Seminole Tribe of Florida v. Florida

No. 94-12

Argued October 11, 1995

Decided March 27, 1996

[U.S. Reports citation not yet available]

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Syllabus



The Indian Gaming Regulatory Act, passed by Congress pursuant to the

Indian Commerce Clause, allows an Indian tribe to conduct certain gaming

activities only in conformance with a valid compact between the tribe

and the State in which the gaming activities are located.  25 U.S.C. 

2710(d)(1)(C).  Under the Act, States have a duty to negotiate in good

faith with a tribe toward the formation of a compact,  2710(d)(3)(A),

and a tribe may sue a State in federal court in order to compel

performance of that duty,  2710(d)(7).  In this  2710(d)(7) suit,

respondents, Florida and its Governor, moved to dismiss petitioner

Seminole Tribe's complaint on the ground that the suit violated

Florida's sovereign immunity from suit in federal court.  The District

Court denied the motion, but the Court of Appeals reversed, finding that

the Indian Commerce Clause did not grant Congress the power to abrogate

the States' Eleventh Amendment immunity, and that Ex parte Young, 209

U.S. 123, does not permit an Indian tribe to force good faith

negotiations by suing a State's Governor.



Held:



1.  The Eleventh Amendment prevents Congress from authorizing suits by

Indian tribes against States to enforce legislation enacted pursuant to

the Indian Commerce Clause.  Pp. ___.



(a) The Eleventh Amendment presupposes that each State is a sovereign

entity in our federal system, and that "`[i]t is inherent in the nature

of sovereignty not to be amenable to the suit of an individual without

[a State's] consent.'"  Hans v. Louisiana, 134 U.S. 1, 13.  However,

Congress may abrogate the States' sovereign immunity if it has

"unequivocally expresse[d] its intent to abrogate the immunity" and has

acted "pursuant to a valid exercise of power."  Green v. Mansour, 474

U.S. 64, 68.  Here, through the numerous references to the "State" in 

2710(d)(7)(B)'s text, Congress provided an "unmistakably clear"

statement of its intent to abrogate.  Pp. ___.



(b) The inquiry into whether Congress has the power to abrogate

unilaterally the States' immunity from suit is narrowly focused on a

single question:  was the Act in question passed pursuant to a

constitutional provision granting Congress such power?  This Court has

found authority to abrogate under only two constitutional provisions: 

the Fourteenth Amendment, see, e.g., Fitzpatrick v. Bitzer, 427 U.S.

445, and, in a plurality opinion, the Interstate Commerce Clause,

Pennsylvania v. Union Gas Co., 491 U.S. 1.  The Union Gas plurality

found that Congress' power to abrogate came from the States' session of

their sovereignty when they gave Congress plenary power to regulate

commerce.  Under the rationale of Union Gas, the Indian Commerce Clause

is indistinguishable from the Interstate Commerce Clause.  Pp. ___.



(c) However, in the five years since it was decided, Union Gas has

proven to be a solitary departure from established law.  Reconsidering

that decision, none of the policies underlying stare decisis require

this Court's continuing adherence to its holding.  The decision has been

of questionable precedential value, largely because a majority of the

Court expressly disagreed with the plurality's rationale.  Moreover, the

deeply fractured decision has created confusion among the lower courts

that have sought to understand and apply it.  The plurality's rationale

also deviated sharply from this Court's established federalism

jurisprudence and essentially eviscerated the Court's decision in Hans,

since the plurality's conclusion -- that Congress could under Article I

expand the scope of the federal courts' Article III jurisdiction --

contradicted the fundamental notion that Article III sets forth the

exclusive catalog of permissible federal court jurisdiction.  Thus,

Union Gas was wrongly decided, and is overruled.  The Eleventh Amendment

restricts the judicial power under Article III, and Article I cannot be

used to circumvent the constitutional limitations placed upon federal

jurisdiction.  Pp. ___.



2.  The doctrine of Ex parte Young may not be used to enforce 

2710(d)(3) against a state official.  That doctrine allows a suit

against a state official to go forward, notwithstanding the Eleventh

Amendment's jurisdictional bar, where the suit seeks prospective

injunctive relief in order to end a continuing federal law violation. 

However, where, as here, Congress has prescribed a detailed remedial

scheme for the enforcement against a State of a statutorily created

right, a court should hesitate before casting aside those limitations

and permitting an Ex parte Young action.  The intricate procedures set

forth in  2710(d)(7) show that Congress intended not only to define, but

also significantly to limit, the duty imposed by  2710(d)(3).  The Act

mandates only a modest set of sanctions against a State, culminating in

the Secretary of the Interior prescribing gaming regulations where an

agreement is not reached through negotiation or mediation.  In contrast,

an Ex parte Young action would expose a state official to a federal

court's full remedial powers, including, presumably, contempt sanctions.

 Enforcement through an Ex parte Young suit would also make  2710(d)(7)

superfluous, for it is difficult to see why a tribe would suffer through

 2710(d)(7)'s intricate enforcement scheme if Ex parte Young's more

complete and more immediate relief were available.  The Court is not

free to rewrite the statutory scheme in order to approximate what it

thinks Congress might have wanted had it known that  2710(d)(7) was

beyond its authority.  Pp. ___.



11 F.3d 1016, affirmed.



REHNQUIST, C.J., delivered the opinion of the Court, in which O'CONNOR,

SCALIA, KENNEDY, and THOMAS, JJ., joined.  STEVENS, J., filed a

dissenting opinion.  SOUTER, J., filed a dissenting opinion, in which

GINSBURG and BREYER, JJ., joined. REHNQUIST, J., lead opinion



CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.



