OCTOBER TERM, 1998
Syllabus
ALDEN ET AL.
v. MAINE
CERTIORARI TO THE SUPREME JUDICIAL COURT OF MAINE
No. 98-436. Argued March 31, 1999-Decided June 23,1999
After this Court decided, in
Seminole Tribe of Fla. v.
Florida, 517 U.
S. 44, that Congress lacks power under Article I to abrogate
the States' sovereign immunity in federal court, the Federal
District Court dismissed a Fair Labor Standards Act of 1938 suit
filed by petitioners against their employer, respondent Maine.
Subsequently, petitioners filed the same action in state court.
Although the FLSA purports to authorize private actions against
States in their own courts, the trial court dismissed the suit on
the ground of sovereign immunity. The Maine Supreme Judicial Court
affirmed.
Held:
1. The Constitution's structure and history and this Court's
authoritative interpretations make clear that the States' immunity
from suit is a fundamental aspect of the sovereignty they enjoyed
before the Constitution's ratification and retain today except as
altered by the plan of the Convention or certain constitutional
Amendments. Under the federal system established by the
Constitution, the States retain a "residuary and inviolable
sovereignty." The Federalist No. 39, p. 245. They are not relegated
to the role of mere provinces or political corporations, but retain
the dignity, though not the full authority, of sovereignty. The
founding generation considered immunity from private suits central
to this dignity. The doctrine that a sovereign could not be sued
without its consent was universal in the States when the
Constitution was drafted and ratified. In addition, the leading
advocates of the Constitution gave explicit assurances during the
ratification debates that the Constitution would not strip States
of sovereign immunity. This was also the understanding of those
state conventions that addressed state sovereign immunity in their
ratification documents. When, just five years after the
Constitution's adoption, this Court held that Article III
authorized a private citizen of another State to sue Georgia
without its consent,
Chisholm v.
Georgia, 2 Dall.
419, the Eleventh Amendment was ratified. An examination of
Chisholm indicates that the case, not the Amendment,
deviated from the original understanding, which was to preserve
States' traditional immunity from suit. The Amendment's text and
history also suggest that Congress acted not to change but to
restore the original constitutional design. Finally, the swiftness
and near unanimity with which the Amendment was adopted indicate
that
707
the Court had not captured the original understanding. This
Court's subsequent decisions reflect a settled doctrinal
understanding that sovereign immunity derives not from the Eleventh
Amendment but from the structure of the original Constitution.
Since the Amendment confirmed rather than established sovereign
immunity as a constitutional principal, it follows that that
immunity's scope is demarcated not by the text of the Amendment
alone but by fundamental postulates implicit in the constitutional
design. Pp. 712-730.
2. The States' immunity from private suit in their own courts is
beyond congressional power to abrogate by Article I legislation.
Pp. 730-754.
(a) Congress may exercise its Article I powers to subject States
to private suits in their own courts only if there is compelling
evidence that States were required to surrender this power to
Congress pursuant to the constitutional design.
Blatchford
v.
Native Village of Noatak, 501 U. S. 775, 781. pp.
730-731.
(b) Neither the Constitution's text nor the Court's recent
sovereign immunity decisions establish that States were required to
relinquish this portion of their sovereignty. Pp. 731-740.
(1) The Constitution, by delegating to Congress the power to
establish the supreme law of the land when acting within its
enumerated powers, does not foreclose a State from asserting
immunity to claims arising under federal law merely because that
law derives not from the State itself but from the national power.
See,
e. g., Hans v.
Louisiana, 134 U. S. 1. Moreover, the
specific Article I powers delegated to Congress do not necessarily
include the incidental authority to subject States to private suits
as a means of achieving objectives otherwise within the enumerated
powers' scope. Those decisions that have endorsed this contention,
see,
e. g., Parden v.
Terminal R. Co. of Ala. Docks
Dept., 377 U. S.
184, 190-194, have been overruled, see,
e. g., College
Savings Bank v.
Florida Prepaid Postsecondary Ed. Expense
Bd., ante, at 680. Pp. 731-735.
(2) Isolated statements in some of this Court's cases suggest
that the Eleventh Amendment is inapplicable in state courts. This
is a truism as to the Amendment's literal terms. However, the
Amendment's bare text is not an exhaustive description of States'
constitutional immunity, and the cases do not decide the question
whether States retain immunity in their own courts notwithstanding
an attempted abrogation by Congress. pp. 735-740.
(c) Whether Congress has the authority under Article I to
abrogate a State's immunity in its own courts is, then, a question
of first impression. History, practice, precedent, and the
Constitution's structure
708
Syllabus
show no compelling evidence that this derogation of the States'
sovereignty is inherent in the constitutional compact. Pp.
741-754.
(1) Turning first to evidence of the original understanding of
the Constitution: The Founders' silence regarding the States'
immunity from suit in their own courts, despite the controversy
regarding state sovereign immunity in federal court, suggests the
sovereign's right to assert immunity from suit in its own courts
was so well established that no one conceived the new Constitution
would alter it. The arguments raised for and against the
Constitution during ratification confirm this strong inference.
Similarly, nothing in
Chisholm, the catalyst for the
Eleventh Amendment, suggested the States were not immune from suits
in their own courts. The Amendment's language, furthermore, was
directed toward Article III, the only constitutional provision
believed to call state sovereign immunity into question; and
nothing in that Article or in any other part of the Constitution
suggested the States could not assert immunity in their own courts
or that Congress had the power to abrogate such immunity. Finally,
implicit in a proposal rejected by Congress-which would have
limited the Amendment's scope to cases where States had made
available a remedy in their own courts-was the premise that States
retained their immunity and the concomitant authority to decide
whether to allow private suits against the sovereign in their own
courts. Pp.741-743.
(2) The historical analysis is supported by early congressional
practice. Early Congresses enacted no statutes purporting to
authorize suits against non consenting States in state court, and
statutes purporting to authorize such suits in any forum are all
but absent from the Nation's historical experience. Even recent
statutes provide no evidence of an understanding that Congress has
a greater power to subject States to suit in their own courts than
in federal courts. Pp. 743-745.
(3) The theory and reasoning of this Court's earlier cases also
suggest that States retain constitutional immunity from suit in
their own courts. The States' immunity has been described in
sweeping terms, without reference to whether a suit was prosecuted
in state or federal court. See,
e. g., Briscoe v.
Bank of
Kentucky, 11 Pet. 257, 321322. The Court has said on many
occasions that the States retain their immunity in their own
courts, see,
e. g., Beers v.
Arkansas, 20 How. 527,
529, and has relied on that as a premise in its Eleventh Amendment
rulings, see,
e. g., Hans v.
Louisiana, supra, at 10.
Pp. 745-748.
(4) A review of the essential principles of federalism and the
state courts' special role in the constitutional design leads to
the conclusion that a congressional power to subject nonconsenting
States to private suits in their own courts is inconsistent with
the Constitution's structure.
709
Federalism requires that Congress accord States the respect and
dignity due them as residuary sovereigns and joint participants in
the Nation's governance. Immunity from suit in federal courts is
not enough to preserve that dignity, for the indignity of
subjecting a nonconsenting State to the coercive process of
judicial tribunals at the instance of private parties exists
regardless of the forum. In some ways, a congressional power to
authorize suits against States in their own courts would be even
more offensive to state sovereignty than a power to authorize suits
in a federal forum, since a sovereign's immunity in its own courts
has always been understood to be within the sole control of the
sovereign itself. Further, because the Federal Government retains
its own immunity from suit in state and federal court, this Court
is reluctant to conclude that States are not entitled to a
reciprocal privilege. Underlying constitutional form are
considerations of great substance. Private suits against non
consenting States may threaten their financial integrity, and the
surrender of immunity carries with it substantial costs to the
autonomy, decisionmaking ability, and sovereign capacity of the
States. A general federal power to authorize private suits for
money damages would also strain States' ability to govern in
accordance with their citizens' will, for judgment creditors
compete with other important needs and worthwhile ends for access
to the public fisc, necessitating difficult decisions involving the
most sensitive and political of judgments. A national power to
remove these decisions regarding the allocation of scarce resources
from the political processes established by the citizens of the
States and commit their resolution to judicial decrees mandated by
the Federal Government and invoked by the private citizen would
blur not only the State and National Governments' distinct
responsibilities but also the separate duties of the state
governments' judicial and political branches.
Congress cannot abrogate States' sovereign immunity in federal
court; were the rule different here, the National Government would
wield greater power in state courts than in federal courts. This
anomaly cannot be explained by reference to the state courts'
special role in the constitutional design. It would be
unprecedented to infer from the fact that Congress may declare
federal law binding and enforceable in state courts the further
principle that Congress' authority to pursue federal objectives
through state courts exceeds not only its power to press other
branches of the State into its service but also its control over
federal courts. The constitutional provisions upon which this Court
has relied in finding state courts peculiarly amendable to federal
command, moreover, do not distinguish those courts from the Federal
Judiciary. No constitutional precept would admit of a congressional
power to require state courts to entertain federal suits which are
not within the
710
Syllabus
United States' judicial power and could not be heard in federal
courts. pp.748-754.
3. A State's constitutional privilege to assert its sovereign
immunity in its own courts does not confer upon the State a
concomitant right to disregard the Constitution or valid federal
law. States and their officers are bound by obligations imposed by
the Constitution and federal statutes that comport with the
constitutional design. Limits implicit in the constitutional
principle of sovereign immunity strike the proper balance between
the supremacy of federal law and the separate sovereignty of the
States. The first limit is that sovereign immunity bars suits only
in the absence of consent. Many States have enacted statutes
consenting to suits and have consented to some suits pursuant to
the plan of the Convention or to subsequent constitutional
Amendments. The second important limit is that sovereign immunity
bars suits against States but not against lesser entities, such as
municipal corporations, or against a state officer for injunctive
or declaratory relief or for money damages to be collected not from
the state treasury but from the officer personally. Pp.
754-757.
4. Maine has not waived its immunity. It adheres to the general
rule that a specific legislative enactment is required to waive
sovereign immunity. Although petitioners contend that Maine
discriminated against federal rights by claiming immunity from this
suit, there is no evidence that it has manipulated its immunity in
a systematic fashion to discriminate against federal causes of
action. To the extent Maine has chosen to consent to certain
classes of suits while maintaining its immunity from others, it has
done no more than exercise a privilege of sovereignty. Pp.
757-758.
715 A. 2d 172, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, and THOMAS, JJ., joined.
SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG,
and BREYER, JJ., joined,
post, p. 760.
Laurence Gold argued the cause for petitioners. With him on the
briefs were Jonathan P. Hiatt, Timothy L. Belcher, and David L.
Shapiro.
Solicitor General Waxman argued the cause for intervenor United
States. With him on the briefs were Assistant Attorney General
Hunger, Acting Assistant Attorney General Ogden, Deputy Solicitor
General Kneedler, Irving L.
711
Gornstein, Mark B. Stern, Robert M. Loeb, Peter
J. Smith,
Allen H. Feldman, Nathaniel 1. Spiller, and Ellen L. Beard.
Andrew Ketterer, Attorney General of Maine, argued the
cause for respondent. With him on the brief were
Paul Stern,
Deputy Attorney General, and
Peter J. Brann,
State Solicitor. *
JUSTICE KENNEDY delivered the opinion of the Court.
In 1992, petitioners, a group of probation officers, filed suit
against 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
amici 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 Commonwealth of Kentucky by
Stuart E. Alexander III; 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,
Jennifer M. Granholm of Michigan,
Mike
Moore of Mississippi,
Don Stenberg of Nebraska,
Frankie Sue Del Papa of Nevada,
Philip T. McLaughlin
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
Carolina,
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. by
Richard Ruda and
Richard H. Seamon.
712
amended, 29 U. S. C. § 201
et seq. (1994 ed. and Supp.
III), and sought compensation and liquidated damages. While the
suit was pending, this Court decided
Seminole Tribe of Fla.
v.
Florida, 517
U. S. 44 (1996), which made it clear that Congress lacks power
under Article I to abrogate the States' sovereign immunity from
suits commenced or prosecuted in the federal courts. Upon
consideration of
Seminole Tribe, the District Court
dismissed petitioners' action, and the Court of Appeals affirmed.
Mills v.
Maine, 118 F.3d
37 (CA1 1997). Petitioners then filed the same action in
state court. The state trial court dismissed the suit on the basis
of sovereign immunity, and the Maine Supreme Judicial Court
affirmed. 715 A. 2d 172 (1998).
The Maine Supreme Judicial Court's decision conflicts with the
decision of the Supreme Court of Arkansas,
Jacoby v.
Arkansas Dept. of Ed., 331 Ark. 508, 962 S. W. 2d 773
(1998), and calls into question the constitutionality of the
provisions of the FLSA purporting to authorize private actions
against States in their own courts without regard for consent, see
29 U. S. C. §§ 216(b), 203(x). In light of the importance of the
question presented and the conflict between the courts, we granted
certiorari. 525 U. S. 981 (1998). The United States intervened as a
petitioner to defend the statute.
We hold that the powers delegated to Congress under Article I of
the United States Constitution do not include the power to subject
nonconsenting States to private suits for damages in state courts.
We decide as well that the State of Maine has not consented to
suits for overtime pay and liquidated damages under the FLSA. On
these premises we affirm the judgment sustaining dismissal of the
suit.
I
The Eleventh Amendment makes explicit reference to the States'
immunity from suits "commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State." U. S.
713
Const., Amdt. 11. We have, as a result, sometimes referred to
the States' immunity from suit as "Eleventh Amendment immunity."
The phrase is convenient shorthand but something of a misnomer, for
the sovereign immunity of the States neither derives from, nor is
limited by, 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
retain today (either literally or by virtue of their admission into
the Union upon an equal footing with the other States) except as
altered by the plan of the Convention or certain constitutional
Amendments.
A
Although the Constitution establishes a National Government with
broad, often plenary authority over matters within its recognized
competence, the founding document "specifically recognizes the
States as sovereign entities."
Seminole Tribe of Fla. v.
Florida, supra, at 71, n. 15; accord,
Blatchford v.
Native Village of Noatak, 501 U. S. 775, 779 (1991)
("[T]he States entered the federal system with their sovereignty
intact"). Various textual provisions of the Constitution assume the
States' continued existence and active participation in the
fundamental processes of governance. See
Printz v.
United
States, 521 U. S.
898, 919 (1997) (citing Art. III, § 2; Art. IV, §§ 2-4; Art.
V). The limited and enumerated powers granted to the Legislative,
Executive, and Judicial Branches of the National Government,
moreover, underscore the vital role reserved to the States by the
constitutional design, see,
e. g., Art. I, § 8; Art.
II, §§ 2-3; Art. III, § 2. Any doubt regarding the constitutional
role of the States as sovereign entities is removed by the Tenth
Amendment, which, like the other provisions of the Bill of Rights,
was enacted to allay lingering concerns about the extent of
714
the national power. The Amendment confirms the promise implicit
in the original document: "The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people." U. S.
Const., Amdt. 10; see also
Printz, supra, at 919;
New
York v.
United States, 505 U. S. 144, 156159,
177 (1992).
The federal system established by our Constitution preserves the
sovereign status of the States in two ways. First, it reserves to
them a substantial portion of the N ation's primary sovereignty,
together with the dignity and essential attributes inhering in that
status. The States "form distinct and independent portions of the
supremacy, no more subject, within their respective spheres, to the
general authority than the general authority is subject to them,
within its own sphere." The Federalist No. 39, p. 245
(C.
Rossiter ed. 1961) (J. Madison).
Second, even as to matters within the competence of the National
Government, the constitutional design secures the founding
generation's rejection of "the concept of a central government that
would act upon and through the States" in favor of "a system in
which the State and Federal Governments would exercise concurrent
authority over the peoplewho were, in Hamilton's words, 'the only
proper objects of government.'"
Printz, supra, at 919-920
(quoting The Federalist No. 15, at 109); accord,
New York,
supra, at 166 ("The Framers explicitly chose a Constitution
that confers upon Congress the power to regulate individuals, not
States"). In this the Founders achieved a deliberate departure from
the Articles of Confederation: Experience under the Articles had
"exploded on all hands" the "practicality of making laws, with
coercive sanctions, for the States as political bodies." 2 Records
of the Federal Convention of 1787, p. 9 (M. Farrand ed. 1911) (J.
Madison); accord, The Federalist No. 20, at 138 (J. Madison and A.
Hamilton); James Iredell: Some
715
Objections to the Constitution Answered, reprinted in 3 Annals
of America 249 (1976).
The States thus retain "a residuary and inviolable sovereignty."
The Federalist No. 39, at 245. They are not relegated to the role
of mere provinces or political corporations, but retain the
dignity, though not the full authority, of sovereignty.
B
The generation that designed and adopted our federal system
considered immunity from private suits central to sovereign
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, 2
Dall. 419, 437-446 (1793) (Iredell, J., dissenting) (surveying
English practice); cf.
Nevada v.
Hall, 440 U. S. 410,414 (1979)
("The immunity of a truly independent sovereign from suit in its
own courts has been enjoyed as a matter of absolute right for
centuries. Only the sovereign's own consent could qualify the
absolute character of that immunity"). In reciting the prerogatives
of the Crown, Blackstone-whose works constituted the preeminent
authority on English law for the founding generation-underscored
the close and necessary relationship understood to exist between
sovereignty and immunity from suit:
"And, first, the law ascribes to the king the attribute of
sovereignty, or pre-eminence .... Hence it is, that no suit or
action can be brought against the king, even in civil matters,
because no court can have jurisdiction over him. For all
jurisdiction implies superiority of power .... " 1 W. Blackstone,
Commentaries on the Laws of England 234-235 (1765).
Although the American people had rejected other aspects of
English political theory, the doctrine that a sovereign could not
be sued without its consent was universal in the
716
States when the Constitution was drafted and ratified. See
Chisholm, supra, at 434-435 (Iredell, J., dissenting) ("I
believe there is no doubt that neither in the State now in
question, nor in any other in the
Union, any particular
Legislative mode, authorizing a compulsory suit for the recovery of
money against a State, was in being either when the Constitution
was adopted, or at the time the judicial act was passed");
Hans v.
Louisiana, 134 U. S. 1, 16 (1890)
("The suability of a State, without its consent, was a thing
unknown to the law. This has been so often laid down and
acknowledged by courts and jurists that it is hardly necessary to
be formally asserted").
The ratification debates, furthermore, underscored the
importance of the States' sovereign immunity to the American
people. Grave concerns were raised by the provisions of Article
III, which extended the federal judicial power to controversies
between States and citizens of other States or foreign nations. As
we have explained:
"Unquestionably the doctrine of sovereign immunity was a matter
of importance in the early days of independence. Many of the States
were heavily indebted as a result of the Revolutionary War. They
were vitally interested in the question whether the creation of a
new federal sovereign, with courts of its own, would automatically
subject them, like lower English lords, to suits in the courts of
the 'higher' sovereign." Hall, supra, at 418 (footnote
omitted).
The leading advocates of the Constitution assured the people in
no uncertain terms that the Constitution would not strip the States
of sovereign immunity. One assurance was contained in The
Federalist No. 81, written by Alexander Hamilton:
"It is inherent in the nature of sovereignty not to be amenable
to the suit of an individual without its consent. This is
the general sense and the general practice of
717
mankind; and the exemption, as one of the attributes of
sovereignty, is now enjoyed by the government of every State in the
Union. Unless, therefore, there is a surrender of this immunity in
the plan of the convention, it will remain with the States and the
danger intimated must be merely ideal. ... [T]here is no color to
pretend that the State governments would, by the adoption of that
plan, be divested of the privilege of paying their own debts in
their own way, free from every constraint but that which flows from
the obligations of good faith. The contracts between a nation and
individuals are only binding on the conscience of the sovereign,
and have no pretensions to a compulsive force. They confer no right
of action independent of the sovereign will. To what purpose would
it be to authorize suits against States for the debts they 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 federal courts, by mere implication, and in
destruction of a preexisting right of the State governments, a
power which would involve such a consequence, would be altogether
forced and unwarrantable." Id., at 487-488 (emphasis in
original).
At the Virginia ratifying convention, James Madison echoed this
theme:
"Its jurisdiction in controversies between a state and citizens
of another state is much objected to, and perhaps without reason.
It is not in the power of individuals to call any state into court
....
" ... It appears to me that this [clause] can have no operation
but this-to give a citizen a right to be heard in the federal
courts; and if a state should condescend to be a party, this court
may take cognizance of it." 3 Debates on the Federal Constitution
533 (J. Elliot 2d ed. 1854) (hereinafter Elliot's Debates).
718
When Madison's explanation was questioned, John Marshall
provided immediate support:
"With respect to disputes between a state and the citizens of
another state, its jurisdiction has been decried with unusual
vehemence. I hope no gentleman will think that a state will be
called at the bar of the federal court. Is there no such case at
present? Are there not many cases in which the legislature of
Virginia is a party, and yet the state is not sued? It is not
rational to suppose that the sovereign power should be dragged
before a court. The intent is, to enable states to recover claims
of individuals residing in other states. I contend this
construction is warranted by the words. But, say they, there will
be partiality in it if a state cannot be defendant .... It is
necessary to be so, and cannot be avoided. I see a difficulty in
making a state defendant, which does not prevent its being
plaintiff." 3 id., at 555-556 (emphasis in original).
Although the state conventions which addressed the issue of
sovereign immunity in their formal ratification documents sought to
clarify the point by constitutional amendment, they made clear that
they, like Hamilton, Madison, and Marshall, understood the
Constitution as drafted to preserve the States' immunity from
private suits. The Rhode Island Convention thus proclaimed that
"[i]t is declared by the Convention, that the judicial power of the
United States, in cases in which a state may be a party, does not
extend to criminal prosecutions, or to authorize any suit by any
person against a state." 1
id., at 336. The convention
sought, in addition, an express amendment "to remove all doubts or
controversies respecting the same."
Ibid. In a similar
fashion, the New York Convention "declare[d] and ma[d]e known," 1
id., at 327, its understanding "[t]hat the judicial power of
the United States, in cases in which a state may be a party, does
not extend to criminal prosecutions, or to authorize any suit
719
by any person against a state," 1
id., at 329. The
convention proceeded to ratify the Constitution "[u]nder these
impressions, 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 Constitution
will receive an early and mature consideration."
Ibid.
