JOHN H. ALDEN,
ET AL., PETITIONERS v.
527
JUSTICE KENNEDY delivered the opinion of the Court.
In 1992, petitioners, a group of
probation officers, filed suit against their employer, the State of
The Maine Supreme Judicial Court's
decision conflicts with the decision of the Supreme Court of Arkansas, Jacoby
v. Arkansas Dept. of Ed., 331 Ark. 508, 962 S.W.2d 773 (1998), and calls
into question the constitutionality of the provisions of the FLSA purporting to
authorize private actions against States in their own courts without regard for
consent, see 29 U.S.C. § § 216(b), 203(x).
In light of the importance of the question presented and the conflict between
the courts, we granted certiorari. 525
We hold that the powers delegated
to Congress under Article I of the United States Constitution do not include
the power to subject nonconsenting States to private suits for damages in state
courts. We decide as well that the State of
I
[***LEdHR3B] [3B]The Eleventh Amendment makes explicit
reference to the States' immunity from suits "commenced or prosecuted
against one of the
A
[***LEdHR5] [5]Although the Constitution establishes a
National Government with broad, often plenary authority over matters within its
recognized competence, the founding document "specifically recognizes the
States as sovereign entities." Seminole Tribe of Fla. v.
[***LEdHR6] [6]The federal system established by our
Constitution preserves the sovereign status of the States in two ways. First,
it reserves to them a substantial portion of the Nation's primary sovereignty,
together with the dignity and essential attributes inhering in that status. The
States "form distinct and independent portions of the supremacy, no more
subject, within their respective spheres, to the general authority than the
general authority is subject to them, within its own sphere." The
Federalist No. 39, p. 245 (C. Rossiter ed. 1961) (J. Madison).
Second, even as to matters within
the competence of the National Government, the constitutional design secures the
founding generation's rejection of "the concept of a central government
that would act upon and through the States" in favor of "a system in
which the State and Federal Governments would exercise concurrent authority
over the people -- who were, in Hamilton's words, 'the only proper objects of
government.'" Printz, supra,
521
The States thus retain "a
residuary and inviolable sovereignty." The Federalist No. 39, at 245. They
are not relegated to the role of mere provinces or political corporations, but
retain the dignity, though not the full authority, of sovereignty.
B
[***LEdHR3C] [3C]The generation that designed and adopted
our federal system considered immunity from private suits [***654]
central to sovereign dignity. When the Constitution was ratified, it was
well established in English law that the Crown could not be sued without
consent in its own courts. See Chisholm
v. Georgia, 2 Dall. 419, 437-446 (1793) (Iredell, J., dissenting)
(surveying English practice);
[**2248] cf.
"And, first, the law ascribes
to the king the attribute of sovereignty, or pre-eminence . . . . Hence it is,
that no suit or action can be brought against the king, even in civil matters,
because no court can have jurisdiction over him. For all jurisdiction implies
superiority of power . . . ." 1 W. Blackstone, Commentaries on the Laws of
England 234-235 (1765).
Although the American people had
rejected other aspects of English political theory, the doctrine that a
sovereign could not be sued without its consent was universal in the [*716]
States when the Constitution was drafted and ratified. See Chisholm,
supra, at 434-435 (Iredell, J., dissenting) ("I believe there is no
doubt that neither in the State now in question, nor in any other in the Union,
any particular Legislative mode, authorizing a compulsory suit for the recovery
of money against a State, was in being either when the Constitution was
adopted, or at the time the judicial act was passed"); Hans v. Louisiana,
134 U.S. 1, 16, 33 L. Ed. 842, 10 S. Ct. 504 (1890) ("The suability of a
State, without its consent, was a thing unknown to the law. This has been so
often laid down and acknowledged by courts and jurists that it is hardly
necessary to be formally asserted").
The ratification debates,
furthermore, underscored the importance of the States' sovereign immunity to
the American people. Grave concerns were raised by the provisions of Article
III which extended the federal judicial power to controversies between States
and citizens of other States or foreign nations. As we have explained:
"Unquestionably the doctrine of sovereign
immunity was a matter of importance in the early days of independence. Many of
the States were heavily indebted as a result of the Revolutionary War. They were vitally interested in the question
whether the creation of a new federal sovereign, with courts of its own, would
automatically subject them, like lower English lords, to suits in the courts of
the 'higher' sovereign." Hall, supra, at 418 (footnote omitted).
The leading advocates of the
Constitution assured the people in no uncertain terms that the Constitution
would not strip the States of sovereign immunity. One assurance was contained
in The Federalist No. 81, written by Alexander Hamilton:
"It is inherent in the nature
of sovereignty not to be amenable to the suit of an individual without [***655]
its consent. This is the
general sense, and the general practice of
[*717] mankind; and the
exemption, as one of the attributes of sovereignty, is now enjoyed by the
government of every State in the Union. Unless therefore, there is a surrender
of this immunity in the plan of the convention, it will remain with the States,
and the danger intimated must be merely ideal . . . . There is no color to
pretend that the State governments would, by the adoption of that plan, be
divested of the privilege of paying their own debts in their own way, free from
every constraint but that which flows from the obligations of good faith. The
contracts between a nation and individuals are only binding on the conscience
of the sovereign, and have no pretensions to a compulsive force. They confer no
right of action independent of the sovereign Will. To what purpose would it be
to authorize suits against States for the debts they owe? How could recoveries
be enforced? It is evident that it could not be done without waging war against
the contracting State; and to ascribe to the federal courts, by mere
implication, and in destruction of the preexisting right of the State
governments, a power which would involve such a consequence, would be
altogether forced and unwarrantable."
[**2249] Id. at 487-488 (emphasis
in original).
At the Virginia ratifying
convention, James Madison echoed this theme:
"Its jurisdiction in controversies
between a state and citizens of another state is much objected to, and perhaps
without reason. It is not in the power of individuals to call any state into
court . . . .
" . . . It appears to me that
this [clause] can have no operation but this -- to give a citizen a right to be
heard in the federal courts, and if a state should condescend to be a
party, this court may take cognizance of
it." 3 J. Elliot, Debates on the Federal Constitution 533 (2d ed. 1854)
(hereinafter Elliot's Debates). [*718]
When Madison's explanation was
questioned, John Marshall provided immediate support:
"With respect to disputes between a state
and the citizens of another state, its jurisdiction has been decried with
unusual vehemence. I hope no Gentleman will think that a state will be called
at the bar of the federal court. Is there no such case at present? Are there
not many cases in which the Legislature of Virginia is a party, and yet the
State is not sued? It is not rational to suppose, that the sovereign power
shall be dragged before a court. The intent is, to enable states to recover
claims of individuals residing in other states. I contend this construction is
warranted by the words. But, say they, there will be partiality in it if a
State cannot be defendant . . . It is necessary to be so, and cannot be
avoided. I see a difficulty in making a state defendant, which does not prevent
its being plaintiff." 3 id. at 555.
Although the state conventions
which addressed the issue of sovereign immunity in their formal ratification
documents sought to clarify the point by constitutional amendment, they made
clear that they, like Hamilton, Madison, and Marshall, understood the
Constitution as drafted to preserve the States' immunity from private suits.
The Rhode [***656] Island Convention thus proclaimed that
"it is declared by the Convention, that the judicial power of the United
States, in cases in which a state may be a party, does not extend to criminal
prosecutions, or to authorize any suit by any person against a state." 1
id. at 336. The convention sought, in addition, an express amendment "to remove
all doubts or controversies respecting the same." Ibid. In a
similar fashion, the New York Convention "declared and made known," 1
id. at 327, its understanding "that the judicial power of the United
States, in cases in which a state may be a party, does not extend to criminal
prosecutions, or to authorize any suit
[*719] by any person against a
state," 1 id. at 329. The convention proceeded to ratify the Constitution
"under these impressions, and declaring that the rights aforesaid cannot
be abridged or violated, and that the explanations aforesaid are consistent
with the said Constitution, and in confidence that the amendments which shall
have been proposed to the said Constitution will receive an early and mature
consideration." Ibid.
Despite the persuasive assurances
of the Constitution's leading advocates and the expressed understanding of the
only state conventions to address the issue in explicit terms, this Court held,
just five years after the Constitution was adopted, that Article III authorized
a private citizen of another State to sue the State of Georgia without its
consent. Chisholm v. Georgia,
2 Dall. 419 (1793). Each of the four Justices who concurred in the judgment
issued a separate opinion. The common theme of the opinions was that the case
fell within the literal text of Article III, which by its terms granted
jurisdiction over controversies "between a State and Citizens of another
State," and "between a State, or the Citizens thereof, and foreign
States, Citizens, or Subjects." U.S. Const., Art. III, § 2. The argument that this provision granted
jurisdiction only over cases in which the State was a plaintiff was dismissed
as inconsistent with the ordinary meaning of "between," and with the
provision extending jurisdiction to "Controversies between two or more
States," which by necessity
contemplated jurisdiction over suits to which States were defendants. Two
Justices also argued that sovereign immunity was inconsistent with the principle
of popular sovereignty established by the Constitution, see 2 Dall., at 454-458
(Wilson, J.); id. at 470-472 (Jay, C. J.); although the others did not go so
far, they contended that [**2250] the text of Article III evidenced the States'
surrender of sovereign immunity as to those provisions extending jurisdiction
over suits to which States were parties, see id. at 452 (Blair, J.); id. at 468
(Cushing, J.). [*720]
Justice Iredell dissented, relying
on American history, id. at 434-435, English history, id. at 437-446, and the
principles of enumerated powers and separate sovereignty, id. at 435-436, 448,
449-450. See generally Hans, 134 U.S. at 12 ("The other justices
were more swayed by a close observance of the letter of the Constitution,
without regard to former experience and usage . . . . Justice Iredell, on the
contrary, contended that it was not the intention to create new and unheard of
remedies, by subjecting sovereign States to actions at the suit of individuals,
(which he conclusively showed was never done
[***657] before,) but only . . .
to invest the federal courts with jurisdiction to hear and determine
controversies and cases, between the parties designated, that were properly
susceptible of litigation in courts").
The Court's decision "fell
upon the country with a profound shock." 1 C. Warren, The Supreme Court in
United States History 96 (rev. ed. 1926); accord, Hans, supra, at 11; Principality
of Monaco v. Mississippi, 292 U.S. 313, 325, 78 L. Ed. 1282, 54 S.
Ct. 745 (1934); Seminole Tribe, 517 U.S. at 69. "Newspapers
representing a rainbow of opinion protested what they viewed as an unexpected
blow to state sovereignty. Others spoke more concretely of prospective raids on
state treasuries." D. Currie, The Constitution in Congress: The Federalist
Period 1789-1801, p. 196 (1997).
The States, in particular,
responded with outrage to the decision. The Massachusetts Legislature, for
example, denounced the decision as "repugnant to the first principles of a
federal government," and called upon the State's Senators and Representatives
to take all necessary steps to "remove any clause or article of the
Constitution, which can be construed to imply or justify a decision, that, a
State is compellable to answer in any suit by an individual or individuals in
any Court of the United States." 15 Papers of Alexander Hamilton 314 (H.
Syrett & J. Cooke eds. 1969). Georgia's response was more intemperate: Its
House of Representatives passed a bill
[*721] providing that anyone
attempting to enforce the Chisholm decision would be "'guilty of
felony and shall suffer death, without benefit of clergy, by being
hanged.'" Currie, supra, at 196.
An initial proposal to amend the
Constitution was introduced in the House of Representatives the day after Chisholm
was announced; the proposal adopted as the Eleventh Amendment was introduced in
the Senate promptly following an intervening recess. Currie, supra, at
196. Congress turned to the latter proposal with great dispatch; little more
than two months after its introduction it had been endorsed by both Houses and forwarded
to the States. 4 Annals of Congress 25, 30, 477, 499 (1794); 1 Stat. 402.
Each House spent but a single day
discussing the Amendment, and the vote in each House was close to unanimous.
See 4 Annals, at 30-31, 476-478 (the Senate divided 23 to 2; the House 81 to
9). All attempts to weaken the Amendment were defeated. Congress in succession
rejected proposals to limit the Amendment to suits in which "the cause of
action shall have arisen before the ratification of the amendment," or
even to cases "'Where such State shall have previously made provision in
their own Courts, whereby such suit may be prosecuted to effect'"; it
refused as well to make an exception for "'cases arising under treaties
made under the authority of the United States.'" 4 id. 30, 476.
It might be argued that the Chisholm
decision was a correct interpretation of the constitutional design and that the
Eleventh Amendment represented a deviation from the original understanding.
This, however, seems unsupportable. First, despite the opinion of Justice
Iredell, the majority failed to address either the practice or the
understanding that prevailed in the States at the time the Constitution was
adopted. Second, even a casual reading of the
[***658] opinions suggests the
majority suspected the decision would be unpopular and surprising. See, e.g.,
2 Dall., at 454-455 (Wilson, J.)
[*722] (condemning the prevailing
conception [**2251] of sovereignty); id. at 468 (Cushing, J.)
("If the Constitution is found inconvenient in practice in this or any
other particular, it is well that a regular mode is pointed out for
amendment"); id. at 478-479 (Jay, C. J.) ("There is reason to hope
that the people of [Georgia] will yet perceive that [sovereign immunity] would
not have been consistent with [republican] equality"); cf. id. at 419-420 (attorney for Chisholm)
("I did not want the remonstrance of Georgia, to satisfy me, that the
motion, which I have made is unpopular. Before that remonstrance was read, I
had learnt from the acts of another State, whose will must be always dear to
me, that she too condemned it"). Finally, two Members of the majority
acknowledged that the United States might well remain immune from suit despite
Article III's grant of jurisdiction over "Controversies to which the United
States shall be a Party," see id. at 469 (Cushing, J.); id. at 478 (Jay,
C. J.), and, invoking the example of actions to collect debts incurred before
the Constitution was adopted, one raised the possibility of
"exceptions," suggesting the rule of the case might not "extend
to all the demands, and to every kind of action," see id. at 479 (Jay, C.
J.). These concessions undercut the crucial premise that either the
Constitution's literal text or the principal of popular sovereignty necessarily
overrode widespread practice and opinion.
The text and history of the
Eleventh Amendment also suggest that Congress acted not to change but to
restore the original constitutional design. Although earlier drafts of the
Amendment had been phrased as express limits on the judicial power granted in
Article III, see, e.g., 3 Annals of Congress 651-652 (1793) ("The
Judicial Power of the United States shall not extend to any suits in law or
equity, commenced or prosecuted against one of the United States . . . "),
the adopted text addressed the proper interpretation of that provision of the
original Constitution, see U.S. Const., Amdt. 11 ("The Judicial Power of
the United States shall not [*723] be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States . . . ").
By its terms, then, the Eleventh Amendment did not redefine the federal
judicial power but instead overruled the Court:
"This amendment, expressing
the will of the ultimate sovereignty of the whole country, superior to all
legislatures and all courts, actually reversed the decision of the Supreme
Court. It did not in terms prohibit suits by individuals against the States, but
declared that the Constitution should not be construed to import any power to
authorize the bringing of such suits. . . . The supreme court had construed the
judicial power as extending to such a suit, and its decision was thus
overruled." Hans, 134 U.S. at 11.
The text reflects the historical
context and the congressional objective in endorsing the Amendment for
ratification. Congress chose not to enact language codifying the traditional
understanding of sovereign immunity but rather to address the specific
provisions of the Constitution that had
[***659] raised concerns during
the ratification debates and formed the basis of the Chisholm decision.
Cf. 15 Papers of Alexander Hamilton, at 314 (quoted supra, at 10). Given
the outraged reaction to Chisholm, as well as Congress' repeated refusal
to otherwise qualify the text of the Amendment, it is doubtful that if Congress
meant to write a new immunity into the Constitution it would have limited that
immunity to the narrow text of the Eleventh Amendment:
"Can we suppose that, when
the Eleventh Amendment was adopted, it was understood to be left open for
citizens of a State to sue their own state in federal courts, whilst the idea
of suits by citizens of other states, or of foreign states, was indignantly repelled?
Suppose that Congress, when proposing the Eleventh Amendment, had appended to
it a proviso that nothing therein
[*724] contained should prevent a
State from being sued by its own citizens in cases arising under the
Constitution or laws of the United States, can we imagine that it would have
been adopted by the States? The supposition that it would is almost an
absurdity on its face." Hans, supra, at 14-15. [**2252]
The more natural inference is that
the Constitution was understood, in light of its history and structure, to
preserve the States' traditional immunity from private suits. As the Amendment
clarified the only provisions of the Constitution that anyone had suggested
might support a contrary understanding, there was no reason to draft with a
broader brush.
Finally, the swiftness and near
unanimity with which the Eleventh Amendment was adopted suggest "either
that the Court had not captured the original understanding, or that the country
had changed its collective mind most rapidly." D. Currie, The Constitution
in the Supreme Court: The First Century 18, n. 101 (1985). The more reasonable
interpretation, of course, is that regardless of the views of four Justices in Chisholm,
the country as a whole -- which had adopted the Constitution just five years
earlier -- had not understood the document to strip the States' of their
immunity from private suits. Cf. Currie, The Constitution in Congress, at 196
("It is plain that just about everybody in Congress agreed the Supreme
Court had misread the Constitution").
Although the dissent attempts to
rewrite history to reflect a different original understanding, its evidence is
unpersuasive. The handful of state statutory and constitutional provisions
authorizing suits or petitions of right against States only confirms the
prevalence of the traditional understanding that a State could not be sued in
the absence of an express waiver, for if the understanding were otherwise, the
provisions would have been unnecessary. The constitutional amendments proposed by
the New York and Rhode Island Conventions undercut rather than support the
dissent's view [*725] of history, see supra, at 8, and the
amendments proposed by the Virginia and North Carolina Conventions do not cast
light upon the original understanding of the States' immunity to suit. It is
true that, in the course of all but eliminating federal-question and diversity
jurisdiction, see 3 Elliot's Debates, at 660-661 (amendment proposed by the
Virginia Convention limiting the federal-question jurisdiction to suits arising
under treaties and the diversity jurisdiction
[***660] to suits between parties
claiming lands under grants from different states); 4 id. at 246 (identical amendment
proposed by the North Carolina Convention), the amendments would have removed
the language in the Constitution relied upon by the Chisholm Court.
While the amendments do reflect dissatisfaction with the scope of federal
jurisdiction as a general matter, there is no evidence that they were directed
toward the question of sovereign immunity or that they reflect an understanding
that the States would be subject to private suits without consent under Article
III as drafted.
The dissent's remaining evidence
cannot bear the weight the dissent seeks to place on it. The views voiced during
the ratification debates by Edmund Randolph and James Wilson, when reiterated
by the same individuals in their respective capacities as advocate and Justice
in Chisholm, were decisively rejected by the Eleventh Amendment, and
General Pinkney did not speak to the issue of sovereign immunity at all.
Furthermore, Randolph appears to have recognized that his views were in tension
with the traditional understanding of sovereign immunity, see 3 Elliot's
Debates, at 573 ("I think, whatever the law of nations may say, that any
doubt respecting the construction that a state may be plaintiff, and not
defendant, is taken away by the words where a state shall be a party"),
and Wilson and Pinkney expressed a radical nationalist vision of the
constitutional design that not only deviated from the views that prevailed at
the time but, despite the dissent's apparent embrace of the position, remains
startling even today, see post, at 18
[*726] (quoting with approval
Wilson's statement that "'the government of each state ought to be
subordinate to the government of the United States'"). Nor do the
controversial early suits prosecuted against Maryland and New York reflect a
widespread understanding that the States had surrendered their immunity to
suit. Maryland's decision to submit to process in Vanstophorst v. Maryland,
2 Dall. 401 (1791), aroused great controversy, see Marcus & Wexler, Suits
Against States: Diversity of Opinion In The 1790s, 1993 J. Sup. Ct. History 73,
74-75, and did not go unnoticed by the Supreme [**2253] Court, see Chisholm, 2 Dall., at
429-430 (Iredell, J., dissenting). In Oswald v. New York, the
State refused to respond to the plaintiff's summons until after the decision in
Chisholm had been announced; even then it at first asserted the defense
that it was "a free, sovereign and independent State," and could not
be "drawn or compelled" to defend the suit. Marcus & Wexler, supra,
at 76-77 (internal quotation marks omitted). And, though the Court's decision
in Chisholm may have had "champions 'every bit as vigorous in
defending their interpretation of the Constitution as were those partisans on
the other side of the issue'" post, at 37, the vote on the Eleventh
Amendment makes clear that they were decidedly less numerous. See supra,
at 11.
In short, the scanty and equivocal
evidence offered by the dissent establishes no more than what is evident from
the decision in Chisholm -- that some members of the founding generation
disagreed with Hamilton, Madison, Marshall, Iredell, and the only state
conventions formally to address the matter. The events leading to the adoption
of the Eleventh [***661] Amendment, however, make clear that the
individuals who believed the Constitution stripped the States of their immunity
from suit were at most a small minority.
Not only do the ratification
debates and the events leading to the adoption of the Eleventh Amendment reveal
the original understanding of the States' constitutional immunity from suit, they
also underscore the importance of sovereign
[*727] immunity to the founding
generation. Simply put, "The Constitution never would have been ratified
if the States and their courts were to be stripped of their sovereign authority
except as expressly provided by the Constitution itself." Atascadero
State Hospital v. Scanlon, 473 U.S. 234, 239, n. 2, 87 L. Ed. 2d
171, 105 S. Ct. 3142 (1985); accord, Edelman v. Jordan, 415 U.S.
651, 660, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974).
C
The Court has been consistent in
interpreting the adoption of the Eleventh Amendment as conclusive evidence
"that the decision in Chisholm was contrary to the well-understood
meaning of the Constitution," Seminole Tribe, 517 U.S. at 69, and
that the views expressed by Hamilton, Madison, and Marshall during the
ratification debates, and by Justice Iredell in his dissenting opinion in Chisholm,
reflect the original understanding of the Constitution. See, e.g., Hans,
supra, at 12, 14-15, 18-19; Principality of Monaco, 292 U.S. at 325;
Edelman, supra, at 660, n. 9; Seminole Tribe, supra, at 70, and
nn. 12-13. In accordance with this understanding, we have recognized a
"presumption that no anomalous and unheard-of proceedings or suits were
intended to be raised up by the Constitution -- anomalous and unheard of when
the constitution was adopted." Hans, 134 U.S. at 18; accord, id. at
15. As a consequence, we have looked to "history and experience, and the
established order of things," id. at 14, rather than "adhering to the
mere letter" of the Eleventh Amendment, id. at 13, in determining the
scope of the States' constitutional immunity from suit.
