provision. Justice Chase once took such a position almost 200 years ago:

There are certain vital principles in our free Republican governments which will determine and overrule an apparent and flagrant abuse of legislative power. . . . An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.

Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

This position was no less in conflict with American constitutionalism in 1798 than it is today, being inconsistent with the Framers' view of the Constitution as fundamental law. Justice Iredell understood this, and dissented (again) in an opinion that still answers the position that "vital" or "background" principles, without more, may be used to confine a clear constitutional provision:

[S]ome speculative jurists have held that a legislative act against natural justice must, in itself, be void; but I cannot think that, under such a government, any Court of Justice would possess a power to declare it so. . . .

. . . [I]t has been the policy of the American states, . . . and of the people of the United States . . . to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state violates those constitutional provisions, it is unquestionably void. . . . If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law within the general scope of their constitutional power, the Court cannot pronounce it to be void merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject, and all that the Court could properly say in such an event would be that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.

Id. at 398-399 (emphasis deleted) (opinion dissenting in part). Later jurisprudence vindicated Justice Iredell's view, and the idea that "first principles" or concepts of "natural justice" might take precedence over the Constitution or other positive law "all but disappeared in American discourse." J. Ely, Democracy and Distrust 52 (1980). It should take more than references to "background principle[s]," ante at ___, and "implicit limitation[s]," Welch, 483 U.S. at 496 (SCALIA, J., concurring in part and concurring in judgment), to revive the judicial power to overcome clear text unopposed to any other provision, when that clear text is in harmony with an almost equally clear intent on the part of the Framers and the constitutionalists of their generation.

IV

The Court's holding that the States' Hans immunity may not be abrogated by Congress leads to the final question in this case, whether federal question jurisdiction exists to order prospective relief enforcing IGRA against a state officer, respondent Chiles, who is said to be authorized to take the action required by the federal law. Just as with the issue about authority to order the State as such, this question is entirely jurisdictional, and we need not consider here whether petitioner Seminole Tribe would have a meritorious argument for relief, or how much practical relief the requested order (to bargain in good faith) would actually provide to the Tribe. Nor, of course, does the issue turn in any way on one's views about the scope of the Eleventh Amendment or Hans and its doctrine, for we ask whether the state officer is subject to jurisdiction only on the assumption that action directly against the State is barred. The answer to this question is an easy yes, the officer is subject to suit under the rule in Ex parte Young, 209 U.S. 123 (1908), and the case could, and should, readily be decided on this point alone.

A

In Ex parte Young, this Court held that a federal court has jurisdiction in a suit against a state officer to enjoin official actions violating federal law, even though the State itself may be immune. Under Young,

a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law.

Quern v. Jordan, 440 U.S. 332, 337 (1979); see also Milliken v. Bradley, 433 U.S. 267, 289 (1977).

The fact, without more, that such suits may have a significant impact on state governments does not count under Young. Milliken, for example, was a suit, under the authority of Young, brought against Michigan's Governor, Attorney General, Board of Education, Superintendent of Public Instruction, and Treasurer, which resulted in an order obligating the State of Michigan to pay money from its treasury to fund an education plan. The relief requested (and obtained) by the plaintiffs effectively ran against the State: state moneys were to be removed from the state treasury, and they were to be spent to fund a remedial education program that it would be the State's obligation to implement. To take another example, Quern v. Jordan involved a court order requiring state officials to notify welfare beneficiaries of the availability of past benefits. Once again, the defendants were state officials, but it was the obligation of the State that was really at issue: the notices would be sent from the state welfare agency, to be returned to the state agency, and the state agency would pay for the notices and any ensuing awards of benefits. Indeed, in the years since Young was decided, the Court has recognized only one limitation on the scope of its doctrine: under Edelman v. Jordan, 415 U.S. 651 (1974), Young permits prospective relief only, and may not be applied to authorize suits for retrospective monetary relief.

It should be no cause for surprise that Young itself appeared when it did in the national law. It followed as a matter of course after the Hans Court's broad recognition of immunity in federal question cases, simply because

[r]emedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law.

Green v. Mansour, 474 U.S. 64, 68 (1985). Young provided, as it does today, a sensible way to reconcile the Court's expansive view of immunity expressed in Hans with the principles embodied in the Supremacy Clause and Article III.

If Young may be seen as merely the natural consequence of Hans, it is equally unsurprising as an event in the longer history of sovereign immunity doctrine, for the rule we speak of under the name of Young is so far inherent in the jurisdictional limitation imposed by sovereign immunity as to have been recognized since the Middle Ages. For that long, it has been settled doctrine that suit against an officer of the Crown permitted relief against the government despite the Crown's immunity from suit in its own courts and the maxim that the king could do no wrong. See Jaffe, 77 Harv.L.Rev. at 3, 18-19; Ehrlich, No. XII: Proceedings Against the Crown (1216-1377) pp. 28-29, in 6 Oxford Studies in Social and Legal History (P. Vinogradoff ed. 1921). An early example, from "time immemorial" of a claim "affecting the Crown [that] could be pursued in the regular courts [without consent since it] did not take the form of a suit against the Crown," Jaffe, supra at 1, was recognized by the Statute of Westminster I, 1275, which established a writ of disseisin against a King's officers. When a King's officer disseised any person in the King's name, the wrongfully deprived party could seek the draconian writ of attaint against the officer, by which he would recover his land. 77 Harv.L.Rev. at 9. Following this example forward, we may see how the writ of attaint was ultimately overtaken by the more moderate common law writs of certiorari and mandamus, "operat[ing] directly on the government; [and commanding] an officer not as an individual but as a functionary." Id. at 16. Thus, the Court of King's Bench made it clear in 1701 that

wherever any new jurisdiction is erected, be it by private or public act of parliament, they are subject to the inspections of this Court by writ of error, or by certiorari and mandamus.

The Case of Cardiffe Bridge, 1 Salk. 146, 91 Eng.Rep. 135 (K.B.).

B

This history teaches that it was only a matter of course that, once the National Constitution had provided the opportunity for some recognition of state sovereign immunity, the necessity revealed through six centuries or more of history would show up in suits against state officers, just as Hans would later open the door to Ex parte Young itself. Once, then, the Eleventh Amendment was understood to forbid suit against a State eo nomine, the question arose "which suits against officers will be allowed and which will not be." Jaffe, 77 Harv.L.Rev. at 20.

It early became clear that a suit against an officer was not forbidden simply because it raised a question as to the legality of his action as an agent of the government or because it required him, as in mandamus, to perform an official duty. These as we know had been well established before the eleventh amendment as not necessarily requiring consent. To be sure, the renewed emphasis on immunity given by the eleventh amendment might conceivably have been taken so to extend the doctrine as to exclude suits against state officers even in cases where the English tradition would have allowed them. There was a running battle as to where the line would be drawn. The amendment was appealed to as an argument for generous immunity. But there was the vastly powerful counterpressure for the enforcement of constitutional limits on the states. The upshot . . . was to confine the amendment's prohibition more or less to the occasion which gave it birth, to-wit, the enforcement of contracts and to most (though not all) suits involving the title and disposition of a state's real and personal property.

Id. at 20-21. The earliest cases, United States v. Peters, 5 Cranch 115 (1809), and Osborn v. Bank of United States, 9 Wheat. 738 (1824), embrace the English practice of permitting suits against officers, see Orth, Judicial Power of the United States at 34-35, 40-41, 122, by focusing almost exclusively on whether the State had been named as a defendant. Governor of Georgia v. Madrazo, 1 Pet. 110, 123-124 (1828), shifted this analysis somewhat, finding that a governor could not be sued because he was sued "not by his name, but by his title," which was thought the functional equivalent of suing the State itself. Madrazo did not, however, erase the fundamental principle of Osborn that sovereign immunity would not bar a suit against a state officer. See, e.g., Davis v. Gray, 16 Wall. 203 (1873) (applying Osborn by enjoining the Governor of Texas to interfere with the possession of land granted by the State); United States v. Lee, 106 U.S. 196 (1882) (applying Osborn in context of federal sovereign immunity).

This simple rule for recognizing sovereign immunity without gutting substantial rights was temporarily muddled in Louisiana v. Jumel, 107 U.S. 711 (1883), where the Court, although it "did not clearly say why," refused to hear a suit that would have required a state treasurer to levy taxes to pay interest on a bond. Currie, Sovereign Immunity and Suits Against Government Officers, 1984 S.Ct. Rev. 149, 152. (One recalls the circumstances of Hans itself, see supra at 20-26.) The Court, however, again applied Osborn in the Virginia Coupon Cases, 114 U.S. 269 (1885) (permitting injunctions, restitution, and damages against state officers who seized property to collect taxes already paid with interest coupons the State had agreed to accept). In re Ayers, 123 U.S. 443, 502 (1887), sought to rationalize the competing strands of doctrine on the ground that an action may be

sustained only in those instances where the act complained of, considered apart from the official authority alleged as its justification, and as the personal act of the individual defendant, constituted a violation of right for which the plaintiff was entitled to a remedy at law or in equity against the wrongdoer in his individual character.

Ex parte Young restored the old simplicity by complementing In re Ayers with the principle that state officers never have authority to violate the Constitution or federal law, so that any illegal action is stripped of state character and rendered an illegal individual act. Suits against these officials are consequently barred by neither the Eleventh Amendment nor Hans immunity. The officer's action

is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. . . . The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.

Ex parte Young, 209 U.S. at 159-160.

The decision in Ex parte Young, and the historic doctrine it embodies, thus play a foundational role in American constitutionalism, and while the doctrine is sometimes called a "fiction," the long history of its felt necessity shows it to be something much more estimable, as we may see by considering the facts of the case.