The Indian Gaming Regulatory Act provides that an Indian tribe may

conduct certain gaming activities only in conformance with a valid

compact between the tribe and the State in which the gaming activities

are located.  102 Stat. 2475, 25 U.S.C.  2710(d)(1)(C).  The Act, passed

by Congress under the Indian Commerce Clause, U.S.Const., Art. I,  10,

cl. 3, imposes upon the States a duty to negotiate in good faith with an

Indian tribe toward the formation of a compact,  2710(d)(3)(A), and

authorizes a tribe to bring suit in federal court against a State in

order to compel performance of that duty,  2710(d)(7).  We hold that,

notwithstanding Congress' clear intent to abrogate the States' sovereign

immunity, the Indian Commerce Clause does not grant Congress that power,

and therefore  2710(d)(7) cannot grant jurisdiction over a State that

does not consent to be sued.  We further hold that the doctrine of Ex

parte Young, 209 U.S. 123 (1908), may not be used to enforce  2710(d)(3)

against a state official. I



Congress passed the Indian Gaming Regulatory Act in 1988 in order to

provide a statutory basis for the operation and regulation of gaming by

Indian tribes.  See 25 U.S.C.  2702.  The Act divides gaming on Indian

lands into three classes -- I, II, and III -- and provides a different

regulatory scheme for each class.  Class III gaming -- the type with

which we are here concerned -- is defined as "all forms of gaming that

are not class I gaming or class II gaming,"  2703(8), and includes such

things as slot machines, casino games, banking card games, dog racing,

and lotteries.  It is the most heavily regulated of the three classes. 

The Act provides that class III gaming is lawful only where it is:  (1)

authorized by an ordinance or resolution that (a) is adopted by the

governing body of the Indian tribe, (b) satisfies certain statutorily

prescribed requirements, and (c) is approved by the National Indian

Gaming Commission; (2) located in a State that permits such gaming for

any purpose by any person, organization, or entity; and (3) "conducted

in conformance with a Tribal-State compact entered into by the Indian

tribe and the State under paragraph (3) that is in effect."  

2710(d)(1).



The "paragraph (3)" to which the last prerequisite of  2710(d)(1) refers

is  2710(d)(3), which describes the permissible scope of a Tribal-State

compact, see  2710(d)(3)(C), and provides that the compact is effective

"only when notice of approval by the Secretary [of the Interior] of such

compact has been published by the Secretary in the Federal Register," 

2710(d)(3)(B).  More significant for our purposes, however, is that 

2710(d)(3) describes the process by which a State and an Indian tribe

begin negotiations toward a Tribal-State compact:



(A) Any Indian tribe having jurisdiction over the Indian lands upon

which a class III gaming activity is being conducted, or is to be

conducted, shall request the State in which such lands are located to

enter into negotiations for the purpose of entering into a Tribal-State

compact governing the conduct of gaming activities.  Upon receiving such

a request, the State shall negotiate with the Indian tribe in good faith

to enter into such a compact.



The State's obligation to "negotiate with the Indian tribe in good

faith," is made judicially enforceable by  2710(d)(7)(A)(i) and (B)(i):



(A) The United States district courts shall have jurisdiction over --



(i) any cause of action initiated by an Indian tribe arising from the

failure of a State to enter into negotiations with the Indian tribe for

the purpose of entering into a Tribal-State compact under paragraph (3)

or to conduct such negotiations in good faith. . . .



(B)(i) An Indian tribe may initiate a cause of action described in

subparagraph (A)(i) only after the close of the 180-day period beginning

on the date on which the Indian tribe requested the State to enter into

negotiations under paragraph (3)(A). Sections 2710(d)(7)(B)(ii)-(vii)

describe an elaborate remedial scheme designed to ensure the formation

of a Tribal-State compact.  A tribe that brings an action under 

2710(d)(7)(A)(i) must show that no Tribal-State compact has been entered

and that the State failed to respond in good faith to the tribe's

request to negotiate; at that point, the burden then shifts to the State

to prove that it did in fact negotiate in good faith.  

2710(d)(7)(B)(ii).  If the district court concludes that the State has

failed to negotiate in good faith toward the formation of a Tribal-State

compact, then it "shall order the State and Indian tribe to conclude

such a compact within a 60-day period."   2710(d)(7)(B)(iii).  If no

compact has been concluded 60 days after the court's order, then "the

Indian tribe and the State shall each submit to a mediator appointed by

the court a proposed compact that represents their last best offer for a

compact."   2710(d)(7)(B)(iv).  The mediator chooses from between the

two proposed compacts the one "which best comports with the terms of

[the Act] and any other applicable Federal law and with the findings and

order of the court," ibid., and submits it to the State and the Indian

tribe,  2710(d)(7)(B)(v).  If the State consents to the proposed compact

within 60 days of its submission by the mediator, then the proposed

compact is "treated as a Tribal-State compact entered into under

paragraph (3)."   2710(d)(7)(B)(vi).  If, however, the State does not

consent within that 60-day period, then the Act provides that the

mediator "shall notify the Secretary [of the Interior]," and that the

Secretary shall prescribe . . . procedures . . . under which class III

gaming may be conducted on the Indian lands over which the Indian tribe

has jurisdiction. 2710(d)(7)(B)(vii).



In September, 1991, the Seminole Tribe of Indians, petitioner, sued the

State of Florida and its Governor, Lawton Chiles, respondents.  Invoking

jurisdiction under 25 U.S.C.  2710(d)(7)(A), as well as 28 U.S.C.  1331

and 1362, petitioner alleged that respondents had "refused to enter into

any negotiation for inclusion of [certain gaming activities] in a

tribal-state compact," thereby violating the "requirement of good faith

negotiation" contained in  2710(d)(3).  Petitioner's Complaint,  24, see

App. 18.  Respondents moved to dismiss the complaint, arguing that the

suit violated the State's sovereign immunity from suit in federal court.

 The District Court denied respondents' motion, 801 F.Supp. 655 (SD Fla.

1992), and the respondents took an interlocutory appeal of that

decision.  See Puerto Rico Aqueduct and Sewer Authority v. Metcalf &

Eddy, Inc., 506 U.S. 139 (1993) (collateral order doctrine allows

immediate appellate review of order denying claim of Eleventh Amendment

immunity).



The Court of Appeals for the Eleventh Circuit reversed the decision of

the District Court, holding that the Eleventh Amendment barred

petitioner's suit against respondents.  11 F.3d 1016 (1994).  The court

agreed with the District Court that Congress in  2710(d)(7) intended to

abrogate the States' sovereign immunity, and also agreed that the Act

had been passed pursuant to Congress' power under the Indian Commerce

Clause, U.S.Const., Art. I,  8, cl. 3.  The court disagreed with the

District Court, however, that the Indian Commerce Clause grants Congress

the power to abrogate a State's Eleventh Amendment immunity from suit,

and concluded therefore that it had no jurisdiction over petitioner's

suit against Florida.  The court further held that Ex parte Young, 209

U.S. 123 (1908), does not permit an Indian tribe to force good faith

negotiations by suing the Governor of a State.  Finding that it lacked

subject matter jurisdiction, the Eleventh Circuit remanded to the

District Court with directions to dismiss petitioner's suit.