Following this approach, the Court
has upheld States' assertions of sovereign immunity in various contexts falling
outside the literal text of the Eleventh Amendment. In Hans v. Louisiana,
the Court held that sovereign immunity barred a citizen from suing his own
State under the federal-question head of jurisdiction. The Court was unmoved by
the petitioner's argument that the Eleventh Amendment, by its [*728]
terms, applied only to suits brought by citizens of other States:
"It seems to us that these
views of those great advocates and defenders of the Constitution were most
sensible and just, and they apply equally to the present case as to that then
under discussion. The letter is appealed to now, as it was then, as a ground
for sustaining a suit brought by an individual against a State. The reason
against it is as strong in this case as it was in that. It is an attempt to
strain the Constitution and the law to a construction never imagined or dreamed
of." 134 U.S. at 14-15.
[**2254] [***662]
Later decisions rejected similar
requests to conform the principle of sovereign immunity to the strict language
of the Eleventh Amendment in holding that nonconsenting States are immune from
suits brought by federal corporations, Smith v. Reeves, 178 U.S.
436, 44 L. Ed. 1140, 20 S. Ct. 919 (1900), foreign nations, Principality of
Monaco, supra, or Indian tribes, Blatchford v. Native Village of
Noatak, 501 U.S. 775, 115 L. Ed. 2d 686, 111 S. Ct. 2578 (1991), and in
concluding that sovereign immunity is a defense to suits in admiralty, though
the text of the Eleventh Amendment addresses only suits "in law or
equity," Ex parte New York, 256 U.S. 490, 65 L. Ed. 1057, 41 S. Ct.
588 (1921).
[***LEdHR3D] [3D] [***LEdHR7] [7]These holdings reflect a settled doctrinal
understanding, consistent with the views of the leading advocates of the
Constitution's ratification, that sovereign immunity derives not from the Eleventh
Amendment but from the structure of the original Constitution itself. See, e.g.,
Idaho v. Coeur d' Alene Tribe of Idaho, 521 U.S. 261, 267-268, 138
L. Ed. 2d 438, 117 S. Ct. 2028 (1997) (acknowledging "the broader concept
of immunity, implicit in the Constitution, which we have regarded the Eleventh
Amendment as evidencing and exemplifying"); Seminole Tribe, supra,
at 55-56; Pennhurst State School and Hospital v. Halderman, 465
U.S. 89, 98-99, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984); Ex parte New York,
supra, at 497. The Eleventh Amendment confirmed rather [*729]
than established sovereign immunity as a constitutional principle; it
follows that the scope of the States' immunity from suit is demarcated not by
the text of the Amendment alone but by fundamental postulates implicit in the
constitutional design. As we explained in Principality of Monaco:
"Manifestly, we cannot rest with a mere literal application of the words of
§ 2 of Article III, or assume that the
letter of the Eleventh Amendment exhausts the restrictions upon suits against
non-consenting States. Behind the words of the constitutional provisions are
postulates which limit and control. There is the essential postulate that the
controversies, as contemplated, shall be found to be of a justiciable
character. There is also the postulate that States of the Union, still
possessing attributes of sovereignty, shall be immune from suits, without their
consent, save where there has been 'a surrender of this immunity in the plan of
the convention.'" 292 U.S. at 322-323 (quoting The Federalist No. 81, at
487) (footnote omitted).
Or, as we have more recently
reaffirmed:
"Although the text of the
Amendment would appear to restrict only the Article III diversity jurisdiction
of the federal courts, 'we have understood the Eleventh Amendment to stand not
so much for what it says, but for the presupposition . . . which it confirms.' Blatchford
v. Native Village of Noatak, [supra, at 779]. That
presupposition, first observed over a century ago in Hans v. Louisiana,
[supra], has two parts: first, that each State is a sovereign entity in our
federal system; and second, that '"it is inherent in the nature of
sovereignty not to be amenable to the suit of an individual without its [***663]
consent,"' id. at 13 (emphasis deleted), quoting The Federalist No.
81, p. 487 . . . " Seminole Tribe, supra, at 54. [*730]
Accord, Puerto Rico Aqueduct
and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146,
121 L. Ed. 2d 605, 113 S. Ct. 684 (1993) ("The Amendment is rooted in a
recognition that the States, although a union, maintain certain attributes of
sovereignty, including sovereign immunity").
II
[***LEdHR1B] [1B]In this case we must determine whether
Congress has the power, under Article I, to subject nonconsenting States to
private suits in their own courts. As the foregoing discussion makes clear, the
fact that the Eleventh Amendment by its terms limits only "the Judicial
power of the United States" does not resolve the question. To rest on the
words of the Amendment alone would be to engage in the type of ahistorical
literalism we have rejected in interpreting the scope of the States' sovereign
immunity since the discredited decision in Chisholm. Seminole Tribe, 517 U.S. at 68; see
also id. at 69 (quoting Principality
of [**2255] Monaco, supra, at 326, and Hans, 134
U.S. at 15) ("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 '").
[***LEdHR1C] [1C] [***LEdHR8] [8] [***LEdHR9A] [9A]While the constitutional principle of
sovereign immunity does pose a bar to federal jurisdiction over suits against
nonconsenting States, see, e.g., Principality of Monaco, 292 U.S. at 322-323,
this is not the only structural basis of sovereign immunity implicit in the
constitutional design. Rather, "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.'" Ibid. (quoting The
Federalist No. 81, at 487); accord, Blatchford, supra, at 781; Seminole
Tribe, supra, at 68. This separate and distinct structural principle is not
directly related to the scope of the judicial power established by Article III,
but inheres in the system of federalism established by the Constitution. In
exercising its Article I powers Congress
[*731] may subject the States to
private suits in their own courts only if there is "compelling
evidence" that the States were required to surrender this power to
Congress pursuant to the constitutional design.
Blatchford, 501 U.S. at 781.
A
[***LEdHR1D] [1D] [***LEdHR9B] [9B]Petitioners contend the text of the
Constitution and our recent sovereign immunity decisions establish that the
States were required to relinquish this portion of their sovereignty. We turn
first to these sources.
1
[***LEdHR9C] [9C]Article I, § 8 grants Congress broad power to enact
legislation in several enumerated areas of national concern. The Supremacy
Clause, furthermore, provides:
"This Constitution, and the Laws of the
United States which shall be [***664] made in Pursuance thereof . . . , shall be
the supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any state to the Contrary
notwithstanding." U.S. Const., Art. VI.
It is contended that, by virtue of
these provisions, where Congress enacts legislation subjecting the States to
suit, the legislation by necessity overrides the sovereign immunity of the
States.
[***LEdHR9D] [9D] [***LEdHR10] [10]As is evident from its text, however, the
Supremacy Clause enshrines as "the supreme Law of the Land" only
those federal Acts that accord with the constitutional design. See Printz,
521 U.S. at 924. Appeal to the Supremacy Clause alone merely raises the
question whether a law is a valid exercise of the national power. See The
Federalist No. 33, at 204 (A. Hamilton) ("But it will not follow from this
doctrine that acts of the larger society which are not pursuant to its
constitutional powers, but which are invasions of the residuary authorities of the
smaller societies, will become the supreme law of the land"); Printz,
supra, at 924-925. [*732]
[***LEdHR9E] [9E] [***LEdHR11] [11]The Constitution, by delegating to
Congress the power to establish the supreme law of the land when acting within its
enumerated powers, does not foreclose a State from asserting immunity to claims
arising under federal law merely because that law derives not from the State
itself but from the national power. A contrary view could not be reconciled
with Hans v. Louisiana, supra, which sustained Louisiana's
immunity in a private suit arising under the Constitution itself; with Employees
of Dept. of Public Health and Welfare of Mo. v. Department of Public
Health and Welfare of Mo., 411 U.S. 279, 283, 36 L. Ed. 2d 251, 93 S. Ct.
1614 (1973), which recognized that the FLSA was binding upon Missouri but
nevertheless upheld the State's immunity to a private suit to recover under
that Act; or with numerous other decisions to the same effect. We reject any
contention that substantive federal law by its own force necessarily overrides
the sovereign immunity of the States. When a State asserts its immunity to
suit, the question is not the primacy of federal law but the [**2256]
implementation of the law in a manner consistent with the constitutional
sovereignty of the States.
[***LEdHR9F] [9F] [***LEdHR12] [12]Nor can we conclude that the specific
Article I powers delegated to Congress necessarily include, by virtue of the
Necessary and Proper Clause or otherwise, the incidental authority to subject
the States to private suits as a means of achieving objectives otherwise within
the scope of the enumerated powers. Although some of our decisions had endorsed
this contention, see Parden v. Terminal R. Co. of Ala. Docks Dept.,
377 U.S. 184, 190-194, 12 L. Ed. 2d 233, 84 S. Ct. 1207 (1964); Pennsylvania
v. Union Gas Co., 491 U.S. 1, 13-23, 105 L. Ed. 2d 1, 109 S. Ct. 2273
(1989) (plurality opinion), they have since been overruled, see Seminole
Tribe, supra, at 63-67, 72; College Savings Bank v. Florida
Prepaid Postsecondary Ed. Expense Bd., ante, p. ____ . As we
have recognized in an analogous context:
"When a 'Law . . . for
carrying into Execution' the Commerce Clause violates the principle of state
sovereignty reflected in the [***665] various constitutional [*733]
provisions . . . it is not a 'Law . . . proper for carrying into
Execution the Commerce Clause,' and is thus, in the words of The Federalist,
'merely [an] act of usurpation' which 'deserves to be treated as such.'" Printz,
supra, at 923-924 (quoting The Federalist No. 33, at 204 (A. Hamilton))
(ellipses and alterations in Printz).
[***LEdHR9G] [9G]The cases we have cited, of course, came
at last to the conclusion that neither the Supremacy Clause nor the enumerated
powers of Congress confer authority to abrogate the States' immunity from suit
in federal court. The logic of the decisions, however, does not turn on the
forum in which the suits were prosecuted but extends to state-court suits as
well.
[***LEdHR13] [13]The dissenting opinion seeks to reopen
these precedents, contending that state sovereign immunity must derive either
from the common law (in which case the dissent contends it is defeasible by
statute) or from natural law (in which case the dissent believes it cannot bar
a federal claim). See post, at 41. As should be obvious to all, this is
a false dichotomy. The text and the structure of the Constitution protect
various rights and principles. Many of these, such as the right to trial by
jury and the prohibition on unreasonable searches and seizures, derive from the
common law. The common-law lineage of these rights does not mean they are
defeasible by statute or remain mere common-law rights, however. They are,
rather, constitutional rights, and form the fundamental law of the land.
[***LEdHR14A] [14A] [***LEdHR15] [15]Although the sovereign immunity of the
States derives at least in part from the common-law tradition, the structure
and history of the Constitution make clear that the immunity exists today by
constitutional design. The dissent has provided no persuasive evidence that the
founding generation regarded the States' sovereign immunity as defeasible by
federal statute. While the dissent implies this view was held by Madison and
Marshall, see post, at 20, nothing in the comments made by either
individual at the ratification
[*734] conventions states, or
even implies, such an understanding. Although the dissent seizes upon Justice
Iredell's statutory analysis in Chisholm in attempt to attribute this
view to Justice Iredell, see post, at 30-31, citing Chisholm, 2
Dall., at 449 (Iredell, J., dissenting), Justice Iredell's views on the
underlying constitutional question are clear enough from other portions of his
dissenting opinion:
"So much, however, has been
said on the Constitution, that it may not be improper to intimate that my
present opinion is strongly against any construction of it, which will admit,
under any circumstances, a compulsive suit against a State for the recovery of
money. I think every word in the Constitution may have its full effect without
involving this consequence, and that nothing but express words, or an
insurmountable implication (neither of which I consider, can be found in this
case) would authorize the deduction of so high a power." Id. at 449-450.
Despite the dissent's assertion to
the contrary, the fact that a right is not defeasible by statute means
only [***666] that it is protected by the Constitution, not
that it derives from [**2257] natural law. Whether the dissent's
attribution of our reasoning and conclusions to natural law results from
analytical confusion or rhetorical device, it is simply inaccurate. We do not contend the founders could not have
stripped the States of sovereign immunity and granted Congress power to subject
them to private suit but only that they did not do so. By the same token, the
contours of sovereign immunity are determined by the founders' understanding,
not by the principles or limitations derived from natural law.
[***LEdHR14B] [14B]The dissent has offered no evidence that
the founders believed sovereign immunity extended only to cases where the
sovereign was the source of the right asserted. No such limitation existed on
sovereign immunity in England, where sovereign immunity was predicated on a
different theory altogether. [*735] See 1 F. Pollock & F. Maitland, History
of English Law 518 (2d ed. 1909), quoted in Nevada v. Hall, 440
U.S. at 415, n. 6 ("'[The King] can not be compelled to answer in his own
court, but this is true of every petty lord of every petty manor'");
accord, 3 W. Holdsworth, A History of English Law 465 (3d ed. 1927) ("No
feudal lord could be sued in his own court"). It is doubtful whether the
King was regarded, in any meaningful sense, as the font of the traditions and
customs which formed the substance of the common law, yet he could not be sued
on a common-law claim in his own courts. And it strains credibility to imagine
that the King could have been sued in his own court on, say, a French cause of
action.
In light of the ratification
debates and the history of the Eleventh Amendment, there is no reason to
believe the founders intended the Constitution to preserve a more restricted
immunity in the United States. On the contrary, Congress' refusal to modify the
text of the Eleventh Amendment to create an exception to sovereign immunity for
cases arising under treaties, see supra, at 11, suggests the States'
sovereign immunity was understood to extend beyond state-law causes of action.
And surely the dissent does not believe that sovereign immunity poses no bar to
a state-law suit against the United States in federal court, or that the
Federal Tort Claims Act effected a contraction, rather than an expansion, of
the United States' amenability to suit.
2
[***LEdHR9H] [9H] [***LEdHR16] [16]There are isolated statements in some of
our cases suggesting that the Eleventh Amendment is inapplicable in state
courts. See Hilton v. South Carolina Public Railways Comm'n, 502
U.S. 197, 204-205, 116 L. Ed. 2d 560, 112 S. Ct. 560 (1991); Will v. Michigan
Dept. of State Police, 491 U.S. 58, 63, 105 L. Ed. 2d 45, 109 S. Ct. 2304
(1989); Atascadero State Hospital v. Scanlon, 473 U.S. at
239-240, n. 2; Maine v. Thiboutot, 448 U.S. 1, 9, n. 7, 65 L. Ed.
2d 555, 100 S. Ct. 2502 (1980); Nevada v. Hall, 440 U.S. at
418-421. This, of course, is a truism as to the literal terms of [*736]
the Eleventh Amendment. As we have explained, however, the bare text of
the Amendment is not an exhaustive description of the States' constitutional
immunity from suit. The cases, furthermore, do not decide the question
presented here -- whether the
[***667] States retain immunity
from private suits in their own courts notwithstanding an attempted abrogation
by the Congress.
Two of the cases discussing
state-court immunity may be dismissed out of hand. The footnote digressions in Atascadero
State Hospital and Thiboutot were irrelevant to either opinion's
holding or rationale. The discussion in Will was also unnecessary to the
decision; our holding that 42 U.S.C. §
1983 did not create a cause of action against the States rendered it
unnecessary to determine the scope of the States' constitutional immunity from
suit in their own courts. Our opinions in Hilton and Hall,
however, require closer attention, for in those cases we sustained suits
against States in state courts.
In Hilton we held that an
injured employee of a state-owned railroad could sue his employer (an arm of
the State) in state court under the Federal Employers' Liability Act (FELA), 53
Stat. 1404, 45 U.S.C. § § 51-60. Our
decision was "controlled and informed" by stare decisis. 502
U.S. at 201. A generation earlier we had held that because the FELA made clear
that all who [**2258] operated railroads would be subject to suit
by injured workers, States that chose to enter the railroad business after the
statute's enactment impliedly waived their sovereign immunity from such suits.
See Parden, supra. Some States had excluded railroad workers from the
coverage of their workers' compensation statutes on the assumption that FELA
provided adequate protection for those workers.
Hilton, supra, at 202. Closing the courts to FELA suits
against state employers would have dislodged settled expectations and required
an extensive legislative response. Ibid. [*737]
There is language in Hilton
which gives some support to the position of petitioners here but our decision
did not squarely address, much less resolve, the question of Congress' power to
abrogate States' immunity from suit in their own courts. The respondent in Hilton,
the South Carolina Public Railways Commission, neither contested Congress'
constitutional authority to subject it to suits for money damages nor raised
sovereign immunity as an affirmative defense. See Brief for Respondent in No.
90-848, O. T. 1991, pp. 7, n. 14, 21. Nor was the State's litigation strategy
surprising. Hilton was litigated and decided in the wake of Union
Gas, and before this Court's decisions in New York, Printz, and Seminole
Tribe. At that time it may have appeared to the State that Congress' power
to abrogate its immunity from suit in any court was not limited by the
Constitution at all, so long as Congress made its intent sufficiently clear.
Furthermore, our decision in Parden
was based on concepts of waiver and consent. Although later decisions have undermined
the basis of Parden's reasoning, see, e.g., Welch v. Texas
Dept. of Highways and Public Transp., 483 U.S. 468, 476-478, 97 L. Ed. 2d
389, 107 S. Ct. 2941 (1987) (recognizing that Parden erred in finding a
clear congressional intent to subject the States to suit); College Savings
Bank, ante, at ____ (overruling Parden's
theory of constructive waiver), we have not questioned the general proposition
that a State may waive its sovereign immunity and consent to suit, see Seminole
Tribe, [***668] 517 U.S. at 65.
Hilton, then, must be read in light of the doctrinal basis of
Parden, the issues presented and argued by the parties, and the
substantial reliance interests drawn into question by the litigation. When so
read, we believe the decision is best understood not as recognizing a
congressional power to subject nonconsenting States to private suits in their
own courts, nor even as endorsing the constructive waiver theory of Parden,
but as simply adhering, as a matter of stare decisis and presumed historical
fact, to the narrow proposition
[*738] that certain States had
consented to be sued by injured workers covered by the FELA, at least in their
own courts.
In Hall we considered
whether California could subject Nevada to suit in California's courts and
determined the Constitution did not bar it from doing so. We noted that
"the doctrine of sovereign immunity is an amalgam of two quite different
concepts, one applicable to suits in the sovereign's own courts and the other
to suits in the courts of another sovereign." 440 U.S. at 414. We
acknowledged that "the immunity of a truly independent sovereign from suit
in its own courts has been enjoyed as a matter of absolute right for centuries.
Only the sovereign's own consent could qualify the absolute character of that
immunity," ibid, that "the notion that immunity from suit is
an attribute of sovereignty is reflected in our cases," id. at 415, and
that "this explanation adequately supports the conclusion that no
sovereign may be sued in its own courts without its consent," id. at 416.
We sharply distinguished, however, a sovereign's immunity from suit in the
courts of another sovereign:
"But [this explanation]
affords no support for a claim of immunity in another sovereign's courts. Such
a claim necessarily implicates the power and authority of a second sovereign;
its source must be found either in an agreement, express or implied, between
the two sovereigns, or in the voluntary decision of the second to respect the
dignity of the first as a matter of comity." Ibid.
Since we determined the
Constitution did not reflect an agreement between the States to [**2259] respect the sovereign immunity of one another, California was free
to determine whether it would respect Nevada's sovereignty as a matter of comity.
[***LEdHR9I] [9I] [***LEdHR17] [17]Our opinion in Hall did
distinguish a State's immunity from suit in federal court from its immunity in
the courts of [*739] other States; it did not, however, address or
consider any differences between a State's sovereign immunity in federal court
and in its own courts. Our reluctance to find an implied constitutional limit
on the power of the States cannot be construed, furthermore, to support an
analogous reluctance to find implied constitutional limits on the power of the
Federal Government. The Constitution, after all, treats the powers of the
States differently from the powers of the Federal Government. As we explained
in Hall:
"In view of the Tenth
Amendment's reminder that powers not delegated to the Federal Government nor
prohibited to the States are reserved to the States or to the people, the
existence of express [***669]
limitations on state
sovereignty may equally imply that caution should be exercised before
concluding that unstated limitations on state power were intended by the
Framers." Id. at 425 (footnote
omitted).
The Federal Government, by contrast, "can claim no powers which
are not granted to it by the constitution, and the powers actually granted must
be such as are expressly given, or given by necessary implication." Martin
v. Hunter's Lessee, 14 U.S. 304, 1 Wheat. 304, 326, 4 L. Ed. 97 (1816);
see also City of Boerne v. Flores, 521 U.S. 507, 516, 138 L. Ed.
2d 624, 117 S. Ct. 2157 (1997); United States v. Lopez, 514 U.S.
549, 552, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995).
Our decision in Hall thus
does not support the argument urged by petitioners here. The decision addressed
neither Congress' power to subject States to private suits nor the States'
immunity from suit in their own courts. In fact, the distinction drawn between
a sovereign's immunity in its own courts and its immunity in the courts of
another sovereign, as well as the reasoning on which this distinction was
based, are consistent with, and even support, the proposition urged by the
respondent here -- that the Constitution reserves to the [*740] States a constitutional immunity from private
suits in their own courts which cannot be abrogated by Congress.
[***LEdHR9J] [9J] [***LEdHR18] [18]Petitioners seek support in two
additional decisions. In Reich v. Collins, 513 U.S. 106, 130 L.
