*1 MAINE ALDEN al. et 23, 1999 June 31, 1999 March —Decided Argued 98-436. No. *4 Rehnquist, Court, which opinion Kennedy, J., delivered J., filed Souter, JJ., joined. Thomas, Scalia, O’Connor, J., and C. JJ., Breyer, Ginsburg, Stevens, opinion, dissenting 760. p. post, joined, With for petitioners. cause Gold argued Laurence L. Timothy Hiatt, P. Jonathan were briefs on him Shapiro. L. David Belcher, interve- cause argued Waxman General Solicitor Assistant were briefs *5 him With States. United nor Attorney Gen- Acting Assistant Hunger, Attorney General Irving L. Kneedler, General Solicitor Deputy Ogden, eral Gomstein, Mark B. Stern, Robert M. Loeb, Peter J. Smith, Allen H. Feldman, Nathaniel I. Spiller, Ellen L. Beard. Andrew Ketterer, Attorney General of Maine, argued cause for respondent. With him on the brief were Paul Stern, Deputy Attorney General, and Peter J. Brann, State Solicitor.* Kennedy
Justice delivered the opinion of the Court. In 1992, petitioners, a group of probation officers, filed suit their employer, the State of Maine, in the United States District Court for the District of Maine. The officers alleged the State had violated the overtime provisions of the Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1060, as
*Briefs of amid curiae urging reversal were filed for the Association of American Publishers, Inc., et al. by Charles S. Sims; and for the National Association of Police Organizations by Stephen R. McSpadden.
Briefs of amici curiae urging affirmance were filed for the Common- wealth of Kentucky by Stuart E. Ill; Alexander for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, and Andrew H. Baida and Michele J. McDonald, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Mark Pryor of Arkansas, Ken Salazar of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Jeffrey A. Modisett of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Thomas F. Reilly of Massachusetts, M. Granholm Jennifer of Michigan, Mike Moore of Mississippi, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Philip T. Mc- Laughlin of New Hampshire, Peter Verniero of New Jersey, Eliot Spitzer of New York, Heidi Heitkamp of North Dakota, W.A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Sheldon Whitehouse of Rhode Island, Charles M. Condon of South Caro- lina, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, John Cornyn of Texas, Jan Graham of Utah, William H. Sorrell of Vermont, Mark L. Earley of Virginia, Darrell V. McGraw of West Virginia, James E. Doyle of Wisconsin, and Guy Woodhouse of Wyoming; for the Home School Legal Defense Association by Michael P. Farris; for the Pacific Legal Foundation by M. Reed Hopper; and for the National Conference of State Legislatures et al. Richard Ruda and Richard H. Seamon.
712 Ill), Supp. (1994 and ed. seq. §201 et C. U. S. 29
amended, While damages. liquidated and compensation sought and Tribe Seminole of decided Court pending, suit the clear made (1996),which 44S.U. 517 Florida, v. Fla. States’ the abrogate I to Article under power lacks Congress prosecuted or commenced suits immunity from sovereign Tribe, of Seminole Upon consideration courts. the the and action, petitioners’ dismissed Court District the 37 3dF. 118 Maine, Mills affirmed. Appeals of Court state action same the filed then 1997). Petitioners (CA1 the basis the dismissed court trial state The court. Judicial Supreme Maine the immunity, and of (1998). 172 2dA. 715 affirmed. Court? conflicts decision Court’s Judicial Supreme Maine The Jacoby v. Arkansas, of Court Supreme of the decision the (1998), 773 2dW. S. 508, 962 Ark. Ed., 331 Dept. Arkansas provisions constitutionality of the the question into calls against actions private authorize to purporting FLSA consent, see regard for without courts own in their States importance light of 203(x). In 216(b), §§C. U. S. courts, we between conflict presented question States (1998). United The U. S. certiorari. granted statute. defend to petitioner as a intervened Ar- under Congress delegated powers holdWe include do Constitution States United I ticle for suits private nonconsenting States subject State well decide We courts. damages pay overtime suits consented has of Maine we premises these On FLSA. damages under liquidated suit. sustaining dismissal judgment affirm I reference explicit makes Amendment Eleventh The prosecuted or “commenced suits immunity from States’ State, another by Citizens United one of S.U. Foreign State.” any Subjects or by Citizens or Const., Amdt. 11. We have, as a result, sometimes referred to the States’ immunity from suit as “Eleventh Amendment immunity.” phrase is convenient shorthand but some *7 thing of a misnomer, for the sovereign immunity of the States neither derives from, nor is by, limited the terms of the Eleventh Amendment. Rather, as the Constitution’s structure, its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit.is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they (either retain today literally byor virtue of their admis sion into the upon Union an equal footing with the other States) except as by altered the plan of the Convention or certain constitutional Amendments.
A Although the Constitution establishes a National Govern ment with broad, often plenary authority over matters within recognized competence, the founding document “specifically recognizes the States as sovereign entities.” Seminole Tribe Fla. v. supra, Florida, at 71, n. 15;accord, v. Native Village Blatchford Noatak, 501 U. S. 775, (1991) (“[T]he States entered the system federal with their sovereignty intact”). Various provisions textual of the Con stitution assume the States’ continued existence and active participation in processes fundamental governance. See Printz v. United States, 521 (1997) U. 898, S. (citing Art. III, §2; Art. V). IV, §§2-4; Art. The limited and enu powers merated granted to the Legislative, Executive, and Judicial Branches of the National Government, moreover, underscore vital role reserved to the by States the con stitutional design, e.g., see, I, Art. §8; Art. II, §§2-3; Art. §2. III, Any doubt regarding the constitutional role of the States as sovereign entities is removed the Tenth Amend ment, which, like the provisions other of the Bill of Rights, was enacted to allay lingering concerns about the extent of promise confirms Amendment The power. national delegated powers “The document: original implicit prohibited nor Constitution, by the States United to the or respectively, States reserved are States, it to Priniz, also see 10; Amdt. Const., U. S. people.” to the S.U. States, 505 United York New 919; supra, at (1992). 156-159, pre- by our Constitution system established The ways. two States sovereign status
serves Na- portion substantial them it reserves First, es- dignity together sovereignty, primary tion’s “form status. inhering in attributes sential more no supremacy, theof portions independent distinct au- general spheres, respective their within subject, within them, subject to authority is *8 general thority than (C. Rossiter p. 245 39, No. Federalist The sphere.” own Madison). 1961)(J. ed. of competence within matters toas Second, even design secures constitutional Government, National central a concept of “the rejection generation’s founding States” through the upon act would government Govern Federal State system “aof favor people— authority over concurrent exercise would ments objects proper only ‘the words, Hamilton’s were, who Fed ” The (quoting 919-920 at supra, Printz, government.’ (“The supra, York, 109); New accord, 15, at No. eralist upon confers Constitution chose explicitly Framers States”). individuals, regulate Congress from departure deliberate achieved Founders In Articles under Experience Confederation: Articles laws, making “practicality hands” all “exploded had bodies.” political sanctions, coercive (M. Far p. 9 1787, Convention Federal 2 Records No. Federalist accord, Madison); (J. 1911) ed. rand Some Iredell: Hamilton); James A. (J. Madison Objections to the Constitution Answered, reprinted in 3 Annals of America (1976).
The States thus retain “a residuary and inviolable sover- eignty.” The Federalist No. 39, at 245. They are not rele- gated to the role of provinces mere political or corporations, but retain the dignity, though not the Ml authority, of sovereignty.
B
The generation that designed and adopted our
sys
tem considered immunity
private
suits central to sover
eign dignity. When the Constitution was ratified, it was
well established in English law that the Crown could not be
sued without consent in its own courts. See Chisholm v.
Georgia,
“And, first, the law ascribes to the king the attribute *9 sovereignty, pre-eminence. or . . . Hence it is, that no suit or action can be brought against the king, even in civil matters, because no court can jurisdiction have over him. For jurisdiction all implies superiority of power . . . .” 1 W. Blackstone, Commentaries on the Laws of England (1765). 234r-235 Although the people American rejected had other aspects of English political theory, the doctrine that a sovereign could not be sued without its consent was universal in the See ratified. and drafted was Constitution the when States (“I be dissenting) (Iredell, J., 434-435 supra, Chisholm, ques in now State the in neither doubt is no there lieve Legisla particular any Union, the in any other in tion, nor recovery of for the suit compulsory authorizing a mode, tive Consti the when being either inwas State, a money was act judicial the time at the or adopted, was tution (“The su (1890) 1, 16 S. 134 U. Louisiana, Hans passed”); thing unknown a consent, was without State, ability of acknowl and down laid often so been has This law. to necessary be to hardly isit jurists by courts edged asserted”). formally im- underscored furthermore, debates, ratification The American immunity sovereign the States' of portance of provisions by the raised were concerns Grave people. judicial federal extended III, which Article or States other of citizens States between controversies explained: weAs foreign nations. sovereign of doctrine “Unquestionably inde- days early of importance of a matter was heavily indebted were Many the States of pendence. vitally They were Revolutionary War. result newa the creation whether question interested auto- would own, its courts sovereign, suits lords, English lower them, like subject matically supra, Hall, sovereign.” ‘higher’ of the courts omitted). (footnote peo- assured the Constitution leading advocates would Constitution terms uncertain ple in no assurance immunity. One strip by Alexander written No. Federalist in The contained Hamilton: sovereignty nature is inherent “It its consent without individual of an
amenable practice general general sense is the This *10 mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by government every State in the Union. Unless, therefore, there is a surren- der of this immunity in plan of the convention, it will remain with the States and danger intimated must be merely [T]here ideal.. .. is no color to pretend that governments State would, the adoption of that plan, be divested of the privilege of paying their own debts in their way, own free from every constraint but that which flowsfrom the obligations good faith. The contracts between a nation and individuals only are binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They right confer no of action independent of the sovereign will. To what purpose would it be to authorize suits States for they debts owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting State; and to ascribe to the courts, mere implication, and in destruction of a preexisting right of the State governments, power which would involve such a consequence, would be alto- gether forced and unwarrantable.” (em- Id., at 487-488 phasis in original). At Virginia ratifying convention, James Madison echoed this theme: jurisdiction
“Its in controversies between a state and citizens of another state is objected much to, per- haps without reason. It is not in of individu- als to any call state into court....
“. . . It appears to me that this [clause] can have no operation but give this —to a citizen a right to be heard in the federal courts; and if a state should condescend to be a party, this court may cognizance take of it.” 8 Debates on the Federal (J. Constitution 533 Elliot 2d 1854)(hereinafter ed. Debates). Elliot’s *11 Marshall John questioned, explanation Madison’s When support: immediate provided cit- state a between disputes to respect “With decried been has jurisdiction state, its another
izens of will gentleman hope no I vehemence. unusual bar at called bewill state a that think not there Are present? ease such no there Is court. ais Virginia legislature which in many cases rational not is It sued? not is state yet party, and dragged be should power sovereign suppose to re- states enable is, intent The court. a before I states. other residing in individuals claims cover words. by the warranted is construction contend state a it if in partiality bewill they, there say But, so, be necessary to isIt defendant.... be cannot state making a difficulty in a I see avoided. cannot plaintiff.” being prevent not does which defendant, original). in (emphasis 555-556 id., at issue addressed which conventions state Although the documents ratification formal their in they amendment, by constitutional point clarify the sought to Marshall, Madison, Hamilton, they, like clear made preserve drafted the Constitution understood Island Rhode The suits. private immunity from States’ by the Con- “[i]t declared proclaimed thus Convention eases States, the United power judicial vention, that criminal extend does party, a may be state a which person any any suit authorize toor prosecutions, addition, sought, convention 386. id., at state.” a controver- or doubts all remove “to amendment express fashion, a similar In Ibid. same.” respecting sies id.,1 known,” ma[d]e “declare[d] and Convention York New judicial “[t]hat understanding 327, its does party, may be cases States, in United any suit authorize toor prosecutions, criminal extend by any person against a state,” id.,1 at 329. The convention proceeded to ratify “[u]nder Constitution these impres- sions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution, and in confidence that the amendments which shall have been proposed to the said *12 Constitution will receive early and mature consider- ation.” Ibid. Despite persuasive assurances of the Constitution’s leading advocates and the expressed understanding of the only state conventions to address the issue explicit terms, this Court just held, years five after the Constitution was adopted, that Article III private authorized a citizen of an other State to sue the State of Georgia without its consent. Chisholm Georgia, v. 2 (1793). Dall. 419 Each of the four Justices who concurred in judgment separate issued a opinion. The common theme of opinions was that the case fell within the literal text of Article III, by which granted terms jurisdiction over controversies “between a State and Citizens of another State,” and a “between State, or the Citizens thereof, and foreign States, Citizens, or Sub jects.” U. S. Const., §2. Art. III, argument The that provision granted jurisdiction only over cases in which State was plaintiff was dismissed as inconsistent with ordinary meaning of “between,” and with provision ex tending jurisdiction to “Controversies between two or more States,” by necessity contemplated jurisdiction over suits to which States were defendants. Two Justices also argued that sovereign immunity was inconsistent with the principle of popular sovereignty established Constitu 2 tion, Dall., at 454-458 (Wilson, J.); id., at (Jay, 470-472 J.); C. although the others did go so far, they contended that the text of Article III evidenced the States’ surrender of sovereign immunity as to provisions those extending juris diction over suits to which States parties, were id., at 452 (Blair, J.); id., at J.). 468 (Cushing, history, id., American relying dissented, Iredell Justice princi and 437-446, at history, id., English 434-435, at id., sovereignty, separate and powers enumerated
ples 12atS.,U. Hans, 134 generally See 448, 449-450. 435-436, observance close by a swayed more were justices (“The other former regard without Constitution, letter contrary, on the Iredell, Justice usage .... and experience new create intention was contended ac sovereign States subjecting remedies, unheard conclusively showed (whichhe individuals, at the tions invest only ... before,) but done never controversies determine hear jurisdiction courts prop were designated, parties cases, between courts”). litigation susceptible erly pro- country with upon “fell decision Court’s The United Court Supreme Warren, C.1 shock.” found 11; supra, Hans, 1926);accord, (rev. ed. History U. S. Mississippi, Monaco Principality of *13 rep- “Newspapers 69. S., at U. Tribe, (1934);Seminole they viewed what protested opinion rainbow resenting a spoke Others sovereignty. state blow unexpected anas treasuries.” raids prospective concretely of more Pe- Federalist The Congress: Constitution Currie, The D. (1997). p. 196 1789-1801, riod outrage to with responded particular, States, The de- example, Legislature, Massachusetts decision. principles first to the “repugnant decision nounced Commonwealth’s upon called government,” a steps necessary all take Representatives Senators Constitution, the ... article or any clause “remove State a that, decision, justify imply or construed can be indi- or individual by any to answer compellable Papers States.” United of the any Court viduals 1969) eds. Cooke J. (H. Syrett & Hamilton Alexander response omitted). Georgia’s marks (internal quotation bill passed Representatives House Its intemperate: more providing anyone attempting to enforce the Chisholm “ decision would be ‘guilty of felony and shall suffer death, ” without benefit of clergy, by being hanged/ supra, Currie, at 196. An initial proposal to amend the Constitution was intro- duced in the House of Representatives the day after Chis- holm was announced; the proposal adopted as the Eleventh Amendment was introduced in the Senate promptly follow- ing an intervening recess. Currie, supra, at 196. Congress turned to the proposal latter great dispatch; little more than two months after its introduction it had been endorsed by both Houses and forwarded to the States. 4 Annals of Congress 25, 30, (1794); 477, 499 1 Stat. 402.
Each spent House but a single day discussing the Amend ment, and the vote in each House was close to unanimous. See 4 Annals of Congress, at (the 30-31, 476-478 Senate di vided 23 to 2; the 9). House 81 to All attempts to weaken the Amendment were defeated. Congress in succession re jected proposals to limit the Amendment to suits in which “ ‘the cause of action shall have arisen before the ratification of the amendment,’” or even to cases “‘where such State shall have previously provision made in their own Courts, whereby such suit may be prosecuted to effect’ ”; it refused “ as well to make an exception for ‘cases arising under treat ies ” made under the authority of United States.’ 4 id., at 30, 476. It might argued that the Chisholm decision awas cor rect interpretation of the design constitutional and that the Eleventh represented Amendment a deviation from orig *14 inal understanding. This, however, seems unsupportable. First, despite the opinion of Justice Iredell, the majority failed to address practice either the or the understanding prevailed that in the States at the time the Constitution was adopted. Second, even a casual reading of opinions the sug gests the majority suspected the decision would unpopu be lar and surprising. g., See, e. 2 Dall., at J.) (Wilson, 454-455
722 id., sovereignty); of conception prevailing
(condemning the inconve- found is (“If J.) Constitution the (Cushing, 468 that well isit particular, other any or practice nient 478- amendment”); id., at out pointed is mode regular of people the that hope to J.) (“[T]here reason is (Jay, C. 479 immunity] would [sovereign that perceive yet [Georgia] will id., cf. equality”); [republican] consistent been not re- the (“I want Chisholm) not did (attorney for 419-420 motion, which the that me, satisfy Georgia, to of monstrance was remonstrance that Before unpopular. made I have will State, whose another of acts the from learnt I had read, it”). Fi- condemned too she me, that always to dear must the acknowledged majority the of nally, Members two despite immune remain might well States United to “Controversies over jurisdiction of grant Ill’s Article id., at Party,” see abe shall States the United example invoking the J.), and, (Jay, C. J.); id., at (Cushing, Constitution the before incurred debts collect to actions of sug- “exceptions,” of possibility raised adopted, one de- all “extend not might case of rule gesting J.). (Jay, C. id., at action,” of every kind mands, and either premise crucial undercut concessions These popular of principle or text literal Constitution’s practice widespread necessarily overrode sovereignty opinion. sug- also Amendment Eleventh history the of text restore change but not Congress acted gest that drafts earlier Although design. original constitutional limits express phrased been had Amendment 3 Annals g., see, e. III, Article granted power judicial United (“The Power (1793) Judicial Congress 651-652 com- equity, or law any suits extend shall States ...”), States United against one prosecuted or menced interpretation proper addressed adopted text Const., S.U. see Constitution, original provision shall the United (“The Judicial Arndt. *15 be construed to extend any suit in law equity, or com- menced prosecuted or against one of the United States.. By its terms, then, the Eleventh Amendment did rede- fine judicial the federal power but instead overruled the Court:
“This amendment, expressing the will of the ultimate sovereignty of the country, whole superior to legisla- all tures and all actually courts, reversed the decision of the Supreme Court. It did not in prohibit terms suits individuals the States, but declared that the Constitution should not be import construed to any power to authorize the bringing of such . suits. .. The Supreme Court had construed judicial power as ex- tending to such a suit, and its decision was thus over- ruled.” Hans, 134 U. atS., 11. The text reflects the historical context and congres- objective
sional in endorsing the Amendment for ratification. Congress chose not to language enact codifying the tradi- tional understanding immunity but rather to ad- specific dress the provisions of the Constitution that had raised during concerns the ratification debates and formed the basis of the Chisholm decision. Papers Cf. 15 of Alexan- der Hamilton, (quoted at 314 720). supra, Given the out- raged reaction to Chisholm, as well Congress’ repeated refusal to qualify otherwise the text of the Amendment, it doubtful that if Congress meant to write a new immunity into the Constitution it would have limited that immunity to narrow text of the Eleventh Amendment:
“Can suppose we that, when the Eleventh Amendment adopted, it was understood open be left for citi- zens of a State to sue their own state in the federal courts, whilst the idea of suits citizens of other states, or of foreign states, was indignantly repelled? Suppose Congress, proposing when the Eleventh Amend- ment, appended had proviso a that nothing therein *16 by its being sued State prevent should contained or Constitution the arising under cases in citizens own it would imagine that we can States: United of the laws that supposition The States? the adopted been have Hans, its face.” absurdity on almost is it would 14-15. supra, un- was Constitution the that is inference natural
The more preserve structure, history and light of its in derstood, theAs suits. private immunity from traditional States’ the Constitution of the only provisions the clarified Amendment contrary under- support might suggested anyone had that brush. broader awith to draft no reason standing, there was the unanimity which near Finally, swiftness “either suggest adopted Amendment Eleventh understanding, or original captured the not had Court rapidly.” most mind changed its collective country had First The Court: Supreme Constitution The Currie, D. (1985). more The n. p. 18, 1789-1888, Years: Hundred regardless course, is interpretation, reasonable country whole— as a Chisholm, the Justices of four views earlier— years just five adopted Constitution had their strip the document understood had not Constitution Currie, Cf. suits. private immunity from everybody just (“It about plain that is at 196 Congress, misread had Supreme Court agreed Congress in Constitution”). history to reflect attempts to rewrite Although the dissent unpersua- its evidence understanding, original a different pro- constitutional statutory and The handful sive. against States right petitions authorizing or suits visions understanding traditional prevalence only confirms express an absence sued could State that a pro- otherwise, understanding were if the waiver, constitutional unnecessary. The been would visions Island Rhode York New proposed amendments view dissent’s support than rather undercut Conventions of history, supra, see at 718-719, and the pro- amendments posed by the Virginia and North Carolina Conventions do light cast upon the original understanding of the States’ immunity to suit. It is true that, in the course of all but eliminating federal-question and diversity jurisdiction, see 3 Elliot’s (amendment Debates 660-661 proposed by the Vir- ginia limiting Convention the federal-question jurisdiction to suits arising under treaties and the diversity jurisdiction to suits parties between claiming lands grants under from dif- ferent States); (identical 4 id., at 246 proposed amendment *17 by the North Carolina Convention), the amendments would have removed the language in the Constitution upon relied by the Chisholm Court. While the amendments do reflect dissatisfaction with the scope of jurisdiction gen- as a eral matter, there is no evidence they were directed toward question of sovereign immunity or that they re- flect an understanding that the States would subject be to private suits without consent under Article III as drafted.