Petitioner sought our review of the Eleventh Circuit's decision, and we

granted certiorari, 513 U.S. ___ (1995), in order to consider two

questions:  (1) Does the Eleventh Amendment prevent Congress from

authorizing suits by Indian tribes against States for prospective

injunctive relief to enforce legislation enacted pursuant to the Indian

Commerce Clause?; and (2) Does the doctrine of Ex parte Young permit

suits against a State's governor for prospective injunctive relief to

enforce the good faith bargaining requirement of the Act?  We answer the

first question in the affirmative, the second in the negative, and we

therefore affirm the Eleventh Circuit's dismissal of petitioner's suit.



The Eleventh Amendment provides:



The Judicial power of the United States shall not be construed to extend

to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or Subjects

of any Foreign State. Although the text of the Amendment would appear to

restrict only the Article III diversity jurisdiction of the federal

courts, "we have understood the Eleventh Amendment to stand not so much

for what it says, but for the presupposition . . . which it confirms." 

Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991).  That

presupposition, first observed over a century ago in Hans v. Louisiana,

134 U.S. 1 (1890), has two parts:  first, that each State is a sovereign

entity in our federal system; and second, that "`[i]t is inherent in the

nature of sovereignty not to be amenable to the suit of an individual

without its consent.'"  Id. at 13 (emphasis deleted), quoting The

Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton).  See

also Puerto Rico Aqueduct and Sewer Authority, supra, at 146 ("The

Amendment is rooted in a recognition that the States, although a union,

maintain certain attributes of sovereignty, including sovereign

immunity").  For over a century, we have reaffirmed that federal

jurisdiction over suits against unconsenting States "was not

contemplated by the Constitution when establishing the judicial power of

the United States."  Hans, supra, at 15.



Here, petitioner has sued the State of Florida and it is undisputed that

Florida has not consented to the suit.  See Blatchford, supra, at 782

(States, by entering into the Constitution, did not consent to suit by

Indian tribes).  Petitioner nevertheless contends that its suit is not

barred by state sovereign immunity.  First, it argues that Congress,

through the Act, abrogated the States' sovereign immunity. 

Alternatively, petitioner maintains that its suit against the Governor

may go forward under Ex parte Young, supra.  We consider each of those

arguments in turn. II



Petitioner argues that Congress, through the Act, abrogated the States'

immunity from suit.  In order to determine whether Congress has

abrogated the States' sovereign immunity, we ask two questions:  first,

whether Congress has "unequivocally expresse[d] its intent to abrogate

the immunity," Green v. Mansour, 474 U.S. 64, 68 (1985); and second,

whether Congress has acted "pursuant to a valid exercise of power." 

Ibid. A



Congress' intent to abrogate the States' immunity from suit must be

obvious from "a clear legislative statement."  Blatchford, 501 U.S. at

786.  This rule arises from a recognition of the important role played

by the Eleventh Amendment and the broader principles that it reflects. 

See Atascadero State Hospital v. Scanlon, 473 U.S. 234, (1985); Quern v.

Jordan, 440 U.S. 332, 345 (1979).  In Atascadero, we held that [a]

general authorization for suit in federal court is not the kind of

unequivocal statutory language sufficient to abrogate the Eleventh

Amendment. 473 U.S. at 246; see also Blatchford, supra, at 786, n. 4

("The fact that Congress grants jurisdiction to hear a claim does not

suffice to show Congress has abrogated all defenses to that claim")

(emphases deleted).  Rather, as we said in Dellmuth v. Muth, 491 U.S.

223 (1989), To temper Congress' acknowledged powers of abrogation with

due concern for the Eleventh Amendment's role as an essential component

of our constitutional structure, we have applied a simple but stringent

test: Congress may abrogate the States' constitutionally secured

immunity from suit in federal court only by making its intention

unmistakably clear in the language of the statute. Id. at   See also

Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 474

(1987) (plurality opinion).



Here, we agree with the parties, with the Eleventh Circuit in the

decision below, 11 F.3d at 1024, and with virtually every other court

that has confronted the question that Congress has in  2710(d)(7)

provided an "unmistakably clear" statement of its intent to abrogate. 

Section 2710(d)(7)(A)(i) vests jurisdiction in [t]he United States

district courts . . . over any cause of action . . . arising from the

failure of a State to enter into negotiations . . . or to conduct such

negotiations in good faith. Any conceivable doubt as to the identity of

the defendant in an action under  2710(d)(7)(A)(i) is dispelled when one

looks to the various provisions of  2710(d)(7)(B), which describe the

remedial scheme available to a tribe that files suit under 

2710(d)(7)(A)(i).  Section 2710(d)(7)(B)(ii)(II) provides that if a

suing tribe meets its burden of proof, then the "burden of proof shall

be upon the State. . . . ";  2710(d)(7)(B)(iii) states that if the court

"finds that the State has failed to negotiate in good faith . . ., the

court shall order the State . . .";  2710(d)(7)(B)(iv) provides that

"the State shall . . . submit to a mediator appointed by the court," and

subsection (B)(v) of  2710(d)(7) states that the mediator "shall submit

to the State."  Sections 2710(d)(7)(B)(vi) and (vii) also refer to the

"State" in a context that makes it clear that the State is the defendant

to the suit brought by an Indian tribe under  2710(d)(7)(A)(i).  In sum,

we think that the numerous references to the "State" in the text of 

2710(d)(7)(B) make it indubitable that Congress intended, through the

Act, to abrogate the States' sovereign immunity from suit. B



Having concluded that Congress clearly intended to abrogate the States'

sovereign immunity through  2710(d)(7), we turn now to consider whether

the Act was passed "pursuant to a valid exercise of power."  Green v.

Mansour, 474 U.S. at 68.  Before we address that question here, however,

we think it necessary first to define the scope of our inquiry.



