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aldin v maine
Souter, J., dissenting
SUPREME COURT OF THE UNITED STATES

No. 98—436
JOHN H. ALDEN, et al., PETITIONERS v. MAINE
ON WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT OF MAINE
[June 23, 1999]
    Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting.
    In Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), a majority of this Court invoked the Eleventh Amendment to declare that the federal judicial power under Article III of the Constitution does not reach a private action against a State, even on a federal question. In the Court’s conception, however, the Eleventh Amendment was understood as having been enhanced by a “background principle” of state sovereign immunity (understood as immunity to suit), see id., at 72, that operated beyond its limited codification in the Amendment, dealing solely with federal citizen-state diversity jurisdiction. To the Seminole Tribe dissenters, of whom I was one, the Court’s enhancement of the Amendment was at odds with constitutional history and at war with the conception of divided sovereignty that is the essence of American federalism.
    Today’s issue arises naturally in the aftermath of the decision in Seminole Tribe. The Court holds that the Constitution bars an individual suit against a State to enforce a federal statutory right under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq. (1994 ed. and Supp. III), when brought in the State’s courts over its objection. In thus complementing its earlier decision, the Court of course confronts the fact that the state forum renders the Eleventh Amendment beside the point, and it has responded by discerning a simpler and more straightforward theory of state sovereign immunity than it found in Seminole Tribe: a State’s sovereign immunity from all individual suits is a “fundamental aspect” of state sovereignty “confirm[ed]” by the Tenth Amendment. Ante, at 2, 3. As a consequence, Seminole Tribe’s contorted reliance on the Eleventh Amendment and its background was presumably unnecessary; the Tenth would have done the work with an economy that the majority in Seminole Tribe would have welcomed. Indeed, if the Court’s current reasoning is correct, the Eleventh Amendment itself was unnecessary. Whatever Article III may originally have said about the federal judicial power, the embarrassment to the State of Georgia occasioned by attempts in federal court to enforce the State’s war debt could easily have been avoided if only the Court that decided Chisholm v. Georgia, 2 Dall. 419 (1793), had understood a State’s inherent, Tenth Amendment right to be free of any judicial power, whether the court be state or federal, and whether the cause of action arise under state or federal law.
    The sequence of the Court’s positions prompts a suspicion of error, and skepticism is confirmed by scrutiny of the Court’s efforts to justify its holding. There is no evidence that the Tenth Amendment constitutionalized a concept of sovereign immunity as inherent in the notion of statehood, and no evidence that any concept of inherent sovereign immunity was understood historically to apply when the sovereign sued was not the font of the law. Nor does the Court fare any better with its subsidiary lines of reasoning, that the state-court action is barred by the scheme of American federalism, a result supposedly confirmed by a history largely devoid of precursors to the action considered here. The Court’s federalism ignores the accepted authority of Congress to bind States under the FLSA and to provide for enforcement of federal rights in state court. The Court’s history simply disparages the capacity of the Constitution to order relationships in a Republic that has changed since the founding.
    On each point the Court has raised it is mistaken, and I respectfully dissent from its judgment.
I
    The Court rests its decision principally on the claim that immunity from suit was “a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution,” ante, at 2, an aspect which the Court understands to have survived the ratification of the Constitution in 1788 and to have been “confirm[ed]” and given constitutional status, ante, at 3, by the adoption of the Tenth Amendment in 1791. If the Court truly means by “sovereign immunity” what that term meant at common law, see ante, at 25, its argument would be insupportable. While sovereign immunity entered many new state legal systems as a part of the common law selectively received from England, it was not understood to be indefeasible or to have been given any such status by the new National Constitution, which did not mention it. See Seminole Tribe, supra, at 132—142, 160—162, and n. 55 (Souter, J., dissenting). Had the question been posed, state sovereign immunity could not have been thought to shield a State from suit under federal law on a subject committed to national jurisdiction by Article I of the Constitution. Congress exercising its conceded Article I power may unquestionably abrogate such immunity. I set out this position at length in my dissent in Seminole Tribe and will not repeat it here.