Young was really and truly about to damage the interest of plaintiffs. Whether what he was about to do amounted to a legal injury depended on the authority of his employer, the state. If the state could constitutionally authorize the act, then the loss suffered by plaintiffs was not a wrong for which the law provided a remedy. . . . If the state could not constitutionally authorize the act then, Young was not acting by its authority.

Orth, Judicial Power of the United States at 133. The doctrine we call Ex parte Young is nothing short of "indispensable to the establishment of constitutional government and the rule of law." C. Wright, Law of Federal Courts 292 (4th ed. 1983). See also E. Chemerinsky, Federal Jurisdiction 393 (2d ed. 1994).

A rule of such lineage, engendered by such necessity, should not be easily displaced, if indeed it is displaceable at all, for it marks the frontier of the enforceability of federal law against sometimes competing state policies. We have, in fact, never before inferred a congressional intent to eliminate this time-honored practice of enforcing federal law. That, of course, does not mean that the intent may never be inferred, and where, as here, the underlying right is one of statutory, rather than constitutional, dimension, I do not in theory reject the Court's assumption that Congress may bar enforcement by suit even against a state official. But because, in practice, in the real world of congressional legislation, such an intent would be exceedingly odd, it would be equally odd for this Court to recognize an intent to block the customary application of Ex parte Young without applying the rule recognized in our previous cases, which have insisted on a clear statement before assuming a congressional purpose to "affec[t] the federal balance," United States v. Bass, 404 U.S. 336, 349 (1971). See also Will v. Michigan Dept. of State Police, 491 U.S. 58, 65 (1989) ("[I]f Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,' it must make its intention to do so ‘unmistakably clear in the language of the statute'") (quoting Atascadero State Hospital v. Scanlon, 473 U.S. at 242); Gregory v. Ashcroft, 501 U.S. 452, 460-461 (1991). Our habitual caution makes sense for just the reason we mentioned in Dellmuth v. Muth, 491 U.S. 223, 230-231 (1989): it is

difficult to believe that . . . Congress, taking careful stock of the state of Eleventh Amendment law, decided it would drop coy hints but stop short of making its intention manifest.

C

There is no question that, by its own terms, Young's indispensable rule authorizes the exercise of federal jurisdiction over respondent Chiles. Since this case does not, of course, involve retrospective relief, Edelman's limit is irrelevant, and there is no other jurisdictional limitation. Obviously, for jurisdictional purposes, it makes no difference in principle whether the injunction orders an official not to act, as in Young, or requires the official to take some positive step, as in Milliken or Quern. Nothing, then, in this case renders Young unsuitable as a jurisdictional basis for determining on the merits whether the petitioners are entitled to an order against a state official under general equitable doctrine. The Court does not say otherwise, and yet it refuses to apply Young. There is no adequate reason for its refusal.

No clear statement of intent to displace the doctrine of Ex parte Young occurs in IGRA, and the Court is instead constrained to rest its effort to skirt Young on a series of suggestions thought to be apparent in Congress's provision of "intricate procedures" for enforcing a State's obligation under the Act. The procedures are said to implicate a rule against judicial creativity in devising supplementary procedures; it is said that applying Young would nullify the statutory procedures; and finally, the statutory provisions are said simply to reveal a congressional intent to preclude the application of Young.

1

The Court cites Schweiker v. Chilicky, 487 U.S. 412, 423 (1988), in support of refraining from what it seems to think would be judicial creativity in recognizing the applicability of Young. The Court quotes from Chilicky for the general proposition that when Congress has provided what it considers adequate remedial mechanisms for violations of federal law, this Court should not "creat[e]" additional remedies. Ante at ___. The Court reasons that Congress's provision in IGRA of "intricate procedures" shows that it considers its remedial provisions to be adequate, with the implication that courts as a matter of prudence should provide no "additional" remedy under Ex parte Young. Ante at ___.

Chilicky's remoteness from the point of this case is, however, apparent from its facts. In Chilicky, Congress had addressed the problem of erroneous denials of certain government benefits by creating a scheme of appeals and awards that would make a successful claimant whole for all benefits wrongly denied. The question was whether this Court should create a further remedy on the model of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), for such harms as emotional distress, when the erroneous denial of benefits had involved a violation of procedural due process. The issue, then, was whether to create a supplemental remedy, backward-looking on the Bivens model, running against a federal official in his personal capacity, and requiring an affirmative justification (as Bivens does). See Bivens, supra; FDIC v. Meyer, 510 U.S. ___, ___ (1994).

The Bivens issue in Chilicky (and in Meyer) is different from the Young issue here in every significant respect. Young is not an example of a novel rule that a proponent has a burden to justify affirmatively on policy grounds in every context in which it might arguably be recognized; it is a general principle of federal equity jurisdiction that has been recognized throughout our history and for centuries before our own history began. Young does not provide retrospective monetary relief, but allows prospective enforcement of federal law that is entitled to prevail under the Supremacy Clause. It requires not money payments from a government employee's personal pocket, but lawful conduct by a public employee acting in his official capacity. Young would not function here to provide a merely supplementary regime of compensation to deter illegal action, but the sole jurisdictional basis for an Article III court's enforcement of a clear federal statutory obligation, without which a congressional act would be rendered a nullity in a federal court. One cannot intelligibly generalize from Chilicky's standards for imposing the burden to justify a supplementary scheme of tort law, to the displacement of Young's traditional and indispensable jurisdictional basis for ensuring official compliance with federal law when a State itself is immune from suit.

2

Next, the Court suggests that it may be justified in displacing Young because Young would allow litigants to ignore the "intricate procedures" of IGRA in favor of a menu of streamlined equity rules from which any litigant could order as he saw fit. But there is no basis in law for this suggestion, and the strongest authority to reject it. Young did not establish a new cause of action, and it does not impose any particular procedural regime in the suits it permits. It stands, instead, for a jurisdictional rule by which paramount federal law may be enforced in a federal court by substituting a non-immune party (the state officer) for an immune one (the State itself). Young does no more, and furnishes no authority for the Court's assumption that it somehow preempts procedural rules devised by Congress for particular kinds of cases that may depend on Young for federal jurisdiction. [n61]

If, indeed, the Court were correct in assuming that Congress may not regulate the procedure of a suit jurisdictionally dependent on Young, the consequences would be revolutionary, for example, in habeas law. It is well established that, when a habeas corpus petitioner sues a state official alleging detention in violation of federal law and seeking the prospective remedy of release from custody, it is the doctrine identified in Ex parte Young that allows the petitioner to evade the jurisdictional bar of the Eleventh Amendment (or, more properly, the Hans doctrine). See Young, 209 U.S. at 167-168; Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 689-690 (1949). [n62] And yet Congress has imposed a number of restrictions upon the habeas remedy, see, e.g., 28 U.S.C. § 2254(b) (requiring exhaustion of state remedies prior to bringing a federal habeas petition), and this Court has articulated several more, see, e.g., McCleskey v. Zant, 499 U.S. 467 (1991) (abuse of the writ); Teague v. Lane, 489 U.S. 288 (1989) (limiting applicability of "new rules" on habeas); Brecht v. Abrahamson, 507 U.S. 619 (1993) (applying a more deferential harmless error standard on habeas review). By suggesting that Ex parte Young provides a free-standing remedy not subject to the restrictions otherwise imposed on federal remedial schemes (such as habeas corpus), the Court suggests that a state prisoner may circumvent these restrictions by ostensibly bringing his suit under Young, rather than 28 U.S.C. § 2254. The Court's view implies similar consequences under any number of similarly structured federal statutory schemes. [n63]

This, of course, cannot be the law, and the plausible rationale for rejecting the Court's contrary assumption is that Congress has just as much authority to regulate suits when jurisdiction depends on Young as it has to regulate when Young is out of the jurisdictional picture. If Young does not preclude Congress from requiring state exhaustion in habeas cases (and it clearly does not), then Young does not bar the application of IGRA's procedures when effective relief is sought by suing a state officer.

3

The Court's third strand of reasoning for displacing Ex parte Young is a supposed inference that Congress so intended. Since the Court rests this inference in large part on its erroneous assumption that the statute's procedural limitations would not be applied in a suit against an officer for which Young provided the jurisdictional basis, the error of that assumption is enough to show the unsoundness of any inference that Congress meant to exclude Young's application. But there are further reasons pointing to the utter implausibility of the Court's reading of the congressional mind.

IGRA's jurisdictional provision reads as though it had been drafted with the specific intent to apply to officer liability under Young. It provides that

[t]he United States district courts shall have jurisdiction over . . . any cause of action . . . arising from the failure of a State to enter into negotiations . . . or to conduct such negotiations in good faith.

(Emphasis added.) This language does not limit the possible defendants to States and is quite literally consistent with the possibility that a tribe could sue an appropriate state official for a State's failure to negotiate. [n64] The door is so obviously just as open to jurisdiction over an officer under Young as to jurisdiction over a State directly that it is difficult to see why the statute would have been drafted as it was unless it was done in anticipation that Young might well be the jurisdictional basis for enforcement action.

But even if the jurisdictional provision had spoken narrowly of an action against the State itself (as it subsequently speaks in terms of the State's obligation), that would be no indication that Congress had rejected the application of Young. An order requiring a "State" to comply with federal law can, of course, take the form of an order directed to the State in its sovereign capacity. But as Ex parte Young and innumerable other cases show, there is nothing incongruous about a duty imposed on a "State" that Congress intended to be effectuated by an order directed to an appropriate state official. The habeas corpus statute, again, comes to mind. It has long required "the State," by "order directed to an appropriate State official," to produce the state court record where an indigent habeas petitioner argues that a state court's factual findings are not fairly supported in the record. See 28 U.S.C. § 2254(e) ("the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official"). If, then, IGRA's references to "a State's" duty were not enforceable by order to a state official, it would have to be for some other reason than the placement of the statutory duty on "the State."