Petitioner suggests that one consideration weighing in favor of finding

the power to abrogate here is that the Act authorizes only prospective

injunctive relief, rather than retroactive monetary relief.  But we have

often made it clear that the relief sought by a plaintiff suing a State

is irrelevant to the question whether the suit is barred by the Eleventh

Amendment.  See, e.g., Cory v. White, 457 U.S. 85, 90 (1982) ("It would

be a novel proposition indeed that the Eleventh Amendment does not bar a

suit to enjoin the State itself simply because no money judgment is

sought").  We think it follows a fortiori from this proposition that the

type of relief sought is irrelevant to whether Congress has power to

abrogate States' immunity.  The Eleventh Amendment does not exist solely

in order to "preven[t] federal court judgments that must be paid out of

a State's treasury," Hess v. Port Authority Trans-Hudson Corporation,

513 U.S. ___ (1994); it also serves to avoid "the indignity of

subjecting a State to the coercive process of judicial tribunals at the

instance of private parties," Puerto Rico Aqueduct and Sewer Authority,

506 U.S. at 146 (internal quotation marks omitted).



Similarly, petitioner argues that the abrogation power is validly

exercised here because the Act grants the States a power that they would

not otherwise have, viz., some measure of authority over gaming on

Indian lands.  It is true enough that the Act extends to the States a

power withheld from them by the Constitution.  See California v. Cabazon

Band of Mission Indians, 480 U.S. 202 (1987).  Nevertheless, we do not

see how that consideration is relevant to the question whether Congress

may abrogate state sovereign immunity.  The Eleventh Amendment immunity

may not be lifted by Congress unilaterally deciding that it will be

replaced by grant of some other authority.  Cf. Atascadero, 473 U.S. at

("[T]he mere receipt of federal funds cannot establish that a State has

consented to suit in federal court").



Thus our inquiry into whether Congress has the power to abrogate

unilaterally the States' immunity from suit is narrowly focused on one

question:  Was the Act in question passed pursuant to a constitutional

provision granting Congress the power to abrogate?  See, e.g.,

Fitzpatrick v. Bitzer, 427 U.S. 445, (1976).  Previously, in conducting

that inquiry, we have found authority to abrogate under only two

provisions of the Constitution.  In Fitzpatrick, we recognized that the

Fourteenth Amendment, by expanding federal power at the expense of state

autonomy, had fundamentally altered the balance of state and federal

power struck by the Constitution.  Id. at 455.  We noted that  1 of the

Fourteenth Amendment contained prohibitions expressly directed at the

States and that  5 of the Amendment expressly provided that "The

Congress shall have the power to enforce, by appropriate legislation,

the provisions of this article."  See id. at 453 (internal quotation

marks omitted).  We held that through the Fourteenth Amendment, federal

power extended to intrude upon the province of the Eleventh Amendment

and therefore that  5 of the Fourteenth Amendment allowed Congress to

abrogate the immunity from suit guaranteed by that Amendment.



In only one other case has congressional abrogation of the States'

Eleventh Amendment immunity been upheld.  In Pennsylvania v. Union Gas

Co., 491 U.S. 1 (1989), a plurality of the Court found that the

Interstate Commerce Clause, Art. I,  8, cl. 3, granted Congress the

power to abrogate state sovereign immunity, stating that the power to

regulate interstate commerce would be "incomplete without the authority

to render States liable in damages."  Union Gas, 491 U.S. at 19-20. 

Justice White added the fifth vote necessary to the result in that case,

but wrote separately in order to express that he "[did] not agree with

much of [the plurality's] reasoning."  Id. at 57 (White, J., concurring

in judgment in part and dissenting in part).



In arguing that Congress, through the Act, abrogated the States'

sovereign immunity, petitioner does not challenge the Eleventh Circuit's

conclusion that the Act was passed pursuant to neither the Fourteenth

Amendment nor the Interstate Commerce Clause.  Instead, accepting the

lower court's conclusion that the Act was passed pursuant to Congress'

power under the Indian Commerce Clause, petitioner now asks us to

consider whether that clause grants Congress the power to abrogate the

States' sovereign immunity.



Petitioner begins with the plurality decision in Union Gas, and contends

that [t]here is no principled basis for finding that congressional power

under the Indian Commerce Clause is less than that conferred by the

Interstate Commerce Clause. Brief for Petitioner 17.  Noting that the

Union Gas plurality found the power to abrogate from the "plenary"

character of the grant of authority over interstate commerce, petitioner

emphasizes that the Interstate Commerce Clause leaves the States with

some power to regulate, see, e.g., West Lynn Creamery, Inc. v. Healy,

512 U.S. ___ (1994), whereas the Indian Commerce Clause makes "Indian

relations . . . the exclusive province of federal law."  County of

Oneida v. Oneida Indian Nation of N. Y., 470 U.S. 226, 234 (1985). 

Contending that the Indian Commerce Clause vests the Federal Government

with "the duty of protect[ing]" the tribes from "local ill feeling" and

"the people of the States," United States v. Kagama, 118 U.S. 375,

383-384 (1886), petitioner argues that the abrogation power is necessary

"to protect the tribes from state action denying federally guaranteed

rights."  Brief for Petitioner 20.



Respondents dispute the petitioner's analogy between the Indian Commerce

Clause and the Interstate Commerce Clause.  They note that we have

recognized that "the Interstate Commerce and Indian Commerce Clauses

have very different applications," Cotton Petroleum Corp. v. New Mexico,

490 U.S. 163, 192 (1989), and from that they argue that the two

provisions are "wholly dissimilar."  Brief for Respondents 21. 

