OCTOBER TERM, 1995
Syllabus
SEMINOLE TRIBE OF FLORIDA
v. FLORIDA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 94-12. Argued October 11, 1995-Decided March 27,1996
The Indian Gaming Regulatory Act, passed by Congress pursuant to
the Indian Commerce Clause, allows an Indian tribe to conduct
certain gaming activities only in conformance with a valid compact
between the tribe and the State in which the gaming activities are
located. 25 U. S. C. § 2710(d)(I)(C). Under the Act, States have a
duty to negotiate in good faith with a tribe toward the formation
of a compact, § 2710(d)(3)(A), and a tribe may sue a State in
federal court in order to compel performance of that duty, §
2710(d)(7). In this § 2710(d)(7) suit, respondents, Florida and its
Governor, moved to dismiss petitioner Seminole Tribe's complaint on
the ground that the suit violated Florida's sovereign immunity from
suit in federal court. The District Court denied the motion, but
the Court of Appeals reversed, finding that the Indian Commerce
Clause did not grant Congress the power to abrogate the States'
Eleventh Amendment immunity and that
Ex parte Young,
209 U. S. 123,
does not permit an Indian tribe to force good-faith negotiations by
suing a State's Governor.
Held:
1. The Eleventh Amendment prevents Congress from authorizing
suits by Indian tribes against States to enforce legislation
enacted pursuant to the Indian Commerce Clause. Pp. 54-73.
(a) The Eleventh Amendment presupposes that each State is a
sovereign entity in our federal system and that "'[i]t is inherent
in the nature of sovereignty not to be amenable to the suit of an
individual without [a State's] consent.'''
Hans v.
Louisiana, 134
U. S. 1, 13. However, Congress may abrogate the States'
sovereign immunity if it has "unequivocally expresse[d] its intent
to abrogate the immunity" and has acted "pursuant to a valid
exercise of power."
Green v.
Mansour, 474 U. S. 64, 68. Here,
through the numerous references to the "State" in § 2710(d)(7)(B)'s
text, Congress provided an "unmistakably clear" statement of its
intent to abrogate. Pp. 54-57.
(b) The inquiry into whether Congress has the power to abrogate
unilaterally the States' immunity from suit is narrowly focused on
a single question: Was the Act in question passed pursuant to a
constitutional provision granting Congress such power? This Court
has found authority to abrogate under only two constitutional
provisions: the
45
Fourteenth Amendment, see,
e. g., Fitzpatrick v.
Bitzer, 427 U.
S. 445, and, in a plurality opinion, the Interstate Commerce
Clause,
Pennsylvania v.
Union Gas Co., 491 U. S. 1. The
Union
Gas plurality found that Congress' power to abrogate came from
the States' cession of their sovereignty when they gave Congress
plenary power to regulate commerce. Under the rationale of
Union
Gas, the Indian Commerce Clause is indistinguishable from the
Interstate Commerce Clause. pp.57-63.
(c) However, in the five years since it was decided,
Union
Gas has proved to be a solitary departure from established law.
Reconsidering that decision, none of the policies underlying
stare decisis require this Court's continuing adherence to
its holding. The decision has been of questionable precedential
value, largely because a majority of the Court expressly disagreed
with the plurality's rationale. Moreover, the deeply fractured
decision has created confusion among the lower courts that have
sought to understand and apply it. The plurality's rationale also
deviated sharply from this Court's established federalism
jurisprudence and essentially eviscerated the Court's decision in
Hans, since the plurality's conclusion-that Congress could
under Article I expand the scope of the federal courts' Article III
jurisdiction-contradicted the fundamental notion that Article III
sets forth the exclusive catalog of permissible federal-court
jurisdiction. Thus,
Union Gas was wrongly decided and is
overruled. The Eleventh Amendment restricts the judicial power
under Article III, and Article I cannot be used to circumvent the
constitutional limitations placed upon federal jurisdiction.
pp.63-73.
2. The doctrine of
Ex parte Young may not be used to
enforce § 2710(d)(3) against a state official. That doctrine allows
a suit against a state official to go forward, notwithstanding the
Eleventh Amendment's jurisdictional bar, where the suit seeks
prospective injunctive relief in order to end a continuing
federal-law violation. However, where, as here, Congress has
prescribed a detailed remedial scheme for the enforcement against a
State of a statutorily created right, a court should hesitate
before casting aside those limitations and permitting an
Ex
parte Young action. The intricate procedures set forth in §
2710(d)(7) show that Congress intended not only to define, but also
significantly to limit, the duty imposed by § 2710(d)(3). The Act
mandates only a modest set of sanctions against a State,
culminating in the Secretary of the Interior prescribing gaming
regulations where an agreement is not reached through negotiation
or mediation. In contrast, an
Ex parte Young action would
expose a state official to a federal court's full remedial powers,
including, presumably, contempt sanctions. Enforcement through an
Ex parte Young suit would also make § 2710(d)(7) super-
46
Syllabus
fluous, for it is difficult to see why a tribe would suffer
through § 2710(d)(7)'s intricate enforcement scheme if
Ex parte
Young's more complete and more immediate relief were available.
The Court is not free to rewrite the statutory scheme in order to
approximate what it thinks Congress might have wanted had it known
that § 2710(d)(7) was beyond its authority. Pp. 73-76.
11 F.3d
1016, affirmed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J.,
filed a dissenting opinion,
post, p. 76. SOUTER, J., filed a
dissenting opinion, in which GINSBURG and BREYER, JJ., joined,
post, p. 100.
Bruce S. Rogow argued the cause for petitioner. With him on the
briefs were Beverly A. Pohl, Jerry C. Straus, Michael L. Roy,
Judith A. Shapiro, Eugene Gressman, and John
J. Gibbons.
Solicitor General Days argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were Assistant
Attorney General Schiffer, Deputy Solicitor General Kneedler,
Irving L. Gornstein, Edward
Jonathan A. Glogau, Assistant Attorney General of
Florida, argued the cause for respondents. With him on the brief
was
Robert A. Butterworth, Attorney General. *
*Briefs of
amici curiae urging reversal were filed for
the Miccosukee Tribe of Indians of Florida by
Sonia Escobio
O'Donnell; for the National Indian Gaming Association et al. by
Jerome L. Levine, Frank R. Lawrence, and
Kurt V.
BlueDog; for the Poarch Band of Creek Indians et al. by
William R. Perry, Donald J. Simon, and
Gary
Pitchlynn; for the San Manuel Band of Mission Indians et al. by
Howard L. Dickstein, Jerome L. Levine, and
Frank R.
Lawrence; for the Spokane Tribe of Indians et al. by
Michael J. Wahoske; and for the Tohono O'Odham
Nation et al. by
Eric
Briefs of
amici curiae urging affirmance were filed for
the State of California et al. by
Daniel E. Lungren,
Attorney General of California,
Manuel M. Medeiros, Deputy
Attorney General, and
Thomas F.
Gede, Special
Assistant Attorney General,
Christine O.
Gregoire,
Attorney General of Washington, and
Jonathan Tate McCoy,
Assistant Attorney General, joined by the Attorneys General for
their respective jurisdictions as
47
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The Indian Gaming Regulatory Act provides that an Indian tribe
may conduct certain gaming activities only in conformance with a
valid compact between the tribe and the State in which the gaming
activities are located. 102 Stat. 2475, 25 U. S. C. §
2710(d)(1)(C). The Act, passed by Congress under the Indian
Commerce Clause, U. S. Const., Art. I, § 8, cl. 3, imposes upon the
States a duty to negotiate in good faith with an Indian tribe
toward the formation of a compact, § 2710(d)(3)(A), and authorizes
a tribe to bring suit in federal court against a State in order to
compel performance of that duty, § 2710(d)(7). We hold that
notwithstanding Congress' clear intent to abrogate the States'
sovereign immunity, the Indian Commerce Clause does not grant
Congress that power, and therefore § 2710(d)(7) cannot grant
jurisdiction over a State that does not consent to be sued. We
further hold that the doctrine of
Ex parte Young, 209 U. S. 123 (1908), may
not be used to enforce § 2710(d)(3) against a state official.
follows: Jeff Sessions of Alabama, Grant Woods of Arizona,
Winston Bryant of Arkansas, Gale A. Norton of Colorado, Richard
Blumenthal of Connecticut, Margery S. Bronster of Hawaii, Alan
Lance of Idaho, Carla
J. Stovall of Kansas, Richard P.
Ieyoub of Louisiana, Andrew Ketterer of Maine, Scott Harshbarger of
Massachusetts, Frank
J. Kelley of Michigan, Mike Moore of
Mississippi, Jeremiah W Nixon of Missouri, Joseph P. Mazurek of
Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada,
Jeffrey R. Howard of New Hampshire, Dennis C. Vacco of New York,
Michael F. Easley of North Carolina, Betty D. Montgomery of Ohio,
Drew Edmondson of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania,
Jeffrey B. Pine of Rhode Island, Mark Barnett of South Dakota, Dan
Morales of Texas, Jeffrey L. Amestoy of Vermont, James S. Gilmore
III of Virginia, and Darrell V. McGraw, Jr., of West Virginia; and
for the National Governors' Association et al. by Richard Ruda and
Richard G. Taranto.
Richard Dauphinais, Arlinda F. Locklear, Francis R. Skenandore,
Curtis G. Berkey, and Donald Juneau filed a brief for the
StockbridgeMunsee Indian Community et al. as amici curiae.
48
I
Congress passed the Indian Gaming Regulatory Act in 1988 in
order to provide a statutory basis for the operation and regulation
of gaming by Indian tribes. See 25 U. S. C. § 2702. The Act divides
gaming on Indian lands into three classes-I, II, and III-and
provides a different regulatory scheme for each class. Class III
gaming-the type with which we are here concerned-is defined as "all
forms of gaming that are not class I gaming or class II gaming," §
2703(8), and includes such things as slot machines, casino games,
banking card games, dog racing, and lotteries.1 It is the most
heavily regulated of the three classes. The Act provides that class
III gaming is lawful only where it is: (1) authorized by an
ordinance or resolution that (a) is adopted by the governing body
of the Indian tribe, (b) satisfies certain statutorily prescribed
requirements, and (c) is approved by the National Indian Gaming
Commission; (2) located in a State that permits such gaming for any
purpose by any person, organization, or entity; and (3) "conducted
in conformance with a Tribal-State compact entered into by the
1 Class I gaming "means social games solely for prizes of
minimal value or traditional forms of Indian gaming engaged in by
individuals as a part of, or in connection with, tribal ceremonies
or celebrations," 25 U. S. C. § 2703(6), and is left by the Act to
"the exclusive jurisdiction of the Indian tribes," §
2710(a)(1).
Class II gaming is more extensively defined to include bingo,
games similar to bingo, nonbanking card games not illegal under the
laws of the State, and card games actually operated in particular
States prior to the passage of the Act. See § 2703(7). Banking card
games, electronic games of chance, and slot machines are expressly
excluded from the scope of class II gaming. § 2703(B). The Act
allows class II gaming where the State "permits such gaming for any
purpose by any person, organization or entity," and the "governing
body of the Indian tribe adopts an ordinance or resolution which is
approved by the Chairman" of the National Indian Gaming Commission.
§ 2710(b)(1). Regulation of class II gaming contemplates a federal
role, but places primary emphasis on tribal selfregulation. See §§
2710(c)(3)-(6).
49
Indian tribe and the State under paragraph (3) that is in
effect." § 2710(d)(1).
The "paragraph (3)" to which the last prerequisite of §
2710(d)(1) refers is § 2710(d)(3), which describes the permissible
scope of a Tribal-State compact, see § 2710(d)(3)(C), and provides
that the compact is effective "only when notice of approval by the
Secretary [of the Interior] of such compact has been published by
the Secretary in the Federal Register," § 2710(d)(3)(B). More
significant for our purposes, however, is that § 2710(d)(3)
describes the process by which a State and an Indian tribe begin
negotiations toward a Tribal-State compact:
"(A) Any Indian tribe having jurisdiction over the Indian lands
upon which a class III gaming activity is being conducted, or is to
be conducted, shall request the State in which such lands are
located to enter into negotiations for the purpose of entering into
a Tribal-State compact governing the conduct of gaming activities.
Upon receiving such a request, the State shall negotiate with the
Indian tribe in good faith to enter into such a compact."
The State's obligation to "negotiate with the Indian tribe in
good faith" is made judicially enforceable by §§ 2710(d) (7)(A)(i)
and (B)(i):
"(A) The United States district courts shall have jurisdiction
over-
"(i) any cause of action initiated by an Indian tribe arising
from the failure of a State to enter into negotiations with the
Indian tribe for the purpose of entering into a Tribal-State
compact under paragraph (3) or to conduct such negotiations in good
faith ....
"(B)(i) An Indian tribe may initiate a cause of action described
in subparagraph (A) (i) only after the close of the iSO-day period
beginning on the date on which the
50
Indian tribe requested the State to enter into negotiations
under paragraph (3)(A)."
Sections 2710(d)(7)(B)(ii)-(vii) describe an elaborate remedial
scheme designed to ensure the formation of a Tribal-State compact.
A tribe that brings an action under § 2710(d) (7)(A)(i) must show
that no Tribal-State compact has been entered and that the State
failed to respond in good faith to the tribe's request to
negotiate; at that point, the burden then shifts to the State to
prove that it did in fact negotiate in good faith. §
2710(d)(7)(B)(ii). If the district court concludes that the State
has failed to negotiate in good faith toward the formation of a
Tribal-State compact, then it "shall order the State and Indian
Tribe to conclude such a compact within a 60-day period." §
2710(d)(7)(B)(iii). If no compact has been concluded 60 days after
the court's order, then "the Indian tribe and the State shall each
submit to a mediator appointed by the court a proposed compact that
represents their last best offer for a compact." § 2710(d)(7)
(B)(iv). The mediator chooses from between the two proposed
compacts the one "which best comports with the terms of [the Act]
and any other applicable Federal law and with the findings and
order of the court,"
ibid., and submits it to the State and
the Indian tribe, § 2710(d)(7)(B)(v). If the State consents to the
proposed compact within 60 days of its submission by the mediator,
then the proposed compact is "treated as a Tribal-State compact
entered into under paragraph (3)." § 2710(d)(7)(B)(vi). If,
however, the State does not consent within that 60-day period, then
the Act provides that the mediator "shall notify the Secretary [of
the Interior]" and that the Secretary "shall prescribe ...
procedures ... under which class III gaming may be conducted on the
Indian lands over which the Indian tribe has jurisdiction." §
2710(d)(7)(B)(vii).2
2 Sections 2710(d)(7)(B)(ii)-(vii) provide in full:
"(ii) In any action described in subparagraph (A)(i), upon the
introduction of evidence by an Indian tribe that-
51
In September 1991, the Seminole Tribe of Florida, petitioner,
sued the State of Florida and its Governor, Lawton Chiles,
respondents. Invoking jurisdiction under 25 U. S. C.
"(I) a Tribal-State compact has not been entered into under
paragraph (3), and
"(II) the State did not respond to the request of the Indian
tribe to negotiate such a compact or did not respond to such
request in good faith, the burden of proof shall be upon the State
to prove that the State has negotiated with the Indian tribe in
good faith to conclude a Tribal-State compact governing the conduct
of gaming activities.
"(iii) If, in any action described in subparagraph (A)(i), the
court finds that the State has failed to negotiate in good faith
with the Indian tribe to conclude a Tribal-State compact governing
the conduct of gaming activities, the court shall order the State
and the Indian Tribe to conclude such a compact within a 60-day
period. In determining in such an action whether a State has
negotiated in good faith, the court-
"(I) may take into account the public interest, public safety,
criminality, financial integrity, and adverse economic impacts on
existing gaming activities, and
"(II) shall consider any demand by the State for direct taxation
of the Indian tribe or of any Indian lands as evidence that the
State has not negotiated in good faith.
"(iv) If a State and an Indian tribe fail to conclude a
Tribal-State compact ... within the 60-day period provided in the
order of a court issued under clause (Hi), the Indian tribe and the
State shall each submit to a mediator appointed by the court a
proposed compact that represents their last best offer for a
compact. The mediator shall select from the two proposed compacts
the one which best comports with the terms of this chapter and any
other applicable Federal law and with the findings and order of the
court.
"(v) The mediator appointed by the court under clause (iv) shall
submit to the State and the Indian tribe the compact selected by
the mediator under clause (iv).
"(vi) If a State consents to a proposed compact during the
60-day period beginning on the date on which the proposed compact
is submitted by the mediator to the State under clause (v), the
proposed compact shall be treated as a Tribal-State compact entered
into under paragraph (3).
"(vii) If the State does not consent during the 60-day period
described in clause (vi) to a proposed compact submitted by a
mediator under clause (v), the mediator shall notify the Secretary
and the Secretary shall prescribe, in consultation with the Indian
tribe, procedures-
[Footnote 2 is continued on
p. 52J
52
§ 2710(d)(7)(A), as well as 28 U. S. C. §§ 1331 and 1362,
petitioner alleged that respondents had "refused to enter into any
negotiation for inclusion of [certain gaming activities] in a
tribal-state compact," thereby violating the "requirement of good
faith negotiation" contained in § 2710(d)(3). Petitioner's
Complaint , 24, see App. 18. Respondents moved to dismiss the
complaint, arguing that the suit violated the State's sovereign
immunity from suit in federal court. The District Court denied
respondents' motion, 801 F. Supp. 655 (SD Fla. 1992), and
respondents took an interlocutory appeal of that decision. See
Puerto Rico Aqueduct and Sewer Authority v.
Metcalf
&
Eddy, Inc., 506 U. S. 139 (1993)
(collateral order doctrine allows immediate appellate review of
order denying claim of Eleventh Amendment immunity).
The Court of Appeals for the Eleventh Circuit reversed the
decision of the District Court, holding that the Eleventh Amendment
barred petitioner's suit against respondents.3
11 F.3d
1016 (1994). The court agreed with the District Court that
Congress in § 2710(d)(7) intended to abrogate the States' sovereign
immunity, and also agreed that the Act had been passed pursuant to
Congress' power under the Indian Commerce Clause, U. S. Const.,
Art. I, § 8, cl. 3. The court disagreed with the District Court,
however, that the Indian
"(I) which are consistent with the proposed compact selected by
the mediator under clause (iv), the provisions of this chapter, and
the relevant provisions of the laws of the State, and
"(II) under which class III gaming may be conducted on the
Indian lands over which the Indian tribe has jurisdiction."
3 The Eleventh Circuit consolidated petitioner's appeal with an
appeal from another suit brought under § 2710(d)(7)(A)(i) by a
different Indian tribe. Although the District Court in that case
had granted the defendants' motions to dismiss, the legal issues
presented by the two appeals were virtually identical. See
Poarch Band of Creek Indians v.
Alabama, 776 F. Supp.
550 (SD Ala. 1991) (Eleventh Amendment bars suit against State),
and 784 F. Supp. 1549 (SD Ala. 1992) (Eleventh Amendment bars suit
against Governor).
53
Commerce Clause grants Congress the power to abrogate a State's
Eleventh Amendment immunity from suit, and concluded therefore that
it had no jurisdiction over petitioner's suit against Florida. The
court further held that
Ex parte Young, 209 U. S. 123 (1908),
does not permit an Indian tribe to force good-faith negotiations by
suing the Governor of a State. Finding that it lacked
subject-matter jurisdiction, the Eleventh Circuit remanded to the
District Court with directions to dismiss petitioner's suit.4
Petitioner sought our review of the Eleventh Circuit's
decision,5 and we granted certiorari, 513 U. S. 1125 (1995), in
order to consider two questions: (1) Does the Eleventh Amendment
prevent Congress from authorizing suits by Indian tribes against
States for prospective injunctive relief to enforce legislation
enacted pursuant to the Indian Commerce Clause?; and (2) Does the
doctrine of
Ex parte Young permit suits against a State's
Governor for prospective injunctive relief to enforce the
good-faith bargaining requirement of the Act? We answer the first
question in the affirmative, the second in the negative, and we
therefore affirm the Eleventh Circuit's dismissal of petitioner's
suit.6
4 Following its conclusion that petitioner's suit should be
dismissed, the Court of Appeals went on to consider how §
2710(d)(7) would operate in the wake of its decision. The court
decided that those provisions of § 2710(d)(7) that were problematic
could be severed from the rest of the section, and read the
surviving provisions of § 2710(d)(7) to provide an Indian tribe
with immediate recourse to the Secretary of the Interior from the
dismissal of a suit against a State.
11 F.3d
1016, 1029 (1994).
5 Respondents filed a cross-petition, No. 94-219, challenging
only the Eleventh Circuit's modification of § 2710(d)(7), see n. 4,
supra. That petition is still pending.
6 While the appeal was pending before the Eleventh Circuit, the
District Court granted respondents' earlier filed summary judgment
motion, finding that Florida had fulfilled its obligation under the
Act to negotiate in good faith. The Eleventh Circuit has stayed its
review of that decision pending the disposition of this case.
54
The Eleventh Amendment provides:
"The Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State."
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 (C. Rossiter ed. 1961) (A. Hamilton). See
also
Puerto Rico Aqueduct and Sewer Authority, supra, at 146
("The Amendment is rooted in a recognition that the States,
although a union, maintain certain attributes of sovereignty,
including sovereign immunity"). For over a century we have
reaffirmed that federal jurisdiction over suits against
unconsenting States "was not contemplated by the Constitution when
establishing the judicial power of the United States."
Hans,
supra, at 15.7
7 E. g., North Carolina v. Temple,
134 U. S. 22, 30 (1890);
Fitts v.
McGhee,
172 U. S.
516, 524 (1899); Bell v. Mississippi, 177 U. S. 693 (1900);
Smith v. Reeves,
178
U. S. 436, 446 (1900); Palmer v. Ohio,
248 U. S. 32, 34 (1918);
Duhne v. New Jersey,
251 U. S. 311, 313
(1920); Ex parte New York,
256 U. S. 490, 497
(1921); Missouri v. Fiske,
290 U. S. 18, 26 (1933);
Great Northern Life Ins. Co. v. Read,
322 U. S. 47, 51 (1944);
Ford Motor Co. v. Department of Treasury of Ind.,
323 U. S. 459, 464
(1945); Georgia Railroad & Banking Co. v. Redwine,
342 U. S. 299, 304, n. 13
(1952); Parden v. Terminal Railway of Ala. Docks Dept.,
377 U. S. 184, 186
(1964); United
55
Here, petitioner has sued the State of Florida and it is
undisputed that Florida has not consented to the suit. See
Blatchford, supra, at 782 (States by entering into the
Constitution did not consent to suit by Indian tribes). Petitioner
nevertheless contends that its suit is not barred by state
sovereign immunity. First, it argues that Congress through the Act
abrogated the States' sovereign immunity. Alternatively, petitioner
maintains that its suit against the Governor may go forward under
Ex parte Young, supra. We consider each of those arguments
in turn.
II
Petitioner argues that Congress through the Act abrogated the
States' immunity from suit. In order to determine whether Congress
has abrogated the States' sovereign immunity, we ask two questions:
first, whether Congress has "unequivocally expresse[d] its intent
to abrogate the immunity,"
Green v.
Mansour, 474 U. S. 64, 68 (1985);
and second, whether Congress has acted "pursuant to a valid
exercise of power,"
ibid.
A
Congress' intent to abrogate the States' immunity from suit must
be obvious from "a clear legislative statement."
Blatchford,
supra, at 786. This rule arises from a recognition of the
important role played by the Eleventh Amend-
States v. Mississippi,
380 U. S. 128, 140
(1965); Employees of Dept. of Public Health and Welfare of Mo. v.
Department of Public Health and Welfare of Mo.,
411 U. S. 279, 280
(1973); Edelman v. Jordan,
415 U. S. 651, 662-663
(1974); Fitzpatrick v. Bitzer,
427 U. S. 445 (1976);
Cory v. White,
457 U.
S. 85 (1982); Pennhurst State School and Hospital v. Halderman,
465 U. S. 89,
97-100 (1984); Atascadero State Hospital v. Scanlon,
473 U. S. 234, 237-238
(1985); Welch v. Texas Dept. of Highways and Public Transp.,
483 U. S. 468,
472-474 (1987) (plurality opinion); Dellmuth v. Muth,
491 U. S. 223, 227-229,
and n. 2 (1989); Port Authority TransHudson Corp. v. Feeney,
495 U. S. 299,
304 (1990); Blatchford v. Native Village of Noatak,
501 U. S. 775, 779
(1991); Puerto Rico Aqueduct and Sewer Authority v. Metcalf &
Eddy, Inc.,
506 U. S.
139, 144 (1993).
56
ment and the broader principles that it reflects. See
Atascadero State Hospital v.
Scanlon, 473 U. S. 234, 238-239
(1985); Quern v.
Jordan, 440 U. S. 332, 345
(1979). In
Atascadero, we held that "[a] general
authorization for suit in federal court is not the kind of
unequivocal statutory language sufficient to abrogate the Eleventh
Amendment." 473 U. S., at 246; see also
Blatchford, supra,
at 786, n. 4 ("The fact that Congress grants jurisdiction to hear a
claim does not suffice to show Congress has abrogated all defenses
to that claim") (emphases deleted). Rather, as we said in
Dellmuth v.
Muth, 491 U. S. 223 (1989):
"To temper Congress' acknowledged powers of abrogation with due
concern for the Eleventh Amendment's role as an essential component
of our constitutional structure, we have applied a simple but
stringent test: 'Congress may abrogate the States' constitutionally
secured immunity from suit in federal court only by making its
intention unmistakably clear in the language of the statute.'''
Id., at 227-228.
See also
Welch v.
Texas Dept. of Highways and Public
Transp., 483 U.
S. 468, 474 (1987) (plurality opinion).
Here, we agree with the parties, with the Eleventh Circuit in
the decision below, 11 F. 3d, at 1024, and with virtually every
other court that has confronted the questionS that Congress has in
§ 2710(d)(7) provided an "unmistakably clear" statement of its
intent to abrogate. Section 2710(d)(7)(A)(i)
8See
Ponca Tribe of Oklahoma v.
Oklahoma,
37 F.3d
1422, 1427-1428 (CA1O 1994), cert. pending, No. 94-1029;
Spokane Tribe v.
Washington, 28 F. 3d 991, 994-995
(CA9 1994);
Cheyenne River Sioux Tribe v.
South
Dakota, 3 F.3d
273, 280-281
(CA8 1993);
Ponca Tribe of Oklahoma
v.
Oklahoma, 834 F. Supp. 1341, 1345 (WD Okla. 1992);
Maxam v.
Lower Sioux Indian Community of Minnesota,
829 F. Supp. 277 (D. Minn. 1993);
Kickapoo Tribe of Indians
v.
Kansas, 818 F. Supp. 1423, 1427 (D. Kan. 1993); 801 F.
Supp. 655, 658 (SD Fla. 1992) (case below);
Sault Ste. Marie
Tribe of Chippewa Indians v.
Michigan, 800 F. Supp.
1484,1488-1489 (WD Mich.
1992); Poarch Band of Creek Indians
v.
Alabama, 776 F. Supp., at 557-558.
57
vests jurisdiction in "[t]he United States district courts ...
over any cause of action ... arising from the failure of a State to
enter into negotiations ... or to conduct such negotiations in good
faith." Any conceivable doubt as to the identity of the defendant
in an action under § 2710(d)(7)(A)(i) is dispelled when one looks
to the various provisions of § 2710(d)(7)(B), which describe the
remedial scheme available to a tribe that files suit under §
2710(d)(7)(A)(i). Section 2710(d)(7)(B)(ii)(II) provides that if a
suing tribe meets its burden of proof, then the "burden of proof
shall be upon the State ... "; § 2710(d)(7)(B)(iii) states that if
the court "finds that the State has failed to negotiate in good
faith ... , the court shall order the State ... "; §
2710(d)(7)(B)(iv) provides that "the State shall ... submit to a
mediator appointed by the court" and subsection (B)(v) of §
2710(d)(7) states that the mediator "shall submit to the State."
Sections 2710(d) (7)(B)(vi) and (vii) also refer to the "State" in
a context that makes it clear that the State is the defendant to
the suit brought by an Indian tribe under § 2710(d)(7)(A)(i). In
sum, we think that the numerous references to the "State" in the
text of § 2710(d)(7)(B) make it indubitable that Congress intended
through the Act to abrogate the States' sovereign immunity from
suit.9
B
Having concluded that Congress clearly intended to abrogate the
States' sovereign immunity through § 2710(d)(7), we
9 JUSTICE SOUTER, in his dissenting opinion, argues that in
order to avoid a constitutional question, we should interpret the
Act to provide only a suit against state officials rather than a
suit against the State itself.
Post, at 182. But in light of
the plain text of § 2710(d)(7)(B), we disagree with the dissent's
assertion that the Act can reasonably be read in that way. "We
cannot press statutory construction 'to the point of disingenuous
evasion' even to avoid a constitutional question." See
United
States v.
Locke, 471 U. S. 84, 96 (1985),
quoting
George Moore Ice Cream Co. v.
Rose, 289 U. S. 373, 379 (1933)
(Cardozo, J.). We already have found the clear statement rule
satisfied, and that finding renders the preference for avoiding a
constitutional question inapplicable.
58
turn now to consider whether the Act was passed "pursuant to a
valid exercise of power."
Green v.
Mansour, 474 U.
S., at 68. Before we address that question here, however, we think
it necessary first to define the scope of our inquiry.
Petitioner suggests that one consideration weighing in favor of
finding the power to abrogate here is that the Act authorizes only
prospective injunctive relief rather than retroactive monetary
relief. But we have often made it clear that the relief sought by a
plaintiff suing a State is irrelevant to the question whether the
suit is barred by the Eleventh Amendment. See,
e. g., Cory
v.
White, 457
U. S. 85, 90 (1982) ("It would be a novel proposition indeed
that the Eleventh Amendment does not bar a suit to enjoin the State
itself simply because no money judgment is sought"). We think it
follows
a fortiori from this proposition that the type of
relief sought is irrelevant to whether Congress has power to
abrogate States' immunity. The Eleventh Amendment does not exist
solely in order to "preven[t] federal-court judgments that must be
paid out of a State's treasury,"
Hess v.
Port Authority
Trans-Hudson Corporation, 513 U. S. 30, 48 (1994);
it also serves to avoid "the indignity of subjecting a State to the
coercive process of judicial tribunals at the instance of private
parties,"
Puerto Rico Aqueduct and Sewer Authority, 506 U.
S., at 146 (internal quotation marks omitted).
Similarly, petitioner argues that the abrogation power is
validly exercised here because the Act grants the States a power
that they would not otherwise have, viz., some measure of authority
over gaming on Indian lands. It is true enough that the Act extends
to the States a power withheld from them by the Constitution. See
California v.
Cabazon Band of Mission Indians,
480 U. S. 202
(1987). Nevertheless, we do not see how that consideration is
relevant to the question whether Congress may abrogate state
sovereign immunity. The Eleventh Amendment immunity may not be
lifted by Congress unilaterally deciding that it will be re-
59
placed by grant of some other authority. Cf.
Atascadero,
473 U. S., at 246-247 ("[T]he mere receipt of federal funds cannot
establish that a State has consented to suit in federal
court").
Thus our inquiry into whether Congress has the power to abrogate
unilaterally the States' immunity from suit is narrowly focused on
one question: Was the Act in question passed pursuant to a
constitutional provision granting Congress the power to abrogate?
See,
e. g., Fitzpatrick v.
Bitzer, 427 U. S. 445, 452-456
(1976). Previously, in conducting that inquiry, we have found
authority to abrogate under only two provisions of the
Constitution. In
Fitzpatrick, we recognized that the
Fourteenth Amendment, by expanding federal power at the expense of
state autonomy, had fundamentally altered the balance of state and
federal power struck by the Constitution.
Id., at 455. We
noted that § 1 of the Fourteenth Amendment contained prohibitions
expressly directed at the States and that § 5 of the Amendment
expressly provided that "The Congress shall have power to enforce,
by appropriate legislation, the provisions of this article." See
id., at 453 (internal quotation marks omitted). We held that
through the Fourteenth Amendment, federal power extended to intrude
upon the province of the Eleventh Amendment and therefore that § 5
of the Fourteenth Amendment allowed Congress to abrogate the
immunity from suit guaranteed by that Amendment.
In only one other case has congressional abrogation of the
States' Eleventh Amendment immunity been upheld. In
Pennsylvania v.
Union Gas Co., 491 U. S. 1 (1989), a
plurality of the Court found that the Interstate Commerce Clause,
Art. I, § 8, cl. 3, granted Congress the power to abrogate state
sovereign immunity, stating that the power to regulate interstate
commerce would be "incomplete without the authority to render
States liable in damages." 491 U. S., at 19-20. Justice White added
the fifth vote necessary to the result in that case, but wrote
separately in order to express
60
that he "[did] not agree with much of [the plurality's]
reasoning."
Id., at 57 (opinion concurring in judgment in
part and dissenting in part).
In arguing that Congress through the Act abrogated the States'
sovereign immunity, petitioner does not challenge the Eleventh
Circuit's conclusion that the Act was passed pursuant to neither
the Fourteenth Amendment nor the Interstate Commerce Clause.