It may be that even the Court agrees, for it falls back to the position, see ante at ___, n. 17, that only a State, not a state officer, can enter into a compact. This is true but wholly beside the point. The issue is whether negotiation should take place as required by IGRA and an officer (indeed, only an officer) can negotiate. In fact, the only case cited by the Court, State ex rel. Stephan v. Finney, 251 Kan. 559, 836 P.2d 1169 (Kan. 1992), makes that distinction abundantly clear.

Finally, one must judge the Court's purported inference by stepping back to ask why Congress could possibly have intended to jeopardize the enforcement of the statute by excluding application of Young's traditional jurisdictional rule, when that rule would make the difference between success or failure in the federal court if state sovereign immunity was recognized. Why would Congress have wanted to go for broke on the issue of state immunity in the event the State pleaded immunity as a jurisdictional bar? Why would Congress not have wanted IGRA to be enforced by means of a traditional doctrine giving federal courts jurisdiction over state officers, in an effort to harmonize state sovereign immunity with federal law that is paramount under the Supremacy Clause? There are no plausible answers to these questions.

D

There is, finally, a response to the Court's rejection of Young that ought to go without saying. Our longstanding practice is to read ambiguous statutes to avoid constitutional infirmity, Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575 (1988) ("‘every reasonable construction must be resorted to, in order to save a statute from unconstitutionality'") (quoting Hooper v. California, 155 U.S. 648, 657 (1895)). This practice alone (without any need for a clear statement to displace Young) would be enough to require Young's application. So, too, would the application of another rule, requiring courts to choose any reasonable construction of a statute that would eliminate the need to confront a contested constitutional issue (in this case, the place of state sovereign immunity in federal question cases and the status of Union Gas). NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500-501 (1979). Construing the statute to harmonize with Young, as it readily does, would have saved an act of Congress and rendered a discussion on constitutional grounds wholly unnecessary. This case should be decided on this basis alone.

V

Absent the application of Ex parte Young, I would, of course, follow Union Gas in recognizing congressional power under Article I to abrogate Hans immunity. Since the reasons for this position, as explained in Parts II-III, supra, tend to unsettle Hans as well as support Union Gas, I should add a word about my reasons for continuing to accept Hans' holding as a matter of stare decisis.

The Hans doctrine was erroneous, but it has not previously proven to be unworkable or to conflict with later doctrine or to suffer from the effects of facts developed since its decision (apart from those indicating its original errors). I would therefore treat Hans as it has always been treated in fact until today, as a doctrine of federal common law. For, as so understood, it has formed one of the strands of the federal relationship for over a century now, and the stability of that relationship is itself a value that stare decisis aims to respect.

In being ready to hold that the relationship may still be altered, not by the Court but by Congress, I would tread the course laid out elsewhere in our cases. The Court has repeatedly stated its assumption that insofar as the relative positions of States and Nation may be affected consistently with the Tenth Amendment, [n65] they would not be modified without deliberately expressed intent. See Gregory v. Ashcroft, 501 U.S. at 460-461. The plain statement rule, which "assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision," United States v. Bass, 404 U.S. at 349, is particularly appropriate in light of our primary reliance on "[t]he effectiveness of the federal political process in preserving the States' interests." Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 552 (1985). [n66] Hence, we have required such a plain statement when Congress preempts the historic powers of the States, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), imposes a condition on the grant of federal moneys, South Dakota v. Dole, 483 U.S. 203, 207 (1987), or seeks to regulate a State's ability to determine the qualifications of its own officials. Gregory, supra at 464.

When judging legislation passed under unmistakable Article I powers, no further restriction could be required. Nor does the Court explain why more could be demanded. In the past, we have assumed that a plain statement requirement is sufficient to protect the States from undue federal encroachments upon their traditional immunity from suit. See, e.g., Welch v. Texas Dept. of Highways & Public Transp., 483 U.S. at 475; Atascadero State Hospital v. Scanlon, 473 U.S. at 239-240. It is hard to contend that this rule has set the bar too low, for (except in Union Gas) we have never found the requirement to be met outside the context of laws passed under § 5 of the Fourteenth Amendment. The exception I would recognize today proves the rule, moreover, because the federal abrogation of state immunity comes as part of a regulatory scheme which is itself designed to invest the States with regulatory powers that Congress need not extend to them. This fact suggests to me that the political safeguards of federalism are working, that a plain statement rule is an adequate check on congressional overreaching, and that today's abandonment of that approach is wholly unwarranted.

There is an even more fundamental "clear statement" principle, however, that the Court abandons today. John Marshall recognized it over a century and a half ago in the very context of state sovereign immunity in federal question cases:

The jurisdiction of the Court, then, being extended by the letter of the constitution to all cases arising under it, or under the laws of the United States, it follows that those who would withdraw any case of this description from that jurisdiction, must sustain the exemption they claim on the spirit and true meaning of the constitution, which spirit and true meaning must be so apparent as to overrule the words which its framers have employed.

Cohens v. Virginia, 6 Wheat. at 379-380. Because neither text, precedent, nor history supports the majority's abdication of our responsibility to exercise the jurisdiction entrusted to us in Article III, I would reverse the judgment of the Court of Appeals.

1. The two Citizen-State Diversity Clauses provide as follows:

The judicial Power shall extend . . . to Controversies . . . between a State and Citizens of another State; . . . and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

U.S.Const., Art. III, § 2. In his opinion in Union Gas, JUSTICE STEVENS referred to these clauses as the "citizen-state" and "alien-state" clauses, respectively, Pennsylvania v. Union Gas Co., 491 U.S. 1, 24 (1989) (STEVENS, J., concurring). I have grouped the two as "Citizen-State Diversity Clauses" for ease in frequent repetition here.

2. The first of these notions rests on the ancient maxim that "the King can do no wrong." See, e.g., 1 W. Blackstone, Commentaries *244. Professor Jaffe has argued this expression "originally meant precisely the contrary to what it later came to mean," that is, "‘it meant that the king must not, was not allowed, not entitled, to do wrong.'" Jaffe, 77 Harv. L.Rev. at 4 (quoting Ehrlich, Proceedings Against the Crown (1216-1377) p. 42, in 6 Oxford Studies in Social and Legal History (P. Vinogradoff ed. 1921) at 42); see also 1 Blackstone, supra at *246 (interpreting the maxim to mean that "the prerogative of the crown extends not to do any injury"). In any event, it is clear that the idea of the sovereign, or any part of it, being above the law in this sense has not survived in American law. See, e.g., Langford v. United States, 101 U.S. 341, 342-343 (1880); Nevada v. Hall, 440 U.S. 410, 415 (1979).

3. The text reads that

[t]he Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; -- to all Cases affecting Ambassadors, other public Ministers and Consuls; -- to all Cases of admiralty and maritime Jurisdiction; -- to Controversies to which the United States shall be a Party; -- to Controversies between two or more States; -- between a State and Citizens of another State; -- between Citizens of different States, -- between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

4. The one statement I have found on the subject of States' immunity in federal question cases was an opinion that immunity would not be applicable in these cases: James Wilson, in the Pennsylvania ratification debate, stated that the federal question clause would require States to make good on pre-Revolutionary debt owed to English merchants (the enforcement of which was promised in the Treaty of 1783) and thereby

show the world that we make the faith of the treaties a constitutional part of the character of the United States; that we secure its performance no longer nominally, for the judges of the United States will be enabled to carry it into effect, let the legislatures of the different states do what they may.

2 J. Elliot, Debates on the Federal Constitution, 490 (2d ed. 1836) (Elliot's Debates).

5. This lengthy discussion of the history of the Constitution's ratification, the Court's opinion in Chisholm v. Georgia, 2 Dall. 419 (1793), and the adoption of the Eleventh Amendment is necessary to explain why, in my view, the contentions in some of our earlier opinions that Chisholm created a great "shock of surprise" misread the history. See Principality of Monaco v. Mississippi, 292 U.S. 313 (1934). The Court's response to this historical analysis is simply to recite yet again Monaco's erroneous assertion that Chisholm created a "such a shock of surprise that the Eleventh Amendment was at once proposed and adopted," 292 U.S. at 325. See ante at ___. This response is, with respect, no response at all.Monaco's ipse dixit that Chisholm created a "shock of surprise" does not make it so. This Court's opinions frequently make assertions of historical fact, but those assertions are not authoritative as to history in the same way that our interpretations of laws are authoritative as to them. In Tucker v. Alexandroff, 183 U.S. 424, 434 (1902), which was, like Monaco, decided a century after the event it purported to recount, the Court baldly stated that,

in September, 1790, General Washington, on the advice of Mr. Adams, did refuse to permit British troops to march through the territory of the United States from Detroit to the Mississippi, apparently for the reason that the object of such movement was an attack on New Orleans and the Spanish possessions on the Mississippi.

Modern historians agree, however, that there was no such request, see J. Daly, The Use of History in the Decisions of the Supreme Court: 1900-1930 65-66 (1954); W. Manning, The Nootka Sound Controversy, in Annual Report of the American Historical Association, H.R.Doc. 429 (1905) at 415-423, and it would of course be absurd for this Court to treat the fact that Tucker asserted the existence of the request as proof that it actually occurred. Cf. Erie R. Co. v. Tompkins, 304 U.S. 64, 72-73 (1938) ("But it was the more recent research of a competent scholar, who examined the original document, which established that the construction given to [the Judiciary Act of 1789] by the Court was erroneous; and that the purpose of the section was merely to make certain that, in all matters except those in which some federal law is controlling, the federal courts exercising jurisdiction in diversity of citizenship cases would apply as their rules of decision the law of the State, unwritten as well as written").