Despite the persuasive assurances of the Constitution's leading
advocates and the expressed understanding of the only state
conventions to address the issue in explicit terms, this Court
held, just five years after the Constitution was adopted, that
Article III authorized a private citizen of another State to sue
the State of Georgia without its consent.
Chisholm v.
Georgia, 2 Dall. 419 (1793). Each of the four Justices who
concurred in the judgment issued a separate opinion. The common
theme of the opinions was that the case fell within the literal
text of Article III, which by its terms granted jurisdiction over
controversies "between a State and Citizens of another State," and
"between a State, or the Citizens thereof, and foreign States,
Citizens, or Subjects." U. S. Const., Art. III, § 2. The argument
that this provision granted jurisdiction only over cases in which
the State was a plaintiff was dismissed as inconsistent with the
ordinary meaning of "between," and with the provision extending
jurisdiction to "Controversies between two or more States," which
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 by the Constitution, 2 Dall., at 454-458 (Wilson, J.);
id., at 470-472 (Jay, C. J.); although the others did not go
so far, they contended that the text of Article III evidenced the
States' surrender of sovereign immunity as to those provisions
extending jurisdiction over suits to which States were parties,
id., at 452 (Blair, J.);
id., at 468 (Cushing,
J.).
720
Justice Iredell dissented, relying on American history,
id., at 434-435, English history,
id., at 437-446,
and the principles of enumerated powers and separate sovereignty,
id., at 435-436,448,449-450. See generally
Hans, 134
U. S., at 12 ("The other justices were more swayed by a close
observance of the letter of the Constitution, without regard to
former experience and usage .... Justice Iredell, on the contrary,
contended that it was not the intention to create new and unheard
of remedies, by subjecting sovereign States to actions at the suit
of individuals, (which he conclusively showed was never done
before,) but only ... to invest the federal courts with
jurisdiction to hear and determine controversies and cases, between
the parties designated, that were properly susceptible of
litigation in courts").
The Court's decision "fell upon the country with a profound
shock." 1 C. Warren, The Supreme Court in United States History 96
(rev. ed. 1926); accord,
Hans, supra, at 11;
Principality
of Monaco v.
Mississippi, 292 U. S. 313, 325
(1934); Seminole Tribe, 517 U. S., at 69. "Newspapers
representing a rainbow of opinion protested what they viewed as an
unexpected blow to state sovereignty. Others spoke more concretely
of prospective raids on state treasuries." D. Currie, The
Constitution in Congress: The Federalist Period 1789-1801, p. 196
(1997).
The States, in particular, responded with outrage to the
decision. The Massachusetts Legislature, for example, denounced the
decision as "repugnant to the first principles of a federal
government," and called upon the Commonwealth's Senators and
Representatives to take all necessary steps to "remove any clause
or article of the ... Constitution, which can be construed to imply
or justify a decision, that, a State is compellable to answer in
any suit by an individual or individuals in any Court of the United
States." 15 Papers of Alexander Hamilton 314 (H. Syrett & J.
Cooke eds. 1969) (internal quotation marks omitted). Georgia's
response was more intemperate: Its House of Representatives passed
a bill
721
providing that anyone attempting to enforce the
Chisholm
decision would be "'guilty of felony and shall suffer death,
without benefit of clergy, by being hanged.'" Currie,
supra,
at 196.
An initial proposal to amend the Constitution was introduced in
the House of Representatives the day after
Chisholm was
announced; the proposal adopted as the Eleventh Amendment was
introduced in the Senate promptly following an intervening recess.
Currie,
supra, at 196. Congress turned to the latter
proposal with 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, 30,477,499 (1794); 1 Stat.
402.
Each House spent but a single day discussing the Amendment, and
the vote in each House was close to unanimous. See 4 Annals of
Congress, at 30-31, 476-478 (the Senate divided 23 to 2; the House
81 to 9). All attempts to weaken the Amendment were defeated.
Congress in succession rejected 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 made provision in their own Courts,
whereby such suit may be prosecuted to effect'''; it refused as
well to make an exception for" 'cases arising under treaties made
under the authority of the United States.'" 4
id., at 30,
476.
It might be argued that the
Chisholm decision was a
correct interpretation of the constitutional design and that the
Eleventh Amendment represented a deviation from the original
understanding. This, however, seems unsupportable. First, despite
the opinion of Justice Iredell, the majority failed to address
either the practice or the understanding that prevailed in the
States at the time the Constitution was adopted. Second, even a
casual reading of the opinions suggests the majority suspected the
decision would be unpopular and surprising. See,
e.
g., 2 Dall., at 454-455 (Wilson, J.)
722
(condemning the prevailing conception of sovereignty);
id., at 468 (Cushing, J.) ("If the Constitution is found
inconvenient in practice in this or any other particular, it is
well that a regular mode is pointed out for amendment");
id., at 478479 (Jay, C. J.) ("[T]here is reason to hope that
the people of [Georgia] will yet perceive that [sovereign immunity]
would not have been consistent with [republican] equality"); cf.
id., at 419-420 (attorney for Chisholm) ("I did not want the
remonstrance of
Georgia, to satisfy me, that the motion,
which I have made is unpopular. Before that remonstrance was read,
I had learnt from the acts of another State, whose will must be
always dear to me, that she too condemned it"). Finally, two
Members of the majority acknowledged that the United States might
well remain immune from suit despite Article Ill's grant of
jurisdiction over "Controversies to which the United States shall
be a Party," see
id., at 469 (Cushing, J.);
id., at
478 (Jay, C. J.), and, invoking the example of actions to collect
debts incurred before the Constitution was adopted, one raised the
possibility of "exceptions," suggesting the rule of the case might
not "extend to all the demands, and to every kind of action,"
id., at 479 (Jay, C. J.). These concessions undercut the
crucial premise that either the Constitution's literal text or the
principle of popular sovereignty necessarily overrode widespread
practice and opinion.
The text and history of the Eleventh Amendment also suggest that
Congress acted not to change but to restore the original
constitutional design. Although earlier drafts of the Amendment had
been phrased as express limits on the judicial power granted in
Article III, see,
e. g., 3 Annals of Congress 651-652
(1793) ("The Judicial Power of the United States shall not extend
to any suits in law or equity, commenced or prosecuted against one
of the United States ... "), the adopted text addressed the proper
interpretation of that provision of the original Constitution, see
U. S. Const., Amdt. 11 ("The Judicial power of the United States
shall not
723
be construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States ... "). By its
terms, then, the Eleventh Amendment did not redefine the federal
judicial power but instead overruled the Court:
"This amendment, expressing the will of the ultimate sovereignty
of the whole country, superior to all legis latures and all courts,
actually reversed the decision of the Supreme Court. It did not in
terms prohibit suits by individuals against the States, but
declared that the Constitution should not be construed to import
any power to authorize the bringing of such suits .... The Supreme
Court had construed the judicial power as extending to such a suit,
and its decision was thus overruled." Hans, 134 U. S., at
11.
The text reflects the historical context and the congressional
objective in endorsing the Amendment for ratification. Congress
chose not to enact language codifying the traditional understanding
of sovereign immunity but rather to address the specific provisions
of the Constitution that had raised concerns during the
ratification debates and formed the basis of the
Chisholm
decision. Cf. 15 Papers of Alexander Hamilton, at 314 (quoted
supra, at 720). Given the outraged reaction to
Chisholm, as well as Congress' repeated refusal to otherwise
qualify the text of the Amendment, it is doubtful that if Congress
meant to write a new immunity into the Constitution it would have
limited that immunity to the narrow text of the Eleventh
Amendment:
"Can we suppose that, when the Eleventh Amendment was adopted,
it was understood to be left open for citizens of a State to sue
their own state in the federal courts, whilst the idea of suits by
citizens of other states, or of foreign states, was indignantly
repelled? Suppose that Congress, when proposing the Eleventh
Amendment, had appended to it a proviso that nothing therein
724
contained should prevent a State from being sued by its own
citizens in cases arising under the Constitution or laws of the
United States: can we imagine that it would have been adopted by
the States? The supposition that it would is almost an absurdity on
its face." Hans, supra, at 14-15.
The more natural inference is that the Constitution was
understood, in light of its history and structure, to preserve the
States' traditional immunity from private suits. As the Amendment
clarified the only provisions of the Constitution that anyone had
suggested might support a contrary understanding, there was no
reason to draft with a broader brush.
Finally, the swiftness and near unanimity with which the
Eleventh Amendment was adopted suggest "either that the Court had
not captured the original understanding, or that the country had
changed its collective mind most rapidly." D. Currie, The
Constitution in the Supreme Court: The First Hundred Years:
1789-1888, p. 18, n. 101 (1985). The more reasonable
interpretation, of course, is that regardless of the views of four
Justices in
Chisholm, the country as a wholewhich had
adopted the Constitution just five years earlierhad not understood
the document to strip the States of their immunity from private
suits. Cf. Currie, The Constitution in Congress, at 196 ("It is
plain that just about everybody in Congress agreed the Supreme
Court had misread the Constitution").
Although the dissent attempts to rewrite history to reflect a
different original understanding, its evidence is unpersuasive. The
handful of state statutory and constitutional provisions
authorizing suits or petitions of right against States only
confirms the prevalence of the traditional understanding that a
State could not be sued in the absence of an express waiver, for if
the understanding were otherwise, the provisions would have been
unnecessary. The constitutional amendments proposed by the New York
and Rhode Island Conventions undercut rather than support the
dissent's view
725
of history, see
supra, at 718-719, and the amendments
proposed by the Virginia and North Carolina Conventions do not cast
light 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 Debates
660-661 (amendment proposed by the Virginia Convention limiting the
federal-question jurisdiction to suits arising under treaties and
the diversity jurisdiction to suits between parties claiming lands
under grants from different States); 4
id., at 246
(identical amendment proposed by the North Carolina Convention),
the amendments would have removed the language in the Constitution
relied upon by the
Chisholm Court. While the amendments do
reflect dissatisfaction with the scope of federal jurisdiction as a
general matter, there is no evidence that they were directed toward
the question of sovereign immunity or that they reflect an
understanding that the States would be subject to private suits
without consent under Article III as drafted.
The dissent's remaining evidence cannot bear the weight the
dissent seeks to place on it. The views voiced during the
ratification debates by Edmund Randolph and James Wilson, when
reiterated by the same individuals in their respective capacities
as advocate and Justice in
Chisholm, were decisively
rejected by the Eleventh Amendment, and General Pinkney did not
speak to the issue of sovereign immunity at all. Furthermore,
Randolph appears to have recognized that his views were in tension
with the traditional understanding of sovereign immunity, see 3
Elliot's Debates 573 ("I think, whatever the law of nations may
say, that any doubt respecting the construction that a state may be
plaintiff, and not defendant, is taken away by the words
where a
state shall be a party"), and Wilson and Pinkney expressed a
radical nationalist vision of the constitutional design that not
only deviated from the views that prevailed at the time but,
despite the dissent's apparent embrace of the position, remains
startling even today, see
post, at 776
726
(quoting with approval Wilson's statement that" 'the government
of each state ought to be subordinate to the government of the
United States' "). Nor do the controversial early suits prosecuted
against Maryland and New York reflect a widespread understanding
that the States had surrendered their immunity to suit. Maryland's
decision to submit to process in
Vanstophorst v.
Maryland, 2 Dall. 401 (1791), aroused great controversy, see
Marcus & Wexler, Suits Against States: Diversity of Opinion in
the 1790s, 1993 J. Sup. Ct. History 73, 74-75, and did not go
unnoticed by the Supreme Court, see
Chisholm, 2 Dall., at
429-430 (Iredell, J., dissenting). In
Oswald v.
New
York, the State refused to respond to the plaintiff's summons
until after the decision in
Chisholm had been announced;
even then it at first asserted the defense that it was "a free,
sovereign and independent State," and could not be "drawn or
compelled" to defend the suit. Marcus & Wexler,
supra,
at 76-77 (internal quotation marks omitted). And, though the
Court's decision in
Chisholm may have had "champions 'every
bit as vigorous in defending their interpretation of the
Constitution as were those partisans on the other side of the
issue,'"
post, at 794, the vote on the Eleventh Amendment
makes clear that they were decidedly less numerous. See
supra, at 721.
In short, the scanty and equivocal evidence offered by the
dissent establishes no more than what is evident from the decision
in
Chisholm-that some members of the founding generation
disagreed with Hamilton, Madison, Marshall, Iredell, and the only
state conventions formally to address the matter. The events
leading to the adoption of the Eleventh Amendment, however, make
clear that the individuals who believed the Constitution stripped
the States of their immunity from suit were at most a small
minority.
Not only do the ratification debates and the events leading to
the adoption of the Eleventh Amendment reveal the original
understanding of the States' constitutional immunity from suit;
they also underscore the importance of sovereign
727
immunity to the founding generation. Simply put, "The
Constitution never would have been ratified if the States and their
courts were to be stripped of their sovereign authority except as
expressly provided by the Constitution itself."
Atascadero State
Hospital v.
Scanlon, 473 U. S. 234, 239, n. 2
(1985); accord,
Edelman v.
Jordan, 415 U. S. 651, 660
(1974).
C
The Court has been consistent in interpreting the 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, 517 U. S., at 69, and that
the views expressed by Hamilton, Madison, and Marshall during the
ratification debates, and by Justice Iredell in his dissenting
opinion in
Chisholm, reflect the original understanding of
the Constitution. See,
e. g., Hans, 134 U. S., at 12, 14-15,
18-19;
Principality of Monaco, 292 U. S., at 325;
Edelman, supra, at 660, n. 9;
Seminole Tribe, supra,
at 70, and nn. 12-13. In accordance with this understanding, we
have recognized a "presumption that no anomalous and unheard-of
proceedings or suits were intended to be raised up by the
Constitution-anomalous and unheard of when the constitution was
adopted."
Hans, 134 U. S., at 18; accord,
id., at 15.
As a consequence, we have looked to "history and experience, and
the established order of things,"
id., at 14, rather than
"[a]dhering to the mere letter" of the Eleventh Amendment,
id., at 13, in determining the scope of the States'
constitutional immunity from suit.
Following this approach, the Court has upheld States' assertions
of sovereign immunity in various contexts falling outside the
literal text of the Eleventh Amendment. In
Hans, the Court
held that sovereign immunity barred a citizen from suing his own
State under the federal-question head of jurisdiction. The Court
was unmoved by the petitioner's argument that the Eleventh
Amendment, by its
728
terms, applied only to suits brought by citizens of other
States:
"It seems to us that these views of those great advocates and
defenders of the Constitution were most sensible and just; and they
apply equally to the present case as to that then under discussion.
The letter is appealed to now, as it was then, as a ground for
sustaining a suit brought by an individual against a State. The
reason against it is as strong in this case as it was in that. It
is an attempt to strain the Constitution and the law to a
construction never imagined or dreamed of." Id., at
14-15.
Later decisions rejected similar requests to conform the
principle of sovereign immunity to the strict language of the
Eleventh Amendment in holding that nonconsenting States are immune
from suits brought by federal corporations,
Smith v.
Reeves, 178 U.
S. 436 (1900), foreign nations,
Principality of Monaco,
supra, or Indian tribes,
Blatchford v.
Native Village
of Noatak, 501 U.
S. 775 (1991), and in concluding that sovereign immunity is a
defense to suits in admiralty, though the text of the Eleventh
Amendment addresses only suits "in law or equity,"
Ex parte New
York, 256 U. S.
490 (1921).
These holdings reflect a settled doctrinal understanding,
consistent with the views of the leading advocates of the
Constitution's ratification, that sovereign immunity derives not
from the Eleventh Amendment but from the structure of the original
Constitution itself. See,
e. g., Idaho v.
Coeur d'Alene
Tribe of Idaho, 521 U. S. 261, 267-268
(1997) (acknowledging "the broader concept of immunity, implicit in
the Constitution, which we have regarded the Eleventh Amendment as
evidencing and exemplifying");
Seminole Tribe, supra, at
55-56;
Pennhurst State School and Hospital v.
Halderman, 465
U. S. 89, 98-99 (1984);
Ex parte New York, supra, at
497. The Eleventh Amendment confirmed, rather
729
than established, sovereign immunity as a constitutional
principle; it follows that the scope of the States' immunity from
suit is demarcated not by the text of the Amendment alone but by
fundamental postulates implicit in the constitutional design. As we
explained in
Principality of Monaco:
"Manifestly, we cannot rest with a mere literal application of
the words of § 2 of Article III, or assume that the letter of the
Eleventh Amendment exhausts the restrictions upon suits against
non-consenting States. Behind the words of the constitutional
provisions are postulates which limit and control. There is the
essential postulate that the controversies, as contemplated, shall
be found to be of a justiciable character. There is also the
postulate that States of the Union, still possessing attributes of
sovereignty, shall be immune from suits, without their consent,
save where there has been 'a surrender of this immunity in the plan
of the convention.'" 292 U. S., at 322-323 (quoting The Federalist
No. 81 (footnote omitted).
Or, as we have more recently reaffirmed:
"Although the text of the Amendment would appear to restrict
only the Article III diversity jurisdiction of the federal courts,
'we have understood the Eleventh Amendment to stand not so much for
what it says, but for the presupposition ... which it confirms.'
Blatchford v. Native Village of Noatak, 501 U. S. 775, 779
(1991). That presupposition, first observed over a century ago in
Hans v. Louisiana, 134 U. S. 1 (1890), has two
parts: first, that each State is a sovereign entity in our federal
system; and second, that' "[i]t is inherent in the nature of
sovereignty not to be amenable to the suit of an individual without
its consent," , id., at 13 (emphasis deleted), quoting The
Federalist No. 81, p. 487 .... " Seminole Tribe, supra, at
54.
730
Accord,
Puerto Rico Aqueduct and Sewer Authority v.
Metcalf &
Eddy, Inc., 506 U. S. 139, 146 (1993)
("The Amendment is rooted in a recognition that the States,
although a union, maintain certain attributes of sovereignty,
including sovereign immunity").
II
In this case we must determine whether Congress has the power,
under Article I, to subject nonconsenting States to private suits
in their own courts. As the foregoing discussion makes clear, the
fact that the Eleventh Amendment by its terms limits only "[t]he
Judicial power of the United States" does not resolve the question.
To rest on the words of the Amendment alone would be to engage in
the type of ahistorical literalism we have rejected in interpreting
the scope of the States' sovereign immunity since the discredited
decision in
Chisholm. Seminole Tribe, 517 U. S., at 68; see
also
id., at 69 (quoting
Principality of Monaco,
supra, at 326, in turn quoting
Hans, 134 U. S., at 15)
("[W]e long have recognized that blind reliance upon the text of
the Eleventh Amendment is '''to strain the Constitution and the law
to a construction never imagined or dreamed of'" ").
While the constitutional principle of sovereign immunity does
pose a bar to federal jurisdiction over suits against nonconsenting
States, see,
e. g., Principality of Monaco, 292 U. S., at
322-323, this is not the only structural basis of sovereign
immunity implicit in the constitutional design. Rather, "[t]here is
also the postulate that States of the Union, still possessing
attributes of sovereignty, shall be immune from suits, without
their consent, save where there has been 'a surrender of this
immunity in the plan of the convention.'"
Ibid. (quoting The
Federalist No. 81; accord,
Blatchford, supra, at 781;
Seminole Tribe, supra, at 68. This separate and distinct
structural principle is not directly related to the scope of the
judicial power established by Article III, but inheres in the
system of federalism established by the Constitution. In exercising
its Article I powers Con-
731
gress may subject the States to private suits in their own
courts only if there is "compelling evidence" that the States were
required to surrender this power to Congress pursuant to the
constitutional design.
Blatchford, 501 U. S., at 781.
A
Petitioners contend the text of the Constitution and our recent
sovereign immunity decisions establish that the States were
required to relinquish this portion of their sovereignty. We turn
first to these sources.
1
Article I, § 8, grants, Congress broad power to enact
legislation in several enumerated areas of national concern. The
Supremacy Clause, furthermore, provides:
"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 the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding." U. S. Const., Art. VI.
lt is contended that, by virtue of these provisions, where
Congress enacts legislation subjecting the States to suit, the
legislation by necessity overrides the sovereign immunity of the
States.
As is evident from its text, however, the Supremacy Clause
enshrines as "the supreme Law of the Land" only those Federal Acts
that accord with the constitutional design. See
Printz, 521
U. S., at 924. Appeal to the Supremacy Clause alone merely raises
the question whether a law is a valid exercise of the national
power. See The Federalist No. 33, at 204 (A. Hamilton) ("But it
will not follow from this doctrine that acts of the larger society
which are
not pursuant to its constitutional powers, but
which are invasions of the residuary authorities of the smaller
societies, will become the supreme law of the land");
Printz,
supra, at 924-925.
732
The Constitution, by delegating to Congress the power to
establish the supreme law of the land when acting within its
enumerated powers, does not foreclose a State from asserting
immunity to claims arising under federal law merely because that
law derives not from the State itself but from the national power.
A contrary view could not be reconciled with
Hans, supra,
which sustained Louisiana's immunity in a private suit arising
under the Constitution itself; with
Employees of Dept. of
Public Health and Welfare of Mo. v.
Department of Public
Health and Welfare of Mo., 411 U. S. 279, 283
(1973), which recognized that the FLSA was binding upon Missouri
but nevertheless upheld the State's immunity to a private suit to
recover under that Act; or with numerous other decisions to the
same effect. We reject any contention that substantive federal law
by its own force necessarily overrides the sovereign immunity of
the States. When a State asserts its immunity to suit, the question
is not the primacy of federal law but the implementation of the law
in a manner consistent with the constitutional sovereignty of the
States.
Nor can we conclude that the specific Article I powers delegated
to Congress necessarily include, by virtue of the Necessary and
Proper Clause or otherwise, the incidental authority to subject the
States to private suits as a means of achieving objectives
otherwise within the scope of the enumerated powers. Although some
of our decisions had endorsed this contention, see
Parden v.
Terminal R. Co. of Ala. Docks Dept., 377 U. S. 184, 190-194
(1964);
Pennsylvania v.
Union Gas Co., 491 U. S. 1, 13-23 (1989)
(plurality opinion), they have since been overruled, see
Seminole Tribe, supra, at 63-67,72;
College Savings
Bank v.