Instead, accepting the lower court's conclusion that the Act was
passed pursuant to Congress' power under the Indian Commerce
Clause, petitioner now asks us to consider whether that Clause
grants Congress the power to abrogate the States' sovereign
immunity.
Petitioner begins with the plurality decision in
Union
Gas and contends that "[t]here is no principled basis for
finding that congressional power under the Indian Commerce Clause
is less than that conferred by the Interstate Commerce Clause."
Brief for Petitioner 17. Noting that the
Union Gas plurality
found the power to abrogate from the "plenary" character of the
grant of authority over interstate commerce, petitioner emphasizes
that the Interstate Commerce Clause leaves the States with some
power to regulate, see,
e. g., West Lynn Creamery, Inc. v.
Healy, 512 U.
S. 186 (1994), whereas the Indian Commerce Clause makes "Indian
relations ... the exclusive province of federal law."
County of
Oneida v.
Oneida Indian Nation of N.
Y., 470 U. S. 226, 234
(1985). Contending that the Indian Commerce Clause vests the
Federal Government with "the duty of protect[ing]" the tribes from
"local ill feeling" and "the people of the States,"
United
States v.
Kagama, 118 U. S. 375, 383-384
(1886), petitioner argues that the abrogation power is necessary
"to protect the tribes from state action denying federally
guaranteed rights." Brief for Petitioner 20.
Respondents dispute petitioner's analogy between the Indian
Commerce Clause and the Interstate Commerce Clause. They note that
we have recognized that "the Interstate Commerce and Indian
Commerce Clauses have very differ-
61
ent applications,"
Cotton Petroleum Corp. v.
New
Mexico, 490 U. S.
163, 192 (1989), and from that they argue that the two
provisions are "wholly dissimilar." Brief for Respondents 21.
Respondents contend that the Interstate Commerce Clause grants the
power of abrogation only because Congress' authority to regulate
interstate commerce would be "incomplete" without that "necessary"
power.
Id., at 23, citing
Union Gas, supra, at 19-20.
The Indian Commerce Clause is distinguishable, respondents contend,
because it gives Congress complete authority over the Indian
tribes. Therefore, the abrogation power is not "necessary" to
Congress' exercise of its power under the Indian Commerce
Clause.lO
Both parties make their arguments from the plurality decision in
Union Gas, and we, too, begin there. We think it clear that
Justice Brennan's opinion finds Congress' power to abrogate under
the Interstate Commerce Clause from the States' cession of their
sovereignty when they gave Congress plenary power to regulate
interstate commerce. See
Union Gas, 491 U. S., at 17 ("The
important point ... is that the provision both expands federal
power and contracts state power"). Respondents' focus elsewhere is
misplaced. While the plurality decision states that Congress' power
under the Interstate Commerce Clause would be incomplete without
the power to abrogate, that statement is made solely in order to
emphasize the broad scope of Congress' authority over interstate
commerce.
Id., at 19-20. Moreover, respondents' rationale
would mean that where Congress has
10 Respondents also contend that the Act mandates state
regulation of Indian gaming and therefore violates the Tenth
Amendment by allowing federal officials to avoid political
accountability for those actions for which they are in fact
responsible. See
New York v.
United States, 505 U. S. 144 (1992).
This argument was not considered below by either the Eleventh
Circuit or the District Court, and is not fairly within the
question presented. Therefore we do not consider it here. See this
Court's Rule 14.1;
Yee v.
Escondido, 503 U. S. 519 (1992).
62
less authority, and the States have more, Congress' means for
exercising that power must be greater. We read the plurality
opinion to provide just the opposite. Indeed, it was in those
circumstances where Congress exercised complete authority that
Justice Brennan thought the power to abrogate most necessary.
Id., at 20 ("Since the States may not legislate at all in
[the aforementioned] situations, a conclusion that Congress may not
create a cause of action for money damages against the States would
mean that no one could do so. And in many situations, it is only
money damages that will carry out Congress' legitimate objectives
under the Commerce Clause").
Following the rationale of the
Union Gas plurality, our
inquiry is limited to determining whether the Indian Commerce
Clause, like the Interstate Commerce Clause, is a grant of
authority to the Federal Government at the expense of the States.
The answer to that question is obvious. If anything, the Indian
Commerce Clause accomplishes a greater transfer of power from the
States to the Federal Government than does the Interstate Commerce
Clause. This is clear enough from the fact that the States still
exercise some authority over interstate trade but have been
divested of virtually all authority over Indian commerce and Indian
tribes. Under the rationale of
Union Gas, if the States'
partial cession of authority over a particular area includes
cession of the immunity from suit, then their virtually total
cession of authority over a different area must also include
cession of the immunity from suit. See
id., at 42 (SCALIA,
J., joined by REHNQUIST, C. J., and O'CONNOR and KENNEDY, JJ.,
dissenting) ("[I]f the Article I commerce power enables abrogation
of state sovereign immunity, so do all the other Article I
powers"); see
Ponca Tribe of Oklahoma v.
Oklahoma,
37 F.3d
1422, 1428 (CAlO 1994) (Indian Commerce Clause grants power to
abrogate), cert. pending, No. 94-1029;
Cheyenne River Sioux
Tribe v.
South Dakota, 3 F.3d
273,281 (CA8 1993) (same); cf.
Chavez v.
Arte
Publico
63
Press, 59 F.3d
539, 546-547 (CA5 1995) (After
Union Gas, Copyright
Clause, U. S. Const., Art. I, § 8, cl. 8, must grant Congress power
to abrogate). We agree with petitioner that the plurality opinion
in
Union Gas allows no principled distinction in favor of
the States to be drawn between the Indian Commerce Clause and the
Interstate Commerce Clause.
Respondents argue, however, that we need not conclude that the
Indian Commerce Clause grants the power to abrogate the States'
sovereign immunity. Instead, they contend that if we find the
rationale of the
Union Gas plurality to extend to the Indian
Commerce Clause, then
"Union Gas should be reconsidered and
overruled." Brief for Respondents 25. Generally, the principle of
stare decisis, and the interests that it serves, viz., "the
evenhanded, predictable, and consistent development of legal
principles, ... reliance on judicial decisions, and ... the actual
and perceived integrity of the judicial process,"
Payne v.
Tennessee, 501
U. S. 808, 827 (1991), counsel strongly against reconsideration
of our precedent. Nevertheless, we always have treated
stare
decisis as a "principle of policy,"
Helvering v.
Hallock, 309 U. S. 106, 119 (1940), and not as an
"inexorable command,"
Payne, 501 U. S., at 828. "[W]hen
governing decisions are unworkable or are badly reasoned, 'this
Court has never felt constrained to follow precedent.'''
Id., at 827 (quoting
Smith v.
Allwright,
321 U. S. 649,
665 (1944)). Our willingness to reconsider our earlier decisions
has been "particularly true in constitutional cases, because in
such cases 'correction through legislative action is practically
impossible.'''
Payne, supra, at 828 (quoting
Burnet
v.
Coronado Oil &
Gas Co., 285 U. S. 393, 407 (1932)
(Brandeis, J., dissenting)).
The Court in
Union Gas reached a result without an
expressed rationale agreed upon by a majority of the Court. We have
already seen that Justice Brennan's opinion received the support of
only three other Justices. See
Union Gas, 491 U. S., at 5
(Marshall, Blackmun, and STEVENS, JJ.,
64
joined Justice Brennan). Of the other five, Justice White, who
provided the fifth vote for the result, wrote separately in order
to indicate his disagreement with the plurality's rationale,
id., at 57 (opinion concurring in judgment and dissenting in
part), and four Justices joined together in a dissent that rejected
the plurality's rationale,
id., at 35-45 (SCALIA, J.,
dissenting, joined by REHNQUIST, C. J., and O'CONNOR and KENNEDY,
JJ.). Since it was issued,
Union Gas has created confusion
among the lower courts that have sought to understand and apply the
deeply fractured decision. See,
e. g., Chavez
v.
Arte Publico Press, supra, at 543-545 ("Justice White's
concurrence must be taken on its face to disavow" the plurality's
theory); 11 F. 3d, at 1027 (Justice White's "vague concurrence
renders the continuing validity of
Union Gas in doubt").
The plurality's rationale also deviated sharply from our
established federalism jurisprudence and essentially eviscerated
our decision in
Hans. See
Union Gas, supra, at 36
("If
Hans means only that federal-question suits for money
damages against the States cannot be brought in federal court
unless Congress clearly says so, it means nothing at all") (SCALIA,
J., dissenting). It was well established in 1989 when
Union
Gas was decided that the Eleventh Amendment stood for the
constitutional principle that state sovereign immunity limited the
federal courts' jurisdiction under Article III. The text of the
Amendment itself is clear enough on this point: "The Judicial power
of the United States shall not be construed to extend to any suit
.... " And our decisions since
Hans had been equally clear
that the Eleventh Amendment reflects "the fundamental principle of
sovereign immunity [that] limits the grant of judicial authority in
Art. III,"
Pennhurst State School and Hospital v.
Halderman, 465 U. S. 89, 97-98 (1984); see
Union Gas,
supra, at 38 (" '[T]he entire judicial power granted by the
Constitution does not embrace authority to entertain a suit brought
by private parties against a State without consent given ... ''')
(SCALIA,
65
J., dissenting) (quoting
Ex parte New York, 256 U. S. 490, 497
(1921)); see also cases cited at n. 7,
supra. As the dissent
in
Union Gas recognized, the plurality's conclusion-that
Congress could under Article I expand the scope of the federal
courts' jurisdiction under Article III-"contradict[ed] our
unvarying approach to Article III as setting forth the
exclusive catalog of permissible federal-court
jurisdiction."
Union Gas, supra, at 39.
Never before the decision in
Union Gas had we suggested
that the bounds of Article III could be expanded by Congress
operating pursuant to any constitutional provision other than the
Fourteenth Amendment. Indeed, it had seemed fundamental that
Congress could not expand the jurisdiction of the federal courts
beyond the bounds of Article III.
Marbury v.
Madison,
1 Cranch 137 (1803). The plurality's citation of prior decisions
for support was based upon what we believe to be a misreading of
precedent. See
Union Gas, 491 U. S., at 40-41 (SCALIA, J.,
dissenting). The plurality claimed support for its decision from a
case holding the unremarkable, and completely unrelated,
proposition that the States may waive their sovereign immunity, see
id., at 14-15 (citing
Parden v.
Terminal Railway
of Ala. Docks Dept., 377 U. S. 184 (1964)), and cited as
precedent propositions that had been merely assumed for the sake of
argument in earlier cases, see 491 U. S., at 15 (citing
Welch v.
Texas Dept. of Highways and Public Transp.,
483 U. S., at 475-476, and n. 5, and
County of Oneida v.
Oneida Indian Nation of N.
Y., 470 U. S., at
252).
The plurality's extended reliance upon our decision in
Fitzpatrick v.
Bitzer, 427 U. S. 445 (1976),
that Congress could under the Fourteenth Amendment abrogate the
States' sovereign immunity was also, we believe, misplaced.
Fitzpatrick was based upon a rationale wholly inapplicable
to the Interstate Commerce Clause, viz., that the Fourteenth
Amendment, adopted well after the adoption of the Eleventh
Amendment and the ratification of the Constitution, oper-
66
ated to alter the pre-existing balance between state and federal
power achieved by Article III and the Eleventh Amendment.
Id., at 454. As the dissent in
Union Gas made clear,
Fitzpatrick cannot be read to justify "limitation of the
principle embodied in the Eleventh Amendment through appeal to
antecedent provisions of the Constitution."
Union Gas,
supra, at 42 (SCALIA, J., dissenting).
In the five years since it was decided,
Union Gas has
proved to be a solitary departure from established law. See
Puerto Rico Aqueduct and Sewer Authority v.
Metcalf
& Eddy, Inc., 506 U. S. 139 (1993).
Reconsidering the decision in
Union Gas, we conclude that
none of the policies underlying
stare decisis require our
continuing adherence to its holding. The decision has, since its
issuance, been of questionable precedential value, largely because
a majority of the Court expressly disagreed with the rationale of
the plurality. See
Nichols v.
United States, 511 U. S. 738, 746 (1994)
(the "degree of confusion following a splintered decision ... is
itself a reason for reexamining that decision"). The case involved
the interpretation of the Constitution and therefore may be altered
only by constitutional amendment or revision by this Court.
Finally, both the result in
Union Gas and the plurality's
rationale depart from our established understanding of the Eleventh
Amendment and undermine the accepted function of Article III. We
feel bound to conclude that
Union Gas was wrongly decided
and that it should be, and now is, overruled.
The dissent makes no effort to defend the decision in
Union
Gas, see
post, at 100, but nonetheless would find
congressional power to abrogate in this case.ll Contending that our
decision is a novel extension of the Eleventh Amendment, the
dissent chides us for "attend[ingJ" to dicta. We adhere in this
case, however, not to mere
obiter dicta, but rather to the
well-established rationale upon which the
11 Unless otherwise indicated, all references to the dissent are
to the dissenting opinion authored by JUSTICE SOUTER.
67
Court based the results of its earlier decisions. When an
opinion issues for the Court, it is not only the result but also
those portions of the opinion necessary to that result by which we
are bound. Cf.
Burnham v.
Superior Court of Cal., County
of Marin, 495 U.
S. 604, 613 (1990) (exclusive basis of a judgment is not dicta)
(plurality);
County of Allegheny v.
American Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 668 (1989)
("As a general rule, the principle of
stare decisis directs
us to adhere not only to the holdings of our prior cases, but also
to their explications of the governing rules of law") (KENNEDY, J.,
concurring and dissenting);
Sheet Metal Workers v.
EEOC, 478 U.
S. 421, 490 (1986) ("Although technically dicta, ... an
important part of the Court's rationale for the result that it
reache[s] ... is entitled to greater weight ... ") (O'CONNOR, J.,
concurring). For over a century, we have grounded our decisions in
the oft-repeated understanding of state sovereign immunity as an
essential part of the Eleventh Amendment. In
Principality of
Monaco v.
Mississippi, 292 U. S. 313 (1934), the
Court held that the Eleventh Amendment barred a suit brought
against a State by a foreign state. Chief Justice Hughes wrote for
a unanimous Court:
"[N]either the literal sweep of the words of Clause one of § 2
of Article III, nor the absence of restriction in the letter of the
Eleventh Amendment, permits the conclusion that in all
controversies of the sort described in Clause one, and omitted from
the words of the Eleventh Amendment, a State may be sued without
her consent. Thus Clause one specifically provides that the
judicial Power shall extend 'to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United
States, and Treaties made, or which shall be made, under their
Authority.' But, although a case may arise under the Constitution
and laws of the United States, the judicial power does not extend
to it if the suit is
68
sought to be prosecuted against a State, without her consent, by
one of her own citizens ....
"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.'" Id., at 321-323 (citations and footnote
omitted).
See
id., at 329-330; see also
Pennhurst, 465 U.
S., at 98 ("In short, the principle of sovereign immunity is a
constitutional limitation on the federal judicial power established
in Art. III");
Ex parte New York, 256 U. S., at 497 ("[T]he
entire judicial power granted by the Constitution does not embrace
authority to entertain a suit brought by private parties against a
State without consent given ... "). It is true that we have not had
occasion previously to apply established Eleventh Amendment
principles to the question whether Congress has the power to
abrogate state sovereign immunity (save in
Union Gas). But
consideration of that question must proceed with fidelity to this
century-old doctrine.
The dissent, to the contrary, disregards our case law in favor
of a theory cobbled together from law review articles and its own
version of historical events. The dissent cites not a single
decision since
Hans (other than
Union Gas) that
supports its view of state sovereign immunity, instead relying upon
the now-discredited decision in
Chisholm v.
Georgia,2
Dall. 419 (1793). See,
e. g., post, at 152, n. 47. Its
undocumented and highly speculative extralegal explanation of
69
the decision in
Hans is a disservice to the Court's
traditional method of adjudication. See
post, at
120-123.
The dissent mischaracterizes the
Hans opinion. That
decision found its roots not solely in the common law of England,
but in the much more fundamental "'jurisprudence in all civilized
nations.'"
Hans, 134 U. S., at 17, quoting
Beers v.
Arkansas, 20 How. 527, 529 (1858); see also The Federalist
No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton) (sovereign
immunity "is the general sense and the general practice of
mankind"). The dissent's proposition that the common law of
England, where adopted by the States, was open to change by the
Legislature is wholly unexceptionable and largely beside the point:
that common law provided the substantive rules of law rather than
jurisdiction. Cf.
Monaco, supra, at 323 (state sovereign
immunity, like the requirement that there be a "justiciable"
controversy, is a constitutionally grounded limit on federal
jurisdiction). It also is noteworthy that the principle of state
sovereign immunity stands distinct from other principles of the
common law in that only the former prompted a specific
constitutional amendment.
Hans-with a much closer vantage point than the
dissent-recognized that the decision in
Chisholm was
contrary to the well-understood meaning of the Constitution. The
dissent's conclusion that the decision in
Chisholm was
"reasonable,"
post, at 106, certainly would have struck the
Framers of the Eleventh Amendment as quite odd: That decision
created "such a shock of surprise that the Eleventh Amendment was
at once proposed and adopted."
Monaco, supra, at 325. The
dissent's lengthy analysis of the text of the Eleventh Amendment is
directed at a straw man-we 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.'"
Monaco, supra, at 326, quoting
Hans,
supra, at 15. The text dealt in terms only with the problem
presented by the decision in
Chisholm; in light of the fact
that the federal courts did not
70
have federal-question jurisdiction at the time the Amendment was
passed (and would not have it until 1875), it seems unlikely that
much thought was given to the prospect of federal-question
jurisdiction over the States.
That same consideration causes the dissent's criticism of the
views of Marshall, Madison, and Hamilton to ring hollow. The
dissent cites statements made by those three influential Framers,
the most natural reading of which would preclude all federal
jurisdiction over an unconsenting State.12 Struggling against this
reading, however, the dissent finds significant the absence of any
contention that sovereign immunity would affect the new
federal-question jurisdiction.
Post, at 142-150. But the
lack of any statute vesting general federal-question jurisdiction
in the federal courts until much later makes the dissent's demand
for greater specificity about a then-dormant jurisdiction overly
exacting.13
12We note here also that the dissent quotes selectively from the
Framers' statements that it references. The dissent cites the
following, for instance, as a statement made by Madison: "[T]he
Constitution 'give[s] a citizen a right to be heard in the federal
courts; and if a state should condescend to be a party, this court
may take cognizance of it.' "
Post, at 143 (opinion of
SOUTER, J.). But that statement, perhaps ambiguous when read in
isolation, was preceded by the following: "[J]urisdiction 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. The 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 courts. It appears
to me that this can have no operation but this:" See 3 J. Elliot,
Debates on the Federal Constitution 533 (2d ed. 1836).
13 Although the absence of any discussion dealing with
federal-question jurisdiction is therefore unremarkable, what is
notably lacking in the Framers' statements is any mention of
Congress' power to abrogate the States' immunity. The absence of
any discussion of that power is particularly striking in light of
the fact that the Framers virtually always were very specific about
the exception to state sovereign immunity arising from a State's
consent to suit. See,
e. g., The Federalist No. 81,
pp. 487-488
(C. Rossiter ed. 1961) (A. Hamilton) ("It is
inherent in the nature of sovereignty not to be amenable to the
suit of an individual
with-
71
In putting forward a new theory of state sovereign immunity, the
dissent develops its own vision of the political system created by
the Framers, concluding with the statement that "[t]he Framers'
principal objectives in rejecting English theories of unitary
sovereignty ... would have been impeded if a new concept of
sovereign immunity had taken its place in federal-question cases,
and would have been substantially thwarted if that new immunity had
been held untouchable by any congressional effort to abrogate it."
14
Post, at 157. This sweeping statement ignores the fact
that the Nation survived for nearly two centuries without the
question of the existence of such power ever being presented to
this Court. And Congress itself waited nearly a century before even
conferring federal-question jurisdiction on the lower federal
courts.15
out its consent .... 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") (emphasis in the original); 3 Elliot,
supra, at 533
(J. Madison) ("It is not in the power of individuals to call any
state into court .... [The Constitution] can have no operation but
this: ... if a state should condescend to be a party, this court
may take cognizance of it").
14 This argument wholly disregards other methods of ensuring the
States' compliance with federal law: The Federal Government can
bring suit in federal court against a State, see,
e. g., United
States v.
Texas, 143 U. S. 621, 644-645 (1892) (finding
such power necessary to the "permanence of the Union"); an
individual can bring suit against a state officer in order to
ensure that the officer's conduct is in compliance with federal
law, see,
e. g., Ex parte Young, 209 U. S. 123 (1908); and
this Court is empowered to review a question of federal law arising
from a state-court decision where a State has consented to suit,
see,
e. g., Cohens v.
Virginia, 6 Wheat. 264
(1821).
15 JUSTICE STEVENS, in his dissenting opinion, makes two points
that merit separate response. First, he contends that no
distinction may be drawn between state sovereign immunity and the
immunity enjoyed by state and federal officials. But even assuming
that the latter has no constitutional foundation, the distinction
is clear: The Constitution specifically recognizes the States as
sovereign entities, while government officials enjoy no such
constitutional recognition. Second, JUSTICE STEVENS criti-
72
In overruling
Union Gas today, we reconfirm that the
background principle of state sovereign immunity embodied in the
Eleventh Amendment is not so ephemeral as to dissipate when the
subject of the suit is an area, like the regulation of Indian
commerce, that is under the exclusive control of the Federal
Government. Even when the Constitution vests in Congress complete
lawmaking authority over a particular area, the Eleventh Amendment
prevents congressional authorization of suits by private parties
against unconsenting States.16 The Eleventh Amendment restricts
the
cizes our prior decisions applying the "clear statement rule,"
suggesting that they were based upon an understanding that Article
I allowed Congress to abrogate state sovereign immunity. His
criticism, however, ignores the fact that many of those cases arose
in the context of a statute passed under the Fourteenth Amendment,
where Congress' authority to abrogate is undisputed. See,
e. g.,
Quern v.
Jordan, 440 U. S. 332 (1979). And
a more fundamental flaw of the criticism is its failure to
recognize that both the doctrine requiring avoidance of
constitutional questions, and principles of federalism, require us
always to apply the clear statement rule before we consider the
constitutional question whether Congress has the power to
abrogate.
16 JUSTICE STEVENS understands our opinion to prohibit federal
jurisdiction over suits to enforce the bankruptcy, copyright, and
antitrust laws against the States. He notes that federal
jurisdiction over those statutory schemes is exclusive, and
therefore concludes that there is "no remedy" for state violations
of those federal statutes.
Post, at 78, n. 1.
That conclusion is exaggerated both in its substance and in its
significance. First, JUSTICE STEVENS' statement is misleadingly
overbroad. We have already seen that several avenues remain open
for ensuring state compliance with federal law. See n. 14,
supra. Most notably, an individual may obtain injunctive
relief under
Ex parte Young in order to remedy a state
officer's ongoing violation of federal law. See n. 14,
supra. Second, contrary to the implication of JUSTICE
STEVENS' conclusion, it has not been widely thought that the
federal antitrust, bankruptcy, or copyright statutes abrogated the
States' sovereign immunity. This Court never has awarded relief
against a State under any of those statutory schemes; in the
decision of this Court that JUSTICE STEVENS cites (and somehow
labels "incompatible" with our decision here), we specifically
reserved the question whether the Eleventh Amendment would allow a
suit to enforce the antitrust laws against a State. See
Goldfarb v.
Virginia State Bar, 421
73
judicial power under Article III, and Article I cannot be used
to circumvent the constitutional limitations placed upon federal
jurisdiction. Petitioner's suit against the State of Florida must
be dismissed for a lack of jurisdiction.
III
Petitioner argues that we may exercise jurisdiction over its
suit to enforce § 2710(d)(3) against the Governor notwithstanding
the jurisdictional bar of the Eleventh Amendment. Petitioner notes
that since our decision in
Ex parte Young, 209 U. S. 123 (1908), we
often have found federal jurisdiction over a suit against a state
official when that suit seeks only prospective injunctive relief in
order to "end a continuing violation of federal law."
Green
v.
Mansour, 474 U. S., at 68. The situation presented here,
however, is sufficiently different from that giving rise to the
traditional
Ex parte Young action so as to preclude the
availability of that doctrine.
Here, the "continuing violation of federal law" alleged by
petitioner is the Governor's failure to bring the State into
compliance with § 2710(d)(3). But the duty to negotiate imposed
upon the State by that statutory provision does not stand alone.
Rather, as we have seen,
supra, at 49-50, Congress passed §
2710(d)(3) in conjunction with the care-
u. S. 773, 792, n. 22 (1975). Although the copyright and
bankruptcy laws have existed practically since our Nation's
inception, and the antitrust laws have been in force for over a
century, there is no established tradition in the lower federal
courts of allowing enforcement of those federal statutes against
the States. Notably, both Court of Appeals decisions cited by
JUSTICE STEVENS were issued last year and were based upon
Union
Gas. See
Chavez v.
Arte Publico Press, 59 F.3d
539 (CA5 1995);
Matter of Merchants Grain, Inc.
v.
Mahern, 59 F.3d
630 (CA7 1995). Indeed, while the Court of Appeals in
Chavez allowed the suit against the State to go forward, it
expressly recognized that its holding was unprecedented. See
Chavez, 59 F. 3d, at 546 ("[W]e are aware of no case that
specifically holds that laws passed pursuant to the Copyright
Clause can abrogate State immunity").
74
fully crafted and intricate remedial scheme set forth in §
2710(d)(7).
Where Congress has created a remedial scheme for the enforcement
of a particular federal right, we have, in suits against federal
officers, refused to supplement that scheme with one created by the
judiciary.
Schweiker v.
Chilicky, 487 U. S. 412, 423 (1988)
("When the design of a Government program suggests that Congress
has provided what it considers adequate remedial mechanisms for
constitutional violations that may occur in the course of its
administration, we have not created additional ... remedies").
Here, of course, the question is not whether a remedy should be
created, but instead is whether the Eleventh Amendment bar should
be lifted, as it was in
Ex parte Young, in order to allow a
suit against a state officer. Nevertheless, we think that the same
general principle applies: Therefore, where Congress has prescribed
a detailed remedial scheme for the enforcement against a State of a
statutorily created right, a court should hesitate before casting
aside those limitations and permitting an action against a state
officer based upon
Ex parte Young.
Here, Congress intended § 2710(d)(3) to be enforced against the
State in an action brought under § 2710(d)(7); the intricate
procedures set forth in that provision show that Congress intended
therein not only to define, but also to limit significantly, the
duty imposed by § 2710(d)(3). For example, where the court finds
that the State has failed to negotiate in good faith, the only
remedy prescribed is an order directing the State and the Indian
tribe to conclude a compact within 60 days. And if the parties
disregard the court's order and fail to conclude a compact within
the 60-day period, the only sanction is that each party then must
submit a proposed compact to a mediator who selects the one which
best embodies the terms of the Act. Finally, if the State fails to
accept the compact selected by the mediator, the only sanction
against it is that the mediator shall notify the Secre-
75
tary of the Interior who then must prescribe regulations
governing class III gaming on the tribal lands at issue. By
contrast with this quite modest set of sanctions, an action brought
against a state official under
Ex parte Young would expose
that official to the full remedial powers of a federal court,
including, presumably, contempt sanctions. If § 2710(d)(3) could be
enforced in a suit under
Ex parte Young, § 2710(d)(7) would
have been superfluous; it is difficult to see why an Indian tribe
would suffer through the intricate scheme of § 2710(d)(7) when more
complete and more immediate relief would be available under
Ex
parte Young.17
Here, of course, we have found that Congress does not have
authority under the Constitution to make the State suable in
federal court under § 2710(d)(7). Nevertheless, the fact that
Congress chose to impose upon the State a liability
17 Contrary to the claims of the dissent, we do not hold that
Congress
cannot authorize federal jurisdiction under
Ex
parte Young over a cause of action with a limited remedial
scheme. We find only that Congress did not intend that result in
the Indian Gaming Regulatory Act. Although one might argue that the
text of § 2710(d)(7)(A)(i), taken alone, is broad enough to
encompass both a suit against a State (under an abrogation theory)
and a suit against a state official (under an
Ex parte Young
theory), subsection (A)(i) of § 2710(d)(7) cannot be read in
isolation from subsections (B)(ii)-(vii), which repeatedly refer
exclusively to "the State." See
supra, at 56-57. In this
regard, § 2710(d)(7) stands in contrast to the statutes cited by
the dissent as examples where lower courts have found that Congress
implicitly authorized suit under
Ex parte Young. Compare 28
U. S. C. § 2254(e) (federal court authorized to issue an "order
directed to an appropriate State official"); 42 U. S. C. § 11001
(1988 ed.) (requiring "the Governor" of a State to perform certain
actions and holding "the Governor" responsible for nonperformance);
33 U. S. C. § 1365(a) (authorizing a suit against "any person" who
is alleged to be in violation of relevant water pollution laws).
Similarly the duty imposed by the Act-to "negotiate ... in good
faith to enter into" a compact with another sovereignstands
distinct in that it is not of the sort likely to be performed by an
individual state executive officer or even a group of officers. Cf.
State ex rel. Stephan v.
Finney, 836 P. 2d 1169, 251
Kan. 559 (1992) (Governor of Kansas may negotiate but may not enter
into compact without grant of power from legislature).
76
that is significantly more limited than would be the liability
imposed upon the state officer under
Ex parte Young strongly
indicates that Congress had no wish to create the latter under §
2710(d)(3). Nor are we free to rewrite the statutory scheme in
order to approximate what we think Congress might have wanted had
it known that § 2710(d)(7) was beyond its authority. If that effort
is to be made, it should be made by Congress, and not by the
federal courts. We hold that
Ex parte Young is inapplicable
to petitioner's suit against the Governor of Florida, and therefore
that suit is barred by the Eleventh Amendment and must be dismissed
for a lack of jurisdiction.
IV
The Eleventh Amendment prohibits Congress from making the State
of Florida capable of being sued in federal court. The narrow
exception to the Eleventh Amendment provided by the
Ex parte
Young doctrine cannot be used to enforce § 2710(d)(3) because
Congress enacted a remedial scheme, § 2710(d)(7), specifically
designed for the enforcement of that right. The Eleventh Circuit's
dismissal of petitioner's suit is hereby affirmed.18
It is so ordered.
JUSTICE STEVENS, dissenting.
This case is about power-the power of the Congress of the United
States to create a private federal cause of action against a State,
or its Governor, for the violation of a federal right. In
Chisholm v.
Georgia, 2 Dall. 419 (1793), the entire
Court-including Justice Iredell whose dissent provided the
blueprint for the Eleventh Amendment-assumed that Congress had such
power. In
Hans v.
Louisiana, 134 U. S. 1 (1890)-a case
the Court purports to follow today-the Court
18We do not here consider, and express no opinion upon, that
portion of the decision below that provides a substitute remedy for
a tribe bringing suit. See 11 F. 3d, at 1029.
77
again assumed that Congress had such power. In
Fitzpatrick v.
Bitzer, 427 U. S. 445 (1976), and
Pennsylvania v.
Union Gas Co., 491 U. S. 1, 24 (1989)
(STEVENS, J., concurring), the Court squarely held that Congress
has such power. In a series of cases beginning with
Atascadero
State Hospital v.
Scanlon, 473 U. S. 234, 238-239
(1985), the Court formulated a special "clear statement rule" to
determine whether specific Acts of Congress contained an effective
exercise of that power. Nevertheless, in a sharp break with the
past, today the Court holds that with the narrow and illogical
exception of statutes enacted pursuant to the Enforcement Clause of
the Fourteenth Amendment, Congress has no such power.
The importance of the majority's decision to overrule the
Court's holding in
Pennsylvania v.
Union Gas Co.
cannot be overstated. The majority's opinion does not simply
preclude Congress from establishing the rather curious statutory
scheme under which Indian tribes may seek the aid of a federal
court to secure a State's good-faith negotiations over gaming
regulations. Rather, it prevents Congress from providing a federal
forum for a broad range of actions against States, from those
sounding in copyright and patent law, to those concerning
bankruptcy, environmental law, and the regulation of our vast
national economy.l
1 See,
e. g., Pennsylvania v.
Union Gas Co.,
491 U. S. 1 (1989)
(holding that a federal court may order a State to pay cleanup
costs pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980);
In re Merchants Grain,
Inc., 59 F.3d
630 (CA7 1995) (holding that the Eleventh Amendment does
not bar a bankruptcy court from issuing a money judgment against a
State under the Bankruptcy Code);
Chavez v.
Arte Publico
Press, 59 F.3d
539 (CA5 1995) (holding that a state university could be
sued in federal court for infringing an author's copyright). The
conclusion that suits against States may not be brought in federal
court is also incompatible with our cases concluding that state
entities may be sued for antitrust violations. See,
e. g.,
Goldfarb v.
Virginia State Bar, 421 U. S. 773, 791-792
(1975).
As federal courts have exclusive jurisdiction over cases arising
under these federal laws, the majority's conclusion that the
Eleventh Amend-
78
There may be room for debate over whether, in light of the
Eleventh Amendment, Congress has the power to ensure that such a
cause of action may be enforced in federal court by a citizen of
another State or a foreign citizen. There can be no serious debate,
however, over whether Congress has the power to ensure that such a
cause of action may be brought by a citizen of the State being
sued. Congress' authority in that regard is clear.