The dissent’s remaining evidence cannot bear the weight the dissent seeks place to on it. The views voiced during the ratification debates Edmund Randolph and James Wil- son, when reiterated the same individuals in their respec- tive capacities as advocate and Justice in Chisholm, were decisively rejected by the Eleventh Amendment, and Gen- eral Pinkney did not speak to the issue of sovereign immu- nity at all. Furthermore, Randolph appears to recog- nized that his views were in tension with the traditional understanding of sovereign immunity, see 3 Elliot’s Debates (“I think, whatever law of may nations say, that any doubt respecting the construction that a may state plaintiff, and not defendant, is taken away by the words where a state shall be party”), and Wilson Pinkney expressed a radical nationalist vision of the constitutional design that only deviated from the prevailed views that at the time but, despite the dissent’s apparent embrace of position, remains startling even today, post, see at 776 “ govern ‘the statement Wilson’s approval (quoting with govern to the subordinate ought to be each
ment of
States’”).
controversial
do
Nor
United
ment
re
York
Maryland and New
prosecuted
early suits
surren
had
understanding that the States
widespread
flect
submit
Maryland’s decision
suit.
their
dered
(1791),
Dall.
Maryland, 2
Vanstophorst v.
process
Wexler, Suits
&
Marcus
controversy, see
great
aroused
1993 J.
1790s,
Opinion
Diversity of
States:
Against
by the
go unnoticed
did
History
74-75,
73,
Sup. Ct.
(Iredell,
429-430
at
Dall.,
Chisholm,
Court, see
Supreme
refused
State
York, the
v. New
dissenting).
In Oswald
J.,
decision
after
until
summons
plaintiff’s
respond
asserted
first
then
even
announced;
had been
Chisholm
independent
sovereign and
free,
“awas
that it
defense
to defend
compelled”
or
“drawn
not be
and could
State,”
(internal quotation
76-77
supra, at
Wexler,
&
Marcus
suit.
in Chis
decision
omitted).
though
Court’s
And,
marks
de
vigorous
‘every
as
bit
“champions
may have had
holm
were
Constitution
of the
interpretation
fending their
”
post,
issue,’
side
other
partisans on
those
they
clear
makes
*18
Amendment
Eleventh
on the
vote
the
at 721.
supra,
See
decidedly
numerous.
less
were
by the
offered
evidence
equivocal
scanty and
the
short,
In
the
from
is evident
what
than
more
no
establishes
dissent
founding
the
members
some
Chisholm—that
decision
Marshall, Ire-
Madison,
Hamilton,
disagreed with
generation
the
formally
address
conventions
only state
dell, and
Eleventh
adoption of
leading
events
matter.
who
individuals
clear
however, make
Amendment,
immu-
their
the States
stripped
the Constitution
believed
minority.
a small
most
suit were
nity from
leading
events
debates
the ratification
only do
Not
origi-
reveal
Amendment
Eleventh
adoption of
constitutional
States’
understanding of
nal
importance
they
underscore
also
suit;
immunity to the founding generation. Simply put, “The
Constitution never would have been ratified if the States their courts were to be stripped of their sovereign authority
except as expressly provided by the Constitution itself.”
Atascadero State Hospital v. Scanlon,
C
The Court has been consistent in interpreting
adoption
of the Eleventh Amendment as conclusive evidence “that the
decision in Chisholm was contrary to the well-understood
meaning of the Constitution,” Seminole Tribe,
ble appealed is letter The discussion. under then as to sustaining suit a ground then, as it was as now, reason The State. against individual strong brought It that. inwas itas ease in is as law Constitution strain attempt to anis at Id., of.” dreamed imagined or never a construction 14-15. conform requests similar rejected decisions
Later language strict immunity to sovereign principle nonconsenting States holding that Amendment Eleventh corporations, by federal brought suits from immune are Princi nations, (1900),foreign S.U. Reeves, 178 v. Smith v. Na tribes, Indian supra, or Blatchford Monaco, pality of concluding (1991), Noatak, 501 U. S. Village tive admiralty, suits a defense sovereign only addresses Amendment Eleventh of the though text S. 256 U. York, New parte Ex equity,” or “in law suits (1921). understanding, doctrinal a settled holdings reflect These of the leading advocates views consistent immunity derives ratification, Constitution’s the structure from but Amendment Eleventh v. Coeur g., Idaho e. See, itself. original Constitution of the (ac (1997) 267-268 S. 521 U. Idaho, Tribe d’Alene implicit immunity, concept broader “the knowledging Eleventh regarded we Constitution, Seminole exemplifying”); evidencing and Amendment Hospital School State 55-56; Pennhurst supra, Tribe, York, (1984); New parte Ex 89, 98-99 S. 465 U. Halderman, rather confirmed, Amendment Eleventh 497. supra,
729 than established, sovereign immunity as a constitutional principle; it follows that the scope of the States’ immunity from suit is demarcated not the text of the Amendment alone but postulates fundamental implicit in the constitu- design. tional explained As we in Principality Monaco: “Manifestly, we cannot rest with a mere appli- literal cation of §2 the words of of Article III, or assume that the letter of the Eleventh Amendment exhausts the upon restrictions suits non-consenting States. Behind the words of the provisions constitutional are postulates which limit and control. There is the essen- postulate tial that the controversies, as contemplated, shall be found to justiciable character. There is postulate also the that States of the Union, possess- still ing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been ‘a surrender of this immunity in plan of the conven- ” tion.’ S.,U. at 322-323 (quoting The Federalist (footnote omitted). No. 81
asOr, we have recently more reaffirmed:
“Although the text of the Amendment would appear
only
restrict
Article III diversity jurisdiction of
the federal courts, ‘we have understood the Eleventh
Amendment to stand not so much for
it says,
what
but
for the presupposition ..
. which it confirms.’ Blatch
v. Native Village
ford
Noatak, 501 U. S. 775, 779
(1991). That presupposition, first observed over a cen
tury ago in Hans v. Louisiana,
(1890),
Accord, (“The (1993) Amend U. S. Inc., Eddy, & calf although a States, recognition that ain rooted ment *21 including sovereignty, of attributes certain maintain union, immunity”). sovereign
II
the
has
Congress
whether
determine
must
we
case
this
In
nonconsenting States
subject
toI,
Article
power, under
discus-
foregoing
theAs
courts.
own
their
in
private suits
Amendment
Eleventh
the
the fact
clear,
makes
sion
United
of the
power
“[t]he
only
Judicial
limits
terms
its
the words
rest
To
question.
the
resolve
does
States”
of
type
in the
engage
tobe
would
alone
the Amendment
of
the
interpreting
rejected
we
literalism
ahistorical
discredited
immunity
the
since
sovereign
scope of
States’
68; see
atS.,U.
Tribe, 517
Seminole
Chisholm.
decision
supra, at
Monaco,
Principality
(quoting
id.,
also
of
15) (“[W]e long have
atS.,U.
Hans,
quoting
turn
326, in
Eleventh
of the
text
upon the
reliance
blind
recognized that
ato
law
Constitution
‘“to strain
Amendment
’”).
of”
or dreamed
imagined
never
construction
immunity
sovereign
of
principle
constitutional
While
suits
over
jurisdiction
a bar to
pose
does
nonconsenting
Monaco,
Principality
g.,
see, e.
States,
basis
only structural
is not
322-323, this
at S.,
292 U.
design.
constitutional
implicit in
immunity
States
postulate
also
“[t]here is
Rather,
im
sovereignty, shall
attributes
possessing
still
Union,
there
where
save
consent,
their
without
suits,
mune
plan this
‘a surrender
been
has
”
accord,
81;
No.
Federalist
(quoting
Ibid.
convention.’
at 68.
supra,
Tribe,
781; Seminole
supra,
Blatchford,
directly
is not
principle
structural
distinct
separate and
This
by Arti
established
power
judicial
scope of
related
established
system federalism
inheres
III, but
cle
Con
powers
I
exercising Article
In
Constitution.
gress may subject the
private
States to
suits in their own
courts only if there is “compelling evidence” that the States
required
were
to surrender
power
this
Congress
pursuant
to the constitutional design. Blatchford,
A Petitioners contend the text of the Constitution and our recent sovereign immunity decisions establish that required were relinquish portion of their sov- ereignty. We turn first to these sources. Article grants, I, §8, Congress broad legis- to enact lation in several enumerated areas of national concern. The Supremacy Clause, provides: furthermore,
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof..., shall be the supreme Law of the Land; and Judges the every State shall be bound thereby, any Thing in the Constitu tion or Laws any of State to Contrary the notwithstand ing.” U. S. Const., Art. VI. It is contended that, of provisions, virtue these where Congress legislation enacts subjecting the States to suit, the legislation by necessity overrides sovereign the immunity of States.
As is evident from its text, however, the Supremacy Clause enshrines as supreme “the Law of the only Land” those Federal Acts that accord with the constitutional de sign. See Printz, 521 S., U. Appeal 924. to Suprem the acy Clause merely alone question raises the whether a law is a valid exercise of power. the national See The Federalist (A. No. Hamilton) 33, (“But at 204 it will not follow from this doctrine that acts larger of the society which pursu are not ant to its powers, constitutional but which are invasions of residuary the authorities of the smaller societies, will become supreme the land”); law of the supra, Printz, at 924-925. to the Congress delegating Constitution, its acting within when land of law supreme establish assert from State foreclose not does powers, enumerated merely be law federal arising under immunity claims ing from but itself State not derives law that cause reconciled could contrary view A power. national immunity in Louisiana’s sustained which supra, Hans, with Em itself; the Constitution arising under suit private v. De Mo. Health Public Dept. of Welfare ployees of of S. 411 U. Mo., Health Public of partment Welfare binding FLSA that (1973), recognized immunity State’s upheld nevertheless but upon Missouri numerous or with Act; under recover private ato any contention reject We effect. same other decisions necessarily force own by its law federal substantive aWhen the States. overrides question suit, the immunity to asserts State law implementation but law primacy sovereignty of constitutional with the consistent a manner the States. del powers I specificArticle conclude we can Nor the Nec by virtue include, necessarily Congress egated to au incidental otherwise, or Proper Clause essary and means a suits private subject thority to the enu scope of within otherwise objectives achieving en had decisions our Although some powers. merated Ala. Co. *23 R. v. Terminal Parden see contention, dorsed v. Pennsylvania (1964); 184, 190-194 S. Dept., U. Docks (1989) opinion), (plurality 13-23 1, U. S. Co., Gas Union supra, Tribe, Seminole overruled, see been they since have Post- Prepaid Florida Savings Bank College 63-67, 72; at rec we As 680. ante, at Bd., Expense secondary Ed. analogous context: ognized in an Execution’ carrying into ‘La[w] ... ‘When principle violates Clause Commerce constitutional various reflected sovereignty provisions ... it is not a ‘La[w]... proper for carrying into Execution the Commerce Clause,’ and is thus, in the words of The Federalist, 'merely [an] ae[t] of usurpation’ which ‘deserve[s] to be treated as such.’” Printz, supra, at 923-924 (quoting The 204) Federalist No. (ellipses and Printz). alterations in The eases we have cited, of course, came at last to the conclusion that neither the Supremacy Clause nor the enu powers merated of Congress confer authority abrogate States’ immunity from suit in federal court. The logic of the decisions, however, does not turn on the forum in which the suits prosecuted were but extends to state-court suits as well.
The dissenting opinion seeks to reopen these precedents, contending that state sovereign immunity must derive either (in from the common law which case the dissent contends it by statute) defeasible (in or from natural law which case
the dissent believes it claim). cannot bar a federal post, See at 797-798. As should be obvious to all, this is a false di- chotomy. The text and the structure of the Constitution protect rights various and principles. Many of these, such right by to trial jury and the prohibition on unreason- able searches and seizures, derive from the common law. The common-law lineage of these rights does they mean are by defeasible statute or remain mere rights, common-law They however. are, rather, constitutional rights, and form the fundamental law of the land.
Although the sovereign immunity of the States derives part least in from the common-law tradition, the structure and history of the Constitution make clear that the immunity today exists by constitutional design. pro- dissent has persuasive vided no evidence that the founding generation regarded the States’ sovereign immunity as by defeasible federal statute. While the implies dissent this view was held Madison and Marshall, see post, at 778, nothing in the comments made either individual at ratification *24 understanding. an such implies, or even states, conventions statutory Iredell’s upon Justice seizes dissent Although the to view this attribute to attempt analysis Chisholm Dall., Chisholm, 2 citing 787-789, at post, Iredell, see
Justice constitu underlying the on views Iredell’s Justice of his portions other enough from clear are question tional opinion: dissenting Constitution, the on said been has however, much, “So my present that intimate improper be may not it
that which it,of any construction strongly is opinion suit compulsive a circumstances, any under admit, will money. I think recovery of State against a effect its full may have Constitution every word but nothing that consequence, involving this without (nei- implication insurmountable anor words, express ease) would found consider, can I ther Id., power.” high soof deduction authorize 449-450. fact contrary, the assertion dissent’s Despite isit only that means by statute defeasible not right natu- from derives not Constitution, by the protected reasoning our attribution dissent’s Whether ral law. analytical confu- from results law natural conclusions not do We inaccurate. simply it is device, rhetorical or sion stripped could Founders contend subject Congress granted immunity sovereign By so. do they did only that but private them de- are sovereign contours token, same princi- by understanding, not Founders’ termined law. natural derived limitations or ples be- Founders evidence no offered has dissent where cases only to immunity extended sovereign lieved such No asserted. right the source sovereign was where England, immunity in sovereign existed limitation theory al- different on a predicated immunity was
together. See 1 F. Pollock & F. Maitland, History of English (2d Law 1909), ed. quoted in Nevada v. Hall, 440 U. S., (“ at 415, ‘[The n. 6 King] can not be compelled to answer in his own court, but this is true every petty lord of every petty ”); manor’ accord, 8 W. Holdsworth, A History of Eng (3d lish Law 465 1927) (“[N]o ed. feudal lord could be sued court”). his own It is doubtful whether the King was re garded, in any meaningful sense, as the font of the traditions and customs which formed the substance of the common law, yet he could not be sued on a common-law claim in his own courts. And it strains credibility imagine that the King could have been sued in his own court say, on, a French cause of action. light
In
of the ratification debates and the history of the
Eleventh Amendment, there is no reason to believe the
Founders intended the Constitution
preserve
a more re-
stricted immunity in the United States. On the contrary,
Congress’ refusal to modify the text of the Eleventh Amend-
ment to create an exception to sovereign immunity for cases
arising under treaties, see supra, at 721, suggests the States’
sovereign immunity was understood to
beyond
extend
state-
law causes of action. And surely the dissent does not be-
lieve that sovereign immunity poses no bar to a state-law
the United States in federal court, or that Federal Tort Claims Act effected a contraction, rather than
an expansion, of the United States’ amenability to suit.
There are isolated statements in some of our
sug
cases
gesting that
Eleventh Amendment is inapplicable in
state courts. See Hilton v. South Carolina Public Rail
ways Comm’n,
gation *26 be may immunity state-court discussing eases Two Atasca in digressions footnote The hand. out dismissed either to irrelevant Thiboutot were Hospital State dero was Will in discussion The rationale. or holding opinion’s C.S.U. 42 that holding our decision; unnecessary also States against action cause create did §1983 the States’ scope determine unnecessary it rendered Our courts. own their in suit from immunity constitutional atten closer Hall, however, require in Hilton opinions in States against suits sustained we eases those tion, for courts. state state- aof employee an injured that held Hilton we In State) of the (an arm his employer sue could railroad owned Act Liability Employers’ Federal under court state decision Our §§51-60. U.S.C. 45 1404, 53 Stat. (FELA), S.,U. 502 stare decisis. by informed” “controlled because that held had we earlier A generation 201. would railroads operated who all clear made FELA enter chose workers, States injured subject impliedly enactment statute’s after business railroad Par See suits. such from their waived Dept., S.U. Docks Ala. R. Co. Terminal den workers railroad excluded had (1964). Some statutes compensation workers’ their coverage protection adequate provided FELA assumption Closing 202. S., Hilton, U. workers. those have would employers suits to FELA courts leg extensive and required expectations settled dislodged Ibid. response. islative There is language in Hilton gives some support to position of petitioners here but our decision did not
squarely address, much less resolve, the question of Con gress’ power to abrogate States’ immunity from suit in their own courts. respondent Hilton, the South Carolina Public Railways Commission, neither contested Congress’ constitutional authority subject it to suits for money dam ages nor raised sovereign immunity as an affirmative de fense. See Brief for Respondent in No. 90-848, T.O. pp. 7, n. 14, 21. Nor was the State’s litigation strategy sur prising. Hilton was litigated and decided in the wake of Union Gas, and before this Court’s decisions in New York, Printz, and Seminole Tribe. At that time may appeared to the State that Congress’ power to abrogate its immunity from suit any court was not limited the Con stitution at all, long so Congress made its intent suffi ciently clear.