    The Court does not, however, offer today’s holding as a mere corollary to its reasoning in Seminole Tribe, substituting the Tenth Amendment for the Eleventh as the occasion demands, and it is fair to read its references to a “fundamental aspect” of state sovereignty as referring not to a prerogative inherited from the Crown, but to a conception necessarily implied by statehood itself. The conception is thus not one of common law so much as of natural law, a universally applicable proposition discoverable by reason. This, I take it, is the sense in which the Court so emphatically relies on Alexander Hamilton’s reference in The Federalist No. 81 to the States’ sovereign immunity from suit as an “inherent” right, see ante, at 6, a characterization that does not require, but is at least open to, a natural law reading.
    I understand the Court to rely on the Hamiltonian formulation with the object of suggesting that its conception of sovereign immunity as a “fundamental aspect” of sovereignty was a substantially popular, if not the dominant, view in the periods of Revolution and Confederation. There is, after all, nothing else in the Court’s opinion that would suggest a basis for saying that the ratification of the Tenth Amendment gave this “fundamental aspect” its constitutional status and protection against any legislative tampering by Congress.2 The Court’s principal rationale for today’s result, then, turns on history: was the natural law conception of sovereign immunity as inherent in any notion of an independent State widely held in the United States in the period preceding the ratification of 1788 (or the adoption of the Tenth Amendment in 1791)?
    The answer is certainly no. There is almost no evidence that the generation of the Framers thought sovereign immunity was fundamental in the sense of being unalterable. Whether one looks at the period before the framing, to the ratification controversies, or to the early republican era, the evidence is the same. Some Framers thought sovereign immunity was an obsolete royal prerogative inapplicable in a republic; some thought sovereign immunity was a common-law power defeasible, like other common-law rights, by statute; and perhaps a few thought, in keeping with a natural law view distinct from the common-law conception, that immunity was inherent in a sovereign because the body that made a law could not logically be bound by it. Natural law thinking on the part of a doubtful few will not, however, support the Court’s position.
A
    The American Colonies did not enjoy sovereign immunity, that being a privilege understood in English law to be reserved for the Crown alone; “antecedent to the Declaration of Independence, none of the colonies were, or pretended to be, sovereign states,” 1 J. Story, Commentaries on the Constitution §207, p. 149 (5th ed. 1891). Several colonial charters, including those of Massachusetts, Connecticut, Rhode Island, and Georgia, expressly specified that the corporate body established thereunder could sue and be sued. See 5 Sources and Documents of United States Constitutions 36 (W. Swindler ed. 1975) (Massachusetts); 2 id., at 131 (Connecticut); 8 id., at 363 (Rhode Island); 2 id., at 434 (Georgia). Other charters were given to individuals, who were necessarily subject to suit. See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1897 (1983). If a colonial lawyer had looked into Blackstone for the theory of sovereign immunity, as indeed many did, he would have found nothing clearly suggesting that the Colonies as such enjoyed any immunity from suit. “[T]he law ascribes to the king the attribute of sovereignty, or pre-eminence,” said Blackstone, 1 W. Blackstone, Commentaries *241 (hereinafter Blackstone), and for him, the sources for this notion were Bracton and Acts of Parliament that declared the Crown imperial. Id., at *241—*242. It was simply the King against whom “no suit or action can be brought … even in civil matters, because no court can have jurisdiction over him.” Id., at *242. If a person should have “a just demand upon the king, he must petition him in his court of chancery, where his chancellor will administer right as a matter of grace though not upon compulsion.” Id., at *243.
    It is worth pausing here to note that after Blackstone had explained sovereign immunity at common law, he went on to say that the common-law tradition was compatible with sovereign immunity as discussed by writers on “natural law”:
“And this is entirely consonant to what is laid down by the writers on natural law. ‘A subject,’ says Puffendorf, ‘so long as he continues a subject, hath no way to oblige his prince to give him his due, when he refuses it; though no wise prince will ever refuse to stand to a lawful contract. And, if the prince gives the subject leave to enter an action against him, upon such contract, in his own courts, the action itself proceeds rather upon natural equity, than upon the municipal laws.’ For the end of such action is not to compel the prince to observe the contract, but to persuade him.” Ibid. (footnote omitted).
Next Blackstone quoted Locke’s explanation for immunity, according to which the risks of overreaching by “ ‘a heady prince’ ” are “ ‘well recompensed by the peace of the public and security of the government, in the person of the chief magistrate, being thus set out of the reach of danger.’ ” Ibid. (quoting J. Locke, Second Treatise of Civil Government §205 (1690 J. Gough ed. 1947)). By quoting Pufendorf and Locke, Blackstone revealed to his readers a legal-philosophical tradition that derived sovereign immunity not from the immemorial practice of England but from general theoretical principles. But although Blackstone thus juxtaposed the common-law and natural law conceptions of sovereign immunity, he did not confuse them. It was as well he did not, for although the two conceptions were arguably “consonant” in England, where according to Blackstone, the Crown was sovereign, their distinct foundations could make a difference in America, where the location of sovereignty was an issue that independence would raise with some exigence.