Florida Prepaid Postsecondary Ed. Expense Bd.,
ante, at 680. As we have recognized in an analogous
context:
"When a 'La[w] ... for carrying into Execution' the Commerce
Clause violates the principle of state sovereignty reflected in the
various constitutional
733
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] ac[t] of usurpation' which 'deserve[s]
to be treated as such.'" Printz, supra, at 923-924 (quoting
The Federalist No. 33, at 204) (ellipses and alterations in
Printz).
The cases we have cited, of course, came at last to the
conclusion that neither the Supremacy Clause nor the enumerated
powers of Congress confer authority to abrogate the States'
immunity from suit in federal court. The logic of the decisions,
however, does not turn on the forum in which the suits were
prosecuted but extends to state-court suits as well.
The dissenting opinion seeks to reopen these precedents,
contending that state sovereign immunity must derive either from
the common law (in which case the dissent contends it is defeasible
by statute) or from natural law (in which case the dissent believes
it cannot bar a federal claim). See
post, at 797-798. As
should be obvious to all, this is a false dichotomy. The text and
the structure of the Constitution protect various rights and
principles. Many of these, such as the right to trial by jury and
the prohibition on unreasonable searches and seizures, derive from
the common law. The common-law lineage of these rights does not
mean they are defeasible by statute or remain mere common-law
rights, however. They are, rather, constitutional rights, and form
the fundamental law of the land.
Although the sovereign immunity of the States derives at least
in part from the common-law tradition, the structure and history of
the Constitution make clear that the immunity exists today by
constitutional design. The dissent has provided no persuasive
evidence that the founding generation regarded the States'
sovereign immunity as defeasible by federal statute. While the
dissent implies this view was held by Madison and Marshall, see
post, at 778, nothing in the comments made by either
individual at the ratification
734
conventions states, or even implies, such an understanding.
Although the dissent seizes upon Justice Iredell's statutory
analysis in
Chisholm in an attempt to attribute this view to
Justice Iredell, see
post, at 787-789, citing
Chisholm, 2 Dall., at 449, Justice Iredell's views on the
underlying constitutional question are clear enough from other
portions of his dissenting opinion:
"So much, however, has been said on the Constitution, that it
may not be improper to intimate that my present opinion is strongly
against any construction of it, which will admit, under any
circumstances, a compulsive suit against a State for the recovery
of money. I think every word in the Constitution may have its full
effect without involving this consequence, and that nothing but
express words, or an insurmountable implication (neither of which I
consider, can be found in this case) would authorize the deduction
of so high a power." Id., at 449-450.
Despite the dissent's assertion to the contrary, the fact that a
right is not defeasible by statute means only that it is protected
by the Constitution, not that it derives from naturallaw. Whether
the dissent's attribution of our reasoning and conclusions to
natural law results from analytical confusion or rhetorical device,
it is simply inaccurate. We do not contend the Founders could not
have stripped the States of sovereign immunity and granted Congress
power to subject them to private suit but only that they did not do
so. By the same token, the contours of sovereign immunity are
determined by the Founders' understanding, not by the principles or
limitations derived from natural law.
The dissent has offered no evidence that the Founders believed
sovereign immunity extended only to cases where the sovereign was
the source of the right asserted. No such limitation existed on
sovereign immunity in England, where sovereign immunity was
predicated on a different theory al-
735
together. See 1 F. Pollock & F. Maitland, History of English
Law 518 (2d ed. 1909), quoted in
Nevada v.
Hall, 440
U. S., at 415, n. 6 (" '[The King] can not be compelled to answer
in his own court, but this is true of every petty lord of every
petty manor' "); accord, 3 W. Holdsworth, A History of English Law
465 (3d ed. 1927) ("[N]o feudal lord could be sued in his own
court"). It is doubtful whether the King was regarded, 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 to
imagine that the King could have been sued in his own court on,
say, a French cause of action.
In light of the ratification debates and the history of the
Eleventh Amendment, there is no reason to believe the Founders
intended the Constitution to preserve a more restricted immunity in
the United States. On the contrary, Congress' refusal to modify the
text of the Eleventh Amendment to create an exception to sovereign
immunity for cases arising under treaties, see
supra, at
721, suggests the States' sovereign immunity was understood to
extend beyond statelaw causes of action. And surely the dissent
does not believe that sovereign immunity poses no bar to a
state-law suit against the United States in federal court, or that
the Federal Tort Claims Act effected a contraction, rather than an
expansion, of the United States' amenability to suit.
2
There are isolated statements in some of our cases suggesting
that the Eleventh Amendment is inapplicable in state courts. See
Hilton v.
South Carolina Public Railways Comm'n,
502 U. S. 197,
204-205 (1991);
Will v.
Michigan Dept. of State
Police, 491 U. S.
58, 63 (1989);
Atascadero State Hospital v.
Scanlon, 473 U. S., at 239-240, n. 2;
Maine v.
Thiboutot, 448
U. S. 1, 9, n. 7 (1980);
Hall, supra, at 418421. This,
of course, is a truism as to the literal terms of
736
the Eleventh Amendment. As we have explained, however, the bare
text of the Amendment is not an exhaustive description of the
States' constitutional immunity from suit. The cases, furthermore,
do not decide the question presented here-whether the States retain
immunity from private suits in their own courts notwithstanding an
attempted abrogation by the Congress.
Two of the cases discussing state-court immunity may be
dismissed out of hand. The footnote digressions in
Atascadero
State Hospital and
Thiboutot were irrelevant to either
opinion's holding or rationale. The discussion in
Will was
also unnecessary to the decision; our holding that 42 U. S. C. §
1983 did not create a cause of action against the States rendered
it unnecessary to determine the scope of the States' constitutional
immunity from suit in their own courts. Our opinions in
Hilton and
Hall, however, require closer attention,
for in those cases we sustained suits against States in state
courts.
In
Hilton we held that an injured employee of a
stateowned railroad could sue his employer (an arm of the State) in
state court under the Federal Employers' Liability Act (FELA), 53
Stat. 1404, 45 U. S. C. §§ 51-60. Our decision was "controlled and
informed" by
stare decisis. 502 U. S., at 201. A generation
earlier we had held that because the FELA made clear that all who
operated railroads would be subject to suit by injured workers,
States that chose to enter the railroad business after the
statute's enactment impliedly waived their sovereign immunity from
such suits. See
Parden v.
Terminal R. Co. of Ala. Docks
Dept., 377 U. S.
184 (1964). Some States had excluded railroad workers from the
coverage of their workers' compensation statutes on the assumption
that the FELA provided adequate protection for those workers.
Hilton, 502 U. S., at 202. Closing the courts to FELA suits
against state employers would have dislodged settled expectations
and required an extensive legislative response.
Ibid.
737
There is language in
Hilton which gives some support to
the position of petitioners here but our decision did not squarely
address, much less resolve, the question of Congress' power to
abrogate States' immunity from suit in their own courts. The
respondent in
Hilton, the South Carolina Public Railways
Commission, neither contested Congress' constitutional authority to
subject it to suits for money damages nor raised sovereign immunity
as an affirmative defense. See Brief for Respondent in No. 90-848,
O. T. 1991, pp. 7, n. 14, 21. Nor was the State's litigation
strategy surprising.
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 it
may have appeared to the State that Congress' power to abrogate its
immunity from suit in any court was not limited by the Constitution
at all, so long as Congress made its intent sufficiently clear.
Furthermore, our decision in
Parden was based on concepts
of waiver and consent. Although later decisions have undermined the
basis of
Parden's reasoning, see,
e. g., Welch v.
Texas Dept. of Highways and Public Transp., 483 U. S. 468, 476-478
(1987) (recognizing that
Parden erred in finding a clear
congressional intent to subject the States to suit);
College
Savings Bank, ante, at 680 (overruling
Parden's theory
of constructive waiver), we have not questioned the general
proposition that a State may waive its sovereign immunity and
consent to suit, see
Seminole Tribe, 517 U. S., at 65.
Hilton, then, must be read in light of the doctrinal
basis of
Parden, the issues presented and argued by the
parties, and the substantial reliance interests drawn into question
by the litigation. When so read, we believe the decision is best
understood not as recognizing a congressional power to subject
nonconsenting States to private suits in their own courts, nor even
as endorsing the constructive waiver theory of
Parden, but
as simply adhering, as a matter of
stare decisis and
presumed historical fact, to the narrow proposition
738
that certain States had consented to be sued by injured workers
covered by the FELA, at least in their own courts.
In
Hall we considered whether California could subject
Nevada to suit in California's courts and determined the
Constitution did not bar it from doing so. We noted that "[t]he
doctrine of sovereign immunity is an amalgam of two quite different
concepts, one applicable to suits in the sovereign's own courts and
the other to suits in the courts of another sovereign." 440 U. S.,
at 414. We acknowledged that "[t]he immunity of a truly independent
sovereign from suit in its own courts has been enjoyed as a matter
of absolute right for centuries. Only the sovereign's own consent
could qualify the absolute character of that immunity,"
ibid., that "the notion that immunity from suit is an
attribute of sovereignty is reflected in our cases,"
id., at
415, and that "[t]his explanation adequately supports the
conclusion that no sovereign may be sued in its own courts without
its consent,"
id., at 416. We sharply distinguished,
however, a sovereign's immunity from suit in the courts of another
sovereign:
"[B]ut [this explanation] affords no support for a claim of
immunity in another sovereign's courts. Such a claim necessarily
implicates the power and authority of a second sovereign; its
source must be found either in an agreement, express or implied,
between the two sovereigns, or in the voluntary decision of the
second to respect the dignity of the first as a matter of comity."
Ibid.
Since we determined the Constitution did not reflect an
agreement between the States to respect the sovereign immunity of
one another, California was free to determine whether it would
respect Nevada's sovereignty as a matter of comity.
Our opinion in
Hall did distinguish a State's immunity
from suit in federal court from its immunity in the courts of
739
other States; it did not, however, address or consider any
differences between a State's sovereign immunity in federal court
and in its own courts. Our reluctance to find an implied
constitutional limit on the power of the States cannot be
construed, furthermore, to support an analogous reluctance to find
implied constitutional limits on the power of the Federal
Government. The Constitution, after all, treats the powers of the
States differently from the powers of the Federal 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 state power were intended by the Framers."
Id., at 425 (footnote omitted).
The Federal Government, by contrast, "can claim no powers which
are not granted to it by the constitution, and the powers actually
granted must be such as are expressly given, or given by necessary
implication."
Martin v.
Hunter's Lessee, 1 Wheat.
304, 326 (1816); see also
City of Boerne v.
Flores,
521 U. S. 507,
516 (1997);
United States v.
Lopez, 514 U. S. 549,
552 (1995).
Our decision in
Hall thus does not support the argument
urged by petitioners here. The decision addressed neither Congress'
power to subject States to private suits nor the 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, the proposition urged by respondent here-that the
Constitution reserves to the
740
States a constitutional immunity from private suits in their own
courts which cannot be abrogated by Congress.
Petitioners seek support in two additional decisions. In
Reich v.
Collins, 513 U. S. 106 (1994), we
held that, despite its immunity from suit in federal court, a State
which holds out what plainly appears to be "a clear and certain"
postdeprivation remedy for taxes collected in violation of federal
law may not declare, after disputed taxes have been paid in
reliance on this remedy, that the remedy does not in fact exist.
Id., at 108. This case arose in the context of taxrefund
litigation, where a State may deprive a taxpayer of all other means
of challenging the validity of its tax laws by holding out what
appears to be a "clear and certain" postdeprivation remedy.
Ibid.; see also
Fair Assessment in Real Estate Assn.,
Inc. v.
McNary, 454 U. S. 100 (1981). In
this context, due process requires the State to provide the remedy
it has promised. Cf.
Hudson v.
Palmer, 468 U. S. 517, 539 (1984)
(O'CONNOR, J., concurring). The obligation arises from the
Constitution itself;
Reich does not speak to the power of
Congress to subject States to suits in their own courts.
In
Howlett v.
Rose, 496 U. S. 356 (1990), we
held that a state court could not refuse to hear a § 1983 suit
against a school board on the basis of sovereign immunity. The
school board was not an arm of the State, however, so it could not
assert any constitutional defense of sovereign immunity to which
the State would have been entitled. See
Mt. Healthy City Bd. of
Ed. v.
Doyle, 429 U. S. 274, 280
(1977). In
Howlett, then, the only question was "whether a
state-law defense of 'sovereign immunity' is available to a school
board otherwise subject to suit in a Florida court even though such
a defense would not be available if the action had been brought in
a federal forum." 496 U. S., at 358-359. The decision did not
address the question of Congress' power to compel a state court to
entertain an action against a nonconsenting State.
741
B
Whether Congress has authority under Article I to abrogate 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 this derogation of the States' sovereignty is
"inherent in the constitutional compact,"
Blatchford, 501 U.
S., at 781, we continue our discussion of history, practice,
precedent, and the structure of the Constitution.
1
We look first to evidence of the original understanding of the
Constitution. Petitioners contend that because the ratification
debates and the events surrounding the adoption of the Eleventh
Amendment focused on the States' immunity from suit in federal
courts, the historical record gives 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
explained by the simple fact that no one, not even the
Constitution's most ardent opponents, suggested the document might
strip the States of the immunity. In light of the overriding
concern regarding the States' war-time debts, together with the
well-known creativity, foresight, and vivid imagination of the
Constitution's opponents, the silence is most instructive. It
suggests the sovereign's right to assert immunity from suit in its
own courts was a principle so well established that no one
conceived it would be altered by the new Constitution.
The arguments raised against the Constitution confirm this
strong inference. In England, the rule was well established that
"no lord could be sued by a vassal in his own court, but each petty
lord was subject to suit in the courts of a higher lord."
Hall, 440 U. S., at 414-415. It was argued that, by analogy,
the States could be sued without consent in federal court.
Id., at 418. The point of the argu-
742
ment was that federal jurisdiction under Article III would
circumvent the States' immunity from suit in their own courts. The
argument would have made little sense if the States were understood
to have relinquished the immunity in all events.
The response the Constitution's advocates gave to the argument
is also telling. Relying on custom and practiceand, in particular,
on the States' immunity from suit in their own courts, see 3
Elliot's Debates 555 (remarks of J. Marshall)-they contended that
no individual could sue a sovereign without its consent. It is true
the point was directed toward the power of the Federal Judiciary,
for that was the only question at issue. The logic of the argument,
however, applies with even greater force in the context of a suit
prosecuted against a sovereign in its own courts, for in this
setting, more than any other, sovereign immunity was long
established and unquestioned. See
Hall, supra, at 414.
Similarly, while the Eleventh Amendment by its terms addresses
only "the Judicial power of the United States," nothing in
Chisholm, the catalyst for the Amendment, suggested the
States were not immune from suits in their own courts. The only
Justice to address the issue, in fact, was explicit in
distinguishing between sovereign immunity in federal court and in a
State's own courts. See 2 Dall., at 452 (opinion of Blair, J.)
("When sovereigns are sued in their own Courts, such a method [a
petition of right] may have been established as the most respectful
form of demand; but we are not now in a State-Court; and if
sovereignty be an exemption from suit in any other than the
sovereign's own Courts, it follows that when a State, by adopting
the Constitution, has agreed to be amenable to the judicial power
of the
United States, she has, in that respect, given up her
right of sovereignty").
The language of the Eleventh Amendment, furthermore, was
directed toward the only provisions of the constitutional text
believed to call the States' immunity from private suits into
question. Although Article III expressly contemplated
743
jurisdiction over suits between States and individuals, nothing
in the Article or in any other part of the Constitution suggested
the States could not assert immunity from private suit in their own
courts or that Congress had the power to abrogate sovereign
immunity there.
Finally, the Congress which endorsed the Eleventh Amendment
rejected language limiting the Amendment's scope to cases where the
States had made available a remedy in their own courts. See
supra, at 721. Implicit in the proposal, it is evident, was
the premise that the States retained their immunity and the
concomitant authority to decide whether to allow private suits
against the sovereign in their own courts.
In light of the language of the Constitution and the historical
context, it is quite apparent why neither the ratification debates
nor the language of the Eleventh Amendment addressed the States'
immunity from suit in their own courts. The concerns voiced at the
ratifying conventions, the furor raised by
Chisholm, and the
speed and unanimity with which the Amendment was adopted, moreover,
underscore the jealous care with which the founding generation
sought to preserve the sovereign immunity of the States. To read
this history as permitting the inference that the Constitution
stripped the States of immunity in their own courts and allowed
Congress to subject them to suit there would turn on its head the
concern of the founding generation-that Article 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 understood to strip the States of
immunity from suit in their own courts and cede to the Federal
Government a power to subject nonconsenting States to private suits
in these fora.
2
Our historical analysis is supported by early congressional
practice, which provides "contemporaneous and weighty evi-
744
dence of the Constitution's meaning."
Printz, 521 U. S.,
at 905 (internal quotation marks omitted). Although early
Congresses enacted various statutes authorizing federal suits in
state court, see
id., at 906-907 (listing statutes);
Testa v.
Katt, 330 U. S. 386, 389-390
(1947), we have discovered no instance in which they purported to
authorize suits against nonconsenting States in these fora. The
"numerousness of these statutes [authorizing suit in state court],
contrasted with the utter lack of statutes" subjecting States to
suit, "suggests an assumed
absence of such power." 521 U.
S., at 907-908. It thus appears early Congresses did not believe
they had the power to authorize private suits against the States in
their own courts.
Not only were statutes purporting to authorize private suits
against nonconsenting States in state courts not enacted by early
Congresses; statutes purporting to authorize such suits in any
forum are all but absent from our historical experience. The first
statute we confronted that even arguably purported to subject the
States to private actions was the FELA. See
Parden, 377 U.
S., at 187 ("Here, for the first time in this Court, a State's
claim of immunity against suit by an individual meets a suit
brought upon a cause of action expressly created by Congress"). As
we later recognized, however, even this statute did not clearly
create a cause of action against the States. See
Welch, 483
U. S., at 476-478. The provisions of the FLSA at issue here, which
were enacted in the aftermath of
Parden, are among the first
statutory enactments purporting in express terms to subject
nonconsenting States to private suits. Although similar statutes
have multiplied in the last generation, "they are of such recent
vintage that they are no more probative than the [FLSA] of a
constitutional tradition that lends meaning to the text. Their
persuasive force is far outweighed by almost two centuries of
apparent congressional avoidance of the practice."
Printz,
supra, at 918.
745
Even the recent statutes, moreover, do not provide evidence of
an understanding that Congress has a greater power to subject
States to suit in their own courts than in federal courts. On the
contrary, the statutes purport to create causes of actions against
the States which are enforceable in federal, as well as state,
court. To the extent recent practice thus departs from longstanding
tradition, it reflects not so much an understanding that the States
have surrendered their immunity from suit in their own courts as
the erroneous view, perhaps inspired by
Parden and
Union
Gas, that Congress may subject nonconsenting States to private
suits in any forum.
3
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 was prosecuted in state or
federal court. See,
e. g., Briscoe v.
Bank of
Kentucky, 11 Pet. 257, 321-322 (1837) ("No sovereign state is
liable to be sued without her consent");
Board of
Liquidation v.
McComb, 92 U. S. 531, 541 (1876)
("A State, without its consent, cannot be sued by an individual");
In re Ayers, 123 U. S. 443, 506 (1887)
(same);
Great Northern Life Ins. Co. v.
Read,
322 U. S. 47, 51
(1944) ("The inherent nature of sovereignty prevents actions
against a state by its own citizens without its consent").
We have said on many occasions, furthermore, that the States
retain their immunity from private suits prosecuted in their own
courts. See,
e. g., Beers v.
Arkansas, 20 How. 527,
529 (1858) ("It is an established principle of jurisprudence 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, 101 U. S. 337, 339 (1880)
("The principle is elementary that a State cannot be sued in its
own courts without its consent. This is a privilege of
sovereignty");
Cunningham v.
Macon &
Brunswick
746
R. Co., 109
U. S. 446, 451 (1883) ("It may be accepted as a point of
departure unquestioned, that neither a State nor the United States
can be sued as defendant in any court in this country without their
consent, except in the limited class of cases in which a State may
be made a party in the Supreme Court of the United States by virtue
of the original jurisdiction conferred on this court by the
Constitution");
Louisiana ex rel. New York Guaranty &
Indemnity Co. v.
Steele, 134 U. S. 230, 232 (1890)
(finding a suit against a state official in state court to be
"clearly within the principle" of the Eleventh Amendment
decisions);
Hess v.
Port Authority TransHudson
Corporation, 513
U. S. 30, 39 (1994) ("The Eleventh Amendment largely shields
States from suit in federal court without their consent, leaving
parties with claims against a State to present them, if the State
permits, in the State's own tribunals");
Seminole Tribe, 517
U. S., at 71, n. 14 ("[T]his Court is empowered to review a
question of federal law arising from a state-court decision where a
State has consented to suit"); see also
Great Northern Life Ins.
Co. v.
Read, 322 U. S., at 59 (Frankfurter, J.,
dissenting) ("The Eleventh Amendment has put state immunity from
suit into the Constitution. Therefore, it is not in the power of
individuals to bring any State into court-the State's or that of
the United States-except with its consent"); accord,
id., at
51, 53 (majority opinion); cf.
Quern v.
Jordan,
440 U. S. 332,
340 (1979);
Green v.
Mansour, 474 U. S. 64, 71
(1985).
We have also relied on the States' immunity in their own courts
as a premise in our Eleventh Amendment rulings. See
Hans,
134 U. S., at 10 ("It is true the amendment does so read, and, if
there were no other reason or ground for abating his suit, it might
be maintainable; and then we should have this anomalous result
[that a State may be sued by its own citizen though not by the
citizen of another State, and that a State] may be thus sued in the
federal courts, although not allowing itself to be sued in its own
courts. If this is the necessary consequence of the language of the
Con-
747
stitution and the law, the result is no less startling and
unexpected than
[Chisholm]"); id., at 18 ("The state courts
have no power to entertain suits by individuals against a State
without its consent. Then how does the Circuit Court, having only
concurrent jurisdiction, acquire any such power?").
In particular, the exception to our sovereign immunity doctrine
recognized in
Ex parte Young, 209 U. S. 123 (1908), is
based in part on the premise that sovereign immunity bars relief
against States and their officers in both state and federal courts,
and that certain suits for declaratory or injunctive relief against
state officers must therefore be permitted if the Constitution is
to remain the supreme law of the land. As we explained in
General Oil Co. v.