Furthermore, our decision in Parden was based on con *27 cepts of waiver and consent. Although later decisions have undermined the basis of Parden’s reasoning, g.,e. see, Welch v. Texas Dept. Highways and Public Transp., of 483 U. S. (1987) 468, 476-478 (recognizing that Parden finding erred in a congressional clear intent subject to the suit); States to College Savings Bank, ante, at 680 (overruling Parden’s the ory of waiver), constructive we questioned not gen the eral proposition that a may State waive its sovereign immu nity and consent to suit, see Seminole Tribe, 517 U. S., at 65. Hilton, then, must be light read in of the doctrinal basis of Parden, the presented issues and argued by parties, the and the substantial reliance interests drawn question into by the litigation. When so read, we believe the decision is best understood not as recognizing congressional power to sub ject nonconsenting private States to suits in their own courts, nor even as endorsing the constructive waiver theory of Parden, but as simply adhering, as a matter of stare deci sis presumed and historical fact, to the narrow proposition injured sued be consented had States certain
that courts. own their in least at FELA, covered workers subject could California whether Hall we considered In determined and courts in California’s suit Nevada that noted We so. doing it from bar did Constitution of two amalgam is an immunity sovereign of doctrine “[t]he sover- in suits one applicable concepts, different quite an- of courts in suits other courts own eign’s that acknowledged We 414. atS.,U. sovereign.” other suit from sovereign independent a truly of immunity “[t]he absolute of matter aas enjoyed been has courts own its in could consent own sovereign’s Only centuries. for right ibid., that immunity,” that character absolute qualify sover- attribute an is suit from immunity notion “the “[t]his id., eases,” our in reflected eignty sov- no conclusion supports adequately explanation consent,” its without courts own its sued be may ereign sover- however, distinguished, id., sharply We 416. sovereign: another courts immunity eign’s a claim support no affords explanation] [this “[B]ut claima Such courts. sovereign’s another sec- of a authority the power implicates necessarily an either found must source sovereign; ond sov- the two between implied, or express agreement, second decision voluntary inor ereigns, comity.” matter aas first dignity respect Ibid. reflect did the Constitution determined we
Since im- to respect *28 between agreement determine free California another, one munity matter a sovereignty Nevada’s respect it would whether comity. immunity State’s Hall distinguish did opinion Our courts from eourt federal other States; it did not, however, address or any consider differences between a State’s sovereign immunity in court and in its own courts. Our reluctance to find an im- plied constitutional limit on the power of the States cannot be construed, furthermore, to support an analogous reluc- tance to implied find constitutional limits on power of the Federal Government. The Constitution, after all, treats the powers of the States differently from powers of the Fed- eral Government. As we explained in Hall:
“[I]n view of the Tenth Amendment’s reminder that powers not delegated to the Federal Government nor prohibited to the States are reserved to the States or to the people, the existence of express limitations on state sovereignty may equally imply that caution should be exercised before concluding that unstated limitations on were by intended the Framers.” Id., at 425 (footnote omitted). The Federal Government, contrast, “can powers claim no which are granted to it the constitution, and pow ers actually granted must be such as are expressly given, given or by necessary implication.” Martin v. Hunter’s Lessee, 1 Wheat. (1816); see also City Boerne v. Flores, 521 U. S. 507, (1997); United States v. Lopez, 514 U. S. (1995). 549, Our decision in Hall thus does not support argument urged by petitioners here. The decision addressed neither Congress’ power to subject private States to suits nor States’ immunity from suit in their own courts. In fact, the distinction drawn between a sovereign’s immunity in its own courts and its immunity in the courts of another sovereign, as well as the reasoning on which this distinction was based, are consistent with, and even support, proposition urged by respondent here —that the Constitution reserves to the
740 their in suits private immunity from a constitutional Congress. abrogated be cannot which courts own In decisions. additional two in support seek Petitioners despite that, held we (1994), U. S. 106 Collins, 513 v. Reich holds which State a court, federal in suit immunity from its postdep- certain” “a clear be to appears plainly what out of violation in collected remedy taxes rivation in paid been have taxes disputed after declare, may not law fact in not remedy does remedy, that this on reliance tax- of context arose case This Id., 108. exist. of taxpayer a deprive may State a where litigation, refund laws tax validity of challenging of means other all postdep- certain” “dear abe to appears holding what out Real Assessment Fair also see Ibid.; remedy. rivation In (1981). U. S. McNary, 454 100 v. Inc. Assn., Estate rem- provide to State requires process due context, S. 468 U. Palmer, v. Hudson Cf. promised. edy has it arises obligation The concurring). J., (O’Connor, (1984) 539 to speak not does itself; Reich Constitution own their suits to subject States Congress power
courts. a (1990), held we 356 S.U. Rose, 496 v. Howlett In against § hear refuse not could court school The immunity. sovereign basis board school not could however, so State, arman not was board immunity defense any constitutional assert Healthy Mt. See entitled. been would State (1977). How In 274, 280 S.U. Doyle, Ed. City Bd. de a state-law “whether only question then, lett, board school ato immunity' is available 'sovereign fense such though even court Florida a subject to suit otherwise been had action if the available would a defense 358-359. S., at U. forum.” a federal brought in Congress’ question address did dedsion a noncon- action entertain court compel a state senting State.
B Congress Whether has authority under Article I to abro- gate a State’s immunity from suit in its own courts is, then, a question of first impression. In determining whether there is “compelling evidence” that derogation of the States’ sovereignty is “inherent in the constitutional com- pact,” Blatchford, 501 S.,U. at 781, we continue our discus- sion of history, practice, precedent, and the structure of the Constitution. We look first to evidence of original understanding of
the Constitution. Petitioners contend that because the rati- fication debates and the events surrounding adoption the Eleventh Amendment focused on the States’ immunity from suit in federal courts, the historical gives record no instruction as to the founding generation’s intent to preserve the States’ immunity from suit in their own courts.
We believe, however, that the Founders’ silence is best ex- plained by simple fact that no one, not even the Constitu- tion’s most ardent opponents, suggested the might document strip the States of the immunity. light In of the overriding concern regarding the States’ war-time together debts, the well-known creativity, foresight, and vivid imagination of the Constitution’s opponents, the silence is most instruc- suggests tive. It the sovereign’s right to immunity assert from suit in its own courts was principle so well established that no one conceived it would be by altered the new Constitution. arguments
The raised the Constitution confirm this strong England, inference. In rule was well estab- lished that “no lord could be sued a vassal in his own court, but petty each subject lord was to suit in the courts of a higher lord.” Hall, 440 S.,U. at 414-415. It was ar- gued that, analogy, the States could be sued without con- sent in federal court. Id., at point 418. The argu- of the would III Article under jurisdiction was
ment own their suit immunity from States’ circumvent if the sense little made have would argument The courts. immunity relinquished the understood were events. all ar- to the gave advocates Constitution’s response practice— custom Relying on telling. also is gument their States’ on the particular, and, (remarks Mar- of J. Debates Elliot’s see courts, own a sover- sue could no individual shall) they contended — directed point true It consent. eign without *31 was Judiciary, for Federal power of toward however, argument, logic of the The issue. only question prose- a suit context in the force greater even applies with set- in courts, for its own sovereign in a against cuted long immunity was sovereign any other, than ting, more 414. supra, at Hall, See unquestioned. established ad by terms Amendment the Eleventh Similarly, while noth States,” the United power of only Judicial “the dresses suggested Amendment, catalyst for Chisholm, the ing in courts. own their in suits from immune were the States in explicit fact, in issue, address only Justice The court immunity in federal between distinguishing (opinion Dall., at 2 See courts. own a State’s Courts, own their (“When are sued J.) sovereigns Blair, established may been right] petition [a method such now arewe but demand; form respectful most as the from exemption be sovereignty if State-Court; in a it follows Courts, sovereign’s own any than other agreed Constitution, has adopting State, that when States, the United power judicial to the amenable sovereignty”). right of up her given respect, in that has, she furthermore, Amendment, Eleventh language of the constitutional only provisions toward was directed suits private immunity from the States’ call believed text contemplated expressly III Although Article question. into jurisdiction over suits between States and individuals, noth- ing in the Article or any part other of the Constitution suggested the States could not assert immunity private suit in their own courts or that Congress had abrogate sovereign immunity there.
Finally, the Congress which endorsed the Eleventh rejected Amendment language limiting the Amendment’s scope to eases where the States had made available a remedy in their own courts. supra, See at 721. Implicit in pro- posal, it is evident, was the premise that the States retained their immunity and the concomitant authority to deeide whether to private allow suits the sovereign in their own courts. light In of the language Constitution and the histori- cal quite context, apparent why neither the ratification debates nor the language of the Eleventh Amendment ad- dressed the States’ immunity from suit in their own courts. The concerns voiced at the ratifying conventions, the furor raised Chisholm, and speed and unanimity with which the Amendment was adopted, moreover, jeal- underscore the ous care with which the founding generation sought pre- serve the sovereign immunity of the States. To read this history as permitting inference the Constitution *32 stripped the States of immunity in their own courts and al- lowed Congress subject to them to suit there would turn on its head the concern of the founding generation Article —that III might be used to circumvent state-court immunity. In light of the historical record it is difficult to conceive that the Constitution would have been adopted if it had been un- derstood to strip the States of immunity from suit in their own courts and cede to Federal power Government a to subject nonconsenting States private to suits in these fora.
2 Our historical analysis is supported by early congressional practice, provides which “contemporaneous and weighty evi-
744 S., at Printz, U. 521 meaning.” Constitution’s of
dence early Although omitted). marks (internal quotation 905 authorizing statutes various enacted Congresses statutes); (listing id., 906-907 at see court, state in suits discov have we (1947), 389-390 Katt, U. S. 330 Testa suits authorize to purported they which in instance no ered “numerous The fora. these in States nonconsenting against con court], state in suit [authorizing statutes these of ness to States subjecting statutes” of lack utter trasted power.” such of absence assumed an suit, “suggests not did Congresses early appears thus It 907-908. at S.,U. against suits private authorize to had they believe courts. own in their States private authorize to purporting statutes were only Not courts in States nonconsenting against suits author- purporting statutes Congresses; early by enacted histor- our absent but all are forum any suits such ize even confronted we statute first The experience. ical actions private States subject purported arguably (“Here, Parden, S.,U. See FELA. claim a State’s Court, this time first upon brought suit meets individual against we As Congress”). created expressly action cause clearly did statute even however, recognized, later Welch, See States. action a cause create here, issue FLSA provisions 476-478. S., at U. Parden, among are aftermath enacted were terms in express purporting enactments statutory first Although suits. to private nonconsenting subject “they last generation, multiplied statutes similar more probative no are they vintage recent such are lends tradition constitutional a [FLSA] than out- is far force persuasive Their text. meaning *33 congressional of apparent centuries two almost by weighed supra, Printz, at 918. the practice.” avoidance Even the recent statutes, moreover, do not provide evi- dence of an understanding that Congress greater has a power to subject States their own courts than in federal courts. On the contrary, the statutes purport to cre- ate causes of actions against the States which are enforce- able in federal, as well as state, court. To the extent recent practice departs thus from longstanding tradition, it reflects not so much an understanding that the States have surren- dered their immunity from suit in their own courts as the erroneous view, perhaps inspired by Parden and Union Gas, that Congress may subject noneonsenting private States to suits any forum.
The theory and reasoning of our earlier cases suggest the
States do retain a constitutional immunity from suit in their
own courts. We have often described the States’ immunity
in sweeping terms, without reference to whether the suit
prosecuted
in state or federal
g.,
court. See, e. Briscoe
v. Bank Kentucky, 11 Pet.
(1837)(“No
257, 321-322
sover
eign state is liable to be sued without her consent”); Board
Liquidation v.
McComb, 92 U.
(1876)(“A
S. 531, 541
State,
without its consent, cannot be
sued
an individual”); In re
Ayers, 123
(1887)
U. S. 443, 506
(same); Great Northern Life
Ins. Co.v. Read, 322
(1944)(“The
U. S. 47, 51
inherent nature
of sovereignty prevents actions against its own
citizens without
consent”).
We have said many
occasions, furthermore,
that States retain their immunity
private
prosecuted
suits
in their own courts.
g.,
See, e. Beers v. Arkansas, 20 How.
(1858) (“It
527, 529
is an
principle
established
of jurispru-
dence in all civilized nations that the sovereign cannot be
sued in its own courts, or in any other, without its consent
and permission”); Railroad Co. v. Tennessee,
746 aas accepted (“It may be (1883) 446, 451 U. S. 109 Co.,
R.
nor
State
a
neither
unquestioned,
departure
point
this
in
any court
in
defendant
sued
be
can
States
United
class
limited
except
in
consent,
their
country without
Supreme
in
party
amade
may be
a State
in
cases
jurisdic
original
by virtue
States
United
of the
Court
Constitution”); Louisiana
by the
court
this
on
conferred
tion
Steele, 134
v.
Indemnity Co.
Guaranty &
York
New
rel.
ex
in
official
a state
against
suit
(finding a
(1890)
230, 232
S.U.
Elev
of the
principle”
“clearly within
to be
court
state
Authority Trans-
decisions);
v. Port
Hess
Amendment
enth
(“The Eleventh
(1994)
30, 39
U. S.
513
Corporation,
Hudson
court
in federal
suit
shields
largely
Amendment
a
against
claims
with
parties
leaving
consent,
their
without
State’s
in
permits,
State
if
them,
present
State
14
n.
71,
S., at
U.
517
Tribe,
tribunals”); Seminole
own
federal
question
a
review
empowered
(“[T]his
is
Court
has
State
a
where
decision
state-court
a
arising from
law
Co.
Ins.
Northern
Great
suit”);
Life
also
see
consented
(“The
dissenting)
J.,
(Frankfurter,
59
S., at
U.
322
Read,
v.
into
immunity from
put
has
Amendment
Eleventh
indi
power
in
it is
Therefore,
the Constitution.
or
State’s
court—the
any
Into
State
bring
viduals
id., at
consent”); accord,
its
except
the United States —
332,
U. S.
Jordan, 440
v.
Quern
cf.
opinion);
(majority
53
(1985).
64, 71
U. S.
Mansour, 474
(1979);
Green
own
their
immunity States’
relied
also
haveWe
rulings.
Amendment
Eleventh
our
premise
aas
courts
does
amendment
(“It
true
is
at 10
S., U.
Hans,
See
ground
or
reason
other
no
were
there
and, if
read,
so
we
then
maintainable;
might be
suit,
his
abating
may
sued
[that State
result
anomalous
this
should
State,
another
citizen
by the
though not
citizen
own
by its
courts,
sued
thus
may be
State]
If
courts.
own
sued
to be
allowing itself
although not
Con-
language of
of the
consequence
necessary
stitution and the law, the result is no less startling and unex-
pected than [Chisholm]”);
(“The
id., at state courts have
no
to entertain suits by
individuals
a State
*35
without its consent. Then how does the Circuit Court, hav-
ing only concurrent jurisdiction, acquire any
power?”).
such
In particular,
the exception to our sovereign immunity
doctrine recognized
parte
in Ex
Young, 209 U. S.
(1908),
is
part
based in
premise
that sovereign immunity bars
relief against States and their officers in both state and fed-
eral courts, and that certain suits for declaratory
injunc-
or
tive
against
relief
state officers must therefore
permitted
be
if the Constitution is to remain the supreme law of the land.
As
explained
we
in General Oil Co. v. Crain,
“It seems to be an obvious consequence that as a State only can perform its functions through its a officers, re- upon straint them is a restraint upon its sovereignty from which it is exempt without its consent in the state tribunals, and exempt by the Eleventh Amendment of the Constitution of the United States, in the national tribunals. The error is in the universality of the conclu- sion, as we have seen. Necessarily give adequate protection to constitutional rights a distinction must be made between valid and invalid state laws, as determin- ing the character of the against suit state officers. And the suit at bar illustrates the necessity. If a suit precluded officers is in the national courts Eleventh Amendment to the Constitution, may forbidden a State to its courts, as it is contended in case at bar that may be, power without of review by this court, it must be evident that an easy way is open prevent the enforcement of many provisions of the Constitution .... See parte Ex Young, [209 S.,U. at] 123, where this subject is fully discussed and the cases reviewed.” 209 U. S., at 226-227. constitutional a retain States understood notwe Had Ex need courts, own in their
immunity from rule pressing, less been have would Youngrule parte our part essential so formed would Tribe d’Alene Coeur Idaho See immunity doctrine. opinion). (principal 270-271 atS.,U. Idaho, federal substantive neither doctrine settled itAs I Article under abrogation congressional attempted nor law sover- defense constitutional raising a State bars our supra, II-A-1, Part court, see immunity in eign con- analogous retain States suggesting decisions courts own their suits private immunity from stitutional I Article lacks Congress conclusion support fora. those suits private subject *36 4 power congressional a whether is consideration final Our own in their suits private to nonconsenting States subject to Constitution. the of structure the with consistent courts to federalism of principles essential both lookWe constitutional courts of role special design. Con powers broad grants Constitution Although the States treat Congress requires federalism our gress, residuary sover as status their with consistent a manner Nation. governance participants joint eigns and 583 S., (Kennedy, U. 514 Lopez, States g., United e. See, S.,U. York, 935; New S., U. Printz, concurring); J., becom “neither thought generation founding The at 188. in Union, States several convenient ing nor had sovereignty large residuum vested sum should States, United delegated been private complaints answer defendants as moned principle 505. atS.,U. Ayers, re In immunity persons.” design by constitutional preserved members them owed respeet accords “thus of the federation.” Puerto Rico Aqueduct and Sewer Au thority, 506 U. S., at 146;accord, Coeur d’Alene Tribe, supra, at 268 (recognizing “the dignity and respect afforded a State, which the immunity is designed to protect”).