B
    Starting in the mid-1760’s, ideas about sovereignty in colonial America began to shift as Americans argued that, lacking a voice in Parliament, they had not in any express way consented to being taxed. See B. Bailyn, The Ideological Origins of the American Revolution 204—219 (1968); G. Wood, The Creation of the American Republic, 1776—1787, pp. 347—348 (1969). The story of the subsequent development of conceptions of sovereignty is complex and uneven; here, it is enough to say that by the time independence was declared in 1776, the locus of sovereignty was still an open question, except that almost by definition, advocates of independence denied that sovereignty with respect to the American Colonies remained with the King in Parliament.
    As the concept of sovereignty was unsettled, so was that of sovereign immunity. Some States appear to have understood themselves to be without immunity from suit in their own courts upon independence. Connecticut and Rhode Island adopted their pre-existing charters as constitutions, without altering the provisions specifying their suability. See Gibbons, 83 Colum. L. Rev., at 1898, and nn. 42—43. Other new States understood themselves to be inheritors of the Crown’s common-law sovereign immunity and so enacted statutes authorizing legal remedies against the State parallel to those available in England. There, although the Crown was immune from suit, the contemporary practice allowed private litigants to seek legal remedies against the Crown through the petition of right or the monstrans de droit in the Chancery or Exchequer. See 3 Blackstone *256—257. A Virginia statute provided:
    “Where the auditors according to their discretion and judgment shall disallow or abate any article of demand against the commonwealth, and any person shall think himself aggrieved thereby, he shall be at liberty to petition the high court of chancery or the general court, according to the nature of his case, for redress, and such court shall proceed to do right thereon; and a like petition shall be allowed in all other cases to any other person who is entitled to demand against the commonwealth any right in law or equity.” 9 W. Hening, Statutes at Large: Being a Collection of the Laws of Virginia 536, 540 (1821); see Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U. L. Rev. 899, 939—940, and n. 142 (1997).
This “petition” was clearly reminiscent of the English petition of right, as was the language “shall proceed to do right thereon,” which paralleled the formula of royal approval, “soit droit fait al partie,” technically required before a petition of right could be adjudicated. See 3 Blackstone *256; Pfander, supra, at 940, and nn. 143—144. A New York statute similarly authorized petition to the court of chancery by anyone who thought himself aggrieved by the state auditor general’s resolution of his account with the State. See An Act Directing a Mode for the Recovery of Debts due to, and the Settlement of Accounts with this State, March 30, 1781, in The First Laws of the State of New York 192 (1782 ed., reprinted 1984); see also Pfander, supra, at 941, and n. 145.
    Pennsylvania not only adopted a law conferring the authority to settle accounts upon the Comptroller General, see Act of Apr. 13, 1782, ch. 959, 2 Laws of the Commonwealth of Pennsylvania 19 (1810), but in 1785 provided for appeal from such adjudications to the Pennsylvania Supreme Court, where a jury trial could be had, see id., at 26—27; Pfander, supra, at 941, n. 147. Although in at least one recorded case before the Pennsylvania Supreme Court the Commonwealth, citing Blackstone, pleaded common-law sovereign immunity, see Respublica v. Sparhawk, 1 Dall. 357, 363 (Pa. 1788), the Supreme Court of Pennsylvania did not reach this argument, concluding on other grounds that it lacked jurisdiction. Two years after this decision, under the influence of James Wilson, see C. Jacobs, The Eleventh Amendment and Sovereign Immunity 25, and 169, n. 53 (1972), Pennsylvania adopted a new constitution, which provided that “[s]uits may be brought against the commonwealth in such manner, in such courts, and in such cases as the legislature may by law direct.” Pa. Const., Art. IX, §11 (1790), reprinted in 8 Sources and Documents of United States Constitutions, at 293; see also Pfander, supra, at 928, n. 101.