As JUSTICE SOUTER has convincingly demonstrated, the Court's
contrary conclusion is profoundly misguided. Despite the
thoroughness of his analysis, supported by sound reason, history,
precedent, and strikingly uniform scholarly commentary, the
shocking character of the majority's affront to a coequal branch of
our Government merits additional comment.
I
For the purpose of deciding this case, I can readily assume that
Justice Iredell's dissent in
Chisholm v.
Georgia, 2
Dall., at 429-450, and the Court's opinion in
Hans v.
Louisiana, 134
U. S. 1 (1890), correctly stated the law that should govern our
decision today. As I shall explain, both of those opinions relied
on an interpretation of an Act of Congress rather than a want of
congressional power to authorize a suit against the State.
In concluding that the federal courts could not entertain
Chisholm's action against the State of Georgia, Justice Iredell
relied on the text of the Judiciary Act of 1789, not the State's
assertion that Article III did not extend the judicial power to
suits against unconsenting States. Justice Iredell argued that,
under Article III, federal courts possessed only
ment shields States from being sued under them in federal court
suggests that persons harmed by state violations of federal
copyright, bankruptcy, and antitrust laws have no remedy. See
Harris & Kenny, Eleventh Amendment Jurisprudence After
Atascadero: The Coming Clash With Antitrust, Copyright, and
Other Causes of Action Over Which the Federal Courts Have Exclusive
Jurisdiction, 37 Emory L. J. 645 (1988).
79
such jurisdiction as Congress had provided, and that the
Judiciary Act expressly limited federal-court jurisdiction to that
which could be exercised in accordance with "'the principles and
usages of law.'"
Chisholm v.
Georgia, 2 Dall., at 434
(quoting § 14 of the Judiciary Act of 1789). He reasoned that the
inclusion of this phrase constituted a command to the federal
courts to construe their jurisdiction in light of the prevailing
common law, a background legal regime that he believed incorporated
the doctrine of sovereign immunity.
Chisholm v.
Georgia, 2 Dall., at 434-436 (dissenting opinion).2
Because Justice Iredell believed that the expansive text of
Article III did not prevent Congress from imposing this common-law
limitation on federal-court jurisdiction, he concluded that judges
had no authority to entertain a suit against an unconsenting
State.3 At the same time, although he acknowledged that the
Constitution might allow Congress to extend federal-court
jurisdiction to such an action, he concluded that the terms of the
Judiciary Act of 1789 plainly had not done so.
"[Congress'] direction, I apprehend, we cannot supersede,
because it may appear to us not sufficiently extensive. If it be
not, we must wait till other remedies are provided by the same
authority. From this it is plain that the Legislature did not
chuse to leave to our own
2 Because Justice Iredell read the Judiciary Act of 1789 to have
incorporated the common law, he did not even conclude that Congress
would have to make a clear statement in order to override the
common law's recognition of sovereign immunity.
3 Actually, he limited his conclusion to the narrower question
whether an action of assumpsit would lie against a State, which he
distinguished from the more general question whether a State can
ever be sued.
Chisholm v.
Georgia, 2 Dall. 419, 430
(1793). He did so because he recognized "that in
England,
certain judicial proceedings not inconsistent with the sovereignty,
may take place against the Crown, but that an action of
assumpsit will not lie," and because he had "often found a
great deal of confusion to arise from taking too large a view at
once."
Ibid.
80
discretion the path to justice, but has prescribed one of its
own. In doing so, it has, I think, wisely, referred us to
principles and usages of law already well known, and by their
precision calculated to guard against that innovating spirit of
Courts of Justice, which the AttorneyGeneral in another case
reprobated with so much warmth, and with whose sentiments in that
particular, I most cordially join." Id., at 434 (emphasis
added).
For Justice Iredell then, it was enough to assume that Article
III
permitted Congress to impose sovereign immunity as a
jurisdictional limitation; he did not proceed to resolve the
further question whether the Constitution went so far as to
prevent Congress from withdrawing a State's immunity.4 Thus,
it would be ironic to construe the
Chisholm dissent as
precedent for the conclusion that Article III limits Congress'
power to determine the scope of a State's sovereign immunity in
federal court.
The precise holding in
Chisholm is difficult to state
because each of the Justices in the majority wrote his own opinion.
They seem to have held, however, not that the Judiciary Act of 1789
precluded the defense of sovereign immunity, but that Article III
of the Constitution itself required the Supreme Court to entertain
original actions
4 In two sentences at the end of his lengthy opinion, Justice
Iredell stated that his then-present view was that the Constitution
would not permit a "compulsive suit against a State for the
recovery of money."
Id., at 449. In light of Justice
Iredell's express statement that the only question before the Court
was the propriety of an individual's action for assumpsit against a
State, an action which, of course, results in a money judgment, see
n. 2,
supra, this dicta should not be understood to state
the general view that the Constitution bars
all suits
against unconsenting States. Moreover, even as to the limited
question whether the Constitution permits actions for money
judgments, Justice Iredell took pains to reserve ultimate judgment.
Chisholm v.
Georgia, 2 Dall., at 449. Thus, nothing
in Justice Iredell's two sentences of dicta provides a basis for
concluding that Congress lacks the power to authorize the suit for
the nonmonetary relief at issue here.
81
against unconsenting States.5 I agree with Justice Iredell that
such a construction of Article III is incorrect; that Article
should not then have been construed, and should not now be
construed, to prevent Congress from granting States a sovereign
immunity defense in such cases.6 That reading of Article III,
however, explains why the majority's holding in
Chisholm
could not have been reversed by a simple statutory amendment
adopting Justice Iredell's interpretation of the Judiciary Act of
1789. There is a special irony in the fact that the error committed
by the
Chisholm majority was its decision that this Court,
rather than Congress, should define the scope of the sovereign
immunity defense. That, of course, is precisely the same error the
Court commits today.
In light of the nature of the disagreement between Justice
Iredell and his colleagues,
Chisholm's holding could have
been overturned by simply amending the Constitution to restore to
Congress the authority to recognize the doctrine. As it was, the
plain text of the Eleventh Amendment would seem to go further and
to limit the judicial power itself in a certain class of cases. In
doing so, however, the Amend-
5 In this respect,
Chisholm v.
Georgia should be
understood to be of a piece with the debate over judicial power
famously joined in
Martin v.
Hunter's Lessee, 1
Wheat. 304, 337 (1816). There, too, the argument centered on
whether Congress had the power to limit the seemingly expansive
jurisdictional grant that Article III had conferred, not on whether
Article III itself provided the relevant limitation.
6 The contention that Article III withdrew Georgia's sovereign
immunity had special force precisely because
Chisholm
involved an action premised on the Supreme Court's original
jurisdiction. While Article III leaves it to Congress to establish
the lower federal courts, and to make exceptions to the Supreme
Court's appellate jurisdiction, it specifically mandates that there
be a Supreme Court and that it shall be vested with original
jurisdiction over those actions in which "a State shall be Party."
Art. III, §2. In light of that language, the
Chisholm
majority's conclusion that the Supreme Court had a constitutional
obligation to take jurisdiction of all suits against States was not
implausible.
82
ment's quite explicit text establishes only a partial bar to a
federal court's power to entertain a suit against a State.7
Justice Brennan has persuasively explained that the Eleventh
Amendment's jurisdictional restriction is best understood to apply
only to suits premised on diversity jurisdiction, see
Atascadero
State Hospital v.
Scanlon, 473 U. S., at 247 (dissenting
opinion), and JUSTICE SCALIA has agreed that the plain text of the
Amendment cannot be read to apply to federal-question cases. See
Pennsylvania v.
Union Gas, 491 U. S., at 31
(dissenting opinion).8 Whatever the precise dimensions of the
Amendment, its express terms plainly do
not apply to all
suits brought against unconsenting States.9
7 It should be remembered that at the time of
Chisholm,
there was a general fear of what Justice Iredell termed the
"innovating spirit" of the Federal Judiciary. See,
e.
g., 3 A. Beveridge, The Life of John Marshall 19-30 (1919)
(discussing the consternation that the federal courts' creation of
common-law felonies engendered). Thus, there is good reason to
believe that the reaction to
Chisholm reflected the popular
hostility to the Federal Judiciary more than any desire to restrain
the National Legislature.
S Of course, even if the Eleventh Amendment applies to
federal-question cases brought by a citizen of another State, its
express terms pose no bar to a federal court assuming jurisdiction
in a federal-question case brought by an in-state plaintiff
pursuant to Congress' express authorization. As that is precisely
the posture of the suit before us, and as it was also precisely the
posture of the suit at issue in
Pennsylvania v.
Union
Gas, there is no need to decide here whether Congress would be
barred from authorizing out-of-state plaintiffs to enforce federal
rights against States in federal court. In fact, Justice Brennan
left open that question in his dissent in
Atascadero State
Hospital v.
Scanlon, 473 U. S. 234, 288, n. 41
(1985). "When the Court is prepared to embark on a defensible
interpretation of the Eleventh Amendment consistent with its
history and purposes, the question whether the Amendment bars
federal-question or admiralty suits by a noncitizen or alien
against a State would be open."
Ibid.
9 Under the "plain text" of the Eleventh Amendment, I note that
there would appear to be no more basis for the conclusion that
States may consent to federal-court jurisdiction in actions brought
by out-of-state or foreign citizens than there would be for the
view that States should be permitted to consent to the jurisdiction
of a federal court in a case that poses no federal question. See,
e. g., Owen Equipment &
Erection Co. v.
83
The question thus becomes whether the relatively modest
jurisdictional bar that the Eleventh Amendment imposes should be
understood to reveal that a more general jurisdictional bar
implicitly inheres in Article III.
The language of Article III certainly gives no indication that
such an implicit bar exists. That provision's text specifically
provides for federal-court jurisdiction over
all cases
arising under federal law. Moreover, as I have explained, Justice
Iredell's dissent argued that it was the Judiciary Act of 1789, not
Article III, that prevented the federal courts from entertaining
Chisholm's diversity action against Georgia. Therefore, Justice
Iredell's analysis at least suggests that it was by no means a
fixed view at the time of the founding that Article III prevented
Congress from rendering States suable in federal court by their own
citizens. In sum, little more than speculation justifies the
conclusion that the Eleventh Amendment's express but partial
limitation on the scope of Article III reveals that an implicit but
more general one was already in place.
II
The majority appears to acknowledge that one cannot deduce from
either the text of Article III or the plain terms of
Kroger, 437
U. S. 365,377, n. 21 (1978);
Sosna v.
Iowa,
419 U. S. 393,398
(1975); California v.
LaRue, 409 U. S. 109, 112-113,
n. 3 (1972);
American Fire &
Casualty Co. v.
Finn, 341 U. S.
6, 17-18, and n. 17 (1951);
Mitchell v.
Maurer,
293 U. S. 237,
244 (1934);
Jackson v.
Ashton, 8 Pet. 148, 149
(1834). We have, however, construed the Amendment, despite its
text, to apply only to unconsenting States. See,
e. g.,
Clark v.
Barnard, 108 U. S. 436,447 (1883).
In so doing, we of course left it for Congress to determine whether
federal courts should entertain any claim against a State in
federal court. A departure from the text to expand the class of
plaintiffs to whom the Eleventh Amendment's bar applies would,
however, limit Congress' authority to exercise its considered
judgment as to the propriety of federal-court jurisdiction. The
absence of a textual warrant for imposing such a broad limitation
on the legislative branch counsels against this Court
extratextually imposing one.
84
the Eleventh Amendment that the judicial power does not extend
to a congressionally created cause of action against a State
brought by one of that State's citizens. Nevertheless, the majority
asserts that precedent compels that same conclusion. I disagree.
The majority relies first on our decision in
Hans v.
Louisiana, 134
U. S. 1 (1890), which involved a suit by a citizen of Louisiana
against that State for a claimed violation of the Contracts Clause.
The majority suggests that by dismissing the suit,
Hans
effectively held that federal courts have no power to hear
federal-question suits brought by same-state plaintiffs.
Hans does not hold, however, that the Eleventh Amendment,
or any other constitutional provision, precludes federal courts
from entertaining actions brought by citizens against their own
States in the face of contrary congressional direction. As I have
explained before, see
Pennsylvania v.
Union Gas Co.,
491 U. S., at 25-26 (STEVENS, J., concurring), and as JUSTICE
SOUTER effectively demonstrates,
Hans instead reflects, at
the most, this Court's conclusion that, as a matter of federal
common law, federal courts should decline to entertain suits
against unconsenting States. Because
Hans did not announce a
constitutionally mandated jurisdictional bar, one need not overrule
Hans, or even question its reasoning, in order to conclude
that Congress may direct the federal courts to reject sovereign
immunity in those suits not mentioned by the Eleventh Amendment.
Instead, one need only follow it.
Justice Bradley's somewhat cryptic opinion for the Court in
Hans relied expressly on the reasoning of Justice Iredell's
dissent in
Chisholm, which, of course, was premised on the
view that the doctrine of state sovereign immunity was a common-law
rule that Congress had directed federal courts to respect, not a
constitutional immunity that Congress was powerless to displace.
For that reason, Justice Bradley explained that the State's
immunity from suit by one of its own
85
citizens was based not on a constitutional rule but rather on
the fact that Congress had not, by legislation, attempted to
overcome the common-law presumption of sovereign immunity. His
analysis so clearly supports the position rejected by the majority
today that it is worth quoting at length.
"But besides the presumption that no anomalous and unheard of
proceedings or suits were intended to be raised up by the
Constitution-anomalous and unheard of when the Constitution was
adopted-an additional reason why the jurisdiction claimed for the
Circuit Court does not exist, is the language of the act of
Congress by which its jurisdiction is conferred. The words are
these: 'The circuit courts of the United States shall have original
cognizance, concurrent with the courts of the several States, of
all suits of a civil nature at common law or in equity, ... arising
under the Constitution or laws of the United States, or treaties,'
etc.-'Concurrent with the courts of the several States.' Does not
this qualification show that Congress, in legislating to carry the
Constitution into effect, did not intend to invest its courts with
any new and strange jurisdictions? The state courts have no power
to entertain suits by individuals against a State without its
consent. Then how does the Circuit Court, having only concurrent
jurisdiction, acquire any such power? It is true that the same
qualification existed in the judiciary act of 1789, which was
before the court in Chisholm v. Georgia, and the
majority of the court did not think that it was sufficient to limit
the jurisdiction of the Circuit Court. Justice Iredell thought
differently. In view of the manner in which that decision was
received by the country, the adoption of the Eleventh Amendment,
the light of history and the reason of the thing, we think we are
at liberty to prefer Justice Iredell's views in this regard."
Hans v. Louisiana, 134 U. S., at 18-19.
86
As this passage demonstrates,
Hans itself looked to see
whether Congress had displaced the presumption that sovereign
immunity obtains. Although the opinion did go to great lengths to
establish the quite uncontroversial historical proposition that
unconsenting States generally were not subject to suit, that entire
discussion preceded the opinion's statutory analysis. See
id., at 10-18. Thus, the opinion's thorough historical
investigation served only to establish a presumption against
jurisdiction that Congress must overcome, not an inviolable
jurisdictional restriction that inheres in the Constitution
itself.
Indeed, the very fact that the Court characterized the doctrine
of sovereign immunity as a "presumption" confirms its assumption
that it could be displaced. The
Hans Court's inquiry into
congressional intent would have been wholly inappropriate if it had
believed that the doctrine of sovereign immunity was a
constitutionally inviolable jurisdictional limitation. Thus,
Hans provides no basis for the majority's conclusion that
Congress is powerless to make States suable in cases not mentioned
by the text of the Eleventh Amendment. Instead,
Hans
provides affirmative support for the view that Congress may create
federal-court jurisdiction over private causes of action against
unconsenting States brought by their own citizens.
It is true that the underlying jurisdictional statute involved
in this case, 28 U. S. C. § 1331, does not itself purport to direct
federal courts to ignore a State's sovereign immunity any more than
did the underlying jurisdictional statute discussed in
Hans,
the Judiciary Act of 1875. However, unlike in
Hans, in this
case Congress has, by virtue of the Indian Gaming Regulatory Act,
affirmatively manifested its intention to "invest its courts with"
jurisdiction beyond the limits set forth in the general
jurisdictional statute. 134 U. S., at 18. By contrast, because
Hans involved only an implied cause of action based directly
on the Constitution, the Judiciary Act of 1875 constituted the sole
indication as
87
to whether Congress intended federal-court jurisdiction to
extend to a suit against an unconsenting State.10
Given the nature of the cause of action involved in
Hans,
as well as the terms of the underlying jurisdictional statute, the
Court's decision to apply the common-law doctrine of sovereign
immunity in that case clearly should not control the outcome here.
The reasons that may support a federal court's hesitancy to
construe a judicially crafted constitutional remedy narrowly out of
respect for a State's sovereignty do not bear on whether Congress
may preclude a State's invocation of such a defense when it
expressly establishes a federal remedy for the violation of a
federal right.
No one has ever suggested that Congress would be powerless to
displace the other common-law immunity doctrines that this Court
has recognized as appropriate defenses to certain federal claims
such as the judicially fashioned remedy in
Bivens v.
Six
Unknown Fed. Narcotics Agents, 403
10 In his dissent in
Pennsylvania v.
Union Gas
Co., 491 U. S., at 36-37, JUSTICE SCALIA contended that the
existence of the Judiciary Act of 1875 at the time of
Hans
requires one to accept the "gossamer distinction between cases in
which Congress has assertedly sought to eliminate state sovereign
immunity pursuant to its powers to create and organize courts, and
cases in which it has assertedly sought to do so pursuant to some
of its other powers," in order to conclude that, in spite of
Hans, Congress may authorize federal courts to hear a suit
against an unconsenting State. I rely on no such "gossamer
distinction" here.
Congress has the authority to withdraw sovereign immunity in
cases not covered by the Eleventh Amendment under
all of its
various powers. Nothing in
Hans is to the contrary. As the
passage quoted above demonstrates,
Hans merely concluded
that Congress, in enacting the Judiciary Act of 1875, did not
manifest a desire to withdraw state sovereign immunity with
sufficient clarity to overcome the countervailing presumption.
Therefore, I rely only on the distinction between a statute that
clearly directs federal courts to entertain suits against States,
such as the one before us here, and a statute that does not, such
as the Judiciary Act of 1875. In light of our repeated application
of a clear-statement rule in Eleventh Amendment cases, from
Hans onward, I would be surprised to learn that such a
distinction is too thin to be acceptable.
88
u. S. 388 (1971). See
Mitchell v.
Forsyth,
472 U. S. 511
(1985); Harlow v.
Fitzgerald, 457 U. S. 800 (1982).
Similarly, our cases recognizing qualified officer immunity in 42
U. S. C. § 1983 actions rest on the conclusion that, in passing
that statute, Congress did not intend to displace the common-law
immunity that officers would have retained under suits premised
solely on the general jurisdictional statute. See
Tower v.
Glover, 467 U.
S. 914, 920 (1984). For that reason, the federal common law of
officer immunity that Congress meant to incorporate, not a contrary
state immunity, applies in § 1983 cases. See
Martinez v.
California, 444 U. S. 277, 284
(1980). There is no reason why Congress' undoubted power to
displace those common-law immunities should be either greater or
lesser than its power to displace the common-law sovereign immunity
defense.
Some of our precedents do state that the sovereign immunity
doctrine rests on fundamental constitutional "postulates" and
partakes of jurisdictional aspects rooted in Article III. See
ante, at 67-70. Most notably, that reasoning underlies this
Court's holding in
Principality of Monaco v.
Mississippi, 292 U. S. 313 (1934).
Monaco is a most inapt precedent for the majority's
holding today. That case barred a foreign sovereign from suing a
State in an equitable state-law action to recover payments due on
state bonds. It did not, however, involve a claim based on federal
law. Instead, the case concerned a purely state-law question to
which the State had interposed a federal defense.
Id., at
317. Thus,
Monaco reveals little about the power of Congress
to create a private federal cause of action to remedy a State's
violation of federal law.
Moreover, although
Monaco attributes a
quasiconstitutional status to sovereign immunity, even in cases not
covered by the Eleventh Amendment's plain text, that
characterization does not constitute precedent for the proposition
that Congress is powerless to displace a State's immu-
89
nity. Our abstention doctrines have roots in both the Tenth
Amendment and Article III, and thus may be said to rest on
constitutional "postulates" or to partake of jurisdictional
aspects. Yet it has not been thought that the Constitution would
prohibit Congress from barring federal courts from abstaining. The
majority offers no reason for making the federal common-law rule of
sovereign immunity less susceptible to congressional displacement
than any other quasijurisdictional common-law rule.
In this regard, I note that
Monaco itself analogized
sovereign immunity to the prudential doctrine that "controversies"
identified in Article III must be "justiciable" in order to be
heard by federal courts.
Id., at 329. The justiciability
doctrine is a prudential rather than a jurisdictional one, and thus
Congress' clearly expressed intention to create federal
jurisdiction over a particular Article III controversy necessarily
strips federal courts of the authority to decline jurisdiction on
justiciability grounds. See
Allen v.
Wright, 468 U. S. 737, 791 (1984)
(STEVENS, J., dissenting);
Flast v.
Cohen, 392 U. S. 83, 100-101
(1968). For that reason,
Monaco, by its own terms, fails to
resolve the question before usY
More generally, it is quite startling to learn that the
reasoning of
Hans and
Monaco (even assuming
that it did not undermine the majority's view) should have a
stare decisis effect on the question whether Congress
possesses the authority to provide a federal forum for the
vindication of a federal right by a citizen against its own State.
In light of the Court's development of a "clear-statement" line of
juris-
11 Indeed, to the extent the reasoning of
Monaco was
premised on the ground that a contrary ruling might permit foreign
governments and States indirectly to frustrate Congress' treaty
power, 292 U. S., at 331, the opinion suggests that its outcome
would have been quite different had Congress expressly authorized
suits by foreign governments against individual States as part of
its administration of foreign policy.
90
prudence, see,
e. g., Atascadero State Hospital v.
Scanlon, 473 U. S., at 238-239;
Hoffman v.
Connecticut Dept. of Income Maintenance, 492 U. S. 96 (1989), I
would have thought that
Hans and
Monaco had at least
left open the question whether Congress could permit the suit we
consider here. Our clear-statement cases would have been all but
unintelligible if
Hans and
Monaco had already
established that Congress lacked the constitutional power to make
States suable in federal court by individuals no matter how clear
its intention to do SO.12
Finally, the particular nature of the federal question involved
in
Hans renders the majority's reliance upon its rule even
less defensible.
Hans deduced its rebuttable presumption in
favor of sovereign immunity largely on the basis of its extensive
analysis of cases holding that the sovereign could not be forced to
make good on its debts via a private suit. See
Louisiana v.
Jumel, 107 U.
S. 711 (1883);
Hagood v.
Southern, 117 U. S. 52 (1886);
In
re Ayers, 123 U.
S. 443 (1887). Because
Hans, like these other cases,
involved a suit that attempted to make a State honor its debt, its
holding need not be read to stand even for the relatively limited
proposition that there is a
presumption in favor of
sovereign immunity in all federal-question cases.13
12 Moreover, they would have most unnecessarily burdened
Congress.
For example, after deciding that Congress had not made
sufficiently explicit its intention to withdraw the state sovereign
immunity defense in certain bankruptcy actions, see
Hoffman
v.
Connecticut Dept. of Income Maintenance, 392 U. S. 96
(1989), Congress understandably concluded that it could correct the
confusion by amending the relevant statute to make its intentions
to override such a defense unmistakably clear. See
In re
Merchants Grain, Inc.,
59 F.3d
630 (CA7 1995). Congress will no doubt be surprised to
learn that its exercise in legislative clarification, which it
undertook for our benefit, was for naught because the Constitution
makes it so.
13 Significantly, Chief Justice Marshall understood the Eleventh
Amendment's bar to have been designed primarily to protect States
from being sued for their debts. See
Cohens v.
Virginia, 6 Wheat. 264, 406 (1821).
91
In
Hans, the plaintiff asserted a Contracts Clause claim
against his State and thus asserted a federal right. To show that
Louisiana had impaired its federal obligation, however, Hans first
had to demonstrate that the State had entered into an enforceable
contract as a matter of state law. That Hans chose to bring his
claim in federal court as a Contract Clause action could not change
the fact that he was, at bottom, seeking to enforce a contract with
the State. See Burnham, Taming the Eleventh Amendment Without
Overruling
Hans v.
Louisiana, 40 Case W. Res. L. Rev.
931 (1990).
Because Hans' claimed federal right did not arise independently
of state law, sovereign immunity was relevant to the threshold
state-law question of whether a valid contract existed. 14
Hans expressly pointed out, however, that an individual who
could show that he had an
enforceable contract under state
law would not be barred from bringing suit in federal court to
prevent the State from impairing it.
"To avoid misapprehension it may be proper to add that, although
the obligations of a State rest for their performance upon its
honor and good faith, and cannot be made the subject of judicial
cognizance unless the State consents to be sued, or comes itself
into court; yet where property or rights are enjoyed under a grant
or contract made by a State, they cannot wantonly be invaded.
Whilst the State cannot be compelled by suit to perform its
contracts, any attempt on its part to violate property or rights
acquired under its contracts, may be
14 Significantly, many of the cases decided after
Hans in
which this Court has recognized state sovereign immunity involved
claims premised on the breach of rights that were rooted in state
law. See
Ford Motor Co. v.
Department of Treasury of
Ind., 323 U. S.
459 (1945);
Great Northern Life Ins. Co. v.
Read,
322 U. S. 47
(1944);
Smith v.
Reeves, 178 U. S. 436 (1900). In
such cases, the Court's application of the state-law immunity
appears simply to foreshadow (or follow) the rule of
Erie R.
Co. v.
Tompkins, 304 U. S. 64 (1938), not to demark the
limits of Article III.
92
judicially resisted; and any law impairing the obligation of
contracts under which such property or rights are held is void and
powerless to affect their enjoyment." Hans v.
Louisiana, 134 U. S., at 20-21.
That conclusion casts doubt on the absolutist view that
Hans definitively establishes that Article III prohibits
federal courts from entertaining federal-question suits brought
against States by their own citizens. At the very least,
Hans suggests that such suits may be brought to enjoin
States from impairing existing contractual obligations.
The view that the rule of
Hans is more substantive than
jurisdictional comports with Hamilton's famous discussion of
sovereign immunity in The Federalist Papers. Hamilton offered his
view that the federal judicial power would not extend to suits
against unconsenting States only in the context of his contention
that no contract with a State could be enforceable against the
State's desire. He did not argue that a State's immunity from suit
in federal court would be absolute.
"[T]here is no color to pretend that the State governments
would, by the adoption of [the plan of convention], be divested of
the privilege of paying their own debts in their own way, free from
every constraint but that which flows from the obligations of good
faith. The contracts between a nation and individuals are only
binding on the conscience of the sovereign, and have no pretensions
to a compulsive force. They confer no right of action independent
of the sovereign will." The Federalist No. 81, p. 488 (C. Rossiter
ed. 1961).
Here, of course, no question of a State's contractual
obligations is presented. The Seminole Tribe's only claim is that
the State of Florida has failed to fulfill a duty to negotiate that
federal statutory law alone imposes. Neither the Fed-
93
eralist Papers, nor
Hans, provides support for the view
that such a claim may not be heard in federal court.
III
In reaching my conclusion that the Constitution does not prevent
Congress from making the State of Florida suable in federal court
for violating one of its statutes, I emphasize that I agree with
the majority that in all cases to which the judicial power does not
extend-either because they are not within any category defined in
Article III or because they are within the category withdrawn from
Article III by the Eleventh Amendment-Congress lacks the power to
confer jurisdiction on the federal courts. As I have previously
insisted: "A statute cannot amend the Constitution."
Pennsylvania v.
Union Gas Co., 491 U. S., at 24.
It was, therefore, misleading for the Court in
Fitzpatrick v.
Bitzer, 427 U. S. 445 (1976), to
imply that § 5 of the Fourteenth Amendment authorized Congress to
confer jurisdiction over cases that had been withdrawn from Article
III by the Eleventh Amendment. Because that action had been brought
by Connecticut citizens against officials of the State of
Connecticut, jurisdiction was not precluded by the Eleventh
Amendment. As Justice Brennan pointed out in his concurrence, the
congressional authority to enact the provisions at issue in the
case was found in the Commerce Clause and provided a sufficient
basis for refusing to allow the State to "avail itself of the
nonconstitutional but ancient doctrine of sovereign immunity."
Id., at 457 (opinion concurring in judgment).
In confronting the question whether a federal grant of
jurisdiction is within the scope of Article III, as limited by the
Eleventh Amendment, I see no reason to distinguish among statutes
enacted pursuant to the power granted to Congress to regulate
commerce among the several States, and with the Indian tribes, Art.
I, § 8, cl. 3, the power to establish
94
uniform laws on the subject of bankruptcy, Art. I, § 8, cl. 4,
the power to promote the progress of science and the arts by
granting exclusive rights to authors and inventors, Art. I, § 8,
cl. 8, the power to enforce the provisions of the Fourteenth
Amendment, § 5, or indeed any other provision of the Constitution.
There is no language anywhere in the constitutional text that
authorizes Congress to expand the borders of Article III
jurisdiction or to limit the coverage of the Eleventh
Amendment.
The Court's
holdings in
Fitzpatrick v.
Bitzer, 427 U.
S. 445 (1976), and
Pennsylvania v.
Union Gas Co.,
491 U. S. 1 (1989),
do unquestionably establish, however, that Congress has the power
to deny the States and their officials the right to rely on the
nonconstitutional defense of sovereign immunity in an action
brought by one of their own citizens. As the opinions in the latter
case demonstrate, there can be legitimate disagreement about
whether Congress intended a particular statute to authorize
litigation against a State. Nevertheless, the Court there squarely
held that the Commerce Clause was an adequate source of authority
for such a private remedy. In a rather novel rejection of the
doctrine of
stare decisis, the Court today demeans that
holding by repeatedly describing it as a "plurality decision"
because Justice White did not deem it necessary to set forth the
reasons for his vote. As JUSTICE SOUTER'S opinion today
demonstrates, the arguments in support of Justice White's position
are so patent and so powerful that his actual vote should be
accorded full respect. Indeed, far more significant than the
"plurality" character of the three opinions supporting the holding
in
Union Gas is the fact that the issue confronted today has
been squarely addressed by a total of 13 Justices, 8 of whom cast
their votes with the so-called "plurality." 15
15 It is significant that JUSTICE SOUTER'S opinion makes it
perfectly clear that JUSTICE GINSBURG, JUSTICE BREYER, and he did
not consider it necessary to rely on the holding in
Union
Gas to support their conc1u-
95
The fundamental error that continues to lead the Court astray is
its failure to acknowledge that its modern embodiment of the
ancient doctrine of sovereign immunity "has absolutely nothing to
do with the limit on judicial power contained in the Eleventh
Amendment."
Id., at 25 (STEVENS, J., concurring). It rests
rather on concerns of federalism and comity that merit respect but
are nevertheless, in cases such as the one before us, subordinate
to the plenary power of Congress.
IV
As I noted above, for the purpose of deciding this case, it is
not necessary to question the wisdom of the Court's decision in
Hans v.
Louisiana. Given the absence of precedent for
the Court's dramatic application of the sovereign immunity doctrine
today, it is nevertheless appropriate to identify the questionable
heritage of the doctrine and to suggest that there are valid
reasons for limiting, or even rejecting that doctrine altogether,
rather than expanding it.
Except insofar as it has been incorporated into the text of the
Eleventh Amendment, the doctrine is entirely the product of
judge-made law. Three features of its English ancestry make it
particularly unsuitable for incorporation into the law of this
democratic Nation.
First, the assumption that it could be supported by a belief
that "the King can do no wrong" has always been absurd; the bloody
path trod by English monarchs both before and after they reached
the throne demonstrated the fictional character of any such
assumption. Even if the fiction had been acceptable in Britain, the
recitation in the Declaration of Independence of the wrongs
committed by George III made that proposition unacceptable on this
side of the Atlantic.
sion. I find today's decision particularly unfortunate because
of its failure to advance an acceptable reason for refusing to
adhere to a precedent upon which the Congress, as well as the
courts, should be entitled to rely.
96
Second, centuries ago the belief that the monarch served by
divine right made it appropriate to assume that redress for wrongs
committed by the sovereign should be the exclusive province of
still higher authority.16 While such a justification for a rule
that immunized the sovereign from suit in a secular tribunal might
have been acceptable in a jurisdiction where a particular faith is
endorsed by the government, it should give rise to skepticism
concerning the legitimacy of comparable rules in a society where a
constitutional wall separates the State from the Church.
Third, in a society where noble birth can justify preferential
treatment, it might have been unseemly to allow a commoner to hale
the monarch into court. Justice Wilson explained how foreign such a
justification is to this Nation's principles. See
Chisholm
v.
Georgia, 2 Dall., at 455. Moreover, Chief Justice
Marshall early on laid to rest the view that the purpose of the
Eleventh Amendment was to protect a State's dignity. Co
hens
v.