Petitioners contend that immunity from suit in federal
court
preserve
suffices to
the dignity of the States. Private
suits
nonconsenting States,
present
however,
“the in-
dignity of subjecting a State to the
process
coercive
judi-
cial tribunals at the
private
instance of
parties,” In re Ayers,
supra, at 505; accord, Seminole Tribe,
It is unquestioned that the Federal Government retains its own immunity from suit only not in state tribunals but also in its own courts. light In of our system constitutional arewe States, the of sovereignty essential the
recognizing ato entitled are States the conclude reluctant privilege. reciprocal great of considerations are form constitutional Underlying nonconsenting States —es- suits Private substance. finan- the threaten damages may money for — suits pecially the that, indisputable is It States. of integrity cial been have could States many of founding, of the time private immunity from their for insolvency but into forced con- unlimited today, an damages. Even money for suits levy court in suits to authorize power gressional damages, compensatory for States of treasuries upon stag- create could damages punitive even and fees, attorney’s leverage a and power Congress giving burdens, gering consti- by our contemplated is States over pose would power national potential design. tutional their and States danger to notorious and severe resources. immu their States strip the power congressional A more pose would courts own their suits private nity from litiga immunity from principle “The well. risks subtle in unanticipated from nation and states assures tion North Great government.” processes tervention States’ When at 53. S.,U. Read, v. Co. Ins. ern Life course “the disregarded, suits private immunity from af public their administration policy public their by the man controlled “subject may become fairs” favor consent, their without tribunals judicial dates While 505. supra, at Ayers, re In interests.” individual immunity their relinquished matter —see practical aas least contexts—at special some substantial carries surrender III, infra, Part ability, and decisionmaking autonomy, the costs of the States. capacity suits private to authorize general A strain unwarranted place damages would money *38 States’ ability govern in accordance with the will of their citizens. Today, as at the time of the founding, the allocation of scarce resources among competing needs and interests lies at the heart of political process. While judgment creditor of a State may have a legitimate claim for compensar- tion, other important needs and worthwhile compete ends for access to public fisc. Since all cannot be satisfied in full, it is inevitable that difficult decisions involving the most sensitive political and of judgments must be made. If the principle of representative government is to preserved the States, the balance between competing interests must be reached after deliberation by the political process estab- by lished the citizens of the judicial State, not by decree man- dated the Federal Government and invoked pri- vate citizen. “It needs no argument to show that political power cannot be thus ousted jurisdiction of its the judiciary set in its place.” Louisiana v. Jumel, 107U. S. 711, (1883). 727-728 “By ‘splitting] the atom of sovereignty,”’ the Founders “
established ‘two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights obligations people who sustain it and are governed by it.’” Saenz v. Roe, 526 U. S. 489, 504, n. (1999),quoting U S. Term Limits, Inc. v. Thornton, 514 U. S. (1995) J., concurring). “The Constitu- (Kennedy, tion thus contemplates that a government State’s will repre- sent and remain accountable to its own citizens.” Printz, 521 U. S., at 920. When Federal Government asserts authority over a State’s most political fundamental proc- esses, it strikes at the heart of the political accountability so essential to our liberty and republican form government. The asserted authority would blur only the distinct responsibilities of the State and National Governments but also the separate duties of judicial political branches of the state governments, displacing “state decisions ‘go to the heart representative government.’” Gregory v.
752 to entitled State (1991). A 461 452, S.U. 501
Ashcroft,
to the
assigning
governance,
own
of its
processes
the
order
responsibil-
the
courts,
the
than
rather
branches,
political
460
id.,
See
debts.
payment
directing the
ity for
character
the
government,
itsof
the structure
(“Through
defines
a State
authority,
government
exercise
who
those
State's
a
displace
could
Congress
If
sovereign”).
aas
itself
ju-
the
responsibility,
power
governmental
allocation
fi-
from
derives
legitimacy
whose
State,
the
branch
dicial
not
role
assume
to
compelled
be
would
law,
delity
to
as
competence
its
beyond
but
experience
its
foreign to
only
existence
its
which
from
very Constitution
by the
defined
derives.
the States'
abrogate
cannot
Congress
Na
here, the
different
be
to
rule
were
court;
in federal
state
in
greater
wield
would
Government
tional
How
Cf.
instrumentalities.
judicial
own
its
in
than
courts
if
arise
would
anomaly that
(noting the
365
S., at
496 U.
lett,
suits
courts
own
its
entertain
forced
might be
“a State
502
Hilton,
court”);
federal
immune
it
from
concerns
“federalism-related
(recognizing
atS.,U.
state
uses
Government
the National
when
arise
recovery under
permit
forum
exclusive
as
courts
statute”).
congressional
by reference
explained
be
anomaly cannot
resulting
constitutional
courts
state
role
special
legislative
require
may Congress
Although
design.
or administer
enact
branches
executive
or
New
935;
supra,
Printz,
see
programs,
regulatory
federal
“ade-
courts
state
require
may
188,
at S.,U.
York,
at S.,U.
Testa, jurisdiction,
appropriate”
quate
prescrip-
those
insofar
prescriptions,
federal
enforce
“to
power,”
judicial
appropriate
relat[e] matters
tions
step,
unprecedented
would
It
at 907.
supra,
Printz,
may declare
Congress
fact
infer
however, to
fur-
courts
state
enforceable
binding and
law
ther principle that Congress’ authority to pursue federal ob
jectives through judiciaries
exceeds
only
power to press other branches of the State into its service
but even its control over the federal courts themselves. The
conclusion would imply that Congress may in some eases act
only through instrumentalities of the States. Yet, as Chief
*40
Justice Marshall explained: “No trace is to be found in the
constitution of an intention to create a dependence of the
government of the Union on those of the States, for the exe
cution of
great
powers assigned to it.
Its means are
adequate to its ends; and on those means alone was it ex
pected to rely for the accomplishment of its ends.” McCul
loch v. Maryland,
The provisions of the Constitution upon which we have relied in finding the state courts peculiarly amenable to fed- eral command, moreover, do not distinguish those courts from the Federal Judiciary. The Supremacy Clause does im- pose specific obligations on state judges. There can be no serious contention, however, that the Supremacy Clause im- poses greater obligations on state-court judges than on the Judiciary of the United States itself. The text of Article III, §1, which extends judicial federal power to enumerated classes of suits grants but Congress discretion whether to establish inferior federal courts, give does strong support inference that state may courts opened be to suits falling within the judicial federal power. The Article in way no suggests, however, that state may courts be required to as- jurisdiction sume that could not be vested in the federal courts and forms part no judicial of the power of the United States.
754 may require Congress recognized that We judicial appropriate only “matters hear courts 907. Our S., at 521 U. Printz,
power,” nonconsenting States against suits establish precedents Hans, courts,” litigation susceptible “properly not are judicial “[t]he ‘entire result, and, as atS., 134 U. author- embrace not does by the Constitution’ granted power con- the State’s absence suits such entertain ity to Ex (quoting S., at U. Monaco, 292 Principality sent,” 322- atS.,U. 497); accord, atS.,U. York, 256 parte New not are sovereigns noneonsenting suits (private constitu- of no character”). aware areWe justiciable a“of power congressional aof admit would precept tional are suits federal entertain courts require state could States the United judicial within R. Co. Erie explained As we courts. heard (1938): U. 304 S. Tompkins, recognizes ... *41 the United “[T]he Constitution of the independence autonomy and preserves and independ- legislative in their independence States — over Supervision departments. judicial their ence the States action judicial or the legislative either matters except as permissible case no is in delegated or authorized specifically Constitution except as either, Any interference States. United authority of invasion an permitted, thus independence.” of its a denial extent, and, State 78-79. Id., structure precedent, practice, history, light of In immunity retain the States hold Constitution, we beyond immunity courts, own in their private suit legislation. I by Article abrogate congressional
III sover- to assert a State privilege constitutional The upon confer does courts its own eign State a concomitant right to disregard the Constitution or valid federal law. The States and their officers are bound by obligations imposed by the Constitution statutes that comport with the constitutional design. We are unwilling to assume the States will refuse to honor the Constitution obey or the binding laws of the United States. good faith of the States provides thus an important as- surance “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the Land.” U. S. Const., Art. VI. Sovereign immunity, moreover, does not bar judicial all review of state compliance with the Constitution and valid federal law. Rather, certain limits are implicit in the consti- tutional principle of state sovereign immunity.
The first of these limits is that sovereign immunity bars suits only in the absence of consent. Many States, their own initiative, have enacted statutes consenting to a wide variety of suits. The rigors of sovereign immunity are thus "mitigated by a justice sense of which has continually ex- panded by consent the suability of the sovereign.” Great Northern Ins. Co.v. Read, 322 Life U. S., at 53. subject Nor, to constitutional limitations, does the Federal Government lack the authority or means to seek the States’ voluntary consent private suits. Cf. South Dakota v. Dole, 483 U. S. (1987). The States have consented, moreover, to some pursu- suits ant to plan of the Convention or to subsequent consti- tutional Amendments. In ratifying Constitution, the States consented to suits brought by other States or by *42 Federal Government. Principality Monaco, supra, at of 328-329 cases). (collecting A suit which is commenced and prosecuted against a State in the name of the United States by those who are entrusted with the duty constitutional to "take Care that the Laws be faithfully executed,” U. S. Const., § Art. II, 3, differs in kind from the suit of an individ-
ual: While the Constitution contemplates suits among the 756 extrale- to alternative anas system federal the of
members noneonsenting against suits private of fear measures, gal who Founders by the given reason central States immunity. Suits sovereign States’ preserve to chose exercise require itself States United by the brought a against prosecuted each responsibility political to delegation broad a absent is which control a State, noneonsenting States. sue to persons private Amend Fourteenth adopting that also held haveWe portion surrender to States required people ment, by the them to preserved been had sovereignty that of the pri may authorize Congress Constitution, so original §5 pursuant nonconsenting States against suits vate 445 S.U. 427 Bitzer, v. Fitzpatrick power. enforcement powers limits explicit imposing (1976). By them, the enforce power Congress the granting States of state balance “fundamentally altered Amendment Tribe, Seminole Constitution.” by the struck legisla appropriate enacts Congress When 59. S., at 517 U. Flores, v. Boerne City see Amendment, enforce tion paramount, are interests (1997),federal 507 S. U. which States authority over may assert Congress Fitz Constitution. unauthorized otherwise would 456. supra, patrick, sovereign principle to the limit important second The lesser not but against suits bars immunity is prosecuted suits extend not immunity does entities. entity governmental other or corporation municipal against Healthy Mt. g., See, e. State. an arm is which County Lincoln 280; at S.,U. Doyle, 429 v. Ed. City Bd. immu- sovereign (1890). does Nor S.U. Luning, v. against suits Some officers. state against suits all nity bar rule by the barred are officers if party aas the State name suits limited Ayers, re g., In e. See, State. fact, are, suits Idaho, Tribe d’Alene Coeur Idaho 505-506; atS.,U.
757
521 U.
(“The
S., at 270
real interests
served
the Eleventh
Amendment are not to be sacrificed to elementary mechanics
of captions and pleading”). The rule, however, does not bar
certain actions against state officers
injunctive
or declar-
atory relief. Compare
parte
Ex
Young,209 U. S.
(1908),
123
and In re Ayers, supra, with Coeur d'Alene Tribe
Idaho,
supra, Seminole Tribe, supra, and Edelman v. Jordan, 415
U.
(1974).
S. 651
Even a suit for money damages may be
prosecuted against a state officer in his individual capacity
for unconstitutional or wrongful conduct fairly attributable
to the officerhimself, so long as the relief is sought not from
the state treasury but from the officer personally. Scheuer
v. Rhodes,
IV
The sole remaining question is whether Maine has waived
its immunity. The State of Maine “regards from suit as ‘one of the highest attributes inherent in the
nature of sovereignty,'” Cushing v. Cohen,
State of Maine has questioned not Congress’ power to pre scribe substantive rules of federal law to which it must com ply. Despite an good-faith initial disagreement about the re quirements of the FLSA, it is by conceded all that the State has altered its conduct so that its compliance with federal law cannot questioned. now be The Solicitor General of the United States appeared has before this Court, however, and asserted the federal interest in compensating the States’ employees for alleged past violations of federal law is so compelling that the sovereign State of Maine must stripped of its immunity subjected and to suit in its own by courts its own employees. despite Yet, specificstatutory authorization, § see 29 216(c), U. S. C. United ap States parently found the same interests insufficient justify send ing even a single attorney to Maine prosecute litiga this tion. The difference between a suit the United States on behalf of the employees and a the employees impli cates a rule that the National Government must itself deem the case of importance sufficient to take against action the Con- the of structure history, precedent, State; Convention, of plan under that, clear make stitution but kind first of suits consented Court Judicial Supreme of judgment second. of isMaine Affirmed. Justice Stevens, Justice whom with Souter, Justice Breyer dissenting. join, Justice Ginsburg, (1996), 44S.U. Florida, Fla. Tribe Seminole In Amendment Eleventh invoked Court majority a III Article under judicial federal declare action private reach does Constitution conception, the Court’s In question. federal on a State, even hav- understood was Amendment Eleventh however, sov- principle” “background by a enhanced ing been suit), id., see immunity to (understood as ereign codification limited beyond operated diver- citizen-state solely with dealing Amendment, dissenters, Tribe Seminole To jurisdiction. sity Amend- enhancement Court’s one, I whom war history and *46 constitutional odds at ment essence that sovereignty of divided conception federalism. American deci aftermath naturally in arises Today’sissue Constitu that holds Court Tribe. in Seminole sion a fed enforce a State individual tion bars of Act Standards Labor Fair right under statutory eral III), Supp. (1994 ed. seq. § et (FLSA), C. S. 29 U. In objection. its over courts State’s brought in when of course Court decision, earlier complementing thus Eleventh renders forum state fact confronts by dis responded has it point, beside Amendment theory of straightforward more simpler and cerning a Tribe: in Seminole found than sovereign “fun- ais suits individual all immunity from State’s damental aspect” of state sovereignty “confirmed]” by the Tenth Amendment. Ante, at 713, 714. As a consequence, Seminole Tribe’s contorted reliance on the Eleventh Amend ment 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 judicial power, the embarrassment to the State of Georgia by occasioned attempts in federal court to enforce the State’s war debt could easily have been avoided if only the Court that decided Chisholm Georgia, 2 Dall. (1793), had understood a State’s inherent, Tenth Amendment right to be free 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 positions Court’s prompts a suspicion of error, and skepticism is by confirmed 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 any concept of inherent sovereign im- munity was understood historically apply when the sover- eign sued was not font of the law. Nor does the Court fare any better with its subsidiary lines of reasoning, the state-court action is barred the scheme of American federalism, a result supposedly confirmed a history largely devoid precursors to the action considered here. The Court’s ignores federalism the accepted authority Congress to bind States under the FLSA provide 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 *47 the founding.
On each point the Court has raised it is mistaken, and I respectfully dissent from its judgment.
I that claim the on principally decision its rests Court The sover the aspect of fundamental “awas suit immunity from ratification the before enjoyed the States eignty which Court the which aspect at ante, 718, Constitution,” Constitu of the ratification survived have understands consti given “coirfirmfed]”and been to have and in tion Tenth adoption by the at ante, 714, status, tutional "sovereign by truly means Court If 1791. Amendment see law, common at meant term that munity" what im While insupportable. be would argument its ante, at systems legal state many new immunity entered sovereign Eng from selectively received law common part of the aas been to have or indefeasible to be understood not land, it Constitution, National new by the status any such given supra, at Tribe, Seminole See it. mention not did dissenting). Had J., (Souter, 55 n. 160-162, and 132-142, not immunity could sovereign posed, been question under from a State shield thought to been by Article jurisdiction national subject committed aon law Ar exercising its conceded Congress Constitution. of the I immunity. abrogate such unquestionably may I ticle Seminole my dissent length in position this out set I here.1 repeat will and Tribe holding as today’s offer however, not, does Court The substitut- Tribe, in Seminole reasoning corollary mere occasion Eleventh Amendment Tenth ing jury trial right “the protests inexplicably Court .. derive . seizures searches unreasonable prohibition cannot I indefeasible. nonetheless are 733, but ante, law,” common These my argument. relevant thought could how imagine Sixth enacted are they because precisely constitutional are rights prerogative general while Amendments, respectively, Fourth point My Constitution. nowhere immunity appears Constitution into enacted were rights law common statute. defeasible thought universally were *48 demands, and it is fair to read its references to a “fundamen- aspect” tal of state sovereignty referring as not to preroga- tive inherited from the Crown, but to a conception necessar- ily implied by statehood itself. The conception is thus not one of common law so much as of natural law, universally applicable proposition discoverable 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, (J. p. 548 1961), Cooke ed. to the States’ from suit as an right, “inherent” see ante, at 716,a character- ization that require, does not but is at open least to, a natural law reading.
I understand the rely Court on the Hamiltonian formu- lation with object of suggesting that its conception of sovereign immunity as a aspect” “fundamental of sover- eignty was a substantially popular, if not the dominant, view periods of Revolution and Confederation. There is, after nothing all, else in the opinion Court’s sug- that would gest a basis for saying that the ratification of the Tenth gave Amendment aspect” “fundamental its constitu- tional protection status and against any legislative tamper- ing Congress.2 The principal Court’s rationale for to- day’s result, then, turns history: was the natural law conception of sovereign immunity as any inherent in notion independent State widely held in the United States period preceding (or ratification of adoption of the Tenth 1791)? Amendment 2 I am assuming that the Court does put forward the theory of the “fundamental aspect” as a newly derived conception own, of its necessarily comprehended by the Tenth Amendment guarantee only a result of logic independent of any intention of the Framers. Nor does the Court argue, and I know of no reason suppose, that every legal advantage a State might have enjoyed at common law was assumed to be an inherent attribute of all sovereignties, or was constitutionalized wholesale by the Tenth Amendment, any more than the Ninth Amendment constitutional- ized all common law rights. individual evidence no almost is There certainly no. answer sovereign immu- thought Framers theof generation being unalterable. sense nity fundamental *49 framing, to before period at the looks one Whether era, republican early or to controversies, ratification sovereign im- thought Framers Some same. is the evidence ain inapplicable prerogative royal obsolete munity was common immunity was sovereign thought some republic; by stat- rights, law common other like defeasible, law natural awith keeping thought, in fewa perhaps ute; and im- that conception, law common distinct view law body that sovereign because ain inherent munity was law Natural by it. bound be logically could a law made however, not, will few a doubtful part thinking on position. the Court's
support
A immunity, sovereign enjoy did Colonies American The re- be law English understood privilege being a Declaration “antecedent alone; Crown for the served pretended were, or colonies none Independence, the Con- Story, Commentaries 1 J. states,” sovereign be, char- 1891). colonial (5th Several ed. p. 149 §207, stitution Connecticut, Rhode Massachusetts, including those ters, corporate specified expressly Georgia, Island, 5 See sued. sue could thereunder body established 36 Constitutions United Documents Sources (Con- 131 id., (Massachusetts); 2 1975) (W. ed. Swindler (Georgia). Island); 434 id., at (Rhode necticut); id., at 363 neces- were who individuals, given were charters Other Amend- Eleventh Gibbons, See suit. subject to sarily Reinterpretation, Immunity: A Sovereign and State ment lawyer had (1983). colonial If a 1889, 1897 L. Rev. Colum. immunity, theory of Blackstone into looked clearly nothing found many would did, he indeed any enjoyed as such Colonies suggesting from suit. “[T]he law ascribes to the king attribute sovereignty, or pre-eminence,” said Blackstone, 1 W. Black stone, Commentaries (hereinafter *241 Blaekstone), and for him, the sources for this notion were Braeton3 and Acts of Parliament that declared the Crown imperial, id., at *241- *242. It was simply King against whom "no suit or ac tion can be . . brought . even in civil matters, because no court can have jurisdiction over him.” Id., at *242.4 If a
3Bracton is the earliest source for the common law immunity of the
King, and his explanation is essentially practical: “Si autem ab eo petatur,
cum breve non eurrat contra ipsum, locus erit supplicationi, quod fac-
tum swum corrigat et emendet.” That is, “If [justice] is asked of him,
since no writ runs against him there will [only] be opportunity
for peti
tion, that he correct and amend his act.” 2 Bracton, De Legibus et Con
*50
suetudinibus
(G.