Crain, 209 U. S. 211 (1908), a
case decided the same day as
Ex parte Young and extending
the rule of that case to state-court suits:
"It seems to be an obvious consequence that as a State can only
perform its functions through its officers, a restraint upon 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 conclusion, as
we have seen. Necessarily to give adequate protection to
constitutional rights a distinction must be made between valid and
invalid state laws, as determining the character of the suit
against state officers. And the suit at bar illustrates the
necessity. If a suit against state officers is precluded in the
national courts by the Eleventh Amendment to the Constitution, and
may be forbidden by a State to its courts, as it is contended in
the case at bar that it may be, without power of review by this
court, it must be evident that an easy way is open to prevent the
enforcement of many provisions of the Constitution .... See Ex
parte Young, [209 U. S., at] 123, where this subject is fully
discussed and the cases reviewed." 209 U. S., at 226-227.
748
Had we not understood the States to retain a constitutional
immunity from suit in their own courts, the need for the
Ex
parte Young rule would have been less pressing, and the rule
would not have formed so essential a part of our sovereign immunity
doctrine. See
Idaho v.
Coeur d'Alene Tribe of Idaho,
521 U. S., at 270-271 (principal opinion).
As it is settled doctrine that neither substantive federal law
nor attempted congressional abrogation under Article I bars a State
from raising a constitutional defense of sovereign immunity in
federal court, see Part II-A-1,
supra, our decisions
suggesting that the States retain an analogous constitutional
immunity from private suits in their own courts support the
conclusion that Congress lacks the Article I power to subject the
States to private suits in those fora.
4
Our final consideration is whether a congressional power to
subject nonconsenting States to private suits in their own courts
is consistent with the structure of the Constitution. We look both
to the essential principles of federalism and to the special role
of the state courts in the constitutional design.
Although the Constitution grants broad powers to Congress, our
federalism requires that Congress treat the States in a manner
consistent with their status as residuary sovereigns and joint
participants in the governance of the Nation. See,
e. g., United
States v.
Lopez, 514 U. S., at 583 (KENNEDY, J.,
concurring);
Printz, 521 U. S., at 935;
New York, 505
U. S., at 188. The founding generation thought it "neither becoming
nor convenient that the several States of the Union, invested with
that large residuum of sovereignty which had not been delegated to
the United States, should be summoned as defendants to answer the
complaints of private persons."
In re Ayers, 123 U. S., at
505. The principle of sovereign immunity preserved by
constitutional design "thus accords the States the respect owed
them as members
749
of the federation."
Puerto Rico Aqueduct and Sewer
Authority, 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
suffices to preserve the dignity of the States. Private suits
against nonconsenting States, however, present "the indignity of
subjecting a State to the coercive process of judicial tribunals at
the instance of private parties,"
In re Ayers, supra, at
505; accord,
Seminole Tribe, 517 U. S., at 58, regardless of
the forum. Not only must a State defend or default but also it must
face the prospect of being thrust, by federal fiat and against its
will, into the disfavored status of a debtor, subject to the power
of private citizens to levy on its treasury or perhaps even
government buildings or property which the State administers on the
public's behalf.
In some ways, of course, a congressional power to authorize
private suits against nonconsenting States in their own courts
would be even more offensive to state sovereignty than a power to
authorize the suits in a federal forum. Although the immunity of
one sovereign in the courts of another has often depended in part
on comity or agreement, the immunity of a sovereign in its own
courts has always been understood to be within the sole control of
the sovereign itself. See generally
Hall, 440 U. S., at
414-418. A power to press a State's own courts into federal service
to coerce the other branches of the State, furthermore, is the
power 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. Cf.
Coeur d'Alene Tribe,
supra, at 276. Such plenary federal control of state
governmental processes denigrates the separate sovereignty of the
States.
It is unquestioned that the Federal Government retains its own
immunity from suit not only in state tribunals but also in its own
courts. In light of our constitutional system
750
recognizing the essential sovereignty of the States, we are
reluctant to conclude that the States are not entitled to a
reciprocal privilege.
Underlying constitutional form are considerations of great
substance. Private suits against nonconsenting States-especially
suits for money damages-may threaten the financial integrity of the
States. It is indisputable that, at the time of the founding, many
of the States could have been forced into insolvency but for their
immunity from private suits for money damages. Even today, an
unlimited congressional power to authorize suits in state court to
levy upon the treasuries of the States for compensatory damages,
attorney's fees, and even punitive damages could create staggering
burdens, giving Congress a power and a leverage over the States
that is not contemplated by our constitutional design. The
potential national power would pose a severe and notorious danger
to the States and their resources.
A congressional power to strip the States of their immunity from
private suits in their own courts would pose more subtle risks as
well. "The principle of immunity from litigation assures the states
and the nation from unanticipated intervention in the processes of
government."
Great Northern Life Ins. Co. v.
Read,
322 U. S., at 53. When the States' immunity from private suits is
disregarded, "the course of their public policy and the
administration of their public affairs" may become "subject to and
controlled by the mandates of judicial tribunals without their
consent, and in favor of individual interests."
In re Ayers,
supra, at 505. While the States have relinquished their
immunity from suit in some special contexts-at least as a practical
matter-see Part III,
infra, this surrender carries with it
substantial costs to the autonomy, the decisionmaking ability, and
the sovereign capacity of the States.
A general federal power to authorize private suits for money
damages would place unwarranted strain on the
751
States' ability to 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 the political process. While the judgment creditor of a
State may have a legitimate claim for compensation, other important
needs and worthwhile ends compete for access to the public fisc.
Since all cannot be satisfied in full, it is inevitable that
difficult decisions involving the most sensitive and political of
judgments must be made. If the principle of representative
government is to be preserved to the States, the balance between
competing interests must be reached after deliberation by the
political process established by the citizens of the State, not by
judicial decree mandated by the Federal Government and invoked by
the private citizen. "It needs no argument to show that the
political power cannot be thus ousted of its jurisdiction and the
judiciary set in its place."
Louisiana v.
Jumel,
107 U. S. 711,
727-728 (1883).
By "'split[ting] 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 and
obligations to the people who sustain it and are governed by it.'"
Saenz v.
Roe, 526 U. S. 489, 504, n. 17
(1999), quoting
U. S.
Term Limits, Inc. v.
Thornton, 514
U. S. 779, 838 (1995) (KENNEDY, J., concurring). "The
Constitution thus contemplates that a State's government will
represent and remain accountable to its own citizens."
Printz, 521 U. S., at 920. When the Federal Government
asserts authority over a State's most fundamental political
processes, it strikes at the heart of the political accountability
so essential to our liberty and republican form of government.
The asserted authority would blur not only the distinct
responsibilities of the State and National Governments but also the
separate duties of the judicial and political branches of the state
governments, displacing "state decisions that 'go to the heart of
representative government.'"
Gregory v.
752
Ashcroft, 501 U. S. 452, 461
(1991). A State is entitled to order the processes of its own
governance, assigning to the political branches, rather than the
courts, the responsibility for directing the payment of debts. See
id., at 460 ("Through the structure of its government, and
the character of those who exercise government authority, a State
defines itself as a sovereign"). If Congress could displace a
State's allocation of governmental power and responsibility, the
judicial branch of the State, whose legitimacy derives from
fidelity to the law, would be compelled to assume a role not only
foreign to its experience but beyond its competence as defined by
the very Constitution from which its existence derives.
Congress cannot abrogate the States' sovereign immunity in
federal court; were the rule to be different here, the N ational
Government would wield greater power in the state courts than in
its own judicial instrumentalities. Cf.
Howlett, 496 U. S.,
at 365 (noting the anomaly that would arise if "a State might be
forced to entertain in its own courts suits from which it was
immune in federal court");
Hilton, 502 U. S., at 206
(recognizing the "federalism-related concerns that arise when the
National Government uses the state courts as the exclusive forum to
permit recovery under a congressional statute").
The resulting anomaly cannot be explained by reference to the
special role of the state courts in the constitutional design.
Although Congress may not require the legislative or executive
branches of the States to enact or administer federal regulatory
programs, see
Printz, supra, at 935;
New York, 505 U.
S., at 188, it may require state courts of "adequate and
appropriate" jurisdiction,
Testa, 330 U. S., at 394, "to
enforce federal prescriptions, insofar as those prescriptions
relat[e] to matters appropriate for the judicial power,"
Printz,
supra, at 907. It would be an unprecedented step, however, to
infer from the fact that Congress may declare federal law binding
and enforceable in state courts the fur-
753
ther principle that Congress' authority to pursue federal
objectives through the state judiciaries exceeds not only its 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 cases act only through
instrumentalities of the States. Yet, as Chief 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 execution of the great powers assigned
to it. Its means are adequate to its ends; and on those means alone
was it expected to rely for the accomplishment of its ends."
McCulloch v.
Maryland, 4 Wheat. 316, 424 (1819); cf.
Osborn v.
Bank of United States, 9 Wheat. 738, 821
(1824) ("It is not insinuated that the judicial power, in cases
depending on the character of the cause, cannot be exercised in the
first instance, in the Courts of the Union, but must first be
exercised in the tribunals of the State").
The provisions of the Constitution upon which we have relied in
finding the state courts peculiarly amenable to federal command,
moreover, do not distinguish those courts from the Federal
Judiciary. The Supremacy Clause does impose specific obligations on
state judges. There can be no serious contention, however, that the
Supremacy Clause imposes greater obligations on state-court judges
than on the Judiciary of the United States itself. The text of
Article III, § 1, which extends federal judicial power to
enumerated classes of suits but grants Congress discretion whether
to establish inferior federal courts, does give strong support to
the inference that state courts may be opened to suits falling
within the federal judicial power. The Article in no way suggests,
however, that state courts may be required to assume jurisdiction
that could not be vested in the federal courts and forms no part of
the judicial power of the United States.
754
We have recognized that Congress may require state courts to
hear only "matters appropriate for the judicial power,"
Printz, 521 U. S., at 907. Our sovereign immunity precedents
establish that suits against nonconsenting States are not "properly
susceptible of litigation in courts,"
Hans, 134 U. S., at
12, and, as a result, that "[t]he 'entire judicial power granted by
the Constitution' does not embrace authority to entertain such
suits in the absence of the State's consent,"
Principality of
Monaco, 292 U. S., at 329 (quoting
Ex parte New York,
256 U. S., at 497); accord, 292 U. S., at 322323 (private suits
against nonconsenting sovereigns are not "of a justiciable
character"). We are aware of no constitutional precept that would
admit of a congressional power to require state courts to entertain
federal suits which are not within the judicial power of the United
States and could not be heard in federal courts. As we explained in
Erie R. Co. v.
Tompkins, 304 U. S. 64 (1938):
"[T]he Constitution of the United States ... recognizes and
preserves the autonomy and independence of the States-independence
in their legislative and independence in their judicial
departments. Supervision over either the legislative or the
judicial action of the States is in no case permissible except as
to matters by the Constitution specifically authorized or delegated
to the United States. Any interference with either, except as thus
permitted, is an invasion of the authority of the State and, to
that extent, a denial of its independence." Id., at
78-79.
In light of history, practice, precedent, and the structure of
the Constitution, we hold that the States retain immunity from
private suit in their own courts, an immunity beyond the
congressional power to abrogate by Article I legislation.
III
The constitutional privilege of a State to assert its sovereign
immunity in its own courts does not confer upon the
755
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 and by federal statutes that comport
with the constitutional design. We are unwilling to assume the
States will refuse to honor the Constitution or obey the binding
laws of the United States. The good faith of the States thus
provides an important assurance that "[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 all judicial review
of state compliance with the Constitution and valid federal law.
Rather, certain limits are implicit in the constitutional principle
of state sovereign immunity.
The first of these limits is that sovereign immunity bars suits
only in the absence of consent. Many States, on their own
initiative, have enacted statutes consenting to a wide variety of
suits. The rigors of sovereign immunity are thus "mitigated by a
sense of justice which has continually expanded by consent the
suability of the sovereign."
Great Northern Life Ins. Co. v.
Read, 322 U. S., at 53. Nor, subject to constitutional
limitations, does the Federal Government lack the authority or
means to seek the States' voluntary consent to private suits. Cf.
South Dakota v.
Dole, 483 U. S. 203 (1987).
The States have consented, moreover, to some suits pursuant to
the plan of the Convention or to subsequent constitutional
Amendments. In ratifying the Constitution, the States consented to
suits brought by other States or by the Federal Government.
Principality of Monaco, supra, at 328-329 (collecting
cases). A suit which is commenced and prosecuted against a State in
the name of the United States by those who are entrusted with the
constitutional duty to "take Care that the Laws be faithfully
executed," U. S. Const., Art. II, § 3, differs in kind from the
suit of an individual: While the Constitution contemplates suits
among the
756
members of the federal system as an alternative to extralegal
measures, the fear of private suits against nonconsenting States
was the central reason given by the Founders who chose to preserve
the States' sovereign immunity. Suits brought by the United States
itself require the exercise of political responsibility for each
suit prosecuted against a State, a control which is absent from a
broad delegation to private persons to sue nonconsenting
States.
We have held also that in adopting the Fourteenth Amendment, the
people required the States to surrender a portion of the
sovereignty that had been preserved to them by the original
Constitution, so that Congress may authorize private suits against
nonconsenting States pursuant to its § 5 enforcement power.
Fitzpatrick v.
Bitzer, 427 U. S. 445 (1976). By
imposing explicit limits on the powers of the States and granting
Congress the power to enforce them, the Amendment "fundamentally
altered the balance of state and federal power struck by the
Constitution."
Seminole Tribe, 517 U. S., at 59. When
Congress enacts appropriate legislation to enforce this Amendment,
see
City of Boerne v.
Flores, 521 U. S. 507 (1997),
federal interests are paramount, and Congress may assert an
authority over the States which would be otherwise unauthorized by
the Constitution.
Fitzpatrick, supra, at 456.
The second important limit to the principle of sovereign
immunity is that it bars suits against States but not lesser
entities. The immunity does not extend to suits prosecuted against
a municipal corporation or other governmental entity which is not
an arm of the State. See,
e. g., Mt. Healthy City Bd. of Ed.
v.
Doyle, 429 U. S., at 280;
Lincoln County v.
Luning, 133 U.
S. 529 (1890). Nor does sovereign immunity bar all suits
against state officers. Some suits against state officers are
barred by the rule that sovereign immunity is not limited to suits
which name the State as a party if the suits are, in fact, against
the State. See,
e. g., In re Ayers, 123 U. S., at 505-506;
Idaho v.
Coeur d'Alene Tribe of Idaho,
757
521 U. S., at 270 ("The real interests served by 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 for injunctive or declaratory
relief. Compare
Ex parte Young, 209 U. S. 123 (1908), and
In re Ayers, supra, with
Coeur d'Alene Tribe of Idaho,
supra, Seminole Tribe, supra, and
Edelman v.
Jordan,
415 U. S. 651 (1974). 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
officer himself, so long as the relief is sought not from the state
treasury but from the officer personally.
Scheuer v.
Rhodes, 416 U.
S. 232, 237-238 (1974);
Ford Motor Co. v.
Department
of Treasury of Ind., 323 U. S. 459, 462
(1945).
The principle of sovereign immunity as reflected in our
jurisprudence strikes the proper balance between the supremacy of
federal law and the separate sovereignty of the States. See
Pennhurst State School and Hospital v.
Halderman, 465
U. S., at 105. Established rules provide ample means to correct
ongoing violations of law and to vindicate the interests which
animate the Supremacy Clause. See
Green v.
Mansour,
474 U. S., at 68. That we have, during the first 210 years of our
constitutional history, found it unnecessary to decide the question
presented here suggests a federal power to subject nonconsenting
States to private suits in their own courts is unnecessary to
uphold the Constitution and valid federal statutes as the supreme
law.
IV
The sole remaining question is whether Maine has waived its
immunity. The State of Maine "regards the immunity from suit as
'one of the highest attributes inherent in the nature of
sovereignty,'"
Cushing v.
Cohen, 420 A. 2d 919, 923
(Me. 1981) (quoting
Drake v.
Smith, 390 A. 2d 541,
543 (Me. 1978)), and adheres to the general rule that "a specific
authority conferred by an enactment of the legislature is req-
758
uisite if the sovereign is to be taken as having shed the
protective mantle of immunity," 420 A. 2d, at 923. Petitioners have
not attempted to establish a waiver of immunity under this
standard. Although petitioners contend the State has discriminated
against federal rights by claiming sovereign immunity from this
FLSA suit, there is no evidence that the State has manipulated its
immunity in a systematic fashion to discriminate against federal
causes of action. To the extent Maine has chosen to consent to
certain classes of suits while maintaining its immunity from
others, it has done no more than exercise a privilege of
sovereignty concomitant to its constitutional immunity from suit.
The State, we conclude, has not consented to suit.
v
This case at one level concerns the formal structure of
federalism, but in a Constitution as resilient as ours form mirrors
substance. Congress has vast power but not all power. When Congress
legislates in matters affecting the States, it may not treat these
sovereign entities as mere prefectures or corporations. Congress
must accord States the esteem due to them as joint participants in
a federal system, one beginning with the premise of sovereignty in
both the central Government and the separate States. Congress has
ample means to ensure compliance with valid federal laws, but it
must respect the sovereignty of the States.
In an apparent attempt to disparage a conclusion with which it
disagrees, the dissent attributes our reasoning to natural law. We
seek to discover, however, only what the Framers and those who
ratified the Constitution sought to accomplish when they created a
federal system. We appeal to no higher authority than the Charter
which they wrote and adopted. Theirs was the unique insight that
freedom is enhanced by the creation of two governments, not one. We
need not attach a label to our dissenting colleagues' insistence
that the constitutional structure adopted by the Found-
759
ers must yield to the politics of the moment. Although the
Constitution begins with the principle that sovereignty rests with
the people, it does not follow that the National Government becomes
the ultimate, preferred mechanism for expressing the people's will.
The States exist as a refutation of that concept. In choosing to
ordain and establish the Constitution, the people insisted upon a
federal structure for the very purpose of rejecting the idea that
the will of the people in all instances is expressed by the central
power, the one most remote from their control. The Framers of the
Constitution did not share our dissenting colleagues' belief that
the Congress may circumvent the federal design by regulating the
States directly when it pleases to do so, including by a proxy in
which individual citizens are authorized to levy upon the state
treasuries absent the States' consent to jurisdiction.
The case before us depends upon these principles. The State of
Maine has not questioned Congress' power to prescribe substantive
rules of federal law to which it must comply. Despite an initial
good-faith disagreement about the requirements of the FLSA, it is
conceded by all that the State has altered its conduct so that its
compliance with federal law cannot now be questioned. The Solicitor
General of the United States has appeared before this Court,
however, and asserted that 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 be stripped of
its immunity and subjected to suit in its own courts by its own
employees. Yet, despite specific statutory authorization, see 29 U.
S. C. § 216(c), the United States apparently found the same
interests insufficient to justify sending even a single attorney to
Maine to prosecute this litigation. The difference between a suit
by the United States on behalf of the employees and a suit by the
employees implicates a rule that the National Government must
itself deem the case of sufficient importance to take action
against the
760
State; and history, precedent, and the structure of the
Constitution make clear that, under the plan of the Convention, the
States have consented to suits of the first kind but not of the
second. The judgment of the Supreme Judicial Court of Maine is
Affirmed.
JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.
In
Seminole Tribe of Fla. v.
Florida, 517 U. S. 44 (1996), a
majority of this Court invoked the Eleventh Amendment to declare
that the federal judicial power under Article III of the
Constitution does not reach a private action against a State, even
on a federal question. In the Court's conception, however, the
Eleventh Amendment was understood as having been enhanced by a
"background principle" of state sovereign immunity (understood as
immunity to suit), see
id., at 72, that operated beyond its
limited codification in the Amendment, dealing solely with federal
citizen-state diversity jurisdiction. To the
Seminole Tribe
dissenters, of whom I was one, the Court's enhancement of the
Amendment was at odds with constitutional history and at war with
the conception of divided sovereignty that is the essence of
American federalism.
Today's issue arises naturally in the aftermath of the decision
in
Seminole Tribe. The Court holds that the Constitution
bars an individual suit against a State to enforce a federal
statutory right under the Fair Labor Standards Act of 1938 (FLSA),
29 U. S. C. § 201
et seq. (1994 ed. and Supp. III), when
brought in the State's courts over its objection. In thus
complementing its earlier decision, the Court of course confronts
the fact that the state forum renders the Eleventh Amendment beside
the point, and it has responded by discerning a simpler and more
straightforward theory of state sovereign immunity than it found in
Seminole Tribe: a State's sovereign immunity from all
individual suits is a "fun-
761
damental aspect" of state sovereignty "confirm[ed]" by the Tenth
Amendment.
Ante, at 713, 714. As a consequence,
Seminole
Tribe's contorted reliance on the Eleventh Amendment and its
background was presumably unnecessary; the Tenth would have done
the work with an economy that the majority in
Seminole Tribe
would have welcomed. Indeed, if the Court's current reasoning is
correct, the Eleventh Amendment itself was unnecessary. Whatever
Article III may originally have said about the federal judicial
power, the embarrassment to the State of Georgia occasioned by
attempts in federal court to enforce the State's war debt could
easily have been avoided if only the Court that decided
Chisholm v.
Georgia, 2 Dall. 419 (1793), had
understood a State's inherent, Tenth Amendment right to be free of
any judicial power, whether the court be state or federal, and
whether the cause of action arise under state or federal law.
The sequence of the Court's positions prompts a suspicion of
error, and skepticism is confirmed by scrutiny of the Court's
efforts to justify its holding. There is no evidence that the Tenth
Amendment constitutionalized a concept of sovereign immunity as
inherent in the notion of statehood, and no evidence that any
concept of inherent sovereign immunity was understood historically
to apply when the sovereign sued was not the font of the law. Nor
does the Court fare any better with its subsidiary lines of
reasoning, that the state-court action is barred by the scheme of
American federalism, a result supposedly confirmed by a history
largely devoid of precursors to the action considered here. The
Court's federalism ignores the accepted authority of Congress to
bind States under the FLSA and to provide for enforcement of
federal rights in state court. The Court's history simply
disparages the capacity of the Constitution to order relationships
in a Republic that has changed since the founding.
On each point the Court has raised it is mistaken, and I
respectfully dissent from its judgment.