Virginia, 6 Wheat. 264, 406-407 (1821). Its purpose, he
explained, was far more practical.
"That its motive was not to maintain the sovereignty of a State
from the degradation supposed to attend a compulsory appearance
before the tribunal of the nation, may be inferred from the terms
of the amendment .... We must ascribe the amendment, then, to some
other cause than the dignity of a State. There is no difficulty in
finding this cause. Those who were inhibited from commencing a suit
against a State, or from prosecuting one which might be commenced
before the adoption of the amendment, were persons who might
probably be its creditors. There was not much reason to fear that
foreign or sister States would be creditors to any considerable
amount, and there was reason to retain the juris-
16 See Stevens, Is Justice Irrelevant?, 87 Nw. U. L. Rev. 1121,
11241125 (1993).
97
diction of the Court in those cases, because it might be
essential to the preservation of peace." IbidP
Nevertheless, this Court later put forth the interest in
preventing "indignity" as the "very object and purpose of the
[Eleventh] Amendment."
In re Ayers, 123 U. S., at 505. That,
of course, is an "embarrassingly insufficient" rationale for the
rule. See
Puerto Rico Aqueduct and Sewer Authority v.
Metcalf &
Eddy, Inc., 506 U. S. 139, 151 (1993)
(STEVENS, J., dissenting).
Moreover, I find unsatisfying Justice Holmes' explanation that
"[a] sovereign is exempt from suit, not because of any formal
conception or obsolete theory, but on the logical and practical
ground that there can be no legal right as against the authority
that makes the law on which the right depends."
Kawananakoa
v.
Polyblank, 205 U. S. 349, 353
(1907). As I have explained before, Justice Holmes' justification
fails in at least two respects.
"First, it is nothing more than a restatement of the obvious
proposition that a citizen may not sue the sovereign unless the
sovereign has violated the citizen's legal rights. It cannot
explain application of the immunity defense in cases like
Chisholm, in which it is assumed that the plaintiff's rights
have in fact been violatedand those cases are, of course, the only
ones in which the immunity defense is needed. Second, Holmes's
statement does not purport to explain why a general grant of
jurisdiction to federal courts should not be treated as an adequate
expression of the sovereign's consent to suits against itself as
well as to suits against
17 Interestingly, this passage demonstrates that the Court's
application of a common-law sovereign immunity defense in
Principality of Monaco v.
Mississippi, 292 U. S. 313 (1934), was
quite probably justified. There a foreign state sued a State as a
substantial creditor, and thus implicated the very purpose of the
Eleventh Amendment.
98
ordinary litigants." Stevens, Is Justice Irrelevant?, 87 Nw. U.
L. Rev. 1121, 1126 (1993).
In sum, as far as its common-law ancestry is concerned, there is
no better reason for the rule of sovereign immunity "than that so
it was laid down in the time of Henry 1\1." Holmes, The Path of the
Law, 10 Harv. L. Rev. 457, 469 (1897). That "reason" for the
perpetuation of this ancient doctrine certainly cannot justify the
majority's expansion of it.
In this country the sovereignty of the individual States is
subordinate both to the citizenry of each State and to the supreme
law of the federal sovereign. For that reason, Justice Holmes'
explanation for a rule that allows a State to avoid suit in its own
courts does not even speak to the question whether Congress should
be able to authorize a federal court to provide a private remedy
for a State's violation of federal law. In my view, neither the
majority's opinion today, nor any earlier opinion by any Member of
the Court, has identified any acceptable reason for concluding that
the absence of a State's consent to be sued in federal court should
affect the power of Congress to authorize federal courts to remedy
violations of federal law by States or their officials in actions
not covered by the Eleventh Amendment's explicit text.18
While I am persuaded that there is no justification for
permanently enshrining the judge-made law of sovereign immunity, I
recognize that federalism concerns-and even the in-
18 Because
Hans v.
Louisiana, 134 U. S. 1 (1890), was the
first case in which the Court held that a State could not be sued
in federal court by one of its citizens, this comment is of
interest:
"It is not necessary that we should enter upon an examination of
the reason or the expediency of the rule which exempts a sovereign
State from prosecution in a court of justice at the suit of
individuals. This is fully discussed by writers on public law. It
is enough for us to declare its existence."
Id., at 21.
So it is today.
99
terest in protecting the solvency of the States that was at work
in
Chisholm and
Hans-may well justify a grant of
immunity from federal litigation in certain classes of cases. Such
a grant, however, should be the product of a reasoned decision by
the policymaking branch of our Government. For this Court to
conclude that timeworn shibboleths iterated and reiterated by
judges should take precedence over the deliberations of the
Congress of the United States is simply irresponsible.
v
Fortunately, and somewhat fortuitously, a jurisdictional problem
that is unmentioned by the Court may deprive its opinion of
precedential significance. The Indian Gaming Regulatory Act
establishes a unique set of procedures for resolving the dispute
between the Tribe and the State. If each adversary adamantly
adheres to its understanding of the law, if the District Court
determines that the State's inflexibility constitutes a failure to
negotiate in good faith, and if the State thereafter continues to
insist that it is acting within its rights, the maximum sanction
that the Court can impose is an order that refers the controversy
to a member of the Executive Branch of the Government for
resolution. 25 U. S. C. § 2710(d)(7)(B). As the Court of Appeals
interpreted the Act, this final disposition is available even
though the action against the State and its Governor may not be
maintained.
11 F.3d
1016, 1029 (CAll 1994). (The Court does not tell us whether it
agrees or disagrees with that disposition.) In my judgment, it is
extremely doubtful that the obviously dispensable involvement of
the judiciary in the intermediate stages of a procedure that begins
and ends in the Executive Branch is a proper exercise of judicial
power. See
Gordon v.
United States, 117 U. S. Appx.
697, 702-703 (1864) (opinion of Taney, C. J.);
United States
v.
Ferreira, 13 How. 40, 48 (1852). It may well follow that
the misguided opinion of today's majority has nothing more than an
advisory character. Whether or not that be so, the better rea-
100
soning in JUSTICE SOUTER'S far wiser and far more scholarly
opinion will surely be the law one day.
For these reasons, as well as those set forth in JUSTICE
SOUTER'S opinion, I respectfully dissent.
JUSTICE SOUTER, with whom JUSTICE GINSBURG and JUSTICE BREYER
join, dissenting.
In holding the State of Florida immune to suit under the Indian
Gaming Regulatory Act, the Court today holds for the first time
since the founding of the Republic that Congress has no authority
to subject a State to the jurisdiction of a federal court at the
behest of an individual asserting a federal right. Although the
Court invokes the Eleventh Amendment as authority for this
proposition, the only sense in which that amendment might be
claimed as pertinent here was tolerantly phrased by JUSTICE STEVENS
in his concurring opinion in
Pennsylvania v.
Union Gas
Co., 491 U. S.
1, 23 (1989). There, he explained how it has come about that we
have two Eleventh Amendments, the one ratified in 1795, the other
(so-called) invented by the Court nearly a century later in
Hans v.
Louisiana, 134 U. S. 1 (1890). JUSTICE
STEVENS saw in that second Eleventh Amendment no bar to the
exercise of congressional authority under the Commerce Clause in
providing for suits on a federal question by individuals against a
State, and I can only say that after my own canvass of the matter I
believe he was entirely correct in that view, for reasons given
below. His position, of course, was also the holding in
Union
Gas, which the Court now overrules and repudiates.
The fault I find with the majority today is not in its decision
to reexamine
Union Gas, for the Court in that case produced
no majority for a single rationale supporting congressional
authority. Instead, I part company from the Court because I am
convinced that its decision is fundamentally mistaken, and for that
reason I respectfully dissent.
101
I
It is useful to separate three questions: (1) whether the States
enjoyed sovereign immunity if sued in their own courts in the
period prior to ratification of the National Constitution; (2) if
so, whether after ratification the States were entitled to claim
some such immunity when sued in a federal court exercising
jurisdiction either because the suit was between a State and a
nonstate litigant who was not its citizen, or because the issue in
the case raised a federal question; and (3) whether any state
sovereign immunity recognized in federal court may be abrogated by
Congress.
The answer to the first question is not clear, although some of
the Framers assumed that States did enjoy immunity in their own
courts. The second question was not debated at the time of
ratification, except as to citizen-state diversity jurisdiction; 1
there was no unanimity, but in due course the Court in
Chisholm v.
Georgia, 2 Dall. 419 (1793), answered
that a state defendant enjoyed no such immunity. As to
federal-question jurisdiction, state sovereign immunity seems not
to have been debated prior to ratification, the silence probably
showing a general understanding at the time that the States would
have no immunity in such cases.
The adoption of the Eleventh Amendment soon changed the result
in
Chisholm, not by mentioning sovereign immunity, but by
eliminating citizen-state diversity jurisdiction over cases with
state defendants. I will explain why the
1 The two Citizen-State Diversity Clauses provide as follows:
"The judicial Power shall extend ... to Controversies ... between a
State and Citizens of another State; ... and between a State, or
the Citizens thereof, and foreign States, Citizens or Subjects." U.
S. Const., Art. III, § 2. In his opinion in
Union Gas,
JUSTICE STEVENS referred to these Clauses as the "citizen-state"
and "alien-state" Clauses, respectively,
Pennsylvania v.
Union Gas Co., 491 U. S. 1, 24 (1989)
(concurring opinion). I have grouped the two as "Citizen-State
Diversity Clauses" for ease in frequent repetition here.
102
Eleventh Amendment did not affect federal-question jurisdiction,
a notion that needs to be understood for the light it casts on the
soundness of
Hans's holding that States did enjoy sovereign
immunity in federal-question suits. The
Hans Court
erroneously assumed that a State could plead sovereign immunity
against a noncitizen suing under federal-question jurisdiction, and
for that reason held that a State must enjoy the same protection in
a suit by one of its citizens. The error of
Hans's reasoning
is underscored by its clear inconsistency with the Founders'
hostility to the implicit reception of common-law doctrine as
federal law, and with the Founders' conception of sovereign power
as divided between the States and the National Government for the
sake of very practical objectives.
The Court's answer today to the third question is likewise at
odds with the Founders' view that common law, when it was received
into the new American legal system, was always subject to
legislative amendment. In ignoring the reasons for this pervasive
understanding at the time of the ratification, and in holding that
a nontextual common-law rule limits a clear grant of congressional
power under Article I, the Court follows a course that has brought
it to grief before in our history, and promises to do so again.
Beyond this third question that elicits today's holding, there
is one further issue. To reach the Court's result, it must not only
hold the
Hans doctrine to be outside the reach of Congress,
but must also displace the doctrine of
Ex parte Young,
209 U. S. 123
(1908), that an officer of the government may be ordered
prospectively to follow federal law, in cases in which the
government may not itself be sued directly. None of its reasons for
displacing
Young's jurisdictional doctrine withstand
scrutiny.
A
The doctrine of sovereign immunity comprises two distinct rules,
which are not always separately recognized. The one rule holds that
the King or the Crown, as the font of law, is
103
not bound by the law's provisions; the other provides that the
King or Crown, as the font of justice, is not subject to suit in
its own courts. See,
e. g., Jaffe, Suits Against
Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1,
3-4 (1963).2 The one rule limits the reach of substantive law; the
other, the jurisdiction of the courts. We are concerned here only
with the latter rule, which took its common-law form in the high
Middle Ages. "At least as early as the thirteenth century, during
the reign of Henry III (1216-1272), it was recognized that the king
could not be sued in his own courts." C. Jacobs, Eleventh Amendment
and Sovereign Immunity 5 (1972). See also 3 W. Blackstone,
Commentaries *244-*245; Jaffe,
supra, at 2 ("By the time of
Bracton (1268) it was settled doctrine that the King could not be
sued
eo nomine in his own courts").
The significance of this doctrine in the nascent American law is
less clear, however, than its early development and steady
endurance in England might suggest. While some colonial governments
may have enjoyed some such immunity, Jacobs,
supra, at 6-7,
the scope (and even the existence) of this governmental immunity in
pre-Revolutionary America remains disputed. See Gibbons, The
Eleventh Amendment and State Sovereign Immunity: A
Reinterpretation, 83 Colum. L. Rev. 1889, 1895-1899 (1983).
2 The first of these notions rests on the ancient maxim that
"the King can do no wrong." See,
e. g., 1 W.
Blackstone, Commentaries *244. Professor Jaffe has argued this
expression "originally meant precisely the contrary to what it
later came to mean," that is, "'it meant that the king must not,
was not allowed, not entitled, to do wrong.''' Jaffe, 77 Harv. L.
Rev., at 4 (quoting L. Ehrlich, Proceedings Against the Crown
(1216-1377), p. 42, in 6 Oxford Studies in Social and Legal History
(P. Vinogradoff ed. 1921), p. 42); see also 1 Blackstone,
supra, at *246 (interpreting the maxim to mean that "the
prerogative of the crown extends not to do any injury"). In any
event, it is clear that the idea of the sovereign, or any part of
it, being above the law in this sense has not survived in American
law. See,
e. g., Langford v.
United States, 101 U. S. 341, 342-343
(1880);
Nevada v.
Hall, 440 U. S. 410, 415
(1979).
104
Whatever the scope of sovereign immunity might have been in the
Colonies, however, or during the period of Confederation, the
proposal to establish a National Government under the Constitution
drafted in 1787 presented a prospect unknown to the common law
prior to the American experience: the States would become parts of
a system in which sovereignty over even domestic matters would be
divided or parcelled out between the States and the Nation, the
latter to be invested with its own judicial power and the right to
prevail against the States whenever their respective substantive
laws might be in conflict. With this prospect in mind, the 1787
Constitution might have addressed state sovereign immunity by
eliminating whatever sovereign immunity the States previously had,
as to any matter subject to federal law or jurisdiction; by
recognizing an analogue to the old immunity in the new context of
federal jurisdiction, but subject to abrogation as to any matter
within that jurisdiction; or by enshrining a doctrine of inviolable
state sovereign immunity in the text, thereby giving it
constitutional protection in the new federal jurisdiction. See
Field, The Eleventh Amendment and Other Sovereign Immunity
Doctrines:
Part One, 126 U. Pa. L. Rev. 515, 536-538 (1977).
The 1787 draft in fact said nothing on the subject, and it was
this very silence that occasioned some, though apparently not
widespread, dispute among the Framers and others over whether
ratification of the Constitution would preclude a State sued in
federal court from asserting sovereign immunity as it could have
done on any matter of nonfederal law litigated in its own courts.
As it has come down to us, the discussion gave no attention to
congressional power under the proposed Article I but focused
entirely on the limits of the judicial power provided in Article
III. And although the jurisdictional bases together constituting
the judicial power of the national courts under § 2 of Article III
included questions arising under federal law and cases between
States
105
and individuals who are not citizens,3 it was only upon the
latter citizen-state diversity provisions that preratification
questions about state immunity from suit or liability
centered.4
Later in my discussion I will canvass the details of the debate
among the Framers and other leaders of the time, see
infra,
at 142-150; for now it is enough to say that there was no consensus
on the issue. See
Atascadero State Hospital v.
Scanlon, 473
U. S. 234, 263-280 (1985) (Brennan, J., dissenting);
Nevada v.
Hall, 440 U. S. 410, 419
(1979); Jacobs,
supra, at 40 ("[T]he legislative history of
the Constitution hardly warrants the conclusion drawn by some that
there was a general understanding, at the time of ratification,
that the states would retain their sovereign immunity"). There was,
on the contrary, a clear disagreement, which was left to fester
during the ratification period, to be resolved only thereafter. One
other point, however, was also clear: the
3 The text reads that "[t]he Judicial Power shall extend to all
Cases, in Law and Equity, arising under this Constitution, the Laws
of the United States, and Treaties made, or which shall be made,
under their Authority;-to all Cases affecting Ambassadors, other
public Ministers and Consuls;-to all Cases of admiralty and
maritime Jurisdiction;-to Controversies to which the United States
shall be a Party;-to Controversies between two or more
States;-between a State and Citizens of another State;-between
Citizens of different States,-between Citizens of the same State
claiming Lands under Grants of different States, and between a
State, or the Citizens thereof, and foreign States, Citizens or
Subjects."
4 The one statement I have found on the subject of States'
immunity in federal-question cases was an opinion that immunity
would not be applicable in these cases: James Wilson, in the
Pennsylvania ratification debate, stated that the federal-question
clause would require States to make good on pre-Revolutionary debt
owed to English merchants (the enforcement of which was promised in
the Treaty of 1783) and thereby "show the world that we make the
faith of treaties a constitutional part of the character of the
United States; that we secure its performance no longer nominally,
for the judges of the United States will be enabled to carry it
into effect, let the legislatures of the different states do what
they may." 2 J. Elliot, Debates on the Federal Constitution 490 (2d
ed. 1836) (Elliot's Debates).
106
debate addressed only the question whether ratification of the
Constitution would, in diversity cases and without more, abrogate
the state sovereign immunity or allow it to have some application.
We have no record that anyone argued for the third option mentioned
above, that the Constitution would affirmatively guarantee state
sovereign immunity against any congressional action to the
contrary. Nor would there have been any apparent justification for
any such argument, since no clause in the proposed (and ratified)
Constitution even so much as suggested such a position. It may have
been reasonable to contend (as we will see that Madison, Marshall,
and Hamilton did) that Article III would not alter States'
pre-existing common-law immunity despite its unqualified grant of
jurisdiction over diversity suits against States. But then, as now,
there was no textual support for contending that Article III or any
other provision would "constitutionalize" state sovereign immunity,
and no one uttered any such contention.
B
The argument among the Framers and their friends about sovereign
immunity in federal citizen-state diversity cases, in any event,
was short lived and ended when this Court, in
Chisholm v.
Georgia, 2 Dall. 419 (1793), chose between the
constitutional alternatives of abrogation and recognition of the
immunity enjoyed at common law. The 4-to-1 majority adopted the
reasonable (although not compelled) interpretation that the first
of the two Citizen-State Diversity Clauses abrogated for purposes
of federal jurisdiction any immunity the States might have enjoyed
in their own courts, and Georgia was accordingly held subject to
the judicial power in a common-law assumpsit action by a South
Carolina citizen suing to collect a debt.5 The case also settled,
by implica-
5 This lengthy discussion of the history of the Constitution's
ratification, the Court's opinion in
Chisholm v.
Georgia, 2 Dall. 419 (1793), and the adoption of the
Eleventh Amendment is necessary to explain why, in my view, the
contentions in some of our earlier opinions that
Chisholm
cre-
107
tion, any question there could possibly have been about
recognizing state sovereign immunity in actions depending on the
federal question (or "arising under") head of jurisdiction
ated a great "shock of surprise" misread the history. See
Principality of Monaco v.
Mississippi, 292 U. S. 313 (1934). The
Court's response to this historical analysis is simply to recite
yet again
Monaco's erroneous assertion that
Chisholm
created "such a shock of surprise that the Eleventh Amendment was
at once proposed and adopted," 292 U. S., at 325. See
ante,
at 69. This response is, with respect, no response at all.
Monaco's ipse dixit that
Chisholm created a "shock
of surprise" does not make it so. This Court's opinions frequently
make assertions of historical fact, but those assertions are not
authoritative as to history in the same way that our
interpretations of laws are authoritative as to them. In
Tucker v.
Alexandroff, 183 U. S. 424, 434
(1902), which was, like
Monaco, decided a century after the
event it purported to recount, the Court baldly stated that "in
September 1790, General Washington, on the advice of Mr. Adams, did
refuse to permit British troops to march through the territory of
the United States from Detroit to the Mississippi, apparently for
the reason that the object of such movement was an attack on New
Orleans and the Spanish possessions on the Mississippi." Modern
historians agree, however, that there was no such request, see J.
Daly, The Use of History in the Decisions of the Supreme Court:
1900-1930, pp. 65-66 (1954); W. Manning, The Nootka Sound
Controversy, in Annual Report of the American Historical
Association, H. R. Doc. No. 429, 58th Cong., 3d Sess., pp. 415-423
(1905), and it would of course be absurd for this Court to treat
the fact that
Tucker asserted the existence of the request
as proof that it actually occurred. Cf.
Erie R. Co. v.
Tompkins, 304 U. S. 64, 72-73 (1938) ("But it was the more
recent research of a competent scholar, who examined the original
document, which established that the construction given to [the
Judiciary Act of 1789] by the Court was erroneous; and that the
purpose of the section was merely to make certain that, in all
matters except those in which some federal law is controlling, the
federal courts exercising jurisdiction in diversity of citizenship
cases would apply as their rules of decision the law of the State,
unwritten as well as written").
Moreover, in this case, there is ample evidence contradicting
the "shock of surprise" thesis. Contrary to
Monaco's
suggestion, the Eleventh Amendment was not "at once proposed and
adopted." Congress was in session when
Chisholm was decided,
and a constitutional amendment in response was proposed two days
later, but Congress never acted on it, and in fact it was not until
two years after
Chisholm was handed down that
108
as well. The constitutional text on federal-question
jurisdiction, after all, was just as devoid of immunity language as
it was on citizen-state diversity, and at the time of
Chisholm any influence that general common-law immunity
might have had as an interpretive force in construing
constitutional language would presumably have been no greater when
addressing the federal-question language of Article III than its
Diversity Clauses. See Sherry, The Eleventh Amendment and Stare
Decisis: Overruling
Hans v Louisiana, 57 U. Chi. L. Rev.
1260, 1270 (1990).
Although Justice Iredell's dissent in
Chisholm seems at
times to reserve judgment on what I have called the third question,
whether Congress could authorize suits against the States,
Chisholm, supra, at 434-435, his argument is largely devoted
to stating the position taken by several federalists that state
sovereign immunity was cognizable under the Citizen-State Diversity
Clauses, not that state immunity was somehow invisibly codified as
an independent constitutional defense. As JUSTICE STEVENS
persuasively explains in greater detail,
ante, at 78-81,
Justice Iredell's dissent focused on the construction of the
Judiciary Act of 1789, not Article III. See also Orth, The Truth
About Justice Iredell's Dissent in
Chisholm v. Georgia
(1793), 73 N. C. L. Rev. 255 (1994). This would have been an odd
focus, had he believed that Congress lacked the constitutional
authority to impose liability. Instead, on Justice Iredell's view,
States sued in diversity retained the common-law sovereignty "where
no special act of Legislation controuls it, to be in force in each
State, as it existed in England, (unaltered by any statute) at the
time of the first settlement of the country." 2 Dall., at 435
(emphasis deleted). While in at least some circumstances States
might be held liable to "the authority of the United States,"
id., at 436, any such liability
an Amendment was ratified. See Gibbons, The Eleventh Amendment
and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev.
1889, 1926-1927 (1983).
109
would depend upon "laws passed under the Constitution and in
conformity to it,"
ibid.6 Finding no congressional action
abrogating Georgia's common-law immunity, Justice Iredell concluded
that the State should not be liable to suit.7
C
The Eleventh Amendment, of course, repudiated
Chisholm
and clearly divested federal courts of some jurisdiction as to
cases against state parties:
"The Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State."
There are two plausible readings of this provision's text. Under
the first, it simply repeals the Citizen-State Diversity
6 See also 2 Dall., at 435 ("[I]t is certain that in regard to
any common law principle which can influence the question before us
no alteration has been made by any statute");
id., at 437
(if "no new remedy be provided ... we have no other rule to govern
us but the principles of the preexistent laws, which must remain in
force till superseded by others");
Atascadero State Hospital
v.
Scanlon, 473 U. S. 234, 283 (1985)
(Brennan, J., dissenting). But see Justice Iredell's dicta
suggesting that the Constitution would not permit suits against a
State.
Chisholm, supra, at 449 (dissenting opinion);
Atascadero, supra, at 283, n. 34 (Brennan, J.,
dissenting).
7 Of course, even if Justice Iredell had concluded that state
sovereign immunity was not subject to abrogation, it would be
inappropriate to assume (as it appears the Court does today, and
Hans v.
Louisiana, 134 U. S. 1 (1890), did as well)
that the Eleventh Amendment (regardless of what it says)
"constitutionalized" Justice Iredell's dissent, or that it simply
adopted the opposite of the holding in
Chisholm. It is as
odd to read the Eleventh Amendment's rejection of
Chisholm
(which held that States may be sued in diversity) to say that
States may not be sued on a federal question as it would be to read
the Twenty-Sixth Amendment's rejection of
Oregon v.
Mitchell, 400
U. S. 112 (1970) (which held that Congress could not require
States to extend the suffrage to 18-year-olds) to permit Congress
to require States to extend the suffrage to 12-year-olds.
110
Clauses of Article III for all cases in which the State appears
as a defendant. Under the second, it strips the federal courts of
jurisdiction in any case in which a state defendant is sued by a
citizen not its own, even if jurisdiction might otherwise rest on
the existence of a federal question in the suit. N either reading
of the Amendment, of course, furnishes authority for the Court's
view in today's case, but we need to choose between the competing
readings for the light that will be shed on the
Hans
doctrine and the legitimacy of inflating that doctrine to the point
of constitutional immutability as the Court has chosen to do.
The history and structure of the Eleventh Amendment convincingly
show that it reaches only to suits subject to federal jurisdiction
exclusively under the Citizen-State Diversity Clauses.8 In
precisely tracking the language in Article III providing for
citizen-state diversity jurisdiction, the text of the Amendment
does, after all, suggest to common
8 The great weight of scholarly commentary agrees. See,
e. g., Jackson, The Supreme Court, the Eleventh
Amendment, and State Sovereign Immunity, 98 Yale L. J. 1 (1988);
Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425 (1987);
Fletcher, A Historical Interpretation of the Eleventh Amendment: A
Narrow Construction of an Affirmative Grant of Jurisdiction Rather
than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033
(1983); Gibbons, The Eleventh Amendment and State Sovereign
Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889 (1983); Field,
The Eleventh Amendment and Other Sovereign Immunity Doctrines:
Congressional Imposition of Suit Upon the States, 126 U. Pa. L.
Rev. 1203 (1978). While a minority has adopted the second view set
out above, see,
e. g., Marshall, Fighting the Words
of the Eleventh Amendment, 102 Harv. L. Rev. 1342 (1989); Massey,
State Sovereignty and the Tenth and Eleventh Amendments, 56 U. Chi.
L. Rev. 61 (1989), and others have criticized the diversity theory,
see,
e. g., Marshall, The Diversity Theory of the
Eleventh Amendment: A Critical Evaluation, 102 Harv. L. Rev. 1372
(1989), I have discovered no commentator affirmatively advocating
the position taken by the Court today. As one scholar has observed,
the literature is "remarkably consistent in its evaluation of the
historical evidence and text of the amendment as not supporting a
broad rule of constitutional immunity for states." Jackson,
supra, at 44, n. 179.
111
sense that only the Diversity Clauses are being addressed. If
the Framers had meant the Amendment to bar federalquestion suits as
well, they could not only have made their intentions clearer very
easily, but could simply have adopted the first
post-Chisholm proposal, introduced in the House of
Representatives by Theodore Sedgwick of Massachusetts on
instructions from the Legislature of that Commonwealth. Its
provisions would have had exactly that expansive effect:
"[N]o state shall be liable to be made a party defendant, in any
of the judicial courts, established, or which shall be established
under the authority of the United States, at the suit of any person
or persons, whether a citizen or citizens, or a foreigner or
foreigners, or of any body politic or corporate, whether within or
without the United States." Gazette of the United States 303 (Feb.
20, 1793).
With its references to suits by citizens as well as noncitizens,
the Sedgwick amendment would necessarily have been applied beyond
the Diversity Clauses, and for a reason that would have been wholly
obvious to the people of the time. Sedgwick sought such a broad
amendment because many of the States, including his own, owed debts
subject to collection under the Treaty of Paris. Suits to collect
such debts would "arise under" that Treaty and thus be subject to
federal-question jurisdiction under Article III. Such a suit,
indeed, was then already pending against Massachusetts, having been
brought in this Court by Christopher Vassal, an erstwhile Bostonian
whose move to England on the eve of revolutionary hostilities had
presented his former neighbors with the irresistible temptation to
confiscate his vacant mansion. 5 Documentary History of the Supreme
Court of the United States, 1789-1800, pp. 352-449 (M. Marcus ed.
1994).9
9Vassall initiated a suit against Massachusetts, invoking the
original jurisdiction of the Supreme Court. Although the marshal
for the district of Massachusetts served a subpoena on Governor
John Hancock and Attor-
112
Congress took no action on Sedgwick's proposal, however, and the
Amendment as ultimately adopted two years later could hardly have
been meant to limit federal-question jurisdiction, or it would
never have left the States open to federal-question suits by their
own citizens. To be sure, the majority of state creditors were not
citizens, but nothing in the Treaty would have prevented foreign
creditors from selling their debt instruments (thereby assigning
their claims) to citizens of the debtor State. If the Framers of
the Eleventh Amendment had meant it to immunize States from
federal-question suits like those that might be brought to enforce
the Treaty of Paris, they would surely have drafted the Amendment
differently. See Fletcher, The Diversity Explanation of the
Eleventh Amendment: A Reply to Critics, 56 U. Chi. L. Rev. 1261,
1280-1282 (1989).
It should accordingly come as no surprise that the weightiest
commentary following the Amendment's adoption described it simply
as constricting the scope of the CitizenState Diversity Clauses. In
Cohens v.
Virginia, 6 Wheat. 264 (1821), for
instance, Chief Justice Marshall, writing for the Court, emphasized
that the Amendment had no effect on federal courts' jurisdiction
grounded on the "arising under" provision of Article III and
concluded that "a case arising under the constitution or laws of
the United States, is cognizable in the Courts of the Union,
whoever may be the parties to that case."
Id., at 383. The
point of the Eleventh Amendment, according to
Cohens, was to
bar jurisdiction in suits at common law by Revolutionary War debt
creditors,
ney General James Sullivan, the Commonwealth of Massachusetts
did not appear by the original return date of August 1793, and the
case was continued to the February 1794 Term. Massachusetts never
did appear, and the case was "simply continued from term to term
through 1796." 5 Documentary History of the Supreme Court of the
United States, at 369. In February 1797 the suit was "dismissed
with Costs, for reasons unknown,"
ibid. (internal quotation
marks omitted), perhaps because "Vassall failed to prosecute it
properly,"
ibid.
113
not "to strip the government of the means of protecting, by the
instrumentality of its courts, the constitution and laws from
active violation."
Id., at 407.
The treatment of the Amendment in
Osborn v.
Bank
of United States, 9 Wheat. 738 (1824), was to the same effect.
The Amendment was held there to be no bar to an action against the
State seeking the return of an unconstitutional tax. "The eleventh
amendment of the constitution has exempted a State from the suits
of citizens of other States, or aliens," Marshall stated, omitting
any reference to cases that arise under the Constitution or federal
law.
Id., at 847.
The good sense of this early construction of the Amendment as
affecting the diversity jurisdiction and no more has the further
virtue of making sense of this Court's repeated exercise of
appellate jurisdiction in federal-question suits brought against
States in their own courts by out-of-staters. Exercising appellate
jurisdiction in these cases would have been patent error if the
Eleventh Amendment limited federal-question jurisdiction, for the
Amendment's unconditionallanguage ("shall not be construed") makes
no distinction between trial and appellate jurisdiction.10 And yet,
again and again we have entertained such appellate cases, even when
brought against the State in its own name by a
lOWe have generally rejected Eleventh Amendment challenges to
our appellate jurisdiction on the specious ground that an appeal is
not a "suit" for purposes of the Amendment. See,
e. g., McKesson
Corp. v.
Division of Alcoholic Beverages and Tobacco, Fla.
Dept. of Business Regulation, 496 U. S. 18, 27 (1990).
Although
Cohens v.
Virginia, 6 Wheat. 264, 412
(1821), is cited for this proposition, that case involved a State
as plaintiff. See generally Jackson, 98 Yale L. J., at 32-35
(rejecting the appeal/suit distinction). The appeal/suit
distinction, in any case, makes no sense. Whether or not an appeal
is a "suit" in its own right, it is certainly a means by which an
appellate court exercises jurisdiction over a "suit" that began in
the courts below. Cf.
Griggs v.
Provident Consumer
Discount Co., 459
U. S. 56, 58 (1982)
(per curiam) ("The filing of a
notice of appeal is an event of jurisdictional significance-it
confers jurisdiction on the court of appeals and divests the
district court of its control over those aspects of the case
involved in the appeal").
114
private plaintiff for money damages. See,
e. g., Commonwealth
Edison Co. v.
Montana, 453 U. S. 609 (1981);
Minneapolis Star &
Tribune Co. v.
Minnesota
Comm'r of Revenue, 460 U. S. 575 (1983). The
best explanation for our practice belongs to Chief Justice
Marshall: the Eleventh Amendment bars only those suits in which the
sole basis for federal jurisdiction is diversity of citizenship.
See
Atascadero State Hospital v.
Scanlon, 473 U. S.,
at 294 (Brennan, J., dissenting); Jackson, The Supreme Court, the
Eleventh Amendment, and State Sovereign Immunity, 98 Yale L. J. 1,
44 (1988).
In sum, reading the Eleventh Amendment solely as a limit on
citizen-state diversity jurisdiction has the virtue of coherence
with this Court's practice, with the views of John Marshall, with
the history of the Amendment's drafting, and with its allusive
language. Today's majority does not appear to disagree, at least
insofar as the constitutional text is concerned; the Court
concedes, after all, that "the text of the Amendment would appear
to restrict only the Article III diversity jurisdiction of the
federal courts."