Respondents contend that the Interstate Commerce Clause grants the power

of abrogation only because Congress' authority to regulate interstate

commerce would be "incomplete" without that "necessary" power.  Id. at

23, citing Union Gas, supra, at 19-20.  The Indian Commerce Clause is

distinguishable, respondents contend, because it gives Congress complete

authority over the Indian tribes.  Therefore, the abrogation power is

not "necessary" to the Congress' exercise of its power under the Indian

Commerce Clause.{10}



Both parties make their arguments from the plurality decision in Union

Gas, and we, too, begin there.  We think it clear that Justice Brennan's

opinion finds Congress' power to abrogate under the Interstate Commerce

Clause from the States' cession of their sovereignty when they gave

Congress plenary power to regulate interstate commerce.  See Union Gas,

491 U.S. at 17 ("The important point . . . is that the provision both

expands federal power and contracts state power").  Respondents' focus

elsewhere is misplaced.  While the plurality decision states that

Congress' power under the Interstate Commerce Clause would be incomplete

without the power to abrogate, that statement is made solely in order to

emphasize the broad scope of Congress' authority over interstate

commerce.  Id. at 19-20.  Moreover, respondents' rationale would mean

that where Congress has less authority, and the States have more,

Congress' means for exercising that power must be greater.  We read the

plurality opinion to provide just the opposite.  Indeed, it was in those

circumstances where Congress exercised complete authority that Justice

Brennan thought the power to abrogate most necessary.  Id. at 20 ("Since

the States may not legislate at all in [the aforementioned] situations,

a conclusion that Congress may not create a cause of action for money

damages against the States would mean that no one could do so.  And in

many situations, it is only money damages that will carry out Congress'

legitimate objectives under the Commerce Clause").



Following the rationale of the Union Gas plurality, our inquiry is

limited to determining whether the Indian Commerce Clause, like the

Interstate Commerce Clause, is a grant of authority to the Federal

Government at the expense of the States.  The answer to that question is

obvious.  If anything, the Indian Commerce Clause accomplishes a greater

transfer of power from the States to the Federal Government than does

the Interstate Commerce Clause.  This is clear enough from the fact that

the States still exercise some authority over interstate trade but have

been divested of virtually all authority over Indian commerce and Indian

tribes.  Under the rationale of Union Gas, if the States' partial

cession of authority over a particular area includes cession of the

immunity from suit, then their virtually total cession of authority over

a different area must also include cession of the immunity from suit. 

See Union Gas, supra, at 42 (SCALIA, J., joined by REHNQUIST, C.J., and

O'CONNOR and KENNEDY, JJ., dissenting) ("[I]f the Article I commerce

power enables abrogation of state sovereign immunity, so do all the

other Article I powers"); see Ponca Tribe of Oklahoma v. Oklahoma, 37

F.3d 1422, 1428 (CA10 1994) (Indian Commerce Clause grants power to

abrogate), cert. pending, No. 94-1029; Cheyenne River Sioux Tribe v.

South Dakota, 3 F.3d 273, 281 (CA8 1993) (same); cf. Chavez v. Arte

Publico Press, 59 F.3d 539, 546-547 (CA5 1995) (After Union Gas,

Copyright Clause, U.S.Const., Art. I,  8, cl. 8, must grant Congress

power to abrogate).  We agree with the petitioner that the plurality

opinion in Union Gas allows no principled distinction in favor of the

States to be drawn between the Indian Commerce Clause and the Interstate

Commerce Clause.



Respondents argue, however, that we need not conclude that the Indian

Commerce Clause grants the power to abrogate the States' sovereign

immunity.  Instead, they contend that if we find the rationale of the

Union Gas plurality to extend to the Indian Commerce Clause, then "Union

Gas should be reconsidered and overruled."  Brief for Respondents 25. 

Generally, the principle of stare decisis, and the interests that it

serves, viz., the evenhanded, predictable, and consistent development of

legal principles, . . . reliance on judicial decisions, and . . . the

actual and perceived integrity of the judicial process, Payne v.

Tennessee, 501 U.S. 808, 827 (1991), counsel strongly against

reconsideration of our precedent.  Nevertheless, we always have treated

stare decisis as a "principle of policy," Helvering v. Hallock, 309 U.S.

106, 119 (1940), and not as an "inexorable command," Payne, 501 U.S. at

828.  "[W]hen governing decisions are unworkable or are badly reasoned,

`this Court has never felt constrained to follow precedent.'"  Id. at

827 (quoting Smith v. Allwright, 321 U.S. 649, 665 (1944)).  Our

willingness to reconsider our earlier decisions has been "particularly

true in constitutional cases, because in such cases `correction through

legislative action is practically impossible.'"  Payne, supra, at 828,

(quoting Burnet v. Coronado Oil &  Gas Co., 285 U.S. 393, 407 (1932)

(Brandeis, J., dissenting)).



The Court in Union Gas reached a result without an expressed rationale

agreed upon by a majority of the Court.  We have already seen that

Justice Brennan's opinion received the support of only three other

Justices.  See Union Gas, 491 U.S. at 5 (Marshall, Blackmun, and

STEVENS, JJ., joined Justice Brennan).  Of the other five, Justice

White, who provided the fifth vote for the result, wrote separately in

order to indicate his disagreement with the majority's rationale, id. at

57 (White, J., concurring in judgment and dissenting in part), and four

Justices joined together in a dissent that rejected the plurality's

rationale.  Id. at 35-45 (SCALIA, J., dissenting, joined by REHNQUIST,

C.J., and O'CONNOR and KENNEDY, JJ.).  Since it was issued, Union Gas

has created confusion among the lower courts that have sought to

understand and apply the deeply fractured decision.  See, e.g., Chavez

v. Arte Publico Press, supra, at 543-545 ("Justice White's concurrence

must be taken on its face to disavow" the plurality's theory); 11 F.3d

at 1027 (Justice White's "vague concurrence renders the continuing

validity of Union Gas in doubt").



The plurality's rationale also deviated sharply from our established

federalism jurisprudence and essentially eviscerated our decision in

Hans.  See Union Gas, supra, at 36 ("If Hans means only that federal

question suits for money damages against the States cannot be brought in

federal court unless Congress clearly says so, it means nothing at all")

(SCALIA, J., dissenting).  It was well established in 1989, when Union

Gas was decided, that the Eleventh Amendment stood for the

constitutional principle that state sovereign immunity limited the

federal courts' jurisdiction under Article III.  The text of the

Amendment itself is clear enough on this point:  "The Judicial power of

the United States shall not be construed to extend to any suit. . . ." 