Ed. 2d 454, 115 S. Ct. 547 (1994), we held that, despite its immunity from suit
in federal court, a State which holds
out what plainly appears to be "a clear and certain" postdeprivation
remedy for taxes collected in violation of federal law may not declare, after
disputed taxes have been paid in reliance on this remedy, that the remedy does
not in fact exist. Id. at 108. This case
arose in the context of tax-refund litigation, where a State may deprive a
taxpayer of all other means of challenging the validity of its tax laws by
holding out what appears to be a "clear and certain" postdeprivation
remedy. Ibid.; see also Fair Assessment in Real Estate Assn., Inc.
v. McNary, 454 U.S. 100, 70 L. Ed. 2d 271, 102 S. Ct. 177 (1981). In
this context, due process requires the State to provide the remedy it has
promised. Cf. Hudson v. Palmer,
468 U.S. 517, 539, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984) (O'CONNOR, J.,
concurring). The obligation arises from the Constitution itself; Reich
does not speak to the power of Congress to subject States to suits in their own
courts.
In Howlett v. Rose,
496 U.S. 356, 110 L. Ed. 2d 332, 110 S. Ct. 2430 (1990), we held that a
state court could not refuse to hear a §
1983 suit against a school board on the basis of sovereign immunity. The
school board was not an arm of the State, however, so it could not assert any
constitutional defense of sovereign immunity to which the State would have been
entitled. See Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274,
280, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977). In Howlett, then, the only
question was "whether a state-law defense of 'sovereign immunity' is
available to a school board otherwise subject to suit in a Florida court even
though such a defense would not be available if the action had been brought in
a federal forum." 496 U.S. at 358-359. The decision did not address the
question of Congress' [**2260] power to compel a state [***670]
court to entertain an action against a nonconsenting State. [*741]
B
[***LEdHR1E] [1E] [***LEdHR19A] [19A]Whether Congress has authority under
Article I to abrogate a State's immunity from suit in its own courts is, then,
a question of first impression. In determining whether there is
"compelling evidence" that this derogation of the States' sovereignty
is "inherent in the constitutional compact," Blatchford, 501
U.S. at 781, we continue our discussion of history, practice, precedent, and
the structure of the Constitution.
1
[***LEdHR19B] [19B]We look first to evidence of the
original understanding of the Constitution. Petitioners contend that because
the ratification debates and the events surrounding the adoption of the
Eleventh Amendment focused on the States' immunity from suit in federal courts,
the historical record gives no instruction as to the founding generation's
intent to preserve the States' immunity from suit in their own courts.
We believe, however, that the founders'
silence is best explained by the simple fact that no one, not even the
Constitution's most ardent opponents, suggested the document might strip the
States of the immunity. In light of the overriding concern regarding the
States' war-time debts, together with the well known creativity, foresight, and
vivid imagination of the Constitution's opponents, the silence is most
instructive. It suggests the sovereign's right to assert immunity from suit in
its own courts was a principle so well established that no one conceived it
would be altered by the new Constitution.
The arguments raised against the
Constitution confirm this strong inference. In England, the rule was well
established that "no lord could be sued by a vassal in his own court, but
each petty lord was subject to suit in the courts of a higher lord." Hall,
440 U.S. at 414-415. It was argued that, by analogy, the States could be sued
without consent in federal court. Id. at
418. The point of the argument [*742] was that federal jurisdiction under Article
III would circumvent the States' immunity from suit in their own courts. The
argument would have made little sense if the States were understood to have
relinquished the immunity in all events.
The response the Constitution's
advocates gave to the argument is also telling. Relying on custom and practice
-- and, in particular, on the States' immunity from suit in their own courts,
see 3 Elliot's Debates, at 555 (Marshall) -- they contended that no individual
could sue a sovereign without its consent. It is true the point was directed
toward the power of the Federal Judiciary, for that was the only question at
issue. The logic of the argument, however, applies with even greater force in
the context of a suit prosecuted against a sovereign in its own courts, for in
this setting, more than any other, sovereign immunity was long established and
unquestioned. See Hall, supra, at 414.
Similarly, while the Eleventh
Amendment by its terms addresses only "the Judicial power of the United
States," nothing in Chisholm, the catalyst for the Amendment,
suggested the States were not immune from suits in their own courts. The only
Justice to address the issue, in
[***671] fact, was explicit in
distinguishing between sovereign immunity in federal court and in a State's own
courts. See 2 Dall., at 452 (Blair, J.) ("When sovereigns are sued in
their own Courts, such a method [a petition of right] may have been established
as the most respectful form of demand; but we are not now in a State-Court; and
if sovereignty be an exemption from suit in any other than the sovereign's own
Courts, it follows that when a State, by adopting the Constitution, has agreed
to be amenable to the judicial power of the United States, she has, in that
respect, given up her right of sovereignty").
The language of the Eleventh
Amendment, furthermore, was directed toward the only provisions of the
constitutional text believed to call the States' immunity from private suits
into question. Although Article III expressly contemplated [*743]
jurisdiction over suits between States and individuals, nothing in the
Article or in any other part of the Constitution suggested the States could
not [**2261] assert immunity from private suit in their
own courts or that Congress had the power to abrogate sovereign immunity there.
Finally, the Congress which
endorsed the Eleventh Amendment rejected language limiting the Amendment's
scope to cases where the States had made available a remedy in their own
courts. See supra, at 11. Implicit in the proposal, it is evident, was
the premise that the States retained their immunity and the concomitant
authority to decide whether to allow private suits against the sovereign in
their own courts.
[***LEdHR1F] [1F] [***LEdHR19C] [19C]In light of the language of the
Constitution and the historical context, it is quite apparent why neither the
ratification debates nor the language of the Eleventh Amendment addressed the
States' immunity from suit in their own courts. The concerns voiced at the
ratifying conventions, the furor raised by Chisholm, and the speed and
unanimity with which the Amendment was adopted, moreover, underscore the
jealous care with which the founding generation sought to preserve the
sovereign immunity of the States. To read this history as permitting the
inference that the Constitution stripped the States of immunity in their own
courts and allowed Congress to subject them to suit there would turn on its
head the concern of the founding generation -- that Article III might be used
to circumvent state-court immunity. In light of the historical record it is difficult
to conceive that the Constitution would have been adopted if it had been
understood to strip the States of immunity from suit in their own courts and
cede to the Federal Government a power to subject nonconsenting States to
private suits in these fora.
2
[***LEdHR1G] [1G] [***LEdHR20] [20]Our historical analysis is supported by
early congressional practice, which provides "contemporaneous and weighty
evidence [*744] of the Constitution's meaning." Printz,
521 U.S. at 905 (internal quotation marks omitted). Although early
Congresses enacted various statutes authorizing federal suits in state court,
see id. at 906-907 (listing statutes); Testa v. Katt, 330 U.S.
386, 389-390, 91 L. Ed. 967, 67 S. Ct. 810 (1947), we have discovered no
instance in which they purported to authorize suits against nonconsenting
States in these fora. [***672] The "numerousness of these statutes
[authorizing suit in state court], contrasted with the utter lack of
statutes" subjecting States to suit, "suggests an assumed absence
of such power." 521 U.S. at 907-908. It thus appears early Congresses did
not believe they had the power to authorize private suits against the States in
their own courts.
[***LEdHR1H] [1H]Not only were statutes purporting to
authorize private suits against nonconsenting States in state courts not
enacted by early Congresses, statutes purporting to authorize such suits in any
forum are all but absent from our historical experience. The first statute we confronted
that even arguably purported to subject the States to private actions was the
FELA. See Parden, 377 U.S. at 187 ("Here, for the first time in
this Court, a State's claim of immunity against suit by an individual meets a
suit brought upon a cause of action expressly created by Congress"). As we
later recognized, however, even this statute did not clearly create a cause of
action against the States. See Welch, 483 U.S. at 476-478. The
provisions of the FLSA at issue here, which were enacted in the aftermath of Parden,
are among the first statutory enactments purporting in express terms to subject
nonconsenting States to private suits. Although similar statutes have
multiplied in the last generation, "they are of such recent vintage that
they are no more probative than the [FLSA] of a constitutional tradition that
lends meaning to the text. Their persuasive force is far outweighed by almost
two centuries of apparent congressional avoidance of the practice." 521
U.S. at 918. [*745]
Even the recent statutes,
moreover, do not provide evidence of an understanding that Congress has a
greater power to subject States to suit in their own courts than in federal
courts. On the contrary, the statutes purport to create causes of actions
against the States which are enforceable in federal, as well as state, court.
To the extent recent practice thus departs from longstanding tradition, [**2262]
it reflects not so much an understanding that the States have
surrendered their immunity from suit in their own courts as the erroneous view,
perhaps inspired by Parden and Union Gas, that Congress may
subject nonconsenting States to private suits in any forum.
3
The theory and reasoning of our
earlier cases suggest the States do retain a constitutional immunity from suit
in their own courts. We have often described the States' immunity in sweeping
terms, without reference to whether the suit was prosecuted in state or federal
court. See, e.g., Briscoe v. Bank of Kentucky, 11 Pet. 257,
321-322 (1837) ("No sovereign state is liable to be sued without her
consent"); Board of Liquidation
v. McComb, 92 U.S. 531, 541, 23 L. Ed. 623 (1876) ("A State,
without its consent, cannot be sued by an individual"); In re Ayers, 123
U.S. 443, 506, 31 L. Ed. 216, 8 S. Ct. 164 (1887) (same); Great Northern
Life Ins. Co. v. Read, 322 U.S. 47, 51, 88 L. Ed. 1121, 64 S. Ct.
873 (1944) ("The inherent nature of sovereignty prevents actions against a
state by its own citizens without its consent").
We have said on many occasions,
furthermore, that the States retain their immunity from private suits
prosecuted in their own courts. See,
[***673] e.g., Beers v. Arkansas,
61 U.S. 527, 20 HOW 527, 529, 15 L. Ed. 991 (1858) ("It is an established
principle of jurisprudence in all civilized nations that the sovereign cannot
be sued in its own courts, or in any other, without its consent and
permission"); Railroad Co. v. Tennessee, 101 U.S. 337, 339,
25 L. Ed. 960 (1880) ("The principle is elementary that a State cannot be
sued in its own courts without its consent. This is a privilege of
sovereignty"); Cunningham v. Macon & Brunswick [*746]
R. Co., 109 U.S. 446, 451,
27 L. Ed. 992, 3 S. Ct. 292 (1883) ("It may be accepted as a point of
departure unquestioned, that neither a State nor the United States can be sued
as defendant in any court in this country without their consent, except in the
limited class of cases in which a State may be made a party in the Supreme
Court of the United States by virtue of the original jurisdiction conferred on
this court by the Constitution"); Louisiana ex rel. New York Guaranty
& Indemnity Co. v. Steele, 134 U.S. 230, 232, 33 L. Ed. 891, 10
S. Ct. 511 (1890) (finding a suit against a state official in state court to be
"clearly within the principle" of the Eleventh Amendment decisions); Hess
v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 39, 130 L. Ed.
2d 245, 115 S. Ct. 394 (1994) ("The Eleventh Amendment largely shields the
States from suit in federal court without their consent, leaving the parties
with claims against a State to present them, if the State permits, in the
State's own tribunals"); Seminole Tribe, 517 U.S. at 71, n. 14
("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 also Great
Northern Life Ins. Co. v. Read, 322 U.S. at 59 (Frankfurter, J.,
dissenting) ("The Eleventh Amendment has put state immunity from suit into
the Constitution. Therefore, it is not in the power of individuals to bring any
State into court -- the State's or that of the United States -- except with its
consent"); accord, id. at 51, 53 (majority opinion); cf. Quern v. Jordan, 440 U.S. 332,
340, 59 L. Ed. 2d 358, 99 S. Ct. 1139 (1979); Green v. Mansour,
474 U.S. 64, 71, 88 L. Ed. 2d 371, 106 S. Ct. 423 (1985).
We have also relied on the States'
immunity in their own courts as a premise in our Eleventh Amendment rulings.
See Hans, 134 U.S. at 10 ("It is true the amendment does so read,
and, if there were no other reason or ground for abating his suit, it might be
maintainable; and then we should have this anomalous result [that a State may
be sued by its own citizen though not by the citizen of another State, and that
a State] may be thus sued in the federal courts, although not allowing itself to
be sued in its own courts. If this is the necessary consequence of the language
of the Constitution [*747] and the law, the result is no less startling
and unexpected than [Chisholm]"); id. at 18 ("The state courts
have no power to entertain suits by individuals against a State without its
consent. Then how does the Circuit Court, having only concurrent [**2263]
jurisdiction, acquire any such power?").
[***LEdHR21] [21]In particular, the exception to our
sovereign immunity doctrine recognized in Ex parte Young, 209 U.S. 123,
52 L. Ed. 714, 28 S. Ct. 441 (1908), is based in part on the premise that
sovereign immunity bars relief against States and their officers in both state
and federal courts, and that certain suits for declaratory or injunctive relief
against state officers [***674] must therefore be permitted if the
Constitution is to remain the supreme law of the land. As we explained in General
Oil Co. v. Crain, 209 U.S. 211, 52 L. Ed. 754, 28 S. Ct. 475 (1908),
a case decided the same day as Ex parte Young and extending the rule of
that case to state-court suits:
"It seems to be an obvious consequence that as a State
can only perform its functions through its officers, a restraint upon them is a
restraint upon its sovereignty from which it is exempt without its consent in
the state tribunals, and exempt by the Eleventh Amendment of the Constitution
of the United States, in the national tribunals. The error is in the
universality of the conclusion, as we have seen. Necessarily to give adequate protection
to constitutional rights a distinction must be made between valid and invalid
state laws, as determining the character of the suit against state officers.
And the suit at bar illustrates the necessity. If a suit against state officers
is precluded in the national courts by the Eleventh Amendment to the
Constitution, and may be forbidden by a State to its courts, as it is contended
in the case at bar that it may be, without power of review by this court, it
must be evident that an easy way is open to prevent the enforcement of many
provisions of the Constitution . . . . See Ex parte Young, ante, p. 123,
where this subject is fully discussed and the cases reviewed." 209 U.S. at
226-227. [*748]
Had we not understood the States
to retain a constitutional immunity from suit in their own courts, the need for
the Ex parte Young rule would have been less pressing, and the rule
would not have formed so essential a part of our sovereign immunity doctrine.
See Idaho v. Coeur d' Alene Tribe of Idaho, 521 U.S. at 270-271
(principal opinion).
[***LEdHR1I] [1I] [***LEdHR22] [22]As it is settled doctrine that neither
substantive federal law nor attempted congressional abrogation under Article I
bars a State from raising a constitutional defense of sovereign immunity in
federal court, see Part II-A-1, supra, our decisions suggesting that the
States retain an analogous constitutional immunity from private suits in their
own courts support the conclusion that Congress lacks the Article I power to
subject the States to private suits in those fora.
4
[***LEdHR1J] [1J] [***LEdHR23A] [23A]Our final consideration is whether a
congressional power to subject nonconsenting States to private suits in their
own courts is consistent with the structure of the Constitution. We look both
to the essential principles of federalism and to the special role of the state
courts in the constitutional design.
[***LEdHR23B] [23B] [***LEdHR24] [24]Although the Constitution grants broad
powers to Congress, our federalism requires that Congress treat the States in a
manner consistent with their status as residuary sovereigns and joint
participants in the governance of the Nation. See, e.g., United States
v. Lopez, 514 U.S. at 583 (concurring opinion); Printz, 521 U.S.
at 935; New York, 505 U.S. at 188. The founding generation thought it
"neither becoming nor convenient that the several States of the Union,
invested with that large residuum of
[***675] sovereignty which had
not been delegated to the United States, should be summoned as defendants to
answer the complaints of private persons." In re Ayers, 123 U.S. at
505. The principle of sovereign immunity preserved by constitutional design
"thus accords the States the respect owed them as members [*749]
of the federation." Puerto Rico Aqueduct and Sewer Authority,
506 U.S. at 146; accord, Coeur d' Alene Tribe, supra, at 268
(recognizing "the dignity and respect afforded a State, which the immunity
is designed to protect"). [**2264]
[***LEdHR23C] [23C]Petitioners contend that immunity from
suit in federal court suffices to preserve the dignity of the States. Private
suits against nonconsenting States, however, present "the indignity of
subjecting a State to the coercive process of judicial tribunals at the
instance of private parties," In re Ayers, supra, at 505; accord, Seminole
Tribe, 517 U.S. at 58, regardless of the forum. Not only must a State
defend or default but also it must face the prospect of being thrust, by
federal fiat and against its will, into the disfavored status of a debtor,
subject to the power of private citizens to levy on its treasury or perhaps
even government buildings or property which the State administers on the
public's behalf.
In some ways, of course, a
congressional power to authorize private suits against nonconsenting States in
their own courts would be even more offensive to state sovereignty than a power
to authorize the suits in a federal forum. Although the immunity of one
sovereign in the courts of another has often depended in part on comity or
agreement, the immunity of a sovereign in its own courts has always been
understood to be within the sole control of the sovereign itself. See generally
Hall, 440 U.S. at 414-418. A power to press a State's own courts into
federal service to coerce the other branches of the State, furthermore, is the
power first to turn the State against itself and ultimately to commandeer the
entire political machinery of the State against its will and at the behest of
individuals. Cf. Coeur d' Alene Tribe, supra, at 276. Such plenary
federal control of state governmental processes denigrates the separate
sovereignty of the States.
It is unquestioned that the
Federal Government retains its own immunity from suit not only in state
tribunals but also in its own courts. In light of our constitutional
system [*750] recognizing the essential sovereignty of the
States, we are reluctant to conclude that the States are not entitled to a
reciprocal privilege.
Underlying constitutional form are
considerations of great substance. Private suits against nonconsenting States
-- especially suits for money damages -- may threaten the financial integrity
of the States. It is indisputable that, at the time of the founding, many of
the States could have been forced into insolvency but for their immunity from
private suits for money damages. Even today, an unlimited congressional power
to authorize suits in state court to levy upon the treasuries of the States for
compensatory damages, attorney's fees, and even punitive damages could create
staggering burdens, giving Congress a power and a leverage over the States that
is not contemplated by [***676] our constitutional design. The potential
national power would pose a severe and notorious danger to the States and their
resources.
A congressional power to strip the
States of their immunity from private suits in their own courts would pose more
subtle risks as well. "The principle of immunity from litigation assures
the states and the nation from unanticipated intervention in the processes of
government." Great Northern Life Ins. Co. v. Read, 322 U.S.
at 53. When the States' immunity from private suits is disregarded, "the
course of their public policy and the administration of their public
affairs" may become "subject to and controlled by the mandates of
judicial tribunals without their consent, and in favor of individual
interests." In re Ayers, supra, at 505. While the States have
relinquished their immunity from suit in some special contexts -- at least as a
practical matter -- see Part III, infra, this surrender carries with it
substantial costs to the autonomy, the decisionmaking ability, and the
sovereign capacity of the States.
A general federal power to
authorize private suits for money damages would place unwarranted strain on
the [*751] States' ability to govern in accordance with
the will of their citizens. Today, as at the time of the founding, the
allocation of scarce resources among competing needs and interests lies at the
heart of the political process. While the judgment creditor of the State may
have a legitimate claim for compensation, other important needs and worthwhile
ends compete for access to the public fisc. Since all cannot be satisfied in
full, it is inevitable that difficult decisions involving the most
sensitive [**2265] and political of judgments must be made. If
the principle of representative government is to be preserved to the States,
the balance between competing interests must be reached after deliberation by
the political process established by the citizens of the State, not by judicial
decree mandated by the Federal Government and invoked by the private citizen.
"It needs no argument to show that the political power cannot be thus
ousted of its jurisdiction and the judiciary set in its place." Louisiana
v. Jumel, 107 U.S. 711, 727-728, 27 L. Ed. 448, 2 S. Ct. 128 (1883).
[***LEdHR25] [25] By "'splitting the atom of
sovereignty,'" the founders established "'two orders of government,
each with its own direct relationship, its own privity, its own set of mutual
rights and obligations to the people who sustain it and are governed by
it.'" Saenz v. Roe, 526 U.S. 489, 504, n.17, 119 S. Ct.
1518, 143 L. Ed. 2d 689 (1999), quoting U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779, 838, 131 L. Ed. 2d 881, 115 S. Ct. 1842 (1995) (concurring
opinion). "The Constitution thus contemplates that a State's government
will represent and remain accountable to its own citizens." Printz,
521 U.S. at 920. When the Federal Government asserts authority over a State's
most fundamental political processes, it strikes at the heart of the political
accountability so essential to our liberty and republican form of government.
[***LEdHR23D] [23D] [***LEdHR26] [26]The asserted authority would blur not
only the distinct responsibilities of the State and National Governments but
also the separate duties of the judicial and political branches of the state
governments, displacing "state decisions that 'go to the heart of
representative [***677] government.'" Gregory v. [*752]
Ashcroft, 501 U.S. 452, 461, 115 L. Ed. 2d 410, 111 S. Ct. 2395
(1991). A State is entitled to order the processes of its own governance,
assigning to the political branches, rather than the courts, the responsibility
for directing the payment of debts. See id. at 460 ("Through the structure
of its government, and the character of those who exercise government
authority, a State defines itself as a sovereign"). If Congress could
displace a State's allocation of governmental power and responsibility, the
judicial branch of the State, whose legitimacy derives from fidelity to the law,
would be compelled to assume a role not only foreign to its experience but
beyond its competence as defined by the very constitution from which its
existence derives.
Congress cannot abrogate the
States' sovereign immunity in federal court; were the rule to be different
here, the National Government would wield greater power in the state courts
than in its own judicial instrumentalities.
Cf. Howlett, 496 U.S. at
365 (noting the anomaly that would arise if "a State might be forced to
entertain in its own courts suits from which it was immune in federal
court"); Hilton, 502 U.S. at 206 (recognizing the
"federalism-related concerns that arise when the National Government uses
the state courts as the exclusive forum to permit recovery under a
congressional statute").