Ante, at
54.11
Thus, regardless of which of the two plausible readings one
adopts, the further point to note here is that there is no possible
argument that the Eleventh Amendment, by its terms, deprives
federal courts of jurisdiction over all citizen law-
11 See also
Pennsylvania v.
Union Gas Co., 491 U.
S., at 31 (SCALIA, J., concurring in part and dissenting in part)
("If this text [of the Eleventh Amendment] were intended as a
comprehensive description of state sovereign immunity in federal
courts ... then it would unquestionably be most reasonable to
interpret it as providing immunity only when the
sole basis
of federal jurisdiction is the diversity of citizenship that it
describes (which of course tracks some of the diversity
jurisdictional grants in U. S. Const., Art. III, § 2). For there is
no plausible reason why one would wish to protect a State from
being sued in federal court for violation of federal law ... when
the plaintiff is a citizen of another State or country, but to
permit a State to be sued there when the plaintiff is citizen of
the State itself").
115
suits against the States. Not even the Court advances that
proposition, and there would be no textual basis for doing SO.12
Because the plaintiffs in today's case are citizens of the
12 The Court does suggest that the drafters of the Eleventh
Amendment may not have had federal-question jurisdiction in mind,
in the apparent belief that this somehow supports its reading.
Ante, at 69-70. The possibility, however, that those who
drafted the Eleventh Amendment intended to deal "only with the
problem presented by the decision in
Chisholm" would
demonstrate, if any demonstration beyond the clear language of the
Eleventh Amendment were necessary, that the Eleventh Amendment was
not intended to address the broader issue of federal-question suits
brought by citizens.
Moreover, the Court's point is built on a faulty foundation. The
Court is simply incorrect in asserting that "the federal courts did
not have federal-question jurisdiction at the time the Amendment
was passed."
Ibid. Article III, of course, provided for such
jurisdiction, and early Congresses exercised their authority
pursuant to Article III to confer jurisdiction on the federal
courts to resolve various matters of federal law.
E.
g., Act of Apr. 10, 1790, § 5, 1 Stat. 111; Act of Feb. 21,
1793, § 6, 1 Stat. 322; Act of Mar. 23, 1792, §§ 2, 3, 1 Stat. 244;
see also
Osborn v.
Bank of United States, 9 Wheat.
738 (1824) (holding that federal statute conferred federal-question
jurisdiction in cases involving the Bank of the United States); see
generally P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart
& Wechsler's The Federal Courts and the Federal System 960-982
(3d ed. 1988). In fact, only six years after the passage of the
Eleventh Amendment, Congress enacted a statute providing for
general federalquestion jurisdiction. Act of Feb. 13, 1801, § 11, 2
Stat. 92 ("[T]he said circuit courts respectively shall have
cognizance of ... all cases in law or equity, arising under the
constitution and laws of the United States, and treaties made, or
which shall be made, under their authority"). It is, of course,
true that this statute proved short lived (it was repealed by the
Act of Mar. 8, 1802, 2 Stat. 132), and that Congress did not pass
another statute conferring general federal jurisdiction until 1875,
but the drafters of the Eleventh Amendment obviously could not have
predicted such things. The real significance of the 1801 Act is
that it demonstrates the awareness among the Members of the early
Congresses of the potential scope of Article III. This, in
combination with the pre-Eleventh Amendment statutes that conferred
federal-question jurisdiction on the federal courts, cast
considerable doubt on the Court's suggestion that the issue of
federal-question jurisdiction never occurred to the drafters of the
Elev-
116
State that they are suing, the Eleventh Amendment simply does
not apply to them. We must therefore look elsewhere for the source
of that immunity by which the Court says their suit is barred from
a federal court.13
II
The obvious place to look elsewhere, of course, is
Hans
v.
Louisiana, 134 U. S. 1 (1890), and
Hans was indeed a leap in the direction of today's holding,
even though it does not take the Court all the way. The parties in
Hans raised, and the Court in that case answered, only what
I have called the second question, that is, whether the
Constitution, without
enth Amendment; on the contrary, just because these early
statutes underscore the early Congresses' recognition of the
availability of federalquestion jurisdiction, the silence of the
Eleventh Amendment is all the more deafening.
13 The majority chides me that the "lengthy analysis of the text
of the Eleventh Amendment is directed at a straw man,"
ante,
at 69. But plain text is the Man of Steel in a confrontation with
"background principle[s]" and" 'postulates which limit and
control,'"
ante, at 68, 72. An argument rooted in the text
of a constitutional provision may not be guaranteed of carrying the
day, but insubstantiality is not its failing. See,
e.
g., Monaghan, Our Perfect Constitution, 56 N. Y. U. L. Rev.
353, 383-384 (1981) ("For the purposes of
legal reasoning,
the binding quality of the constitutional text is itself incapable
of and not in need of further demonstration"); cf.
Bourjaily
v.
United States, 483 U. S. 171, 178 (1987)
(REHNQUIST, C. J.) ("It would be extraordinary to require
legislative history to
confirm the plain meaning of [Federal
Rule of Evidence] 104");
Garcia v.
United States,
469 U. S. 70, 75
(1984) (REHNQUIST, J.) ("[O]nly the most extraordinary showing of
contrary intentions from [the legislative history] would justify a
limitation on the 'plain meaning' of the statutory language"). This
is particularly true in construing the jurisdictional provisions of
Article III, which speak with a clarity not to be found in some of
the more opentextured provisions of the Constitution. See
National Mut. Ins. Co. v.
Tidewater Transfer Co.,
337 U. S. 582,
646-647 (1949) (Frankfurter, J., dissenting); Schauer, Easy Cases,
58 S. Cal. L. Rev. 399, 424 (1985) (noting the "seemingly plain
linguistic mandate" of the Eleventh Amendment). That the Court
thinks otherwise is an indication of just how far it has strayed
beyond the boundaries of traditional constitutional analysis.
117
more, permits a State to plead sovereign immunity to bar the
exercise of federal-question jurisdiction. See
id., at 9.
Although the Court invoked a principle of sovereign immunity to
cure what it took to be the Eleventh Amendment's anomaly of barring
only those state suits brought by noncitizen plaintiffs, the
Hans Court had no occasion to consider whether Congress
could abrogate that background immunity by statute. Indeed (except
in the special circumstance of Congress's power to enforce the
Civil War Amendments), this question never came before our Court
until
Union Gas, and any intimations of an answer in prior
cases were mere dicta. In
Union Gas the Court held that the
immunity recognized in
Hans had no constitutional status and
was subject to congressional abrogation. Today the Court overrules
Union Gas and holds just the opposite. In deciding how to
choose between these two positions, the place to begin is with
Hans's holding that a principle of sovereign immunity
derived from the common law insulates a State from federal-question
jurisdiction at the suit of its own citizen. A critical examination
of that case will show that it was wrongly decided, as virtually
every recent commentator has concluded.14 It follows that the
Court's further step today of constitutionalizing
Hans's
rule against abrogation by Congress compounds and immensely
magnifies the century-old mistake of
Hans itself and takes
its place with other historic examples of textually untethered
elevations of judicially derived rules to the status of inviolable
constitutional law.
A
The Louisiana plaintiff in
Hans held bonds issued by that
State, which, like virtually all of the Southern States, had issued
them in substantial amounts during the Reconstruction era to
finance public improvements aimed at stimulating
14 Professor Jackson has noted the "remarkabl[e] consisten[cy]"
of the scholarship on this point, Jackson, 98 Yale L. J., at 44, n.
179. See also n. 8,
supra.
118
industrial development. E. Foner, Reconstruction: America's
Unfinished Revolution 1863-1877, pp. 383-384 (1988); Gibbons, 83
Colum. L. Rev., at 1976-1977. As Reconstruction governments
collapsed, however, the postReconstruction regimes sought to
repudiate these debts, and the
Hans litigation arose out of
Louisiana's attempt to renege on its bond obligations.
Hans sued the State in federal court, asserting that the State's
default amounted to an impairment of the obligation of its
contracts in violation of the Contract Clause. This Court affirmed
the dismissal of the suit, despite the fact that the case fell
within the federal court's "arising under," or federal-question,
jurisdiction. Justice Bradley's opinion did not purport to hold
that the terms either of Article III or of the Eleventh Amendment
barred the suit, but that the ancient doctrine of sovereign
immunity that had inspired adoption of the Eleventh Amendment
applied to cases beyond the Amendment's scope and otherwise within
the federalquestion jurisdiction. Indeed, Bradley explicitly
admitted that "[i]t is true, the amendment does so read [as to
permit Hans's suit], and if there were no other reason or ground
for abating his suit, it might be maintainable."
Hans, 134
U. S., at 10. The Court elected, nonetheless, to recognize a
broader immunity doctrine, despite the want of any textual
manifestation, because of what the Court described as the anomaly
that would have resulted otherwise: the Eleventh Amendment
(according to the Court) would have barred a federal-question suit
by a noncitizen, but the State would have been subject to federal
jurisdiction at its own citizen's behest.
Id., at 10-11. The
State was accordingly held to be free to resist suit without its
consent, which it might grant or withhold as it pleased.
Hans thus addressed the issue implicated (though not
directly raised) in the preratification debate about the
CitizenState Diversity Clauses and implicitly settled by
Chisholm: whether state sovereign immunity was cognizable by
federal
119
courts on the exercise of federal-question jurisdiction.
According to
Hans, and contrary to
Chisholm, it was.
But that is all that
Hans held. Because no federal
legislation purporting to pierce state immunity was at issue, it
cannot fairly be said that
Hans held state sovereign
immunity to have attained some constitutional status immunizing it
from abrogation.15
Taking
Hans only as far as its holding, its vulnerability
is apparent. The Court rested its opinion on avoiding the supposed
anomaly of recognizing jurisdiction to entertain a citizen's
federal-question suit, but not one brought by a noncitizen. See
Hans, supra, at 10-11. There was, however, no such anomaly
at all. As already explained, federalquestion cases are not touched
by the Eleventh Amendment, which leaves a State open to
federal-question suits by citizens and noncitizens alike. If Hans
had been from Massachusetts the Eleventh Amendment would not have
barred his action against Louisiana.
Although there was thus no anomaly to be cured by
Hans,
the case certainly created its own anomaly in leaving federal
courts entirely without jurisdiction to enforce paramount federal
law at the behest of a citizen against a State that broke it. It
destroyed the congruence of the judicial power under Article III
with the substantive guarantees of the Constitution, and with the
provisions of statutes passed by Congress in the exercise of its
power under Article I: when a State injured an individual in
violation of federal law no federal forum could provide direct
relief. Absent an alternative process to vindicate federal law (see
Part IV;
infra) John Marshall saw just what the consequences
of this anomaly would be in the early Republic, and he took that
consequence as good evidence that the Framers could never have
intended such a scheme.
15 Indeed, as JUSTICE STEVENS suggests, there is language in
Hans suggesting that the Court was really construing the
Judiciary Act of 1875 rather than the Constitution. See
ante, at 84-87.
120
"Different States may entertain different opinions on the true
construction of the constitutional powers of congress. We know
that, at one time, the assumption of the debts contracted by the
several States, during the war of our Revolution, was deemed
unconstitutional by some of them .... States may legislate in
conformity to their opinions, and may enforce those opinions by
penalties. It would be hazarding too much to assert that the
judicatures of the States will be exempt from the prejudices by
which the legislatures and people are influenced, and will
constitute perfectly impartial tribunals. In many States the judges
are dependent for office and for salary on the will of the
legislature. The constitution of the United States furnishes no
security against the universal adoption of this principle. When we
observe the importance which that constitution attaches to the
independence of judges, we are the less inclined to suppose that it
can have intended to leave these constitutional questions to
tribunals where this independence may not exist." Co hens v.
Virginia, 6 Wheat., at 386-387.
And yet that is just what
Hans threatened to do.
How such a result could have been threatened on the basis of a
principle not so much as mentioned in the Constitution is difficult
to understand. But history provides the explanation. As I have
already said,
Hans was one episode in a long story of debt
repudiation by the States of the former Confederacy after the end
of Reconstruction. The turning point in the States' favor came with
the Compromise of 1877, when the Republican Party agreed
effectively to end Reconstruction and to withdraw federal troops
from the South in return for Southern acquiescence in the decision
of the Electoral Commission that awarded the disputed 1876
presidential election to Rutherford B. Hayes. See J. Orth, Judicial
Power of the United States: The Eleventh Amendment in American
History 53-57 (1987); Gibbons,
supra, at 1978-
121
1982; see generally Foner, Reconstruction, at 575-587
(describing the events of 1877 and their aftermath). The troop
withdrawal, of course, left the federal judiciary "effectively
without power to resist the rapidly coalescing repudiation
movement." Gibbons, 83 Colum. L. Rev., at 1981. Contract Clause
suits like the one brought by Hans thus presented this Court with
"a draconian choice between repudiation of some of its most
inviolable constitutional doctrines and the humiliation of seeing
its political authority compromised as its judgments met the
resistance of hostile state governments."
Id., at 1974.
Indeed, Louisiana's brief in
Hans unmistakably bore witness
to this Court's inability to enforce a judgment against a
recalcitrant State: "The solemn obligation of a government arising
on its own acknowledged bond would not be enhanced by a judgment
rendered on such bond. If it either could not or would not make
provision for paying the bond, it is probable that it could not or
would not make provision for satisfying the judgment." Brief for
Respondent in No.4, O. T. 1889, p. 25. Given the likelihood that a
judgment against the State could not be enforced, it is not wholly
surprising that the
Hans Court found a way to avoid the
certainty of the State's contempt.16
16 See Gibbons, 83 Colum. L. Rev., at 2000 ("Without weakening
the contract clause, which over the next two decades the Fuller
Court might need both in its fight against government regulation of
business and as a weapon against defaulting local governments, the
justices needed a way to let the South win the repudiation war. The
means Bradley chose was to rewrite the eleventh amendment and the
history of its adoption"). The commentators' contention that this
Court's inability to enforce the obligation of Southern States to
pay their debts influenced the result in
Hans v.
Louisiana, 134
U. S. 1 (1890), is substantiated by three anomalies of this
Court's sovereign immunity jurisprudence during that period. First,
this Court held in 1885 that Virginia's sovereign immunity did not
allow it to abrogate its bonds.
Virginia Coupon Cases,
114 U. S. 269.
The difference from the situation in other States, however, was
that Virginia had made its bond coupons receivable in payment of
state taxes; "[u]nder these circumstances federal courts did not
need to rely on the political branches of government to enforce
their orders but could protect creditors by a
122
So it is that history explains, but does not honor,
Hans.
The ultimate demerit of the case centers, however, not on its
politics but on the legal errors on which it restedP Before
judgment that their taxes had in fact been paid. In these cases
the Eleventh Amendment faded into the background." J. Orth,
Judicial Power of the United States: The Eleventh Amendment in
American History 9 (1987); see generally
id., at 90-109.
Second, at the same time that this Court was articulating broad
principles of immunity for States, we refused to recognize similar
immunity for municipalities and similar state political
subdivisions. See,
e. g., Lincoln County v.
Luning,
133 U. S. 529
(1890). Professor Orth suggests that this seeming inconsistency is
traceable to the enforcement difficulties arising from the
withdrawal of federal troops from the South. "It just so happened,"
he points out, "that counties had tended to issue bonds in the
West, while in the South, states had usually done the job. Property
in the form of bonds could be defended in the mid-West and West,
but similar property in the South had to be sacrificed to the
higher politics of the Compromise of 1877." Orth,
supra, at
111. Finally, Professor Orth attributes this Court's recognition
(or revival) of the
Ex parte Young, 209 U. S. 123 (1908),
action as a way around state sovereign immunity to the fact that,
by 1908, "the problem of repudiated Southern bonds was clearly a
specter from an increasingly distant past." Orth,
supra, at
128. See also Gibbons,
supra, at 2002 (arguing that the
Court's unanimous revival of its power to grant equitable relief
against state officers in
Pennoyer v.
McConnaughy,
140 U. S. 1 (1891),
was made possible by the fact that the case "did not involve
Southern State bonds"). I am reluctant, to be sure, to ascribe
these legal developments to a single, extralegal cause, and at
least one commentator has suggested that the Southern debt crisis
may not have been the only factor driving the Court's Eleventh
Amendment jurisprudence during this period. See generally Collins,
The Conspiracy Theory of the Eleventh Amendment, 88 Colum. L. Rev.
212 (1988) (reviewing Orth). But neither would I ignore the pattern
of the cases, which tends to show that the presence or absence of
enforcement difficulties significantly influenced the path of the
law in this area. See
id., at 243 (acknowledging that "[i]t
is perfectly conceivable that Compromise-related politics exerted
their influence at the marginin doubtful cases in which the Court
might have gone either way").
17Today's majority condemns my attention to
Hans's
historical circumstances as "a disservice to the Court's
traditional method of adjudication."
Ante, at 69. The point,
however, is not that historical circumstance may undermine an
otherwise defensible decision; on the contrary, it is just because
Hans is so utterly indefensible on the merits of its legal
analysis
123
considering those errors, it is necessary to address the Court's
contention that subsequent cases have read into
Hans what
was not there to begin with, that is, a background principle of
sovereign immunity that is constitutional in stature and therefore
unalterable by Congress.
B
The majority does not dispute the point that
Hans v.
Louisiana, 134
U. S. 1 (1890), had no occasion to decide whether Congress
could abrogate a State's immunity from federalquestion suits. The
Court insists, however, that the negative answer to that question
that it finds in
Hans and subsequent opinions is not "mere
obiter dicta, but rather ... the well-established rationale
upon which the Court based the results of its earlier decisions."
Ante, at 66-67. The exact rationale to which the majority
refers, unfortunately, is not easy to discern. The Court's opinion
says, immediately after its discussion of
stare decisis,
that "[f]or over a century, we have grounded our decisions in the
oft-repeated understanding of state sovereign immunity as an
essential part of the Eleventh Amendment."
Ante, at 67. This
cannot be the "rationale," though, because this Court has
repeatedly acknowledged that the Eleventh Amendment standing
alone
that one is forced to look elsewhere in order to understand how
the Court could have gone so far wrong. Nor is there anything new
or remarkable in taking such a look, for we have sought similar
explanations in other cases. In
Puerto Rico v.
Branstad, 483
U. S. 219 (1987), for example, we suggested that the Court's
holding in
Kentucky v.
Dennison, 24 How. 66 (1861),
that "the Federal Government, under the Constitution, has no power
to impose on a State officer, as such, any duty whatever, and
compel him to perform it,"
id., at 107, was influenced by
"the looming shadow of a Civil War,"
Branstad, supra, at
227, and we ultimately determined that
Dennison should be
overruled, 483 U. S., at 230. The author of the Court's opinion
today joined that analysis, as did the other Members of today's
majority who were then on the Court. See
ibid. (O'CONNOR,
J., concurring in part and concurring in judgment) (joining the
relevant portion of the majority opinion);
id., at 231
(SCALIA, J., concurring in part and concurring in judgment)
(same).
124
cannot bar a federal-question suit against a State brought by a
state citizen. See,
e. g., Edelman v.
Jordan,
415 U. S. 651,
662 (1974) (acknowledging that "the Amendment by its terms does not
bar suits against a State by its own citizens").18 Indeed, as I
have noted, Justice Bradley's opinion in
Hans conceded that
Hans might successfully have pursued his claim "if there were no
other reason or ground [other than the Amendment itself] for
abating his suit." 134 U. S., at 10. The
Hans Court, rather,
held the suit barred by a nonconstitutional common-law immunity.
See
supra, at 116-117.
The "rationale" which the majority seeks to invoke is, I think,
more nearly stated in its quotation from
Principality of
Monaco v.
Mississippi, 292 U. S. 313, 321-323
(1934). There, the Court said that "we cannot rest with a mere
literal application of the words of § 2 of Article III, or assume
that the letter of the Eleventh Amendment exhausts the restrictions
upon suits against non-consenting States."
Id., at 322.19
This statement certainly is true to
Hans, which
18 See also
Georgia Railroad &
Banking Co. v.
Redwine, 342
U. S. 299, 304 (1952) (same);
Fitts v.
McGhee,
172 U. S. 516,
524 (1899) (same). Even JUSTICE SCALIA'S dissent in
Union
Gas, the reasoning of which the majority adopts today,
acknowledged that its view of sovereign immunity depended upon
"some other constitutional principle beyond the immediate text of
the Eleventh Amendment." 491 U. S., at 31 (opinion concurring in
part and dissenting in part). To the extent that our prior cases do
refer to
Hans immunity as part of the Eleventh Amendment,
they can only be referring to JUSTICE STEVENS'S "other" Eleventh
Amendment.
Hess v.
Port Authority Trans-Hudson
Corporation, 513
U. S. 30, 53 (1994) (STEVENS, J., concurring); see also
Pennsylvania v.
Union Gas Co., supra, at 23-29
(STEVENS, J., concurring) (same).
19 See also
Union Gas, 491 U. S., at 31-32 (SCALIA, J.,
concurring in part and dissenting in part) ("What we said in
Hans was, essentially, that the Eleventh Amendment was
important not merely for what it said but for what it reflected: a
consensus that the doctrine of sovereign immunity, for States as
well as for the Federal Government, was part of the understood
background against which the Constitution was adopted, and which
its jurisdictional provisions did not mean to sweep away");
Nevada v.
Hall, 440 U. S., at 440 (REHNQUIST, J.,
dissenting) (interpreting
Monaco as
125
clearly recognized a pre-existing principle of sovereign
immunity, broader than the Eleventh Amendment itself, that will
ordinarily bar federal-question suits against a nonconsenting
State. That was the "rationale" which was sufficient to decide
Hans and all of its progeny prior to
Union Gas. But
leaving aside the indefensibility of that rationale, which I will
address further below, that was as far as it went.
The majority, however, would read the "rationale" of
Hans
and its line of subsequent cases as answering the further question
whether the "postulate" of sovereign immunity that "limit[s] and
control[s]" the exercise of Article III jurisdiction,
Monaco,
supra, at 322, is constitutional in stature and therefore
unalterable by Congress. It is true that there are statements in
the cases that point toward just this conclusion. See,
e. g.,
Pennhurst State School and Hospital v.
Halderman,
465 U. S. 89, 98
(1984) ("In short, the principle of sovereign immunity is a
constitutional limitation on the federal judicial power established
in Art. III");
Ex parte New York,
256 U. S. 490, 497 (1921)
("[T]he entire judicial power granted by the Constitution does not
embrace authority to entertain a suit brought by private parties
against a State without consent given ... "). These statements,
however, are dicta in the classic sense, that is, sheer speculation
about what would happen in cases not before the court.20 But
this
"rel[ying] on precepts underlying but not explicit in Art. III
and the Eleventh Amendment").
20 There are good reasons not to take many of these statements
too seriously. Some are plainly exaggerated; for example, the
suggestion in
Great Northern Life Ins. Co. v.
Read,
322 U. S. 47, 51
(1944), that "[a] state's freedom from litigation was established
as a constitutional right through the Eleventh Amendment" obviously
ignores a State's liability to suit by other States, see,
e. g.,
South Dakota v.
North Carolina, 192 U. S. 286 (1904), and
by the National Government, see,
e. g., United States v.
Texas, 143 U.
S. 621 (1892). See also
Nevada v.
Hall, supra, at
420, n. 19 (noting that "the Eleventh Amendment has not accorded
the States absolute sovereign immunity in federal-court actions").
Similarly, statements such as in
Ex parte New York, 256 U.
S., at 497, that "the entire judicial
126
is not the only weakness of these statements, which are
counterbalanced by many other opinions that have either stated the
immunity principle without more, see,
e. g., Dellmuth v.
Muth, 491 U.
S. 223, 229, n. 2 (1989) (noting that "an unconsenting State is
immune from liability for damages in a suit brought in federal
court by one of its own citizens," without suggesting that the
immunity was unalterable by Congress),21 or have suggested that the
Hans immunity is not of constitutional stature. The very
language quoted by the majority from
Monaco, for example,
likens state sovereign immunity to other "essential postulates"
such as the rules of justiciability. 292 U. S., at 322. Many of
those rules, as JUSTICE STEVENS points out, are prudential in
nature and therefore not unalterable by Congress. See
ante,
at 88-90.22 More generally, the proponents of the Court's theory
have repeatedly referred to state sovereign immunity as a
"background principle,"
ante, at 72, "postulate,"
Nevada v.
Hall, 440 U. S., at 437 (REHNQUIST, J.,
dissenting), or "implicit limitation,"
Welch v.
Texas
Dept. of Highways and Public Transp., 483 U. S. 468, 496 (1987)
(SCALIA, J., concurring in part and concurring in judgment), and as
resting on the "inherent nature of sovereignty,"
Great Northern
Life Ins. Co. v.
Read, 322 U. S. 47, 51 (1944),
rather than any explicit con-
power granted by the Constitution does not embrace authority to
entertain a suit brought by private parties against a State without
consent given" should not necessarily be taken as affirming that
Article III itself incorporated a constitutional immunity doctrine.
How else to explain Justice Harlan's concurring opinion in
Hans, which stated, practically in the same breath, that "a
suit directly against a State by one of its own citizens is not one
to which the judicial power of the United States extends," and that
Chisholm "was based upon a sound interpretation of the
Constitution as that instrument then was"? 134 U. S., at 21.
21 See also Georgia Railroad & Banking Co. v. Redwine,
supra, at 304; Fitts v. McGhee, supra, at 524-525.
22 See also
Warth v.
Seldin, 422 U. S. 490, 501 (1975)
("Congress may grant an express right of action to persons who
otherwise would be barred by prudential standing rules"); E.
Chemerinsky, Federal Jurisdiction § 2.1, pp. 42-43 (2d ed.
1994).
127
stitutional provision.23 But whatever set of quotations one may
prefer, taking heed of such jurisprudential creations in assessing
the contents of federal common law is a very different thing from
reading them into the Founding Document itself.
The most damning evidence for the Court's theory that
Hans rests on a broad rationale of immunity unalterable by
Congress, however, is the Court's proven tendency to disregard the
post-Hans dicta in cases where that dicta would have
mattered.24 If it is indeed true that "private suits against States
[are] not permitted under Article III (by virtue of the
understanding represented by the Eleventh Amendment),"
Union
Gas, 491 U. S., at 40 (SCALIA, J., concurring in part and
dissenting in part), then it is hard to see how a State's sovereign
immunity may be waived any more than it may be abrogated by
Congress. See,
e. g., Atascadero State Hospital v.
Scanlon, 473 U. S., at 238 (recognizing that immunity may be
waived). After all, consent of a party is in all other instances
wholly insufficient to create subject-
23 Indeed, THE CHIEF JUSTICE could hardly have been clearer in
Fry v.
United States, 421 U. S. 542 (1975),
where he explained that "[t]he Court's decision in
Hans v.
Louisiana, 134
U. S. 1 (1890), offers impressive authority for the principle
that the States as such were regarded by the Framers of the
Constitution as partaking of many attributes of sovereignty quite
apart from the provisions of the Tenth Amendment ....
"As it was not the Eleventh Amendment by its terms which
justified the result in
Hans, it is not the Tenth Amendment
by its terms that prohibits congressional action which sets a
mandatory ceiling on the wages of all state employees. Both
Amendments are simply examples of the understanding of those who
drafted and ratified the Constitution that the States were
sovereign in many respects, and that although their legislative
authority could be superseded by Congress in many areas where
Congress was competent to act, Congress was nonetheless not free to
deal with a State as if it were just another individual or business
enterprise subject to regulation."
Id., at 556-557
(dissenting opinion).
24 Indeed, in
Nevada v.
Hall, supra, at 439, THE
CHIEF JUSTICE complained in dissent that the same statements upon
which he relies today had been "dismiss[ed] ... as dicta."
128
matter jurisdiction where it would not otherwise exist. See,
e. g., Sosna v.
Iowa, 419 U. S. 393, 398
(1975); see also E. Chemerinsky, Federal Jurisdiction § 7.6, p. 405
(2d ed. 1994) (noting that "allowing such waivers seems
inconsistent with viewing the Eleventh Amendment as a restriction
on the federal courts' subject matter jurisdiction"). Likewise, the
Court's broad theory of immunity runs doubly afoul of the appellate
jurisdiction problem that I noted earlier in rejecting an
interpretation of the Eleventh Amendment's text that would bar
federal-question suits. See
supra, at 109-116. If "the whole
sum of the judicial power granted by the Constitution to the United
States does not embrace the authority to entertain a suit brought
by a citizen against his own State without its consent,"
Duhne v.
New Jersey, 251 U. S. 311, 313
(1920), and if consent to suit in state court is not sufficient to
show consent in federal court, see
Atascadero, supra, at
241, then Article III would hardly permit this Court to exercise
appellate jurisdiction over issues of federal law arising in
lawsuits brought against the States in their own courts. We have,
however, quite rightly ignored any
post-Hans dicta in that
sort of case and exercised the jurisdiction that the plain text of
Article III provides. See,
e. g., Fulton Corp. v.
Faulkner, 516
U. S. 325 (1996); see also
supra, at 113-114.
If these examples were not enough to distinguish
Hans's
rationale of a pre-existing doctrine of sovereign immunity from the
post-Hans dicta indicating that this immunity is
constitutional, one would need only to consider a final set of
cases: those in which we have assumed, without deciding, that
congressional power to abrogate state sovereign immunity exists
even when § 5 of the Fourteenth Amendment has no application. A
majority of this Court was willing to make that assumption in
Hoffman v.
Connecticut Dept. of Income Maintenance,
492 U. S. 96, 101
(1989) (plurality opinion), in
Welch v.
Texas Dept. of
Highways and Public Transp., supra, at 475 (plurality opinion),
and in
County of Oneida v.
Oneida Indian Nation of N.
Y., 470 U. S.
226, 252
129
(1985).25 Although the Court in each of these cases failed to
find abrogation for lack of a clear statement of congressional
intent, the assumption that such power was available would hardly
have been permissible if, at that time, today's majority's view of
the law had been firmly established. It is one thing, after all, to
avoid an open constitutional question by assuming an answer and
rejecting the claim on another ground; it is quite another to avoid
a settled rationale (an emphatically settled one if the majority is
to be taken seriously) only to reach an issue of statutory
construction that the Court would otherwise not have to decide.
Even worse, the Court could not have been unaware that its decision
of cases like
Hoffman and
Welch, on the ground that
the statutes at issue lacked a plain statement of intent to
abrogate, would invite Congress to attempt abrogation in statutes
like the Indian Gaming Regulatory Act, 25 U. S. C. § 2701
et
seq. (IGRA). Such a course would have been wholly irresponsible
if, as the majority now claims, the constitutionally unalterable
nature of
Hans immunity had been well established for a
hundred years.
Hans itself recognized that an "observation [in a prior
case that] was unnecessary to the decision, and in that sense
extra judicial ... ought not to outweigh" present reasoning
that points to a different conclusion. 134 U. S., at 20. That is
good advice, which Members of today's majority have been willing to
heed on other occasions. See,
e. g., Kokkonen v.
Guardian
Life Ins. Co., 511 U. S. 375, 379 (1994)
("It is to the holdings of our cases, rather than their dicta, that
we
25 In
Hoffman, one Member of the four-Justice plurality
expressly disavowed the plurality's assumption that Congress could
abrogate the States' immunity by making its intent to do so clear.
See 492 U. S., at 105 (O'CONNOR, J., concurring). The four
dissenters, however, not only assumed that Congress had the power
to abrogate but found that it had done so. See
id., at 106
(Marshall, J., dissenting). Likewise, in
Welch, the
four-Justice plurality was joined by four dissenters who insisted
upon a congressional power of abrogation. See 483 U. S., at 519
(Brennan, J., dissenting).
130
must attend");
Bennis v.
Michigan, 516 U. S. 442, 450
(1996). But because the Court disregards this norm today, I must
consider the soundness of
Hans's original recognition of a
background principle of sovereign immunity that applies even in
federal-question suits, and the reasons that counsel against the
Court's extension of
Hans's holding to the point of
rendering its immunity unalterable by Congress.
III
Three critical errors in
Hans weigh against
constitutionalizing its holding as the majority does today. The
first we have already seen: the
Hans Court misread the
Eleventh Amendment, see
supra, at 118-123. It also
misunderstood the conditions under which common-law doctrines were
received or rejected at the time of the founding, and it
fundamentally mistook the very nature of sovereignty in the young
Republic that was supposed to entail a State's immunity to
federal-question jurisdiction in a federal court. While I would
not, as a matter of
stare decisis, overrule
Hans
today, an understanding of its failings on these points will show
how the Court today simply compounds already serious error in
taking
Hans the further step of investing its rule with
constitutional inviolability against the considered judgment of
Congress to abrogate it.
A
There is and could be no dispute that the doctrine of sovereign
immunity that
Hans purported to apply had its origins in the
"familiar doctrine of the common law,"
The Siren, 7 Wall.
152, 153 (1869), "derived from the laws and practices of our
English ancestors,"
United States v.