762
I
The Court rests its decision principally on the claim that
immunity from suit was "a fundamental aspect of the sovereignty
which the States enjoyed before the ratification of the
Constitution,"
ante, at 713, an aspect which the Court
understands to have survived the ratification of the Constitution
in 1788 and to have been "confirm[ed]" and given constitutional
status,
ante, at 714, by the adoption of the Tenth Amendment
in 1791. If the Court truly means by "sovereign immunity" what that
term meant at common law, see
ante, at 737, its argument
would be insupportable. While sovereign immunity entered many new
state legal systems as a part of the common law selectively
received from England, it was not understood to be indefeasible or
to have been given any such status by the new National
Constitution, which did not mention it. See
Seminole Tribe,
supra, at 132-142, 160-162, and n. 55 (SOUTER, J., dissenting).
Had the question been posed, state sovereign immunity could not
have been thought to shield a State from suit under federal law on
a subject committed to national jurisdiction by Article I of the
Constitution. Congress exercising its conceded Article I power may
unquestionably abrogate such immunity. I set out this position at
length in my dissent in
Seminole Tribe and will not repeat
it here.1
The Court does not, however, offer to day's holding as a mere
corollary to its reasoning in
Seminole Tribe, substituting
the Tenth Amendment for the Eleventh as the occasion
1 The Court inexplicably protests that "the right to trial by
jury and the prohibition on unreasonable searches and seizures ...
derive from the common law,"
ante, at 733, but are
nonetheless indefeasible. I cannot imagine how this could be
thought relevant to my argument. These rights are constitutional
precisely because they are enacted in the Sixth and Fourth
Amendments, respectively, while the general prerogative of
sovereign immunity appears nowhere in the Constitution. My point is
that the common law rights that were not enacted into the
Constitution were universally thought defeasible by statute.
763
demands, and it is fair to read its references to a "fundamental
aspect" of state sovereignty as referring not to a prerogative
inherited from the Crown, but to a conception necessarily implied
by statehood itself. The conception is thus not one of common law
so much as of natural law, a universally applicable proposition
discoverable by reason. This, I take it, is the sense in which the
Court so emphatically relies on Alexander Hamilton's reference in
The Federalist No. 81, p. 548 (J. Cooke ed. 1961), to the States'
sovereign immunity from suit as an "inherent" right, see
ante, at 716, a characterization that does not require, but
is at least open to, a natural law reading.
I understand the Court to rely on the Hamiltonian formulation
with the object of suggesting that its conception of sovereign
immunity as a "fundamental aspect" of sovereignty was a
substantially popular, if not the dominant, view in the periods of
Revolution and Confederation. There is, after all, nothing else in
the Court's opinion that would suggest a basis for saying that the
ratification of the Tenth Amendment gave this "fundamental aspect"
its constitutional status and protection against any legislative
tampering by Congress.2 The Court's principal rationale for today's
result, then, turns on history: was the natural law conception of
sovereign immunity as inherent in any notion of an independent
State widely held in the United States in the period preceding the
ratification of 1788 (or the adoption of the Tenth Amendment in
1791)7
2 I am assuming that the Court does not put forward the theory
of the "fundamental aspect" as a newly derived conception of its
own, necessarily comprehended by the Tenth Amendment guarantee only
as a result of logic independent of any intention of the Framers.
Nor does the Court argue, and I know of no reason to 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 constitutionalized all common law individual
rights.
764
The answer is certainly no. There is almost no evidence that the
generation of the Framers thought sovereign immunity was
fundamental in the sense of being unalterable. Whether one looks at
the period before the framing, to the ratification controversies,
or to the early republican era, the evidence is the same. Some
Framers thought sovereign immunity was an obsolete royal
prerogative inapplicable in a republic; some thought sovereign
immunity was a common law power defeasible, like other common law
rights, by statute; and perhaps a few thought, in keeping with a
natural law view distinct from the common law conception, that
immunity was inherent in a sovereign because the body that made a
law could not logically be bound by it. N aturallaw thinking on the
part of a doubtful few will not, however, support the Court's
position.
A
The American Colonies did not enjoy sovereign immunity, that
being a privilege understood in English law to be reserved for the
Crown alone; "antecedent to the Declaration of Independence, none
of the colonies were, or pretended to be, sovereign states," 1 J.
Story, Commentaries on the Constitution § 207, p. 149 (5th ed.
1891). Several colonial charters, including those of Massachusetts,
Connecticut, Rhode Island, and Georgia, expressly specified that
the corporate body established thereunder could sue and be sued.
See 5 Sources and Documents of United States Constitutions 36 (w.
Swindler ed. 1975) (Massachusetts); 2
id., at 131
(Connecticut); 8
id., at 363 (Rhode Island); 2
id.,
at 434 (Georgia). Other charters were given to individuals, who
were necessarily subject to suit. See Gibbons, The Eleventh
Amendment and State Sovereign Immunity: A Reinterpretation, 83
Colum. L. Rev. 1889, 1897 (1983). If a colonial lawyer had looked
into Blackstone for the theory of sovereign immunity, as indeed
many did, he would have found nothing clearly suggesting that the
Colonies as such enjoyed any immunity
765
from suit. "[T]he law ascribes to the king the attribute of
sovereignty, or pre-eminence," said Blackstone, 1 W.
Blackstone, Commentaries *241 (hereinafter Blackstone), and for
him, the sources for this notion were Bracton 3 and Acts of
Parliament that declared the Crown imperial,
id., at
*241*242. It was simply the King against whom "no suit or action
can be brought ... even in civil matters, because no court can have
jurisdiction over him."
Id., at *242.4 If a
3 Bracton 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 currat contra ipsum, locus erit
supplicationi, quod factum suum corrigat et emendet." That is,
"If [justice] is asked of him, since no writ runs against him there
will [only] be opportunity for a petition, that he correct and
amend his act." 2 Bracton, De Legibus et Consuetudinibus Angliae 33
(G. Woodbine ed., S. Thorne transl. 1968) (London 1569 ed., folio
5b, Bk. I, ch. 8). 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 Law 465 (3d ed. 1927).
"'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 court is, we may say, an
accident.'''
Nevada v.
Hall, 440 U. S. 410, 415, n. 6
(1979) (quoting 1 F. Pollock & F. Maitland, History of English
Law 518 (2d ed. 1899)). It was this same view of the immunity that
came down to Blackstone, who cited Finch for the view that the King
must be petitioned and not sued. See H. Finch, Law, or a Discourse
thereof, in Four Books 255 (1678 ed., reprinted 1992) ("Here in
place of action against the King petition must be made unto him in
the Chancery, or in Parliament, for no action did ever lie against
the K[ing] at the Common Law, but the party is driven to his
petition" (footnotes omitted)); 1 Blackstone *242.
4 As I explain,
infra, at 767-768, this common law
conception of sovereign immunity differed from the natural law
version, which understood immunity as derived from the fact that
the sovereign was the font of the law, which could not bind him. I
do not dispute, indeed I insist, that in England it was the common
law version that existed, and so it is beside the point for the
Court to protest that the King could not be sued under French law
in his own courts, see
ante, at 735; naturally not, since
the common law conception was not couched in terms of who was the
font of the law. This said, I note that it is surprising for the
Court to say that "[i]t is doubtful whether the King was regarded
... as the font of the
766
person should have "a just demand upon the king, he must
petition him in his court of chancery, where his chancellor will
administer right as a matter of grace, though not upon compulsion."
Id., at *243.
It is worth pausing here to note that after Blackstone had
explained sovereign immunity at common law, he went on to say that
the common law tradition was compatible with sovereign immunity as
discussed by writers on "natural law":
"And this is entirely consonant to what is laid down by the
writers on natural law. 'A subject,' says Puffendorf, 'so long as
he continues a subject, hath no way to oblige his prince to
give him his due, when he refuses it; though no wise prince will
ever refuse to stand to a lawful contract. And, if the prince gives
the subject leave to enter an action against him, upon such
contract, in his own courts, the action itself proceeds rather upon
natural equity, than upon the municipal laws.' For the end of such
action is not to compel the prince to observe the contract,
but to persuade him." Ibid. (footnote omitted).5
traditions and customs which formed the substance of the common
law,"
ibid. Although Bracton said that "law makes the king,"
2 Bracton, at 33, he also said that the unwritten law of England
could properly be called law only to the extent that "the authority
of the king or prince [has] first been added thereto,"
id.,
at 19, and he spoke of "these English laws and customs, by the
authority of kings,"
id., at 21. The judges who announced
the common law sat "in the place of the king,"
id., at 20,
and so in practice the common law certainly derived from him. Thus,
at least for the most part, "[t]he custom of the king's court is
the custom of England, and becomes the common law." 1 Pollock &
Maitland,
supra n. 3, at 184. But for this, Blackstone would
probably not have remarked that the natural law theory produced a
result "consonant" with the common law, 1 Blackstone *243; see
infra this page and 768.
5 For the original of the quoted passage, see 1 S. Pufendorf, De
Jure Naturae et Gentium Libri Octo 915 (1688 ed., reprinted 1934);
for a modern translation, see 2 S. Pufendorf, De Jure Naturae et
Gentium Libri Octo
1344-1345 (C. & w. Oldfather transl.
1934) (hereinafter Pufendorf). Else-
767
N ext Blackstone quoted Locke's explanation for immunity,
according to which the risks of overreaching by "'a heady prince'"
are "'well recompensed by the peace of the public and security of
the government, in the person of the chief magistrate being thus
set out of the reach of danger.'"
Ibid. (quoting J. Locke,
Second Treatise of Civil Government § 205 (1690 J. Gough ed.
1947)). By quoting Pufendorf and Locke, Blackstone revealed to his
readers a legal-philosophical tradition that derived sovereign
immunity not from the immemorial practice of England but from
general theoretical principles. But although Blackstone thus
juxtaposed the common law and natural law 6 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 liberty, if 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 that 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 own nature, is incapable of producing an
obligation or right."
Id., at 1342-1343.
6 The 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 to 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 the
term, because the expression by such figures as Pufendorf, Hobbes,
and Locke, of the doctrine that the sovereign might not be sued,
was associated with a concept of sovereignty itself derived from
natural law. See Pufendorf 1103-1104; T. Hobbes, Leviathan Part 2,
chs. 17-18 (1651), in 23 Great Books of the Western World 99-104
(1952) (hereinafter Leviathan) (describing sovereignty as the
result of surrender of individual natural rights to single
authority); J. Locke, Second Treatise of Civil Government §§ 95-99
(1690 J. Gough ed. 1947) (describing political community formed by
individual consent out of a state of nature). The doctrine that the
sovereign could not be sued by his subjects might have been thought
by medieval civil lawyers to belong to
jus gentium, the law
of nations, which was a type of natural law; or perhaps in its
original form it might have been understood as a precept of
positive, written law. The earliest source
768
munity, he did not confuse them. It was as well he did not, for
although the two conceptions were arguably "consonant" in England,
where according to Blackstone, the Crown was sovereign,7 their
distinct foundations could make a difference in America, where the
location of sovereignty was an issue that independence would raise
with some exigence.
B
Starting in the mid-1760's, ideas about sovereignty in colonial
America began to shift as Americans argued that, lacking a voice in
Parliament, they had not in any express way consented to being
taxed. See B. Bailyn, The Ideological Origins of the American
Revolution 204-219 (1968); G. Wood, The Creation of the American
Republic, 1776-1787, pp. 347-348 (1969). The story of the
subsequent development of conceptions of sovereignty is complex and
uneven;
for this conception is a statement of Ulpian's recorded in the
Digest, 1.3.31, and much interpreted by medieval jurists,
"Princeps legibus solutus est"; "The emperor is not bound by
statutes." See 1 The Digest of Justinian 13 (T. Mommsen & P.
Krueger eds., A. Watson transl. 1985); Tierney, The Prince Is Not
Bound by the Laws: Accursius and the Origins of the Modern State, 5
Comparative Studies in Society and History 378 (1963); K.
Pennington, The Prince and the Law, 1200-1600: Sovereignty and
Rights in the Western Legal Tradition 77-79 (1993). Through its
reception and discussion in the continental legal tradition, where
it related initially to the Emperor, but also eventually to a King,
to the Pope, and even to a city-state, see
id., at 90, this
conception of sovereign immunity developed into a theoretical model
applicable to any sovereign body. Thus Hobbes could begin his
discussion of the subject by saying, "The sovereign of a
Commonwealth, be it an assembly or one man, is not subject to the
civil laws." Leviathan, ch. 26, p. 130. There is debate on the
degree to which different medieval interpreters of the maxim
Princeps legibus solutus est understood natural or divine
law to limit the prince's freedom from the statutes. See Tierney,
supra, at 390-394; Pennington,
supra, at 206-208;
7 A better formulation would have clarified that sovereignty
resided in the King in Parliament, which was the dominant view by
the later 17th century. See,
e. g., G. Wood, The
Creation of the American Republic, 1776-1787, p. 347 (1969).
769
here, it is enough to say that by the time independence was
declared in 1776, the locus of sovereignty was still an open
question, except that almost by definition, advocates of
independence denied that sovereignty with respect to the American
Colonies remained with the King in Parliament.
As the concept of sovereignty was unsettled, so was that of
sovereign immunity. Some States appear to have understood
themselves to be without immunity from suit in their own courts
upon independence.8 Connecticut and Rhode Island adopted their
pre-existing charters as constitutions, without altering the
provisions specifying their suability. See Gibbons, 83 Colum. L.
Rev., at 1898, and nn. 42-43. Other new States understood
themselves to be inheritors of the Crown's common law sovereign
immunity and so enacted statutes authorizing legal remedies against
the State parallel to those available in England.9 There, although
the Crown
8 The Court claims that the doctrine of sovereign immunity was
"universal in the States when the Constitution was drafted and
ratified,"
ante, at 715-716, but the examples of Connecticut
and Rhode Island suggest that this claim is overstated. It is of
course true that these States' preservation without comment of
their colonial suability 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
suable bodies, it would be tendentious so to understand it. The
Court relies for its claim on Justice Iredell's statement in
Chisholm v.
Georgia, 2 Dall. 419 (1793), that there
was "no doubt" that no State had "'any particular Legislative mode,
authorizing a compulsory suit for the recovery of money against a
State ... either when the Constitution was adopted, or at the time
the judicial act was passed.'''
Ante, at 716 (quoting
Chisholm, supra, at 434-435). But as the cases of Rhode
Island and Connecticut demonstrate, Justice Iredell was simply
wrong. As I have had occasion to say elsewhere, that an assertion
of historical fact has been made by a Justice of the Court does not
make it so. See
Seminole Tribe of Fla. v.
Florida,
517 U. S. 44, 107,
n. 5 (1996) (dissenting opinion).
9 The Court seems to think I have overlooked this point, that
the exceptions imply a rule, see
ante, at 724 (provisions
for chancery petitions "only confir[m]" immunity enjoyed by these
States). The reason for canvassing the spectrum of state thought
and practice is not to deny the undoubted place of sovereign
immunity in most States' courts, but to examine what
770
was immune from suit, the contemporary practice allowed private
litigants to seek legal remedies against the Crown through the
petition of right or the
monstrans de droit in the Chancery
or Exchequer. See 3 Blackstone *256-*257. A Virginia statute
provided:
" 'Where the auditors according to their discretion and judgment
shall disallow or abate any article of demand against the
commonwealth, and any person shall think himself aggrieved thereby,
he shall be at liberty to petition the high court of chancery or
the general court, according to the nature of his case, for
redress, and such court shall proceed to do right thereon; and a
like petition shall be allowed in all other cases to any other
person who is entitled to demand against the commonwealth any right
in law or equity.'" 9 W. Hening, Statutes at Large: Being a
Collection of the Laws of Virginia 536, 540 (1821), quoted in
Pfander, Sovereign Immunity and the Right to Petition: Toward a
First Amendment Right to Pursue Judicial Claims Against the
Government, 91 Nw. U. L. Rev. 899, 939-940, and n. 142 (1997).
This "petition" was clearly reminiscent of the English petition
of right, as was the language "shall proceed to do right thereon,"
which paralleled the formula of royal approval,
"soit droit fait
al partie," technically required before a petition of right
could be adjudicated. See 3 Blackstone *256; Pfander,
supra,
at 940, and nn. 143-144. A New York statute similarly authorized
petition to the court of chancery by anyone who thought himself
aggrieved by the state auditor general's resolution of his account
with the State. See An Act Directing a Mode for the Recovery of
Debts Due to, and the Settlement of Accounts with, this State,
March 30, 1781,
turns out to be the scanty evidence that the States understood
sovereign immunity in the indefeasible, civilian, natural law
sense, necessary to support the Court's position here.
771
in The First Laws of the State of New York 192 (1782 ed.,
reprinted 1984); see also Pfander,
supra, at 941, and
n.145.
Pennsylvania not only adopted a law conferring the authority to
settle accounts upon the Comptroller General, see Act of Apr. 13,
1782, ch. 959, 2 Laws of the Commonwealth of Pennsylvania 19
(1810), but in 1785 provided for appeal from such adjudications to
the Pennsylvania Supreme Court, where a jury trial could be had,
see
id., at 26-27; Pfander,
supra, at 941, n. 147.
Although in at least one recorded case before the Pennsylvania
Supreme Court the Commonwealth, citing Blackstone, pleaded common
law sovereign immunity, see
Respublica v.
Sparhawk, 1
Dall. 357, 363 (Pa. 1788), the Supreme Court of Pennsylvania did
not reach this argument, concluding on other grounds that it lacked
jurisdiction.10 Two years after this decision, under the influence
of James Wilson, see C. Jacobs, The Eleventh Amendment and
Sovereign Immunity 25, and 169, n. 53 (1972), Pennsylvania adopted
a new constitution, which provided that "[s]uits may be brought
against the commonwealth in such manner, in such courts, and in
such cases as the legislature may by law direct." Pa. Const., Art.
IX, § 11 (1790), reprinted in 8 Sources and Documents of United
States Constitutions, at 293; see also Pfander,
supra, at
928, n. 101.11
10 In a suit against Virginia in the Court of Common Pleas for
Philadelphia County, Virginia pleaded sovereign immunity in natural
law terms, and the sheriff was excused from making return of the
writ attaching Virginia's goods, see
Nathan v.
Virginia, 1 Dall. 77, n. (1781), but this was only after the
Supreme Executive Council of the Commonwealth had already ordered
the goods returned and, in any event, involved the immunity of one
State in the courts of another, and not the distinct immunity of a
State in her own courts, see
Nevada v.
Hall, 440 U.
S., at 414.
11 Whether this formulation was a constitutional waiver of
sovereign immunity 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 support the
latter interpretation.
772
Around the time of the Constitutional Convention, then, there
existed among the States some diversity of practice with respect to
sovereign immunity; but despite a tendency among the state
constitutions to announce and declare certain inalienable and
natural rights of men and even of the collective people of a State,
see,
e. g., Pennsylvania Constitution, Art. III
(1776), 8 Sources and Documents of United States Constitutions,
supra, at 278 ("That the people of this State have the sole,
exclusive and inherent right of governing and regulating the
internal police of the same"), no State declared that sovereign
immunity was one of those rights. To the extent that States were
thought to possess immunity, it was perceived as a prerogative of
the sovereign under common law. And where sovereign immunity was
recognized as barring suit, provisions for recovery from the State
were in order, just as they had been at common law in England.
C
At the Constitutional Convention, the notion of sovereign
immunity, whether as natural law or as common law, was not an
immediate subject of debate, and the sovereignty of a State in its
own courts seems not to have been mentioned. This comes as no
surprise, for although the Constitution required state courts to
apply federal law, the Framers did not consider the possibility
that federal law might bind States, say, in their relations with
their employees.12 In the subse-
12 The Court says, "the Founders' silence is best explained by
the simple fact that no one, not even the Constitution's most
ardent opponents, suggested the document might strip States of the
immunity."
Ante, at 741. In fact, a stalwart supporter of
the Constitution, James Wilson, laid the groundwork for just such a
view at the Pennsylvania Convention, see
infra, at 777-778.
For the most part, it is true, the surviving records of the
ratifying conventions do not suggest that much thought was given to
the issue of suit against States in their own courts. But this
silence does not tell us that the Framers' generation thought the
prerogative so well settled as to be an inherent right of States,
and not a common law creation. It says only that at the
conventions, the issue was not on the participants'
773
quent ratification debates, however, the issue of jurisdiction
over a State did emerge in the question whether States might be
sued on their debts in federal court, and on this point, too, a
variety of views emerged and the diversity of sovereign immunity
conceptions displayed itself.
The only arguable support for the Court's absolutist view that I
have found among the leading participants in the debate surrounding
ratification was the one already mentioned, that of Alexander
Hamilton in The Federalist No. 81, where he described the sovereign
immunity of the States in language suggesting principles associated
with natural law:
"It is inherent in the nature of sovereignty, not to be amenable
to the suit of an individual without its consent. This is
the general sense and the general practice of mankind; and the
exemption, as one of the attributes of sovereignty, is now enjoyed
by the government of every state in the union. Unless therefore,
there is a surrender of this immunity in the plan of the
convention, it will remain with the states, and the danger
intimated [that States might be sued on their debts in federal
court] must be merely ideal. ... The contracts between a nation and
individuals are only binding on the conscience of the sovereign,
and have no pretensions to a compulsive force. They confer no right
of action independent of the sovereign will." The Federalist No.
81, at 548-549.
Hamilton chose his words carefully, and he acknowledged the
possibility that at the Convention the States might have
surrendered sovereign immunity in some circumstances, but the
thrust of his argument was that sovereign immunity was "inherent in
the nature of sovereignty." 13 An echo of Pufen-
minds because the nature of sovereignty was not always
explicitly addressed.
13 In
Seminole Tribe, I explained that Hamilton had in
mind state sovereign immunity only with respect to diversity cases
applying state contract law. See 517 U. S., at 145-149 (dissenting
opinion). Here I intend simply
774
dorf may be heard in his reference to "the conscience of the
sovereign"; 14 and the universality of the phenomenon of sovereign
immunity, which Hamilton claimed ("the general sense and the
general practice of mankind"), is a peculiar feature of the natural
law conception. The apparent novelty and uniqueness of Hamilton's
employment of natural law terminology to explain the sovereign
immunity of the States is worth remarking, because it stands in
contrast to formulations indicating no particular position on the
natural-Iawversus-common-Iaw origin, to the more widespread view
that sovereign immunity derived from common law, and to the more
radical stance that the sovereignty of the people made sovereign
immunity out of place in the United States. Hamilton's view is also
worth noticing because, in marked contrast to its prominence in the
Court's opinion today, as well as in
Seminole Tribe, 517 U.