[***LEdHR23E] [23E] [***LEdHR27] [27] [***LEdHR28] [28]The resulting anomaly cannot be explained
by reference to the special role of the state courts in the constitutional
design. Although Congress may not require the legislative or executive branches
of the States to enact or administer federal regulatory programs, see Printz,
supra, at 935; New York, 505 U.S. at 188, it may require state
courts of "adequate and appropriate" jurisdiction, Testa, 330
U.S. at 394, "to enforce federal prescriptions, insofar as those
prescriptions relate to matters appropriate for the judicial power," Printz,
supra, at 907. It would be an unprecedented step, however, to infer from
the fact that Congress may declare federal law binding and enforceable in state
courts the further [*753] principle that Congress' authority to pursue
federal objectives through the state judiciaries exceeds not only its power to
press other branches of the State into its service but even its control over
the federal courts themselves. The conclusion would imply that Congress may in
some cases act only through instrumentalities of the States. Yet, as Chief
Justice Marshall explained, "No trace is to be found in the constitution
of an intention to create a dependence of the government of the Union on those
of the States, for the execution of the great powers assigned to it. Its means
are [**2266] adequate to its ends; and on those means
alone was it expected to rely for the accomplishment of its ends." McCulloch
v. Maryland, 17 U.S. 316, 4 Wheat. 316, 424, 4 L. Ed. 579 (1819);
cf. Osborn v. Bank of United
States, 22 U.S. 738, 9 Wheat. 738, 821, 6 L. Ed. 204 (1824) ("It is
not insinuated, that the judicial power, in cases depending on the character of
the cause, cannot be exercised in the first instance, in the Courts of the
Union, but must first be exercised in the tribunals of the State").
The provisions of the
Constitution [***678] upon which we have relied in finding the
state courts peculiarly amenable to federal command, moreover, do not
distinguish those courts from the Federal Judiciary. The Supremacy Clause does
impose specific obligations on state judges. There can be no serious
contention, however, that the Supremacy Clause imposes greater obligations on
state-court judges than on the Judiciary of the United States itself. The text
of Article III, § 1, which extends
federal judicial power to enumerated classes of suits but grants Congress
discretion whether to establish inferior federal courts, does give strong
support to the inference that state courts may be opened to suits falling
within the federal judicial power. The Article in no way suggests, however,
that state courts may be required to assume jurisdiction that could not be
vested in the federal courts and forms no part of the judicial power of the
United States. [*754]
[***LEdHR23F] [23F] [***LEdHR29] [29] [***LEdHR30] [30]We have recognized that Congress may
require state courts to hear only "matters appropriate for the judicial
power," Printz, 521 U.S. at 907. Our sovereign immunity precedents
establish that suits against nonconsenting States are not "properly
susceptible of litigation in courts," Hans, 134 U.S. at 12, and, as
a result, that "the 'entire judicial power granted by the Constitution'
does not embrace authority to entertain such suits in the absence of the
State's consent." Principality of Monaco, 292 U.S. at 329 (quoting Ex
parte New York, 256 U.S. at 497); accord, 292 U.S. at 322-323 (private
suits against nonconsenting sovereigns are not "of a justiciable
character"). We are aware of no constitutional precept that would admit of
a congressional power to require state courts to entertain federal suits which
are not within the judicial power of the United States and could not be heard
in federal courts. As we explained in Erie R. Co. v. Tompkins,
304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938):
"The Constitution of the
United States . . . recognizes and preserves the autonomy and independence of
the States -- independence in their legislative and independence in their
judicial departments. Supervision over either the legislative or the judicial
action of the States is in no case permissible except as to matters by the
Constitution specifically authorized or delegated to the United States. Any interference
with either, except as thus permitted, is an invasion of the authority of the
State and, to that extent, a denial of its independence." Id. at 78-79.
[***LEdHR1K] [1K]In light of history, practice, precedent,
and the structure of the Constitution, we hold that the States retain immunity
from private suit in their own courts, an immunity beyond the congressional
power to abrogate by Article I legislation.
III
[***LEdHR31A] [31A] [***LEdHR32] [32] [***LEdHR33] [33]The constitutional privilege of a State
to assert its sovereign immunity in its own courts does not confer upon
the [*755] State a concomitant right to disregard the
Constitution or valid federal law. The States and their officers are bound by
obligations imposed by the Constitution and by federal statutes that comport
with the constitutional design. We are unwilling to assume the States will [***679]
refuse to honor the Constitution or obey the binding laws of the United
States. The good faith of the States thus provides an important assurance that
"this Constitution, and the Laws of the United States which shall be made
in Pursuance thereof . . . shall be the supreme Law of the Land." U.S.
Const., Art. VI.
[***LEdHR31B] [31B]Sovereign immunity, moreover, does not
bar all judicial review of state compliance with the Constitution and valid
federal law. [**2267] Rather, certain limits are implicit in the
constitutional principle of state sovereign immunity.
The first of these limits is that
sovereign immunity bars suits only in the absence of consent. Many States, on
their own initiative, have enacted statutes consenting to a wide variety of
suits. The rigors of sovereign immunity are thus "mitigated by a sense of
justice which has continually expanded by consent the suability of the
sovereign." Great Northern Life Ins. Co. v. Read, 322 U.S.
at 53. Nor, subject to constitutional limitations, does the Federal Government
lack the authority or means to seek the States' voluntary consent to private
suits. Cf. South Dakota v. Dole,
483 U.S. 203, 97 L. Ed. 2d 171, 107 S. Ct. 2793 (1987).
The States have consented,
moreover, to some suits pursuant to the plan of the Convention or to subsequent
constitutional amendments. In ratifying the Constitution, the States consented
to suits brought by other States or by the Federal Government. Principality
of Monaco, supra, at 328-329 (collecting cases). A suit which is commenced
and prosecuted against a State in the name of the United States by those who
are entrusted with the constitutional duty to "take Care that the Laws be
faithfully executed," U.S. Const., Art. II, § 3, differs in kind from the suit of an
individual: While the Constitution contemplates suits among the [*756]
members of the federal system as an alternative to extralegal measures,
the fear of private suits against nonconsenting States was the central reason
given by the founders who chose to preserve the States' sovereign immunity.
Suits brought by the United States itself require the exercise of political
responsibility for each suit prosecuted against a State, a control which is
absent from a broad delegation to private persons to sue nonconsenting States.
[***LEdHR31C] [31C] [***LEdHR34] [34]We have held also that in adopting the
Fourteenth Amendment, the people required the States to surrender a portion of
the sovereignty that had been preserved to them by the original Constitution,
so that Congress may authorize private suits against nonconsenting States
pursuant to its § 5 enforcement
power. Fitzpatrick v. Bitzer,
427 U.S. 445, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976). By imposing explicit
limits on the powers of the States and granting Congress the power to enforce
them, the Amendment "fundamentally altered the balance of state and
federal power struck by the Constitution." Seminole Tribe, 517 U.S.
at 59. When Congress enacts appropriate legislation to enforce this Amendment,
see City of Boerne v. Flores, 521 U.S. 507, 138 L. Ed. 2d 624,
117 S. Ct. 2157 (1997), federal interests are paramount, and Congress may
assert an authority over the States which would be otherwise unauthorized by
the Constitution. Fitzpatrick, supra,
at 456.
[***LEdHR31D] [31D] [***LEdHR35] [35] [***LEdHR36] [36]The second important [***680]
limit to the principle of sovereign immunity is that it bars suits
against States but not lesser entities. The immunity does not extend to suits
prosecuted against a municipal corporation or other governmental entity which
is not an arm of the State. See, e.g., Mt. Healthy City Bd. of Ed. v. Doyle,
429 U.S. at 280; Lincoln County v. Luning, 133 U.S. 529, 33 L.
Ed. 766, 10 S. Ct. 363 (1890). Nor does sovereign immunity bar all suits
against state officers. Some suits against state officers are barred by the
rule that sovereign immunity is not limited to suits which name the State as a
party if the suits are, in fact, against the State. See, e.g., In re Ayers,
123 U.S. at 505-506; Idaho v. Coeur d' Alene Tribe of Idaho, [*757]
521 U.S. at 270 ("The real interests served by the Eleventh
Amendment are not to be sacrificed to elementary mechanics of captions and
pleading"). The rule, however, does not bar certain actions against state
officers for injunctive or declaratory relief. Compare Ex parte Young,
209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), and In re Ayers, supra,
with Coeur d' Alene Tribe of Idaho, supra, Seminole
Tribe, supra, and Edelman v. Jordan, 415 U.S. 651, 39 L. Ed.
2d 662, 94 S. Ct. 1347 (1974). Even a suit for money damages may be prosecuted
against a state officer in his individual capacity for unconstitutional or
wrongful conduct fairly attributable to the officer himself, so long as the
relief is sought not from the state treasury but from the [**2268]
officer personally. Scheuer
v. Rhodes, 416 U.S. 232, 237-238, 40 L. Ed. 2d 90, 94 S. Ct. 1683
(1974); Ford Motor Co. v. Department of Treasury of Ind., 323
U.S. 459, 462, 89 L. Ed. 389, 65 S. Ct. 347 (1945).
[***LEdHR1L] [1L] [***LEdHR37] [37]The principle of sovereign immunity as
reflected in our jurisprudence strikes the proper balance between the supremacy
of federal law and the separate sovereignty of the States. See Pennhurst
State School and Hospital v. Halderman, 465 U.S. at 105. Established
rules provide ample means to correct ongoing violations of law and to vindicate
the interests which animate the Supremacy Clause. See Green v. Mansour,
474 U.S. at 68. That we have, during the first 210 years of our constitutional
history, found it unnecessary to decide the question presented here suggests a
federal power to subject nonconsenting States to private suits in their own
courts is unnecessary to uphold the Constitution and valid federal statutes as
the supreme law.
IV
[***LEdHR2B] [2B] [***LEdHR38] [38]The sole remaining question is whether
Maine has waived its immunity. The State of Maine "regards the immunity
from suit as 'one of the highest attributes inherent in the nature of
sovereignty,'" Cushing v. Cohen, 420 A.2d 919, 923 (Me.
1981) (quoting Drake v. Smith, 390 A.2d 541, 543 (Me. 1978)), and
adheres to the general rule that "a specific authority conferred by an
enactment of the legislature is requisite
[*758] if the sovereign is to be
taken as having shed the protective mantle of immunity," 420 A.2d at 923.
Petitioners have not attempted to establish a waiver of immunity under this
standard. Although petitioners contend the State has discriminated against
federal rights by claiming sovereign immunity from this FLSA suit, there is no
evidence that the State has manipulated its immunity in a systematic fashion to
discriminate against federal causes of action. To the extent [***681]
Maine has chosen to consent to certain classes of suits while maintaining
its immunity from others, it has done no more than exercise a privilege of
sovereignty concomitant to its constitutional immunity from suit. The State, we
conclude, has not consented to suit.
V
[***LEdHR39] [39] [***LEdHR40] [40]This case at one level concerns the
formal structure of federalism, but in a Constitution as resilient as ours form
mirrors substance. Congress has vast power but not all power. When Congress
legislates in matters affecting the States, it may not treat these sovereign
entities as mere prefectures or corporations. Congress must accord States the
esteem due to them as joint participants in a federal system, one beginning
with the premise of sovereignty in both the central Government and the separate
States. Congress has ample means to ensure compliance with valid federal laws,
but it must respect the sovereignty of the States.
[***LEdHR1M] [1M] [***LEdHR41] [41]In apparent attempt to disparage a
conclusion with which it disagrees, the dissent attributes our reasoning to
natural law. We seek to discover, however, only what the Framers and those who
ratified the Constitution sought to accomplish when they created a federal
system. We appeal to no higher authority than the Charter which they wrote and
adopted. Theirs was the unique insight that freedom is enhanced by the creation
of two governments, not one. We need not attach a label to our dissenting
colleagues' insistence that the
constitutional structure adopted by the founders [*759]
must yield to the politics of the moment. Although the Constitution
begins with the principle that sovereignty rests with the people, it does not
follow that the National Government becomes the ultimate, preferred mechanism
for expressing the people's will. The States exist as a refutation of that
concept. In choosing to ordain and establish the Constitution, the people
insisted upon a federal structure for the very purpose of rejecting the idea
that the will of the people in all instances is expressed by the central power,
the one most remote from their control. The Framers of the Constitution did not
share our dissenting colleagues' belief that the Congress may circumvent the
federal design by regulating the States directly when it pleases to do so,
including by a proxy in which individual citizens are authorized to levy upon
the state treasuries absent the States' consent to jurisdiction. [**2269]
[***LEdHR1N] [1N] [***LEdHR2C] [2C] [***LEdHR31E] [31E]The case before us depends upon these
principles. The State of Maine has not questioned Congress' power to prescribe
substantive rules of federal law to which it must comply. Despite an initial
good-faith disagreement about the requirements of the FLSA, it is conceded by
all that the State has altered its conduct so that its compliance with federal
law cannot now be questioned. The Solicitor General of the United States has
appeared before this Court, however, and asserted that the federal interest in
compensating the States' employees for alleged past violations of federal law is
so compelling that the sovereign State of Maine must be stripped of its
immunity and subjected to suit in its own courts by its own employees. Yet,
despite specific statutory authorization, see 29 U.S.C. § 216(c), the United States apparently found
the same interests insufficient to justify sending even a single attorney to
Maine to prosecute [***682] this litigation. The difference between a
suit by the United States on behalf of the employees and a suit by the
employees implicates a rule that the National Government must itself deem the
case of sufficient importance to take action against the [*760]
State; and history, precedent, and the structure of the Constitution
make clear that, under the plan of the Convention, the States have consented to
suits of the first kind but not of the second. The judgment of the Supreme
Judicial Court of Maine is
Affirmed.
DISSENTBY: SOUTER
DISSENT:
JUSTICE SOUTER, with whom JUSTICE
STEVENS, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.
In Seminole Tribe of Fla.
v. Florida, 517 U.S. 44, 134 L. Ed. 2d 252, 116 S. Ct. 1114 (1996), a
majority of this Court invoked the Eleventh Amendment to declare that the
federal judicial power under Article III of the Constitution does not reach a
private action against a State, even on a federal question. In the Court's
conception, however, the Eleventh Amendment was understood as having been
enhanced by a "background principle" of state sovereign immunity
(understood as immunity to suit), see id. at 72, that operated beyond its
limited codification in the Amendment, dealing solely with federal
citizen-state diversity jurisdiction. To the Seminole Tribe dissenters,
of whom I was one, the Court's enhancement of the Amendment was at odds with
constitutional history and at war with the conception of divided sovereignty
that is the essence of American federalism.
Today's issue arises naturally in
the aftermath of the decision in Seminole Tribe. The Court holds that
the Constitution bars an individual suit against a State to enforce a federal
statutory right under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C.
§ 201 et seq. (1994 ed. and Supp.
III), when brought in the State's courts over its objection. In thus
complementing its earlier decision, the Court of course confronts the fact that
the state forum renders the Eleventh Amendment beside the point, and it has
responded by discerning a simpler and more straightforward theory of state
sovereign immunity than it found in Seminole Tribe: a State's sovereign
immunity from all individual suits is a "fundamental [*761]
aspect" of state sovereignty "confirmed" by the Tenth
Amendment. Ante, at 2, 3. As a consequence, Seminole Tribe's
contorted reliance on the Eleventh Amendment and its background was presumably
unnecessary; the Tenth would have done the work with an economy that the
majority in Seminole Tribe would have welcomed. Indeed, if the Court's
current reasoning is correct, the Eleventh Amendment itself was unnecessary.
Whatever Article III may originally have said about the federal judicial power,
the embarrassment to the State of Georgia occasioned by attempts in federal
court to enforce the State's war debt could easily have been avoided if only
the Court that decided Chisholm v. Georgia, 2 Dall. 419 (1793),
had understood a State's inherent, Tenth Amendment right to be free of any
judicial power, whether the court be state or federal, and whether the cause of
action arise under state or federal law.
[***683]
The sequence of the Court's
positions prompts a suspicion of error, and skepticism is confirmed by scrutiny
of the Court's efforts to justify its holding. There is no evidence that the
Tenth Amendment constitutionalized a concept of sovereign immunity as [**2270]
inherent in the notion of statehood, and no evidence that any concept of
inherent sovereign immunity was understood historically to apply when the
sovereign sued was not the font of the law. Nor does the Court fare any better
with its subsidiary lines of reasoning, that the state-court action is barred by
the scheme of American federalism, a result supposedly confirmed by a history
largely devoid of precursors to the action considered here. The Court's
federalism ignores the accepted authority of Congress to bind States under the
FLSA and to provide for enforcement of federal rights in state court. The
Court's history simply disparages the capacity of the Constitution to order
relationships in a Republic that has changed since the founding.
On each point the Court has raised
it is mistaken, and I respectfully dissent from its judgment. [*762]
I
The Court rests its decision
principally on the claim that immunity from suit was "a fundamental aspect
of the sovereignty which the States enjoyed before the ratification of the
Constitution," ante, at 2, an aspect which the Court understands to
have survived the ratification of the Constitution in 1788 and to have been
"confirmed" and given constitutional status, ante, at 3, by
the adoption of the Tenth Amendment in 1791. If the Court truly means by
"sovereign immunity" what that term meant at common law, see ante,
at 25, its argument would be insupportable. While sovereign immunity entered
many new state legal systems as a part of the common law selectively received
from England, it was not understood to be indefeasible or to have been given
any such status by the new National Constitution, which did not mention it. See
Seminole Tribe, supra, at 132-142, 160-162, and n. 55 (SOUTER,
J., dissenting). Had the question been posed, state sovereign immunity could
not have been thought to shield a State from suit under federal law on a
subject committed to national jurisdiction by Article I of the Constitution.
Congress exercising its conceded Article I power may unquestionably abrogate
such immunity. I set out this position at length in my dissent in Seminole
Tribe and will not repeat it here. n1
n1 The Court inexplicably protests that "the
right to trial by jury and the prohibition on unreasonable searches and
seizures . . . derive from the common law," ante, at 23, but are
nonetheless indefeasible. I cannot imagine how this could be thought relevant
to my argument. These rights are constitutional precisely because they are
enacted in the Sixth and Fourth Amendments, respectively, while the general
prerogative of sovereign immunity appears nowhere in the Constitution. My point
is that the common-law rights that were not enacted into the Constitution were
universally thought defeasible by statute.
The Court does not, however, offer
today's holding as a mere corollary to its reasoning in Seminole Tribe,
substituting the Tenth Amendment for the Eleventh as the occasion [*763]
demands, and it is fair to read its references to a "fundamental
aspect" of state sovereignty as referring not to a prerogative inherited
from the Crown, but to a conception necessarily implied by statehood itself.
The [***684] conception is thus not one of common law so
much as of natural law, a universally applicable proposition discoverable by
reason. This, I take it, is the sense in which the Court so emphatically relies
on Alexander Hamilton's reference in The Federalist No. 81 to the States'
sovereign immunity from suit as an "inherent" right, see ante,
at 6, a characterization that does not require, but is at least open to, a
natural law reading.
I understand the Court to rely on
the Hamiltonian formulation with the object of suggesting that its conception
of sovereign immunity as a "fundamental aspect" of sovereignty was a
substantially popular, if not the dominant, view in the periods of Revolution
and Confederation. There is, after all, nothing else in the Court's opinion
that would suggest a basis for saying that the ratification of the Tenth
Amendment gave this "fundamental aspect" its constitutional status
and protection against any legislative tampering by Congress. n2 The Court's
principal rationale [**2271] for today's result, then, turns on history:
was the natural law conception of sovereign immunity as inherent in any notion
of an independent State widely held in the United States in the period
preceding the ratification of 1788 (or the adoption of the Tenth Amendment in
1791)?
n2 I am assuming that the Court does not put forward
the theory of the "fundamental aspect" as a newly derived conception
of its own, necessarily comprehended by the Tenth Amendment guarantee only as a
result of logic independent of any intention of the Framers. Nor does the Court
argue, and I know of no reason to suppose, that every legal advantage a State
might have enjoyed at common law was assumed to be an inherent attribute of all
sovereignties, or was constitutionalized wholesale by the Tenth Amendment, any
more than the Ninth Amendment constitutionalized all common-law individual
rights.
[*764]
The answer is certainly no. There
is almost no evidence that the generation of the Framers thought sovereign
immunity was fundamental in the sense of being unalterable. Whether one looks
at the period before the framing, to the ratification controversies, or to the
early republican era, the evidence is the same. Some Framers thought sovereign
immunity was an obsolete royal prerogative inapplicable in a republic; some
thought sovereign immunity was a common-law power defeasible, like other
common-law rights, by statute; and perhaps a few thought, in keeping with a
natural law view distinct from the common-law conception, that immunity was
inherent in a sovereign because the body that made a law could not logically be
bound by it. Natural law thinking on the part of a doubtful few will not,
however, support the Court's position.
A
The American Colonies did not
enjoy sovereign immunity, that being a privilege understood in English law to
be reserved for the Crown alone; "antecedent to the Declaration of
Independence, none of the colonies were, or pretended to be, sovereign
states," 1 J. Story, Commentaries on the Constitution § 207, p. 149 (5th ed. 1891). Several colonial
charters, including those of Massachusetts, Connecticut, Rhode Island, and Georgia, expressly specified that the
corporate body established thereunder could sue and be sued. See 5 Sources and
Documents of United States Constitutions 36 (W. Swindler ed. 1975)
(Massachusetts); 2 id. at 131 (Connecticut); 8 id. at 363 (Rhode Island); 2 id.
at 434 (Georgia). Other charters
[***685] were given to
individuals, who were necessarily subject to suit. See Gibbons, The Eleventh
Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev.
1889, 1897 (1983). If a colonial lawyer had looked into Blackstone for the
theory of sovereign immunity, as indeed many did, he would have found nothing
clearly suggesting that the Colonies as such enjoyed any immunity [*765]
from suit. "The law ascribes to the king the attribute of sovereignty,
or pre-eminence," said Blackstone, 1 W. Blackstone, Commentaries * 241
(hereinafter Blackstone), and for him, the sources for this notion were Bracton
n3 and Acts of Parliament that declared the Crown imperial. Id. at *241-*242.
It was simply the King against whom "no suit or action can be brought . .
. even in civil matters, because no court can have jurisdiction over him."
Id. at * 242. n4 If a [*766] person
[**2272] should have "a just
demand upon the king, he must petition him in his court of chancery, where his
chancellor will administer right as a matter of grace though not upon
compulsion." Id. at * 243.
n3 Bracton is the earliest source for the common-law
immunity of the King, and his explanation is essentially practical: "Si
autem ab eo petatur, cum breve non currat contra ipsum, locus erit
supplicationi, quod factum suum corrigat et emendet." That is,
"If [justice] is asked of him, since no writ runs against him there will
[only] be opportunity for a petition, that he correct and amend his act."