    Around the time of the Constitutional Convention, then, there existed among the States some diversity of practice with respect to sovereign immunity; but despite a tendency among the state constitutions to announce and declare certain inalienable and natural rights of men and even of the collective people of a State, see, e.g., Pennsylvania Constitution, Art. III (1776), 8 Sources and Documents of United States Constitutions, supra, at 278 (“That the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same”), no State declared that sovereign immunity was one of those rights. To the extent that States were thought to possess immunity, it was perceived as a prerogative of the sovereign under common law. And where sovereign immunity was recognized as barring suit, provisions for recovery from the State were in order, just as they had been at common law in England.
C
    At the Constitutional Convention, the notion of sovereign immunity, whether as natural law or as common law, was not an immediate subject of debate, and the sovereignty of a State in its own courts seems not to have been mentioned. This comes as no surprise, for although the Constitution required state courts to apply federal law, the Framers did not consider the possibility that federal law might bind States, say, in their relations with their employees. In the subsequent ratification debates, however, the issue of jurisdiction over a State did emerge in the question whether States might be sued on their debts in federal court, and on this point, too, a variety of views emerged and the diversity of sovereign immunity conceptions displayed itself.
    The only arguable support for the Court’s absolutist view that I have found among the leading participants in the debate surrounding ratification was the one already mentioned, that of Alexander Hamilton in The Federalist No. 81, where he described the sovereign immunity of the States in language suggesting principles associated with natural law:
    “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 [that States might be sued on their debts in federal court] must be merely ideal. … 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, pp. 548—549 (J. Cooke ed. 1961).
Hamilton chose his words carefully, and he acknowledged the possibility that at the Convention the States might have surrendered sovereign immunity in some circumstances, but the thrust of his argument was that sovereign immunity was “inherent in the nature of sovereignty.” An echo of Pufendorf may be heard in his reference to “the conscience of the sovereign”; and the universality of the phenomenon of sovereign immunity, which Hamilton claimed (“the general sense and the general practice of mankind”), is a peculiar feature of the natural law conception. The apparent novelty and uniqueness of Hamilton’s employment of natural law terminology to explain the sovereign immunity of the States is worth remarking, because it stands in contrast to formulations indicating no particular position on the natural-law-versus-common-law origin, to the more widespread view that sovereign immunity derived from common law, and to the more radical stance that the sovereignty of the people made sovereign immunity out of place in the United States. Hamilton’s view is also worth noticing because, in marked contrast to its prominence in the Court’s opinion today, as well as in Seminole Tribe, 517 U.S., at 54, and in Hans v. Louisiana, 134 U.S. 1, 13 (1890), cf. Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 51 (1944), it found no favor in the early Supreme Court, see infra, at 21—22.
    In the Virginia ratifying convention, Madison was among those who debated sovereign immunity in terms of the result it produced, not its theoretical underpinnings. He maintained that “[i]t is not in the power of individuals to call any state into court,” 3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 533 (2d ed. 1836) (hereinafter Elliot’s Debates), and thought that the phrase “in which a State shall be a Party” in Article III, §2, must be interpreted in light of that general principle, so that “[t]he only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court.” Ibid. John Marshall argued along the same lines against the possibility of federal jurisdiction over private suits against States, and he invoked the immunity of a State in its own courts in support of his argument:
“I hope that no gentleman will think that a state will be called at the bar of the federal court. Is there no such case at present? Are there not many cases in which the legislature of Virginia is a party, and yet the state is not sued? It is not rational to suppose that the sovereign power should be dragged before a court.” Id., at 555.
    There was no unanimity among the Virginians either on state- or federal-court immunity, however, for Edmund Randolph anticipated the position he would later espouse as plaintiff’s counsel in Chisholm v. Georgia, 2 Dall. 419 (1793). He contented himself with agnosticism on the significance of what Hamilton had called “the general practice of mankind,” and argued that notwithstanding any natural law view of the nonsuability of States, the Constitution permitted suit against a State in federal court: “I think, whatever the law of nations may say, that any doubt respecting the construction that a state may be plaintiff, and not defendant, is taken away by the words where a state shall be a party.” 3 Elliot’s Debates 573. Randolph clearly believed that the Constitution both could and in fact by its language did trump any inherent immunity enjoyed by the States; his view on sovereign immunity in state court seems to have been that the issue was uncertain (“whatever the law of nations may say”).