Moreover, in this case, there is ample evidence contradicting the "shock of surprise" thesis. Contrary to Monaco's suggestion, the Eleventh Amendment was not "at once proposed and adopted." Congress was in session when Chisholm was decided, and a constitutional amendment in response was proposed two days later, but Congress never acted on it, and in fact it was not until two years after Chisholm was handed down that an amendment was ratified. See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum.L.Rev. 1889, 1926-1927 (1983).

6. See also 2 Dall. at 435 ("[I]t is certain, that in regard to any common law principle which can influence the question before us, no alteration has been made by any statute,"); id. at 437 (if "no new remedy be provided . . . we have no other rule to govern us, but the principles of the preexistent laws, which must remain in force till superseded by others"); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 283 (1985) (Brennan, J., dissenting). But see Justice Iredell's dicta suggesting that the Constitution would not permit suits against a State. Chisholm, supra at 449 (Iredell, J., dissenting); Atascadero, supra at 283, n. 34 (Brennan, J., dissenting).

7. Of course, even if Justice Iredell had concluded that state sovereign immunity was not subject to abrogation, it would be inappropriate to assume (as it appears the Court does today, and Hans did as well) that the Eleventh Amendment (regardless of what it says) "constitutionalized" Justice Iredell's dissent, or that it simply adopted the opposite of the holding in Chisholm. It is as odd to read the Eleventh Amendment's rejection of Chisholm (which held that States may be sued in diversity) to say that States may not be sued on a federal question as it would be to read the Twenty-Sixth Amendment's rejection of Oregon v. Mitchell, 400 U.S. 112 (1970) (which held that Congress could not require States to extend the suffrage to 18-year-olds) to permit Congress to require States to extend the suffrage to 12-year-olds.

8. The great weight of scholarly commentary agrees. See, e.g., Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L.J. 1 (1988); Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425 (1987); Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction, Rather than a Prohibition Against Jurisdiction, 35 Stan.L.Rev. 1033 (1983); Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum.L.Rev. 1889 (1983); Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Congressional Imposition of Suit Upon the States, 126 U.Pa.L.Rev. 1203 (1978). While a minority has adopted the second view set out above, see, e.g., Marshall, Fighting the Words of the Eleventh Amendment, 102 Harv. L.Rev. 1342 (1989); Massey, State Sovereignty and the Tenth and Eleventh Amendments, 56 U.Chi.L.Rev. 61 (1989), and others have criticized the diversity theory, see, e.g., Marshall, The Diversity Theory of the Eleventh Amendment: A Critical Evaluation, 102 Harv.L.Rev. 1372 (1989), I have discovered no commentator affirmatively advocating the position taken by the Court today. As one scholar has observed, the literature is

remarkably consistent in its evaluation of the historical evidence and text of the amendment as not supporting a broad rule of constitutional immunity for states.

Jackson, supra at 44, n. 179.

9. Vassall initiated a suit against Massachusetts, invoking the original jurisdiction of the Supreme Court. Although the marshal for the district of Massachusetts served a subpoena on Governor John Hancock and Attorney General James Sullivan, the Commonwealth of Massachusetts did not appear by the original return date of August, 1793, and the case was continued to the February, 1794 Term. Massachusetts never did appear, and the case was "simply continued from term to term through 1796." 5 Documentary History of the Supreme Court of the United States at 369. In February, 1797, the suit was "dismissed with Costs, for reasons unknown," ibid. (internal quotation marks omitted), perhaps because "Vassall failed to prosecute it properly." Ibid.

10. We have generally rejected Eleventh Amendment challenges to our appellate jurisdiction on the specious ground that an appeal is not a "suit" for purposes of the Amendment. See, e.g., McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U.S. 18, 27 (1990). Although Cohens v. Virginia, 6 Wheat. 264, 412 (1821), is cited for this proposition, that case involved a State as plaintiff. See generally Jackson, "The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity," 98 Yale L.J. 1, 32-35 (1988) (rejecting the appeal/suit distinction). The appeal/suit distinction, in any case, makes no sense. Whether or not an appeal is a "suit" in its own right, it is certainly a means by which an appellate court exercises jurisdiction over a "suit" that began in the courts below. Cf. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam) ("The filing of a notice of appeal is an event of jurisdictional significance -- it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal").

11. See also Pennsylvania v. Union Gas Co., supra at 31 (SCALIA, J., concurring in part and dissenting in part) ("If this text [of the Eleventh Amendment] were intended as a comprehensive description of state sovereign immunity in federal courts . . . , then it would unquestionably be most reasonable to interpret it as providing immunity only when the sole basis of federal jurisdiction is the diversity of citizenship that it describes (which of course tracks some of the diversity jurisdictional grants in U.S.Const., Art. III, § 2). For there is no plausible reason why one would wish to protect a State from being sued in federal court for violation of federal law . . . when the plaintiff is a citizen of another State or country, but to permit a State to be sued there when the plaintiff is citizen of the State itself").

12. The Court does suggest that the drafters of the Eleventh Amendment may not have had federal question jurisdiction in mind, in the apparent belief that this somehow supports its reading. Ante at ___. The possibility, however, that those who drafted the Eleventh Amendment intended to deal "only with the problem presented by the decision in Chisholm" would demonstrate, if any demonstration beyond the clear language of the Eleventh Amendment were necessary, that the Eleventh Amendment was not intended to address the broader issue of federal question suits brought by citizens.

Moreover, the Court's point is built on a faulty foundation. The Court is simply incorrect in asserting that "the federal courts did not have federal question jurisdiction at the time the Amendment was passed." Ante at ___. Article III, of course, provided for such jurisdiction, and early Congresses exercised their authority pursuant to Article III to confer jurisdiction on the federal courts to resolve various matters of federal law. E.g., Act of Apr. 10, 1790, § 5, 1 Stat. 111; Act of Feb. 21, 1793, § 6, 1 Stat. 322; Act of Mar. 23, 1792, §§ 2,3, 1 Stat. 244; see also Osborn v. Bank of United States, 9 Wheat. 738 (1824) (holding that federal statute conferred federal question jurisdiction in cases involving the Bank of the United States); see generally P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 960-982 (3d ed. 1988). In fact, only six years after the passage of the Eleventh Amendment, Congress enacted a statute providing for general federal question jurisdiction. Act of Feb. 13, 1801, § 11, 2 Stat. 92 ("[T]he said circuit courts respectively shall have cognizance of . . . all cases in law or equity, arising under the constitution and laws of the United States, and treaties made, or which shall be made, under their authority"). It is, of course, true that this statute proved short-lived (it was repealed by the Act of Mar. 8, 1802, 2 Stat. 132), and that Congress did not pass another statute conferring general federal jurisdiction until 1875, but the drafters of the Eleventh Amendment obviously could not have predicted such things. The real significance of the 1801 act is that it demonstrates the awareness among the Members of the early Congresses of the potential scope of Article III. This, in combination with the pre-Eleventh Amendment statutes that conferred federal question jurisdiction on the federal courts, cast considerable doubt on the Court's suggestion that the issue of federal question jurisdiction never occurred to the drafters of the Eleventh Amendment; on the contrary, just because these early statutes underscore the early Congresses' recognition of the availability of federal question jurisdiction, the silence of the Eleventh Amendment is all the more deafening.

13. The majority chides me that the "lengthy analysis of the text of the Eleventh Amendment is directed at a straw man," ante at ___. But plain text is the Man of Steel in a confrontation with "background principle[s]" and "‘postulates which limit and control,'" ante at ___. An argument rooted in the text of a constitutional provision may not be guaranteed of carrying the day, but insubstantiality is not its failing. See, e.g., Monaghan, Our Perfect Constitution, 56 N.Y.U.L.Rev. 353, 383-384 (1981) ("For the purposes of legal reasoning, the binding quality of the constitutional text is itself incapable of, and not in need of, further demonstration"); cf. Bourjaily v. United States, 483 U.S. 171, 178 (1987) (REHNQUIST, C.J.) ("It would be extraordinary to require legislative history to confirm the plain meaning of [Fed. R. Evid.] 104"); Garcia v. United States, 469 U.S. 70, 75 (1984) (REHNQUIST, J.) ("[O]nly the most extraordinary showing of contrary intentions from [the legislative history] would justify a limitation on the ‘plain meaning' of the statutory language"). This is particularly true in construing the jurisdictional provisions of Art. III, which speak with a clarity not to be found in some of the more open-textured provisions of the Constitution. See National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646-647 (1949) (Frankfurter, J., dissenting); Schauer, Easy Cases, 58 S. Cal.L.Rev. 399, 424 (1985) (noting the "seemingly plain linguistic mandate" of the Eleventh Amendment). That the Court thinks otherwise is an indication of just how far it has strayed beyond the boundaries of traditional constitutional analysis.

14. Professor Jackson has noted the "remarkabl[e] consisten[cy]" of the scholarship on this point, Jackson, 98 Yale L.J. at 44, n. 179. See also n. 8, supra.

15. Indeed, as JUSTICE STEVENS suggests, there is language in Hans suggesting that the Court was really construing the Judiciary Act of 1875, rather than the Constitution. See ante at ___.