Lee, 106 U. S. 196, 205
(1882).26 Although statutes came to affect its impor-
26 The Court seeks to disparage the common-law roots of the
doctrine, and the consequences of those roots which I outline
infra, at 132-142 and 159-164, by asserting that
Hans
"found its roots not solely in the common law of England, but in
the much more fundamental '''jurisprudence in all
131
tance in the succeeding centuries, the doctrine was never
reduced to codification, and Americans took their understanding of
immunity doctrine from Blackstone, see 3 W. Blackstone,
Commentaries on the Laws of England, ch. 17 (1768). Here, as in the
mother country, it remained a common-law rule. See generally Jaffe,
77 Harv. L. Rev., at 2-19; Borchard, Governmental Responsibility in
Tort, VI, 36 Yale L. J. 1, 17-41 (1926).
This fact of the doctrine's common-law status in the period
covering the founding and the later adoption of the Eleventh
Amendment should have raised a warning flag to the
Hans
Court and it should do the same for the Court today. For although
the Court has persistently assumed that the common law's presence
in the minds of the early Framers must
civilized nations."'"
Ante, at 69 (quoting
Hans,
134 U. S., at 17). The
Hans Court, however, relied
explicitly on the ground that a suit against the State by its own
citizen was "not known ... at the common law" and was not among the
departures from the common law recognized by the Constitution.
Id., at 15. Moreover,
Hans explicitly adopted the
reasoning of Justice Iredell's dissent in
Chisholm, see 134
U. S., at 18-19, and that opinion could hardly have been clearer in
relying exclusively on the common law. "The only principles of law
... which can affect this case," Justice Iredell wrote, "[are]
those that are derived from what is properly termed 'the common
law,' a law which I presume is the ground-work of the laws in every
State in the Union, and which I consider, so far as it is
applicable to the peculiar circumstances of the country, and where
no special act of Legislation controuls it, to be in force in each
State, as it existed in England, (unaltered by any statute) at the
time of the first settlement of the country." 2 Dall., at 435
(emphasis deleted). See also
Employees of Dept. of Public Health
and Welfare of Mo. v.
Department of Public Health and
Welfare of Mo., 411 U. S. 279, 288 (1973)
(Marshall, J., concurring in result) ("Sovereign immunity is a
common-law doctrine that long predates our Constitution and the
Eleventh Amendment, although it has, of course, been carried
forward in our jurisprudence"); R. Watkins, The State as a Party
Litigant 51-52 (1927) ("It thus seems probable that the doctrine of
state immunity was accepted rather as an existing fact by the
people of the states, than adopted as a theory. It was a matter of
universal practice, and was accepted from the mother country along
with the rest of the common law of England applicable to our
changed state and condition").
132
have functioned as a limitation on their understanding of the
new Nation's constitutional powers, this turns out not to be so at
all. One of the characteristics of the founding generation, on the
contrary, was its joinder of an appreciation of its immediate and
powerful common-law heritage with caution in settling that
inheritance on the political systems of the new Republic. It is not
that the Framers failed to see themselves to be children of the
common law; as one of their contemporaries put it, "[w]e live in
the midst of the common law, we inhale it at every breath, imbibe
it at every pore ... [and] cannot learn another system of laws
without learning at the same time another language." P. Du Ponceau,
A Dissertation on the Nature and Extent of Jurisdiction of Courts
of the United States 91 (1824). But still it is clear that the
adoption of English common law in America was not taken for
granted, and that the exact manner and extent of the common law's
reception were subject to careful consideration by courts and
legislatures in each of the new StatesP An examination of the
States' experience with common-law reception will shed light on
subsequent theory and practice at the national level, and
demonstrate that our history is entirely at odds with
Hans's
resort to a common-law principle to limit the Constitution's
contrary text.
1
This American reluctance to import English common law wholesale
into the New World is traceable to the early colonial period. One
scholar of that time has written that "[t]he
27 See,
e. g., Hall, The Common Law: An Account of
its Reception in the United States, 4 Vand. L. Rev. 791, 796 (1951)
("Whether we emphasize the imitation by the colonists of the
practices of English local courts or whether we say the early
colonial judges were really applying their own common-sense ideas
of justice, the fact remains that there was an incomplete
acceptance in America of English legal principles, and this
indigenous law which developed in America remained as a significant
source of law after the Revolution").
133
process which we may call the reception of the English common
law by the colonies was not so simple as the legal theory would
lead us to assume. While their general legal conceptions were
conditioned by, and their terminology derived from, the common law,
the early colonists were far from applying it as a technical
system, they often ignored it or denied its subsidiary force, and
they consciously departed from many of its most essential
principles." P. Reinsch, English Common Law in the Early American
Colonies 58 (1899).28 For a variety of reasons, including the
absence of trained lawyers and judges, the dearth of law books, the
religious and ideological commitments of the early settlers, and
the novel conditions of the New World, the colonists turned to a
variety of other sources in addition to principles of common
law.29
It is true that, with the development of colonial society and
the increasing sophistication of the colonial bar, English common
law gained increasing acceptance in colonial practice. See
id., at 7-8; Hall, The Common Law: An Account of its
Reception in the United States, 4 Vand. L. Rev. 791,
28 See also Jones, The Common Law in the United States: English
Themes and American Variations, in Political Separation and Legal
Continuity 95-98 (R. Jones ed. 1976) (Jones) (acknowledging that a
true common-law system had not yet developed in the early colonial
period); Stoebuck, Reception of English Common Law in the American
Colonies, 10 Wm. & Mary L. Rev. 393, 406-407 (1968) (same).
29 See,
e. g., Reinsch, English Common Law in the
Early American Colonies, at 7 (finding that the colonists developed
their own "rude, popular, summary" system of justice despite
professed adhesion to the common law); C. Rilkey, Legal Development
in Colonial Massachusetts, 1630-1686, p. 69 (1967) (emphasizing
Biblical and indigenous sources); Radin, The Rivalry of Common-Law
and Civil Law Ideas in the American Colonies, in 2 Law: A Century
of Progress 404, 407-411 (1937) (emphasizing natural law and Roman
law); Goebel, King's Law and Local Custom in Seventeenth Century
New England, 31 Colum. L. Rev. 416 (1931) (finding that the early
settlers imported the law and procedure of the borough and manor
courts with which they had been familiar in England).
134
797 (1951).30 But even in the late colonial period, Americans
insisted that
"the whole body of the common law ... was not transplanted, but
only so much as was applicable to the colonists in their new
relations and conditions. Much of the common law related to matters
which were purely local, which existed under the English political
organization, or was based upon the triple relation of king, lords
and commons, or those peculiar social conditions, habits and
customs which have no counterpart in the New World. Such portions
of the common law, not being applicable to the new conditions of
the colonists, were never recognised as part of their
jurisprudence." Dale, The Adoption of the Common Law by the
American Colonies, 30 Am. L. Reg. 553, 554 (1882).31
The result was that "the increasing influx of common-law
principles by no means obliterated the indigenous systems which had
developed during the colonial era and that there existed important
differences in law in action on the two sides of the Atlantic."
Hall,
supra, at 797.
30 See also Stoebuck,
supra, at 411-412 (indicating that
the Colonies became significantly more receptive to the common law
after 1700, in part because of a British desire to regularize
colonial legal systems).
31 See also Jones 98 ("The selective nature of the reception is
evident in any examination of the state of law in the colonies in
the years immediately preceding the Revolution"). An example is
Trott's law, adopted by South Carolina in 1712, which declared
which English statutes were in force in the Colony. Many laws of
England, Trott conceded, were "altogether useless" in South
Carolina "by reason of the different way of agriculture and the
differing productions of the earth of this Province from that of
England"; others were "impracticable" because of differences in
institutions. L. Friedman, A History of American Law 90-93 (2d ed.
1985); see also C. Warren, History of the American Bar 122-123
(1911) (quoting North Carolina statute, passed in 1715, providing
that the common law would be in force" 'so far as shall be
compatible with our way of living and trade' ").
135
Understandably, even the trend toward acceptance of the common
law that had developed in the late colonial period was imperiled by
the Revolution and the ultimate break between the Colonies and the
old country. Dean Pound has observed that, "[f]or a generation
after the Revolution, ... political conditions gave rise to a
general distrust of English law .... The books are full of
illustrations of the hostility toward English law simply because it
was English which prevailed at the end of the eighteenth and in the
earlier years of the nineteenth century." R. Pound, The Formative
Era of American Law 7 (1938); see also C. Warren, A History of the
American Bar 224-225 (1911) (noting a "prejudice against the system
of English Common Law" in the years following the Revolution).
James Monroe went so far as to write in 1802 that "'the application
of the principles of the English common law to our constitution'"
should be considered "'good cause for impeachment.'" Letter from
James Monroe to John Breckenridge, Jan. 15, 1802 (quoted in 3 A.
Beveridge, The Life of John Marshall: Conflict and Construction
1800-1815, p. 59 (1919)).32 Nor was anti-English senti-
32 American hostility to things English was so pronounced for a
time that Pennsylvania, New Jersey, and Kentucky proscribed by
statute the citation of English decisions in their courts, and the
New Hampshire courts promulgated a rule of court to the same
effect. See Hall, 4 Vand. L. Rev., at 806; Warren,
supra, at
227. This hostility may appear somewhat paradoxical in view of the
colonists' frequent insistence during the revolutionary crisis that
they were entitled to common-law rights. See,
e. g.,
First Continental Congress Declaration and Resolves (1774), in
Documents Illustrative of the Formation of the Union of the
American States, H. R. Doc. No. 398, 69th Cong., 1st Sess., 1, 3
(C. Tansill ed. 1927) ("That the respective colonies are
entitled to the common law of England"). In this context, however,
the colonists were referring "not to the corpus of English case-law
doctrine but to such profoundly valued common law procedures as
trial by jury and the subjection of governmental power to what John
Locke had called the 'standing laws,'" such as Magna Carta, the
Petition of Right, the Bill of Rights of 1689, and the Act of
Settlement of 1701. Jones 110; see also Jay, Origins of Federal
Common Law: Part Two, 133 U. Pa. L. Rev. 1231, 1256 (1985) (Jay II)
(noting that "Antifederalists
136
ment the only difficulty; according to Dean Pound, "[s]ocial and
geographical conditions contributed also to make the work of
receiving and reshaping the common law exceptionally difficult."
Pound,
supra, at 7.
The consequence of this anti-English hostility and awareness of
changed circumstances was that the independent States continued the
colonists' practice of adopting only so much of the common law as
they thought applicable to their local conditions.33 As Justice
Story explained, "[t]he com-
used the term common law to mean the great rights associated
with due process"). The cardinal principles of this common-law
vision were parliamentary supremacy and the rule of law, conceived
as the axiom that "all members of society, government officials as
well as private persons, are equally responsible to the law and ...
'equally amenable to the jurisdiction of ordinary tribunals.'''
Jones 128-129 (quoting A. Dicey, Introduction to Study of the Law
of Constitution 192 (9th ed. 1939)). It is hard to imagine that the
doctrine of sovereign immunity, so profoundly at odds with both
these cardinal principles, could have been imported to America as
part of this more generalized common-law vision.
33 See,
e. g., Conner v.
Shepherd, 15 Mass. 164
(1818) (rejecting English common-law rule regarding assignment of
dower rights as inapplicable to the state and condition of land in
Massachusetts);
Parker &
Edgarton v.
Foote, 19 Wend. 309, 318 (N. Y. 1838) (rejecting English
rule entitling a landowner to damages for the stopping of his
lights; the court noted that "[i]t cannot be necessary to cite
cases to prove that those portions of the common law of England
which are hostile to the spirit of our institutions, or which are
not adapted to the existing state of things in this country, form
no part of our law");
Fitch v.
Brainerd, 2 Conn. 163,
189 (1805) (accepting English common-law rule barring married woman
from disposing of her real estate by will, and observing that "it
long since became necessary ... to make [the English common law]
our own, by practical
adoption-with such exceptions as a
diversity of circumstances, and the incipient customs of our own
country, required") (emphasis in original);
Martin v.
Bigelow, 2 Aiken 184 (Vt. 1827) (declaring English common
law as to stream rights inappropriate for conditions of Vermont
waterways);
Hall v.
Smith, 1 Bay 330, 331 (S. C. Sup.
Ct. 1793) (refusing to apply strict English rules regarding
promissory notes as unsuited to the "local situation of
Carolina"). See also Hall,
supra, at 805 ("[A] review
of the cases shows that no matter what the wording of the reception
statute or constitutional provision of the particular state, the
rule developed, which was
137
mon law of England is not to be taken in all respects to be that
of America. Our ancestors brought with them its general principles,
and claimed it as their birthright; but they brought with them and
adopted only that portion which was applicable to their situation."
Van Ness v.
Pacard, 2 Pet. 137, 144 (1829). In 1800,
John Marshall had expressed the similar view that "our ancestors
brought with them the laws of England, both statute & common
law as existing at the settlement of each colony, so far as they
were applicable to our situation." Letter from John Marshall to St.
George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A, at 1326,
1327. Accordingly, in the period following independence,
"[l]egislatures and courts and doctrinal writers had to test the
common law at every point with respect to its applicability to
America." Pound,
supra, at 20; see also Jones 103 (observing
that "suitab[ility] to local institutions and conditions" was
"incomparably the most important" principle of reception in the new
States).
2
While the States had limited their reception of English common
law to principles appropriate to American conditions, the 1787
draft Constitution contained no provision for adopting the common
law at all. This omission stood in sharp contrast to the state
constitutions then extant, virtually all of which contained
explicit provisions dealing with common-law reception. See n. 55,
infra. Since the experience in the States set the stage for
thinking at the national level, see generally G. Wood, Creation of
the American Republic, 1776-1787, p. 467 (1969) (Wood), this
failure to address the notion of common-law reception could not
have been inadvertent. Instead, the Framers chose to recognize only
particular common-law concepts, such as the writ of ha-
sooner or later to be repeated in practically every American
jurisdiction, that only those principles of the common law were
received which were applicable to the local situation").
138
beas corpus, U. S. Const., Art. I, § 9, cl. 2, and the
distinction between law and equity, U. S. Const., Arndt. 7, by
specific reference in the constitutional text. See 1 J. Goebel,
Oliver Wendell Holmes Devise History of the Supreme Court of the
United States, Antecedents and Beginnings to 1801, pp. 229230
(1971).34 This approach reflected widespread agreement that
ratification would not itself entail a general reception of the
common law of England. See Letter from John Marshall to St. George
Tucker, Nov. 27,1800, reprinted in Jay II, App. A, at 1326 ("I do
not believe one man can be found" who maintains "that the common
law of England has ... been adopted as the common law of America by
the Constitution of the United States"); Jay II, at 1255 (noting
that the use of the term "laws" in Article III "could not have been
meant to accomplish a general reception of British common
law").
Records of the ratification debates support Marshall's
understanding that everyone had to know that the new Constitution
would not draw the common law in its train. Antifederalists like
George Mason went so far as to object that
34 See also Jones 123-124 (noting that the common-law
institutions of habeas corpus and jury trial were "not merely
received as ordinary law," but rather "received by [specific
textual provisions] of the Constitution itself, as part of the
supreme law of the land"). Sovereign immunity, of course, was not
elevated to constitutional status in this way; such immunity thus
stands on the same footing as any other common-law principle which
the Framers refused to place beyond the reach of legislative
change. That such principles were and are subject to legislative
alteration is confirmed by our treatment of other forms of
common-law immunities, such as the immunity enjoyed under certain
circumstances by public officials.
Butz v.
Economou,
438 U. S. 478,
508 (1978) (officer immunity is derived from the common law);
Imbler v.
Pachtman, 424 U. S. 409, 421 (1976)
(same). In this context, "our immunity decisions have been informed
by the common law" only "in the absence of explicit ...
congressional guidance."
Nixon v.
Fitzgerald,
457 U. S. 731,
747 (1982). See generally
ante, at 87-88 (STEVENS, J.,
dissenting); Jackson, 98 Yale L. J., at 75-104. Surely no one would
deny Congress the power to abrogate those immunities if it should
so choose.
139
under the proposed Constitution the people would not be "secured
even in the enjoyment of the benefit of the common law." Mason,
Objections to This Constitution of Government, in 2 Records of the
Federal Convention of 1787, p. 637 (M. Farrand ed. 1911) (Farrand);
see also 3 Elliot's Debates 446-449 (Patrick Henry, Virginia
Convention). In particular, the Antifederalists worried about the
failure of the proposed Constitution to provide for a reception of
"the great rights associated with due process" such as the right to
a jury trial, Jay II, at 1256, and they argued that "Congress's
powers to regulate the proceedings of federal courts made the fate
of these common-law procedural protections uncertain,"
id.,
at 1257.35 While Federalists met this objection by arguing that
nothing in the Constitution necessarily excluded the fundamental
common-law protections associated with due process, see,
e.
g., 3 Elliot's Debates 451 (George Nicholas, Virginia
Convention), they defended the decision against any general
constitutional reception of the common law on the ground that
constitutionalizing it would render it "immutable," see
id.,
at 469-470 (Edmund Randolph, Virginia Convention), and not subject
to revision by Congress,
id., at 550 (Edmund Pendleton,
Virginia Convention); see also
infra, at 163-164.
The Framers also recognized that the diverse development of the
common law in the several States made a general federal reception
impossible. "The common law was not the same in any two of the
Colonies," Madison observed; "in some the modifications were
materially and extensively different." Report on the Virginia
Resolutions, House of Delegates, Session of 1799-1800, Concerning
Alien and Sedition Laws, in 6 Writings of James Madison 373 (G.
Hunt ed. 1906)
35 See,
e. g., 2 Elliot's Debates 400 (Thomas
Tredwell, New York Convention) ("[W]e are ignorant whether [federal
proceedings] shall be according to the common, civil, the Jewish,
or Turkish law ... ").
140
(Alien and Sedition Laws).36 In particular, although there is
little evidence regarding the immunity enjoyed by the various
colonial governments prior to the Revolution, the profound
differences as to the source of colonial authority between
chartered colonies, royal colonies, and so on seems unlikely,
wholly apart from other differences in circumstance, to have given
rise to a uniform body of immunity law. There was not, then, any
unified "Common Law" in America that the Federal Constitution could
adopt, Jay I, at 1056; Stoebuck, Reception of English Common Law in
the American Colonies, 10 Wm. & Mary L. Rev. 393, 401 (1968)
("The assumption that colonial law was essentially the same in all
colonies is wholly without foundation"), and, in particular,
probably no common principle of sovereign immunity, cf. Alien and
Sedition Laws 376. The Framers may, as Madison, Hamilton, and
Marshall argued, have contemplated that federal courts would
respect state immunity law in diversity cases, but the generalized
principle of immunity that today's majority would graft onto the
Constitution itself may well never have developed with any common
clarity and, in any event, has not been shown to have existed.
Finally, the Framers' aversion to a general federal reception of
the common law is evident from the Federalists' re-
36 See also Justice Jay's Charge to the Grand Jury for the
District of New York (Apr. 4, 1790) (observing that at the time the
Nation was formed, "[o]ur jurisprudence varied in almost every
State, and was accommodated to local, not general convenience-to
partial, not national policy") (quoted in Jay, Origins of Federal
Common Law: Part One, 133 U. Pa. L. Rev. 1003, 1056, n. 261 (1985)
(Jay I));
United States v.
Worrall, 28 F. Cas.
774,779 (No. 16,766)
(CC Pa. 1798) (Chase, J.) (noting that
"[t]he common law ... of one state, is not the common law of
another"); 8 Annals of Congo 2137 (1798) (statement of Rep. Albert
Gallatin) (asserting that there could be no national common law
because "[t]he common law of Great Britain received in each colony,
had in everyone received modifications arising from their situation
... and now each State had a common law, in its general principles
the same, but in many particulars differing from each other").
141
sponse to the Antifederalist claim that Article III granted an
unduly broad jurisdiction to the federal courts. That response was
to emphasize the limited powers of the National Government. See,
e. g., 3 Elliot's Debates 553 (John Marshall,
Virginia Convention) ("Has the government of the United States
power to make laws on every subject? ... Can they make laws
affecting the mode of transferring property, or contracts, or
claims, between citizens of the same state? Can they go beyond the
delegated powers?"); Jay II, at 1260.37 That answer assumes, of
course, no generalized reception of English common law as federal
law; otherwise, "arising under" jurisdiction would have extended to
any subject comprehended by the general common law.
Madison made this assumption absolutely clear during the
subsequent debates over the Alien and Sedition Acts, which raised
the issue of whether the Framers intended to recognize a general
federal jurisdiction to try common-law crimes. Rejecting the idea
of any federal reception, Madison insisted that
"the consequence of admitting the common law as the law of the
United States, on the authority of the individual States, is as
obvious as it would be fatal. As this law relates to every subject
of legislation, and would be paramount to the Constitutions and
laws of the States, the admission of it would overwhelm the
residuary sovereignty of the States, and by one constructive
operation new model the whole political fabric of the country."
Alien and Sedition Laws 381.
See also 1 Goebel, Oliver Wendell Holmes Devise History of the
Supreme Court of the United States, at 651-655 (discuss-
37See also Jay II, at 1241-1250 (arguing that Jeffersonian
Republicans resisted the idea of a general federal reception of the
common law as an incursion on States' rights); Jay I, at 1111
(same). Given the roots of the Framers' resistance, the Court's
reception of the English common law into the Constitution itself in
the very name of state sovereignty goes beyond the limits of
irony.
142
ing the lack of evidence to support the proposition that the
Framers intended a general reception of the English common law
through the Constitution); Jay II, at 1254 (arguing that "[i]t
would have been untenable to maintain that the body of British
common law had been adopted by the Constitution ... "). Madison
concluded that
"[i]t is ... distressing to reflect that it ever should have
been made a question, whether the Constitution, on the whole face
of which is seen so much labor to enumerate and define the several
objects of Federal power, could intend to introduce in the lump, in
an indirect manner, and by a forced construction of a few phrases,
the vast and multifarious jurisdiction involved in the common law-a
law filling so many ample volumes; a law overspreading the entire
field of legislation; and a law that would sap the foundation of
the Constitution as a system of limited and specified powers."
Alien and Sedition Laws 382.
B
Given the refusal to entertain any wholesale reception of common
law, given the failure of the new Constitution to make any
provision for adoption of common law as such, and given the
protests already quoted that no general reception had occurred, the
Hans Court and the Court today cannot reasonably argue that
something like the old immunity doctrine somehow slipped in as a
tacit but enforceable background principle. But see
ante, at
72. The evidence is even more specific, however, that there was no
pervasive understanding that sovereign immunity had limited
federalquestion jurisdiction.
1
As I have already noted briefly, see
supra, at 105-106,
the Framers and their contemporaries did not agree about the
143
place of common-law state sovereign immunity even as to federal
jurisdiction resting on the Citizen-State Diversity Clauses. Edmund
Randolph argued in favor of ratification on the ground that the
immunity would not be recognized, leaving the States subject to
jurisdiction.38 Patrick Henry opposed ratification on the basis of
exactly the same reading. See 3 Elliot's Debates 543. On the other
hand, James Madison, John Marshall, and Alexander Hamilton all
appear to have believed that the common-law immunity from suit
would survive the ratification of Article III, so as to be at a
State's disposal when jurisdiction would depend on diversity. This
would have left the States free to enjoy a traditional immunity as
defendants without barring the exercise of judicial power over them
if they chose to enter the federal courts as diversity plaintiffs
or to waive their immunity as diversity defendants. See
id.,
at 533 (Madison: the Constitution "give[s] a citizen a right to be
heard in the federal courts; and if a state should condescend to be
a party, this court may take cognizance of it"); 39
id., at
556 (Marshall: "I see a diffi-
38 See 3 Elliot's Debates 573 (the Constitution would "render
valid and effective existing claims" against the States). See also
2
id., at 491 (James Wilson, in the Pennsylvania
ratification debate: "When a citizen has a controversy with another
state, there ought to be a tribunal where both parties may stand on
a just and equal footing"). Wilson, as I noted above, took a
similar position in addressing the federal question, or arising
under, clause, remarking that the effect of the clause would be to
require States to honor pre-Revolutionary debt owed to English
merchants, as had been promised in the Treaty of 1783. See n. 4,
supra.
39 The Court accuses me of quoting this statement out of
context,
ante, at 70, n. 12, but the additional material
included by the Court makes no difference. I am conceding that
Madison, Hamilton, and Marshall all agreed that Article III did not
of its own force abrogate the States' preexisting common-law
immunity, at least with respect to diversity suits. None of the
statements offered by the Court, however, purports to deal with
federal-question jurisdiction or with the question whether
Congress, acting pursuant to its Article I powers, could create a
cause of action against a State. As I explain further below, the
views of Madison and his
144
culty in making a state defendant, which does not prevent its
being plaintiff"). As Hamilton stated in The Federalist No. 81:
"It is inherent in the nature of sovereignty, not to be amenable
to the suit of an individual without its consent. This is
the general sense and the general practice of mankind; and the
exemption, as one of the attributes of sovereignty, is now enjoyed
by the government of every state in the Union. Unless therefore,
there is a surrender of this immunity in the plan of the
convention, it will remain with the states, and the danger
intimated must be merely ideal." The Federalist No. 81, pp. 548-549
(J. Cooke ed. 1961).
See generally Fletcher, A Historical Interpretation of the
Eleventh Amendment: A Narrow Construction of an Affirmative Grant
of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35
Stan. L. Rev. 1033, 1045-1054 (1983) (discussing the adoption of
the Citizen-State Diversity Clauses); Gibbons, 83 Colum. L. Rev.,
at 1902-1914. The majority sees in these statements, and chiefly in
Hamilton's discussion of sovereign immunity in The Federalist No.
81, an unequivocal mandate "which would preclude all federal
jurisdiction over an unconsenting State."
Ante, at 70. But
there is no such mandate to be found.
As I have already said, the immediate context of Hamilton's
discussion in Federalist No. 81 has nothing to do with
federal-question cases. It addresses a suggestion "that an
assignment of the public securities of one state to the citizens of
another, would enable them to prosecute that state in the federal
courts for the amount of those securities." The Federalist No. 81,
at 548. Hamilton is plainly talking about a
allies on this more difficult question can be divined, if at
all, only by reference to the more extended discussions by Hamilton
in The Federalist No. 32, and by Justice Iredell in his
Chisholm dissent. Both those discussions, I submit, tend to
support a congressional power of abrogation.
145
suit subject to a federal court's jurisdiction under the
Citizen-State Diversity Clauses of Article III.
The general statement on sovereign immunity emphasized by the
majority then follows, along with a reference back to The
Federalist No. 32. The Federalist No. 81, at 548. What Hamilton
draws from that prior paper, however, is not a general conclusion
about state sovereignty but a particular point about state
contracts:
"A recurrence to the principles there established will satisfy
us, that there is no colour to pretend that the state governments,
would by the adoption of that plan, be divested of the privilege of
paying their own debts in their own way, free from every constraint
but that which flows from the obligations of good faith. The
contracts between a nation and individuals are only binding on the
conscience of the sovereign, and have no pretensions to a
compulsive force. They confer no right of action independent of the
sovereign will." Id., at 549.
The most that can be inferred from this is, as noted above, that
in diversity cases applying state contract law the immunity that a
State would have enjoyed in its own courts is carried into the
federal court. When, therefore, the
Hans Court relied in
part upon Hamilton's statement, see 134 U. S., at 20, its reliance
was misplaced; Hamilton was addressing diversity jurisdiction,
whereas
Hans involved federal-question jurisdiction under
the Contracts Clause. No general theory of federal-question
immunity can be inferred from Hamilton's discussion of immunity in
contract suits. But that is only the beginning of the difficulties
that accrue to the majority from reliance on The Federalist No. 81.
Hamilton says that a State is "not ... amenable to the suit of an
individual without its consent ... [u]nless ... there is a
surrender of this immunity in the plan of the convention." The
Federalist No. 81, at 548-549 (emphasis deleted). He
146
immediately adds, however, that "[t]he circumstances which are
necessary to produce an alienation of state sovereignty, were
discussed in considering the article of taxation, and need not be
repeated here."
Id., at 549. The reference is to The
Federalist No. 32, also by Hamilton, which has this to say about
the alienation of state sovereignty:
"[A]s the plan of the Convention aims only at a partial Union or
consolidation, the State Governments would clearly retain all the
rights of sovereignty which they before had and which were not by
that act exclusively delegated to the United States. This
exclusive delegation or rather this alienation of State sovereignty
would only exist in three cases; where the Constitution in express
terms granted an exclusive authority to the Union; where it granted
in one instance an authority to the Union and in another prohibited
the States from exercising the like authority; and where it granted
an authority to the Union, to which a similar authority in the
States would be absolutely and totally contradictory and
repugnant. I use these terms to distinguish this last case
from another which might appear to resemble it; but which would in
fact be essentially different; I mean where the exercise of a
concurrent jurisdiction might be productive of occasional
interferences in the policy of any branch of administration,
but would not imply any direct contradiction or repugnancy in point
of constitutional authority." Id., at 200 (emphasis in
original).
As an instance of the last case, in which exercising concurrent
jurisdiction may produce interferences in "policy," Hamilton gives
the example of concurrent power to tax the same subjects:
"It is indeed possible that a tax might be laid on a particular
article by a State which might render it inexpedient that
thus a further tax should be laid on the same article
147
by the Union; but it would not imply a constitutional inability
to impose a further tax. The quantity of the imposition, the
expediency or inexpediency of an increase on either side, would be
mutually questions of prudence; but there would be involved no
direct contradiction of power. The particular policy of the
national and of the State systems of finance might now and then not
exactly coincide, and might require reciprocal forbearances. It is
not however a mere possibility of inconvenience in the exercise of
powers, but an immediate constitutional repugnancy, that can by
implication alienate and extinguish a pre-existing right of
sovereignty." Id., at 202 (emphasis in original).
The first embarrassment Hamilton's discussion creates for the
majority turns on the fact that the power to regulate commerce with
Indian tribes has been interpreted as making "Indian relations ...
the exclusive province of federal law."
County of Oneida v.
Oneida Indian Nation of N.
Y., 470 U. S., at 234.40
We have accordingly recognized that "[s]tate laws generally are not
applicable to tribal Indians on an Indian reservation except where
Congress has expressly provided that State laws shall apply."
McClanahan v.
Arizona State Tax Comm'n, 411 U. S. 164, 170-171
(1973) (internal quotation marks omitted); see also
Rice v.
Olson, 324 U.
S. 786, 789 (1945) ("The policy of leaving Indians free from
state jurisdiction and control is deeply rooted in the Nation's
40 See also
Worcester v.
Georgia, 6 Pet. 515,
560-561 (1832) ("The Cherokee nation ... is a distinct community
... in which the laws of Georgia can have no force .... The whole
intercourse between the United States and this nation, is, by our
Constitution and laws, vested in the government of the United
States"). This Court has repeatedly rejected state attempts to
assert sovereignty over Indian lands. See,
e. g., The New York
Indians, 5 Wall. 761, 769 (1867) (rejecting state attempt to
tax reservation lands);
Worcester, supra, at 561-563
(nullifying an attempted prosecution by the State of Georgia of a
person who resided on Indian lands in violation of state law).
148
history").41 We have specifically held, moreover, that the
States have no power to regulate gambling on Indian lands.
California v.
Cabazon Band of Mission Indians,
480 U. S.
202,221-222 (1987). In sum, since the States have no
sovereignty in the regulation of commerce with the tribes, on
Hamilton's view there is no source of sovereign immunity to assert
in a suit based on congressional regulation of that commerce. If
Hamilton is good authority, the majority of the Court today is
wrong.
Quite apart, however, from its application to this particular
Act of Congress exercising the Indian commerce power, Hamilton's
sovereignty discussion quoted above places the Court in an
embarrassing dilemma. Hamilton posited four categories:
congressional legislation on (a) subjects committed expressly and
exclusively to Congress, (b) subjects over which state authority is
expressly negated, (c) subjects over which concurrent authority
would be impossible (as "contradictory and repugnant"), and (d)
subjects over which concurrent authority is not only possible, but
its exercise by both is limited only by considerations of policy
(as when one taxing authority is politically deterred from adding
too much to the exaction the other authority is already making).
But what of those situations involving concurrent powers, like the
power over interstate commerce, see,
e. g., Cooley v.
Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief
of Distressed Pilots, 12 How. 299 (1852) (recognizing power of
States to engage in some regulation of interstate commerce), when a
congressional statute not only binds the States but even creates an
affirmative obligation on the State
41 Although we have rejected a
per se bar to state
jurisdiction, it is clear that such jurisdiction remains the
exception and not the rule. See
New Mexico v.
Mescalero
Apache Tribe, 462
U. S. 324, 331-332 (1983) (footnotes omitted) ("[U]nder certain
circumstances a State may validly assert authority over the
activities of nonmembers on a reservation, and ... in exceptional
circumstances a State may assert jurisdiction over the
on-reservation activities of tribal members").
149
as such, as in this case? Hamilton's discussion does not seem to
cover this (quite possibly because, as a good political polemicist,
he did not wish to raise it). If in fact it is fair to say that
Hamilton does not cover this situation, then the Court cannot claim
him as authority for the preservation of state sovereignty and
consequent immunity. If, however, on what I think is an implausible
reading, one were to try to shoehorn this situation into Hamilton's
category (c) (on the theory that concurrent authority is impossible
after passage of the congressional legislation), then any claim of
sovereignty and consequent immunity is gone entirely.