    At the farthest extreme from Hamilton, James Wilson made several comments in the Pennsylvania Convention that suggested his hostility to any idea of state sovereign immunity. First, he responded to the argument that “the sovereignty of the states is destroyed” if they are sued by the United States, “because a suiter in a court must acknowledge the jurisdiction of that court, and it is not the custom of sovereigns to suffer their names to be made use of in this manner.” 2 id., at 490. For Wilson, “[t]he answer [was] plain and easy: the government of each state ought to be subordinate to the government of the United States.” Ibid. Wilson was also pointed in commenting on federal jurisdiction over cases between a State and citizens of another State: “When this power is attended to, it will be found to be a necessary one. Impartiality is the leading feature in this Constitution; it pervades the whole. 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.” Id., at 491. Finally, Wilson laid out his view that sovereignty was in fact not located in the States at all: “Upon what principle is it contended that the sovereign power resides in the state governments? The honorable gentleman has said truly, that there can be no subordinate sovereignty. Now, if there cannot, my position is, that the sovereignty resides in the people; they have not parted with it; they have only dispensed such portions of the power as were conceived necessary for the public welfare.” Id., at 443. While this statement did not specifically address sovereign immunity, it expressed the major premise of what would later become Justice Wilson’s position in Chisholm: that because the people, and not the States, are sovereign, sovereign immunity has no applicability to the States.
    From a canvass of this spectrum of opinion expressed at the ratifying conventions, one thing is certain. No one was espousing an indefeasible, natural law view of sovereign immunity. The controversy over the enforceability of state debts subject to state law produced emphatic support for sovereign immunity from eminences as great as Madison and Marshall, but neither of them indicated adherence to any immunity conception outside the common law.
D
    At the close of the ratification debates, the issue of the sovereign immunity of the States under Article III had not been definitively resolved, and in some instances the indeterminacy led the ratification conventions to respond in ways that point to the range of thinking about the doctrine. Several state ratifying conventions proposed amendments and issued declarations that would have exempted States from subjection to suit in federal court. The New York Convention’s statement of ratification included a series of declarations framed as proposed amendments, among which was one stating “That the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state.” 1 Elliot’s Debates 329. Whether that amendment was meant to alter or to clarify Article III as ratified is uncertain, but regardless of its precise intent, New York’s response to the draft proposed by the Convention of 1787 shows that there was no consensus at all on the question of state suability (let alone on the underlying theory of immunity doctrine). There was, rather, an unclear state of affairs which it seemed advisable to stabilize.
    The Rhode Island Convention, when it finally ratified on June 16, 1790, called upon its representatives to urge the passage of a list of amendments. This list incorporated language, some of it identical to that proposed by New York, in the following form:
    “It is declared by the Convention, that the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state; but, to remove all doubts or controversies respecting the same, that it be especially expressed, as a part of the Constitution of the United States, that Congress shall not, directly or indirectly, either by themselves or through the judiciary, interfere with any one of the states … in liquidating and discharging the public securities of any one state.” 1 id., at 336.
Even more clearly than New York’s proposal, this amendment appears to have been intended to clarify Article III as reflecting some theory of sovereign immunity, though without indicating which one.
    Unlike the Rhode Island proposal, which hinted at a clarification of Article III, the Virginia and North Carolina ratifying conventions proposed amendments that by their terms would have fundamentally altered the content of Article III. The Virginia Convention’s proposal for a new Article III omitted entirely the language conferring federal jurisdiction over a controversy between a State and citizens of another State, see 3 id., at 660—661, and the North Carolina Convention proposed an identical amendment, see 4 id., at 246—247. These proposals for omission suggest that the conventions of Virginia and North Carolina thought they had subjected themselves to citizen suits under Article III as enacted, and that they wished not to have done so. There is, thus, no suggestion in their resolutions that Article III as drafted was fundamentally at odds with an indefeasible natural law sovereignty, or with a conception that went to the essence of what it meant to be a State. At all events, the state ratifying conventions’ felt need for clarification on the question of state suability demonstrates that uncertainty surrounded the matter even at the moment of ratification. This uncertainty set the stage for the divergent views expressed in Chisholm.
E
    If the natural law conception of sovereign immunity as an inherent characteristic of sovereignty enjoyed by the States had been broadly accepted at the time of the founding, one would expect to find it reflected somewhere in the five opinions delivered by the Court in Chisholm v. Georgia, 2 Dall. 419 (1793). Yet that view did not appear in any of them. And since a bare two years before Chisholm, the Bill of Rights had been added to the original Constitution, if the Tenth Amendment had been understood to give federal constitutional status to state sovereign immunity so as to endue it with the equivalent of the natural law conception, one would be certain to find such a development mentioned somewhere in the Chisholm writings. In fact, however, not one of the opinions espoused the natural law view, and not one of them so much as mentioned the Tenth Amendment. Not even Justice Iredell, who alone among the Justices thought that a State could not be sued in federal court, echoed Hamilton or hinted at a constitutionally immutable immunity doctrine.