Angliae 33 Woodbine ed., S. Thorne
1968) (London
transl.
ed.,
5b,
folio
I,
8).
Bk.
ch.
The fact that no writ ran against the King
was “no peculiar privilege; for no feudal lord could be sued in his own
court.” 3 W. Holdsworth, History of English
(3d
Law 465
1927).
ed.
“‘He can not be compelled to answer in his own court, but this is true of
every petty lord of every petty manor; that there happens to be in this
world no court above
”
his
is,
court we may say, an accident.’ Nevada Hall,
person chancellor his where chancery, court his him petition upon though of grace, matter a as right administer will *243. Id., at compulsion.” had Blackstone after that to note here pausing worth It is on went law, he at common immunity sovereign explained compatible tradition law common that say to "natural on writers discussed as law”: down laid is what to consonant entirely
"And Puffendorf, says subject/ ‘A law. natural writers oblige toway no hath a subject, continues he ‘so long it; refuses he when due, his him to give his prince law ato stand refuse ever will no wise prince though leave subject gives the prince if And, contract. ful contract, such him, upon action enter upon rather proceeds itself action courts, own his For laws/ municipal upon than equity, natural observe prince compel is not action such end Ibid, (footnote him.” to persuade but contract, omitted).5 law,” common substance formed customs
traditions Bracton, at king,” makes “law said Bracton Although ibid. called properly could England law unwritten said also he first [has] prince or king of the authority “the extent only law *51 and laws English “these of spoke he id., 19, and at thereto,” added been announced who judges id., 21. kings,” authority customs, by practice id., 20, and so king,” place “in the sat law common the most for least Thus, at him. certainly derived law the common be England, custom court king’s custom “[t]he part, But 184. 3, at n. Maitland, supra & 1 Pollock law.” common comes natural remarked probably would this, Blaekstone for Black law, 1 common “consonant” a result theory produced law 768. page *243; see stone infra Jure Pufendorf, De 1 S. see passage, quoted original For modern 1934); (1688ed., reprinted Octo Libri Gentium et Naturae Octo Libri Gentium et Naturae Jure Pufendorf, De S.2 translation, see Pufendorf). Else- (hereinafter 1934) transl. (C. Oldfather W.& 1344-1345 Next Blackstone quoted Locke’s explanation for immunity, “ according which the risks of overreaching ‘a heady prince’” are “‘well recompensed peace of the public security the government, in the person of the chief ” magistrate thus being set out of the reach of danger.’ Ibid. J. (quoting Locke, Second Treatise of Civil §205 Government (1690 J. Gough 1947)). ed. By quoting Pufendorf and Locke, Blackstone revealed to his readers a legal-philosophical tra dition that derived sovereign from the im memorial practice of England but from general theoretical principles. But although Blackstone thus juxtaposed the common law and natural law6 conceptions of sovereign im where in the same chapter, Pufendorf expressly derives the impossibility of enforcing a King's promises against him from natural law theory: “Therefore, since a king enjoys natural if liberty, he has discovered any fault in a pact of his making, he can of his own authority serve notice upon the other party that he refuses to be obligated by reason of fault; nor does he have to secure of the other [party to the pact] a release from a thing [namely, the pact] which, of its nature, own is incapable of producing an obligation or right.” Id., at 1342-1343. 6The Court says that to call its approach “natural law” is “an apparent attempt to disparage,” ante, at 758. My object, however, is not to call names but to show that the majority is wrong, and in doing that it is illuminating explain the conceptual tradition on which today's majority draws, one that can be traced to the Court’s opinion from its origins in Roman sources. I call this conception the “natural law” view of sovereign immunity, despite the historical ambiguities associated with term, be cause the expression by such figures Pufendorf, Hobbes, and Locke, of the doctrine that the sovereign might not sued, was associated with a concept of sovereignty itself derived from natural law. See Pufendorf 1103-1104; T. Hobbes, Leviathan Part chs. 17-18 (1651), in 23 Great Books of the Western World (1952) (hereinafter 99-104 (de Leviathan) scribing sovereignty as the result of surrender of individual natural rights to single authority); J. Locke, Second Treatise of Civil Government §§95-99 (1690 J. 1947) Gough ed. (describing political community formed by individual consent out of a nature). state of The doctrine that sovereign could not be sued by his subjects might have been thought by medieval civil lawyers to belong jus gentium, the law nations, was a type of law; natural or perhaps in its original form it might have been understood as a precept of positive, written law. The earliest source *52 768 not, he did well aswas It them. confuse not did he munity, “consonant” arguably were conceptions two the although
for
was
Crown
the
Blackstone,
to
according
where
England,
in
a difference
make
could
foundations
distinct
their
sovereign,7
issue
was
sovereignty
of
location
the
where
America,
in
exigence.
some
raise
would
that independence
B
colo
in
sovereignty
about
mid-1760’s, ideas
the
in
Starting
lack
that,
argued
Americans
shift
began
America
nial
way
express
any
in
had
Parliament,
they
in
a voice
ing
Ideological
The
Bailyn,
B.
See
taxed.
to being
consented
Wood,
(1968); G.
204-219
Revolution
American
the
of
Origins
1776-1787,
Republic,
American
of
Creation
The
develop
subsequent
of the
story
The
(1969).
347-348
pp.
uneven;
and
complex
is
sovereignty
conceptions
ment
1.8.31,
Digest,
in
recorded
Ulpian’s
a statement
is
conception
est”;
solutus
legibus
“Princeps
jurists,
medieval
by
interpreted
much
and
of Justinian
Digest
The
1See
by statutes.”
not bound
is
emperor
“The
The
Tierney,
1985);
transl.
eds., A. Watson
Krueger
(T.
& P.
Mommsen
Mod
of the
Origins
and
Accursius
Laws:
by
Bound
Not
Is
Prince
(1963); K.
History
and
Society
Studies
State, Comparative
ern
Rights
and
Sovereignty
Law, 1200-1600:
Prince
The
Pennington,
reception
(1993). Through
77-79
Tradition
Legal
Western
in the
initially
it related
tradition, where
legal
continental
discussion
ato
even
Pope,
King, to
ato
eventually
also
but
Emperor,
developed
sovereign
conception
id.,
90, this
at
see
city-state,
Hobbes
Thus
body.
sovereign
any
applicable
model
a theoretical
into
aof
“The
saying,
subject
discussion
his
begin
could
civil
subject to
man,
is
or one
assembly
Commonwealth, be it an
which
degree
on the
debate
There
130.
Leviathan,
p.
ch.
laws.”
est
solutus
legibus
Princeps
maxim
interpreters
medieval
different
from the
freedom
prince’s
limit
law
or divine
natural
understood
206-208;
supra,
390-394; Pennington,
Tierney, supra,
See
statutes.
(1987).
74-79
de Ubaldis
Baldus
Thought
Political
Canning,
J.
resided
sovereignty
clarified
would
formulation
better
A
17th
later
view
dominant
Parliament,
King
Republic,
American
of the
Creation
Wood, The
G.
See, e.g.,
century.
(1969).
1776-1787, 347
p.
*53
here, it is
enough
say time independence was
declared in 1776, locus of
was still
sovereignty
an open
question, except that almost by definition, advocates of inde-
pendence denied that
sovereignty
respect
to the Ameri-
can Colonies remained with the
King
Parliament.
As the
concept
was
sovereignty
unsettled, so was that
of sovereign immunity. Some States appear to have under-
stood themselves to be without
immunity from suit in their
own courts upon independence.8 Connecticut and Rhode Is-
land adopted their pre-existing
charters
as constitutions,
without
altering
provisions
their
specifying
suability.
See Gibbons,
8The Court claims that the doctrine of sovereign immunity was “univer
sal in the States when the Constitution was drafted
ratified,” ante,
715-716, but the examples of Connecticut and Rhode Island suggest that
this claim is overstated.
It is of course true that these States’ preserva
tion without comment of their colonialsuability could be construed merely
as a waiver of sovereign immunity, and not as a denial of the principle.
But in light of these States’ silence as to any change in their status as
bodies,
suable
it would be tendentious so to understand it. The Court
relies for its claim on Justice Iredell’s statement in Chisholm v. Georgia,
A “ discretion their according auditors ‘Where demand any article *54 abate or disallow shall judgment think shall person any commonwealth, and the against peti- liberty to atbe thereby, shall he aggrieved himself ac- court, general chancery the or high of court the tion such redress, and case, for his of cording nature the to peti- a like and thereon; right to do proceed court shall per- any other cases other all allowed be shall tion common- demand entitled who is son Hening, 9 W. equity.’” or law right any wealth of Laws of Being a Collection Large: Statutes Sovereign Pfander, (1821), quoted 536, Virginia a First Toward to Petition: Right Immunity and Against Claims Judicial Pursue Right to Amendment 939-940, Rev. L.U. 91 Nw. Government, (1997). n. peti English clearly reminiscent was “petition”
This right do proceed “shall language right, as tion approval, royal formula paralleled thereon,” peti required before technically partie,” al droit “soit fait *256; 3 Blackstone See adjudicated. be right could tion stat York NewA 143-144. nn. 940, and supra, Pfander, chancery court petition similarly authorized ute auditor aggrieved himself thought anyone who An See State. account of his resolution general’s to, Due Recovery Debts Directing a Mode Act 30, 1781, March State, with, Accounts Settlement understood scanty evidence out turns sup- necessary to sense, law civilian, natural indefeasible, immunity in here. position the Court's port in The First Laws of the State of (1782 New York 192 ed., reprinted 1984); see also Pfander, supra, at 941, n. 145.
Pennsylvania not only adopted a law conferring the au thority to settle upon, accounts the Comptroller General, see Act of Apr. 18, 1782, ch. 959, 2 Laws of the Commonwealth of Pennsylvania (1810), but in 1785 provided for appeal adjudications such 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 pleaded Blaekstone, common law sovereign immunity, see Respublica v. Sparhawk, 1 (Pa. Dall. 357, 363 1788),the Supreme Court of Pennsylvania did not reaeh this argument, concluding on grounds other jurisdiction.10 lacked years Two after this decision, under the influence of James Wilson, see C. Jacobs, The Eleventh Amendment and Sov ereign Immunity 25, and 169, n. 53 (1972), Pennsylvania *55 adopted a new constitution, provided “[sjuits that may be brought against the commonwealth in such manner, in such courts, and in such eases as legislature may by law direct.” Pa. Const., §11 Art. IX, (1790), reprinted in 8 Sources and Documents of United States Constitutions, at 293; see also Pfander, supra, at 928, n. 101.11
10In a suit against Virginia in the Court of Common Pleas for Philadel phia Gounty, Virginia pleaded sovereign immunity in natural terms, law and the sheriff was excused from making return of the writ attaching Virginia’s goods, see Nathan v. Virginia, 1 Dall. n. (1781), but this was only after the Supreme Executive Council of the Commonwealth had already ordered the goods and, returned in any event, involved the immu nity of one State in the courts of another, and not the distinct of a State in her own courts, see Hall, Nevada S.,U. at 41 1111Whether this formulation was a constitutional waiver of sovereign im munity or an affirmative repudiation of its applicability is uncertain, but the broad language opening the courts to all suits, and the apparent desire to exceed the previously available statutory scheme, would appear to sup port the latter interpretation. then, Convention, the Constitutional of time Around practice diversity of some States among the existed
there tendency despite immunity; but sovereign respect with cer declare and to announce constitutions state among of even and men rights natural and inalienable tain Constitu Pennsylvania g., e. see, State, aof people collective United Documents (1776), 8 Sources III Art. tion, people (“That the supra, Constitutions, States govern right of inherent exclusive sole, have State same”), State no police internal regulating ing and rights. of those one immunity was sovereign that declared immunity, possess thought to were extent theTo sovereign under prerogative aas perceived recog immunity was sovereign where And law. common State recovery from for provisions suit, barring as nized law at common been they had as just order, were England.
C the notion Convention, Constitutional theAt not law, was common asor law natural immunity, whether sovereignty of debate, subject immediate mentioned. been seems courts own State re- Constitution although the surprise, noas comes This did Framers law, federal apply courts quired States, might bind law possibility consider subse- In employees.12 their relations say, in their simple explained best silence Founders’ “the says, Court opponents, ardent most Constitution’s even one, not no fact Ante, immunity.” *56 the States strip might document the suggested "Wilson,laid Constitution, James the supporter fact, stalwart In 741. Convention, see Pennsylvania the viewa such just groundwork records surviving true, it is part, most For 777-778. infra, given was thought much suggest not do conventions ratifying does silence But this courts. own their States of suit issue well so prerogative thought generation Framers’ tell us not creation. law common anot States, and right inherent toas settled participants’ issue conventions, the at the only says It quent ratification debates, however, the jurisdiction issue of over a State did emerge 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. only arguable support for the Court’s absolutist view
that I have found among the leading participants in the de- bate 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 lan- guage 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 general sense and general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by government every state in the union. Unless therefore, there is a surren- der of this immunity in plan of the convention, it will remain with the states, and the danger [that intimated might States be sued on their debts in federal court] must be merely ideal. . . . The contracts between a nation and individuals are only binding on the con- science of the sovereign, and have no pretensions to compulsive force. They confer no right of action inde- pendent of the sovereign will.” The Federalist No. at 548-549. Hamilton chose his words carefully, and he acknowledged possibility that at the Convention the might have sur rendered sovereign immunity in some circumstances, but thrust of argument his was that sovereign immunity was “in herent in nature of sovereignty.”13 An echo of Pufen- minds because the nature of sovereignty was always explicitly addressed. 13In Tribe, Seminole I explained that Hamilton had in mind state sover eign immunity only with respect to diversity cases applying state contract law. See S., 517 U. at 145-149 (dissenting opinion). Here I intend simply
774 of conscience “the to reference his in heard be may
dorf
of
the
of
phenomenon
universality
the
and
sovereign”;14
the
(“the general
claimed
Hamilton
immunity,
sovereign
a peculiar
is
mankind”),
of
practice
the general
and
sense
novelty
apparent
conception.
law
natural
of
feature
ter
law
natural
of
employment
of Hamilton’s
uniqueness
and
is
States
of
immunity
sovereign
to explain
minology
formula
to
contrast
in
stands
it
because
remarking,
worth
natural-law-
on the
position
no particular
indicating
tions
that
view
widespread
more
to the
origin,
versus-common-law
to the
and
law,
common
from
derived
immunity
sovereign
made
the people
sovereignty
that
stance
radical
more
Ham
States.
United
in
of place
out
immunity
sovereign
con
marked
in
because,
noticing
worth
also
is
view
ilton’s
well
as
today,
opinion
Court’s
in
its prominence
to
trast
Louisi
Hans
S., at
U.
Tribe,
Seminole
as in
Co.
Ins.
Northern
Great
Life
cf.
(1890),
131,S.U.
ana, spoke
Hamilton
main
law, in
state
to
respect
with
that
out
point
to
model.
law
natural
a
immunity from
sovereign
deriving
with
consistently
almost
law; Hamilton
state
on
focus
his
consistent
so is
did
he
That
ex
sovereign
theory
law
natural
that
knew
certainly
would
so
sovereign,
created
rights
to
only
tended
or federal
state
either
State
a
against
claims
federal-question
to
applied
state
to suit
subjecting
that
claims
Court
when
Thus
court.
generation—
founding
concern
its head
turn
“would
court
ante,
immunity,”
state-court
circumvent
used
might
III
Article
that
Hamilton,
who, like
Framers
those
even
that
realize
failed
743, has
immu
state
only
mind
had
immunity,
sovereign
preserve
aimed
questions.
claims,
state-law
nity on
passage
before
just
immunity,
discussion
Pufendorf’s
although
translation):
'Now
(in a modern
Blackstone, begins
quoted
upon
as
king
a conscience
upon
binding
as
are
pacts
promises
between
difference
nevertheless,
is,
citizen, there
private
any
trouble
no
it is
namely,
subjects,
king and
aof
obligation
demurs,
he
when
subject,
a
him from
owed
what
exact
former
for the
his
within
means
such,
no
has
remains
he
citizen,
long
so
while
1344-1345.
2 Pufendorf
will.”
his
king
due
his
recover
*58
v. Read,
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 main tained “[i]t that is not in of individuals to call any state into court,” 3 Debates on the Federal Constitution 533 (J. 1863) Elliot 2d (hereinafter ed. Debates), Elliot’s thought that the phrase “in which a State shall be a Party” in Article III, §2, must be interpreted in light of general that principle, so “[t]he that 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.” Elliot’s Debates 533.15 John Marshall argued along the same lines against possi bility of jurisdiction private over suits States, and he invoked the immunity of a State in its own courts in support of argument: his
“I hope that gentleman no will think that a state will be called at the bar of the federal court. Is there no such ease present? Are there not many cases in which the legislature of Virginia is a party, 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 Virginians either on state- or federal-court immunity, however, for Edmund Ran dolph anticipated position he would later espouse as plaintiff’s counsel in Chisholm v. Georgia, 2 (1793). Dall. He contented himself agnosticism significance on the what Hamilton had called “the general practice of mankind,” and argued that notwithstanding any natural law view of nonsuability of States, permitted Constitution against a State in federal court: “I think, whatever the law
15Madison seems here to have overlooked the possibility of concurrent jurisdiction between the Supreme Court’s original jurisdiction and that of state courts. construc- respecting doubt any that say, may
of nations defendant, is taken be plaintiff, may state tion party.” 3 El- ahe shall state where words by away Con- believed clearly Randolph 573. Debates liot’s did, trump language fact could, and both stitution his view States; enjoyed immunity inherent any been seems court may nations law (“whatever uncertain issue say”). Wilson *59 James Hamilton, extreme furthest theAt that Convention Pennsylvania the in comments several made immu- sovereign state idea any to hostility his suggested sover- “the that argument the to he First, responded nity. the sued are they if destroyed” is states of the eignty acknowledge must a court suiter a “because States, United of sov- custom the it is and court, that the jurisdiction man- this inof use made be to names their suffer to ereigns plain [was] answer Wilson, “[t]he For id., 490. at ner.” subordi- to ought state each the government easy: Wil- Ibid.16 States.” United to the government nate today,” even “startling is Wilson’s statement this says Court The now, about or then startling, sois what see to hard 725, but it is ante, at governments, state may bind law that, since proposition The national. to subordinate sense this are governments state Constitu reasons main one that forgotten seems Court of Con Articles under that all was at necessary was Convention tional States. bind capacity effective lacked Congress federation or McCulloch exist did Clause Supremacy if the as speaks Court decided. been never (1819),had 4 Wheat. Maryland, Randolph, Wilson, the views that say correct Court isNor bear “cannot 17, infra, n. see Pinckney, Cotesworth Charles General I since light, is Indeed, yoke ante, 725. them, upon I put weight” diversity of showing part their to do only Framers these intend existed sovereign sovereignty respect views way of stands diversity conventions, and several understood generation founding assumption Court’s son was also pointed in commenting federal jurisdiction over eases between a State and citizens of another State: “When this power is attended to, it will be found to be a one. necessary Impartiality the leading feature in this Constitution; it pervades the whole. When a citizen has a controversy with another state, there ought be a tribunal where both parties stand may on a just and equal footing.” Id., at 491. Finally, Wilson laid out his view that sover- eignty in fact not located in the States at all: “Upon what is it principle contended that the sovereign re- power sides 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 were conceived necessary the public welfare.” Id., at 443.17 While this immunity in the natural law sense as indefeasibly “fundamental” to statehood.