16. See Gibbons, 83 Colum.L.Rev. at 2000 ("Without weakening the contract clause, which over the next two decades the Fuller Court might need both in its fight against government regulation of business and as a weapon against defaulting local governments, the justices needed a way to let the South win the repudiation war. The means Bradley chose was to rewrite the eleventh amendment and the history of its adoption"). The commentators' contention that this Court's inability to enforce the obligation of Southern States to pay their debts influenced the result in Hans v. Louisiana, 134 U.S. 1 (1890), is substantiated by three anomalies of this Court's sovereign immunity jurisprudence during that period. First, this Court held in 1885 that Virginia's sovereign immunity did not allow it to abrogate its bonds. Virginia Coupon Cases, 114 U.S. 269 (1885). The difference from the situation in other states, however, was that Virginia had made its bond coupons receivable in payment of state taxes;

[u]nder these circumstances federal courts did not need to rely on the political branches of government to enforce their orders but could protect creditors by a judgment that their taxes had in fact been paid. In these cases the Eleventh Amendment faded into the background.

Orth, Judicial Power of the United States at 9; see generally id. at 90-109. Second at the same time that this Court was articulating broad principles of immunity for States, we refused to recognize similar immunity for municipalities and similar state political subdivisions. See, e.g., Lincoln County v. Luning, 133 U.S. 529 (1890). Professor Orth suggests that this seeming inconsistency is traceable to the enforcement difficulties arising from the withdrawal of federal troops from the South. "It just so happened," he points out,

that counties had tended to issue bonds in the West, while in the South, states had usually done the job. Property in the form of bonds could be defended in the mid-West and West, but similar property in the South had to be sacrificed to the higher politics of the Compromise of 1877.

Orth, supra at 111. Finally, Professor Orth attributes this Court's recognition (or revival) of the Ex parte Young action as a way around state sovereign immunity to the fact that, by 1908, "the problem of repudiated Southern bonds was clearly a specter from an increasingly distant past." Orth, supra at 128. See also Gibbons, supra at 2002 (arguing that the Court's unanimous revival of its power to grant equitable relief against state officers in Pennoyer v. McConnaughy, 140 U.S. 1 (1891), was made possible by the fact that the case "did not involve Southern State bonds"). I am reluctant, to be sure, to ascribe these legal developments to a single, extra-legal cause, and at least one commentator has suggested that the Southern debt crisis may not have been the only factor driving the Court's Eleventh Amendment jurisprudence during this period. See generally Collins, The Conspiracy Theory of the Eleventh Amendment, 88 Colum.L.Rev. 212 (1988) (reviewing Orth). But neither would I ignore the pattern of the cases, which tends to show that the presence or absence of enforcement difficulties significantly influenced the path of the law in this area. See id. at 243 (acknowledging that "[i]t is perfectly conceivable that Compromise-related politics exerted their influence at the margin-in doubtful cases in which the Court might have gone either way").

17. Today's majority condemns my attention to Hans' historical circumstances as "a disservice to the Court's traditional method of adjudication." Ante at ___. The point, however, is not that historical circumstance may undermine an otherwise defensible decision; on the contrary, it is just because Hans is so utterly indefensible on the merits of its legal analysis that one is forced to look elsewhere in order to understand how the Court could have gone so far wrong. Nor is there anything new or remarkable in taking such a look, for we have sought similar explanations in other cases. In Puerto Rico v. Branstad, 483 U.S. 219 (1987), for example, we suggested that the Court's holding in Kentucky v. Dennison, 24 How. 66 (1861), that

"the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it,"

id. at 107, was influenced by "the looming shadow of a Civil War," Branstad, 483 U.S. at 227,and we ultimately determined that Dennison should be overruled. Id. at 230. The author of the Court's opinion today joined that analysis, as did the other Members of today's majority who were then on the Court. See id. at 230 (O'CONNOR, J., concurring in part and concurring in judgment) (joining the relevant portion of the majority opinion); id. at 231 (SCALIA, J., concurring in part and concurring in judgment) (same).

18. See also Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299, 304 (1952) (same); Fitts v. McGhee, 172 U.S. 516, 524 (1899) (same). Even JUSTICE SCALIA's dissent in Union Gas, the reasoning of which the majority adopts today, acknowledged that its view of sovereign immunity depended upon "some other constitutional principle beyond the immediate text of the Eleventh Amendment." 491 U.S. at 31 (opinion concurring in part and dissenting in part). To the extent that our prior cases do refer to Hans immunity as part of the Eleventh Amendment, they can only be referring to JUSTICE STEVENS' "other" Eleventh Amendment. Hess v. Port Authority Trans-Hudson Corp., 513 U.S. ___, ___ (1994) (STEVENS, J., concurring); see also Pennsylvania v. Union Gas Co., supra at 23-29 (STEVENS, J., concurring) (same).

19. See also Union Gas, 491 U.S. at 31-32 (SCALIA, J., concurring in part and dissenting in part) ("What we said in Hans was, essentially, that the Eleventh Amendment was important not merely for what it said but for what it reflected: a consensus that the doctrine of sovereign immunity, for States as well as for the Federal Government, was part of the understood background against which the Constitution was adopted, and which its jurisdictional provisions did not mean to sweep away"); Nevada v. Hall, 440 U.S. at 440 (REHNQUIST, J., dissenting) (interpreting Monaco as "rel[ying] on precepts underlying but not explicit in Art. III and the Eleventh Amendment").

20. There are good reasons not to take many of these statements too seriously. Some are plainly exaggerated; for example, the suggestion in Great Northern Ins. Co. v. Read, 322 U.S. 47, 51 (1944), that "[a] state's freedom from litigation was established as a constitutional right through the Eleventh Amendment" obviously ignores a State's liability to suit by other States, see, e.g., South Dakota v. North Carolina, 192 U.S. 286 (1904), and by the National Government, see, e.g., United States v. Texas, 143 U.S. 621 (1892). See also Nevada v. Hall, supra, at 420, n. 19 (noting that "the Eleventh Amendment has not accorded the States absolute sovereign immunity in federal court actions"). Similarly, statements such as in Ex parte New York, 256 U.S. at 497, that

the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given

should not necessarily be taken as affirming that Article III itself incorporated a constitutional immunity doctrine. How else to explain Justice Harlan's concurring opinion in Hans, which stated, practically in the same breath, that "a suit directly against a State by one of its own citizens is not one to which the judicial power of the United States extends," and that Chisholm "was based upon a sound interpretation of the Constitution as that instrument then was"? 134 U.S. at 21.

21. See also Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299, 304 (1952); Fitts v. McGhee, 172 U.S. 516, 524-525 (1899).

22. See also Warth v. Seldin, 422 U.S. 490, 501 (1975) ("Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules"); E. Chemerinsky, Federal Jurisdiction § 2.1 at 42-43 (2d ed. 1994).

23. Indeed, The Chief Justice could hardly have been clearer in Fry v. United States, 421 U.S. 542 (1975), where he explained that

[t]he Court's decision in Hans v. Louisiana, 134 U.S. 1 (1890), offers impressive authority for the principle that the States as such were regarded by the Framers of the Constitution as partaking of many attributes of sovereignty quite apart from the provisions of the Tenth Amendment. . . . As it was not the Eleventh Amendment by its terms which justified the result in Hans, it is not the Tenth Amendment by its terms that prohibits congressional action which sets a mandatory ceiling on the wages of all state employees. Both Amendments are simply examples of the understanding of those who drafted and ratified the Constitution that the States were sovereign in many respects, and that although their legislative authority could be superseded by Congress in many areas where Congress was competent to act, Congress was nonetheless not free to deal with a State as if it were just another individual or business enterprise subject to regulation.

Id. at 556-557 (REHNQUIST, J., dissenting).

24. Indeed, in Nevada v. Hall, 440 U.S. at 439, The Chief Justice complained in dissent that the same statements upon which he relies today had been "dismiss[ed] . . . as dicta."

25. In Hoffman, one member of the four-Justice plurality expressly disavowed the plurality's assumption that Congress could abrogate the States' immunity by making its intent to do so clear. See 492 U.S. at 105 (O'CONNOR, J., concurring). The four dissenters, however, not only assumed that Congress had the power to abrogate but found that it had done so. See id. at 106 (Marshall, J., dissenting). Likewise, in Welch, the four-justice plurality was joined by four dissenters who insisted upon a congressional power of abrogation. See 483 U.S. at 519 (Brennan, J., dissenting).

26. The Court seeks to disparage the common law roots of the doctrine, and the consequences of those roots which I outline infra at ___ & ___, by asserting that Hans "found its roots not solely in the common law of England, but in the much more fundamental ‘"jurisprudence in all civilized nations."'" Ante at ___ (quoting Hans, 134 U.S. at 17). The Hans Court, however, relied explicitly on the ground that a suit against the State by its own citizen was "not known . . . at the common law," and was not among the departures from the common law recognized by the Constitution. Hans, 134 U.S. at 15. Moreover, Hans explicitly adopted the reasoning of Justice Iredell's dissent in Chisholm, see 134 U.S. at 18-19, and that opinion could hardly have been clearer in relying exclusively on the common law. "The only principles of law . . . which can affect this case," Justice Iredell wrote,

[are] those that are derived from what is properly termed "the common law," a law which I presume is the groundwork of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of Legislation controuls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the country.

2 Dall. at 435 (emphasis omitted). See also Employees of Dept. of Public Health and Welfare of Missouri v. Department of Public Health and Welfare of Missouri, 411 U.S. 279, 288 (1973) (Marshall, J., concurring in result) ("Sovereign immunity is a common law doctrine that long predates our Constitution and the Eleventh Amendment, although it has, of course, been carried forward in our jurisprudence"); R. Watkins, The State as a Party Litigant 51-52 (1927) ("It thus seems probable that the doctrine of state immunity was accepted rather as an existing fact by the people of the states, than adopted as a theory. It was a matter of universal practice, and was accepted from the mother country along with the rest of the common law of England applicable to our changed state and condition").