    Chisholm presented the questions whether a State might be made a defendant in a suit brought by a citizen of another State, and if so, whether an action of assumpsit would lie against it. See id., at 420 (questions presented). In representing Chisholm, Edmund Randolph, the Framer and then Attorney General, not only argued for the necessity of a federal forum to vindicate private rights against the States, see id., at 422, but rejected any traditional conception of sovereignty. He said that the sovereignty of the States, which he acknowledged, id., at 423, was no barrier to jurisdiction, because “the present Constitution produced a new order of things. It derives its origin immediately from the people … . The States are in fact assemblages of these individuals who are liable to process,” ibid.
    Justice Wilson took up the argument for the sovereignty of the people more vociferously. Building on a conception of sovereignty he had already expressed at the Pennsylvania ratifying convention, see supra, at 18—19, he began by noting what he took to be the pregnant silence of the Constitution regarding sovereignty:
    “To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established the Constitution. They might have announced themselves ‘SOVEREIGN’ people of the United States: But serenely conscious of the fact, they avoided the ostentatious declaration.” 2 Dall. at 454.
As if to contrast his own directness with the Framers’ delicacy, the Framer-turned-Justice explained in no uncertain terms that Georgia was not sovereign with respect to federal jurisdiction (even in a diversity case):
“As a Judge of this Court, I know, and can decide upon the knowledge, that the citizens of Georgia, when they acted upon the large scale of the Union, as a part of the ‘People of the United States,’ did not surrender the Supreme or Sovereign Power to that State; but, as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia is NOT a sovereign State.” Id., at 457.
This was necessarily to reject any natural law conception of sovereign immunity as inherently attached to an American State, but this was not all. Justice Wilson went on to identify the origin of sovereign immunity in the feudal system that had, he said, been brought to England and to the common law by the Norman Conquest. After quoting Blackstone’s formulation of the doctrine as it had developed in England, he discussed it in the most disapproving terms imaginable:
“This last position [that the King is sovereign and no court can have jurisdiction over him] is only a branch of a much more extensive principle, on which a plan of systematic despotism has been lately formed in England, and prosecuted with unwearied assiduity and care. Of this plan the author of the Commentaries was, if not the introducer, at least the great supporter. He has been followed in it by writers later and less known; and his doctrines have, both on the other and this side of the Atlantic, been implicitly and generally received by those, who neither examined their principles nor their consequences[.] The principle is, that all human law must be prescribed by a superior. This principle I mean not now to examine. Suffice it, at present to say, that another principle, very different in its nature and operations, forms, in my judgment, the basis of sound and genuine jurisprudence; laws derived from the pure source of equality and justice must be founded on the CONSENT of those, whose obedience they require. The sovereign, when traced to his source, must be found in the man.” Id., at 458.
With this rousing conclusion of revolutionary ideology and rhetoric, Justice Wilson left no doubt that he thought the doctrine of sovereign immunity entirely anomalous in the American Republic. Although he did not speak specifically of a State’s immunity in its own courts, his view necessarily requires that such immunity would not have been justifiable as a tenet of absolutist natural law.
    Chief Justice Jay took a less vehement tone in his opinion, but he, too, denied the applicability of the doctrine of sovereign immunity to the States. He explained the doctrine as an incident of European feudalism, id., at 471, and said that by contrast,
“[n]o such ideas obtain here; at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called) and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.” Id., at 471—472.