S., at 54, and in
Hans v.
Louisiana, 134 U. S. 1, 13 (1890), cf.
Great Northern Life Ins. Co.
to point out that with respect to state law, in the main
Hamilton spoke consistently with deriving sovereign immunity from a
natural law model. That he did so is consistent with his focus on
state law; Hamilton almost certainly knew that the natural law
theory of sovereign immunity extended only to rights created by the
sovereign, and so would not have applied to federal-question claims
against a State in either state or federal court. Thus when the
Court claims that subjecting States to suit in state court "would
turn on its head the concern of the founding generationthat Article
III might be used to circumvent state-court immunity,"
ante,
at 743, it has failed to realize that even those Framers who, like
Hamilton, aimed to preserve state sovereign immunity, had in mind
only state immunity on state-law claims, not federal questions.
14 Pufendorf's discussion of sovereign immunity, just before the
passage quoted by Blackstone, begins (in a modern translation):
"Now although promises and pacts are as binding upon the conscience
of a king as upon that of any private citizen, there is,
nevertheless, this difference between the obligation of a king and
that of subjects, namely, that it is no trouble for the former to
exact what is owed him from a subject, when he demurs, while a
citizen, so long as he remains such, has no means within his power
to recover his due from a king against his will." 2 Pufendorf
1344-1345.
775
v.
Read, 322
U. S. 47,51 (1944), it found no favor in the early Supreme
Court, see
infra, at 781.
In the Virginia ratifying convention, Madison was among those
who debated sovereign immunity in terms of the result it produced,
not its theoretical underpinnings. He maintained that "[i]t is not
in the power of individuals to call any state into court," 3
Debates on the Federal Constitution 533 (J. Elliot 2d ed. 1863)
(hereinafter Elliot's Debates), and thought that the phrase "in
which a State shall be a Party" in Article III, § 2, must be
interpreted in light of that general principle, so that "[t]he only
operation it can have, is that, if a state should wish to bring a
suit against a citizen, it must be brought before the federal
court." Elliot's Debates 533.15 John Marshall argued along the same
lines against the possibility of federal jurisdiction over private
suits against States, and he invoked the immunity of a State in its
own courts in support of his argument:
"I hope that no gentleman will think that a state will be called
at the bar of the federal court. Is there no such case at present?
Are there not many cases in which the legislature of Virginia is a
party, and yet the state is not sued? It is not rational to suppose
that the sovereign power should be dragged before a court."
Id., at 555.
There was no unanimity among the Virginians either on state- or
federal-court immunity, however, for Edmund Randolph anticipated
the position he would later espouse as plaintiff's counsel in
Chisholm v.
Georgia, 2 Dall. 419 (1793). He contented
himself with agnosticism on the significance of what Hamilton had
called "the general practice of mankind," and argued that
notwithstanding any natural law view of the non suability of
States, the Constitution permitted suit against a State in federal
court: "I think, whatever the law
15 Madison seems here to have overlooked the possibility of
concurrent jurisdiction between the Supreme Court's original
jurisdiction and that of state courts.
776
of nations may say, that any doubt respecting the construction
that a state may be plaintiff, and not defendant, is taken away by
the words
where a state shall be a party." 3 Elliot's
Debates 573. Randolph clearly believed that the Constitution both
could, and in fact by its language did, trump any inherent immunity
enjoyed by the States; his view on sovereign immunity in state
court seems to have been that the issue was uncertain ("whatever
the law of nations may say").
At the furthest extreme from Hamilton, James Wilson made several
comments in the Pennsylvania Convention that suggested his
hostility to any idea of state sovereign immunity. First, he
responded to the argument that "the sovereignty of the states is
destroyed" if they are sued by the United States, "because a suiter
in a court must acknowledge the jurisdiction of that court, and it
is not the custom of sovereigns to suffer their names to be made
use of in this manner." 2
id., at 490. For Wilson, "[t]he
answer [was] plain and easy: the government of each state ought to
be subordinate to the government of the United States."
Ibid.16 Wil-
16 The Court says this statement of Wilson's is "startling even
today,"
ante, at 725, but it is hard to see what is so
startling, then or now, about the proposition that, since federal
law may bind state governments, the state governments are in this
sense subordinate to the national. The Court seems to have
forgotten that one of the main reasons a Constitutional Convention
was necessary at all was that under the Articles of Confederation
Congress lacked the effective capacity to bind the States. The
Court speaks as if the Supremacy Clause did not exist or
McCulloch v.
Maryland, 4 Wheat. 316 (1819), had never
been decided.
Nor is the Court correct to say that the views of Wilson,
Randolph, and General Charles Cotesworth Pinckney, see n. 17,
infra, "cannot bear the weight" I put upon them,
ante, at 725. Indeed, the yoke is light, since I intend
these Framers only to do their part in showing that a diversity of
views with respect to sovereignty and sovereign immunity existed at
the several state conventions, and that this diversity stands in
the way of the Court's assumption that the founding generation
understood sovereign
777
son was also pointed in commenting on federal jurisdiction over
cases between a State and citizens of another State:
"When this power is attended to, it will be found to be a
necessary one. Impartiality is the leading feature in this
Constitution; it pervades the whole. When a citizen has a
controversy with another state, there ought to be a tribunal where
both parties may stand on a just and equal footing."
Id., at
491. Finally, Wilson laid out his view that sovereignty was in fact
not located in the States at all: "Upon what principle is it
contended that the sovereign power resides in the state
governments? The honorable gentleman has said truly, that there can
be no subordinate sovereignty. Now, if there cannot, my position
is, that the sovereignty resides in the people; they have not
parted with it; they have only dispensed such portions of the power
as were conceived necessary for the public welfare."
Id., at
443.17 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 attempt to 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 mainstream, and in October
1787, Washington himself called Wilson "as able, candid, &
honest a member as any in Convention," 5 Papers of George
Washington: Confederation Series 379 (w. Abbot & D. Twohig eds.
1997).
17 Nor was Wilson alone in this theory. At the South Carolina
Convention, General Charles Cotesworth Pinckney, who had attended
the Philadelphia Convention, took the position that the States
never enjoyed individual and unfettered sovereignty, because the
Declaration of Independence was an act of the Union, not of the
particular States. See 4 Elliot's Debates 301. In his view, the
Declaration "sufficiently confutes the ... doctrine of the
individual sovereignty and independence of the several states ....
The separate independence and individual sovereignty of the several
states were never thought of by the enlightened band of patriots
who framed this Declaration; the several states are not even
mentioned by name in any part of it,-as if it was intended to
impress this maxim on America, that our freedom and independence
arose from our
778
statement did not specifically address sovereign immunity, it
expressed the major premise of what would later become Justice
Wilson's position in
Chisholm: that because the people, and
not the States, are sovereign, sovereign immunity has no
applicability to the States.
From a canvass of this spectrum of opinion expressed at the
ratifying conventions, one thing is certain. No one was espousing
an indefeasible, natural law view of sovereign immunity. The
controversy over the enforceability of state debts subject to state
law produced emphatic support for sovereign immunity from eminences
as great as Madison and Marshall, but neither of them indicated
adherence to any immunity conception outside the common law.
D
At the close of the ratification debates, the issue of the
sovereign immunity of the States under Article III had not been
definitively resolved, and in some instances the indeterminacy led
the ratification conventions to respond in ways that point to the
range of thinking about the doctrine. Several state ratifying
conventions proposed amendments and issued declarations that would
have exempted States from subjection to suit in federal courUs The
New York Conven-
union, and that without it we could neither be free nor
independent."
Ibid.
18 "[T]he grand objection, that the states were made subject to
the action of an individual, still remained for several years,
notwithstanding the concurring dissent of several states at the
time of accepting the constitution." 1 W. Blackstone, Commentaries,
App. 352 (St. G. Tucker ed. 1803). In a footnote, Tucker specified
that "[t]he several conventions of Massachusetts, New Hampshire,
Rhode Island, New York, Virginia, and North Carolina, proposed
amendments in this respect."
Ibid. The proposed amendments
of the latter four States, which may be found in Elliot's Debates,
are discussed immediately
infra this page and 779-781. The
extant published versions of the proposed amendments of
Massachusetts and New Hampshire do not include such a proposed
amendment. See,
e. g., 1 Elliot's Debates 322-323
(nine proposed amendments of Massachusetts); 2
id., at
177-178 (same); H. R. Doc. No. 398, 69th Cong., 1st Sess.,
1018-1020 (1927)
779
tion's statement of ratification included a series of
declarations framed as proposed amendments, among which was one
stating "That the judicial power of the United States, in cases in
which a state may be a party, does not extend to criminal
prosecutions, or to authorize any suit by any person against a
state." 1 Elliot's Debates 329.19 Whether that amendment was meant
to alter or to clarify Article III as ratified is uncertain, but
regardless of its precise intent, New York's response to the draft
proposed by the Convention of 1787 shows that there was no
consensus at all on the question of state suability (let alone on
the underlying theory of immunity doctrine). There was, rather, an
unclear state of affairs which it seemed advisable to
stabilize.
The Rhode Island Convention, when it finally ratified on June
16, 1790, called upon its representatives to urge the passage of a
list of amendments. This list incorporated language, some of it
identical to that proposed by New York, in the following form:
"It is declared by the Convention, that the judicial power of
the United States, in cases in which a state may be a party, does
not extend to criminal prosecutions, or to authorize any suit by
any person against a state; but, to remove all doubts or
controversies respect-
(same); 1 Elliot's Debates 325-326 (12 proposed amendments of
New Hampshire); H. R. Doc. No. 398,
supra, at 1025-1026
(same).
19 It is conceivable that the New York Convention, which was
after all the intended audience for The Federalist, thought that
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 declared so-called "rights" in no uncertain
terms, see,
e. g., 1 Elliot's Debates 328 ("[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 the rights of a free people"; "[T]he people
have a right peaceably 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 otherwise.
Id., at 329.
780
ing the same, that it be especially expressed, as a part of the
Constitution of the United States, that Congress shall not,
directly or indirectly, either by themselves or through the
judiciary, interfere with anyone of the states ... in liquidating
and discharging the public securities of anyone state." Id.,
at 336.
Even more clearly than New York's proposal, this amendment
appears to have been intended to clarify Article III as reflecting
some theory of sovereign immunity, though without indicating which
one.
Unlike the Rhode Island proposal, which hinted at a
clarification of Article III, the Virginia and North Carolina
ratifying conventions proposed amendments that by their terms would
have fundamentally altered the content of Article III. The Virginia
Convention's proposal for a new Article III omitted entirely the
language conferring federal jurisdiction over a controversy between
a State and citizens of another State, see 3
id., at
660-661, and the North Carolina Convention proposed an identical
amendment, see 4
id., at 246-247. These proposals for
omission suggest that the conventions of Virginia and North
Carolina thought they had subjected themselves to citizen suits
under Article III as enacted, and that they wished not to have done
SO.20 There is, thus, no suggestion in their resolutions that
Article III as drafted was fundamentally at odds with an
indefeasible natural law sovereignty, or with a conception that
went to the essence of what it meant to be a State. At all events,
the state ratifying conventions' felt need for clarification on the
question of
20 The Court says "there is no evidence that [the proposed
amendments] were directed toward the question of sovereign immunity
or that they reflect an understanding that the States would be
subject to private suits without consent under Article III as
drafted."
Ante, at 725. No evidence, that is, except the
proposed amendments themselves, which would have omitted the
Citizen-State Diversity Clause. If the proposed omission is not
evidence going to sovereign immunity to private suits, one wonders
what would satisfy the Court.
781
state suability demonstrates that uncertainty surrounded the
matter even at the moment of ratification. This uncertainty set the
stage for the divergent views expressed in
Chisholm.
E
If the natural law conception of sovereign immunity as an
inherent characteristic of sovereignty enjoyed by the States had
been broadly accepted at the time of the founding, one would expect
to find it reflected somewhere in the five opinions delivered by
the Court in
Chisholm v.
Georgia, 2 Dall. 419 (1793).
Yet that view did not appear in any of them. And since a bare two
years before
Chisholm, the Bill of Rights had been added to
the original Constitution, if the Tenth Amendment had been
understood to give federal constitutional status to state sovereign
immunity so as to endue it with the equivalent of the natural law
conception, one would be certain to find such a development
mentioned somewhere in the
Chisholm writings. In fact,
however, not one of the opinions espoused the natural law view, and
not one of them so much as mentioned the Tenth Amendment. Not even
Justice Iredell, who alone among the Justices thought that a State
could not be sued in federal court, echoed Hamilton or hinted at a
constitutionally immutable immunity doctrine.
Chisholm presented the questions whether a State might be
made a defendant in a suit brought by a citizen of another State,
and if so, whether an action of assumpsit would lie against it. See
id., at 420 (questions presented).21 In rep-
21 The case had first been brought before the Federal Circuit
Court for the District of Georgia, over which Justice Iredell and
District Judge Nathaniel Pendleton had presided. Ultimately,
Justice Iredell held that the Circuit Court had no jurisdiction in
the case because Congress had not conferred such jurisdiction on
it. See 5 Documentary History of the Supreme Court of the United
States, 1789-1800, pp. 128-129, 154 (M. Marcus ed. 1994). Georgia
had maintained that it was "a free, sov[e]reign, and independent
State, and ... cannot be drawn or compelled, nor at any Time
782
resenting Chisholm, Edmund Randolph, the Framer22 and then
Attorney General, not only argued for the necessity of a federal
forum to vindicate private rights against the States, see
id., at 422, but rejected any traditional conception of
sovereignty. He said that the sovereignty of the States, which he
acknowledged,
id., at 423, was no barrier to jurisdiction,
because "the present Constitution produced a new order of things.
It derives its origin immediately from the people .... The States
are in fact assemblages of these individuals who are liable to
process,"
ibid.
Justice Wilson took up the argument for the sovereignty of the
people more vociferously. Building on a conception of sovereignty
he had already expressed at the Pennsylvania
past hath been accustomed to be, or could be drawn or compelled
to answer against the will of the said State of Georgia, before any
Justices of the federal Circuit Court for the District of Georgia
or before any Justices of any Court of Law or Equity whatever."
Plea to the Jurisdiction, Oct. 17, 1791,
id., at 143.
Chisholm demurred to the plea on the apparent ground that while the
plea alleged that Georgia could not be compelled to appear before
any court, Article III expressly declared that the federal judicial
power extended to all controversies between a State and citizens of
another State. Demurrer,
id., at 144. In his unreported
opinion, Justice Iredell dispensed with this demurrer. He first
stated that the plea sufficiently alleged that the District Court
lacked jurisdiction.
Id., at 150. He added that in any case,
the existence of Congress's constitutional authority to create
courts to hear controversies between a State and citizens of
another State did not mean that Congress had in fact created such
courts.
Id., at 151. Third, Justice Iredell pointed out that
the right to create courts for cases in which a State was a party
did not mean that Congress could confer jurisdiction in cases like
the one at bar, because the word "controversies" in Article III
might refer only to situations "where such controversies could
formerly have been maintained" in state court. Since "under the
jurisdiction of a particular State Sovereigns may be liable in some
instances but not in others," just as "[i]n England the property in
possession of the crown can be affected by an adverse Process, tho'
certainly the King cannot be sued for the recovery of a sum of
money,"
ibid., it appeared to Justice Iredell that under
some conditions Article III did not authorize suits against
States.
22 Framer but not signer.
783
ratifying convention, see
supra, at 777-778, he began by
noting what he took to be the pregnant silence of the Constitution
regarding sovereignty:
"To the Constitution of the United States the term
SOVEREIGN, is totally unknown. There is but one place where it
could have been used with propriety. But, even in that place it
would not, perhaps, have comported with the delicacy of those, who
ordained and established that Constitution. They
might have announced themselves 'SOVEREIGN' people of the
United States: But serenely conscious of the fact,
they avoided the ostentatious declaration." 2 Dall., at
454.
As if to contrast his own directness 23 with the Framers'
delicacy, the Framer-turned-Justice explained in no uncertain terms
that Georgia was not sovereign with respect to federal jurisdiction
(even in a diversity case):
"As a Judge of this Court, I know, and can decide upon the
knowledge, that the citizens of Georgia, when they acted
upon the large scale of the Union, as a part of the 'People
of the United States,' did not surrender the Supreme or
sovereign Power to that State; but, as to
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 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, as 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 other States, and of the
United States, the citizens of
Georgia have reserved
the Supreme Power in their own hands; and on that Supreme Power
have made the State
dependent, instead of being sovereign;
these are questions, to which, as a Judge in this cause, I can
neither know nor suggest the proper answers; though, as a citizen
of the
Union, I know, and am interested to know, that the
most satisfactory answers can be given."
Chisholm, 2 Dall.,
at 457 (citation omitted).
784
the purposes of the Union, retained it to themselves. As to the
purposes of the Union, therefore, Georgia is NOT a sovereign
State." Id., at 457.
This was necessarily to reject any natural law conception of
sovereign immunity as inherently attached to an American State, but
this was not all. Justice Wilson went on to identify the origin of
sovereign immunity in the feudal system that had, he said, been
brought to England and to the common law by the Norman Conquest.
After quoting Blackstone's formulation of the doctrine as it had
developed in England, he discussed it in the most disapproving
terms imaginable:
"This last position [that the King is sovereign and no court can
have jurisdiction over him] is only a branch of a much more
extensive principle, on which a plan of systematic despotism has
been lately formed in England, and prosecuted with
unwearied assiduity and care. Of this plan the author of the
Commentaries was, if not the introducer, at least the great
supporter. He has been followed in it by writers later and less
known; and his doctrines have, both on the other and this
side of the Atlantic, been implicitly and generally received by
those, who neither examined their principles nor their
consequences[.] The principle is, that all human law must be
prescribed by a superior. This principle I mean not now to
examine. Suffice it, at present to say, that another principle,
very different in its nature and operations, forms, in my judgment,
the basis of sound and genuine jurisprudence; laws derived from the
pure source of equality and justice must be founded on the CONSENT
of those, whose obedience they require. The sovereign, when
traced to his source, must be found in the man." Id., at
458.
With this rousing conclusion of revolutionary ideology and
rhetoric, Justice Wilson left no doubt that he thought the
785
doctrine of sovereign immunity entirely anomalous in the
American Republic. Although he did not speak specifically of a
State's immunity in its own courts, his view necessarily requires
that such immunity would not have been justifiable as a tenet of
absolutist natural law.
Chief Justice Jay took a less vehement tone in his opinion, but
he, too, denied the applicability of the doctrine of sovereign
immunity to the States. He explained the doctrine as an incident of
European feudalism,
id., at 471, and said that by
contrast,
"[n]o such ideas obtain here; at the Revolution, the sovereignty
devolved on the people; and they are truly the sovereigns of the
country, but they are sovereigns without subjects (unless
the African slaves among us may be so called) and have none
to govern but themselves; the citizens of America are
equal as fellow citizens, and as joint tenants in the sovereignty."
Id., at 471-472.
From the difference between the sovereignty of princes and that
of the people, Chief Justice Jay argued, it followed that a State
might be sued. When a State sued another State, as all agreed it
could do in federal court, all the people of one State sued all the
people of the other. "But why it should be more incompatible, that
all the people of a State should be sued by
one citizen,
than by one hundred thousand, I cannot perceive, the process in
both cases being alike; and the consequences of a judgment alike."
Id., at 473. Finally, Chief Justice Jay pointed out, Article
III authorized suits between a State and citizens of another State.
Although the Chief Justice reserved judgment on whether the United
States might be sued by a citizen, given that the courts must rely
on the Executive to implement their decisions, he made it clear
that this reservation was practical, and not theoretical:
"I wish the State of society was so far improved, and the
science of Government advanced to such a degree of perfection, as
that the whole nation could in the peaceable course
786
of law, be compelled to do justice, and be sued by individual
citizens."
Id., at 478. Although Chief Justice Jay did not
speak specifically to the question of state sovereign immunity in
state court, his theory shows that he considered not the States,
but the people collectively, to be sovereign; and there is thus no
reason to think he would have denied that the people of the Nation
could override any state claim to sovereign immunity in a matter
committed to the Nation.
Justice Cushing's opinion relied on the express language of
Article III to hold that Georgia might be sued in federal court. He
dealt shortly with the objection that States' sovereignty would be
thereby restricted so that States would be reduced to corporations:
"As to corporations, all States whatever are corporations or bodies
politic. The only question is, what are their powers?"
Id.,
at 468. Observing that the Constitution limits the powers of the
States in numerous ways, he concluded that "no argument of force
can be taken from the sovereignty of States. Where it has been
abridged, it was thought necessary for the greater indispensable
good of the whole."
Ibid. From the opinion, it is not
possible to tell with certainty what Justice Cushing thought about
state sovereign immunity in state court, although his introductory
remark is suggestive. The case, he wrote, "turns not upon the law
or practice of
England, although perhaps it may be in some
measure elucidated thereby, nor upon the law of any other country
whatever; but upon the Constitution established by the people of
the
United States." I d., at 466. It is clear that he had no
sympathy for a view of sovereign immunity inherent in statehood and
untouchable by national legislative authority.
Justice Blair, like Justice Cushing, relied on Article III, and
his brief opinion shows that he acknowledged state sovereign
immunity, but common law immunity in state court. First, Justice
Blair asked hypothetically whether a verdict against the plaintiff
would be preclusive if the plaintiff "should renew his suit against
the State, in any mode in
787
which she may permit herself to be sued in her own Courts."
I
d., at 452. Second, he commented that there was no need to
require the plaintiff to proceed by way of petition:
"When sovereigns are sued in their own Courts, such a method may
have been established as the most respectful form of demand; but we
are not now in a State-Court; and if sovereignty be an exemption
from suit in any other than the sovereign's own Courts, it follows
that when a State, by adopting the Constitution, has agreed to be
amenable to the judicial power of the United States, she
has, in that respect, given up her right of sovereignty."
Ibid.
It is worth noting that for Justice Blair, the petition brought
in state court was properly called a suit. This reflects the
contemporary practice of his native Virginia, where, as we have
seen,
supra, at 769, suits as of right against the State
were authorized by statute. Justice Blair called sovereignty "an
exemption from suit in any other than the sovereign's own Courts"
because he assumed that, in its own courts, a sovereign will
naturally permit itself to be sued as of right.