And our decisions since Hans had been equally clear that the Eleventh

Amendment reflects "the fundamental principle of sovereign immunity

[that] limits the grant of judicial authority in Article III," Pennhurst

State School and Hospital v. Halderman, 465 U.S. 89, 97-98 (1984); see

Union Gas, supra, at 38, ("`[T]he entire judicial power granted by the

Constitution does not embrace authority to entertain a suit brought by

private parties against a State without consent given. . . .'") (SCALIA,

J., dissenting) (quoting Ex parte New York, 256 U.S. 490, 497 (1921));

see also cases cited at n. 7, supra.  As the dissent in Union Gas

recognized, the plurality's conclusion -- that Congress could, under

Article I, expand the scope of the federal courts' jurisdiction under

Article III -- "contradict[ed] our unvarying approach to Article III as

setting forth the exclusive catalog of permissible federal court

jurisdiction."  Union Gas, 491 U.S. at 39.



Never before the decision in Union Gas had we suggested that the bounds

of Article III could be expanded by Congress operating pursuant to any

constitutional provision other than the Fourteenth Amendment.  Indeed,

it had seemed fundamental that Congress could not expand the

jurisdiction of the federal courts beyond the bounds of Article III. 

Marbury v. Madison, 1 Cranch 137 (1803).  The plurality's citation of

prior decisions for support was based upon what we believe to be a

misreading of precedent.  See Union Gas, 491 U.S. at 40-41 (SCALIA, J.,

dissenting).  The plurality claimed support for its decision from a case

holding the unremarkable, and completely unrelated, proposition that the

States may waive their sovereign immunity, see id. at 14-15 (citing

Parden v. Terminal Railway of Ala. Docks Dept., 377 U.S. 184 (1964)),

and cited as precedent propositions that had been merely assumed for the

sake of argument in earlier cases, see 491 U.S. at 15 (citing Welch v.

Texas Dept. of Highways and Public Transp., 483 U.S. at  and n. 5, and

County of Oneida v. Oneida Indian Nation of N. Y., 470 U.S. at 252).



The plurality's extended reliance upon our decision in Fitzpatrick v.

Bitzer, 427 U.S. 445 (1976), that Congress could under the Fourteenth

Amendment abrogate the States' sovereign immunity was also, we believe,

misplaced.  Fitzpatrick was based upon a rationale wholly inapplicable

to the Interstate Commerce Clause, viz., that the Fourteenth Amendment,

adopted well after the adoption of the Eleventh Amendment and the

ratification of the Constitution, operated to alter the preexisting

balance between state and federal power achieved by Article III and the

Eleventh Amendment.  Id. at 454.  As the dissent in Union Gas made

clear, Fitzpatrick cannot be read to justify "limitation of the

principle embodied in the Eleventh Amendment through appeal to

antecedent provisions of the Constitution."  Union Gas, 491 U.S. at 42

(SCALIA, J., dissenting).



In the five years since it was decided, Union Gas has proven to be a

solitary departure from established law.  See Puerto Rico Aqueduct and

Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993). 

Reconsidering the decision in Union Gas, we conclude that none of the

policies underlying stare decisis require our continuing adherence to

its holding.  The decision has, since its issuance, been of questionable

precedential value, largely because a majority of the Court expressly

disagreed with the rationale of the plurality.  See Nichols v. United

States, 511 U.S. ___, ___ (1994) (the "degree of confusion following a

splintered decision . . . is itself a reason for reexamining that

decision").  The case involved the interpretation of the Constitution

and therefore may be altered only by constitutional amendment or

revision by this Court.  Finally, both the result in Union Gas and the

plurality's rationale depart from our established understanding of the

Eleventh Amendment and undermine the accepted function of Article III. 

We feel bound to conclude that Union Gas was wrongly decided, and that

it should be, and now is, overruled.



The dissent makes no effort to defend the decision in Union Gas, see

post at ___, but nonetheless would find congressional power to abrogate

in this case.{11}  Contending that our decision is a novel extension of

the Eleventh Amendment, the dissent chides us for "attend[ing]" to

dicta.  We adhere in this case, however, not to mere obiter dicta, but

rather to the well established rationale upon which the Court based the

results of its earlier decisions.  When an opinion issues for the Court,

it is not only the result, but also those portions of the opinion

necessary to that result by which we are bound.  Cf. Burnham v. Superior

Court of Cal., County of Marin, 495 U.S. 604, 613 (1990) (exclusive

basis of a judgment is not dicta) (plurality); Allegheny County v.

American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S.

573, 668 (1989) ("As a general rule, the principle of stare decisis

directs us to adhere not only to the holdings of our prior cases, but

also to their explications of the governing rules of law.") (KENNEDY,

J., concurring and dissenting); Sheet Metal Workers v. EEOC, 478 U.S.

421, 490 (1986) ("Although technically dicta, . . . an important part of

the Court's rationale for the result that it reache[s] . . . is entitled

to greater weight . . .") (O'CONNOR, J., concurring).  For over a

century, we have grounded our decisions in the oft-repeated

understanding of state sovereign immunity as an essential part of the

Eleventh Amendment.  In Principality of Monaco v. Mississippi, 292 U.S.

313 (1934), the Court held that the Eleventh Amendment barred a suit

brought against a State by a foreign state.  Chief Justice Hughes wrote

for a unanimous Court: [N]either the literal sweep of the words of

Clause one of  2 of Article III nor the absence of restriction in the

letter of the Eleventh Amendment permits the conclusion that in all

controversies of the sort described in Clause one, and omitted from the

words of the Eleventh Amendment, a State may be sued without her

consent.  Thus Clause one specifically provides that the judicial power

shall extend to all Cases, in Law and Equity, arising under this

Constitution, the Laws of the United States, and Treaties made, or which

shall be made, under their Authority. But, although a case may arise

under the Constitution and laws of the United States, the judicial power

does not extend to it if the suit is sought to be prosecuted against a

State, without her consent, by one of her own citizens. . . .