From the difference between the sovereignty of princes and that of the people, Chief Justice Jay argued, it followed that a State might be sued. When a State sued another State, as all agreed it could do in federal court, all the people of one State sued all the people of the other. “But why it should be more incompatible, that all the people of a State should be sued by one citizen, than by one hundred thousand, I cannot perceive, the process in both cases being alike; and the consequences of a judgment alike.” Id., at 473. Finally, Chief Justice Jay pointed out, Article III authorized suits between a State and citizens of another State. Although the Chief Justice reserved judgment on whether the United States might be sued by a citizen, given that the courts must rely on the Executive to implement their decisions, he made it clear that this reservation was practical, and not theoretical: “I wish the State of society was so far improved, and the science of Government advanced to such a degree of perfection, as that the whole nation could in the peaceable course of law, be compelled to do justice, and be sued by individual citizens.” Id., at 478. Although Chief Justice Jay did not speak specifically to the question of state sovereign immunity in state court, his theory shows that he considered not the States, but the people collectively, to be sovereign; and there is thus no reason to think he would have denied that the people of the Nation could override any state claim to sovereign immunity in a matter committed to the Nation.
    Justice Cushing’s opinion relied on the express language of Article III to hold that Georgia might be sued in federal court. He dealt shortly with the objection that States’ sovereignty would be thereby restricted so that States would be reduced to corporations: “As to corporations, all States whatever are corporations or bodies politic. The only question is, what are their powers?” Id., at 468. Observing that the Constitution limits the powers of the States in numerous ways, he concluded that “no argument of force can be taken from the sovereignty of States. Where it has been abridged, it was thought necessary for the greater indispensable good of the whole.” Ibid. From the opinion, it is not possible to tell with certainty what Justice Cushing thought about state sovereign immunity in state court, although his introductory remark is suggestive. The case, he wrote, “turns not upon the law or practice of England, although perhaps it may be in some measure elucidated thereby, nor upon the law of any other country whatever; but upon the Constitution established by the people of the United States.” Id., at 466. It is clear that he had no sympathy for a view of sovereign immunity inherent in statehood and untouchable by national legislative authority.
    Justice Blair, like Justice Cushing, relied on Article III, and his brief opinion shows that he acknowledged state sovereign immunity, but common-law immunity in state court. First, Justice Blair asked hypothetically whether a verdict against the plaintiff would be preclusive if the plaintiff “should renew his suit against the State, in any mode in which she may permit herself to be sued in her own Courts.” Id., at 452. Second, he commented that there was no need to require the plaintiff to proceed by way of petition:
“When sovereigns are sued in their own Courts, such a method may have been established as the most respectful form of demand; but we are not now in a State-Court; and if sovereignty be an exemption from suit in any other than the sovereign’s own Courts, it follows that when a State, by adopting the Constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty.” Ibid.
It is worth noting that for Justice Blair, the petition brought in state court was properly called a suit. This reflects the contemporary practice of his native Virginia, where, as we have seen, supra, at 10—11, suits as of right against the State were authorized by statute. Justice Blair called sovereignty “an exemption from suit in any other than the sovereign’s own Courts” because he assumed that, in its own courts, a sovereign will naturally permit itself to be sued as of right.
    Justice Iredell was the only Member of the Court to hold that the suit could not lie; but if his discussion was far-reaching, his reasoning was cautious. Its core was that the Court could not assume a waiver of the State’s common-law sovereign immunity where Congress had not expressly passed such a waiver. See 2 Dall., at 449 (dissenting opinion). Although Justice Iredell added, in what he clearly identified as dictum, that he was “strongly against” any construction of the Constitution “which will admit, under any circumstances, a compulsive suit against a State for the recovery of money,” ibid., he made it equally clear that he understood sovereign immunity as a common-law doctrine passed to the States with independence:
“No other part of the common law of England, it appears to me, can have any reference to this subject, but that part of it which prescribes remedies against the crown. Every State in the Union in every instance where its sovereignty has not been delegated to the United States, I consider to be as compleatly sovereign, as the United States are in respect to the powers surrendered. The 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. It must necessarily be so, because the United States have no claim to any authority but such as the States have surrendered to them: Of course the part not surrenderred must remain as it did before.” Id., at 435.
This did not mean, of course, that the States had not delegated to Congress the power to subject them to suit, but merely that such a delegation would have been necessary on Justice Iredell’s view.
    In sum, then, in Chisholm two Justices (Jay and Wilson), both of whom had been present at the Constitutional Convention, took a position suggesting that States should not enjoy sovereign immunity (however conceived) even in their own courts; one (Cushing) was essentially silent on the issue of sovereign immunity in state court; one (Blair) took a cautious position affirming the pragmatic view that sovereign immunity was a continuing common law doctrine and that States would permit suit against themselves as of right; and one (Iredell) expressly thought that state sovereign immunity at common-law rightly belonged to the sovereign States. Not a single Justice suggested that sovereign immunity was an inherent and indefeasible right of statehood, and neither counsel for Georgia before the Circuit Court, see supra, at 24, n. 21, nor Justice Iredell seems even to have conceived the possibility that the new Tenth Amendment produced the equivalent of such a doctrine. This dearth of support makes it very implausible for today’s Court to argue that a substantial (let alone a dominant) body of thought at the time of the framing understood sovereign immunity to be an inherent right of statehood, adopted or confirmed by the Tenth Amendment.