Justice Iredell was the only Member of the Court to hold that
the suit could not lie; but if his discussion was farreaching, his
reasoning was cautious. Its core was that the Court could not
assume a waiver of the State's common law sovereign immunity where
Congress had not expressly passed such a waiver. See 2 Dall., at
449 (dissenting opinion). Although Justice Iredell added, in what
he clearly identified as dictum, that he was "strongly against" any
construction of the Constitution "which will admit, under any
circumstances, a compulsive suit against a State for the recovery
of money,"
ibid.,24 he made it equally clear that he
24 The basis for the dictum may be found earlier in the opinion,
where Justice Iredell explained that it was uncertain whether
Article Ill's extension 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-
788
understood sovereign immunity as a common law doctrine passed to
the States with independence:
"No other part of the common law of England, it appears
to me, can have any reference to this subject, but that part of it
which prescribes remedies against the crown. Every State in the
Union in every instance where its sovereignty has not been
delegated to the United States, I consider to be as
compleatly sovereign, as the United States are in respect to
the powers surrendered. The United States are sovereign as
to all the powers of Government actually surrendered: Each State in
the Union is sovereign as to all the powers reserved. It
must necessarily be so, because the United States have no
claim to any authority but such as the States
diction from one tribunal to another, or as authorizing the
Legislature to provide laws for the decision of all possible
controversies in which a State may be involved with an individual,
without regard to any prior exemption."
Id., at 436. Justice
Iredell seems to have believed that Article III authorized only the
former; in other words, that the Framers intended to permit Article
III jurisdiction in suits against a State only where some other
existing court could also hear such a claim. Because in Justice
Iredell's view, state courts could nowhere hear suits against a
State at the time of ratification, see
id., at 434-435, it
followed that Article III probably did not authorize such suits.
Justice Iredell's reasoning, it must be said, differed markedly
from the reasoning the Court adopts today. Justice Iredell believed
simply that the Clause in Article III extending jurisdiction to
controversies between a State and citizens of another State did not
confer any extra lawmaking authority on Congress that was not found
elsewhere in the Constitution. Because he could conceive of no
other constitutional provision authorizing Congress to create a
private right of action against a State, he concluded that none
could exist. Today, of course, it is established that the commerce
power authorizes Congress to create private rights as against the
States. See
Garcia v.
San Antonio Metropolitan Transit
Authority, 469 U.
S. 528 (1985). The Court today takes the altogether different
tack of arguing that state immunity from suit in state court was an
inherent right of States preserved by the Tenth Amendment. Whatever
Justice Iredell might have thought of this argument, it gets no
support from his opinion.
789
have surrendered to them: Of course the part not
surrenderred must remain as it did before." Id., at 435.
This did not mean, of course, that the States had not delegated
to Congress the power to subject them to suit, but merely that such
a delegation would have been necessary on Justice Iredell's
view.
In sum, then, in
Chisholm two Justices (Jay and Wilson),
one of whom had been present at the Constitutional Convention, took
a position suggesting that States should not enjoy sovereign
immunity (however conceived) even in their own courts; one
(Cushing) was essentially silent on the issue of sovereign immunity
in state court; one (Blair) took a cautious position affirming the
pragmatic view that sovereign immunity was a continuing common law
doctrine and that States would permit suit against themselves as of
right; and one (Iredell) expressly thought that state sovereign
immunity at common law rightly belonged to the sovereign States.
Not a single Justice suggested that sovereign immunity was an
inherent and indefeasible right of statehood, and neither counsel
for Georgia before the Circuit Court, see n. 21,
supra, nor
Justice Iredell seems even to have conceived the possibility that
the new Tenth Amendment produced the equivalent of such a doctrine.
This dearth of support makes it very implausible for today's Court
to argue that a substantial (let alone a dominant) body of thought
at the time of the framing understood sovereign immunity to be an
inherent right of statehood, adopted or confirmed by the Tenth
Amendment.25
25 It only makes matters worse for the Court that two States,
New York and Maryland, voluntarily subjected themselves to suit in
the Supreme Court around the time of
Chisholm. See Marcus
& Wexler, Suits Against States: Diversity of Opinion in the
1790s, 1993 J. Sup. Ct. Rist. 73, 74-78. At the Court's February
Term, 1791, before
Chisholm, Maryland entered a plea
(probably as to the merits) in
Van Staphorst v.
Maryland, see 1993 J. Sup. Ct. Rist., at 74, a suit brought
by a foreign citizen for debts owed by the State, but then settled
the suit to avoid the establishment of
790
The Court's discomfort is evident in its obvious recognition
that its natural law or Tenth Amendment conception of state
sovereign immunity is insupportable if
Chisholm stands.
Hence the Court's attempt to discount the
Chisholm opinions,
an enterprise in which I believe it fails.
The Court, citing
Hans v.
Louisiana, 134 U. S. 1 (1890), says
that the Eleventh Amendment "overruled"
Chisholm, ante, at
723, but the animadversion is beside the point. The significance of
Chisholm is its indication that in 1788 and 1791 it was not
generally assumed (indeed, hardly assumed at all) that a State's
sovereign immunity from suit in its own courts was an inherent, and
not merely a common law, advantage. On the contrary, the testimony
of five eminent legal minds of the day confirmed that virtually
everyone who understood immunity to be legitimate saw it as a
common law prerogative (from which it follows that it was subject
to abrogation by Congress as to a matter within Congress's Article
I authority).
The Court does no better with its trio of arguments to undercut
Chisholm's legitimacy: that the
Chisholm majority
"failed to address either the practice or the understanding that
prevailed in the States at the time the Constitution was adopted,"
ante, at 721; that "the majority suspected the decision
would be unpopular and surprising,"
ibid.; and that "two
Members of the majority acknowledged that the United States might
well remain immune from suit despite" Article III,
ante, at
722. These three claims do not, of course, go to the question
whether state sovereign immunity was understood to be "fundamental"
or "inherent," but in any case, none of them is convincing.
an adverse precedent on immunity, see
id., at 75. In
Oswald v.
New York, an action that commenced before
Chisholm but that was continued after it, New York initially
objected to jurisdiction, see 1993 J. Sup. Ct. Rist., at 77, but
the suit was tried to a jury in the Supreme Court, and after New
York lost, it paid the full jury verdict out of the State's
treasury,
id., at 78.
791
With respect to the first, Justice Blair in fact did expressly
refer to the practice of state sovereign immunity in state court,
and acknowledged the petition of right as an appropriate and normal
practice. This aside, the Court would have a legitimate point if it
could show that the
Chisholm majority took insufficient
account of a body of practice that somehow indicated a widely held
absolutist conception of state sovereign immunity untouchable and
untouched by the Constitution. But of course it cannot.26
As for the second point, it is a remarkable doctrine that would
hold anticipation of unpopularity the benchmark of constitutional
error. In any event, the evidence proffered by the Court is merely
this: that Justice Wilson thought the prerevolutionary conception
of sovereignty misguided, 2 Dall., at 454-455; that Justice Cushing
stated axiomatically that the Constitution could always be amended,
id., at 468; that Chief Justice Jay noted that the losing
defendant might still come to understand that sovereign immunity is
inconsistent with republicanism,
id., at 478-479; and that
Attorney
26 The Court thinks that Justice Iredell's adversion to state
practice gives reason to think so, see
ante, at 721
("[D]espite the 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 by
another Justice (as opposed to 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. See
1 J. Goebel, The Oliver Wendell Holmes Devise: History of the
Supreme Court of the United States, Antecedents and Beginnings to
1801, p. 728 (1971) ("There are hints ... that there may have been
no conference and that each Justice arrived at his conclusion
independently without knowing what each of his brethren had
decided"). Indeed, since "opinions were given only orally in the
Supreme Court in the 1790s," 5 Documentary History of the Supreme
Court,
supra n. 21, at 164, 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.;
see also
id., at xxiv-xxv, in which case it is possible that
the other Justices never heard certain arguments until
publication.
792
General Randolph admitted that the position he espoused was
unpopular not only in Georgia, but also in another State, probably
Virginia.27 These items boil down to the proposition that the
Justices knew (as who could not, with such a case before him) that
at the ratifying conventions the significance of sovereign immunity
had been, as it still was, a matter of dispute. This reality does
not detract from, but confirms, the view that the Framers showed no
intent to recognize sovereign immunity as an immutably inherent
power of the States.
As to the third objection, that two Justices noted that the
United States might possess sovereign immunity notwithstanding
Article III, I explained,
supra, at 785-786, that Chief
Justice Jay thought this possibility was purely practical, not at
all legal, and without any implication for state immunity vis-a-vis
federal claims. Justice Cushing was so little troubled by the
possibility he raised that he wrote, "If this be a necessary
consequence, it must be so,"
Chisholm, supra, at 469,
and simply suggested a textual reading that might have led to a
different consequence.
Nor can the Court make good on its claim that the enactment of
the Eleventh Amendment retrospectively reestablished the view that
had already been established at the time of the framing (though
eluding the perception of all but one Member of the Supreme Court),
and hence "acted ... to restore the original constitutional
design,"
ante, at 722.28
27 The circumlocution "another State, whose will must be always
dear to me,"
Chisholm, 2 Dall., at 419, hints at Randolph's
home State. It seems odd to suggest that Randolph's acknowledgment
of the unpopularity of his position in two States would somehow
support the thought that the view was incorrect. Randolph himself
had urged the same position at the Virginia ratifying convention,
see
supra, at 775-776, and so knew perfectly well that
Virginia had ratified with full knowledge that his position might
be the law.
28 It is interesting to note a case argued in the Supreme Court
of Pennsylvania in 1798, in which counsel for the Commonwealth
urged a version of the point that the Court makes here, and said
that "[t]he language of the amendment, indeed, does not import an
alteration of the Constitution,
793
There was nothing "established" about the position espoused by
Georgia in the effort to repudiate its debts, and the Court's
implausible suggestion to the contrary merely echoes the brio of
its remark in
Seminole Tribe that
Chisholm was
"contrary to the well-understood meaning of the Constitution." 517
U. S., at 69 (citing
Principality of Monaco v.
Mississippi, 292 U. S. 313, 325
(1934)). The fact that
Chisholm was no conceptual aberration
is apparent from the ratification debates and the several state
requests to rewrite Article III. There was no received view either
of the role this sovereign immunity would play in the circumstances
of the case or of a conceptual foundation for immunity doctrine at
odds with
Chisholm's reading of Article III. As an author on
whom the Court relies, see
ante, at 724, has it, "there was
no unanimity among the Framers that immunity would exist," D.
Currie, The Constitution in the Supreme Court:
The First Hundred Years: 1789-1888, p. 19 (1985).29
but an authoritative declaration of its true construction."
Respublica v.
Gobbet, 3 Dall. 467,472 (1798). The
court expressly repudiated the historical component of this claim
in an opinion by its Chief Justice: "When the judicial law [i.
e., the Judiciary Act of 1789] was passed, the opinion
prevailed that States might be sued, which by this amendment is
settled otherwise."
Id., at 475 (M'Kean, C. J.).
29 The Court might perhaps respond that if the role of state
sovereign immunity was not the subject of universal consensus in
1792, the enactment of the Eleventh Amendment brought the doctrine
into the constitutional realm. The strongest form of this view must
maintain that, notwithstanding the Amendment's silence regarding
state courts and its exclusive focus on the federal judicial power,
the motivation of the framers of the Eleventh Amendment must have
been affirmatively to embrace the 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 suit in their own
courts.
The first trouble with this view is that it assumes that the
Eleventh Amendment was intended to reach all federal-law suits, and
not only those arising under diversity jurisdiction. If the framers
of the Eleventh
794
It should not be surprising, then, to realize that although much
post-Chisholm discussion was disapproving (as the States saw
their escape from debt cut off), the decision had champions "every
bit as vigorous in defending their interpretation of the
Constitution as were those partisans on the other side of the
issue." Marcus & Wexler, Suits Against States: Diversity of
Opinion In The 1790s, 1993 J. Sup. Ct. Hist. 73, 83; see,
e.
g., 5 Documentary History of the Supreme Court,
supra
n. 21, at 251-252, 252-253, 262-264, 268-269 (newspaper articles
supporting holding in
Chisholm); 5 Documentary History of
the Supreme Court,
supra, at 616 (statement of a committee
of Delaware Senate in support of holding in
Chisholm). The
federal citizen-state diversity jurisdiction was settled by the
Eleventh Amendment; Article III was not "restored."
Amendment had in mind only diversity cases, as the Court was
prepared to concede in
Seminole Tribe, see 517 U. S., at
69-70 ("The text dealt in terms only with the problem presented by
the decision in
Chisholm .... [I]t seems unlikely that much
thought was given to the prospect of federal-question jurisdiction
over the States"), then it might plausibly follow that the framers
of that Amendment assumed that States possessed sovereign immunity
in their own courts with respect to state law. But it certainly
does not follow that the Amendment's authors would have thought
that States enjoyed immunity in state court on questions of
federallaw. To accept this would require one to believe that the
framers of the Eleventh Amendment were blind to an extremely
anomalous application of sovereign immunity, under which a State is
immune even when it is not the font of the law under which it is
sued, cf.
infra, at 797-798, 800. The Court today may labor
under the misapprehension that sovereign immunity can apply where
the sovereign is not the font of law, but the Court adduces no
evidence to suggest that the framers of the Eleventh Amendment held
such a view. And the framers were much closer than the Court to the
theory of sovereign immunity according to which the font of law may
not be subject to suit under that law. This leaves the Court in the
position of supporting its view of what the Eleventh Amendment
means by the "historical" assertion that the framers must have
intended it to mean the same.
795
F
It is clear enough that the Court has no historical predicate to
argue for a fundamental or inherent theory of sovereign immunity as
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 of state
sovereign immunity in a State's own courts were implicit in the
Constitution? On good authority, it would avail the State nothing,
and the Court would be no less mistaken than it is already in
sustaining the State's claim today.
The opinion of this Court that comes closer to embodying the
present majority's inherent, natural law theory of sovereign
immunity than any other I can find was written by Justice Holmes in
Kawananakoa v.
Polyblank, 205 U. S. 349 (1907).30 I
do not, of course, suggest that Justice Holmes
30 The 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, 20 How. 527
(1858), in which Chief Justice Taney wrote for the Court that "[i]t
is an established principle of jurisprudence in all civilized
nations that the sovereign cannot be sued in its own courts, or in
any other, without its consent and permission,"
id., at 529.
But nothing turned on this pronouncement, because the outcome in
the case would have been the same had sovereign immunity been
understood as a common law property of the States. In
Nichols v.
United States, 7 Wall. 122 (1869), Justice
Davis wrote: "Every government has an inherent right to protect
itself against suits ... The principle is fundamental, [and]
applies to every sovereign power ... "
Id., at 126. This
description came in dicta, and the origin of the immunity had no
bearing on the decision. Justice Bradley quoted both Hamilton and
Chief Justice Taney in
Hans v.
Louisiana, 134 U. S. 1, 13, 17 (1890),
but nothing there depended on the natural law approach, and in the
main the opinion, whatever its other demerits, see
Seminole
Tribe, supra, at 119 (SOUTER, J., dissenting), understood state
sovereign immunity as a common law concept, see
Hans, supra,
at 16 ("The suability of a State without its consent was a thing
unknown to the law"). And the Court in
Seminole Tribe may
possibly have intended to hint at the natural law background of
sovereign immunity when it said approvingly that the decision in
Hans "'found its
796
was a natural law jurist, see "Natural Law," in O. Holmes,
Collected Legal Papers 312 (1920, reprinted 1952) ("The jurists who
believe in natural law seem to me to be in that naIve state of mind
that accepts what has been familiar and accepted ... as something
that must be accepted"). But in
Kawananakoa he gave not only
a cogent restatement of the natural law view of sovereign immunity,
but one that includes a feature (omitted from Hamilton's
formulation) explaining why even the most absolutist version of
sovereign immunity doctrine actually refutes the Court's position
today: the Court fails to realize that under the natural law
theory, sovereign immunity may be invoked only by the sovereign
that is the source of the right upon which suit is brought. Justice
Holmes said so expressly: "A sovereign is exempt from suit, not
because of any formal conception or obsolete theory, but on the
logical and practical ground that there can be no legal right as
against the authority that makes the law on which the right
depends."
Kawananakoa, supra, at 353.
roots not solely in the common law of England, but in the much
more fundamental "jurisprudence in all civilized nations."'" 517 U.
S., at 69 (quoting
Hans, supra, at 17, in turn quoting
Beers v.
Arkansas, supra, at 529). The Court's
occasional seduction by the natural law view should not, however,
obscure its basic adherence to the common law approach. In
United States v.
Lee, 106 U. S. 196 (1882), the
Court explained that "the doctrine is derived from the laws and
practices of our English ancestors,"
id., at 205, and added
approvingly that the petition of right "has been as efficient in
securing the rights of suitors against the crown in all cases
appropriate to judicial proceedings, as that which the law affords
to the subjects of the King in legal controversies among
themselves,"
ibid. The Court went on to notice that at
common law one reason given for sovereign immunity was the
"absurdity" of the King's writ running against the King,
id., at 206, but, recognizing the distinct situation in the
United States, the Court admitted candidly that "it is difficult to
see on what solid foundation of principle the exemption from
liability to suit rests,"
ibid. Even the dissent there
discussed in great detail the common law heritage of the doctrine.
See
id., at 227-234 (opinion of Gray, J.).
797
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 not subject to the civil laws. For having power to make and
repeal laws, he may, when he plea seth, 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: nor is it possible for any person to be bound
to himself, because he that can bind can release; and therefore he
that is bound to himself only is not bound." Leviathan, ch. 26, §
2, p. 130.
Jean Bodin produced a similar explanation nearly threequarters
of a century before Hobbes, see J. Bodin, Les six livres de la
republique, Bk. 1, ch. 8 (1577); Six Books of the Commonwealth 28
(M. Tooley transl. 1967) ("[T]he sovereign ... cannot in any way be
subject to the commands of another, for it is he who makes law").
Eliot cited Baldus for the crux of the theory: majesty is "a
fulness of power subject to noe necessitie, limitted within no
rules of publicke Law," 1 J. Eliot, De Jure Maiestatis: or
Political Treatise of Government 15 (A. Grosart ed. 1882), and
Baldus himself made the point in observing that no one is bound by
his own statute as of necessity, see Commentary of Baldus on the
statute
Digna vox in Justinian's Code 1.14.4, Lectura super
Codice folio 51b (Chapter
De Legibus et constitutionibus)
(Venice ed. 1496)
("nemo suo statuto ligatur
necessitative").
The "jurists who believe in natural law" might have reproved
Justice Holmes for his general skepticism about the intrinsic value
of their views, but they would not have faulted him for seeing the
consequence of their position: if the sovereign is not the source
of the law to be applied, sovereign immunity has no applicability.
Justice Holmes indeed explained that in the case of multiple
sovereignties, the sub-
798
ordinate sovereign will not be immune where the source of the
right of action is the sovereign that is dominant. See
Kawananakoa, 205 U. S., at 353, 354 (District of Columbia
not immune to private suit, because private rights there are
"created and controlled by Congress and not by a legislature of the
District"). Since the law in this case proceeds from the national
source, whose laws authorized by Article I are binding in state
courts, sovereign immunity cannot be a defense. After
Garcia
v.
San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985),
Justice Holmes's logically impeccable theory yields the clear
conclusion that even in a system of "fundamental" state sovereign
immunity, a State would be subject to suit
eo nomine in its
own courts on a federal claim.
There is no escape from the trap of Holmes's logic save recourse
to the argument that the doctrine of sovereign immunity is not the
rationally necessary or inherent immunity of the civilians, but the
historically contingent, and to a degree illogical, immunity of the
common law. But if the Court admits that the source of sovereign
immunity is the common law, it must also admit that the common law
doctrine could be changed by Congress acting under the Commerce
Clause. It is not for me to say which way the Court should turn;
but in either case it is clear that Alden's suit should go
forward.
II
The Court's rationale for today's holding based on a conception
of sovereign immunity as somehow fundamental to sovereignty or
inherent in statehood fails for the lack of any substantial support
for such a conception in the thinking of the founding era. The
Court cannot be counted out yet, however, for it has a second line
of argument looking not to a clause-based reception of the natural
law conception or even to its recognition as a "background
principle," see
Seminole Tribe, 517 U. S., at 72, but to a
structural basis in the Constitution's creation of a federal
system. Immunity, the
799
Court says, "inheres in the system of federalism established by
the Constitution,"
ante, at 730, its "contours [being]
determined by the Founders' understanding, not by the principles or
limitations derived from natural law,"
ante, at 734. Again,
"[w]e look both to the essential principles of federalism and to
the special role of the state courts in the constitutional 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 courts, regardless 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 Court's position
on state sovereign immunity might have been rested entirely on
federalism alone. If it had been, however, I would still be in
dissent, for the Court's argument that state-court sovereign
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
received political wisdom that a system of multiple sovereignties
constituted the "great solecism of an
imperium in imperio,"
cf. Bailyn, The Ideological Origins of the American Revolution, at
223.31 Once "the atom of sovereignty" had been split,
U. S.
Term Limits, Inc. v.
Thornton, 514 U. S. 779,
31 The authority of the view that Parliament's sovereignty must
be indivisible had already been eroded in the decade before
independence. Iredell 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
different objects," in the course
of arguing for the possibility of a kind of proto-federalist
relationship between the Colonies and the King. Iredell, Address to
the Inhabitants of Great Britain, in 1 G. McRee, Life and
Correspondence of James Iredell 205, 219 (1857, reprinted 1949);
see Bailyn, The Ideological Origins of the American Revolution, at
224-225, and n. 64.
800
838 (1995) (KENNEDY, J., concurring), the general scheme of
delegated sovereignty as between the two component governments of
the federal system was clear, and was succinctly stated by Chief
Justice Marshall: "In America, the powers of sovereignty are
divided between the government of the Union, and those of the
States. They are each sovereign, with respect to the objects
committed to it, and neither sovereign with respect to the objects
committed to the other."
McCulloch v.
Maryland, 4
Wheat. 316, 410 (1819).32
Hence the flaw in the Court's appeal to federalism. The State of
Maine is not sovereign with respect to the national objectives of
the FLSA.33 It is not the authority that promulgated the FLSA, on
which the right of action in this case depends. That authority is
the United States acting through the Congress, whose legislative
power under Article I of the Constitution to extend FLSA coverage
to state employees has already been decided, see
Garcia v.
San Antonio Metropolitan Transit Authority, supra, and is
not contested here.