27. See, e.g., Hall, The Common Law: An Account of Its Reception in the United States, 4 Vand.L.Rev. 791, 796 (1951) ("Whether we emphasize the imitation by the colonists of the practices of English local courts or whether we say the early colonial judges were really applying their own common sense ideas of justice, the fact remains that there was an incomplete acceptance in America of English legal principles, and this indigenous law which developed in America remained as a significant source of law after the Revolution").

28. See also Jones, The Common Law in the United States: English Themes and American Variations, in Political Separation and Legal Continuity 95-98 (H. Jones, ed. 1976) (Jones) (acknowledging that a true common law system had not yet developed in the early colonial period); Stoebuck, Reception of English Common Law in the American Colonies, 10 Wm. & Mary L.Rev. 393, 406-407 (1968) (same).

29. See, e.g., Reinsch, English Common Law in the Early American Colonies at 7 (finding that the colonists developed their own "rude, popular, summary" system of justice despite professed adhesion to the common law); C. Hilkey, Legal Development in Colonial Massachusetts, 1630-1686, p. 69 (1967) (emphasizing Biblical and indigenous sources); Radin, The Rivalry of Common Law and Civil Law Ideas in the American Colonies, in 2 Law: A Century of Progress 404, 407-411 (1937) (emphasizing natural law and Roman law); Goebel, King's Law and Local Custom in Seventeenth Century New England, 31 Colum. L.Rev. 416 (1931) (finding that the early settlers imported the law and procedure of the borough and manor courts with which they had been familiar in England).

30. See also Stoebuck, supra at 411-412 (indicating that the Colonies became significantly more receptive to the common law after 1700, in part because of a British desire to regularize colonial legal systems).

31. See also Jones 98 ("The selective nature of the reception is evident in any examination of the state of law in the colonies in the years immediately preceding the Revolution"). An example is Trott's law, adopted by South Carolina in 1712, which declared which English statutes were in force in the colony. Many laws of England, Trott conceded, were "altogether useless" in South Carolina "by reason of the different way of agriculture and the differing productions of the earth of this Province from that of England"; others were "impracticable" because of differences in institutions. L. Friedman, A History of American Law 90-93 (2d ed. 1985); see also C. Warren, History of the American Bar 122-123 (1911) (quoting North Carolina statute, passed in 1715, providing that the common law would be in force "‘so far as shall be compatible with our way of living and trade'").

32. American hostility to things English was so pronounced for a time that Pennsylvania, New Jersey, and Kentucky proscribed by statute the citation of English decisions in their courts, and the New Hampshire courts promulgated a rule of court to the same effect. See Hall, 4 Vand. L.Rev. at 806; Warren, supra at 227. This hostility may appear somewhat paradoxical in view of the colonists' frequent insistence during the revolutionary crisis that they were entitled to common law rights. See, e.g., First Continental Congress Declaration and Resolves (1774), in Documents Illustrative of the Formation of the Union of the American States, H.R.Doc. No. 398, 69th Cong., 1st Sess., 1, 3 (C. Tansill, ed. 1927) ("That the respective colonies are entitled to the common law of England"). In this context, however, the colonists were referring

not to the corpus of English case law doctrine, but to such profoundly valued common law procedures as trial by jury and the subjection of governmental power to what John Locke had called the "standing laws,"

such as Magna Carta, the Petition of Right, the Bill of Rights of 1689, and the Act of Settlement of 1701. Jones 110; see also Jay, Origins of Federal Common Law: Part Two, 133 U.Pa.L.Rev. 1231, 1256 (1985) (Jay II) (noting that "Antifederalists used the term common law to mean the great rights associated with due process"). The cardinal principles of this common law vision were parliamentary supremacy and the rule of law, conceived as the axiom that "all members of society, government officials as well as private persons, are equally responsible to the law and . . . ‘equally amenable to the jurisdiction of ordinary tribunals.'" Jones 128-129 (quoting A. Dicey, Introduction to Study of the Law of Constitution 192 (9th ed. 1939)). It is hard to imagine that the doctrine of sovereign immunity, so profoundly at odds with both these cardinal principles, could have been imported to America as part of this more generalized common law vision.

33. See, e.g., Conner v. Shepherd, 15 Mass. 164 (1818) (rejecting English common law rule regarding assignment of dower rights as inapplicable to the state and condition of land in Massachusetts); Parker & Edgarton v. Foote, 19 Wend. 309, 318 (N.Y. 1838) (rejecting English rule entitling a landowner to damages for the stopping of his lights; the court noted that "[i]t cannot be necessary to cite cases to prove that those portions of the common law of England which are hostile to the spirit of our institutions, or which are not adapted to the existing state of things in this country, form no part of our law"); Fitch v. Brainerd, 2 Conn. 163, 189 (1805) (accepting English common law rule barring married woman from disposing of her real estate by will, and observing that "it long since became necessary . . . to make [the English common law] our own, by practical adoption -- with such exceptions as a diversity of circumstances, and the incipient customs of our own country, required") (emphasis in original); Martin v. Bigelow, 2 Aiken 184 (Vt. 1827) (declaring English common law as to stream rights inappropriate for conditions of Vermont waterways); Hall v. Smith, 1 Bay 330, 331 (S.C.Sup.Ct. 1793) (refusing to apply strict English rules regarding promissory notes as unsuited to the "local situation of Carolina"). See also Hall, supra at 805 ("[A] review of the cases shows that no matter what the wording of the reception statute or constitutional provision of the particular state, the rule developed, which was sooner or later to be repeated in practically every American jurisdiction, that only those principles of the common law were received which were applicable to the local situation").

34. See also Jones 123-124 (noting that the common law institutions of habeas corpus and jury trial were "not merely received as ordinary law," but rather "received by [specific textual provisions] of the Constitution itself, as part of the supreme law of the land"). Sovereign immunity, of course, was not elevated to constitutional status in this way; such immunity thus stands on the same footing as any other common law principle which the Framers refused to place beyond the reach of legislative change. That such principles were and are subject to legislative alteration is confirmed by our treatment of other forms of common law immunities, such as the immunity enjoyed under certain circumstances by public officials. Butz v. Economou, 438 U.S. 478, 508 (1978) (officer immunity is derived from the common law); Imbler v. Pachtman, 424 U.S. 409, 421 (1976) (same). In this context, "our immunity decisions have been informed by the common law" only "in the absence of explicit . . . congressional guidance." Nixon v. Fitzgerald, 457 U.S. 731, 747 (1982). See generally ante at ___ (STEVENS, J., dissenting); Jackson, supra at 75-104. Surely no one would deny Congress the power to abrogate those immunities if it should so choose.

35. See, e.g., 2 Elliot's Debates 400 (Thomas Tredwell, New York Convention) ("[W]e are ignorant whether [federal proceedings] shall be according to the common, civil, the Jewish, or Turkish law. . . . ").

36. See also Justice Jay's Charge to the Grand Jury for the District of New York (April 4, 1790) (observing that at the time the Nation was formed, "[o]ur jurisprudence varied in almost every State, and was accommodated to local, not general convenience -- to partial, not national policy") (quoted in Jay, Origins of Federal Common Law: Part I, 133 U.Pa.L.Rev. 1003, 1056 n. 261 (1985)); United States v. Worrall, 28 F.Cas. 774, 779 (No. 16,766) (Chase, J.) (C.C. Pa. 1798) (noting that "[t]he common law . . . of one state, is not the common law of another"); 8 Annals of Cong. 2137 (1798) (statement of Rep. Albert Gallatin) (asserting that there could be no national common law because "[t]he common law of Great Britain received in each colony, had in every one received modifications arising from their situation . . . and now each State had a common law, in its general principles the same, but in many particulars differing from each other").

37. See also Jay II at 1241-1250 (arguing that Jeffersonian Republicans resisted the idea of a general federal reception of the common law as an incursion on States' rights); Jay I at 1111 (same). Given the roots of the Framers' resistance, the Court's reception of the English common law into the Constitution itself in the very name of state sovereignty goes beyond the limits of irony.

38. See 3 Elliot's Debates 573 (the Constitution would "render valid and effective existing claims" against the States). See also 2 id. at 491 (James Wilson, in the Pennsylvania ratification debate: "When a citizen has a controversy with another state, there ought to be a tribunal where both parties may stand on a just and equal footing"). Wilson, as I noted above, took a similar position in addressing the federal question, or arising under, clause, remarking that the effect of the clause would be to require States to honor pre-Revolutionary debt owed to English merchants, as had been promised in the Treaty of 1783. See supra at n. 4.

39. The Court accuses me of quoting this statement out of context, ante at ___, n. 12, but the additional material included by the Court makes no difference. I am conceding that Madison, Hamilton, and Marshall all agreed that Article III did not of its own force abrogate the states' preexisting common law immunity at least with respect to diversity suits. None of the statements offered by the Court, however, purports to deal with federal question jurisdiction or with the question whether Congress, acting pursuant to its Article I powers, could create a cause of action against a State. As I explain further below, the views of Madison and his allies on this more difficult question can be divined, if at all, only by reference to the more extended discussions by Hamilton in Federalist No. 32, and by Iredell in his Chisholm dissent. Both those discussions, I submit, tend to support a congressional power of abrogation.

40. See also Worcester v. Georgia, 6 Pet. 515, 561 (1832) ("The Cherokee nation . . . is a distinct community . . . in which the laws of Georgia can have no force. . . . The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States"). This Court has repeatedly rejected state attempts to assert sovereignty over Indian lands. See, e.g., The New York Indians, 5 Wall. 761, 769 (1867) (rejecting state attempt to tax reservation lands); Worcester, supra at 561-563 (nullifying an attempted prosecution by the state of Georgia of a person who resided on Indian lands in violation of state law).