2 Bracton, De Legibus et Consuetudinibus Angliae 33 (G. Woodbine ed., S. Thorne
transl. 1968) (London 1569 ed., folio 5b, Bk. I, ch. 8). The fact that no writ
ran against the King was "no peculiar privilege; for no feudal lord could
be sued in his own court." 3 W. Holdsworth, History of English Law 465 (3d
ed. 1927). "'He can not be compelled to answer in his own court, but this
is true of every petty lord of every petty manor; that there happens to be in
this world no court above his court is, we may say, an accident.'" See Nevada
v. Hall, 440 U.S. 410, 415, n. 6, 59 L. Ed. 2d 416, 99 S. Ct. 1182
(1979) (quoting 1 F. Pollock & F. Maitland, History of English Law 518 (2d
ed. 1899)). It was this same view of the immunity that came down to Blackstone,
who cited Finch for the view that the King must be petitioned and not sued. See
H. Finch, Law, or a Discourse Thereof, in Four Books 255 (1678 ed. reprinted
1992) ("Here in place of action against the King petition must be made
unto him in the Chancery, or in Parliament, for no action did ever lie against
the King at the Common Law, but the party is driven to his petition"
(footnotes omitted)); 1 Blackstone * 242.
n4 As I explain, infra this page and 8-9, this
common-law conception of sovereign immunity differed from the natural-law version,
which understood immunity as derived from the fact that the sovereign was the
font of the law, which could not bind him. I do not dispute, indeed I insist,
that in England it was the common-law version that existed, and so it is beside
the point for the Court to protest that the King could not be sued under French
law in his own courts, see ante, at 25; naturally not, since the
common-law conception was not couched in terms of who was the font of the law.
This said, I note that it is surprising for the Court to say that "it is
doubtful whether the King was regarded . . . as the font of the traditions and
customs which formed the substance of the common law," ibid.
Although Bracton said that "law makes the king," 2 Bracton, at 33, he
also said that the unwritten law of England could properly be called law only
to the extent that "the authority of the king or prince [has] first been
added thereto," id. at 19, and he spoke of "these English laws and
customs, by the authority of kings," id. at 21. The judges who announced
the common law sat "in the place of the king," id. at 20, and so in
practice the common law certainly derived from him. Thus, at least for the most
part, "the custom of the king's court is the custom of England, and becomes
the common law." 1 Pollock & Maitland, supra n. 3, at 184. But
for this, Blackstone would probably not have remarked that the natural law
theory produced a result "consonant" with the common law, 1
Blackstone * 243; see infra this page and 9.
It is worth pausing here to note that after
Blackstone had explained sovereign immunity at common law, he went on to say
that the common-law tradition was compatible with sovereign immunity as
discussed by writers on "natural law": [***686]
"And this is entirely
consonant to what is laid down by the writers on natural law. 'A subject,' says
Puffendorf, 'so long as he continues a subject, hath no way to oblige
his prince to give him his due, when he refuses it; though no wise prince will
ever refuse to stand to a lawful contract. And, if the prince gives the subject
leave to enter an action against him, upon such contract, in his own courts,
the action itself proceeds rather upon natural equity, than upon the municipal
laws.' For the end of such action is not to compel the prince to observe
the contract, but to persuade him." Ibid. (footnote
omitted). n5
n5 For the original of the quoted passage, see 1 S.
Pufendorf, De Jure Naturae et Gentium Libri Octo 915 (1688 ed. reprinted 1934);
for a modern translation, see 2 S. Pufendorf, De Jure Naturae et Gentium Libri
Octo 1344-1345 (transl. C. & W. Oldfather 1934) (hereinafter Pufendorf).
Elsewhere in the same chapter, Pufendorf expressly derives the impossibility of
enforcing a King's promises against him from natural law theory: "Therefore,
since a king enjoys natural liberty, if he has discovered any fault in a pact
of his making, he can of his own authority serve notice upon the other party
that he refuses to be obligated by reason of that fault; nor does he have to
secure of the other [party to the pact] a release from a thing [namely, the
pact] which, of its own nature, is incapable of producing an obligation or
right." Id. at 1342-1343.
[*767]
Next Blackstone quoted Locke's
explanation for immunity, according to which the risks of overreaching by
"'a heady prince'" are "'well recompensed by the peace of the
public and security of the government, in the person of the chief magistrate,
being thus set out of the reach of danger.'" Ibid. (quoting J.
Locke, Second Treatise of Civil Government §
205 (1690 J. Gough ed. 1947)). By quoting Pufendorf and Locke,
Blackstone revealed to his readers a legal-philosophical tradition that derived
sovereign immunity not from the immemorial practice of England but from general
theoretical principles. But although Blackstone thus juxtaposed the common-law
and natural law n6 conceptions of
[**2273] sovereign immunity, [*768]
he did not confuse them. It was as well he did not, for although the two
conceptions were arguably "consonant" in England, where
according [***687] to Blackstone, the Crown was sovereign, n7
their distinct foundations could make a difference in America, where the
location of sovereignty was an issue that independence would raise with some
exigence.
n6 The Court says that to call its approach
"natural law" is "an apparent attempt to disparage," ante,
at 50. My object, however, is not to call names but to show that the majority
is wrong, and in doing that it is illuminating to explain the conceptual
tradition on which today's majority draws, one that can be traced to the
Court's opinion from its origins in Roman sources. I call this conception the
"natural law" view of sovereign immunity, despite the historical
ambiguities associated with the term, because the expression by such figures as
Pufendorf, Hobbes, and Locke, of the doctrine that the sovereign might not be
sued, was associated with a concept of sovereignty itself derived from natural
law. See Pufendorf 1103-1104; T. Hobbes, Leviathan Part 2, chs. 17-18 (1651),
in 23 Great Books of the Western World 99-104 (1952) (hereinafter Leviathan)
(describing sovereignty as the result of surrender of individual natural rights
to single authority); J. Locke, Second Treatise of Civil Government § § 95-99 (1690 J. Gough ed. 1947) (describing
political community formed by individual consent out of a state of nature). The
doctrine that the sovereign could not be sued by his subjects might have been
thought by medieval civil lawyers to belong to jus gentium, the law of
nations, which was a type of natural law; or perhaps in its original form it
might have been understood as a precept of positive, written law. The earliest
source for this conception is a statement of Ulpian's recorded in the Digest,
I.3.31, and much interpreted by medieval jurists, "Princeps legibus
solutus est"; "The emperor is not bound by statutes." See 1
The Digest of Justinian 13 (T. Mommsen & P. Krueger eds., A. Watson transl.
1985); Tierney, The Prince Is Not Bound by the Laws: Accursius and the Origins
of the Modern State, 5 Comparative Studies in Society and History 378 (1963);
K. Pennington, The Prince and the Law, 1200-1600: Sovereignty and Rights in the
Western Legal Tradition 77-79 (1993). Through its reception and discussion in
the continental legal tradition, where it related initially to the Emperor, but
also eventually to a King, to the Pope, and even to a city-state, see id. at
90, this conception of sovereign immunity developed into a theoretical model
applicable to any sovereign body. Thus Hobbes could begin his discussion of the
subject by saying, "The sovereign of a Commonwealth, be it an assembly or
one man, is not subject to the civil laws." Leviathan ch. 26, p. 130.
There is debate on the degree to which different medieval interpreters of the
maxim Princeps legibus solutus est understood natural or divine law to
limit the prince's freedom from the statutes. See Tierney, supra, at
390-394; Pennington, supra, at 206-208; J. Canning, The Political
Thought of Baldus de Ubaldis 74-79 (1987).
n7 A better formulation would have clarified that
sovereignty resided in the King in Parliament, which was the dominant view by
the later 17th century. See, e.g., G. Wood, The Creation of the American
Republic, 1776-1787, p. 347 (1969).
B
Starting in the mid-1760's, ideas
about sovereignty in colonial America began to shift as Americans argued that,
lacking a voice in Parliament, they had not in any express way consented to
being taxed. See B. Bailyn, The Ideological Origins of the American Revolution
204-219 (1968); G. Wood, The Creation of the American Republic, 1776-1787, pp.
347-348 (1969). The story of the subsequent development of conceptions of
sovereignty is complex and uneven;
[*769] here, it is enough to say
that by the time independence was declared in 1776, the locus of sovereignty
was still an open question, except that almost by definition, advocates of
independence denied that sovereignty with respect to the American Colonies
remained with the King in Parliament.
As the concept of sovereignty was
unsettled, so was that of sovereign immunity. Some States appear to have
understood themselves to be without immunity from suit in their own courts upon
independence. n8 Connecticut and Rhode Island adopted their pre-existing
charters as constitutions, without altering the provisions specifying their
suability. See Gibbons, 83 Colum. L. Rev., at 1898, and nn. 42-43. Other new
States understood themselves to be inheritors of the Crown's common-law
sovereign immunity and so enacted statutes authorizing legal remedies against
the State parallel to those available in England. n9 There, although the [**2274]
Crown [*770] was immune from suit, the [***688]
contemporary practice allowed private litigants to seek legal remedies
against the Crown through the petition of right or the monstrans de droit
in the Chancery or Exchequer. See 3 Blackstone * 256-257. A Virginia statute
provided:
n8 The Court claims that the doctrine of sovereign
immunity was "universal in the States when the Constitution was drafted
and ratified," ante, at 5, but the examples of Connecticut and
Rhode Island suggest that this claim is overstated. It is of course true that
these States' preservation without comment of their colonial suability could be
construed merely as a waiver of sovereign immunity, and not as a denial of the
principle. But in light of these States' silence as to any change in their
status as suable bodies, it would be tendentious so to understand it. The Court
relies for its claim on Justice Iredell's statement in Chisholm v. Georgia,
2 Dall. 419 (1793), that there was "no doubt" that no State had
"'any particular Legislative mode, authorizing a compulsory suit for the
recovery of money against a State . . . either when the Constitution was
adopted, or at the time the judicial act was passed.'" Ante, at 5
(quoting Chisholm, supra, at 434-435). But as the cases of Rhode Island
and Connecticut demonstrate, Justice Iredell was simply wrong. As I have had
occasion to say elsewhere, that an assertion of historical fact has been made
by a Justice of the Court does not make it so. See Seminole Tribe of Fla.
v. Florida, 517 U.S. 44, 107, n. 5, 134 L. Ed. 2d 252, 116 S. Ct. 1114
(1996) (dissenting opinion).
n9 The Court seems to think I have overlooked this
point, that the exceptions imply a rule, see ante, at 15 (provisions for
chancery petitions "only confirm" immunity enjoyed by these States).
The reason for canvassing the spectrum of state thought and practice is not to
deny the undoubted place of sovereign immunity in most States' courts, but to
examine what turns out to be the scanty evidence that the States understood
sovereign immunity in the indefeasible, civilian, natural law sense, necessary
to support the Court's position here.
"Where the auditors according to their
discretion and judgment shall disallow or abate any article of demand against
the commonwealth, and any person shall think himself aggrieved thereby, he
shall be at liberty to petition the high court of chancery or the general
court, according to the nature of his case, for redress, and such court shall
proceed to do right thereon; and a like petition shall be allowed in all other
cases to any other person who is entitled to demand against the commonwealth
any right in law or equity." 9 W. Hening, Statutes at Large: Being a Collection of the Laws of Virginia
536, 540 (1821); see Pfander, Sovereign Immunity and the Right to Petition: Toward
a First Amendment Right to Pursue Judicial Claims Against the Government, 91
Nw. U. L. Rev. 899, 939-940, and n. 142 (1997).
This "petition" was
clearly reminiscent of the English petition of right, as was the language
"shall proceed to do right thereon," which paralleled the formula of
royal approval, "soit droit fait al partie," technically
required before a petition of right could be adjudicated. See 3 Blackstone *
256; Pfander, supra, at 940, and nn. 143-144. A New York statute
similarly authorized petition to the court of chancery by anyone who thought
himself aggrieved by the state auditor general's resolution of his account with
the State. See An Act Directing a Mode for the Recovery of Debts due to, and
the Settlement of Accounts with this State, March 30, 1781, [*771]
in The First Laws of the State of New York 192 (1782 ed., reprinted
1984); see also Pfander, supra, at 941, and n. 145.
Pennsylvania not only adopted a
law conferring the authority to settle accounts upon the Comptroller General,
see Act of Apr. 13, 1782, ch. 959, 2 Laws of the Commonwealth of Pennsylvania
19 (1810), but in 1785 provided for appeal from such adjudications to the
Pennsylvania Supreme Court, where a jury trial could be had, see id. at 26-27;
Pfander, supra, at 941, n.147. Although in at least one recorded case
before the Pennsylvania Supreme Court the Commonwealth, citing Blackstone,
pleaded common-law sovereign immunity, see Respublica v. Sparhawk,
1 Dall. 357, 363 (Pa. 1788), the Supreme Court of Pennsylvania did not reach
this argument, concluding on other grounds that it lacked jurisdiction. n10 Two
years after this decision, under the influence of James Wilson, see C. Jacobs,
The Eleventh Amendment and Sovereign Immunity 25, and 169, n. 53 (1972),
Pennsylvania [***689] adopted a new constitution, which provided
that "suits may be brought against the commonwealth in such manner, in
such courts, and in such cases as the legislature may by law direct." Pa.
Const., Art. IX, § 11 (1790), reprinted
in 8 Sources and Documents of United States Constitutions, at 293; see also
Pfander, supra, at 928, n.101. n11
n10 In a suit against Virginia in the Court of Common
Pleas for Philadelphia County, Virginia pleaded sovereign immunity in natural
law terms, and the sheriff was excused from making return of the writ attaching
Virginia's goods, see Nathan v. Virginia, 1 Dall. 77, n. (1781),
but this was only after the Supreme Executive Council of the Commonwealth had
already ordered the goods returned and, in any event, involved the immunity of
one State in the courts of another, and not the distinct immunity of a State in
her own courts, see Nevada v. Hall, 440 U.S. at 414.
n11 Whether this formulation was a constitutional
waiver of sovereign immunity or an affirmative repudiation of its applicability
is uncertain, but the broad language opening the courts to all suits, and the
apparent desire to exceed the previously available statutory scheme, would
appear to support the latter interpretation.
[*772]
Around the time of the
Constitutional Convention, then, there existed among the States some diversity
of practice with respect to sovereign immunity; but despite a tendency among
the state constitutions to announce
[**2275] and declare certain
inalienable and natural rights of men and even of the collective people of a
State, see, e.g., Pennsylvania Constitution, Art. III (1776), 8 Sources
and Documents of United States Constitutions, supra, at 278 ("That
the people of this State have the sole, exclusive and inherent right of governing
and regulating the internal police of the same"), no State declared that
sovereign immunity was one of those rights. To the extent that States were
thought to possess immunity, it was perceived as a prerogative of the sovereign
under common law. And where sovereign immunity was recognized as barring suit,
provisions for recovery from the State were in order, just as they had been at
common law in England.
C
At the Constitutional Convention,
the notion of sovereign immunity, whether as natural law or as common law, was
not an immediate subject of debate, and the sovereignty of a State in its own
courts seems not to have been mentioned. This comes as no surprise, for
although the Constitution required state courts to apply federal law, the
Framers did not consider the possibility that federal law might bind States,
say, in their relations with their employees. n12 In the subsequent [*773]
ratification debates, however, the issue of jurisdiction over a State
did emerge in the question whether States might be sued on their debts in
federal court, and on this point, too, a variety of views emerged and the
diversity of sovereign immunity conceptions displayed itself.
n12 The Court says, "the founders' silence is
best explained by the simple fact that no one, not even the Constitution's most
ardent opponents, suggested the document might strip States of the
immunity." Ante, at 31-32. In fact, a stalwart supporter of the
Constitution, James Wilson, laid the groundwork for just such a view at the
Pennsylvania Convention, see infra, at 18-19. For the most part, it is
true, the surviving records of the ratifying conventions do not suggest that
much thought was given to the issue of suit against States in their own courts.
But this silence does not tell us that the Framers' generation thought the
prerogative so well settled as to be an inherent right of States, and not a
common-law creation. It says only that at the conventions, the issue was not on
the participants' minds because the nature of sovereignty was not always
explicitly addressed.
The only arguable support for the Court's
absolutist view that I have found among the leading participants in the debate
surrounding ratification was the one already mentioned, that of Alexander
Hamilton in The Federalist No. 81, where he described the sovereign immunity of
the States in language suggesting principles associated with natural law:
"It is inherent in the nature
of sovereignty not to be amenable to
[***690] the suit of an
individual without its consent. This is the general sense and the
general practice of mankind; and the exemption, as one of the attributes of
sovereignty, is now enjoyed by the government of every State in the Union.
Unless therefore, there is a surrender of this immunity in the plan of the
convention, it will remain with the States, and the danger intimated [that
States might be sued on their debts in federal court] must be merely ideal. . .
. The contracts between a nation and individuals are only binding on the
conscience of the sovereign, and have no pretensions to a compulsive force.
They confer no right of action independent of the sovereign will." The
Federalist No. 81, pp. 548-549 (J. Cooke ed. 1961).
Hamilton chose his words
carefully, and he acknowledged the possibility that at the Convention the
States might have surrendered sovereign immunity in some circumstances, but the
thrust of his argument was that sovereign immunity was "inherent in the
nature of sovereignty." n13 An echo of Pufendorf [*774]
[**2276] may be heard in his
reference to "the conscience of the sovereign"; n14 and the
universality of the phenomenon of sovereign immunity, which Hamilton claimed
("the general sense and the general practice of mankind"), is a
peculiar feature of the natural law conception. The apparent novelty and
uniqueness of Hamilton's employment of natural law terminology to explain the
sovereign immunity of the States is worth remarking, because it stands in
contrast to formulations indicating no particular position on the
natural-law-versus-common-law origin, to the more widespread view that
sovereign immunity derived from common law, and to the more radical stance that
the sovereignty of the people made sovereign immunity out of place in the
United States. Hamilton's view is also worth noticing because, in marked
contrast to its prominence in the Court's opinion today, as well as in Seminole
Tribe, 517 U.S. at 54, and in Hans v. Louisiana, 134 U.S. 1, 13, 33 L. Ed.
842, 10 S. Ct. 504 (1890), cf. Great
Northern Life Ins. Co. [*775] v. Read, 322 U.S. 47, 51, 88 L. Ed.
1121, 64 S. Ct. 873 (1944), it found no favor in the early Supreme Court, see infra,
at 21-22.
n13 In Seminole Tribe, I explained that
Hamilton had in mind state sovereign immunity only with respect to diversity
cases applying state contract law. See 517 U.S. at 145-149 (dissenting
opinion). Here I intend simply to point out that with respect to state law, in
the main Hamilton spoke consistently with deriving sovereign immunity from a
natural law model. That he did so is consistent with his focus on state law;
Hamilton almost certainly knew that the natural law theory of sovereign
immunity extended only to rights created by the sovereign, and so would not
have applied to federal-question claims against a State in either state or
federal court. Thus when the Court claims that subjecting States to suit in
state court "would turn on its head the concern of the founding generation
-- that Article III might be used to circumvent state-court immunity" ante,
at 34, it has failed to realize that even those Framers who, like Hamilton,
aimed to preserve state sovereign immunity, had in mind only state immunity on
state-law claims, not federal questions.
n14 Pufendorf's discussion of sovereign immunity, just
before the passage quoted by Blackstone, begins (in a modern translation):
"Now although promises and pacts are as binding upon the conscience of a
king as upon that of any private citizen, there is, nevertheless, this
difference between the obligation of a king and that of subjects, namely, that
it is no trouble for the former to exact what is owed him from a subject, when
he demurs, while a citizen, so long as he remains such, has no means within his
power to recover his due from a king against his will." 2 Pufendorf
1344-1345.
[***691]
In the Virginia ratifying
convention, Madison was among those who debated sovereign immunity in terms of
the result it produced, not its theoretical underpinnings. He maintained that
"it is not in the power of individuals to call any state into court,"
3 J. Elliot, The Debates in the Several State Conventions on the Adoption of
the Federal Constitution 533 (2d ed. 1836) (hereinafter Elliot's Debates), and
thought that the phrase "in which a State shall be a Party" in
Article III, § 2, must be interpreted in
light of that general principle, so that "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 court." Ibid. n15 John Marshall argued along the same lines
against the possibility of federal jurisdiction over private suits against
States, and he invoked the immunity of a State in its own courts in support of
his argument:
n15 Madison seems here to have overlooked the
possibility of concurrent jurisdiction between the Supreme Court's original
jurisdiction and that of state courts.
"I hope that no gentleman
will think that a state will be called at the bar of the federal court. Is
there no such case at present? Are there not many cases in which the
legislature of Virginia is a party, and yet the state is not sued? It is not
rational to suppose that the sovereign power should be dragged before a
court." Id. at 555.
There was no unanimity among the
Virginians either on state- or federal-court immunity, however, for Edmund
Randolph anticipated the position he would later espouse as plaintiff's counsel
in Chisholm v. Georgia, 2 Dall. 419 (1793). He contented himself
with agnosticism on the significance of what Hamilton had called "the
general practice of mankind," and argued that notwithstanding any natural
law view of the nonsuability of States, the Constitution permitted suit against
a State in federal court: "I think, whatever the law [*776]
of nations may say, that any doubt respecting the construction that a
state may be plaintiff, and not defendant, is taken away by the words where
a state shall be a party." 3 Elliot's Debates 573. Randolph clearly
believed that the Constitution both could and in fact by its language did trump
any inherent immunity enjoyed by the States; his view on sovereign immunity in
state court seems to have been that the issue was uncertain ("whatever the
law of nations may say").
At the farthest extreme from
Hamilton, James Wilson made several comments in the Pennsylvania Convention
that suggested his [**2277] hostility to any idea of state sovereign immunity.