In sum, either the majority reads Hamilton as I do, to say
nothing about sovereignty or immunity in such a case, or it will
have to read him to say something about it that bars any state
immunity claim. That is the dilemma of the majority's reliance on
Hamilton's The Federalist No. 81, with its reference to No. 32.
Either way, he is no authority for the Court's position.
Thus, the Court's attempt to convert isolated statements by the
Framers into answers to questions not before them is fundamentally
misguided.42 The Court's difficulty is far more fundamental,
however, than inconsistency with a particular quotation, for the
Court's position runs afoul of the general theory of sovereignty
that gave shape to the Framers' enterprise. An enquiry into the
development of that concept demonstrates that American political
thought had so revolutionized the concept of sovereignty itself
that calling
42 See The Federalist No. 82, p. 553 (J. Cooke ed. 1961) (A.
Hamilton) (disclaiming any intent to answer all the "questions of
intricacy and nicety" arising in a judicial system that must
accommodate "the total or partial incorporation of a number of
distinct sovereignties"); S. Elkins & E. McKitrick, The Age of
Federalism 64 (1993) (suggesting that "[t]he amount of attention
and discussion given to the judiciary in the Constitutional
Convention was only a fraction of that devoted to the executive and
legislative branches," and that the Framers deliberately left many
questions open for later resolution).
150
for the immunity of a State as against the jurisdiction of the
national courts would have been sheer illogic.
2
We said in
Blatchford v.
Native Village of Noatak,
501 U. S. 775, 779 (1991), that "the States entered the federal
system with their sovereignty intact," but we surely did not mean
that they entered that system with the sovereignty they would have
claimed if each State had assumed independent existence in the
community of nations, for even the Articles of Confederation
allowed for less than that. See Articles of Confederation, Art. VI,
§ 1 ("No State without the consent of the United States in Congress
assembled, shall send any embassy to, or receive any embassy from,
or enter into any conference, agreement, alliance or treaty with
any king, prince or state ... "). While there is no need here to
calculate exactly how close the American States came to sovereignty
in the classic sense prior to ratification of the Constitution, it
is clear that the act of ratification affected their sovereignty in
a way different from any previous political event in America or
anywhere else. For the adoption of the Constitution made them
members of a novel federal system that sought to balance the
States' exercise of some sovereign prerogatives delegated from
their own people with the principle of a limited but centralizing
federal supremacy.
As a matter of political theory, this federal arrangement of
dual delegated sovereign powers truly was a more revolutionary turn
than the late war had been. See,
e. g., U. S.
Term Limits, Inc. v.
Thornton, 514 U. S. 779, 838 (1995)
(KENNEDY, J., concurring) ("Federalism was our Nation's own
discovery. The Framers split the atom of sovereignty").43 Before
the new federal scheme appeared, 18th-
43 Regardless of its other faults, Chief Justice Taney's opinion
in
Dred Scott v.
Sandford, 19 How. 393 (1857),
recognized as a structural matter that "[t]he new Government was
not a mere change in a dynasty, or in a form of government, leaving
the nation or sovereignty the same, and
151
century political theorists had assumed that "there must reside
somewhere in every political unit a single, undivided, final power,
higher in legal authority than any other power, subject to no law,
a law unto itself." B. Bailyn, The Ideological Origins of the
American Revolution 198 (1967); see also Wood 345.44 The American
development of divided sovereign powers, which "shatter[ed] ... the
categories of government that had dominated Western thinking for
centuries,"
id., at 385, was made possible only by a
recognition that the ultimate sovereignty rests in the people
themselves. See
id., at 530 (noting that because "none of
these arguments about 'joint jurisdictions' and 'coequal
sovereignties' convincingly refuted the Antifederalist doctrine of
a supreme and indivisible sovereignty," the Federalists could
succeed only by emphasizing that the supreme power
"'resides
in the PEOPLE, as the fountain of government'" (citing 1
Pennsylvania and the Federal Constitution, 1787-1788, p. 302 (J.
McMaster & F. Stone eds. 1888) (quoting James Wilson)).45 The
People possessing this plenary bundle of specific powers
clothed with all the rights, and bound by all the obligations of
the preceding one."
Id., at 441. See also F. McDonald, Novus
Ordo Sec1orum: The Intellectual Origins of the Constitution 276
(1985) ("The constitutional reallocation of powers created a new
form of government, unprecedented under the sun ... "); S. Beer, To
Make a Nation: The Rediscovery of American Federalism 150-151
(1993) (American view of sovereignty was "radically different" from
that of British tradition).
44 Cf.,
e. g., 1 W. Blackstone, Commentaries 49,
160-162 (Cooper ed. 1803).
This modern notion of sovereignty is traceable to the writings
of Jean Bodin in the late 16th century. See J. Bodin, Six Books of
the Commonwealth, bk. 2, ch. I, pp. 52-53 (M. Tooley, abr. &
transl. 1967) (1576); see also T. Hobbes, Leviathan, Part II, ch.
29, pp. 150-151 (N. Fuller ed. 1952) (1651).
45 See Wood 530 (noting that James Wilson "[m]ore boldly and
fully than anyone else ... developed the argument that would
eventually become the basis of all Federalist thinking" about
sovereignty); see also The Federalist No. 22, at 146 (A. Hamilton)
(acknowledging the People as "that pure original fountain of all
legitimate authority");
id., No. 49, at 339 (J. Madison)
("[T]he people are the only legitimate fountain of power").
152
were free to parcel them out to different governments and
different branches of the same government as they saw fit. See F.
McDonald, Novus Ordo Seclorum: The Intellectual Origins of the
Constitution 278 (1985). As James Wilson emphasized, the location
of ultimate sovereignty in the People meant that "[t]hey can
distribute one portion of power to the more contracted circle
called State governments; they can also furnish another proportion
to the government of the United States." 1 Pennsylvania and the
Federal Constitution, 1787-1788,
supra, at 302.46
Under such a scheme, Alexander Hamilton explained, "[i]t does
not follow ... that each of the
portions of powers delegated
to [the national or state government] is not sovereign
with
regard to its proper objects." Hamilton, Opinion on the
Constitutionality of an Act to Establish a Bank, in 8 Papers of
Alexander Hamilton 98 (Syrett ed. 1965) (emphasis in original).47 A
necessary consequence of this view was that "the Government of the
United States has sovereign power as to its declared purposes &
trusts."
Ibid. Justice Iredell was to make the same
observation in his
Chisholm dissent, commenting that "[t]he
United States are sovereign as to all the powers of
Government actually surrendered: Each State in the
Union is
sovereign as to all the powers reserved." 2 Dall., at 435. And to
the same point was Chief Justice Mar-
46 See also
U. S.
Term Limits, Inc. v.
Thornton, 514
U. S. 779, 838 (1995) (KENNEDY, J., concurring) (the
Constitution "created a legal system unprecedented in form and
design, establishing two orders of government, each with its own
direct relationship, its own privity, its own set of mutual rights
and obligations to the people who sustain it and are governed by
it").
47 See Amar, 96 Yale L. J., at 1434-1435 ("The ultimate American
answer [to the British notion that the sovereign was by definition
above the law], in part, lay in a radical redefinition of
governmental 'sovereignty.' Just as a corporation could be
delegated limited sovereign privileges by the King-in-Parliament,
so governments could be delegated limited powers to govern. Within
the limitations of their charters, governments could be sovereign,
but that sovereignty could be bounded by the terms of the
delegation itself" (footnote omitted)).
153
shall's description of the National and State Governments as
"each sovereign, with respect to the objects committed to it, and
neither sovereign with respect to the objects committed to the
other."
McCulloch v.
Maryland, 4 Wheat. 316, 410
(1819).
Given this metamorphosis of the idea of sovereignty in the years
leading up to 1789, the question whether the old immunity doctrine
might have been received as something suitable for the new world of
federal-question jurisdiction is a crucialone.48 The answer is that
sovereign immunity as it would have been known to the Framers
before ratification thereafter became inapplicable as a matter of
logic in a federal suit raising a federal question. The old
doctrine, after all, barred the involuntary subjection of a
sovereign to the system of justice and law of which it was itself
the font, since to do otherwise would have struck the common-law
mind from the Middle Ages onward as both impractical and absurd.
See,
e. g., Kawananakoa v.
Polyblank,
205 U. S. 349,
353 (1907) (Holmes, J.) ("A sovereign is exempt from suit ... on
the logical and practical ground that there can be no legal right
as against the authority that makes the law on which the right
depends").49 But the ratification demonstrated
48 See,
e. g., Amar,
supra, at 1436 ("By
thus relocating true sovereignty in the People themselves ...
Americans domesticated government power and decisively repudiated
British notions of 'sovereign' governmental omnipotence" (footnote
omitted)). That this repudiation extended to traditional principles
of sovereign immunity is clear from Justice Wilson's opinion in
Chisholm, in which he blasted "the haughty notions of state
independence, state sovereignty and state supremacy" as allowing
"the state [to] assum[e] a supercilious pre-eminence above the
people who have formed it." 2 Dall., at 461.
49 See also Hobbes,
supra, at 130 ("The sovereign of a
Commonwealth, be it an assembly or one man, is not subject to the
civil laws .... For he is free that can be free when he will: nor
is it possible for any person to be bound to himself, because he
that can bind can release; and therefore he that is bound to
himself only is not bound"); Bodin,
supra, at 28-29 ("One
may be subject to laws made by another, but it is impossible to
bind oneself in any matter which is the subject of one's own free
exercise of
154
that state governments were subject to a superior regime of law
in a judicial system established, not by the State, but by the
people through a specific delegation of their sovereign power to a
National Government that was paramount within its delegated sphere.
When individuals sued States to enforce federal rights, the
Government that corresponded to the "sovereign" in the traditional
common-law sense was not the State but the National Government, and
any state immunity from the jurisdiction of the Nation's courts
would have required a grant from the true sovereign, the people, in
their Constitution, or from the Congress that the Constitution had
empowered. We made a similar point in
Nevada v.
Hall,
440 U. S., at 416, where we considered a suit against a State in
another State's courts:
"This [traditional] explanation [of sovereign immunity]
adequately supports the conclusion that no sovereign may be sued in
its own courts without its consent, but it affords no support for a
claim of immunity in another sovereign's courts. Such a claim
necessarily implicates the power and authority of a second
sovereign; its source must be found either in an agreement, express
or implied, between the two sovereigns, or in the voluntary
decision of the second to respect the dignity of the first as a
matter of comity."
Cf.
United States v.
Texas, 143 U. S. 621, 646 (1892)
(recognizing that a suit by the National Government against a State
"does no violence to the inherent nature of sovereignty").
Subjecting States to federal jurisdiction in federal-question cases
brought by individuals thus reflected nothing more than Professor
Amar's apt summary that "[w]here governments are acting within the
bounds of their delegated 'sovereign' power, they may partake of
sovereign immunity; where
will. ... It follows of necessity that the king cannot be
subject to his own laws").
155
not, not." Amar, Of Sovereignty and Federalism, 96 Yale
State immunity to federal-question jurisdiction would, moreover,
have run up against the common understanding of the practical
necessity for the new federal relationship. According to Madison,
the "multiplicity," "mutability," and "injustice" of then-extant
state laws were prime factors requiring the formation of a new
government. 1 Farrand 318319 (remarks of J. Madison).50 These
factors, Madison wrote to Jefferson, "contributed more to that
uneasiness which produced the Convention, and prepared the Public
mind for a general reform, than those which accrued to our national
character and interest from the inadequacy of the Confederation to
its immediate objects." 5 Writings of James Madison 27 (G. Hunt ed.
1904). These concerns ultimately found concrete expression in a
number of specific limitations on state power, including provisions
barring the States from enacting bills of attainder or
ex post
facto laws, coining money or emitting bills of credit, denying
the privileges and immunities of out-of-staters, or impairing the
obligation of contracts. But the proposed Constitution also dealt
with the old problems affirmatively by granting the powers to
Congress enumerated in Article I, § 8, and by providing through the
Supremacy Clause that Congress could pre-empt state action in areas
of concurrent state and federal authority.
Given the Framers' general concern with curbing abuses by state
governments, it would be amazing if the scheme of delegated powers
embodied in the Constitution had left the National Government
powerless to render the States judicially accountable for
violations of federal rights. And of course the Framers did not
understand the scheme to leave
50 See also Wood 466 ("[O]nce men grasped, as they increasingly
did in the middle [1780's], that reform of the national government
was the best means of remedying the evils caused by the state
governments, then the revision of the Articles of Confederation
assumed an impetus and an importance that it had not had a few
years earlier").
156
the Government powerless. In The Federalist No. 80, at 535,
Hamilton observed that "[n]o man of sense will believe that such
prohibitions [running against the States] would be scrupulously
regarded, without some effectual power in the government to
restrain or correct the infractions of them," and that "an
authority in the federal courts, to over-rule such as might be in
manifest contravention of the articles of union" was the
Convention's preferred remedy. By speaking in the plural of an
authority in the federal "courts," Hamilton made it clear that he
envisioned more than this Court's exercise of appellate
jurisdiction to review federal questions decided by state courts.
Nor is it plausible that he was thinking merely of suits brought
against States by the N ational Government itself, which The
Federalist's authors did not describe in the paternalistic terms
that would pass without an eyebrow raised today. Hamilton's power
of the Government to restrain violations of citizens' rights was a
power to be exercised by the federal courts at the citizens'
behest. See also Marshall, Fighting the Words of the Eleventh
Amendment, 102 Harv. L. Rev. 1342, 1367-1371 (1989) (discussing the
Framers' concern with preserving as much state accountability as
possible even in the course of enacting the Eleventh
Amendment).
This sketch of the logic and objectives of the new federal order
is confirmed by what we have previously seen of the preratification
debate on state sovereign immunity, which in turn becomes entirely
intelligible both in what it addressed and what it ignored. It is
understandable that reasonable minds differed on the applicability
of the immunity doctrine in suits that made it to federal court
only under the original Diversity Clauses, for their features were
not wholly novel. While they were, of course, in the courts of the
new and, for some purposes, paramount National Government, the law
that they implicated was largely the old common law (and in any
case was not federal law). It was not foolish, therefore,
157
to ask whether the old law brought the old defenses with it. But
it is equally understandable that questions seem not to have been
raised about state sovereign immunity in federalquestion cases. The
very idea of a federal question depended on the rejection of the
simple concept of sovereignty from which the immunity doctrine had
developed; under the English common law, the question of immunity
in a system of layered sovereignty simply could not have arisen.
Cf.,
e. g., Jay II, at 1282-1284; Du Ponceau, A
Dissertation on the Nature and Extent of Jurisdiction of Courts of
the United States, at 6_7.51 The Framers' principal objectives in
rejecting English theories of unitary sovereignty, moreover, would
have been impeded if a new concept of sovereign immunity had taken
its place in federal-question cases, and would have been
substantially thwarted if that new immunity had been held to be
untouchable by any congressional effort to abrogate it. 52
51 Cf. Jay I, at 1033-1034 ("English common law might afford
clues to the meaning of some terms in the Constitution, but the
absence of any close federal model was recognized even at the
Convention"); F. Coker, Commentary, in R. Pound, C. McIlwain, &
R. Nichols, Federalism as a Democratic Process 81-82 (1942).
52 See,
e. g., Prout v.
Starr,
188 U. S. 537,
543 (1903) (acknowledging the immunity recognized in
Hans
and other cases, but observing that "[i]t would, indeed, be most
unfortunate if the immunity of the individual States from suits by
citizens of other States, provided for in the Eleventh Amendment,
were to be interpreted as nullifying those other provisions which
confer power on Congress ... all of which provisions existed before
the adoption of the Eleventh Amendment, which still exist, and
which would be nullified and made of no effect, if the judicial
power of the United States could not be invoked to protect citizens
affected by the passage of state laws disregarding these
constitutional limitations"). The majority contends that state
compliance with federal law may be enforced by other means,
ante, at 71, n. 14, but its suggestions are all pretty cold
comfort: the enforcement resources of the Federal Government itself
are limited; appellate review of state court decisions is
contingent upon state consent to suit in state court, and is also
called into question by the majority's rationale, see
supra,
at 114; and the Court's decision today illustrates
158
Today's majority discounts this concern. Without citing a single
source to the contrary, the Court dismisses the historical evidence
regarding the Framers' vision of the relationship between national
and state sovereignty, and reassures us that "the Nation survived
for nearly two centuries without the question of the existence of
[the abrogation] power ever being presented to this Court."
Ante, at 71.53 But we are concerned here not with the
survival of the Nation but the opportunity of its citizens to
enforce federal rights in a way that Congress provides. The absence
of any general federal-question statute for nearly a century
following ratification of Article III (with a brief exception in
1800) hardly counts against the importance of that jurisdiction
either in the Framers' conception or in current reality; likewise,
the fact that Congress has not often seen fit to use its power of
abrogation (outside the Fourteenth Amendment context, at least)
does not compel a conclusion that the power is not important to the
federal scheme. In the end, is it plausible
the uncertainty that the Court will always permit enforcement of
federal law by suits for prospective relief against state officers.
Moreover, the majority's position ignores the importance of citizen
suits to enforcement offederallaw. See,
e. g., Alyeska Pipeline
Service Co. v.
Wilderness Society, 421 U. S. 240, 263 (1975)
(acknowledging that, in many instances, "Congress has opted to rely
heavily on private enforcement to implement public policy"); see
also S. Rep. No. 94-1011, p. 2 (Civil Rights Attorney's Fees Awards
Act of 1976, 42 U. S. C. § 1988) (recognizing that "[a]ll of these
civil rights laws depend heavily upon private enforcement");
Pennsylvania v.
Delaware Valley Citizens' Council for
Clean Air, 483 U.
S. 711, 737 (1987) (Blackmun, J., dissenting) (noting
importance of citizens' suits under federal environmental
laws).
53 The Court's further assertion, that "Congress itself waited
nearly a century before even conferring federal-question
jurisdiction on the lower federal courts,"
ante, at 71, is
simply incorrect. As I have noted, numerous early statutes
conferred federal-question jurisdiction on the federal courts
operating under the original Judiciary Act in particular kinds of
cases, and the Judiciary Act of 1800 provided for general
federal-question jurisdiction in the brief period before its repeal
in 1801. See n. 12,
supra.
159
to contend that the plan of the convention was meant to leave
the National Government without any way to render individuals
capable of enforcing their federal rights directly against an
intransigent State?
C
The considerations expressed so far, based on text,
Chisholm, caution in common-law reception, and sovereignty
theory, have pointed both to the mistakes inherent in
Hans
and, even more strongly, to the error of today's holding. Although
for reasons of
stare decisis I would not today disturb the
century-old precedent, I surely would not extend its error by
placing the common-law immunity it mistakenly recognized beyond the
power of Congress to abrogate. In doing just that, however, today's
decision declaring state sovereign immunity itself immune from
abrogation in federal-question cases is open to a further set of
objections peculiar to itself. For today's decision stands
condemned alike by the Framers' abhorrence of any notion that such
common-law rules as might be received into the new legal systems
would be beyond the legislative power to alter or repeal, and by
its resonance with this Court's previous essays in
constitutionalizing common-law rules at the expense of legislative
authority.
1
I have already pointed out how the views of the Framers
reflected the caution of state constitutionalists and legislators
over reception of common-law rules, a caution that the Framers
exalted to the point of vigorous resistance to any idea that
English common-law rules might be imported wholesale through the
new Constitution. The state politicians also took pains to
guarantee that once a common-law rule had been received, it would
always be subject to legislative alteration, and again the state
experience was reflected in the Framers' thought. Indeed, the
Framers' very insist-
160
ence that no common-law doctrine would be received by virtue of
ratification was focused in their fear that elements of the common
law might thereby have been placed beyond the power of Congress to
alter by legislation.
The imperative of legislative control grew directly out of the
Framers' revolutionary idea of popular sovereignty. According to
one historian, "[s]hared ideas about the sovereignty of the people
and the accountability of government to the people resulted at an
early date in a new understanding of the role of legislation in the
legal system .... Whereas a constitution had been seen in the
colonial period as a body of vague and unidentifiable precedents
and principles of common law origin that imposed ambiguous
restrictions on the power of men to make or change law, after
independence it came to be seen as a written charter by which the
people delegated powers to various institutions of government and
imposed limitations on the exercise of those powers .... [T]he
power to modify or even entirely to repeal the common law ... now
fell explicitly within the jurisdiction of the legislature." W.
Nelson, Americanization of the Common Law 90 (1975).54
Virtually every state reception provision, be it constitutional
or statutory, explicitly provided that the common law was subject
to alteration by statute. See Wood 299-300; Jones 99. The New
Jersey Constitution of 1776, for instance, provided that "the
common law of England, as well as so much of the statute law, as
have been heretofore practised in this Colony, shall still remain
in force, until they shall
54 Considering the example of Massachusetts, Professor Nelson
observes that "the clearest illustration that legislation was
coming to rest on the arbitrary power of a majoritarian legislature
rather than on its conformity with past law and principle was the
ease with which statutes altering common law rights were enacted
and repealed in the 1780s in response to changing election
results." Nelson, Americanization of the Common Law, at 91-92.
161
be altered by a future law .... " N. J. Const., Art. XXII
(1776), in 6 W. Swindler, Sources and Documents of United States
Constitutions 452 (1976).55 Just as the early state
55 See also Del. Const., Art. 25 (1776), in 2 Swindler, Sources
and Documents of United States Constitutions, at 203 ("The common
law of England, as well as so much of the statute law as has been
heretofore adopted in practice in this State, shall remain in
force, unless they shall be altered by a future law of the
legislature; such parts only excepted as are repugnant to the
rights and privileges contained in this constitution ... "); Act of
Feb. 25, 1784, in 1 First Laws of the State of Georgia 290 (1981)
(declaring "the common laws of England" to be "in full force" "so
far as they are not contrary to the constitution, laws and form of
government now established in this State"); Mass. Const., Ch. VI,
Art. VI (1780), in 5 Swindler,
supra, at 108 ("All the laws
which have heretofore been adopted, used, and approved in the
province, colony, or State of Massachusetts Bay ... shall still
remain and be in full force, until altered or repealed by the
legislature ... ");
Commonwealth v.
Churchill, 2 Met.
118, 123-124 (Mass. 1840) (Shaw, C. J.) (construing "laws" in this
provision to include common law); N. H. Const., Part II (1784), in
6 Swindler,
supra, at 356 ("All the laws which have
heretofore been adopted, used and approved, in the province,
colony, or state of New-Hampshire ... shall remain and be in full
force, until altered and repealed by the legislature ... "); N. C.
Laws 1778, Ch. V, in 1 First Laws of the State of North Carolina
353 (1984) ("[A]ll ... such Parts of the Common Law, as were
heretofore in Force and Use within this Territory ... as are not
destructive of, repugnant to, or inconsistent with the Freedom and
Independence of this State, and the Form of Government therein
established, and which have not been otherwise provided for, ...
not abrogated, repealed, expired, or become obsolete, are hereby
declared to be in full Force within this State"); N. Y. Const.,
Art. XXXV (1777), in 7 Swindler,
supra, at 177-178 ("[S]uch
parts of the common law of England ... as together did form the law
of the said colony [of New York] on [April 19, 1775], shall be and
continue the law of this State, subject to such alterations and
provisions as the legislature of this State shall, from time to
time, make concerning the same"); R. I. Digest of 1766, quoted in 1
R. Powell & P. Rohan, Powell On Real Property' 62, p. 212
(1995) (" '[I]n all actions, causes, matters and things whatsoever,
where there is no particular law of this colony, or act of
parliament ... then and in such cases the laws of England shall be
in force for the decision and determination of the same' "); 2 T.
Cooper, Statutes at Large of South Carolina 413 (1837) (Act of Dec.
12, 1712, § V) (receiving "the Common Law of England, where the
same is not ... inconsistent with the particular
162
governments did not leave reception of the common law to
implication, then, neither did they receive it as law immune to
legislative alteration.56
constitutions, customs and laws of this Province"); S. C.
Const., Art. VII (1790), in 8 Swindler,
supra, at 480 ("All
laws of force in this State at the passing of this constitution
shall so continue, until altered or repealed by the legislature ...
"); w. Slade, Vermont State Papers 450 (1823) (Act of June 1782)
(adopting "so much of the common law of England, as is not
repugnant to the constitution or to any act of the legislature of
this State"); Act of May 6, 1776, Ch. V, § VI, in First Laws of the
State of Virginia 37 (1982) ("the common law of
England ...
shall be the rule of decision, and shall be considered as in full
force, until the same shall be altered by the Legislative power of
this colony").
Connecticut, which did not enact any reception statute or
constitutional provision, adopted the common law by judicial
decision insofar as it was appropriate for local conditions. See 1
Powell & Rohan,
supra, , 52, at 140-141, and n. 77;
Hall, 4 Vand. L. Rev., at 800;
Fitch v.
Brainerd, 2
Day 163 (Conn. 1805). Maryland's position appears to have been
articulated in an oath prescribed by the Assembly in 1728 for
justices of the Provincial Court. The oath required that the
justices act "according to the Laws, Customs, and Directions of the
Acts of Assembly of this Province; and where they are silent,
according to the Laws, Statutes, and reasonable Customs of England,
as have been used and practiced in this Province .... " M. Andrews,
History of Maryland 227 (1929). Finally, although Pennsylvania's
reception statute did not state that the common law could be
altered by legislative enactment in so many words, it may be read
as assuming the primacy of legislative enactments, see 9 Statutes
at Large of Pennsylvania 29-30 (Mitchell & Flanders eds. 1903)
(Act of Jan. 28, 1777) (declaring prior Acts of the general
assembly to still be in force, as well as "the common law and such
of the statute laws of England as have heretofore been in force in
the said province ... "), and the state assembly seems to have
believed it had the power to depart from common law even prior to
independence. See Warren, History of the American Bar, at 103; cf.
Kirk v.
Dean, 2 Binn. 341, 345 (Pa. 1810)
(interpreting the state constitution as permitting departures from
common-law rules where local circumstances required it).
56 It bears emphasis that, in providing for statutory alteration
of the common law, the new States were in no way departing from
traditional understandings. It is true that the colonial charters
had generally rendered colonial legislation void to the extent that
it conflicted with English common law, but this principle was
simply indicative of the Colonies' legal
163
I have already indicated that the Framers did not forget the
state-law examples. When Antifederalists objected that the 1787
draft failed to make an explicit adoption of certain common-law
protections of the individual, part of the Federalists' answer was
that a general constitutional reception of the common law would bar
congressional revision. Madison was particularly concerned with the
necessity for legislative control, noting in a letter to George
Washington that "every State has made great inroads & with
great propriety on this
monarchical code." Letter from James
Madison to George Washington (Oct. 18, 1787), reprinted in 3
Farrand 130, App. A (emphasis in original).57 Madison went on to
insist that
subjugation to the mother country and, in any event, seldom
enforced in practice. See Stoebuck, 10 Wm. & Mary L. Rev., at
396-398, 419-420. The traditional conception of the common law as
it developed in England had always been that it was freely
alterable by statute. T. Plucknett, A Concise History of the Common
Law 336-337 (5th ed. 1956); see also T. Plucknett, Statutes and
Their Interpretation in the First Half of the Fourteenth Century
26-31 (1922) (finding no historical support for the claim that
common law was "fundamental" or otherwise superior to statutes).
Coke appears to have attempted at one time to establish a paramount
common law, see,
e. g., Dr. Bonham's Case, 8 Co. Rep. 107a,
118a, 77 Eng. Rep. 638, 652
(C. P. 1610), but that attempt
never took root in England. See Plucknett, Concise History of the
Common Law, at 337; Jones 130; J. Gough, Fundamental Law in English
Constitutional History 202 (1955) (observing that "[b]y the
nineteenth century the overriding authority of statute-law had
become the accepted principle in the courts"). And although Coke's
dictum was to have a somewhat greater influence in America, that
influence took the form of providing an early foundation for the
idea that courts might invalidate legislation that they found
inconsistent with a
written constitution. See Jones 130-132;
Gough,
supra, at 206207 (noting that Coke's view of
fundamental law came to be transformed and subsumed in American
practice by treatment of the written constitution as fundamental
law in the exercise of judicial review). As I demonstrate
infra, the idea that legislation may be struck down based on
principles of common law or natural justice not located within the
constitutional text has been squarely rejected in this country. See
infra, at 165-168.
57 See also 3 Elliot's Debates 469-470 (Edmund Randolph,
Virginia Convention) (arguing that constitutional incorporation of
the common law would be "destructive to republican principles").
Indeed, one reason for
164
"[t]he Common law is nothing more than the unwritten law, and is
left by all the Constitutions equally liable to legislative
alterations."
Ibid.58 Indeed, Madison anticipated, and
rejected, the Court's approach today when he wrote that if "the
common law be admitted as ... of constitutional obligation, it
would confer on the judicial department a discretion little short
of a legislative power ... [which] would be permanent and
irremediable by the Legislature." Alien and Sedition Laws 380. "A
discretion of this sort," he insisted, "has always been lamented as
incongruous and dangerous "
Id., at 381.59
Madison's suspicion of the common law was that it included "a
thousand heterogeneous & antirepublican doctrines." Letter from
Madison to Washington (Oct. 18, 1787), reprinted in 3 Farrand 130,
App. A. "[I]t will merit the most profound consideration," Madison
was later to warn in his Report on the Virginia Resolutions
Concerning the Alien and Sedition Laws, "how far an indefinite
admission of the common law ... might draw after it the various
prerogatives making part of the unwritten law of England." Alien
and Sedition Laws 380. Such an admission, Madison feared, would
mean that "the whole code, with all its incongruities, barbarisms,
and bloody maxims, would be inviolably saddled on the good people
of the United States."
Ibid. See also Amar, 96 Yale L. J.,
at 1490 ("[The] sole basis [of absolute government immunity from
all suits] is the British idea that the sovereign government, as
the source of all law, cannot itself be bound by any law absent its
consent .... [L]iterally every article of the Federalist
Constitution and every amendment in the Bill of Rights rests on the
repudiation of the British view" (footnote omitted)).
58 See Wood 304, n. 75 ("To Jefferson in 1785 judicial
discretion in the administration of justice was still the great
evil and codification the great remedy"); G. White, The Marshall
Court and Cultural Change, 1815-1835, p. 130 (1991) ("[A]n
assumption of the constitutional design was that if Congress
exercised [its enumerated] powers through legislation, its laws
would supersede any competing ones").
59 The Court attempts to sidestep this history by distinguishing
sovereign immunity as somehow different from other common-law
principles.
Ante, at 69. But see
Chisholm v.
Georgia, 2 Dall., at 435 (Iredell, J., dissenting) (arguing
that the common law of England should control the case "so far as
it is applicable to the peculiar circumstances of the country, and
where no special act of Legislation controuls it"). The Court
cannot find solace in any distinction between "substantive rules of
law" and "ju-
165
2
History confirms the wisdom of Madison's abhorrence of
constitutionalizing common-law rules to place them beyond the reach
of congressional amendment. The Framers feared judicial power over
substantive policy and the ossification of law that would result
from transforming common law into constitutional law, and their
fears have been borne out every time the Court has ignored
Madison's counsel on subjects that we generally group under
economic and social policy. It is, in fact, remarkable that as we
near the end of this
risdiction,"
ante, at 69, however; it is abundantly clear
that we have drawn both sorts of principles from the common law.
See,
e. g., Burnham v.
Superior Court of Cal., County of
Marin, 495 U. S.
604, 609 (1990) (plurality opinion of SCALIA, J.) (noting that
American notion of personal jurisdiction is a "common-law
principle" that predates the Fourteenth Amendment). Nothing in the
history, moreover, suggests that common-law rules were more
immutable when they were jurisdictional rather than substantive in
nature. Nor is it true that "the principle of state sovereign
immunity stands distinct from other principles of the common law in
that only the former prompted a specific constitutional amendment."
Ante, at 69. The Seventh Amendment, after all, was adopted
to respond to Antifederalist concerns regarding the right to jury
trial. See n. 34,
supra. Indeed, that Amendment vividly
illustrates the distinction between provisions intended to adopt
the common law (the Amendment specifically mentions the "common
law" and states that the common-law right "shall be preserved") and
those provisions, like the Eleventh Amendment, that may have been
inspired by a common-law right but include no language of adoption
or specific reference. Finally, the Court's recourse to a vague
"jurisprudence in all civilized nations,"
ante, at 69,
rather than the common law of England is unavailing. When the
Constitution has received such general principles into our law, for
example, in the Admiralty Clause's adoption of the general "law of
nations" or "law of the sea," those principles have always been
subject to change by congressional enactment. See,
e. g., Panama
R. Co. v.
Johnson, 264 U. S. 375, 386 (1924)
(noting that although "the principles of the general maritime law,
sometimes called the law of the sea," were "embodied" in Art. III,
§ 2, of the Constitution, they remained "subject to power in
Congress to alter, qualify or supplement");
The Nereide, 9
Cranch 388, 423 (1815) (Marshall, C. J.) (stating that the Court
would be "bound by the law of nations" until Congress passed a
contrary enactment).