Finally, the Court calls Wilson’s view “a radical nationalist vision of the constitutional design,” ibid., apparently in an *60 to attempt discount it. But while Wilson’s view of sovereignty was indeed radical in its deviation from older conceptions, this hardly distanced him from the American main stream, and in October 1787, Washington himself called Wilson “as able, candid, & honest a member as any in Convention,” 5 Papers of George Washington: Confederation (W. Series 379 & Abbot D. Twohig eds. 1997 1717Nor was Wilson alone in this theory. At the South Carolina Conven tion, General Charles Cotesworth Pinckney, who had the attended Phila delphia Convention, took the position that the States never enjoyed individual and unfettered sovereignly, because the Declaration of Inde pendence was an act of the Union, not of the particular States. See 4 Elliot’s Debates 301. In view, his the Declaration “sufficiently confutes the . . . doctrine of individual sovereignly and independence of the several states.... The separate independence and individual sovereignty of the several states were never thought of the enlightened band of patriots who framed this Declaration; the several states are not even men tioned by in name any part it,of if it was intended —as to impress this maxim on America, that our freedom and independence arose from our immunity, it sovereign address specifically not did
statement become later would what of premise major the expressed peo- the because that Chisholm: in position Wilson’s Justice immunity sovereign sovereign, are States, the ple, and States. applicability no has expressed opinion of spectrum of this canvass From oneNo certain. thing is one conventions, ratifying sovereign im- of view law natural indefeasible, espousing enforceability state controversy over munity. The for support emphatic produced law state subject debts and Madison as great eminences immunity from sovereign any im- adherence indicated themof neither Marshall, but law. common outside conception munity
D issue debates, ratification close theAt had III Article under States indeter- instances some resolved, and-in definitively been ways respond conventions ratification minacy led Sev- doctrine. thinking about range of to the point that and amendments proposed conventions ratifying eral exempted would that declarations issued Conven- York New The court.18 subjection independent.” nor free neither could it we without union, Ibid. action to the subject made were the states objection, grand “['T']he con notwithstanding years, several remained individual, still anof constitution.” accepting time states of several dissent curring 1803). aIn ed. (St. Tucker G. Commentaries, App. Blackstone, 1 W. Massachusetts, conventions several “[t]he specified footnote, Tucker Carolina, North York, Virginia, Island, New Rhode Hampshire, New amend proposed The Ibid. respect.” this amendments proposed Debates, are Elliot’s found bemay States, four latter ments published extant 779-781. page immediately infra discussed *61 Hamp New Massachusetts amendments proposed versions Elliot’s g., e. See, amendment. proposed such include do shire id., Massachusetts); 2 amendments (nine proposed 322-323 Debates (1927) Sess., 1018-1020 1st Cong., 398, 69th No. Doc. R. (same); H. 177-178 tion’s statement of ratification included a series of declara- tions framed as proposed amendments, among which was one stating “That judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to any authorize by suit any person against a state.” 1 Elliot’s Debates 329.19 Whether that amendment was meant to alter or to clarify Article III as ratified is uncertain, but regardless of precise intent, New York’s response to the draft proposed by the Convention of 1787shows that there was no consensus at all on question (let state suability 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, upon called its representatives to urge the passage of a list of amendments. This list incorporated lan- guage, some of it identical to that proposed by New York, in the following form: “It is declared the Convention, that judicial
power of the United States, in cases in which a state may be a party, does not extend to prosecu- criminal tions, or to authorize any any person against a state; but, to remove all doubts or respect- controversies (same); 1 Elliot’s §25-326 Debates (12 proposed amendments of New Hampshire); H. R. Doe. No. 398, supra, at 1025-1026 (same). 1919It is conceivable that the New York Convention, which was after all the intended audience for The Federalist, thought the States had some sort of an inherent right against being sued in federal court. But this is unlikely, because numerous other of the proposed amendments de clared so-called “rights” in no uncertain terms, see, e.g., 1 Elliot’s Debates (“[T]he people have an equal, natural, and unalienable right freely and peaceably to exercise their religion”; trial by jury is “one of the greatest securities to rights of a free people”; “[T]he people right peace ably to assemble together”), whereas the proposed amendment regarding suits against States simply stated that the judicial power “does not extend ... to authorize any suit by any person against a state,” and said nothing about any rights, inherent or Id., otherwise. at 329. *62 part aas expressed, especially be that it same,
ing the Congress that States, United of Constitution of or by themselves indirectly, either or directly not, shall any one with interfere judiciary, through the secu- public discharging and liquidating ... states 336. Id., at state.” any one rities amend- proposal, York’s New clearly than more Even as III clarify Article to intended been have to appears ment though with- immunity, sovereign theory of reflecting some one. indicating which out clari- aat hinted proposal, Island Rhode Unlike ratify- Carolina North Virginia III, of Article fication terms by their that amendments proposed ing conventions III. of Article content fundamentally altered have would III Article a new for proposal Virginia Convention’s The jurisdiction conferring federal language entirely the omitted another citizens a State controversy between over Conven- Carolina the North 660-661, id.,3 State, see 246-247. id., at 4see amendment, identical an proposed tion conventions that suggest omission for proposals These subjected they had thought Carolina North Virginia and enacted, and III Article under suits citizen themselves thus, no is, There so.20 done have not to they wished that drafted III as Article that resolutions their suggestion law natural indefeasible an odds fundamentally at essence to the went that conception or with sovereignty, ratify- the state events, At all State. be a meant what question clarification need felt ing conventions’ amendments] proposed [the no evidence is “there says Court they or immunity sovereign the question toward directed were suits private subject would understanding reflect evi No Ante, 725. as drafted.” III Article under consent without would themselves, which amendments proposed is, except dence, that omis proposed If Clause. Diversity Citizen-State omitted suits, one private going not evidence sion Court, satisfy would what wonders state suability demonstrates that uncertainty surrounded the matter even at the moment of ratification. This uncer- tainty set the stage for the divergent views expressed in *63 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 expect would to find it reflected somewhere in the five opin ions delivered by the Court in Chisholm v. Georgia, 2 Dall. (1793). Yet that view did not appear in any of them. And since a bare years two before Chisholm, the Bill of Rights had been added to original Constitution, if the Tenth Amendment had been understood give federal con stitutional status to state sovereign immunity so toas endue it with 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. presented Chisholm 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).21 rep In
21The case had first been brought before the Federal Circuit Court for the District of Georgia, over which Justice Iredell and District Judge Na thaniel Pendleton presided. had Ultimately, Justice Iredell held that the Circuit Court had jurisdiction no in the case because Congress had not conferred such jurisdiction on it. See 5 Documentary History of the Su preme Court of the United States, 1789-1800, pp. (M. 128-129, 154 Marcus 1994). ed. Georgia had maintained that it was “a free, sovereign, independent State, and... cannot be drawn or compelled, nor at any Time Framer22 Randolph, Edmund Chisholm,
resenting necessity for argued only General, Attorney then rights private vindicate forum a federal conception traditional any rejected but id., 422, at see States, States, sovereignty said He sovereignty. to juris barrier no id., acknowledged, he newa produced Constitution present “the because diction, immediately origin derives It things. order these assemblages fact are .... people ibid. to process,” liable are who individuals sovereignty argument up took Wilson Justice conception aon Building vociferously. more people Pennsylvania expressed already had he sovereignty *64 an- to compelled or drawn be could be, or to accustomed been hath past of Justices any before Georgia, of State said the ofwill the against swer Justices any before or Georgia of District for the Court Circuit federal Jurisdiction, Oct. to Plea whatever.” Equity or Lawof Court any of apparent plea to demurred Chisholm id., at 148. 17, 1791, to compelled be not could Georgia that alleged plea while that ground federal that declared expressly III court, Article any before appear citizens State between controversies all to extended judicial Jus- opinion, unreported his In id., 144. at Demurrer, State. another of plea that stated first He demurrer. with dispensed Iredell tice 150. Id., at jurisdiction. lacked Court District that alleged sufficiently au- constitutional Congress’s existence case, the any in that added He citizens a State between controversies hear courts to create thority such created fact in had Congress that mean not did State another right that out pointed Iredell Third, Justice 151. Id., at courts. mean not did party awas a State in cases courts create bar, because the one like cases in jurisdiction confer could Congress “where situations only refer might III Article "controversies” word court. maintained” been have formerly could' controversies such lia- bemay Sovereigns State particular of a jurisdiction “under Since property England “[i]n others,” just but instances in some ble Process, tho’ adverse affected be can' crown possession money,” a sum recovery for the sued cannot King certainly III Article conditions some under Iredell Justice ibid., appeared it States. suits authorize did not signer. but not 22Framer ratifying convention, see supra, 777-778, he began not- ing what he took to be the pregnant silence of the Constitu- tion 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 would not, perhaps, have comported with the delicacy those, who ordained and established that Constitution. They might announced themselves ‘SOVEREIGN’ people of the United States: But serenely conscious of the fact, they avoided the ostentatious declaration.” 2 Dali., at 454. ifAs to contrast his own directness23 with the Framers’ deli- cacy, the Framer-turned-Justice explained in no uncertain terms that Georgia respect jurisdiction (even in a case): diversity
“As a Judge this Court, I know, and can decide upon the knowledge, 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 Supreme or sovereign Power to that State; but, as to 23 Justice Wilson hinted that in his own private view, citizens of the States had not conferred sovereignty in the sense of absolute authority upon their state governments, because they had retained some rights to *65 themselves: “[A]ccording to some writers, every State, which governs itself without any dependence on another power, is a sovereign State. Whether, with regard to her own citizens, this is the case of the State of Georgia; whether those citizens have done, the individuals of England are said, by their late instructors, to have done, surrendered the Supreme Power to the State or Government, and reserved nothing to themselves; or whether, like the people of States, other and of the States, United the citizens of Georgia have reserved the Supreme Power in their hands; own and on that Supreme Power have made the State dependent, instead of being sovereign; these are questions, which, to as a Judge in cause, this I can neither know nor suggest the proper answers; though, as a citizen of the Union, I know, and am know, interested to that the most satisfac tory answers can given.” be Chisholm, Dall., (citation at 457 omitted). themselves. toit Union, retained the purposes of Georgia is therefore, Union, purposes
toAs of 457. Id., sovereign State.” a NOT of conception law natural any reject necessarily to was This American to inherently attached immunity as sovereign iden- toon went Wilson Justice all. not this State, but system feudal immunity in of origin tify com- and England brought said, been he had, that Black- quoting After Conquest. Norman law mon developed had itas doctrine of formulation stone’s terms disapproving most init discussed he England, imaginable: no sovereign and King is [that the position last
“This branch only a him] is over jurisdiction can court plan on principle, extensive more a much Eng- lately formed been has despotism systematic care. assiduity and unwearied prosecuted land, and ifwas, Commentaries author plan the thisOf has He supporter. great at least introducer, and known; less and. later by writers followed been of the side this and other on the both have, his doctrines those, received generally and implicitly been Atlantic, conse- their nor principles their examined neither who be must law human all is, principle The quences[.] mean I principle This superior. by prescribed say, an- present it, Suffice examine. now opera- nature in its very different principle, other sound basis judgment, my forms, tions, pure derived laws jurisprudence; genuine founded be must justice equality source require. they obedience whose those, CONSENT found must source, his traced sovereign, when at 458. Id., man.” in the ideology and revolutionary rousing conclusion
With thought the he no doubt left Wilson rhetoric, Justice *66 doctrine of sovereign immunity entirely anomalous in the Republic. American Although he did speak specifically of a State’s immunity in its own courts, his view necessarily requires that such immunity would not have justifiable been as a tenet of absolutist natural law. Chief Jay Justice took a less vehement tone in opinion, his but he, too, denied the applicability of the doctrine of sover- eign immunity to the States. explained He the doctrine as an incident of European feudalism, id., at 471, and said that by contrast,
“[n]osuch ideas obtain here; at the Revolution, the sov- ereignty devolved on the people; they are truly the sovereigns of the country, they but are sovereigns with- (unless out subjects slaves among us may African called) be so and have none govern but themselves; the citizens of America equal are as fellow citizens, and joint as tenants in the sovereignty.” Id., at 471-472. From the difference between the sovereignty princes that of the people, Chief Jay Justice argued, it followed that a State might be sued. When a State sued another State, agreed all it could do in federal court, all the people of one State sued all the people of the other. why '‘But it should be more incompatible, that all people of a State should by sued one citizen, than one hundred thousand, I cannot perceive, process in both being cases alike; and the conse- quences of a judgment alike.” Id., at 473. Finally, Chief Jay Justice pointed out, Article III authorized suits between a State and citizens of another Although State. the Chief Justice reserved judgment on whether the United States might be sued given citizen, that the courts rely must on the Executive to implement their decisions, he made clear that this reservation practical, and not theoretical: “I wish the State of society was so improved, far and the science of Government advanced to degree such a perfec- tion, as that the whole nation could in peaceable course *67 by individual sued be justice, to do compelled law, be
of not Jay did Justice Although Chief 478. Id., citizens.” immu- sovereign state of question to the specifically speak not considered he that theory shows court, his nity in state sovereign; and be collectively, to people the States, but that denied would he think to no reason thus is there to claim any state override could Nation people Nation. committed a matter immunity in sovereign language express on relied opinion Cushing’s Justice in sued might be Georgia that to hold III of Article sov- States’ that objection shortly with He dealt court. would States that so thereby restricted be ereignty would all States corporations, “As corporations: reduced be ques- only The politic. bodies or corporations are whatever Observing 468. Id., at powers?” their are what is, tion nu- powers limits the Constitution that can force argument "no concluded ways, he merous been it has Where of States. sovereignty taken be indispen- greater necessary for thought abridged, it isit opinion, From Ibid. whole.” of the good sable thought Cushing Justice certainty what tell possible his although court, immunity in state sovereign about wrote, he case, suggestive. is introductory remark although England, practice or law upon the “turns thereby, nor elucidated measure some may in be perhaps upon but whatever; country any other law of upon the States.” United people by the established Constitution viewa sympathy no had he clear It Id., 466. untouch- statehood immunity inherent authority. legislative by national able III, Article Cushing, relied Justice Blair, like Justice sov- acknowledged state he opinion shows his brief court. in state law immunity, common but ereign verdict whether hypothetically asked Blair First, Justice plaintiff if the preclusive would plaintiff against any mode State, his renew “should which may she permit herself to be sued in her own Courts.” Id., at 452. Second, he commented that there was no need to require the plaintiff proceed by way petition:
“When sovereigns are sued in their own Courts, such a may method have been established as the most respect- ful form of demand; but we are not now in a State-Court; *68 and if sovereignty be an exemption from suit any in other than the sovereign’s own Courts, it follows that when a State, adopting the Constitution, agreed has to be amenable to judicial power of the United States, she has, in that respect, given up right her sovereignty.” Ibid. It is worth noting that for Justice Blair, 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 769, suits as right against the State were authorized statute. Justice Blair called sovereignty “an exemption from suit any in other than the sovereign’s own Courts” because he assumed that, in its own courts, a sovereign will naturally permit itself be to sued as right. Justice Iredell was the only Member of the Court to hold the suit could not lie; but if his discussion was far- reaching, his reasoning was cautious. Its core was that 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 opin ion). Although Justice Iredell added, in what he clearly identified as dictum, that he was “strongly against” any con struction of the Constitution “which will admit, any under circumstances, a compulsive against a State for the re covery of money,” ibid.,24 he made it equally clear that he
24The basis for the dictum may be found earlier in the opinion, where Justice Iredell explained that it was uncertain whether Article Ill’s exten sion of the federal judicial power to cases between a State and citizens of another State “is to be construed as intending merely a transfer of juris- doctrine law a common as sovereign
understood with independence: the States to passed it ap- England, law common part other “No but this subject, to reference any can have me, pears remedies which prescribes of it that part instance every Union in the State Every crown. delegated been has sovereignty where sovereign, as to be compleatly States, I consider United surren- powers are respect States the United all as to sovereign are States United dered. Each State surrendered: actually of Government powers reserved. all the powers as to the Union States United because so, necessarily must It as the such but authority to any no claim authorizing Legislature another, or as one tribunal diction a State controversies possible allof for the decision laws provide *69 exemp any prior regard individual, without involved may be III Article that believed to have seems Iredell Id., Justice at 436. tion.” intended words, the Framers that former; other only authorized some only where State a against in suits jurisdiction III Article permit Ire- in Justice Because claim. a hear such also could court existing other State a against suits hear nowhere could view, courts state dell’s probably III Article 434-435, that it followed id., ratification, see time said, it must reasoning, Iredell’s Justice suits. such authorize not did Justice today. adopts the Court reasoning from markedly differed jurisdic extending III in Article Clause that simply believed Iredell did State another citizens a State between to controversies tion found Congress authority lawmaking any extra confer other con of no conceive could he Because the Constitution. elsewhere of ac right private to create Congress authorizing provision stitutional course, Today, exist. could that none State, he concluded against tion create Congress authorizes power commerce that the isit established Metro Antonio San Garcia See States. against rights private takes today (1985). The Court S. 528 U. Authority, 469 Transit politan suit from immunity state arguing tack different altogether Tenth preserved of States right inherent anwas court argu of this thought might Iredell Justice Whatever Amendment. his opinion. support no ment, gets have surrendered to them: Of course part not sur renderred must remain as it did before.” Id., at 435. This did not mean, of course, that the States had not dele- gated to Congress 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 (Jay Justices Wilson), one of whom had present been at the Constitutional Conven-
tion, took a position suggesting that States should not enjoy (however conceived) even in their own courts; one (Cushing) was essentially silent on the issue of sovereign immunity in state (Blair) court; one took a cautious position affirming the pragmatic view that sovereign immu- nity was a continuing common law doctrine and that States permit would themselves as 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 right indefeasible of statehood, and neither counsel for Georgia before the Circuit Court, see n. 21, supra, nor Justice Iredell seems even to have conceived the possibility the new Tenth produced Amendment equivalent of such a doctrine. This dearth of support makes it very implausible today’s Court argue that a substan- (let tial dominant) alone a body of thought at the time of the framing understood sovereign immunity to be an inher- right ent of statehood, adopted or confirmed by Tenth Amendment.25
25It only makes matters worse for the Court that two States, New York and Maryland, voluntarily subjected themselves to suit in the Supreme Court around time of Chisholm. See Marcus Wexler, & Suits Against States: Diversity of Opinion in the 1790s, 1993 J. Sup. Ct. 73, Hist. 74-78. At the Court’s February Term, 1791, Chisholm, before Maryland entered plea (probably as merits) to the in Van Staphorst v. Maryland, see 1993 J. Sup. Ct. Hist., 74, at a suit brought by a foreign citizen for debts owed by the State, but then settled the suit to avoid the establishment of
790 recognition obvious its in evident is discomfort Court’s The state of conception Amendment Tenth or law its natural
that stands. if Chisholm insupportable is immunity sovereign opin- Chisholm the to discount attempt Court’s the Hence fails. it I believe which enterprise in ions, an (1890), 1S.U. Louisiana, citing Hans Court, The Chisholm, “overruled” Amendment Eleventh says that The point. is beside animadversion but ante, at and that indication its is Chisholm significance hardly assumed (indeed, assumed generally was it own its suit immunity from sovereign all) a State’s that at ad- law, merely a common and inherent, anwas courts eminent testimony five contrary, the vantage. On everyone who virtually that day confirmed legal minds common aas it saw legitimate be immunity to understood subject was it that (from follows it prerogative law Congress’s within matter to a Congress abrogation authority). I Article arguments trio better no does Court majority Chisholm that legitimacy: Chisholm’s undercut understanding or the practice either to address “failed was Constitution time at States in the prevailed that deci- suspected majority “the 721; ante, at adopted,” ibid.; surprising,” unpopular be would sion the United acknowledged that majority Members “two despite” Article immune might remain well go course, not, do claims three These 722. ante, at III, under- was question whether case, any but “inherent,” or “fundamental” stood convincing. of them none York, Newv. Oswald In id., 75. see immunity, precedent an adverse after continued but Chisholm before that commenced action Hist., Ct. Sup. J. see jurisdiction, objected initially York it, New Court, after Supreme jury ato tried suit was 77, but the id., treasury, State’s out verdict jury fell lost, paid York New at 78.