First, he responded to the argument that "the sovereignty of the states is
destroyed" if they are sued by the United States, "because a suitor in a court must
acknowledge the jurisdiction of that court, and it is not the custom of
sovereigns to suffer their names to be made use of in this manner." 2 id.
at 490. For Wilson, "the answer [was] plain and easy: the government of
each state ought to be subordinate to the government of the United
States." Ibid. n16 Wilson
[*777] was also pointed in
commenting on federal jurisdiction over cases
[***692] between a State and
citizens of another State: "When this power is attended to, it will be
found to be a necessary one. Impartiality is the leading feature in this
Constitution; it pervades the whole. When a citizen has a controversy with
another state, there ought to be a tribunal where both parties may stand on a
just and equal footing." Id. at 491. Finally, Wilson laid out his view
that sovereignty was in fact not located in the States at all: "Upon what
principle is it contended that the sovereign power resides in the state
governments? The honorable gentleman has said truly, that there can be no
subordinate sovereignty. Now, if there cannot, my position is, that the
sovereignty resides in the people; they have not parted with it; they have only
dispensed such portions of the power as were conceived necessary for the public
welfare." Id. at 443. n17 While this
[*778] statement did not specifically
address sovereign immunity, it expressed the major premise of what would later
become Justice Wilson's position in Chisholm: that because the people,
and not the States, are sovereign, sovereign immunity has no applicability to
the States.
n16 The Court says this statement of Wilson's is
"startling even today," ante, at 15, but it is hard to see
what is so startling, then or now, about the proposition that, since federal
law may bind state governments, the state governments are in this sense
subordinate to the national. The Court seems to have forgotten that one of the
main reasons a Constitutional Convention was necessary at all was that under
the Articles of Confederation Congress lacked the effective capacity to bind
the States. The Court speaks as if the Supremacy Clause did not exist, or McCulloch
v. Maryland, 17 U.S. 316, 4 Wheat. 316, 4 L. Ed. 579 (1819), had never
been decided.
Nor is the Court correct to say that the views of
Wilson, Randolph, and General Charles Cotesworth Pinckney, see n. 17, infra,
"cannot bear the weight" I put upon them, ante, at 15. Indeed,
the yoke is light, since I intend these Framers only to do their part in
showing that a diversity of views with respect to sovereignty and sovereign
immunity existed at the several state conventions, and that this diversity
stands in the way of the Court's assumption that the founding generation
understood sovereign immunity in the natural law sense as indefeasibly
"fundamental" to statehood.
Finally, the Court calls Wilson's view "a radical
nationalist vision of the constitutional design," ante, at 15,
apparently in an attempt to discount it. But while Wilson's view of sovereignty
was indeed radical in its deviation from older conceptions, this hardly
distanced him from the American mainstream, and in October 1787, Washington
himself called Wilson "as able, candid, & honest a member as any in
Convention," 5 Papers of George Washington: Confederation Series 379 (W.
Abbot & D. Twohig eds. 1997).
n17 Nor was Wilson alone in this theory. At the South
Carolina Convention, General Charles Cotesworth Pinckney, who had attended the
Philadelphia Convention, took the position that the States never enjoyed
individual and unfettered sovereignty, because the Declaration of Independence
was an act of the Union, not of the particular States. See 4 Elliot's Debates
301. In his view, the Declaration "sufficiently confutes the . . .
doctrine of the individual sovereignty and independence of the several states .
. . . The separate independence and individual sovereignty of the several
states were never thought of by the enlightened band of patriots who framed
this Declaration; the several states are not even mentioned by name in any part
of it, -- as if it was intended to impress this maxim on America, that our
freedom and independence arose from our union, and that without it we could neither
be free nor independent." Ibid.
From a canvass of this spectrum of
opinion expressed at the ratifying conventions, one thing is certain. No one
was espousing an indefeasible, natural law view of sovereign immunity. The controversy over the enforceability of
state debts subject to state law produced emphatic support for sovereign
immunity from eminences as great as Madison and Marshall, but neither of them
indicated adherence to any immunity conception outside the common law.
D
At the close of the ratification
debates, the issue of the sovereign immunity of the States [**2278]
under Article [***693] III had not been definitively resolved, and
in some instances the indeterminacy led the ratification conventions to respond
in ways that point to the range of thinking about the doctrine. Several state
ratifying conventions proposed amendments and issued declarations that would
have exempted States from subjection to suit in federal court. n18 The New York
Convention's [*779] statement of ratification included a series
of declarations framed as proposed amendments, among which was one stating
"That the judicial power of the United States, in cases in which a state
may be a party, does not extend to criminal prosecutions, or to authorize any suit
by any person against a state." 1 Elliot's Debates 329. n19 Whether that
amendment was meant to alter or to clarify Article III as ratified is
uncertain, but regardless of its precise intent, New York's response to the
draft proposed by the Convention of 1787 shows that there was no consensus at
all on the question of state suability (let alone on the underlying theory of
immunity doctrine). There was, rather, an unclear state of affairs which it
seemed advisable to stabilize.
n18 "The grand objection, that the states were
made subject to the action of an individual, still remained for several years,
notwithstanding the concurring dissent of several states at the time of
accepting the constitution." St. G. Tucker, 1 Blackstone's Commentaries
with Notes of Reference to the Constitution and Laws of the Federal Government
of the United States; and of the Commonwealth of Virginia, App. 352 (1803). In
a footnote, Tucker specified that "the several conventions of
Massachusetts, New Hampshire, Rhode Island, New York, Virginia, and North
Carolina, proposed amendments in this respect." Ibid. The proposed
amendments of the latter four States, which may be found in Elliot's Debates,
are discussed immediately infra, at 21-23. The extant published versions
of the proposed amendments of Massachusetts and New Hampshire do not include
such a proposed amendment. See, e.g., 1 Elliot's Debates, 322-323 (nine
proposed amendments of Massachusetts); 2 id. at 177-178 (same); H. R. Doc. No.
398, 69th Cong., 1st Sess., 1018-1020 (1927) (same); 1 Elliot's Debates,
325-326 (12 proposed amendments of New Hampshire); H. R. Doc. No. 398, supra,
at 1025-1026 (same).
n19 It is conceivable that the New York Convention,
which was after all the intended audience for The Federalist, thought that the
States had some sort of an inherent right against being sued in federal court.
But this is unlikely, because numerous other of the proposed amendments
declared so-called "rights" in no uncertain terms, see, e.g.,
1 Elliot's Debates 328 ("The people have an equal, natural, and
unalienable right freely and peaceably to exercise their religion"; trial
by jury is "one of the greatest securities to the rights of a free
people"; "The people have a right peaceably to assemble together"),
whereas the proposed amendment regarding suits against States simply stated
that the judicial power "does not extend . . . to authorize any suit by
any person against a state," and said nothing about any rights, inherent
or otherwise. Id. at 329.
The Rhode Island Convention, when it finally
ratified on June 16, 1790, called upon its representatives to urge the passage
of a list of amendments. This list incorporated language, some of it identical
to that proposed by New York, in the following form:
"It is declared by the Convention,
that the judicial power of the United States, in cases in which a state may be
a party, does not extend to criminal prosecutions, or to authorize any suit by
any person against a state; but, to remove all doubts or controversies
respecting [*780] the same, that it be especially expressed, as
a part of the Constitution of the United States, that Congress shall not,
directly or indirectly, either by themselves or through the judiciary,
interfere with any one of the states . . . in liquidating and discharging
the [***694] public securities of any one state." 1
id. at 336.
Even more clearly than New York's
proposal, this amendment appears to have been intended to clarify Article III
as reflecting some theory of sovereign immunity, though without indicating
which one.
Unlike the Rhode Island proposal,
which hinted at a clarification of Article III, the Virginia and North Carolina
ratifying conventions proposed amendments that by their terms would have
fundamentally altered the content of Article III. The Virginia Convention's
proposal for a new Article III omitted entirely the language conferring federal
jurisdiction over a controversy between a State and citizens of another State,
see 3 id. at 660-661, and the North Carolina Convention proposed an identical
amendment, see 4 id. at 246-247. These proposals for omission [**2279]
suggest that the conventions of Virginia and North Carolina thought they
had subjected themselves to citizen suits under Article III as enacted, and
that they wished not to have done so. n20 There is, thus, no suggestion in
their resolutions that Article III as drafted was fundamentally at odds with an
indefeasible natural law sovereignty, or with a conception that went to the
essence of what it meant to be a State. At all events, the state ratifying
conventions' felt need for clarification on the question of [*781]
state suability demonstrates that uncertainty surrounded the matter even
at the moment of ratification. This uncertainty set the stage for the divergent
views expressed in Chisholm.
n20 The Court says "there is no evidence that
[the proposed amendments] were directed toward the question of sovereign
immunity or that they reflect an understanding that the States would be subject
to private suits without consent under Article III as drafted." Ante,
at 15. No evidence, that is, except the proposed amendments themselves, which
would have omitted the Citizen-State Diversity Clause. If the proposed omission
is not evidence going to sovereign immunity to private suits, one wonders what
would satisfy the Court.
E
If the natural law conception of
sovereign immunity as an inherent characteristic of sovereignty enjoyed by the
States had been broadly accepted at the time of the founding, one would expect
to find it reflected somewhere in the five opinions delivered by the Court in Chisholm
v. Georgia, 2 Dall. 419 (1793). Yet that view did not appear in any of
them. And since a bare two years before Chisholm, the Bill of Rights had
been added to the original Constitution, if the Tenth Amendment had been
understood to give federal constitutional status to state sovereign immunity so
as to endue it with the equivalent of the natural law conception, one would be
certain to find such a development mentioned somewhere in the Chisholm
writings. In fact, however, not one of the opinions espoused the natural law
view, and not one of them so much as mentioned the Tenth Amendment. Not even
Justice Iredell, who alone among the Justices thought that a State could not be
sued in federal court, echoed Hamilton or hinted at a constitutionally
immutable immunity doctrine.
Chisholm presented the questions whether a State might be made
a defendant in a suit brought by a citizen of another State, and if so, whether
an action of assumpsit would lie against it. See id. at 420 [***695]
(questions presented). n21 In representing [*782]
Chisholm, Edmund Randolph, the Framer n22 and then Attorney General, not
only argued [**2280] for the necessity of a federal forum to
vindicate private rights against the States, see id. at 422, but rejected any
traditional conception of sovereignty. He said that the sovereignty of the
States, which he acknowledged, id. at 423, was no barrier to jurisdiction, because
"the present Constitution produced a new order of things. It derives its
origin immediately from the people . . . . The States are in fact assemblages
of these individuals who are liable to process," ibid.
n21 The case had first been brought before the Federal
Circuit Court for the District of Georgia, over which Justice Iredell and
District Judge Nathaniel Pendleton had presided. Ultimately, Justice Iredell
held that the Circuit Court had no jurisdiction in the case because Congress
had not conferred such jurisdiction on it. See 5 Documentary History of the
Supreme Court of the United States, 1789-1800, pp. 128-129, 154 (M. Marcus ed.
1994). Georgia had maintained that it was "a free, sovereign, and
independent State, and . . . cannot be drawn or compelled, nor at any Time past
hath been accustomed to be, or could be drawn or compelled to answer against
the will of the said State of Georgia, before any Justices of the federal
Circuit Court for the District of Georgia or before any Justices of any Court of
Law or Equity whatever." Plea to the Jurisdiction, Oct. 17, 1791, id. at
143. Chisholm demurred to the plea on the apparent ground that while the plea
alleged that Georgia could not be compelled to appear before any court, Article
III expressly declared that the federal judicial power extended to all
controversies between a State and citizens of another State. Demurrer, id. at
144. In his unreported opinion, Justice Iredell dispensed with this demurrer.
He first stated that the plea sufficiently alleged that the District Court
lacked jurisdiction. Id. at 150. He added that in any case, the existence of
Congress's constitutional authority to create courts to hear controversies
between a State and citizens of another State did not mean that Congress had in
fact created such courts. Id. at 151. Third, Justice Iredell pointed out that
the right to create courts for cases in which a State was a party did not mean
that Congress could confer jurisdiction in cases like the one at bar, because
the word "controversies" in Article III might refer only to
situations "where such controversies could formerly have been
maintained" in state court. Since "under the jurisdiction of a
particular State Sovereigns may be liable in some instances but not in others,"
just as "in England the property in possession of the crown can be
affected by an adverse Process, tho' certainly the King cannot be sued for the
recovery of a sum of money," ibid. it appeared to Justice Iredell
that under some conditions Article III did not authorize suits against States.
n22 Framer but not signer.
Justice Wilson took up the
argument for the sovereignty of the people more vociferously. Building on a
conception of sovereignty he had already expressed at the Pennsylvania [*783]
ratifying convention, see supra, at 18-19, he began by noting
what he took to be the pregnant silence of the Constitution regarding
sovereignty:
"To the Constitution of the United
States the term SOVEREIGN, is totally unknown. There is but one place where
it could have been used with propriety. But, even in that place it would not,
perhaps, have comported with the delicacy of those, who ordained and established
the Constitution. They might have announced themselves 'SOVEREIGN'
people of the United States: But serenely conscious of the fact,
they avoided the ostentatious declaration." 2 Dall. at 454.
As if to contrast his own
directness n23 with the Framers' delicacy, the Framer-turned-Justice explained
in [***696] no uncertain terms that Georgia was not
sovereign with respect to federal jurisdiction (even in a diversity case):
n23 Justice Wilson hinted that in his own private
view, citizens of the States had not conferred sovereignty in the sense of
absolute authority upon their state governments, because they had retained some
rights to themselves: "According to some writers, every State, which
governs itself without any dependence on another power, is a sovereign State.
Whether, with regard to her own citizens, this is the case of the State of Georgia;
whether those citizens have done, as the individuals of England are
said, by their late instructors, to have done, surrendered the Supreme Power to
the State or Government, and reserved nothing to themselves; or whether, like
the people of other States, and of the United States, the citizens of Georgia
have reserved the Supreme Power in their own hands; and on that Supreme Power
have made the State dependent, instead of being sovereign; these are
questions, to which, as a Judge in this cause, I can neither know nor suggest
the proper answers; though, as a citizen of the Union, I know, and am
interested to know, that the most satisfactory answers can be given." Chisholm,
2 Dall. 457, at (1793) (citation omitted).
"As a Judge of this Court, I
know, and can decide upon the knowledge, that the citizens of Georgia,
when they acted upon the large scale of the Union, as a part of the
'People of the United States,' did not surrender the Supreme or
Sovereign Power to that State; but, as to [*784]
the purposes of the Union,
retained it to themselves. As to the purposes of the Union, therefore, Georgia
is NOT a sovereign State." Id. at 457.
This was necessarily to reject any
natural law conception of sovereign immunity as inherently attached to an
American State, but this was not all. Justice Wilson went on to identify the
origin of sovereign immunity in the feudal system that had, he said, been
brought to England and to the common law by the Norman Conquest. After quoting
Blackstone's formulation of the doctrine as it had developed in England, he
discussed it in the most disapproving terms imaginable:
"This last position [that the
King is sovereign and no court can have jurisdiction over him] is only a branch
of a much more extensive principle, on which a plan of systematic despotism has
been lately formed in England, and prosecuted with unwearied assiduity
and care. Of this plan the author of the
Commentaries was, if not the introducer, at least the great supporter. He has
been followed in it by writers later and less known; and his doctrines have,
both on the other and this side of the Atlantic, been implicitly and
generally received by those, who neither examined their principles nor
their consequences[.] The principle is, that all human law must be
prescribed by a superior. This principle I mean not now to examine.
Suffice it, at present to say, that another principle, very different in its
nature and operations, forms, in my judgment, the basis of sound and genuine
jurisprudence; laws derived from the pure source of equality and justice must
be founded on the CONSENT of
[**2281] those, whose obedience
they require. The sovereign, when traced to his source, must be found in
the man." Id. at 458.
With this rousing conclusion of
revolutionary ideology and rhetoric, Justice Wilson left no doubt that he
thought the [*785] doctrine of sovereign immunity entirely
anomalous in the American Republic. Although he did not speak specifically of a
State's immunity in its own courts, his view necessarily requires that such
immunity would not have been justifiable as a tenet of absolutist natural law.
Chief Justice Jay took a less
vehement tone in his opinion, but he, too,
[***697] denied the applicability
of the doctrine of sovereign immunity to the States. He explained the doctrine as
an incident of European feudalism, id. at 471, and said that by contrast,
"no such ideas obtain here;
at the Revolution, the sovereignty devolved on the people; and they are truly
the sovereigns of the country, but they are sovereigns without subjects
(unless the African slaves among us may be so called) and have none to
govern but themselves; the citizens of America are equal as
fellow citizens, and as joint tenants in the sovereignty." Id. at 471-472.
From the difference between the
sovereignty of princes and that of the people, Chief Justice Jay argued, it
followed that a State might be sued. When a State sued another State, as all
agreed it could do in federal court, all the people of one State sued all the
people of the other. "But why it should be more incompatible, that all the
people of a State should be sued by one citizen, than by one hundred
thousand, I cannot perceive, the process in both cases being alike; and the
consequences of a judgment alike." Id. at 473. Finally, Chief Justice Jay
pointed out, Article III authorized suits between a State and citizens of
another State. Although the Chief Justice reserved judgment on whether the
United States might be sued by a citizen, given that the courts must rely on
the Executive to implement their decisions, he made it clear that this
reservation was practical, and not theoretical: "I wish the State of
society was so far improved, and the science of Government advanced to such a
degree of perfection, as that the whole nation could in the peaceable course [*786]
of law, be compelled to do justice, and be sued by individual
citizens." Id. at 478. Although Chief Justice Jay did not speak
specifically to the question of state sovereign immunity in state court, his
theory shows that he considered not the States, but the people collectively, to
be sovereign; and there is thus no reason to think he would have denied that
the people of the Nation could override any state claim to sovereign immunity
in a matter committed to the Nation.
Justice Cushing's opinion relied
on the express language of Article III to hold that Georgia might be sued in
federal court. He dealt shortly with the objection that States' sovereignty
would be thereby restricted so that States would be reduced to corporations:
"As to corporations, all States whatever are corporations or bodies
politic. The only question is, what are their powers?" Id. at 468.
Observing that the Constitution limits the powers of the States in numerous
ways, he concluded that "no argument of force can be taken from the
sovereignty of States. Where it has been abridged, it was thought necessary for
the greater indispensable good of the whole." Ibid. From the
opinion, it is not possible to tell with certainty what Justice Cushing thought
about state sovereign immunity in state court, although his introductory remark
is suggestive. The case, he wrote, "turns not upon the law or practice of England,
although perhaps it may be in some measure elucidated thereby, nor upon the law
of any other country whatever; but upon the Constitution established by the
people of the United States." Id. at 466. It is clear that he had no
sympathy for a view of sovereign immunity inherent in statehood and
untouchable [***698] by national legislative authority.
Justice Blair, like Justice
Cushing, relied on Article III, and his brief opinion shows that he
acknowledged state sovereign immunity, but common-law immunity in state court.
First, Justice Blair asked hypothetically whether a verdict against the
plaintiff would be preclusive if the plaintiff "should renew his suit
against the State, in any mode in
[*787] which she may permit
herself to be sued in her own Courts." Id. at 452. Second, [**2282]
he commented that there was no need to require the plaintiff to proceed
by way of petition:
"When sovereigns are sued in
their own Courts, such a method may have been established as the most
respectful form of demand; but we are not now in a State-Court; and if
sovereignty be an exemption from suit in any other than the sovereign's own Courts,
it follows that when a State, by adopting the Constitution, has agreed to be
amenable to the judicial power of the United States, she has, in that
respect, given up her right of sovereignty." Ibid.
It is worth noting that for
Justice Blair, the petition brought in state court was properly called a suit.
This reflects the contemporary practice of his native Virginia, where, as we
have seen, supra, at 10-11, suits as of right against the State were
authorized by statute. Justice Blair called sovereignty "an exemption from
suit in any other than the sovereign's own Courts" because he assumed
that, in its own courts, a sovereign will naturally permit itself to be sued as
of right.
Justice Iredell was the only
Member of the Court to hold that the suit could not lie; but if his discussion
was far-reaching, his reasoning was cautious. Its core was that the Court could
not assume a waiver of the State's common-law sovereign immunity where Congress
had not expressly passed such a waiver. See 2 Dall., at 449 (dissenting
opinion). Although Justice Iredell added, in what he clearly identified as
dictum, that he was "strongly against" any construction of the
Constitution "which will admit, under any circumstances, a compulsive suit
against a State for the recovery of money," ibid. n24 he made it
equally clear that he [*788] understood sovereign immunity as a common-law
doctrine [***699] passed to the States with independence:
n24 The basis for the dictum may be found earlier in
the opinion, where Justice Iredell explained that it was uncertain whether
Article III's extension of the federal judicial power to cases between a State
and citizens of another State "is to be construed as intending merely a
transfer of jurisdiction from one tribunal to another, or as authorizing the
Legislature to provide laws for the decision of all possible controversies in
which a State may be involved with an individual, without regard to any prior exemption."
Id. at 436. Justice Iredell seems to have believed that Article III authorized
only the former; in other words, that the Framers intended to permit Article
III jurisdiction in suits against a State only where some other existing court
could also hear such a claim. Because in Justice Iredell's view, state courts
could nowhere hear suits against a State at the time of ratification, see id.
at 434-435, it followed that Article III probably did not authorize such suits.
Justice Iredell's reasoning, it must be said, differed markedly from the
reasoning the Court adopts today. Justice Iredell believed simply that the
Clause in Article III extending jurisdiction to controversies between a State
and citizens of another State did not confer any extra law-making authority on
Congress that was not found elsewhere in the Constitution. Because he could
conceive of no other constitutional provision authorizing Congress to create a
private right of action against a State, he concluded that none could exist. Today,
of course, it is established that the commerce power authorizes Congress to
create private rights as against the States. See Garcia v. San
Antonio Metropolitan Transit Authority, 469 U.S. 528, 83 L. Ed. 2d 1016,
105 S. Ct. 1005 (1985). The Court today takes the altogether different tack of
arguing that state immunity from suit in state court was an inherent right of
States preserved by the Tenth Amendment. Whatever Justice Iredell might have
thought of this argument, it gets no support from his opinion.
"No other part of the common
law of England, it appears to me, can have any reference to this
subject, but that part of it which prescribes remedies against the crown. Every
State in the Union in every instance where its sovereignty has not been
delegated to the United States, I consider to be as completely
sovereign, as the United States are in respect to the powers
surrendered. The United States are sovereign as to all the powers of
Government actually surrendered: Each State in the Union is sovereign as
to all the powers reserved. It must necessarily be so, because the United
States have no claim to any authority but such as the States [*789]
have surrendered to them:
Of course the part not surrendered must remain as it did before." Id. at
435.