166
century the Court should choose to open a new constitutional
chapter in confining legislative judgments on these matters by
resort to textually unwarranted common-law rules, for it was just
this practice in the century's early decades that brought this
Court to the nadir of competence that we identify with
Lochner v.
New York, 198 U. S. 45 (1905).60
It was the defining characteristic of the
Lochner era,
and its characteristic vice, that the Court treated the commonlaw
background (in those days, common-law property rights and
contractual autonomy) as paramount, while regarding congressional
legislation to abrogate the common law on these economic matters as
constitutionally suspect. See,
e. g., Adkins v.
Childrens
Hospital of D. c.,
261 U. S. 525, 557 (1923)
(finding abrogation of common-law freedom to contract for any wage
an unconstitutional "compulsory exaction"); see generally Sunstein,
Lochner's Legacy, 87 Colum. L. Rev. 873 (1987). And yet the
superseding lesson that seemed clear after
West Coast Hotel
Co. v.
Parrish, 300 U. S. 379 (1937),
that action within the legislative power is not subject to greater
scrutiny merely because it trenches upon the case law's ordering of
economic and social relationships, seems to have been lost on the
Court.
The majority today, indeed, seems to be going
Lochner one
better. When the Court has previously constrained the express
Article I powers by resort to common-law or background principles,
it has done so at least in an ostensible effort to give content to
some other written provision of the Constitution, like the Due
Process Clause, the very object of
60 Cf.
United States v.
Lopez, 514 U. S. 549, 606 (1995)
(SOUTER, J., dissenting) ("The fulcrums of judicial review in [the
Lochner cases] were the notions of liberty and property
characteristic of laissez-faire economics, whereas the Commerce
Clause cases turned on what was ostensibly a structural limit of
federal power, but under each conception of judicial review the
Court's character for the first third of the century showed itself
in exacting judicial scrutiny of a legislature's choice of economic
ends and of the legislative means selected to reach them").
167
which is to limit the exercise of governmental power. See,
e. g., Adair v.
United States, 208 U. S. 161 (1908).
Some textual argument, at least, could be made that the Court was
doing no more than defining one provision that happened to be at
odds with another. Today, however, the Court is not struggling to
fulfill a responsibility to reconcile two arguably conflicting and
Delphic constitutional provisions, nor is it struggling with any
Delphic text at all. For even the Court concedes that the
Constitution's grant to Congress of plenary power over relations
with Indian tribes at the expense of any state claim to the
contrary is unmistakably clear, and this case does not even
arguably implicate a textual trump to the grant of federal-question
jurisdiction.
I know of only one other occasion on which the Court has spoken
of extending its reach so far as to declare that the plain text of
the Constitution is subordinate to judicially discoverable
principles untethered to any written provision. Justice Chase once
took such a position almost 200 years ago:
"There are certain vital principles in our free Republican
governments, which will determine and over-rule an apparent and
flagrant abuse of legislative power .... An act of the Legislature
(for I cannot call it a law) contrary to the great first principles
of the social compact, cannot be considered a rightful exercise of
legislative authority." Calder v. Bull, 3 Dall. 386,
388 (1798) (emphasis deleted).
This position was no less in conflict with American
constitutionalism in 1798 than it is today, being inconsistent with
the Framers' view of the Constitution as fundamental law. Justice
Iredell understood this, and dissented (again) in an opinion that
still answers the position that "vital" or "background" principles,
without more, may be used to confine a clear constitutional
provision:
"[S]ome speculative jurists have held, that a legislative act
against natural justice must, in itself, be void; but I
168
cannot think that, under such a government, any Court of Justice
would possess a power to declare it so ....
" ... [I]t has been the policy of the American states, ... and
of the people of the United States ... to define with precision the
objects of the legislative power, and to restrain its exercise
within marked and settled boundaries. If any act of Congress, or of
the Legislature of a state, violates those constitutional
provisions, it is unquestionably void .... If, on the other hand,
the Legislature of the Union, or the Legislature of any member of
the Union, shall pass a law, within the general scope of their
constitutional power, the Court cannot pronounce it to be void,
merely because it is, in their judgment, contrary to the principles
of natural justice. The ideas of natural justice are regulated by
no fixed standard: the ablest and the purest men have differed upon
the subject; and all that the Court could properly say, in such an
event, would be, that the Legislature (possessed of an equal right
of opinion) had passed an act which, in the opinion of the judges,
was inconsistent with the abstract principles of natural justice."
Id., at 398-399 (emphasis deleted) (opinion dissenting in
part).
Later jurisprudence vindicated Justice Iredell's view, and the
idea that "first principles" or concepts of "natural justice" might
take precedence over the Constitution or other positive law "all
but disappeared in American discourse." J. Ely, Democracy and
Distrust 52 (1980). It should take more than references to
"background principle[s],"
ante, at 72, and "implicit
limitation[s],"
Welch, 483 U. S., at 496 (SCALIA, J.,
concurring in part and concurring in judgment), to revive the
judicial power to overcome clear text unopposed to any other
provision, when that clear text is in harmony with an almost
equally clear intent on the part of the Framers and the
constitutionalists of their generation.
169
IV
The Court's holding that the States'
Hans immunity may
not be abrogated by Congress leads to the final question in this
case, whether federal-question jurisdiction exists to order
prospective relief enforcing IGRA against a state officer,
respondent Chiles, who is said to be authorized to take the action
required by the federal law. Just as with the issue about authority
to order the State as such, this question is entirely
jurisdictional, and we need not consider here whether petitioner
Seminole Tribe would have a meritorious argument for relief, or how
much practical relief the requested order (to bargain in good
faith) would actually provide to the Tribe. Nor, of course, does
the issue turn in any way on one's views about the scope of the
Eleventh Amendment or
Hans and its doctrine, for we ask
whether the state officer is subject to jurisdiction only on the
assumption that action directly against the State is barred. The
answer to this question is an easy yes, the officer is subject to
suit under the rule in
Ex parte Young, 209 U. S. 123 (1908), and
the case could, and should, readily be decided on this point
alone.
A
In
Ex parte Young, this Court held that a federal court
has jurisdiction in a suit against a state officer to enjoin
official actions violating federal law, even though the State
itself may be immune. Under
Young, "a federal court,
consistent with the Eleventh Amendment, may enjoin state officials
to conform their future conduct to the requirements of federal
law."
Quern v.
Jordan, 440 U. S. 332, 337
(1979); see also
Milliken v.
Bradley, 433 U. S. 267, 289
(1977).
The fact, without more, that such suits may have a significant
impact on state governments does not count under
Young.
Milliken, for example, was a suit, under the authority of
Young, brought against Michigan's Governor, Attorney
General, Board of Education, Superintendent of Public In-
170
struction, and Treasurer, which resulted in an order obligating
the State of Michigan to pay money from its treasury to fund an
education plan. The relief requested (and obtained) by the
plaintiffs effectively ran against the State: state moneys were to
be removed from the state treasury, and they were to be spent to
fund a remedial education program that it would be the State's
obligation to implement. To take another example,
Quern v.
Jordan involved a court order requiring state officials to
notify welfare beneficiaries of the availability of past benefits.
Once again, the defendants were state officials, but it was the
obligation of the State that was really at issue: the notices would
be sent from the state welfare agency, to be returned to the state
agency, and the state agency would pay for the notices and any
ensuing awards of benefits. Indeed, in the years since
Young
was decided, the Court has recognized only one limitation on the
scope of its doctrine: under
Edelman v.
Jordan,
415 U. S. 651
(1974), Young permits prospective relief only and may not be
applied to authorize suits for retrospective monetary relief.
It should be no cause for surprise that
Young itself
appeared when it did in the national law. It followed as a matter
of course after the
Hans Court's broad recognition of
immunity in federal-question cases, simply because "[r]emedies
designed to end a continuing violation of federal law are necessary
to vindicate the federal interest in assuring the supremacy of that
law."
Green v.
Mansour, 474 U. S. 64, 68
(1985). Young provided, as it does today, a sensible way to
reconcile the Court's expansive view of immunity expressed in
Hans with the principles embodied in the Supremacy Clause
and Article III.
If
Young may be seen as merely the natural consequence of
Hans, it is equally unsurprising as an event in the longer
history of sovereign immunity doctrine, for the rule we speak of
under the name of
Young is so far inherent in the
jurisdictional limitation imposed by sovereign immunity as to have
been recognized since the Middle Ages. For that
171
long it has been settled doctrine that suit against an officer
of the Crown permitted relief against the government despite the
Crown's immunity from suit in its own courts and the maxim that the
King could do no wrong. See Jaffe, 77 Harv. L. Rev., at 3, 18-19;
Ehrlich, No. XII: Proceedings Against the Crown (1216-1377), pp.
28-29, in 6 Oxford Studies in Social and Legal History (P.
Vinogradoff ed. 1921). An early example, from "time immemorial" of
a claim "affecting the Crown [that] could be pursued in the regular
courts [without consent since it] did not take the form of a suit
against the Crown," Jaffe,
supra, at 1, was recognized by
the Statute of Westminster I, 1275, which established a writ of
disseisin against a King's officers. When a King's officer
disseised any person in the King's name, the wrongfully deprived
party could seek the draconian writ of attaint against the officer,
by which he would recover his land. Jaffe, 77 Harv. L. Rev., at 9.
Following this example forward, we may see how the writ of attaint
was ultimately overtaken by the more moderate common-law writs of
certiorari and mandamus, "operat[ing] directly on the government;
[and commanding] an officer not as an individual but as a
functionary."
Id., at 16. Thus the Court of King's Bench
made it clear in 1701 that "wherever any new jurisdiction is
erected, be it by private or public Act of Parliament, they are
subject to the inspections of this Court by writ of error, or by
certiorari and
mandamus." The Case of Cardiffe
Bridge, 1 Salk. 146, 91 Eng. Rep. 135 (K. B.).
B
This history teaches that it was only a matter of course that
once the National Constitution had provided the opportunity for
some recognition of state sovereign immunity, the necessity
revealed through six centuries or more of history would show up in
suits against state officers, just as
Hans would later open
the door to
Ex parte Young itself. Once, then, the Eleventh
Amendment was understood to forbid suit
172
against a State
eo nomine, the question arose "which
suits against officers will be allowed and which will not be."
Jaffe, 77 Harv. L. Rev., at 20.
"It early became clear that a suit against an officer was not
forbidden simply because it raised a question as to the legality of
his action as an agent of government or because it required him, as
in mandamus, to perform an official duty. These as we know had been
well established before the eleventh amendment as not necessarily
requiring consent. To be sure the renewed emphasis on immunity
given by the eleventh amendment might conceivably have been taken
so to extend the doctrine as to exclude suits against state
officers even in cases where the English tradition would have
allowed them. There was a running battle as to where the line would
be drawn. The amendment was appealed to as an argument for generous
immunity. But there was the vastly powerful counterpressure for the
enforcement of constitutional limits on the states. The upshot ...
was to confine the amendment's prohibition more or less to the
occasion which gave it birth, to wit, the enforcement of contracts
and to most (though not all) suits involving the title and
disposition of a state's real and personal property." Id.,
at 20-21.
The earliest cases,
United States v.
Peters, 5
Cranch 115 (1809), and
Osborn v.
Bank of United
States, 9 Wheat. 738 (1824), embrace the English practice of
permitting suits against officers, see Orth, Judicial Power of the
United States, at 34-35, 40-41, 122, by focusing almost exclusively
on whether the State had been named as a defendant.
Governor of Georgia v.
Madrazo, 1 Pet. 110,
123-124 (1828), shifted this analysis somewhat, finding that a
Governor could not be sued because he was sued "not by his name,
but by his title," which was thought the functional equivalent of
suing the State itself.
Madrazo did not, however, erase
the
173
fundamental principle of
Osborn that sovereign immunity
would not bar a suit against a state officer. See,
e. g.,
Davis v.
Gray, 16 Wall. 203 (1873) (applying
Osborn by enjoining the Governor of Texas to interfere with
the possession of land granted by the State);
United States
v.
Lee, 106 U.
S. 196 (1882) (applying
Osborn in context of federal
sovereign immunity).
This simple rule for recognizing sovereign immunity without
gutting substantial rights was temporarily muddled in
Louisiana v.
Jumel, 107 U. S. 711 (1883),
where the Court, although it "did not clearly say why," refused to
hear a suit that would have required a state treasurer to levy
taxes to pay interest on a bond. Currie, Sovereign Immunity and
Suits Against Government Officers, 1984 S. Ct. Rev. 149, 152. (One
recalls the circumstances of
Hans itself, see
supra,
at 117-121.) The Court, however, again applied
Osborn in the
Virginia Coupon Cases, 114 U. S. 269 (1885)
(permitting injunctions, restitution, and damages against state
officers who seized property to collect taxes already paid with
interest coupons the State had agreed to accept).
In re Ayers,
123 U. S. 443, 502 (1887), sought to rationalize the competing
strands of doctrine on the ground that an action may be "sustained
only in those instances where the act complained of, considered
apart from the official authority alleged as its justification, and
as the personal act of the individual defendant, constituted a
violation of right for which the plaintiff was entitled to a remedy
at law or in equity against the wrongdoer in his individual
character."
Ex parte Young restored the old simplicity by
complementing
In re Ayers with the principle that state
officers never have authority to violate the Constitution or
federal law, so that any illegal action is stripped of state
character and rendered an illegal individual act. Suits against
these officials are consequently barred by neither the Eleventh
Amendment nor
Hans immunity. The officer's action "is simply
an illegal act upon the part of a state official in at-
174
tempting by the use of the name of the State to enforce a
legislative enactment which is void because unconstitutional. ...
The State has no power to impart to him any immunity from
responsibility to the supreme authority of the United States."
Ex parte Young, 209 U. S., at 159-160.
The decision in
Ex parte Young, and the historic doctrine
it embodies, thus plays a foundational role in American
constitutionalism, and while the doctrine is sometimes called a
"fiction," the long history of its felt necessity shows it to be
something much more estimable, as we may see by considering the
facts of the case. "Young was really and truly about to damage the
interest of plaintiffs. Whether what he was about to do amounted to
a legal injury depended on the authority of his employer, the
state. If the state could constitutionally authorize the act then
the loss suffered by plaintiffs was not a wrong for which the law
provided a remedy .... If the state could not constitutionally
authorize the act then Young was not acting by its authority."
Orth, Judicial Power of the United States, at 133. The doctrine we
call
Ex parte Young is nothing short of "indispensable to
the establishment of constitutional government and the rule of
law." C. Wright, Law of Federal Courts 292 (4th ed. 1983). See also
Chemerinsky, Federal Jurisdiction, at 393.
A rule of such lineage, engendered by such necessity, should not
be easily displaced, if indeed it is displaceable at all, for it
marks the frontier of the enforceability of federal law against
sometimes competing state policies. We have in fact never before
inferred a congressional intent to eliminate this time-honored
practice of enforcing federal law. That, of course, does not mean
that the intent may never be inferred, and where, as here, the
underlying right is one of statutory rather than constitutional
dimension, I do not in theory reject the Court's assumption that
Congress may bar enforcement by suit even against a state official.
But because in practice, in the real world of congressional
legislation, such
175
an intent would be exceedingly odd, it would be equally odd for
this Court to recognize an intent to block the customary
application of
Ex parte Young without applying the rule
recognized in our previous cases, which have insisted on a clear
statement before assuming a congressional purpose to "affec[t] the
federal balance,"
United States v.
Bass, 404 U. S. 336, 349
(1971). See also
Will v.
Michigan Dept. of State
Police, 491 U. S.
58, 65 (1989) ("[I]f Congress intends to alter the 'usual
constitutional balance between the States and the Federal
Government,' it must make its intention to do so 'unmistakably
clear in the language of the statute''') (quoting
Atascadero
State Hospital v.
Scanlon, 473 U. S., at 242);
Gregory v.
Ashcroft, 501 U. S. 452, 460-461
(1991). Our habitual caution makes sense for just the reason we
mentioned in
Dellmuth v.
Muth, 491 U. S., at 230-231:
it is "difficult to believe that ... Congress, taking careful stock
of the state of Eleventh Amendment law, decided it would drop coy
hints but stop short of making its intention manifest."
C
There is no question that by its own terms
Young's
indispensable rule authorizes the exercise of federal jurisdiction
over respondent Chiles. Since this case does not, of course,
involve retrospective relief,
Edelman's limit is irrelevant,
and there is no other jurisdictional limitation. Obviously, for
jurisdictional purposes it makes no difference in principle whether
the injunction orders an official not to act, as in
Young,
or requires the official to take some positive step, as in
Milliken or
Quern. Nothing, then, in this case
renders
Young unsuitable as a jurisdictional basis for
determining on the merits whether petitioner is entitled to an
order against a state official under general equitable doctrine.
The Court does not say otherwise, and yet it refuses to apply
Young. There is no adequate reason for its refusal.
No clear statement of intent to displace the doctrine of
Ex
parte Young occurs in IGRA, and the Court is instead
176
constrained to rest its effort to skirt
Young on a series
of suggestions thought to be apparent in Congress's provision of
"intricate procedures" for enforcing a State's obligation under the
Act. The procedures are said to implicate a rule against judicial
creativity in devising supplementary procedures; it is said that
applying
Young would nullify the statutory procedures; and
finally the statutory provisions are said simply to reveal a
congressional intent to preclude the application of
Young.
1
The Court cites
Schweiker v.
Chilicky, 487 U. S. 412, 423
(1988), in support of refraining from what it seems to think would
be judicial creativity in recognizing the applicability of
Young. The Court quotes from
Chilicky for the general
proposition that when Congress has provided what it considers
adequate remedial mechanisms for violations of federal law, this
Court should not "creat[eJ" additional remedies.
Ante, at
74. The Court reasons that Congress's provision in IGRA of
"intricate procedures" shows that it considers its remedial
provisions to be adequate, with the implication that courts as a
matter of prudence should provide no "additional" remedy under
Ex parte Young. Ante, at 73-76.
Chilicky's remoteness from the point of this case is,
however, apparent from its facts. In
Chilicky, Congress had
addressed the problem of erroneous denials of certain government
benefits by creating a scheme of appeals and awards that would make
a successful claimant whole for all benefits wrongly denied. The
question was whether this Court should create a further remedy on
the model of
Bivens v.
Six Unknown Fed. Narcotics
Agents, 403 U. S.
388 (1971), for such harms as emotional distress, when the
erroneous denial of benefits had involved a violation of procedural
due process. The issue, then, was whether to create a supplemental
remedy, backward looking on the
Bivens model, running
against a federal official in his personal capacity, and requiring
an
177
affirmative justification (as
Bivens does). See
Bivens, supra; FDIC v.
Meyer, 510 U. S. 471, 484-486
(1994).
The
Bivens issue in
Chilicky (and in
Meyer)
is different from the
Young issue here in every significant
respect.
Young is not an example of a novel rule that a
proponent has a burden to justify affirmatively on policy grounds
in every context in which it might arguably be recognized; it is a
general principle of federal equity jurisdiction that has been
recognized throughout our history and for centuries before our own
history began.
Young does not provide retrospective monetary
relief but allows prospective enforcement of federal law that is
entitled to prevail under the Supremacy Clause. It requires not
money payments from a government employee's personal pocket, but
lawful conduct by a public employee acting in his official
capacity.
Young would not function here to provide a merely
supplementary regime of compensation to deter illegal action, but
the sole jurisdictional basis for an Article III court's
enforcement of a clear federal statutory obligation, without which
a congressional act would be rendered a nullity in a federal court.
One cannot intelligibly generalize from
Chilicky's standards
for imposing the burden to justify a supplementary scheme of tort
law to the displacement of
Young's traditional and
indispensable jurisdictional basis for ensuring official compliance
with federal law when a State itself is immune from suit.
2
Next, the Court suggests that it may be justified in displacing
Young because
Young would allow litigants to ignore
the "intricate procedures" of IGRA in favor of a menu of
streamlined equity rules from which any litigant could order as he
saw fit. But there is no basis in law for this suggestion, and the
strongest authority to reject it.
Young did not establish a
new cause of action and it does not impose any particular
procedural regime in the suits it permits. It stands, instead, for
a jurisdictional rule by which paramount
178
federal law may be enforced in a federal court by substituting a
nonimmune party (the state officer) for an immune one (the State
itself).
Young does no more and furnishes no authority for
the Court's assumption that it somehow pre-empts procedural rules
devised by Congress for particular kinds of cases that may depend
on
Young for federal jurisdiction.61
If, indeed, the Court were correct in assuming that Congress may
not regulate the procedure of a suit jurisdictionally dependent on
Young, the consequences would be revolutionary, for example,
in habeas law. It is well established that when a habeas corpus
petitioner sues a state official alleging detention in violation of
federal law and seeking the prospective remedy of release from
custody, it is the doctrine identified in
Ex parte Young
that allows the petitioner to evade the jurisdictional bar of the
Eleventh Amendment (or, more properly, the
Hans doctrine).
See
Young, 209 U. S., at
167-168; Larson v.
Domestic and Foreign Commerce Corp., 337 U. S. 682, 689-690
(1949).62 And yet Congress has im-
61 The Court accuses me of misrepresenting its argument.
Ante, at 75, n. 17. The Court's claim, as I read it, is not
that Congress cannot authorize federal jurisdiction under
Ex
parte Young over a cause of action with a limited remedial
scheme, but rather that remedial limitations on the underlying
cause of action do not apply to a claim based on
Ex parte
Young. Otherwise, the existence of those remedial limitations
would provide no reason for the Court to assume that Congress did
not intend to permit an action under
Young; rather, the
limitations would apply regardless of whether the suit was brought
against the State or a state officer.
62 See also
Brennan v.
Stewart, 834 F.2d
1248, 1252, n. 6
(CA5 1988) ("[A]lthough not usually
conceptualized as
Ex parte Young cases, most of the huge
number of habeas claims in the federal courts under 28 U. S. C. §
2254 are effectively suits against the states. These suits pass
muster under the Eleventh Amendment because the habeas theory of a
civil suit against the bad jailer fits perfectly with the
Ex
parte Young fiction");
United States ex rel. Elliott v.
Hendricks, 213 F.2d
922, 926-928
(CA3) (exercising jurisdiction over a
habeas suit despite an Eleventh Amendment challenge on the theory
that the suit was against a state officer), cert. denied, 348 U. S.
851 (1954).
179
posed a number of restrictions upon the habeas remedy, see,
e. g., 28 U. s. C. § 2254(b) (requiring exhaustion of
state remedies prior to bringing a federal habeas petition), and
this Court has articulated several more, see,
e. g.,
McCleskey v.
Zant, 499 U. S. 467 (1991)
(abuse of the writ);
Teague v.
Lane, 489 U. S. 288 (1989)
(limiting applicability of "new rules" on habeas);
Brecht v.
Abrahamson, 507 U. S. 619 (1993)
(applying a more deferential harmless-error standard on habeas
review). By suggesting that
Ex parte Young provides a
free-standing remedy not subject to the restrictions otherwise
imposed on federal remedial schemes (such as habeas corpus), the
Court suggests that a state prisoner may circumvent these
restrictions by ostensibly bringing his suit under
Young
rather than 28 U. S. C. § 2254. The Court's view implies similar
consequences under any number of similarly structured federal
statutory schemes.63
This, of course, cannot be the law, and the plausible rationale
for rejecting the Court's contrary assumption is that Congress has
just as much authority to regulate suits when jurisdiction depends
on
Young as it has to regulate when
Young is out of
the jurisdictional picture. If
Young does not preclude
Congress from requiring state exhaustion in habeas cases (and it
clearly does not), then
Young does not bar the application
of IGRA's procedures when effective relief is sought by suing a
state officer.
3
The Court's third strand of reasoning for displacing
Ex
parte Young is a supposed inference that Congress so in-
63 Many other federal statutes impose obligations on state
officials, the enforcement of which is subject to "intricate
provisions" also statutorily provided. See,
e. g.,
Federal Water Pollution Control Act, 33 U. S. C. § 1365(a)
(citizen-suit provision to enforce States' obligations under
federal environmental law); Emergency Planning and Community
Right-To-Know Act, 42 U. S. C. § 11001 (privately enforceable
requirement that States form commissions, appointed by the
Governor, to generate plans for addressing hazardous material
emergencies).
180
tended. Since the Court rests this inference in large part on
its erroneous assumption that the statute's procedural limitations
would not be applied in a suit against an officer for which
Young provided the jurisdictional basis, the error of that
assumption is enough to show the unsoundness of any inference that
Congress meant to exclude
Young's application. But there are
further reasons pointing to the utter implausibility of the Court's
reading of the congressional mind.
IGRA's jurisdictional provision reads as though it had been
drafted with the specific intent to apply to officer liability
under
Young. It provides that "[t]he United States district
courts shall have jurisdiction over ... any cause of action ...
arising from the failure of a State to enter into
negotiations ... or to conduct such negotiations in good faith." 25
U. S. C. § 2710(d)(7)(A)(i) (emphasis added). This language does
not limit the possible defendants to States and is quite literally
consistent with the possibility that a tribe could sue an
appropriate state official for a State's failure to negotiate.64
The door is so obviously just as open to jurisdiction over an
officer under
Young as to jurisdiction over a State directly
that it is difficult to see why the statute would have been drafted
as it was unless it was done in anticipation that
Young
might well be the jurisdictional basis for enforcement action.
But even if the jurisdictional provision had spoken narrowly of
an action against the State itself (as it subsequently speaks in
terms of the State's obligation), that would be no indication that
Congress had rejected the application of
Young. An order
requiring a "State" to comply with federal
64 In order for any person (whether individual or entity) to be
a proper defendant under § 2710(d)(7) (and in order for standing to
exist, since one of its requirements is redressability), that
person, of course, would need to have some connection to the
State's negotiations. See
Young, 209 U. S., at 157;
Franklin v.
Massachusetts, 505 U. S. 788, 803
(1992). The obvious candidates are the responsible state
officials.
181
law can, of course, take the form of an order directed to the
State in its sovereign capacity. But as
Ex parte Young and
innumerable other cases show, there is nothing incongruous about a
duty imposed on a "State" that Congress intended to be effectuated
by an order directed to an appropriate state official. The habeas
corpus statute, again, comes to mind. It has long required "the
State," by "order directed to an appropriate State official," to
produce the state-court record where an indigent habeas petitioner
argues that a state court's factual findings are not fairly
supported in the record. See 28 U. S. C. § 2254(e) ("the State
shall produce such part of the record and the Federal court shall
direct the State to do so by order directed to an appropriate State
official"). If, then, IGRA's references to "a State's" duty were
not enforceable by order to a state official, it would have to be
for some other reason than the placement of the statutory duty on
"the State."
It may be that even the Court agrees, for it falls back to the
position, see
ante, at 75, n. 17, that only a State, not a
state officer, can enter into a compact. This is true but wholly
beside the point. The issue is whether negotiation should take
place as required by IGRA and an officer (indeed, only an officer)
can negotiate. In fact, the only case cited by the Court,
State
ex rel. Stephan v.
Finney, 251 Kan. 559, 836 P. 2d 1169
(1992), makes that distinction abundantly clear.
Finally, one must judge the Court's purported inference by
stepping back to ask why Congress could possibly have intended to
jeopardize the enforcement of the statute by excluding application
of
Young's traditional jurisdictional rule, when that rule
would make the difference between success or failure in the federal
court if state sovereign immunity was recognized. Why would
Congress have wanted to go for broke on the issue of state immunity
in the event the State pleaded immunity as a jurisdictional bar?
Why would Congress not have wanted IGRA to be enforced by means
of
182
a traditional doctrine giving federal courts jurisdiction over
state officers, in an effort to harmonize state sovereign immunity
with federal law that is paramount under the Supremacy Clause?
There are no plausible answers to these questions.
D
There is, finally, a response to the Court's rejection of
Young that ought to go without saying. Our longstanding
practice is to read ambiguous statutes to avoid constitutional
infirmity,
Edward J. DeBartolo Corp. v.
Florida Gulf Coast Building &
Constr. Trades
Council, 485 U.
S. 568, 575 (1988) (" 'every reasonable construction must be
resorted to, in order to save a statute from
unconstitutionality''') (quoting
Hooper v.
California, 155 U. S. 648, 657
(1895)). This practice alone (without any need for a clear
statement to displace
Young) would be enough to require
Young's application. So, too, would the application of
another rule, requiring courts to choose any reasonable
construction of a statute that would eliminate the need to confront
a contested constitutional issue (in this case, the place of state
sovereign immunity in federal-question cases and the status of
Union Gas). NLRB v.
Catholic Bishop of Chicago,
440 U. S. 490,
500-501 (1979). Construing the statute to harmonize with
Young, as it readily does, would have saved an Act of
Congress and rendered a discussion on constitutional grounds wholly
unnecessary. This case should be decided on this basis alone.
v
Absent the application of
Ex parte Young, I would, of
course, follow
Union Gas in recognizing congressional power
under Article I to abrogate
Hans immunity. Since the reasons
for this position, as explained in Parts II-III,
supra, tend
to unsettle
Hans as well as support
Union Gas, I
should add a word about my reasons for continuing to accept
Hans's holding as a matter of
stare decisis.
183
The
Hans doctrine was erroneous, but it has not
previously proven to be unworkable or to conflict with later
doctrine or to suffer from the effects of facts developed since its
decision (apart from those indicating its original errors). I would
therefore treat
Hans as it has always been treated in fact
until today, as a doctrine of federal common law. For, as so
understood, it has formed one of the strands of the federal
relationship for over a century now, and the stability of that
relationship is itself a value that
stare decisis aims to
respect.
In being ready to hold that the relationship may still be
altered, not by the Court but by Congress, I would tread the course
laid out elsewhere in our cases. The Court has repeatedly stated
its assumption that insofar as the relative positions of States and
Nation may be affected consistently with the Tenth Amendment,65
they would not be modified without deliberately expressed intent.
See
Gregory v.
Ashcroft, 501 U. S., at 460-461. The
plain-statement rule, which "assures that the legislature has in
fact faced, and intended to bring into issue, the critical matters
involved in the judicial decision,"
United States v.
Bass, 404 U. S., at 349, is particularly appropriate in
light of our primary reliance on "[t]he effectiveness of the
federal political process in preserving the States' interests,"
Garcia v.
San Antonio Metropolitan Transit Authority,
469 U. S. 528,
552 (1985).66 Hence, we
65 The scope of the Tenth Amendment's limitations of
congressional power remains a subject of debate.
New York v.
United States, 505 U. S. 144 (1992),
holds that principles of federalism are "violated by a formal
command from the National Government directing the State to enact a
certain policy."
United States v.
Lopez, 514 U. S.,
at 583 (KENNEDY, J., concurring). Some suggest that the prohibition
extends further than barring the Federal Government from directing
the creation of state law. The views I express today should not be
understood to take a position on that disputed question.
66 See also The Federalist No. 46, at 319 (J. Madison)
(explaining that the Federal Government "will partake sufficiently
of the spirit [of the States], to be disinclined to invade the
rights of the individual States, or the pre-
184
have required such a plain statement when Congress preempts the
historic powers of the States,
Rice v.
Santa Fe Elevator
Corp., 331 U. S.
218, 230 (1947), imposes a condition on the grant of federal
moneys,
South Dakota v.
Dole, 483 U. S. 203, 207
(1987), or seeks to regulate a State's ability to determine the
qualifications of its own officials,
Gregory, supra, at
464.
When judging legislation passed under unmistakable Article I
powers, no further restriction could be required. Nor does the
Court explain why more could be demanded. In the past, we have
assumed that a plain-statement requirement is sufficient to protect
the States from undue federal encroachments upon their traditional
immunity from suit. See,
e. g., Welch v.
Texas Dept. of
Highways &
Public Transp., 483 U. S., at 475;
Atascadero State Hospital v.
Scanlon, 473 U. S., at
239-240. It is hard to contend that this rule has set the bar too
low, for (except in
Union Gas) we have never found the
requirement to be met outside the context of laws passed under § 5
of the Fourteenth Amendment. The exception I would recognize today
proves the rule, moreover, because the federal abrogation of state
immunity comes as part of a regulatory scheme which is itself
designed to invest the States with regulatory powers that Congress
need not extend to them. This fact suggests to me that the
political safeguards of federalism are working, that a
plainstatement rule is an adequate check on congressional
overreaching, and that today's abandonment of that approach is
wholly unwarranted.
There is an even more fundamental "clear statement" principle,
however, that the Court abandons today. John Marshall recognized it
over a century and a half ago in the very context of state
sovereign immunity in federal-question cases:
rogatives of their governments"); Wechsler, The Political
Safeguards of Federalism: The Role of the States in the Composition
and Selection of the National Government, 54 Colum. L. Rev. 543
(1954).
185
"The jurisdiction of the court, then, being extended by the
letter of the constitution to all cases arising under it, or under
the laws of the United States, it follows that those who would
withdraw any case of this description from that jurisdiction, must
sustain the exemption they claim on the spirit and true meaning of
the constitution, which spirit and true meaning must be so apparent
as to overrule the words which its framers have employed."
Cohens v. Virginia, 6 Wheat., at 379-380.
Because neither text, precedent, nor history supports the
majority's abdication of our responsibility to exercise the
jurisdiction entrusted to us in Article III, I would reverse the
judgment of the Court of Appeals.
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