Manifestly, we cannot rest with a mere literal application of the words

of  2 of Article III, or assume that the letter of the Eleventh

Amendment exhausts the restrictions upon suits against nonconsenting

States.  Behind the words of the constitutional provisions are

postulates which limit and control.  There is the essential postulate

that the controversies, as contemplated, shall be found to be of a

justiciable character.  There is also the postulate that States of the

Union, still possessing attributes of sovereignty, shall be immune from

suits, without their consent, save where there has been a "surrender of

this immunity in the plan of the convention." Id. at 321-323 (citations

and footnote omitted); see id. at 329-330; see also Pennhurst, 465 U.S.

at 98 ("In short, the principle of sovereign immunity is a

constitutional limitation on the federal judicial power established in

Art. III"); Ex parte New York, 256 U.S. at 497 ("[T]he entire judicial

power granted by the Constitution does not embrace authority to

entertain a suit brought by private parties against a State without

consent given . . .").  It is true that we have not had occasion

previously to apply established Eleventh Amendment principles to the

question whether Congress has the power to abrogate state sovereign

immunity (save in Union Gas).  But consideration of that question must

proceed with fidelity to this century-old doctrine.



The dissent, to the contrary, disregards our case law in favor of a

theory cobbled together from law review articles and its own version of

historical events.  The dissent cites not a single decision since Hans

(other than Union Gas) that supports its view of state sovereign

immunity, instead relying upon the now-discredited decision in Chisholm

v. Georgia, 2 Dall. 419 (1793).  See, e.g., post at ___ n. 47.  Its

undocumented and highly speculative extralegal explanation of the

decision in Hans is a disservice to the Court's traditional method of

adjudication.  See post at ___.



The dissent mischaracterizes the Hans opinion.  That decision found its

roots not solely in the common law of England, but in the much more

fundamental "`jurisprudence in all civilized nations.'"  Hans, 134 U.S.

at 17, quoting Beers v. Arkansas, 20 How. 527, 529 (1858); see also The

Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton)

(sovereign immunity "is the general sense and the general practice of

mankind").  The dissent's proposition that the common law of England,

where adopted by the States, was open to change by the legislature, is

wholly unexceptionable and largely beside the point:   that common law

provided the substantive rules of law rather than jurisdiction.  Cf.

Monaco, supra, at 323 (state sovereign immunity, like the requirement

that there be a "justiciable" controversy, is a constitutionally

grounded limit on federal jurisdiction).  It also is noteworthy that the

principle of state sovereign immunity stands distinct from other

principles of the common law in that only the former prompted a specific

constitutional amendment.



Hans -- with a much closer vantage point than the dissent -- recognized

that the decision in Chisholm was contrary to the well understood

meaning of the Constitution.  The dissent's conclusion that the decision

in Chisholm was "reasonable," post at ___, certainly would have struck

the Framers of the Eleventh Amendment as quite odd:  that decision

created "such a shock of surprise that the Eleventh Amendment was at

once proposed and adopted."  Monaco, supra, at 325.  The dissent's

lengthy analysis of the text of the Eleventh Amendment is directed at a

straw man -- we long have recognized that blind reliance upon the text

of the Eleventh Amendment is "`to strain the Constitution and the law to

a construction never imagined or dreamed of.'"  Monaco, 292 U.S. at 326,

quoting Hans, 134 U.S. at 15.  The text dealt in terms only with the

problem presented by the decision in Chisholm; in light of the fact that

the federal courts did not have federal question jurisdiction at the

time the Amendment was passed (and would not have it until 1875), it

seems unlikely that much thought was given to the prospect of federal

question jurisdiction over the States.



That same consideration causes the dissent's criticism of the views of

Marshall, Madison, and Hamilton to ring hollow.  The dissent cites

statements made by those three influential Framers, the most natural

reading of which would preclude all federal jurisdiction over an

unconsenting State.{12}  Struggling against this reading, however, the

dissent finds significant the absence of any contention that sovereign

immunity would affect the new federal question jurisdiction.  Post at

___.  But the lack of any statute vesting general federal question

jurisdiction in the federal courts until much later makes the dissent's

demand for greater specificity about a then-dormant jurisdiction overly

exacting.{13}



In putting forward a new theory of state sovereign immunity, the dissent

develops its own vision of the political system created by the Framers,

concluding with the statement that [t]he Framer's principal objectives

in rejecting English theories of unitary sovereignty . . . would have

been impeded if a new concept of sovereign immunity had taken its place

in federal question cases, and would have been substantially thwarted if

that new immunity had been held untouchable by any congressional effort

to abrogate it.{14} Post at ___.  This sweeping statement ignores the

fact that the Nation survived for nearly two centuries without the

question of the existence of such power ever being presented to this

Court.  And Congress itself waited nearly a century before even

conferring federal question jurisdiction on the lower federal

courts.{15}



In overruling Union Gas today, we reconfirm that the background

principle of state sovereign immunity embodied in the Eleventh Amendment

is not so ephemeral as to dissipate when the subject of the suit is an

area, like the regulation of Indian commerce, that is under the

exclusive control of the Federal Government.  Even when the Constitution

vests in Congress complete lawmaking authority over a particular area,

the Eleventh Amendment prevents congressional authorization of suits by

private parties against unconsenting States.{16}  The Eleventh Amendment

restricts the judicial power under Article III, and Article I cannot be

used to circumvent the constitutional limitations placed upon federal

jurisdiction.  Petitioner's suit against the State of Florida must be

dismissed for a lack of jurisdiction. III



Petitioner argues that we may exercise jurisdiction over its suit to

enforce  2710(d)(3) against the Governor notwithstanding the

jurisdictional bar of the Eleventh Amendment.  Petitioner notes that

since our decision in Ex parte Young, 209 U.S. 123 (1908), we often have

found federal jurisdiction over a suit against a state official when

that suit seeks only prospective injunctive relief in order to "end a

continuing violation of federal law."  Green v. Mansour, 474 U.S. at 68.

 The situation presented here, however, is sufficiently different from

that giving rise to the traditional Ex parte Young action so as to

preclude the availability of that doctrine.



Here, the "continuing violation of federal law" alleged by petitioner is

the Governor's failure to bring the State into compliance with 

2710(d)(3).  But the duty to negotiate imposed upon the State by that

statutory provision does not stand alone.  Rather, as we have seen,

supra at ___, Congress passed  2710(d)(3) in conjunction with the

carefully crafted and intricate remedial scheme set forth in 

2710(d)(7).



Where Congress has created a remedial scheme for the enforcement of a

particular federal right, we have, in suits against federal officers,

refused to supplement that scheme with one created by the judiciary. 