With respect first, Justice Blair in fact did expressly refer to the practice of state sovereign immunity court, and acknowledged the petition of as an right appro- priate and normal practice. This aside, the Court would have a legitimate if point it could show' that the Chisholm took majority insufficient account of a body practice that somehow indicated a held widely absolutist conception state sovereign immunity untouchable and untouched by Constitution. But of course it cannot.26 As for the second point, it is a remarkable doctrine that would hold anticipation of unpopularity benchmark of constitutional error. In any event, the evidence proffered Court is merely this: that Justice Wilson thought prerevolutionary conception sovereignty misguided, Dali., at 454-455; that Justice stated Cushing axiomatically the Constitution could always amended, id., at 468; that Chief Justice noted Jay that the losing defendant might still come to understand that sovereign incon- sistent with republicanism, at id., 478-479; and that Attorney
26The Court thinks that Justice Iredell’s adversión to state practice gives reason so, think ante, see at 721 (“[Djespite opinion of Justice Iredell, the majority failed to ...”), address Even if Justice Iredell had been right about state practice, failure to respond to a specific argument raised (as another Justice opposed counsel) has even less significance with respect to this early Supreme Court opinion than it would have today, because the Justices may not have afforded one another the opportunity to read their opinions before they were announced. 1See J. Goebel, The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States, Antecedents and Beginnings to 1801, (“There p. (1971) are hints... that there may have been no conference and that each Justice arrived his conclusion independently without knowing what each of his brethren decided”). had Indeed, since “opinions were given only orally in the Supreme Court in 1790s,” 5 Documentary History of the Su preme Court, supra 21, n. n., it is possible that the opinion as reported by Dallas followed a document prepared by Wilson after the oral announcement of the opinion, ibid.; id., see also at xxiv-xxv, in which case it is possible that the other Justices never heard certain arguments until publication. *72 espoused he position the that Randolph admitted
General
State,
in another
Georgia, but also
only in
not
unpopular
was
proposi-
the
to
down
boil
items
These
Virginia.27
probably
a
such
not, with
(as
could
who
knew
Justices
the
that
tion
sig-
the
conventions
ratifying
him)
the
at
that
before
case
awas,
still
itas
been,
immunity had
sovereign
of
nificance
but
from,
detract
reality does
This
dispute.
of
matter
rec-
to
intent
no
showed
Framers
the
that
view
the
confirms,
immutably inherent
anas
sovereign
ognize
the States.
of
the
that
noted
Justices
two
that
objection,
third
to the
As
immunity notwith-
possess
might
States
United
that
785-786,
at
supra,
explained,
I
III,
standing Article
practi-
purely
was
possibility
thought this
Jay
Justice
Chief
for
implication
any
without
legal, and
at all
cal, not
so
Cushing was
Justice
claims.
immunity vis-a-vis
“If
wrote,
he
that
raised
he
possibility
by the
troubled
little
Chisholm,
so,”
be
must
consequence,
necessary
abe
reading that
textual
a
suggested
simply
at
supra,
consequence.
a different
led
might have
enact
the
that
claim
on its
good
make
Court
the
can
Nor
reestab
retrospectively
Amendment
Eleventh
the
of
ment
time
the
at
established
already been
had
that
view
lished
one
but
all
of
perception
eluding (though
framing
of
,
to .
.
“acted
Court),
hence
Supreme
Member
722.28
ante, at
design,”
constitutional
original
restore
dear
always
be
must
will
State, whose
"another
27The circumlocution
seems
It
State.
home
Randolph’s
419, hints
Dall., at
Chisholm, me,”
his
unpopularity
acknowledgment
Randolph’s
that
suggest
odd
view
that
thought
support
somehow
would
in two
position
Vir
at the
position
same
urged
had
himself
Randolph
incorrect.
was
perfectly
knew
775-776, and so
supra,
convention, see
ratifying
ginia
might
position
his
that
knowledge
full
ratified
had
Virginia
well
the law.
of Penn
Court
Supreme
argued
case
to note
interesting
It is
version
urged
Commonwealth
counsel
1798, which
sylvania
language
“[t]he
here,
said
makes
Court
point
of the
Constitution,
alteration
import
indeed, does
amendment,
There was nothing “established” about the position espoused
Georgia
the effort
to repudiate
its debts, and Court’s implausible
suggestion
the contrary merely echoes
the brio of its remark in Seminole Tribe that Chisholm “contrary
the well-understood
meaning
the Constitu-
tion,”
immunity was not the subject of universal consensus in the enact ment of the Eleventh Amendment brought the doctrine into the constitu tional realm. The strongest form of this view must that, maintain not withstanding the Amendment’s silence regarding state courts and its exclusive focus on the judicial federal power, the motivation of the fram ers of the Eleventh Amendment must have been affirmatively to embrace position that the States enjoyed the immunity from suit previously enjoyed by the Crown. On this account, the framers of the Eleventh Amendment said nothing about sovereign immunity in state court because it never occurred to them that such immunity could be questioned; had they thought of this possibility, they would have considered it absurd that States immune in federal court could be subjected to their own courts.
The first trouble with this view is that it assumes that the Eleventh Amendment was intended to reach all suits, federal-law and not only those arising under diversity jurisdiction. If the framers of the Eleventh although realize then, be surprising, should It (as the disapproving was -post-Chisholm discussion much had decision off), the cut debt escape their saw States interpre their defending as vigorous bit “every champions partisans those as were Constitution of the tation Against Suits Wexler, & Marcus issue.” of the side other Ct. Sup. J. 1790s, 1998 The In of Opinion Diversity States: Supreme of the g., Documentary History e. see, 73, 83; Hist. 268-269 262-264, 252-253, 251-252, supra 21, at n. Court, Doc in Chisholm5 holding supporting articles (newspaper supra, Court, Supreme History umentary in support Senate Delaware a committee (statement diversity Chisholm). citizen-state holding Article Amendment; Eleventh settled was jurisdiction “restored.” was III prepared was Court eases, as the diversity only mind had in
Amendment (“The dealt text S., 69-70 U. Tribe, see in Seminole to concede in Chisholm.... decision presented problem with the only terms prospect given thought much unlikely seems [I]t fol plausibly might States”), then over jurisdiction federal-question possessed assumed Amendment of that framers *74 that the low itBut law. respect courts own their immunity in sovereign have would authors Amendment’s that the follow not does certainly fed of questions court in state immunity enjoyed that thought of framers that believe one require would accept this To law. eral applica extremely anomalous to an blind were Amendment Eleventh it when even immune is State which immunity, under sovereign of tion 797-798, 800. sued, infra, c£ it is under law of the the font im sovereign that misapprehension under labor today may The Court Court law, but font is not sovereign where apply munity can Amend Eleventh of the the framers that suggest no evidence adduces Court than closer much were framers And a view. held such ment lawof font to which according immunity theory to the Court leaves This law. under subject to may means Amendment Eleventh what view supporting position toit intended must the framers assertion “historical” same. mean
P It is clear enough the Court has no historical predi- cate to argue for a fundamental or inherent theory sover- eign immunity limiting authority elsewhere conferred by the Constitution or as imported into the Constitution by the Tenth Amendment. But what if the facts were otherwise and a natural law conception state sovereign a State’s own courts were implicit in the Constitution? On good authority, would avail the State nothing, and the Court would be no less mistaken than it is already sustain- ing State’s claim today.
The opinion of this Court that comes closer to embodying
the present majority’s inherent, natural
law
theory
sover-
eign immunity than any other I can find was written by Jus-
tice Holmes in Kawananakoa v. Polyblank,
30The temptation to look to the natural law conception had shown up
occasionally before Justice Holmes’s appointment, and goes back at least
to Beers v. Arkansas,
was 1952) (“The ju (1920, reprinted Papers Legal Collected that in be to me seem law in natural believe who rists familiar been has what that accepts mind of naive inBut accepted”). be must that something as ... accepted the of restatement a cogent only not he gave Kawananakoa in that one but immunity, sovereign of view law natural formulation) ex Hamilton’s from (omitted a feature cludes sovereign of version absolutist most the even why plaining position Court’s the refutes actually doctrine immunity law natural the under that to realize fails Court the today: sov the only invoked bemay immunity sovereign theory, is suit which upon right the source is the that ereign “A expressly: so said Holmes Justice brought. or conception formal of any because suit, from exempt that ground and practical logical on the but theory, obsolete that authority the as against right legal no can there Kawanana- depends.” the right which on law the makes supra, koa, at 353. more much the in but England, law common the in solely roots U.S., at nations.’”” civilized all in “jurisprudence
fundamental Arkansas, supra, at v. Beers quoting 17, in turn Hans, at supra, (quoting should view law natural seduction occasional 529). Court’s The approach. law the common adherence basic however, obscure not, “the that explained (1882), Court Lee, S. 106 U. In United ancestors,” English our practices laws from is derived doctrine as been “has right petition approvingly id., added 205, and at cases all in crown against suitors rights securing the efficient law affords proceedings, judicial appropriate themselves,” ibid. among controversies legal King of the subjects sover- given reason one law common at notice toon went Court running writ King’s of the “absurdity” eign United situation distinct but, recognizing id., King, solid what to see difficult “it is candidly that admitted States, Court rests,” ibid. liability exemption of principle foundation heritage law the common detail great discussed there dissent Even J.). Gray, (opinion id., 227-234 See doctrine. *76 His cited authorities stand in the line that today’s Court purports to follow: Hobbes, Bodin, Sir John Eliot, and Baldus de Ubaldis. Hobbes, in the cited work, said this:
“The sovereign of a Commonwealth, be it an assembly or one man, is subject to the civil laws. For having power to make and repeal laws, may, he when he pleaseth, free himself from that subjection by repealing those laws that trouble him, and making of new; and consequently he was free before. For he is free that can be free when he will: possible nor is it 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.” Leviathan, ch. p. 26, §2, 130.
Jean produced Bodin a similar explanation nearly three- quarters of a century before Hobbes, see J. Bodin, Les six livres de la république, Bk. 1, (1577); ch. 8 Six Books of (M. Commonwealth 28 Tooley 1967) (“[T]he transl. sovereign ... cannot in any way subject be to the commands of another, for it is law”). he who makes Eliot cited Baldus for the crux of the theory: majesty is “a fulness of subject to noe necessitie, limitted within no rules publicke Law,” 1 J. Eliot, De Jure Maiestatis: or Political Treatise of (A. Government 15 1882), Grosart ed. and Baldus himself made point in observing that no one is bound his own statute as of necessity, see Commentary of Baldus on the statute Digna vox in Justinian’s Code 1.14.4, super Lectura Codice folio 51b (Chapter De Legibus et constitutionibus) (Venice (“nemo 1496) ed. suo ligatur statuto necessitate"). “jurists who believe in natural law” might have re- proved Justice Holmes for general his skepticism about intrinsic value of their views, but they would not have faulted him for seeing consequence position: their if the sovereign is not the source of the law to be applied, sov- ereign immunity has no applicability. Justice Holmes indeed explained that in the case of multiple sovereignties, sub- source where immune sovereign will ordinate See dominant. is action right (District of Columbia atS.,U. Kawananakoa, are rights there private suit, because private immune *77 not legislature by a not Congress controlled “created from proceeds case in this District”). the law Since the of I are by Article authorized laws source, whose national the de- abe immunity cannot sovereign courts, binding state in Transit Metropolitan Antonio v. San Garcia After fense. im- logically Holmes’s (1985),Justice S. Authority, U. ain even that conclusion clear the theory yields peccable immunity, State sovereign of “fundamental” system aon courts own its nomine eo suit subject to be would claim. logic save trap of Holmes’s the escape is no There sovereign im of doctrine the that argument the recourse immunity inherent necessary or rationally the munity is de to a contingent, and historically but civilians, if But law. common immunity illogical, gree immunity sovereign source admits Court doc law common admit also must it law, common Com acting under Congress changed be could trine Court way the say which to me for is not It Clause. merce Alden’s clear it is ease either but turn; should go forward. should
II con aon holding based today’s for rationale Court’s The fundamental somehow ception any lack for fails in statehood inherent or sovereignty thinking of conception such for support substantial yet, out counted cannot Court founding era. looking argument line a second has however, or conception law natural reception of a clause-based Sem see principle,” “background as a recognition even basis structural ato but atS.,U. Tribe, inole Immunity, the system. a federal creation Constitution’s Court says, “inheres in system of federalism established by the Constitution,” ante, at 730, its “contours [being] de- termined by the Founders’ understanding, not by princi- ples or limitations derived from natural law,” ante, at 734. Again, “[w]e look both to the essential principles of federal- ism and to the special role of the state courts in the constitu- tional design.” Ante, at 748. That is, the Court believes that the federal constitutional structure itself necessitates recognition of some degree of state autonomy broad enough to include sovereign immunity from suit in a State’s own regardless courts, of the federal source of the claim asserted against the State. If one were to read the Court’s federal structure rationale in isolation from the preceding portions of the opinion, it would appear that the position Court’s state sovereign immunity might have been rested entirely *78 on federalism alone. If it had been, however, I would still be in dissent, for the Court’s argument that state-court sov- ereign immunity on federal questions is inherent in the very concept of federal structure is demonstrably mistaken.
A The National Constitution formally and finally repudiated the political received wisdom that a system of multiple sov- ereignties constituted “great the solecism of an imperium imperio,” cf. Bailyn, The Ideological Origins of the American Revolution, at 223.31 Once “the atom of sovereignty” had split, been U S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 31The of authority the view that Parliament’s sovereignty must be indi visible had already been eroded in the decade before independence. Ire- dell himself, as early as 1774, rejected the applicability of the theory “to the case of several distinct and independent legislatures each engaged within a separate scale and employed about objects,” in the different course of arguing for the of possibility a kind of proto-federalist relation ship between the Colonies and the King. Iredell, Address to the Inhabit ants of Great Britain, in 1 G. McRee, Life and Correspondence of James 205, 219 Iredell (1857, reprinted 1949); see Bailyn, The Ideological Origins of the American Revolution, at 224-225, and n. 64. 800 of scheme general concurring), J., (1995) (Kennedy,
838 gov- component two the as between sovereignty delegated succinctly was and clear, system federal the of ernments the America, powers “In Marshall: Justice Chief stated the government the between divided are sovereignty sovereign, each are They States. the those and Union, sov- neither and it, to committed objects the to respect with other.” the to committed objects the to respect with ereign (1819).32 410 Maryland, Wheat. McCulloch The federalism. to appeal Court’s the flaw Hence national respect is not Maine State authority is It FLSA.33 objectives action right FLSA, promulgated acting States United is authority That depends. case Article under legislative whose Congress, through em- coverage FLSA extend Constitution I Antonio v. San Garcia see decided, been already has ployees eon- is supra, Authority, Transit Metropolitan here. tested state of, the corollary is with, indeed consistent entirely is This within subject, more ‘“no are States Court quoted
ment
author
general
than
authority
general
spheres,
respective
their
”
The
Ante,
(quoting
sphere.’
own
them, within
subject
is
ity
Madison)).
point
1961)(J.
(C.
ed.
Rossiter
39, p.
No.