    The Court’s discomfort is evident in its obvious recognition that its natural law or Tenth Amendment conception of state sovereign immunity is insupportable if Chisholm stands. Hence the Court’s attempt to discount the Chisholm opinions, an enterprise in which I believe it fails.
    The Court, citing Hans v. Louisiana, 134 U.S. 1 (1890), says that the Eleventh Amendment “overruled” Chisholm, ante, at 12, but the animadversion is beside the point. The significance of Chisholm is its indication that in 1788 and 1791 it was not generally assumed (indeed, hardly assumed at all) that a State’s sovereign immunity from suit in its own courts was an inherent, and not merely a comon-law, advantage. On the contrary, the testimony of five eminent legal minds of the day confirmed that virtually everyone who understood immunity to be legitimate saw it as a common-law prerogative (from which it follows that it was subject to abrogation by Congress as to a matter within Congress’s Article I authority).
    The Court does no better with its trio of arguments to undercut Chisholm’s legitimacy: that the Chisholm majority “failed to address either the practice or the understanding that prevailed in the States at the time the Constitution was adopted,” ante, at 11; that “the majority suspected the decision would be unpopular and surprising,” ibid.; and that “two Members of the majority acknowledged that the United States might well remain immune from suit despite” Article III, ante, at 12. These three claims do not, of course, go to the question whether state sovereign immunity was understood to be “fundamental” or “inherent,” but in any case, none of them is convincing.
    With respect to the first, Justice Blair in fact did expressly refer to the practice of state sovereign immunity in state court, and acknowledged the petition of right as an appropriate and normal practice. This aside, the Court would have a legitimate point if it could show that the Chisholm majority took insufficient account of a body of practice that somehow indicated a widely held absolutist conception of state sovereign immunity untouchable and untouched by the Constitution. But of course it cannot.
    As for the second point, it is a remarkable doctrine that would hold anticipation of unpopularity the benchmark of constitutional error. In any event, the evidence proffered by the Court is merely this: that Justice Wilson thought the prerevolutionary conception of sovereignty misguided, 2 Dall., at 454—455; that Justice Cushing stated axiomatically that the Constitution could always be amended, id., at 468; that Chief Justice Jay noted that the losing defendant might still come to understand that sovereign immunity is inconsistent with republicanism, id., at 478—479; and that Attorney General Randolph admitted that the position he espoused was unpopular not only in Georgia, but also in another State, probably Virginia. These items boil down to the proposition that the Justices knew (as who could not, with such a case before him) that at the ratifying conventions the significance of sovereign immunity had been, as it still was, a matter of dispute. This reality does not detract from, but confirms, the view that the Framers showed no intent to recognize sovereign immunity as an immutably inherent power of the States.
    As to the third objection, that two Justices noted that the United States might possess sovereign immunity notwithstanding Article III, I explained, supra, at 28, that Chief Justice Jay thought this possibility was purely practical, not at all legal, and without any implication for state immunity vis-à-vis federal claims. Justice Cushing was so little troubled by the possibility he raised that he wrote, “If this be a necessary consequence, it must be so,” Chisholm, supra, at 469, and simply suggested a textual reading that might have led to a different consequence.
    Nor can the Court make good on its claim that the enactment of the Eleventh Amendment retrospectively reestablished the view that had already been established at the time of the framing (though eluding the perception of all but one Member of the Supreme Court), and hence “acted … to restore the original constitutional design,” ante, at 12. There was nothing “established” about the position espoused by Georgia in the effort to repudiate its debts, and the Court’s implausible suggestion to the contrary merely echoes the brio of its remark in Seminole Tribe that Chisholm was “contrary to the well-understood meaning of the Constitution.” 517 U.S., at 69 (citing Principality of Monaco v. Mississippi, 292 U.S. 313, 325 (1934)). The fact that Chisholm was no conceptual aberration is apparent from the ratification debates and the several state requests to rewrite Article III. There was no received view either of the role