41. Although we have rejected a per se bar to state jurisdiction, it is clear that such jurisdiction remains the exception and not the rule. See New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 331-332 (1983) (footnotes omitted) ("[U]nder certain circumstances a State may validly assert authority over the activities of nonmembers on a reservation, and . . . in exceptional circumstances a State may assert jurisdiction over the on-reservation activities of tribal members").

42. See The Federalist No. 82 at 553 (A. Hamilton) (disclaiming any intent to answer all the "questions of intricacy and nicety" arising in a judicial system that must accommodate "the total or partial incorporation of a number of distinct sovereignties"); S. Elkins and E. McKitrick, The Age of Federalism 64 (1993) (suggesting that "[t]he amount of attention and discussion given to the judiciary in the Constitutional Convention was only a fraction of that devoted to the executive and legislative branches," and that the Framers deliberately left many questions open for later resolution).

43. Regardless of its other faults, Chief Justice Taney's opinion in Dred Scott v. Sandford, 19 How. 393 (1857), recognized as a structural matter that

[t]he new government was not a mere change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and bound by all the obligations of the preceding one.

Id. at 441. See also F. McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 276 (1985) ("The constitutional reallocation of powers created a new form of government, unprecedented under the sun . . ."); S. Beer, To Make a Nation: The Rediscovery of American Federalism 150-151 (1993) (American view of sovereignty was "radically different" from that of British tradition).

44. Cf., e.g., 1 W. Blackstone, Commentaries 49, 160-162 (Cooper, ed., 1803). This modern notion of sovereignty is traceable to the writings of Jean Bodin in the late 16th century. See J. Bodin, Six Books of the Commonwealth, bk. 2, ch. I at 52-53 (M. Tooley, abr. & trans. 1967) (1576); see also T. Hobbes, Leviathan, Part II, ch. 29, at 150-151 (N. Fuller, ed. 1952) (1651).

45. See Wood 530 (noting that James Wilson "[m]ore boldly and fully than anyone else . . . developed the argument that would eventually become the basis of all Federalist thinking" about sovereignty); see also The Federalist No. 22 at 146 (A. Hamilton) (acknowledging the People as "that pure original fountain of all legitimate authority"); id. No. 49 at 339 (J. Madison) ("the people are the only legitimate fountain of power").

46. See also U.S. Term Limits, Inc. v. Thornton, 514 U.S. ___, ___ (1995) (KENNEDY, J., concurring) (the Constitution "created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it").

47. See Amar, 96 Yale L.J. at 1434-1435 ("The ultimate American answer [to the British notion that the sovereign was by definition above the law], in part, lay in a radical redefinition of governmental ‘sovereignty.' Just as a corporation could be delegated limited sovereign privileges by the King-in-Parliament, so governments could be delegated limited powers to govern. Within the limitations of their charters, governments could be sovereign, but that sovereignty could be bounded by the terms of the delegation itself").

48. See, e.g., Amar, supra at 1436 ("By thus relocating true sovereignty in the People themselves . . . Americans domesticated government power and decisively repudiated British notions of ‘sovereign' governmental omnipotence"). That this repudiation extended to traditional principles of sovereign immunity is clear from Justice Wilson's opinion in Chisholm, in which he blasted "the haughty notions of state independence, state sovereignty and state supremacy" as allowing "the state [to] assum[e] a supercilious preeminence above the people who have formed it." 2 Dall. at 461.

49. See also Hobbes, supra at 130 ("The sovereign of a Commonwealth, be it an assembly or one man, is not subject to the civil laws. . . . For he is free that can be free when he will: nor is it possible for any person to be bound to himself, because he that can bind can release; and therefore he that is bound to himself only is not bound."); Bodin, supra at 28-29 ("One may be subject to laws made by another, but it is impossible to bind oneself in any matter which is the subject of one's own free exercise of will. . . . It follows of necessity that the king cannot be subject to his own laws").

50. See also Wood 466 ("[O]nce men grasped, as they increasingly did in the middle [1780's], that reform of the national government was the best means of remedying the evils caused by the state governments, then the revision of the Articles of Confederation assumed an impetus and an importance that it had not had a few years earlier").

51. Cf. Jay I at 1033-1034 ("English common law might afford clues to the meaning of some terms in the Constitution, but the absence of any close federal model was recognized even at the Convention"); F. Coker, Commentary, in R. Pound, C. McIlwain, & R. Nichols, Federalism as a Democratic Process 81-82 (1942).

52. See, e.g., Prout v. Starr, 188 U.S. 537, 543 (1903) (acknowledging the immunity recognized in Hans and other cases, but observing that "[i]t would, indeed, be most unfortunate if the immunity of the individual States from suits by citizens of other States, provided for in the 11th Amendment, were to be interpreted as nullifying those other provisions which confer power on Congress . . . all of which provisions existed before the adoption of the Eleventh Amendment, which still exist, and which would be nullified and made of no effect, if the judicial power of the United States could not be invoked to protect citizens affected by the passage of state laws disregarding these constitutional limitations. . ."). The majority contends that state compliance with federal law may be enforced by other means, ante at ___, n. 14 but its suggestions are all pretty cold comfort: the enforcement resources of the Federal Government itself are limited; appellate review of state court decisions is contingent upon state consent to suit in state court, and is also called into question by the majority's rationale, see supra at ___; and the Court's decision today illustrates the uncertainty that the Court will always permit enforcement of federal law by suits for prospective relief against state officers. Moreover, the majority's position ignores the importance of citizen suits to enforcement of federal law. See, e.g., Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 263 (1975) (acknowledging that, in many instances, "Congress has opted to rely heavily on private enforcement to implement public policy"); see also S.Rep. No. 94-1011, p. 2 (Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988) (recognizing that "[a]ll of these civil rights laws depend heavily upon private enforcement"); Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 737 (1987) (Blackmun, J., dissenting) (noting importance of citizens' suits under federal environmental laws).

53. The Court's further assertion, that "Congress itself waited nearly a century before even conferring federal question jurisdiction on the lower federal courts," ante at ___, is simply incorrect. As I have noted, numerous early statutes conferred federal question jurisdiction on the federal courts operating under the original Judiciary Act in particular kinds of cases, and the Judiciary Act of 1800 provided for general federal question jurisdiction in the brief period before its repeal in 1801. See supra, n. 12.

54. Considering the example of Massachusetts, Professor Nelson observes that

the clearest illustration that legislation was coming to rest on the arbitrary power of a majoritarian legislature rather than on its conformity with past law and principle was the ease with which statutes altering common law rights were enacted and repealed in the 1780s in response to changing election results.

Nelson, Americanization of the Common Law at 91-92.

55. See also Del.Const. Art. 25 (1776), in 2 Swindler, Sources and Documents of United States Constitutions at 203 ("The common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution . . ."); Act of Feb. 25, 1784, in 1 First Laws of the State of Georgia 290 (1981) (declaring "the common laws of England" to be "in full force" "so far as they are not contrary to the constitution, laws and form of government now established in this State"); Mass.Const., Ch. VI, Art. VI (1780), in 5 Swindler, supra at 108 ("All the laws which have heretofore been adopted, used, and approved in the province, colony, or State of Massachusetts Bay . . . shall still remain and be in full force, until altered or repealed by the legislature . . ."); Commonwealth v. Churchill, 2 Met. 118, 123-124 (Mass. 1840) (Shaw, C.J.) (construing "laws" in this provision to include common law); N.H.Const., Part II (1784), in 6 Swindler, supra at 356 ("All the laws which have heretofore been adopted, used and approved, in the province, colony, or state of New Hampshire . . . shall remain and be in full force, until altered and repealed by the legislature . . ."); N.C.Laws 1778, Ch. V, in 1 First Laws of the State of North Carolina 353 (1984) ("[A]ll . . . such Parts of the Common Law, as were heretofore in Force and Use within this Territory . . . as are not destructive of, repugnant to, or inconsistent with the Freedom and Independence of this State, and the Form of Government therein established, and which have not been otherwise provided for, . . . not abrogated, repealed, expired, or become obsolete, are hereby declared to be in full Force within this State"); N.Y.Const., Art. 500V (1777), in 7 Swindler, supra at 177-178 ("[S]uch parts of the common law of England . . . as together did form the law of the said colony [of New York] on [April 19, 1775], shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same"); R.I.Digest of 1766, quoted in 1 R. Powell & P. Rohan, Powell On Real Property ¶ 62, p. 212 (1995) ("[I]n all actions, causes, matters and things whatsoever, where there is no particular law of this colony, or act of parliament . . . then and in such cases the laws of England shall be in force for the decision and determination of the same"); 2 T. Cooper, Statutes at Large of South Carolina 413 (1837) (Act of Dec. 12, 1712, §  V) (receiving "the Common Law of England, where the same is not . . . inconsistent with the particular constitutions, customs and laws of this Province"); S.C.Const., Art. VII (1790), in 8 Swindler, supra at 480 ("All laws of force in this State at the passing of this constitution shall so continue, until altered or repealed by the legislature . . ."); W. Slade, Vermont State Papers 450 (1823) (Act of June 1782) (adopting "so much of the common law of England, as is not repugnant to the constitution or to any act of the legislature of this State"); Act of May 6, 1776, Ch. V, § VI, in First Laws of the State of Virginia 37 (1982) ("the common law of England . . . shall be the rule of decision, and shall be considered as in full force, until the same shall be altered by the Legislative power of this colony").