32 This is entirely consistent with, and indeed is a corollary
of, the statement quoted by the Court that the States are "'no more
subject, within their respective spheres, to the general authority
than the general authority is subject to them, within its own
sphere.'''
Ante, at 714 (quoting The Federalist No. 39, p.
245
(C. Rossiter ed. 1961) (J. Madison)). The point is that
matters subject to federal law are within the federal sphere, and
so the States are subject to the general authority where such
matters are concerned.
33 It is therefore sheer circularity for the Court to talk of
the "anomaly,"
ante, at 752, that would arise if a State
could be sued on federal law in its own courts, when it may not be
sued under federal law in federal court,
Seminole Tribe of
Florida v.
Florida, 517 U. S. 44 (1996). The
short and sufficient answer is that the anomaly is the Court's own
creation: the Eleventh Amendment was never intended to bar
federal-question suits against the States in federal court. The
anomaly is that
Seminole Tribe, an opinion purportedly
grounded in the Eleventh Amendment, should now be used as a lever
to argue for state sovereign immunity in state courts, to which the
Eleventh Amendment by its terms does not apply.
801
Nor can it be argued that because the State of Maine creates its
own court system, 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 of 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 by it,
requires the Maine courts to entertain this federal cause of
action. Maine has advanced no "'valid excuse,'"
Howlett v.
Rose, 496 U.
S. 356, 369 (1990) (quoting
Douglas v.
New York,
N.
H. &
H. R. Co., 279 U. S. 377,387-388
(1929)), for its courts' refusal to hear federal-law claims in
which Maine is a defendant, and sovereign immunity cannot be that
excuse, simply because the State is not sovereign with respect to
the subject of the claim against it. The Court's insistence that
the federal structure bars Congress from making States susceptible
to suit in their own courts is, then, plain mistake.34
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,
34 Perhaps as a corollary to its view of sovereign immunity as
to some degree indefeasible because "fundamental," the Court frets
that the "power to press a State's own courts into federal service
to coerce the other branches of the State ... is the power 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 state
officials, as the Supremacy Clause requires it to do, it is not
turning against the State's executive any more than we turn against
the Federal Executive 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
which the immunity is designed to protect,'"
ante, at 749
(quoting
Idaho v.
Coeur d'Alene Tribe of Idaho,
521 U. S. 261,
268 (1997)), and by invoking the many demands on a State's fisc,
ante, at 750-751. Apparently beguiled by Gilded Era language
describing private suits against States as "'neither becoming nor
convenient,'"
ante, at 748 (quoting
In re Ayers,
123 U. S. 443,
505 (1887)), the Court calls "immunity from private suits central
to sovereign dignity,"
ante, at 715, and assumes that this
"dignity" is a quality easily translated from the person of the
King to the participatory abstraction of a republican State, see,
e. g., ante, at 749 ("[C]ongressional power to
authorize private suits against nonconsenting States in their own
courts would be ... offensive to state sovereignty"). The
thoroughly anomalous character of this appeal to dignity is obvious
from a reading of Blackstone's description of royal dignity, which
he sets out as a premise of his discussion of sovereignty:
"First, then, of the royal dignity. Under every monarchical
establishment, it is necessary to distinguish the prince from his
subjects .... The law therefore ascribes to the king ... certain
attributes of a great and transcendent nature; by which the people
are led to consider him in the light of a superior being, and to
pay him that awful respect, which may enable him with greater ease
to carry on the business of government. This is what I understand
by the royal dignity, the several branches of which we will now
proceed to examine." 1 Blackstone *241.
I t would be hard to imagine anything more inimical to the
republican conception, which rests on the understanding of its
citizens precisely that the government is not above them, but of
them, its actions being governed by law just like their own.
Whatever justification there may be for an American
803
government's immunity from private suit, it is not dignity.35
See
United States v.
Lee, 106 U. S. 196, 208
(1882).
It is equally puzzling to hear the Court say that "federal power
to authorize private suits for money damages would place
unwarranted strain on the States' ability to govern in accordance
with the will of their citizens."
Ante, at 750751. So long
as the citizens' will, expressed 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 already 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 the "judgment creditor" compete for
public money,
ante, at 751. The "judgment creditor" in
question is not a dunning bill collector, but a citizen whose
federal rights have been violated, and a constitutional structure
that stints on enforcing federal rights out of an abundance of
delicacy toward the States has substituted politesse in place of
respect for the rule of law. 36
35 Furthermore, the very idea of dignity ought also to imply
that the State should be subject to, and not outside of, the law.
It is surely ironic that one of the loci classici of Roman law
regarding the imperial prerogative begins with (and is known by)
the assertion that it is appropriate to the Emperor's dignity that
he acknowledge (or, on some readings, at least claim) that he is
bound by the laws. See Digna Vox, Justinian's Code
1.4.14
("Digna vox maiestate regnantis legis alligatum se principem
profiteri") ("It is a statement worthy of the majesty of the
ruler for the Prince to profess himself bound by the laws"); see
Pennington, The Prince and the Law, 1200-1600, at 78, and n. 6.
36 The Court also claims 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 a
role "foreign to its experience but beyond its competence .... "
Ante, at 752. This comes perilously close to legitimizing
political defiance of valid federal law.
804
III
If neither theory nor structure can supply the basis for the
Court's conceptions of sovereign immunity and federalism, then
perhaps history might. The Court apparently believes that because
state courts have not historically entertained Commerce Clause
based federal-law claims against the States, such an innovation
carries a presumption of unconstitutionality. See
ante, at
744 (arguing that absence of statutes authorizing suits against
States in state court suggests an assumed absence of such power).
At the outset, it has to be noted that this approach assumes a more
cohesive record than history affords. In
Hilton v.
South
Carolina Public Railways Comm'n, 502 U. S. 197 (1991)
(KENNEDY, J.), a case the Court labors mightily to distinguish, see
ante, at 737,37 we held that a state-owned railroad could be
sued in state court under the Federal Employers' Liability Act, 45
U. S. C. §§ 51-60, notwithstanding the lack of an express
congressional statement, because" 'the Eleventh Amendment does not
apply in state courts.'"
Hilton, supra, at 205 (quoting
Will v.
Michigan Dept. of State Police, 491 U. S. 58, 63-64
(1989)).38 But even if the record were less unkempt, the
37 In its discussion of
Hilton, the Court attempts to
explain away the State's failure to raise a sovereign immunity
defense by acknowledging candidly that when that case was decided,
"it may have appeared to the State that Congress' power to abrogate
its immunity from suit in any court was not limited by the
Constitution at all."
Ante, at 737. The reasoning of
Hilton suggests that it appeared not only to the State, but
also to the Court, that Congress could abrogate state sovereign
immunity in state court. If Congress could not, then there would
have been no jurisdiction in the case. The Court never even hinted
that constitutional structure, much less the Tenth Amendment, might
bar the suit, even though the dissent stressed that "the principle
of federalism underlying the [Eleventh] Amendment pervades the
constitutional structure," 502
38Nor does
Poindexter v.
Greenhow, 114 U. S. 270 (1885), one
of the Virginia Coupon Cases, fit comfortably with the assumption
that state courts have exercised no disputed jurisdiction over
their own governments on federal questions. Under its Funding Act
of 1871, Virginia had issued
805
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 relevant way.
It was at one time, though perhaps not 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 State.
Id., at 278. In 1882,
however, Virginia passed a law requiring its tax collectors to
accept nothing but gold, silver, or currency in payment of taxes.
Id., at 275. After the bonds reached maturity, Poindexter
used them to pay state property taxes; Greenhow, the local tax
collector, ignored the payment and took possession 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 the desk, arguing that the
later Virginia statute barring use of the coupons violated the
Contracts Clause. Greenhow defended,
inter alia, on the
theory that the suit was "substantially an action against the State
of Virginia, to which it has not assented."
Id., at 285. The
Court rejected this claim by applying to the State of Virginia
reasoning akin to, though broader than, that later adopted in
Ex
parte Young, 209
U. S. 123 (1908). We held that, where state legislative action
is unconstitutional, it "is not the word or deed of the State, but
is the mere wrong and trespass of those individual persons who
falsely speak and act in its name," 114 U. S., at 290. Because the
original bonds were binding contracts, the obligation of which
Virginia could not constitutionally impair, "[t]he true and real
Commonwealth which contracted the obligation is incapable in law of
doing anything in derogation of it."
Id., at 293. It
therefore could not be argued that the tax collector was acting on
behalf of the State, because "[t]he State of Virginia has done none
of these things with which this defence charges her. The defendant
in error is not her officer, her agent, or her representative, in
the matter complained of, for he has acted not only without her
authority, but contrary to her express commands."
Ibid.
Although the tax collector had done nothing more than collect taxes
under duly enacted state law, he was held to be liable to suit.
Thus in the only case to have come before this Court specifically
involving a claim of state sovereign immunity of constitutional
magnitude in a State's own court, jurisdiction was upheld.
806
lying elements of political sovereignty ... deemed essential to
the States' 'separate and independent existence.'"
Garcia,
469 U. S., at 547-548 (quoting
Lane County v.
Oregon,
7 Wall. 71, 76 (1869)). On this belief, the preordained balance
between state and federal sovereignty was understood to trump the
terms of Article I and preclude Congress from subjecting States to
federal law on certain subjects. (From time to time, wage and hour
regulation has been counted among those subjects, see
infra,
at 808.) As a consequence it was rare, if not unknown, for state
courts to confront the situation in which federal law enacted under
the Commerce Clause provided the authority for a private right of
action against a State in state court. The question of state
immunity from a Commerce Clause based federal-law suit in state
court thus tended not to arise for the simple reason that Acts of
Congress authorizing such suits did not exist.
Today, however, in light of
Garcia, supra (overruling
National League of Cities v.
Usery, 426 U. S. 833 (1976)),
the law is settled that federal legislation enacted under the
Commerce Clause may bind the States without having to satisfy a
test of undue incursion into state sovereignty. "[T]he fundamental
limitation that the constitutional scheme imposes on the Commerce
Clause to protect the 'States as States' is one of process rather
than one of result."
Garcia, supra, at 554. Because the
commerce power is no longer thought to be circumscribed, the dearth
of prior private federal claims entertained against the States in
state courts does not tell us anything, and reflects nothing but an
earlier and less expansive application of the commerce power.
Least of all is it to the point for the Court to suggest that
because the Framers would be surprised to find States subjected to
a federal-law suit in their own courts under the commerce power,
the suit must be prohibited by the Constitution. See
ante,
at 741-743 (arguing on the basis of the "historical record" that
the Constitution would not have been adopted if it had been
understood to allow suit against States
807
in state court under federal law). The Framers' intentions and
expectations count so far as they point to the meaning of the
Constitution's text or the fair implications of its structure, but
they do not hover over the instrument to veto any application of
its principles to a world that the Framers could not have
anticipated.
If the Framers would be surprised to see States subjected to
suit in their own courts under the commerce power, they would be
astonished by the reach of Congress under the Commerce Clause
generally. The proliferation of Government, State and Federal,
would amaze the Framers, and the administrative state with its
reams of regulations would leave them rubbing their eyes. But the
Framers' surprise at, say, the FLSA, or the Federal Communications
Commission, or the Federal Reserve Board is no threat to the
constitutionality of anyone of them, for a very fundamental
reason:
"[W]hen we are dealing with words that also are a constituent
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 the most gifted of its
begetters. It was enough for them to realize or to hope that they
had created an organism; it has taken a century and has cost their
successors much sweat and blood to prove that they created a
nation. The case before us must be considered in the light of our
whole experience and not merely in that of what was said a hundred
years ago." Missouri v. Holland, 252 U. S. 416, 433 (1920)
(Holmes, J.).
"'We must never forget,' said Mr. Chief Justice Marshall in
McCulloch, [4 Wheat., at] 407, 'that it is a Constitution we
are expounding.' Since then this Court has repeatedly sustained the
exercise of power by Congress, under various clauses of that
instrument, over objects of which the Fathers could not have
dreamed."
808
Olmstead v.
United States, 277 U. S. 438, 472 (1928)
(Brandeis, J., dissenting).
IV A
If to day's decision occasions regret at its anomalous versions
of history and federal theory, it is the more regrettable in being
the second time the Court has suddenly changed the course of prior
decision in order to limit the exercise of authority over a subject
now concededly within the Article I jurisdiction of the Congress.
The FLSA, which requires employers to pay a minimum wage, was first
enacted in 1938, with an exemption for States acting as employers.
See
Maryland v.
Wirtz, 392 U. S. 183, 185-186
(1968). In 1966, it was amended to remove the state employer
exemption so far as it concerned workers in hospitals,
institutions, and schools. See
id., at 186-187, and n. 6. In
Wirtz, the Court upheld the amendment over the dissent's
argument that extending the FLSA to these state employees was "such
a serious invasion of state sovereignty protected by the Tenth
Amendment that it is ... not consistent with our constitutional
federalism."
Id., at 201 (opinion of Douglas, J.).
In 1974, Congress again amended the FLSA, this time "extend[ing]
the minimum wage and maximum hour provisions to almost all public
employees employed by the States and by their various political
subdivisions."
National League of Cities, 426 U. S., at 836.
This time the Court went the other way: in
National League of
Cities, the Court held the extension of the Act to these
employees an unconstitutional infringement of state sovereignty,
id., at 852; for good measure, the Court overturned
Wirtz, dismissing its reasoning as no longer authoritative,
see 426 U. S., at 854-855.
But
National League of Cities was not the last word. In
Garcia, decided some nine years later, the Court addressed
the question whether a municipally owned mass-transit
809
system was exempt from the FLSA. 469 U. S., at 534, 536. In
holding that it was not, the Court overruled
National League of
Cities, see 469 U. S., at 557, this time taking the position
that Congress was not barred by the Constitution from binding the
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 in the
constitutional structure, not in some substantive guarantee.
Ibid.39 Garcia remains good law, its reasoning has 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 by rendering its
damages provisions unenforceable against the States by private suit
in federal court. Today's decision blocking private actions in
state courts makes the barrier to individual enforcement a total
one.
39 Garcia demonstrates that, contra the Court's
suggestion, the FLSA does not impermissibly act upon the States,
see
ante, 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, 521 U. S. 898, 919-920
(1997)). Hamilton's point is not, as the Court seems to think, that
the National Government should dictate nothing to the States in
order to protect their residual sovereignty. To the contrary,
Hamilton, who was arguing against the extreme respect for state
sovereignty in the Articles of Confederation, meant precisely that
the National Government should not act as the leader of a "league,"
The Federalist No. 15, p. 95 (J. Cooke ed. 1961), mediating among
several sovereignties, but as a "national government,"
ibid., with power to produce obedience through the
"COER[C]ION of the magistracy,"
ibid. Hamilton is therefore
the wrong person to quote for the proposition that the N ational
Government may not act upon the States, since his point was that
the National Government should not be limited to acting through the
medium of the States.
810
B
The Court might respond to the charge that in practice it has
vitiated
Garcia by insisting, as counsel for Maine argued,
Brief for Respondent 11-12, that the United States may bring suit
in federal court against a State for damages under the FLSA, on the
authority of
United States v.
Texas, 143 U. S. 621, 644-645
(1892). See also
Seminole Tribe, 517 U. S., at 71, n. 14. It
is true, of course, that the FLSA does authorize the Secretary of
Labor to file suit seeking damages, see 29 U. S. C. § 216(c), but
unless Congress plans a significant expansion of the National
Government's litigating forces to provide a lawyer whenever private
litigation is barred by to day's decision and
Seminole
Tribe, the allusion to enforcement of private rights by the
National Government is probably not much more than whimsy. Facing
reality, Congress specifically found, as long ago as 1974, "that
the enforcement capability of the Secretary of Labor is not alone
sufficient to provide redress in all or even a substantial portion
of the situations where compliance is not forthcoming voluntarily."
S. Rep. No. 93-690, p. 27 (1974). One hopes that such voluntary
compliance will prove more popular than it has in Maine, for there
is no reason today to suspect that enforcement by the Secretary of
Labor alone would likely prove adequate to assure compliance with
this federal law in the multifarious circumstances of some 4.7
million employees of the 50 States of the Union.40
The point is not that the difficulties of enforcement should
drive the Court's decision, but simply that where Congress has
created a private right to damages, it is implausible to claim that
enforcement by a public authority without any incentive beyond its
general enforcement power will ever afford the private right a
traditionally adequate remedy. No
40 The most recent available data give 4,732,608 as the total
number of employees of the 50 States of the Union, see State
Government Employment Data: March 1997,
http://www.census.gov/pub/govs/apes/97stus.txt.
811
one would think the remedy adequate if private tort claims
against a State could only be brought by the National Government:
the tradition of private enforcement, as old as the common law
itself, is the benchmark. But wage claims have a lineage of private
enforcement just as ancient, and a claim under the FLSA is a claim
for wages due on work performed. 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 Court's profession that it grounds
its 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 remedy. Lord Chief Justice Holt could state
this as an unquestioned proposition already in 1702, as he did in
Ashby v.
White, 6 Mod. 45, 53-54, 87 Eng. Rep. 808,
815 (Q. B.):
"If an act of parliament be made for the benefit of any person,
and he is hindered by another of that benefit, by necessary
consequence of law he shall have an action; and the current of all
the books is so" (citation omitted)Y
41 The principle is even older with respect to rights created by
statute, 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 statutory rights applied to common law
rights as well. See
Ashby v.
White, 6 Mod., at 54, 87
Eng. Rep., at 816 ("Now 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 any Act of Parliament"). A still older
formulation of the statutory right appears in a note in Coke's
Reports: "[W]hen any thing is prohibited by an act, although that
the act doth not give an action, yet action lieth upon it." 6 Co.
Rep., pt. 12, p. *100. Coke's Institutes yield a similar statement:
"When any act doth prohibit any wrong or vexation, though no action
be particularly named in the act, yet the party grieved shall have
an action grounded upon this statute." 1 E. Coke, The Second Part
of the Institutes of the Laws of England 117 (1797) (reprinted in
5B 2d Historical Writings in Law and Jurisprudence (1986)). In our
case, of course, the statute expressly gives an action.
812
Blackstone considered it "a general and indisputable rule, that
where there is a legal right, there is also a legal remedy, by suit
or action at law, whenever that right is invaded." 3 Blackstone
*23. The generation of the Framers thought the principle so crucial
that several States put it into their constitutions.42 And when
Chief Justice Marshall asked about Marbury: "If he has a right, and
that right has been violated, do the laws of his country afford him
a remedy?,"
Marbury v.
Madison, 1 Cranch 137, 162
(1803), the question was rhetorical, and the answer clear:
"The very essence of civil liberty certainly consists in the
right of every individual to claim the protection of the laws,
whenever he receives an injury. One of the first duties of
government is to afford that protection. In Great Britain the king
himself is sued in the respectful form of a petition, and he never
fails to comply with the judgment of his court." Id., at
163.
Yet today the Court has no qualms about saying frankly that the
federal right to damages afforded by Congress under the FLSA cannot
create a concomitant private remedy. The right was "made for the
benefit of" petitioners; they have been "hindered by another of
that benefit"; but despite what has long been understood as the
"necessary consequence of law," they have no action, cf.
Ashby,
supra, at 53, 87 Eng. Rep., at 815. It will not do for the
Court to respond that a remedy was never available where the right
in question was against the sovereign. A State is not the sovereign
when a federal claim is pressed against it, and even the English
sovereign opened itself to recovery and,
42 See,
e. g., A Declaration of Rights and
Fundamental Rules of the Delaware State § 12 (1776), 2 Sources and
Documents of United States Constitutions 197, 198 (w. Swindler ed.
1775); Md. Const., Art. XVII (1776),4
id., at 372, 373;
Mass. Const., Art. XI (1780), 5
id., at 92, 94; Ky. Const.,
Art. XII, cl. 13 (1792),4
id., at 142, 150; Tenn. Const.,
Art. XI, § 17 (1796), 9
id., at 141, 148.
813
unlike Maine, provided the remedy to complement the right. To
the Americans of the founding generation it would have been clear
(as it was to Chief Justice Marshall) that if the King would do
right, the democratically chosen Government of the United States
could do no less.43 The Chief Justice's
43 Unfortunately, and despite the Court's professed
"unwilling[ness] to assume the States will refuse to honor the
Constitution and obey the binding laws of the United States,"
ante, at 755, that presumption of the sovereign's good-faith
intention to follow the laws has managed somehow to disappear in
the intervening two centuries, despite the general trend toward
greater, not lesser, government accountability. Anyone inclined
toward economic theories of history may look at the development of
sovereign immunity doctrine in this country and see that it has
been driven by the great and recurrent question of state debt, both
in the aftermath of
Chisholm and in the last quarter of the
19th century, see
Seminole Tribe, 517 U. S., 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 purchased them with the knowledge that default was a
real possibility.
Maine's refusal to follow federal law in the case before us,
however, is of a different order. Far from defaulting on debt to
eyes-open creditors, Maine is simply withholding damages from
private citizens to 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.
Mills v.
Maine, 839 F. Supp.3 (Me. 1993). Before us,
Maine has not claimed that petitioners are not covered by 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 same claim, Brief for Respondent 12-13, and we
are told that Maine now pays employees like petitioners overtime as
covered by the FLSA,
id., at 3. Why the State of Maine has
not rendered this case unnecessary by paying damages to petitioners
under the 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 be
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 it done so, the case before us would be moot.
814
contemporaries might well have reacted to the Court's decision
today in the words spoken by Edmund Randolph when responding to the
objection to jurisdiction in
Chisholm: "[The Framers] must
have viewed human rights in their essence, not in their mere form."
2 Dall., at 423.
V
The Court has swung back and forth with regrettable disruption
on the enforceability of the FLSA against the States, but if the
present majority had a defensible position one could at least
accept its decision with an expectation of stability ahead. As it
is, any such expectation would be naIve. The resemblance of to
day's state sovereign immunity to the
Lochner era's
industrial due process is striking. The Court began this century by
imputing immutable constitutional status to a conception of
economic self-reliance that was never true to industrial life and
grew insistently fictional with the years, and the Court has chosen
to close the century by conferring like status on a conception of
state sovereign immunity that is true neither to history nor to the
structure of the Constitution. I expect the Court's late essay into
immunity doctrine will prove the equal of its earlier experiment in
laissez-faire, the one being as unrealistic as the other, as
indefensible, and probably as fleeting.
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