Federalist
sphere,
within
are
law
to federal
subject
matters
matters
such
where
authority
general
to the
subject
are
so
*79
concerned.
are
“anomaly,”
theof
talk
Court
for the
circularity
sheer
therefore
It is
law
federal
sued
be
could
if State
arise
would
752,that
ante, at
court,
federal
law
under
sued
be
may
courts,
when
own
short and
(1996). The
U. S.
Florida, 517
Florida
Tribe
Seminole
Elev
creation:
own
Court’s
is the
anomaly
is that
answer
sufficient
against
suits
federal-question
bar
never intended
Amendment
enth
Tribe,
opin
Seminole
is that
anomaly
court.
in federal
now
Amendment, should
Eleventh
in the
grounded
purportedly
ion
courts, to
state
state
argue
a lever
used as
apply.
does
terms
by its
Amendment
Eleventh
Nor can it be argued that because the State of Maine cre
ates its own
system,
court
it has authority to decide what
sorts of claims may be entertained there, and thus in effect
to control the right of action in this case. Maine has created
state courts
general
jurisdiction; once it has done so, the
Supremacy Clause of the Constitution, Art. VI, cl. 2, which
requires state courts to enforce federal law and state-court
judges to be
bound
it, requires the Maine courts to enter
tain this federal cause of action. Maine has advanced no
“
”
Valid excuse,’ Howlett v. Rose,
B It is symptomatic of the weakness of the structural notion proffered by the Court that it seeks to buttress the argument by relying on “the dignity and respect afforded a State,
34Perhaps as a corollary to its view of sovereign immunity as to some degree indefeasible because “fundamental,” the Court frets that “power to press a State’s own courts into federal service to coerce the other branches of the State ... first to turn the State against itself and ultimately to commandeer the entire political machinery of the State against its will and at the behest of individuals.” Ante, at 749. But this is to forget that the doctrine of separation of powers prevails in our Republic, When the state judiciary enforces federal law against officials, as Supremacy Clause requires it to do, it is not turning against the State’s executive any more than we turn against the Federal Execu tive when we apply federal law to the United States: it is simply upholding the rule of law. There is no “commandeering” of the State’s resources where the State is asked to do no more than enforce federal law.
802 749 ante, protect,’” to designed immunity is the
which S. 521 U. Idaho, Tribe d’Alene Coeur of Idaho (quoting State’s aon many demands invoking the (1997)),and Era by Gilded beguiled Apparently 750-751. ante, at fisc, “ ‘neither States against suits private describing language ” Ayers, re In (quoting ante, at convenient,’ becoming nor “immunity from calls (1887)), Court 443, 505 S.U. 715, and ante, at dignity,” to central suits private from easily translated quality ais “dignity” this assumes aof abstraction participatory to King of person (“[Congressional ante, e.g., see, State, republican nonconsenting suits private authorize to to . offensive . be . would courts own their of character anomalous thoroughly The sovereignty”). Blaekstone’s reading of from obvious is dignity to appeal premise aas out sets he dignity, which royal description sovereignty: discussion of his every monar Under dignity. royal then,
“First, distinguish necessary to is establishment, it chical ascribes therefore law subjects.... his prince tran great a attributes certain . king .. to consider led are people by which nature; scendent him pay being, superior aof light him ease greater him may enable respect, which awful I what is This government. business carry on branches several dignity, royal by understand 1 Blackstone to examine.” proceed now we will which *241. inimical more anything imagine hard It would understanding of rests conception,
republican them, above government precisely citizens its their just like by law governed being actions them, but American may be for there justification Whatever own. *81 government’s immunity private suit, it is not dignity.35 See United States v. Lee, 106 U. S. (1882). 196, It is equally puzzling to hear the Court say that “federal power to private authorize suits for money damages would place unwarranted strain on the States’ ability govern accordance with the will of their citizens.” Ante, at 750- 751. So long as the citizens’ expressed will, through state legislation, does not violate valid federal law, the strain will not be felt; and to the extent that state action does violate federal law, the will of the citizens of the United States al- ready trumps that of the citizens of the State: the strain then is not only expected, but necessarily intended.
Least of all does the Court persuade by observing that “other important needs” than that of “judgment credi- tor” compete public for money, ante, at 751. “judgment The creditor” question is not a dunning bill collector, but a citizen whose rights federal have been violated, and a consti- tutional structure that stints on enforcing rights out of an abundance of delicacy toward the States has substi- politesse tuted place of respect for rule of law.36 35Furthermore, the very idea of dignify ought also to imply that State should be subject to, and not of, outside the law. It is surely ironic that one of the lod dassid of Roman law regarding the imperial preroga tive begins (and is known by) the assertion that it is appropriate to the Emperor’s dignity that he (or, acknowledge on some readings, at least daim) that- he is bound by the laws. See Digna Vox, Justinian’s Code 1.4.14 (“Digna vox regnantis maiestate legis alligatum se princvpempro- ftteri”) (“It is a statement worthy of the majesty of the ruler for the Prince to profess himself bound the laws”); see Pennington, The Prince and the Law, 1200-1600, at 78, and n. 6. 36The Court also daims that subjecting States to suit puts power in the hands of state courts that the State may wish to assign to its legislature, thus assigning the state judiciary role “foreign to its experience but beyond its competence-” Ante, at 752. This comes perilously dose to legitimizing political defiance of valid federal law. I I I basis supply can structure nor theory neither If federalism, conceptions Court’s believes apparently Court might. history perhaps then entertained historically courts because claims federal-law based Clause Commerce unconsti a presumption carries innovation States, such stat absence *82 that ante, (arguing 744 at See tutionality. suggests court state suits authorizing utes to has it outset, theAt power). such absence assumed an record cohesive more a assumes approach that noted be Public Carolina South v. Hilton In affords. history than a case J.), (1991) (Kennedy, 197 502 Comm’n, S.U. Railways 737,37 ante, at see distinguish, to mightily labors the Court state sued could railroad state-owned that held we C.S.U. Act, 45 Liability Employers’ Federal under court congres express lack notwithstanding §§51-60, does Amendment Eleventh “The because statement, sional ” swpra, (quoting Hilton, at 205 courts.’ state apply not 58, 63-64 Police, S. 491 U. State Dept. Michigan Will v. unkempt, less were record if even But (1989)).38 away explain to attempts 37 Court Hilton, the discussion In its acknowledging defense immunity sovereign raise failure State’s to the appeared have may decided, “it was case that when that candidly any immunity its abrogate Congress’ that State The Ante, 737. all.” the Constitution limited not court State, but only appeared that suggests of Hilton reasoning state abrogate could Congress Court, that also no been have would not, there then could Congress If court. in state constitutional hinted even never Court case. in the jurisdiction even suit, bar Amendment, might Tenth less structure, much underlying federalism principle “the stressed dissent though structure,” 502 constitutional pervades Amendment [Eleventh] J.). O’Connor, (opinion 209 S., at U. of the (1885), one S. Greenhow, U. Poindexter does Nor assumption comfortably Cases, fit Coupon Virginia governments own their over jurisdiction disputed no exercised courts issued had 1871,Virginia ofAct Funding Under questions. problem with arguing from historical practice in this case is that past practice, even if unbroken, provides no basis for demanding preservation when the conditions on which the practice depended have changed in a constitutionally rele- vant way. It was at one time, though perhaps from the framing,
believed that “Congress’ authority to regulate the States
under the Commerce Clause” was limited by “certain under-
bonds that specified on their face that
the attached coupons should be
receivable at and after maturity for all taxes, debts, dues, and demands
due the
Id.,
State.
at 278.
In 1882, however, Virginia passed a law re-
quiring its tax collectors to accept
but
nothing
gold, silver, or currency in
payment of
Id.,
taxes.
at 275. After the bonds reached maturity, Poin-
dexter used them pay
state property taxes; Greenhow, the local tax
collector, ignored the payment and
possession
took
of an office desk in
Poindexter’s possession to sell it for unpaid taxes. Poindexter brought a
common law action in detinue against the tax collector in state court for
recovery of
desk,
arguing that the later Virginia statute
use
barring
of the coupons violated the Contracts Clause. Greenhow defended, infer
*83
alia, on the theory that the suit was “substantially an action against the
State of Virginia, to which it has not
Id.,
assented.”
at 285. The Court
rejected this claim by applying to the State of Virginia reasoning
to,
akin
though broader than, that later adopted in Ex parte Young,
If the Framers would be surprised to see States subjected to suit in their own courts under the commerce power, they would be astonished the reach of Congress under the Commerce Clause generally. The proliferation of Govern- ment, State and Federal, would amaze the Framers, and the administrative state with its reams regulations would leave them rubbing eyes. their But the Framers’ surprise say, at, the FLSA, or the Federal Communications Commis- sion, or the Federal Reserve Board is no threat to the con- stitutionality of any one of them, for a very fundamental reason:
“[W]hen we are dealing with words that also are a con- stituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by gifted most begetters. It enough for them to realize or hope that they had cre- ated an organism; it has taken a century and has cost their successors much sweat and blood prove they created a nation. The case before us must be con- sidered in light of our whole experience and not merely in that of what was said a years hundred ago.” Missouri v. Holland, 252 U. S. (1920) 416, 433 (Holmes, J.). “ ‘We must never forget,’ said Mr. Chief Justice Mar- shall [4 McCulloch, at] Wheat., 407, 'that it is a Con- stitution we are expounding.’ Since then this Court has repeatedly sustained the exercise of by Con- gress, under various clauses of that instrument, over objects of which the Fathers could not have dreamed.” *85 808 (1928) 438, 472 U. S. 277 States, v. United
Olmstead dissenting). (Brandéis, J., > hH A ver- anomalous at regret occasions today’s decision If regrettable more is the theory, it history and of sions changed suddenly has Court the time second being the of exercise the limit order decision prior of course the Article the concededly within now subject a authority over requires FLSA, Congress. of jurisdiction I 1938, enacted first wage, was minimum apay employers See employers. acting as States for exemption an with 1966, (1968). In 185-186 183, S.U. 392 Wirtz, Maryland so exemption employer state remove amended it was institutions, and hospitals, workers concerned far Court Wirtz, the In 6.n. 186-187, at id., See schools. ex- argument dissent’s over amendment upheld seri- “such was employees state to these FLSA tending Tenth by the protected sovereignty state invasion ous constitu- our consistent . . . it is Amendment J.). Douglas, (opinion Id., federalism.” tional “ex- time FLSA, amended again Congress In provisions hour maximum wage minimum tending] the employed employees public all almost League National subdivisions.” political various by their other went Court time This 836. at S.,U. Cities, exten- held Court Cities, the League National way: in in- unconstitutional employees to these Act sion fringement meas- good 852; id., sovereignty, reasoning as dismissing its Wirtz, overturned Court ure, 854-855. S., at U. authoritative, see longer no In word. last Cities League National But addressed Court later, years nine some Garcia, decided mass-transit owned municipally whether question *86 system was exempt from the FLSA. 469 S., U. at 634, 536. In that holding it was not, Court overruled National League Cities, see 469 U. S., at 557, this time taking the position that Congress was not barred by the Constitution binding States as employers under the Commerce Clause, id., at 554. As already mentioned, the Court held that whatever protection the Constitution afforded to the States’ sovereignty lay the constitutional structure, not in some substantive guarantee. Ibid.39 Garcia remains good law, its has reasoning not been repudiated, and it has not been challenged here.
The FLSA has not, however, fared as well in practice as it has in theory. The Court in Seminole Tribe created a significant impediment to the statute’s practical application rendering damages provisions unenforceable against the States by private suit in federal court. Today’s decision blocking private actions in state courts makes the barrier individual enforcement a total one. 39 Garcia that, demonstrates contra the Court’s suggestion, the FLSA does not impermissibly act upon the States, ante, see at 714. Rather, the FLSA, enacted lawfully pursuant to the commerce power, treats the
States like other employers. The Court seems to have misunderstood
Hamilton’s statement
“ ‘
in The Federalist No. 15 that the citizens are
“the
only proper objects of government,”’” ante, at 714 (quoting Printz v.
United States,
B practice charge respond might Court argued, Maine for counsel insisting, Garcia vitiated has may States United 11-12, Respondent for Brief under damages State court suit bring Texas, United authority FLSA, Tribe, Seminole also See (1892). 621, 644-645 S.U. does FLSA course, true, is It 14. n. atS.,U. dam- seeking file Labor Secretary authorize sig- plans Congress unless but 216(c), §C.S.U. see ages, litigating Government’s National expansion nificant *87 litigation private whenever lawyer to provide forces allusion Tribe, Seminole decision today’s by barred Govern- National by rights of private to enforcement real- Facing whimsy. than more much not is probably ment “that 1974, as long ago as found, specifically Congress ity, not is Labor of Secretary of capability enforcement a substantial even or in all redress provide sufficient alone forthcoming is compliance where situations of the portion hopes One (1974). 93-690, p. No. Rep. S. voluntarily.” than popular more prove will compliance voluntary such that that suspect today reason no is there for Maine, has it likely would alone Labor of Secretary by enforcement law compliance to assure adequate prove employees million 4.7 some circumstances multifarious Union.40 of the States should enforcement difficulties is The point Congress where simply but decision, Court’s drive implausible damages, right a private created has any without authority a public by enforcement claim af- ever will enforcement its general beyond incentive No remedy. adequate traditionally right the private ford number total 4,782,608 give data available recent most Employ Government State Union, see the 50 employees Data; 1997, http://www.census.gov/pub/govs/apes/97stus.txt. March ment one would think the remedy adequate if private tort claims against a State only could be brought by the National Gov- ernment: the tradition of private enforcement, as old as the common law itself, is the benchmark. But wage claims have a lineage private just enforcement as ancient, and a claim under the FLSA is a claim wages due on performed. work Denying private enforcement of an FLSA claim is thus on par with closing the courthouse door to state tort victims unaccompanied by a lawyer from Washington. So there is much irony in the profession Court’s that it
grounds opinion on a deeply rooted historical tradition of sovereign immunity, when the Court abandons a principle nearly as inveterate, and much closer to the hearts of the Framers: that where there is a right, there must be a rem- edy. Lord Chief Justice Holt could state this as unques- tioned proposition already in 1702, as he did Ashby White, 6 Mod. 53-54, 87 Eng. Rep. B.): (Q. 808, 815 “If an parliament act of be made for the benefit of any person, and he is hindered another of that bene-
fit, necessary consequence of law he shall have an ac- tion; and the current of all the (citation books is so” omitted).41 41The principle is even older with respect *88 to rights created statute, by like the FLSA rights here, than it is for common law damages. Lord Holt in fact argued that the well-established principle in the context of statu tory rights applied to common law rights as well. See Ashby White, v. 6 Mod., 54, at 87 Eng. Rep., ("Now at 816 if this be so in case of an Act of Parliament, why shall not common law be so too? For sure the common law is as forcible as Act any Parliament”). of A still older formulation of the statutory right appears in a note Coke’s Reports: “[W]hen any thing prohibited is by aet, an although that the act doth not give action, an yet action Iieth upon it.” 6 Co. Rep., pt. 12, p. *100. Coke’s yield Institutes a similar statement: “When any act doth prohibit any or wrong vexation, though no action be particularly named in act, the yet the party grieved shall have an action grounded upon this statute.” 1 Coke, E. The Second Part of the Institutes of the Laws of England (1797) 117 (reprinted in 5B 2d Historical Writings in Law and Jurisprudence (1986)). In case, our of course, the statute expressly gives an action. 812 rule, indisputable and general “a considered
Blackstone remedy, legal a also is there right, legal ais there that where invaded.” is right that whenever law, at action or thought the Framers the of generation *23. Blackstone con- their put it into States several that crucial so principle about asked Marshall Justice Chief when And stitutions.42 violated, been right has that right, and a Marbury: has he “If Marbury remedy?,” him country afford of his laws the do rhe- was (1803), question the 137, 162 Madison, Cranch clear: answer and the torical, certainly consists liberty of civil very essence “The of protection the claim every individual right of injury. One receives he whenever laws, protection. afford is to government duties first respect- sued is king himself Britain In Great comply with fails never he and petition, of a form ful Id., 163. at court.” of his judgment frankly saying about qualms no has Court today the Yet Congress damages afforded right rem private a concomitant create cannot FLSA under petitioners; of” benefit “made right was edy. The but benefit”; by another “hindered they been “necessary long understood been has despite what supra, Ashby, cf. action, no they have law,” consequence Court for the do will It Rep., at 815. Eng. 53, at right where available never remedy was respond that is sovereign. A State against question it, pressed claim a federal sovereign when recovery and, itself opened English even Dela Rules Fundamental Rights g., e. See, A Declaration Consti United Documents (1776), 2 Sources § 12
ware State (1776), 4 XVII Const., Art. 1775); Md. (W. ed. Swindler 197, 198 tutions Const., id., 94; Ky. 92, (1780), 5 XI Const., Art. id., 373; Mass. *89 (1796), §17 XI, Const., Art. id., Tenn. 142,150; (1792), at 4 XII, cl. Art. id., 141, 148. unlike Maine, provided the remedy complement the right. To the Americans of the generation founding it would have been (as clear it was to Chief Marshall) Justice if the King would do right, the democratically chosen Government of the United States could do no less.43 The Chief Justice’s
43Unfortunately, and despite the Court's professed “unwilling[ness] to assume the States will refuse to honor the Constitution and obey the bind ing laws of the United States,” ante, presumption the sover eign's good-faith intention to follow the laws has managed somehow to disappear in the intervening centuries, two despite the general trend to ward greater, lesser, government accountability. Anyone inclined to ward economic theories history may look at the development of sover eign immunity doctrine in this country and see that it has been driven the great and recurrent question of debt, both in the aftermath of Chisholm and in the last quarter of the 19th century, see Tribe, Seminole S., 517 U. at 120-122 (Souter, J., dissenting). And no matter what one may think of the quality of the legal doctrine that the problem of state debt has helped to produce, one can at least argue that States’ periodic attempts to repudiate their debts were not purely or egregiously lawless, because those who held state-issued bonds may well have valued and pur chased them with the knowledge that default was a real possibility. Maine’s refusal to follow federal law in the case us, before however, is of a different order. Far from defaulting on debt to creditors, eyes-open Maine is simply withholding damages from private citizens whom they appear to be due. Before Seminole Tribe was decided, petitioners here were the beneficiaries of a District Court ruling to the effect that they were entitled to some coverage, and hence to some amount of damages, under the FLSA. v. Maine, Mills (Me. 889 F. 1993). Supp. us, Before Maine has claimed that petitioners are not covered the FLSA, but only that it is protected from suit. Indeed, Maine acknowledges that it may be sued by the United States in federal court for damages on the very claim, same Brief for Respondent 12-13, and we are told that Maine now pays employees like petitioners overtime as covered by FLSA, id., at 3. Why the State of Maine has not rendered this case unnecessary by paying damages to petitioners under FLSA of its own free will remains unclear to me. The Court says that "it is conceded by all that the State has altered its conduct so that its compliance with federal law cannot now questioned.” Ante, at 759. But the ambiguous qualifier “now” allows the Court to avoid the fact that whatever its forward-looking compliance, the State still has not paid damages to petitioners; had done so, the case before us would be moot. *90 deci Court’s to reacted have might well contemporaries when Randolph by Edmund spoken words today sion Chisholm: jurisdiction to objection to responding in their rights human viewed Framers] must “[The 423. Dall., at form.” mere their essence, V dis- regrettable with forth swung back has Court The States, FLSA enforceability the ruption on one position a defensible had majority present if but sta- expectation with accept its decision at least could naive. would expectation any such is, itAs bility ahead. sovereign today’s state resemblance Court striking. The is process due industrial era’s Lochner constitutional immutable imputing century began this self-reliance economic conception ato status insistently fictional grew life industrial true never century close chosen has Court years, and conception aon conferring status like structure history nor neither true immunity that im- essay into late Court’s expect I Constitution. of the experi- earlier equal of prove will munity doctrine as unrealistic being as one laissez-faire, ment fleeting. as probably indefensible, other,