Connecticut, which did not enact any reception statute or constitutional provision, adopted the common law by judicial decision insofar as it was appropriate for local conditions. See 1 Powell & Rohan, supra, ¶ 52 at 140-141, and n.77; Hall, 4 Vand.L.Rev. at 800; Fitch v. Brainerd, 2 Day 163 (Conn. 1805). Maryland's position appears to have been articulated in an oath prescribed by the Assembly in 1728 for justices of the Provincial Court. The oath required that the justices act

according to the Laws, Customs, and Directions of the Acts of Assembly of this Province; and where they are silent, according to the Laws, Statutes, and reasonable Customs of England, as have been used and practiced in this Province. . . .

M. Andrews, History of Maryland 227 (1929). Finally, although Pennsylvania's reception statute did not state that the common law could be altered by legislative enactment in so many words, it may be read as assuming the primacy of legislative enactments, see 9 Statutes at Large of Pennsylvania 29-30 (Mitchell & Flanders eds. 1903) (Act of Jan. 28, 1777) (declaring prior acts of the general assembly to still be in force, as well as "the common law and such of the statute laws of England as have heretofore been in force in the said province . . ."), and the state Assembly seems to have believed it had the power to depart from common law even prior to independence. See Warren, History of the American Bar at 103; cf. Kirk v. Dean, 2 Binn. 341, 345 (Pa. 1810) (interpreting the state constitution as permitting departures from common law rules where local circumstances required it).

56. It bears emphasis that, in providing for statutory alteration of the common law, the new States were in no way departing from traditional understandings. It is true that the colonial charters had generally rendered colonial legislation void to the extent that it conflicted with English common law, but this principle was simply indicative of the colonies' legal subjugation to the mother country and, in any event, seldom enforced in practice. See Stoebuck, 10 Wm. & Mary L.Rev. at 396-398, 419-420. The traditional conception of the common law as it developed in England had always been that it was freely alterable by statute. T. Plucknett, A Concise History of the Common Law 336-337 (5th ed. 1956); see also T. Plucknett, Statutes and Their Interpretation in the First Half of the Fourteenth Century 26-31 (1922) (finding no historical support for the claim that common law was "fundamental" or otherwise superior to statues). Coke appears to have attempted at one time to establish a paramount common law, see, e.g., Dr. Bonham's Case, 8 Co.Rep. 107a, 118a, 77 Eng.Rep. 638, 652 (C.P. 1610), but that attempt never took root in England. See Plucknett, Concise History of the Common Law, supra at 337; Jones 130; J. Gough, Fundamental Law in English Constitutional History 202 (1955) (observing that. "[b]y the nineteenth century, the overriding authority of statute law had become the accepted principle in the courts"). And although Coke's dictum was to have a somewhat greater influence in America, that influence took the form of providing an early foundation for the idea that courts might invalidate legislation that they found inconsistent with a written constitution. See Jones 130-132; Gough, supra at 206-207 (noting that Coke's view of fundamental law came to be transformed and subsumed in American practice by treatment of the written constitution as fundamental law in the exercise of judicial review). As I demonstrate infra, the idea that legislation may be struck down based on principles of common law or natural justice not located within the constitutional text has been squarely rejected in this country. See infra at ___.

57. See also 3 Elliot's Debates 469-470 (Edmund Randolph, Virginia Convention) (arguing that constitutional incorporation of the common law would be "destructive to republican principles"). Indeed, one reason for Madison's suspicion of the common law was that it included "a thousand heterogeneous & anti-republican doctrines." Letter from Madison to Washington (Oct. 18, 1787), reprinted in 3 Farrand 130, App. A. "[I]t will merit the most profound consideration," Madison was later to warn in his Report on the Virginia Resolutions Concerning the Alien and Sedition Laws, "how far an indefinite admission of the common law . . . might draw after it the various prerogatives making part of the unwritten law of England." Alien and Sedition Laws 380. Such an admission, Madison feared, would mean that "the whole code, with all its incongruities, barbarisms, and bloody maxims, would be inviolably saddled on the good people of the United States." Ibid. See also Amar, 96 Yale L.J. 1490 ("[The] sole basis [of absolute government immunity from all suits] is the British idea that the sovereign government, as the source of all law, cannot itself be bound by any law absent its consent. . . . [L]iterally every article of the Federalist Constitution and every amendment in the Bill of Rights rests on the repudiation of the British view").

58. See Wood 304, n. 75 ("To Jefferson in 1785 judicial discretion in the administration of justice was still the great evil and codification the great remedy"); G. White, The Marshall Court and Cultural Change, 1815-1835, p. 130 (1991) ("[A]n assumption of the constitutional design was that if Congress exercised [its enumerated] powers through legislation, its laws would supersede any competing ones").

59. The Court attempts to sidestep this history by distinguishing sovereign immunity as somehow different from other common law principles. Ante at ___. But see Chisholm v. Georgia, 2 Dall. at 435 (Iredell, J., dissenting) (arguing that the common law of England should control the case "so far as it is applicable to the peculiar circumstances of the country, and where no special act of Legislation controls it"). The Court cannot find solace in any distinction between "substantive rules of law" and "jurisdiction," ante at ___, however; it is abundantly clear that we have drawn both sorts of principles from the common law. See, e.g., Burnham v. Superior Court of Cal., County of Marin, 495 U.S. 604, 609 (1990) (plurality opinion of SCALIA, J.) (noting that American notion of personal jurisdiction is a "common law principle" that predates the Fourteenth Amendment). Nothing in the history, moreover, suggests that common law rules were more immutable when they were jurisdictional rather than substantive in nature. Nor is it true that

the principle of state sovereign immunity stands distinct from other principles of the common law in that only the former prompted a specific constitutional amendment.

Ante at ___. The Seventh Amendment, after all, was adopted to respond to Antifederalist concerns regarding the right to jury trial. See supra at n. 34. Indeed, that amendment vividly illustrates the distinction between provisions intended to adopt the common law (the amendment specifically mentions the "common law" and states that the common law right "shall be preserved") and those provisions, like the Eleventh Amendment, that may have been inspired by a common law right but include no language of adoption or specific reference. Finally, the Court's recourse to a vague "jurisprudence in all civilized nations," ante at ___, rather than the common law of England, is unavailing. When the Constitution has received such general principles into our law, for example, in the Admiralty Clause's adoption of the general "law of nations" or "law of the sea," those principles have always been subject to change by congressional enactment. See, e.g., Panama R. Co. v. Johnson, 264 U.S. 375, 386 (1924) (noting that although "the principles of the general maritime law, sometimes called the law of the sea" were "embodied" in Art. III, § 2 of the Constitution, they remained "subject to power in Congress to alter, qualify or supplement"); The Nereide, 9 Cranch 388, 423 (1815) (Marshall, C.J.) (stating that the Court would be "bound by the law of nations" until Congress passed a contrary enactment).

60. Cf. United States v. Lopez, 514 U.S. ___, ___ (1995) (SOUTER, J., dissenting) ("The fulcrums of judicial review in [the Lochner cases] were the notions of liberty and property characteristic of laissez faire economics, whereas the Commerce Clause cases turned on what was ostensibly a structural limit of federal power, but under each conception of judicial review the Court's character for the first third of the century showed itself in exacting judicial scrutiny of a legislature's choice of economic ends and of the legislative means selected to reach them").

61. The Court accuses me of misrepresenting its argument. Ante at ___, n. 17. The Court's claim, as I read it, is not that Congress cannot authorize federal jurisdiction under Ex parte Young over a cause of action with a limited remedial scheme, but rather that remedial limitations on the underlying cause of action do not apply to a claim based on Ex parte Young. Otherwise, the existence of those remedial limitations would provide no reason for the Court to assume that Congress did not intend to permit an action under Young; rather, the limitations would apply regardless of whether the suit was brought against the State or a state officer.

62. See also Brennan v. Stewart, 834 F.2d 1248, 1252, n.6 (CA5 1988) ("[A]lthough not usually conceptualized as Ex parte Young cases, most of the huge number of habeas claims in the federal courts under 28 U.S.C. §  2254 are effectively suits against the states. These suits pass muster under the Eleventh Amendment because the habeas theory of a civil suit against the bad jailer fits perfectly with the Ex parte Young fiction"); United States ex. rel. Elliott v. Hendricks, 213 F.2d 922, 926-928 (CA3) (exercising jurisdiction over a habeas suit despite an Eleventh Amendment challenge on the theory that the suit was against a state officer), cert. denied, 348 U.S. 851 (1954).

63. Many other federal statutes impose obligations on state officials, the enforcement of which is subject to "intricate provisions" also statutorily provided. See, e.g., Federal Water Pollution Control Act, 33 U.S.C. § 1365(a) (citizen suit provision to enforce states' obligations under federal environmental law); Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 11001 (privately enforceable requirement that states form commissions, appointed by the Governor, to generate plans for addressing hazardous material emergencies).

64. In order for any person (whether individual or entity) to be a proper defendant under § 2710(d)(7) (and in order for standing to exist, since one of its requirements is redressability), that person, of course, would need to have some connection to the State's negotiations. See Young, 209 U.S. at 157; Franklin v. Massachusetts, 505 U.S. 788, 803 (1992). The obvious candidates are the responsible state officials.

65. The scope of the Tenth Amendment's limitations of congressional power remains a subject of debate. New York v. United States, 505 U.S. 144 (1992), holds that principles of federalism are "violated by a formal command from the National Government directing the State to enact a certain policy." United States v. Lopez, 514 U.S. ___, ___ (1995) (KENNEDY, J., concurring). Some suggest that the prohibition extends further than barring the federal government from directing the creation of state law. The views I express today should not be understood to take a position on that disputed question.

66. See also The Federalist No. 46, supra at 319 (J. Madison) (explaining that the Federal Government "will partake sufficiently of the spirit [of the States], to be disinclined to invade the rights of the individual States, or the prerogatives of their governments"); Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum.L.Rev. 543 (1954).