This did not mean, of course, that
the States had not delegated to Congress the power to subject them to suit, but
merely that such a delegation would have been necessary on Justice Iredell's
view. [**2283]
In sum, then, in Chisholm
two Justices (Jay and Wilson), both of whom had been present at the
Constitutional Convention, took a position suggesting that States should not
enjoy sovereign immunity (however conceived)
even in their own courts; one (Cushing) was essentially silent on the
issue of sovereign immunity in state court; one (Blair) took a cautious
position affirming the pragmatic view that sovereign immunity was a continuing
common law doctrine and that States would permit suit against themselves as of
right; and one (Iredell) expressly thought that state sovereign immunity at
common-law rightly belonged to the sovereign States. Not a single Justice
suggested that sovereign immunity was an inherent and indefeasible right of
statehood, and neither counsel for Georgia before the Circuit Court, see supra,
at 24, n. 21, nor Justice Iredell seems even to have conceived the possibility
that the new Tenth Amendment produced the equivalent of such a doctrine. This
dearth of support makes it very implausible for today's Court to argue that a
substantial (let alone a dominant) body of thought at the time of the framing
understood sovereign immunity to be an inherent right of statehood, adopted or
confirmed by the Tenth Amendment. n25
n25 It only makes matters worse for the Court that two
States, New York and Maryland, voluntarily subjected themselves to suit in the
Supreme Court around the time of Chisholm. See Marcus & Wexler,
Suits Against States: Diversity of Opinion In The 1790s, 1993 J. Sup. Ct. Hist.
73, 74-78. At the Court's February Term, 1791, before Chisholm, Maryland
entered a plea (probably as to the merits) in Van Staphorst v. Maryland,
see 1993 J. Sup. Ct. Hist., at 74, a suit brought by a foreign citizen for
debts owed by the State, but then settled the suit to avoid the establishment
of an adverse precedent on immunity, see id. at 75. In Oswald v. New
York, an action that commenced before Chisholm but that was
continued after it, New York initially objected to jurisdiction, see 1993 J.
Sup. Ct. Hist., at 77, but the suit was tried to a jury in the Supreme Court,
and after New York lost, it paid the full jury verdict out of the State's
treasury, id. at 78.
[*790]
The Court's discomfort is evident
in its obvious recognition that its natural law or Tenth Amendment
conception [***700] of state sovereign immunity is insupportable
if Chisholm stands. Hence the Court's attempt to discount the Chisholm
opinions, an enterprise in which I believe it fails.
The Court, citing Hans v. Louisiana,
134 U.S. 1, 33 L. Ed. 842, 10 S. Ct. 504 (1890), says that the Eleventh
Amendment "overruled" Chisholm, ante, at 12, but the
animadversion is beside the point. The significance of Chisholm is its
indication that in 1788 and 1791 it was not generally assumed (indeed, hardly
assumed at all) that a State's sovereign immunity from suit in its own courts
was an inherent, and not merely a common-law, advantage. On the contrary, the
testimony of five eminent legal minds of the day confirmed that virtually
everyone who understood immunity to be legitimate saw it as a common-law
prerogative (from which it follows that it was subject to abrogation by
Congress as to a matter within Congress's Article I authority).
The Court does no better with its
trio of arguments to undercut Chisholm's legitimacy: that the Chisholm
majority "failed to address either the practice or the understanding that
prevailed in the States at the time the Constitution was adopted," ante,
at 11; that "the majority suspected the decision would be unpopular and
surprising," ibid.; and that "two Members of the
majority acknowledged that the United States might well remain immune from suit
despite" Article III, ante, at 12. These three claims do not, of
course, go to the question whether state sovereign immunity was understood to
be "fundamental" or "inherent," but in any case, none of
them is convincing. [*791]
With respect to the first, Justice
Blair in fact did expressly refer to the practice of state sovereign immunity
in state court, and acknowledged the petition of right as an appropriate and
normal practice. This aside, the Court would have a legitimate point if it
could show that the Chisholm majority took insufficient account of a
body of practice that somehow indicated a widely held absolutist conception of
state sovereign immunity untouchable and untouched by the Constitution. But of
course it cannot. n26
n26 The Court thinks that Justice Iredell's adversion
to state practice gives reason to think so, see ante, at 11
("Despite the opinion of Justice Iredell, the majority failed to address .
. . "). Even if Justice Iredell had been right about state practice,
failure to respond to a specific argument raised by another Justice (as opposed
to counsel) has even less significance with respect to this early Supreme Court
opinion than it would have today, because the Justices may not have afforded
one another the opportunity to read their opinions before they were announced.
See 1 J. Goebel, the Oliver Wendell Holmes Devise: History of the Supreme Court
of the United States, Antecedents and Beginnings to 1801, p. 728 (1971)
("There are hints . . . that there may have been no conference and that
each Justice arrived at his conclusion independently without knowing what each
of his brethren had decided"). Indeed, since "opinions were given
only orally in the Supreme Court in the 1790s," 5 Documentary History of
the Supreme Court, supra n. 21, at 164, n., it is possible that the
opinion as reported by Dallas followed a document prepared by Wilson after the
oral announcement of the opinion, ibid.; see also id. at xxiv-xxv, in
which case it is possible that the other Justices never heard certain arguments
until publication.
[**2284]
As for the second point, it is a
remarkable doctrine that would hold anticipation of unpopularity the [***701]
benchmark of constitutional error. In any event, the evidence proffered
by the Court is merely this: that Justice Wilson thought the prerevolutionary
conception of sovereignty misguided, 2 Dall., at 454-455; that Justice Cushing
stated axiomatically that the Constitution could always be amended, id. at 468;
that Chief Justice Jay noted that the losing defendant might still come to
understand that sovereign immunity is inconsistent with republicanism, id. at
478-479; and that Attorney [*792] General Randolph admitted that the position
he espoused was unpopular not only in Georgia, but also in another State,
probably Virginia. n27 These items boil down to the proposition that the
Justices knew (as who could not, with such a case before him) that at the
ratifying conventions the significance of sovereign immunity had been, as it
still was, a matter of dispute. This reality does not detract from, but
confirms, the view that the Framers showed no intent to recognize sovereign
immunity as an immutably inherent power of the States.
n27 The circumlocution "another State, whose will
must be always dear to me," Chisholm, 2 Dall., at 419, hints at
Randolph's home State. It seems odd to suggest that Randolph's acknowledgment
of the unpopularity of his position in two States would somehow support the
thought that the view was incorrect. Randolph himself had urged the same
position at the Virginia ratifying convention, see supra, at 16-17, and
so knew perfectly well that Virginia had ratified with full knowledge that his
position might be the law.
As to the third objection, that
two Justices noted that the United States might possess sovereign immunity
notwithstanding Article III, I explained, supra, at 28, that Chief
Justice Jay thought this possibility was purely practical, not at all legal,
and without any implication for state immunity vis-a-vis federal claims.
Justice Cushing was so little troubled by the possibility he raised that he
wrote, "If this be a necessary consequence, it must be so," Chisholm,
supra, at 469, and simply suggested a textual reading that might have
led to a different consequence.
Nor can the Court make good on its
claim that the enactment of the Eleventh Amendment retrospectively
reestablished the view that had already been established at the time of the
framing (though eluding the perception of all but one Member of the Supreme
Court), and hence "acted . . . to restore the original constitutional
design," ante, at 12. n28
[*793] There was nothing
"established" about the position espoused by Georgia in the effort to
repudiate its debts, and the Court's implausible suggestion to the contrary
merely echoes the brio of its remark in Seminole Tribe that Chisholm
was "contrary to the well-understood meaning of the Constitution."
517 U.S. at 69 (citing Principality of Monaco v. Mississippi, 292
U.S. 313, 325, 78 L. Ed. 1282, 54 S. Ct. 745 (1934)). The fact that Chisholm
was no [**2285] conceptual aberration is apparent [***702]
from the ratification debates and the several state requests to rewrite
Article III. There was no received view either of the role this sovereign
immunity would play in the circumstances of the case or of a conceptual
foundation for immunity doctrine at odds with Chisholm's reading of
Article III. As an author on whom the Court relies, see ante, at 14, has
it, "there was no unanimity among the Framers that immunity would
exist," D. Currie, The Constitution in the Supreme Court: The First
Century 19 (1985). n29
n28 It is interesting to note a case argued in the
Supreme Court of Pennsylvania in 1798, in which counsel for the Commonwealth
urged a version of the point that the Court makes here, and said that "the
language of the amendment, indeed, does not import an alteration of the
Constitution, but an authoritative declaration of its true construction." Respublica
v. Cobbet, 3 Dall. 467, 472 (
n29 The Court might perhaps respond that if the role
of state sovereign immunity was not the subject of universal consensus in 1792,
the enactment of the Eleventh Amendment brought the doctrine into the
constitutional realm. The strongest form of this view must maintain that,
notwithstanding the Amendment's silence regarding state courts and its
exclusive focus on the federal judicial power, the motivation of the Framers of
the Eleventh Amendment must have been affirmatively to embrace the position
that the States enjoyed the immunity from suit previously enjoyed by the Crown.
On this account, the Framers of the Eleventh Amendment said nothing about
sovereign immunity in state court because it never occurred to them that such
immunity could be questioned; had they thought of this possibility, they would
have considered it absurd that States immune in federal court could be
subjected to suit in their own courts.
The first trouble with this view is that it assumes
that the Eleventh Amendment was intended to reach all federal law suits, and
not only those arising under diversity jurisdiction. If the Framers of the
Eleventh Amendment had in mind only diversity cases, as the Court was prepared
to concede in Seminole Tribe, see 517
[*794]
It should not be surprising, then,
to realize that although much post-Chisholm discussion was disapproving
(as the States saw their escape from debt cut off), the decision had champions
"every bit as vigorous in defending their interpretation of the
Constitution as were those partisans on the other side of the issue."
Marcus & Wexler, Suits Against States: Diversity of Opinion In The 1790s,
1993 J. Sup. Ct. Hist. 73, 83; see, e.g., 5 Documentary History of the
Supreme Court, supra, at 251-252, 252-253, 262-264, 268-269 (newspaper
articles supporting holding in Chisholm); 5 Documentary History, supra
n. 17, at 616 (statement of a Committee of Delaware Senate in support of
holding in Chisholm). The federal citizen-state diversity jurisdiction
was settled by the Eleventh Amendment; Article III was not
"restored." [*795]
F
It is clear enough that the Court has no
historical predicate to argue for a fundamental or inherent theory of sovereign
immunity as limiting authority elsewhere conferred by the Constitution or as
imported into the Constitution by the Tenth Amendment. But what if the facts
were [***703] otherwise and a natural law conception of
state sovereign immunity in a State's own courts were implicit in the
Constitution? On good authority, it would avail the State nothing, and the
Court would be no less mistaken than it is already in sustaining the State's
claim today.
The opinion of this Court that
comes closer to embodying the present majority's inherent, natural law theory
of sovereign immunity than any other I can find was written by Justice Holmes
in Kawananakoa v. Polyblank, 205 U.S. 349, 51 L. Ed. 834, 27 S.
Ct. 526 (1907). n30 I do not, of course, suggest that [**2286]
Justice Holmes [*796] was a natural law jurist, see "Natural
Law," in O. Holmes, Collected Legal Papers 312 (1920) ("The jurists
who believe in natural law seem to me to be in that naive state of mind that
accepts what has been familiar and accepted . . . as something that must be
accepted"). But in Kawananakoa he not only gave a cogent
restatement of the natural law view of sovereign immunity, but one that
includes a feature (omitted from Hamilton's formulation) explaining why even the
most absolutist version of sovereign immunity doctrine actually refutes the
Court's position today: the Court fails to realize that under the natural law
theory, sovereign immunity may be invoked only by the sovereign that is the
source of the right upon which suit is brought. Justice Holmes said so
expressly: "A sovereign is exempt from suit, not because of any
formal [***704] conception or obsolete theory, but on the logical
and practical ground that there can be no legal right as against the authority
that makes the law on which the right depends." Kawananakoa, supra,
at 353.
n30 The temptation to look to the natural law
conception had shown up occasionally before Justice Holmes's appointment, and
goes back at least to Beers v. Arkansas, 61 U.S. 527, 20 HOW 527,
15 L. Ed. 991 (1858), in which Chief Justice Taney wrote for the Court that
"it is an established principle of jurisprudence in all civilized nations
that the sovereign cannot be sued in its own courts, or in any other, without
its consent and permission," id. at 529. But nothing turned on this
pronouncement, because the outcome in the case would have been the same had
sovereign immunity been understood as a common-law property of the States. In Nichols
v.
[*797]
His cited authorities stand in the
line that today's Court purports to follow: Hobbes, Bodin, Sir John Eliot, and Baldus
de Ubaldis. Hobbes, in the cited work, said this:
"The sovereign of a Commonwealth, be it
an assembly or one man, is not subject to the civil laws. For having power to
make and repeal laws, he may, when he pleaseth, free himself from that
subjection by repealing those laws that trouble him, and making of new; and
consequently he was free before. For he is free that can be free when he will:
nor is it possible for any person to be bound to himself, because he that can
bind can release; and therefore he that is bound to himself only is not
bound." Leviathan ch. 26, § 2, p.
130.
Jean Bodin produced a similar
explanation nearly three-quarters of a century before Hobbes, see J. Bodin, Les
six livres de la republique, Bk. 1, ch. 8 (1577); Six Books of the Commonwealth
28 (M. Tooley transl. 1967) ("The sovereign . . . cannot in any way be
subject to the commands of another, for it is he who makes law"). Eliot
cited Baldus for the crux of the theory: majesty is "a fullness of power
subject to noe necessitie, limitted within no rules of publicke Law," 1 J.
Eliot, De Jure Maiestatis: or Political
[**2287] Treatise of Government
15 (A. Grosart ed. 1882), and Baldus himself made the point in observing that
no one is bound by his own statute as of necessity, see Commentary of Baldus on
the statute Digna vox in Justinian's Code 1.14.4, Lectura super Codice
folio 51b (Chapter De Legibus et constitutionibus) (Venice ed. 1496)
("nemo suo statuto ligatur necessitative").
The "jurists who believe in
natural law" might have reproved Justice Holmes for his general skepticism
about the intrinsic value of their views, but they would not have faulted him
for seeing the consequence of their position: if the sovereign is not the
source of the law to be applied, sovereign immunity has no applicability.
Justice Holmes indeed explained that in the case of multiple sovereignties, the
subordinate [*798] sovereign will not be immune where the source
of the right of action is the sovereign that is dominant. See Kawananakoa,
205
There is no escape from the trap
of Holmes's logic save recourse to the argument that the doctrine of sovereign
immunity is not the rationally necessary or inherent immunity of the civilians,
but the historically contingent, and to a degree illogical, [***705]
immunity of the common law. But if the Court admits that the source of
sovereign immunity is the common law, it must also admit that the common-law
doctrine could be changed by Congress acting under the Commerce Clause. It is
not for me to say which way the Court should turn; but in either case it is
clear that Alden's suit should go forward.
II
The Court's rationale for today's
holding based on a conception of sovereign immunity as somehow fundamental to
sovereignty or inherent in statehood fails for the lack of any substantial
support for such a conception in the thinking of the founding era. The Court
cannot be counted out yet, however, for it has a second line of argument
looking not to a clause-based reception of the natural law conception or even
to its recognition as a "background principle," see Seminole Tribe,
517
A
The National Constitution formally
and finally repudiated the received political wisdom that a system of multiple
sovereignties constituted the "great solecism of an imperium in imperio,"
cf. Bailyn, The Ideological
[**2288] Origins of the American
Revolution, at 223. n31 Once "the atom of sovereignty" had been
split, U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, [*800]
838, 131 L. Ed. 2d 881, 115 S. Ct. 1842 (1995) (KENNEDY, J.,
concurring), the general scheme of delegated sovereignty as between the two
component governments of the federal system was clear, and was succinctly
stated by Chief Justice Marshall: "In America, the powers of [***706]
sovereignty are divided between the government of the Union, and those of
the States. They are each sovereign, with respect to the objects committed to
it, and neither sovereign with respect to the objects committed to the
other." McCulloch v.
n31 The authority of the view that Parliament's
sovereignty must be indivisible had already been eroded in the decade before
independence. Iredell himself, as early as 1774, rejected the applicability of
the theory "to the case of several distinct and independent
legislatures each engaged within a separate scale and employed about
different objects," in the course of arguing for the possibility of
a kind of proto-federalist relationship between the Colonies and the King.
Iredell, Address to the Inhabitants of Great Britain, in 1 G. McRee, Life and
Correspondence of James Iredell 205, 219 (1857, reprinted 1949); see Bailyn,
The Ideological Origins of the American Revolution, at 224-225, and n. 64.
n32 This is entirely consistent with, and indeed is a
corollary of, the statement quoted by the Court that the States are "'no
more subject, within their respective spheres, to the general authority than
the general authority is subject to them, within its own sphere.'" Ante,
at 4 (quoting The Federalist No. 39, p. 245 (J. Madison)). The point is that
matters subject to federal law are within the federal sphere, and so the States
are subject to the general authority where such matters are concerned.
Hence the flaw in the Court's
appeal to federalism. The State of Maine is not sovereign with respect to the
national objective of the FLSA. n33 It is not the authority that promulgated
the FLSA, on which the right of action in this case depends. That authority is
the United States acting through the Congress, whose legislative power under
Article I of the Constitution to extend FLSA coverage to state employees has already
been decided, see Garcia v. San Antonio Metropolitan Transit
Authority, 469 U.S. 528, 83 L. Ed. 2d 1016, 105 S. Ct. 1005 (1985), and is
not contested here.
n33 It is therefore sheer circularity for the Court to
talk of the "anomaly," ante, at 43, that would arise if a
State could be sued on federal law in its own courts, when it may not be sued
under federal law in federal court, Seminole Tribe, supra. The
short and sufficient answer is that the anomaly is the Court's own creation:
the Eleventh Amendment was never intended to bar federal-question suits against
the States in federal court. The anomaly is that Seminole Tribe, an
opinion purportedly grounded in the Eleventh Amendment, should now be used as a
lever to argue for state sovereign immunity in state courts, to which the
Eleventh Amendment by its terms does not apply.
[*801]
Nor can it be argued that because
the State of Maine creates its own court system, it has authority to decide
what sorts of claims may be entertained there, and thus in effect to control
the right of action in this case. Maine has created state courts of general
jurisdiction; once it has done so, the Supremacy Clause of the Constitution,
Art. VI, cl. 2, which requires state courts to enforce federal law and state-court
judges to be bound by it, requires the Maine courts to entertain this federal
cause of action. Maine has advanced no "'valid excuse,'" Howlett
v. Rose, 496 U.S. 356, 369, 110 L. Ed. 2d 332, 110 S. Ct. 2430 (1990)
(quoting Douglas v. New York, N. H. & H. R. Co., 279 U.S.
377, 387-88, 73 L. Ed. 747, 49 S. Ct. 355 (1929)), for its courts' refusal to
hear federal-law claims in which Maine is a defendant, and sovereign immunity
cannot be that excuse, simply because the State is not sovereign with respect
to the subject of the claim against it. The Court's insistence that the federal
structure bars Congress from making States susceptible to suit in their own
courts is, then, plain mistake. n34
n34 Perhaps as a corollary to its view of sovereign
immunity as to some degree indefeasible because "fundamental," the
Court frets that the "power to press a State's own courts into federal
service to coerce the other branches of the State . . . is the power first to
turn the State against itself and ultimately to commandeer the entire political
machinery of the State against its will and at the behest of individuals."
Ante, at 40. But this is to forget that the doctrine of separation of
powers prevails in our Republic. When the state judiciary enforces federal law
against state officials, as the Supremacy Clause requires it to do, it is not
turning against the State's executive any more than we turn against the Federal
Executive when we apply federal law to the United States: it is simply
upholding the rule of law. There is no "commandeering" of the State's
resources where the State is asked to do no more than enforce federal law.
[**2289]
B
It is symptomatic of the
weakness [***707] of the structural notion proffered by the
Court that it seeks to buttress the argument by relying on "the dignity
and respect afforded a State,
[*802] which the immunity is
designed to protect," ante, at 39 (quoting Idaho v. Coeur
d' Alene Tribe of Idaho, 521 U.S. 261, 268, 138 L. Ed. 2d 438, 117 S. Ct.
2028 (1997)), and by invoking the many demands on a State's fisc, ante,
at 41-42. Apparently beguiled by Gilded Era language describing private suits
against States as "'neither becoming nor convenient,'" ante,
at 39 (quoting In re Ayers, 123 U.S. 443, 505, 31 L. Ed. 216, 8 S. Ct.
164 (1887)), the Court calls "immunity from private suits central to
sovereign dignity," ante, at 4, and assumes that this
"dignity" is a quality easily translated from the person of the King
to the participatory abstraction of a republican State, see, e.g., ante,
at 40 ("Congressional power to authorize private suits against
nonconsenting States in their own courts would be . . . offensive to state
sovereignty"). The thoroughly anomalous character of this appeal to
dignity is obvious from a reading of Blackstone's description of royal dignity,
which he sets out as a premise of his discussion of sovereignty:
"First, then, of the royal
dignity. Under every monarchical establishment, it is necessary to distinguish
the prince from his subjects . . . . The law therefore ascribes to the king . .
. certain attributes of a great and transcendent nature; by which the people
are led to consider him in the light of a superior being, and to pay him that
awful respect, which may enable him with greater ease to carry on the business
of government. This is what I understand by the royal dignity, the several
branches of which we will now proceed to examine." 1 Blackstone * 241.
It would be hard to imagine
anything more inimical to the republican conception, which rests on the
understanding of its citizens precisely that the government is not above them,
but of them, its actions being governed by law just like their own. Whatever
justification there may be for an American
[*803] government's immunity from
private suit, it is not dignity. n35 See United States v. Lee,
106 U.S. 196, 208, 27 L. Ed. 171, 1 S. Ct. 240 (1882).
n3
Furthermore, the very idea of dignity ought also to
imply that the State should be subject to, and not outside of, the law. It is
surely ironic that one of the loci classici of Roman law regarding the imperial
prerogative begins with (and is known by) the assertion that it is appropriate
to the Emperor's dignity that he acknowledge (or, on some readings, at least
claim) that he is bound by the laws. See Digna Vox, Justinian's Code 1.4.14
("Digna vox maiestate regnantis legis alligatum se principem profiteri")
("It is a statement worthy of the majesty of the ruler for the Prince to
profess himself bound by the laws"); see Pennington, The Prince and the
Law, 1200-1600, at 78, and n. 6.
It is equally puzzling to hear the
Court say that "federal power to authorize private suits for money damages
would place unwarranted strain on the States' ability to govern in accordance
with the will of their citizens." Ante, at 41-42. So long as the
citizens' will, expressed through state legislation, does not violate
valid [***708] federal law, the strain will not be felt; and
to the extent that state action does violate federal law, the will of the
citizens of the United States already trumps that of the citizens of the State:
the strain then is not only expected, but necessarily intended.
Least of all does the Court
persuade by observing that "other important needs" than that of the
"judgment creditor" compete for public money, ante, at 42. The
"judgment creditor" in question is not a dunning bill- collector, but
a citizen whose federal rights have been violated, and a constitutional
structure that stints on enforcing federal rights out of an abundance of
delicacy toward the States has substituted politesse in place of respect for
the rule of law. n36
n36 The Court also claims that subjecting States to
suit puts power in the hands of state courts that the State may wish to assign
to its legislature, thus assigning the state judiciary a role "foreign to
its experience but beyond its competence . . . ." Ante, at 43. This
comes perilously close to legitimizing political defiance of valid federal law.
[*804] [**2290]
III
If neither theory nor structure
can supply the basis for the Court's conceptions of sovereign immunity and
federalism, then perhaps history might. The Court apparently believes that
because state courts have not historically entertained Commerce Clause-based
federal-law claims against the States, such an innovation carries a presumption
of unconstitutionality. See ante, at 34 (arguing that absence of
statutes authorizing suits against States in state court suggests an assumed absence
of such power). At the outset, it has to be noted that this approach assumes a
more cohesive record than history affords. In Hilton v. South
Carolina Public Railways Comm'n, 502 U.S. 197, 116 L. Ed. 2d 560, 112 S.
Ct. 560 (1991) (KENNEDY, J.), a case the Court labors mightily to distinguish,
see ante, at 26-27, n37 we held that a state-owned railroad could be
sued in state court under the Federal Employers' Liability Act, 45 U.S.C. §
§ 51-60, notwithstanding the lack of an
express congressional statement, because "'the Eleventh Amendment does not
apply in state courts.'" Hilton, supra, at 205 (quoting Will
v. Michigan Dept. of State Police, 491 U.S. 58, 63-64, 105 L. Ed. 2d 45,
109 S. Ct. 2304 (1989)). n38 But even if the record were less unkempt, the
[*805] problem with arguing from
historical practice in this case is that past [***709] practice, even if unbroken, provides no basis
for demanding preservation when the conditions on which the practice depended
have changed in a constitutionally relevant way.
n37 In its discussion of Hilton, the Court
attempts to explain away the State's failure to raise a sovereign immunity
defense by acknowledging candidly that when that case was decided, "it may
have appeared to the State that Congress' power to abrogate its immunity from
suit in any court was not limited by the Constitution at all." Ante,
at 27. The reasoning of Hilton suggests that it appeared not only to the
State, but also to the Court, that Congress could abrogate state sovereign
immunity in state court. If Congress could not, then there would have been no
jurisdiction in the case. The Court never even hinted that constitutional
structure, much less the Tenth Amendment, might bar the suit, even though the
dissent stressed that "the principle of federalism underlying the [Eleventh]
Amendment pervades the constitutional structure," 502 U.S. at 209 (opinion
of O'CONNOR, J.).
n38 Nor does Poindexter v. Greenhow, 114
U.S. 270, 29 L. Ed. 185, 5 S. Ct. 903 (1885), one of the Virginia Coupon Cases,
fit comfortably with the assumption that state courts have exercised no
disputed jurisdiction over their own governments on federal questions. Under
its Funding Act of 1871, Virginia had issued bonds that specified on their face
that the attached coupons should be receivable at and after maturity for all
taxes, debts, dues, and demands due the State.
Id. at 278. In 1882, however, Virginia passed a law requiring its tax
collectors to accept nothing but gold, silver, or currency in payment of taxes. Id. at 275. After the bonds reached maturity,
Poindexter used them to pay state property taxes; Greenhow, the local tax
collector, ignored the payment and took possession of an office desk in
Poindexter's possession to sell it for unpaid taxes. Poindexter brought a
common-law action in detinue against the tax collector in state court for
recovery of the desk, arguing that the later Virginia statute barring use of
the coupons violated the Contracts Clause. Greenhow defended, inter alia,
on the theory that the suit was "substantially an action against the State
of Virginia, to which it has not assented." Id. at 285. The Court rejected
this claim by applying to the State of Virginia reasoning akin to, though
broader than, that later adopted in Ex parte Young, 209 U.S. 123, 52 L.
Ed. 714, 28 S. Ct. 441 (1908). We held that, where state legislative action is
unconstitutional, it "is not the word or deed of the State, but is the
mere wrong and trespass of those individual persons who falsely speak and act
in its name," 114 U.S. at 290. Because the original bonds were binding
contracts, the obligation of which Virginia could not constitutionally impair,
"the true and real Commonwealth which contracted the obligation is
incapable in law of doing anything in derogation of it." Id. at 293. It
therefore could not be argued that the tax collector was acting on behalf of
the State, because "the State of Virginia has done none of these things
with which this defence charges her. The defendant in error is not her officer,
her agent, or her representative, in the matter complained of, for he has acted
not only without her authority, but contrary to her express commands." Ibid.
Although the tax collector had done nothing more than collect taxes under duly
enacted state law, he was held to be liable to suit. Thus in the only case to
have come before this Court specifically involving a claim of state sovereign
immunity of constitutional magnitude in a State's own court, jurisdiction was
upheld.
It was at one time, though perhaps not from
the framing, believed that "Congress' authority to regulate the States
under the Commerce Clause" was limited by "certain underlying [*806]
elements of political sovereignty . . . deemed essential to the States'
'separate [**2291] and independent existence.'" See Garcia,
469 U.S. at 547-548 (quoting Lane County v. Oregon, 74 U.S. 71, 7
Wall. 71, 76, 19 L. Ed. 101 (1869)). On this belief, the preordained balance
between state and federal sovereignty was understood to trump the terms of
Article I and preclude Congress from subjecting States to federal law on
certain subjects. (From time to time, wage and hour regulation has been counted
among those subjects, see infra, at 52.) As a consequence it was rare,
if not unknown, for state courts to confront the situation in which federal law
enacted under the Commerce Clause provided the authority for a private right of
action against a State in state court. The question of state immunity from a
Commerce Clause-based federal-law suit in state court thus tended not to arise
for the simple reason that acts of Congress authorizing such suits did not
exist.
Today, however, in light of Garcia,
supra (overruling National
League of Cities v. Usery,
426 U.S. 833, 49 L. Ed. 2d 245, 96 S. Ct. 2465 (1976)), the law is settled that
federal legislation enacted under the Commerce Clause may bind the States
without having to satisfy a test of undue incursion into state sovereignty.
"The fundamental limitation that the constitutional scheme imposes on the
Commerce Clause to protect the 'States as States' is one of process rather than
one of result." Garcia, supra, at 554. Because the commerce
power is no longer thought to be circumscribed, the dearth of prior private
federal claims entertained against the States in state courts does not tell us
anything, [***710] and reflects nothing but an earlier and less
expansive application of the commerce power.
Least of all is it to the point
for the Court to suggest that because the Framers would be surprised to find
States subjected to a federal-law suit in their own courts under the commerce
power, the suit must be prohibited by the Constitution. See ante, at
31-34 (arguing on the basis of the "historical record" that the
Constitution would not have been adopted if it had been understood to allow
suit against States [*807] in state court under federal law). The
Framers' intentions and expectations count so far as they point to the meaning
of the Constitution's text or the fair implications of its structure, but they
do not hover over the instrument to veto any application of its principles to a
world that the Framers could not have anticipated.
If the Framers would be surprised
to see States subjected to suit in their own courts under the commerce power,
they would be astonished by the reach of Congress under the Commerce Clause generally.
The proliferation of Government, State and Federal, would amaze the Framers,
and the administrative state with its reams of regulations would leave them
rubbing their eyes. But the Framers' surprise at, say, the FLSA, or the Federal
Communications Commission, or the Federal Reserve Board is no threat to the
constitutionality of any one of them, for a very fundamental reason:
"When we are dealing with
words that also are a constituent act, like the Constitution of the United
States, we must realize that they have called into life a being the development
of which could not have been foreseen completely by the most gifted of its
begetters. It was enough for them to realize or to hope that they had created
an organism; it has taken a century and has cost their successors much sweat
and blood to prove that they created a nation. The case before us must be
considered in the light of our whole experience and not merely in that of what
was said a hundred years ago." Missouri v. Holland, 252 U.S.
416, 433, 64 L. Ed. 641, 40 S. Ct. 382 (1920) (Holmes, J.).
"'We must never forget,' said
Mr. Chief Justice Marshall in McCulloch, [4 Wheat., at] 407, 'that it is
a Constitution we are expounding.' Since then this Court has repeatedly
sustained the exercise of power by Congress, under various clauses of that
instrument, over objects of which the Fathers could not have
dreamed." [*808] Olmstead v. United States, 277
U.S. 438, 472, 72 L. Ed. 944, 48 S. Ct. 564 (1928) (Brandeis, J. dissenting).
IV
A
If today's decision occasions
regret at its anomalous versions of history and federal [**2292]
theory, it is the more regrettable in being the second time the Court
has suddenly changed the course of prior decision in order to limit the
exercise of authority over a subject now concededly within the Article I
jurisdiction of the Congress. The FLSA, which requires employers to pay a
minimum wage, was first enacted in 1938, with an exemption for States acting as
employers. See Maryland v. Wirtz, 392 U.S. 183, 185-186, 20 L. Ed.
2d 1020, 88 S. Ct. [***711] 2017 (1968). In 1966, it was amended to
remove the state employer exemption so far as it concerned workers in
hospitals, institutions, and schools. See id. at 186-187, and n. 6. In Wirtz,
the Court upheld the amendment over the dissent's argument that extending the
FLSA to these state employees was "such a serious invasion of state
sovereignty protected by the Tenth Amendment that it is . . . not consistent
with our constitutional federalism." Id. at 201 (opinion of Douglas, J.).
In 1974, Congress again amended the FLSA, this
time "extending the minimum wage and maximum hour provisions to almost all
public employees employed by the States and by their various political
subdivisions." National League of Cities, 426 U.S. at 836. This
time the Court went the other way: in National League of Cities, the
Court held the extension of the Act to these employees an unconstitutional
infringement of state sovereignty, id. at 852; for good measure, the Court
overturned Wirtz, dismissing its reasoning as no longer authoritative,
see 426 U.S. at 854-855.
But National League of Cities was
not the last word. In Garcia, decided some nine years later, the Court
addressed the question whether a municipally owned mass-transit [*809]
system was exempt from the FLSA. 469 U.S. at 534, 536. In holding that
it was not, the Court overruled National League of Cities, see 469 U.S.
at 557, this time taking the position that Congress was not barred by the
Constitution from binding the States as employers under the Commerce Clause,
id. at 554. As already mentioned, the Court held that whatever protection the
Constitution afforded to the States' sovereignty lay in the constitutional
structure, not in some substantive guarantee. Ibid. n39 Garcia remains
good law, its reasoning has not been repudiated, and it has not been challenged
here.
n39 Garcia demonstrates that, contra the
Court's suggestion, the FLSA does not impermissibly act upon the States, see ante,
at 4. Rather, the FLSA, enacted lawfully pursuant to the commerce power, treats
the States like other employers. The Court seems to have misunderstood
Hamilton's statement in The Federalist No. 15 that the citizens are "'the
only proper objects of government,'" ante, at 4 (quoting Printz
v. United States, 521 U.S. 898, 919-920, 138 L. Ed. 2d 914, 117 S. Ct.
2365 (1997)). Hamilton's point is not, as the Court seems to think, that the
National Government should dictate nothing to the States in order to protect
their residual sovereignty. To the contrary, Hamilton, who was arguing against
the extreme respect for state sovereignty in the Articles of Confederation,
meant precisely that the National Government should not act as the leader of a
"league," The Federalist No. 15, p. 95 (J. Cooke ed. 1961), mediating
among several sovereignties, but as a "national government," ibid.
with power to produce obedience through the "COERCION of the
magistracy," ibid. Hamilton is therefore the wrong person to quote
for the proposition that the National Government may not act upon the States,
since his point was that the National Government should not be limited to
acting through the medium of the States.
The FLSA has not, however, fared
as well in practice as it has in theory. The Court in Seminole Tribe
created a significant impediment to the statute's practical application by
rendering its damages [***712] provisions unenforceable against the States
by private suit in federal court. Today's decision blocking private actions in
state courts makes the barrier to individual enforcement a total one. [*810]
B
The Court might respond to the
charge that in practice it has vitiated Garcia by insisting, as counsel
for Maine argued, Brief for Respondent 11-12, that the United States may bring
suit in federal court against a State for damages under the FLSA, on the
authority of United States v. Texas, 143 U.S. 621, 644-645, 36 L.
Ed. 285, 12 S. Ct. 488 (1892). See also Seminole Tribe, 517 U.S. at 71,
n. 14. It is true, of course, that the FLSA does authorize the Secretary of
Labor to file suit seeking damages,
[**2293] see 29 U.S.C. § 216(c), but unless Congress plans a
significant expansion of the National Goverment's litigating forces to provide
a lawyer whenever private litigation is barred by today's decision and Seminole
Tribe, the allusion to enforcement of private rights by the National
Government is probably not much more than whimsy. Facing reality, Congress
specifically found, as long ago as 1974, "that the enforcement capability
of the Secretary of Labor is not alone sufficient to provide redress in all or
even a substantial portion of the situations where compliance is not
forthcoming voluntarily." S. Rep. No. 93-690, p. 27 (1974). One hopes that
such voluntary compliance will prove more popular than it has in Maine, for
there is no reason today to suspect that enforcement by the Secretary of Labor
alone would likely prove adequate to assure compliance with this federal law in
the multifarious circumstances of some 4.7 million employees of the 50 States
of the Union. n40
n40 The most recent available data give 4,732,608 as
the total number of employees of the 50 States of the Union, see State
Government Employment Data: March 1997, http:/www.census.gov/pub/govs/apes/
97stus.txt.
The point is not that the difficulties
of enforcement should drive the Court's decision, but simply that where
Congress has created a private right to damages, it is implausible to claim
that enforcement by a public authority without any incentive beyond its general
enforcement power will ever afford the private right a traditionally adequate
remedy. No [*811] one would think the remedy adequate if
private tort claims against a State could only be brought by the National
Government: the tradition of private enforcement, as old as the common law
itself, is the benchmark. But wage claims have a lineage of private enforcement
just as ancient, and a claim under the FLSA is a claim for wages due on work
performed. Denying private enforcement of an FLSA claim is thus on par with
closing the courthouse door to state tort victims unaccompanied by a lawyer
from Washington.
So there is much irony in the
Court's profession that it grounds its opinion on a deeply rooted historical
tradition of sovereign immunity, when the Court abandons a principle nearly as
inveterate, and much closer to the hearts of the Framers: that where there is a
right, there must be a remedy. Lord Chief Justice Holt could state [***713]
this as an unquestioned proposition already in 1702, as he did in Ashby
v. White, 6 Mod. 45, 53-54, 87 Eng. Rep. 808, 815 (K.B.):
"If an Act of Parliament be
made for the benefit of any person, and he is hindered by another of that
benefit, by necessary consequence of law he shall have an action; and the
current of all the books is so." Ibid. (citation omitted). n41
n41 The principle is even older with respect to rights
created by statute, like the FLSA rights here, than it is for common-law
damages. Lord Holt in fact argued that the well-established principle in the
context of statutory rights applied to common law rights as well. See Ashby
v. White, 6 Mod., at 54, 87 Eng. Rep., at 816 ("Now if this be so
in case of an Act of Parliament, why shall not common law be so too? For sure
the common law is as forcible as any Act of Parliament"). A still older
formulation of the statutory right appears in a note in Coke's Reports:
"When any thing is prohibited by an Act, although that the Act doth not
give an action, yet action lieth upon it." 12 Co. Rep. 100. Coke's
Institutes yield a similar statement: "When any act doth prohibit any
wrong or vexation, though no action be particularly named in the act, yet the
party grieved shall have an action grounded upon this statute." 1 E. Coke,
The Second Part of the Institutes of the Laws of England 117 (1797) (reprinted
in 5B 2d Historical Writngs in Law and Jurisprudence (1986)). In our case, of
course, the statute expressly gives an action.
[*812]
Blackstone considered it "a
general and indisputable rule, that where there is a legal right, there is also
a legal remedy, by suit or action at law, whenever that right is invaded."
3 Blackstone * 23. The generation of the Framers thought the principle so
crucial that several States put it into their constitutions. n42 And when Chief
Justice Marshall asked about Marbury, "If he has a right, and that right
has been violated, do the laws of
[**2294] his country afford him a
remedy?," Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 162,
2 L. Ed. 60 (1803), the question was rhetorical, and the answer clear:
n42 See, e.g., A Declaration of Rights and
Fundamental Rules of the Delaware State §
12 (1776), 2 Sources and Documents of United States Constitutions, at
197, 198; Md. Const. Art. XVII (1776), 4 id. at 372, 373; Mass. Const. Art. XI,
(1780), 5 id. at 92, 94; Ky. Const. Art. XII, cl. 13 (1792), 4 id. at 142, 150;
Tenn. Const. Art. XI, § 17 (1796), 9 id.
at 141, 148.
"The very essence of civil liberty
certainly consists in the right of every individual to claim the protection of
the laws, whenever he receives an injury. One of the first duties of government
is to afford that protection. In Great Britain the king himself is sued in the
respectful form of a petition, and he never fails to comply with the judgment
of his court." Id. at 163.
Yet today the Court has no qualms
about saying frankly that the federal right to damages afforded by Congress
under the FLSA cannot create a concomitant private remedy. The right was
"made for the benefit of" petitioners; they have been "hindered
by another of that benefit"; but despite what has long been understood as
the "necessary consequence of law," they have no action, cf. Ashby,
supra, at 55, 87 Eng. Rep., at 815. It will not do for the Court to
respond that a remedy was never available where the right in question was
against the sovereign. A State is not the sovereign when a federal claim is
pressed against it, and even the English sovereign opened itself to recovery
and, [*813] unlike Maine, provided the remedy to complement
the right. To the Americans of the founding generation it would have been clear
(as it was to Chief Justice Marshall)
that if the King would do right, the democratically chosen Government of
the [***714] United States could do no less. n43 The Chief
Justice's [*814] contemporaries might well have reacted to the
Court's decision today in the words spoken by Edmund Randolph when responding
to the objection to jurisdiction in Chisholm: "[The Framers] must
have viewed human rights in their essence, not in their mere form." 2
Dall., at 423.
n43 Unfortunately, and despite the Court's professed
"unwillingness to assume the States will refuse to honor the Constitution
and obey the binding laws of the United States," ante, at 46, that
presumption of the sovereign's good-faith intention to follow the laws has
managed somehow to disappear in the intervening two centuries, despite the
general trend toward greater, not lesser, government accountability. Anyone
inclined toward economic theories of history may look at the development of
sovereign immunity doctrine in this country and see that it has been driven by
the great and recurrent question of state debt, both in the aftermath of Chisholm
and in the last quarter of the 19th century, see Seminole Tribe, 517
U.S. at 120-122 (SOUTER, J., dissenting). And no matter what one may think of
the quality of the legal doctrine that the problem of state debt has helped to
produce, one can at least argue that States' periodic attempts to repudiate
their debts were not purely or egregiously lawless, because those who held
state-issued bonds may well have valued and purchased them with the knowledge
that default was a real possibility.
Maine's refusal to follow federal law in the case
before us, however, is of a different order. Far from defaulting on debt to
eyes-open creditors, Maine is simply withholding damages from private citizens
to whom they appear to be due. Before Seminole Tribe was decided,
petitioners here were the beneficiaries of a District Court ruling to the
effect that they were entitled to some coverage, and hence to some amount of
damages, under the FLSA. Mills v.
Maine, 839 F. Supp. 3 (Me. 1993). Before us, Maine has not claimed that
petitioners are not covered by the FLSA, but only that it is protected from
suit. Indeed, Maine acknowledges that it may be sued by the United States in
federal court for damages on the very same claim, Brief for Respondent 12-13,
and we are told that Maine now pays employees like petitioners overtime as
covered by the FLSA, id. at 3. Why the State of Maine has not rendered this
case unnecessary by paying damages to petitioners under the FLSA of its own
free will remains unclear to me. The Court says that "it is conceded by
all that the State has altered its conduct so that its compliance with federal
law cannot now be questioned." Ante, at 50. But the ambiguous
qualifier "now" allows the Court to avoid the fact that whatever its
forward-looking compliance, the State still has not paid damages to
petitioners; had it done so, the case before us would be moot.
V
The Court has swung back and forth
with regrettable disruption on the enforceability of the FLSA against the
States, but if the present majority had a defensible position one could at
least accept its decision with an expectation of stability ahead. As it is, any
such expectation would be naive. The resemblance of today's state sovereign
immunity to the Lochner era's industrial due process is striking. The
Court began this century by imputing immutable constitutional status to a
conception of economic self-reliance that was never true to industrial life and
grew insistently [**2295] fictional with the years, and the Court has
chosen to close the century by conferring like status on a conception of state
sovereign immunity that is true neither to history nor to the structure of the
Constitution. I expect the Court's late essay into immunity doctrine will prove
the equal of its earlier experiment in laissez-faire, the one being as
unrealistic as the other, as indefensible, and probably as fleeting.