Schweiker v. Chilicky, 487 U.S. 412, 423 (1988) ("When the design of a

Government program suggests that Congress has provided what it considers

adequate remedial mechanisms for constitutional violations that may

occur in the course of its administration, we have not created

additional . . . remedies").  Here, of course, the question is not

whether a remedy should be created, but instead is whether the Eleventh

Amendment bar should be lifted, as it was in Ex parte Young, in order to

allow a suit against a state officer.  Nevertheless, we think that the

same general principle applies:  therefore, where Congress has

prescribed a detailed remedial scheme for the enforcement against a

State of a statutorily created right, a court should hesitate before

casting aside those limitations and permitting an action against a state

officer based upon Ex parte Young.



Here, Congress intended  2710(d)(3) to be enforced against the State in

an action brought under  2710(d)(7); the intricate procedures set forth

in that provision show that Congress intended therein not only to

define, but also significantly to limit, the duty imposed by 

2710-(d)(3).  For example, where the court finds that the State has

failed to negotiate in good faith, the only remedy prescribed is an

order directing the State and the Indian tribe to conclude a compact

within 60 days.  And if the parties disregard the court's order and fail

to conclude a compact within the 60-day period, the only sanction is

that each party then must submit a proposed compact to a mediator who

selects the one which best embodies the terms of the Act.  Finally, if

the State fails to accept the compact selected by the mediator, the only

sanction against it is that the mediator shall notify the Secretary of

the Interior, who then must prescribe regulations governing Class III

gaming on the tribal lands at issue.  By contrast with this quite modest

set of sanctions, an action brought against a state official under Ex

parte Young would expose that official to the full remedial powers of a

federal court, including, presumably, contempt sanctions.  If 

2710(d)(3) could be enforced in a suit under Ex parte Young,  2710(d)(7)

would have been superfluous; it is difficult to see why an Indian tribe

would suffer through the intricate scheme of  2710(d)(7) when more

complete and more immediate relief would be available under Ex parte

Young.{17}



Here, of course, we have found that Congress does not have authority

under the Constitution to make the State suable in federal court under 

2710(d)(7).  Nevertheless, the fact that Congress chose to impose upon

the State a liability which is significantly more limited than would be

the liability imposed upon the state officer under Ex parte Young

strongly indicates that Congress had no wish to create the latter under 

2710(d)(3).  Nor are we free to rewrite the statutory scheme in order to

approximate what we think Congress might have wanted had it known that 

2710(d)(7) was beyond its authority.  If that effort is to be made, it

should be made by Congress, and not by the federal courts.  We hold that

Ex parte Young is inapplicable to petitioner's suit against the Governor

of Florida, and therefore that suit is barred by the Eleventh Amendment

and must be dismissed for a lack of jurisdiction. IV



The Eleventh Amendment prohibits Congress from making the State of

Florida capable of being sued in federal court.  The narrow exception to

the Eleventh Amendment provided by the Ex parte Young doctrine cannot be

used to enforce  2710(d)(3) because Congress enacted a remedial scheme, 

2710(d)(7), specifically designed for the enforcement of that right. 

The Eleventh Circuit's dismissal of petitioner's suit is hereby

affirmed.{18}



It is so ordered. STEVENS, J., dissenting



JUSTICE STEVENS, dissenting.



This case is about power -- the power of the Congress of the United

States to create a private federal cause of action against a State, or

its Governor, for the violation of a federal right.  In Chisholm v.

Georgia, 2 Dall. 419 (1793), the entire Court -- including Justice

Iredell, whose dissent provided the blueprint for the Eleventh Amendment

-- assumed that Congress had such power.  In Hans v. Louisiana, 134 U.S.

1 (1890) -- a case the Court purports to follow today -- the Court again

assumed that Congress had such power.  In Fitzpatrick v. Bitzer, 427

U.S. 445 (1976), and Pennsylvania v. Union Gas Co., 491 U.S. 1, 24

(1989) (STEVENS, J., concurring), the Court squarely held that Congress

has such power.  In a series of cases beginning with Atascadero State

Hospital v. Scanlon, 473 U.S. 234, (1985), the Court formulated a

special "clear statement rule" to determine whether specific Acts of

Congress contained an effective exercise of that power.  Nevertheless,

in a sharp break  with the past, today the Court holds that, with the

narrow and illogical exception of statutes enacted pursuant to the

Enforcement Clause of the Fourteenth Amendment, Congress has no such

power.



The importance of the majority's decision to overrule the Court's

holding in Pennsylvania v. Union Gas Co. cannot be overstated.  The

majority's opinion does not simply preclude Congress from establishing

the rather curious statutory scheme under which Indian tribes may seek

the aid of a federal court to secure a State's good faith negotiations

over gaming regulations.   Rather, it prevents Congress from providing a

federal forum for a broad range of actions against States, from those

sounding in copyright and patent law, to those concerning bankruptcy,

environmental law, and the regulation of our vast national economy.



There may be room for debate over whether, in light of the Eleventh

Amendment, Congress has the power to ensure that such a cause of action

may be enforced in federal court by a citizen of another State or a

foreign citizen.  There can be no serious debate, however, over whether

Congress has the power to ensure that such a cause of action may be

brought by a citizen of the State being sued.  Congress' authority in

that regard is clear.



As JUSTICE SOUTER has convincingly demonstrated, the Court's contrary

conclusion is profoundly misguided.  Despite the thoroughness of his

analysis, supported by sound reason, history, precedent, and strikingly

uniform scholarly commentary, the shocking character of the majority's

affront to a coequal branch of our Government merits additional comment.

I



For the purpose of deciding this case, I can readily assume that Justice

Iredell's dissent in Chisholm v. Georgia, 2 Dall. at  and the Court's

opinion in Hans v. Louisiana, 134 U.S. 1 (1890), correctly stated the

law that should govern our decision today.  As I shall explain, both of

those opinions relied on an interpretation of an Act of Congress, rather

than a want of congressional power to authorize a suit against the

State.



In concluding that the federal courts could not entertain Chisholm's

action against the State of Georgia, Justice Iredell relied on the text

of the Judiciary Act of 1789, not the State's assertion that Article III

did not extend the judicial power to suits against unconsenting States. 

Justice Iredell argued that, under Article III, federal courts possessed

only such jurisdiction as Congress had provided, and that the Judiciary

Act expressly limited federal court jurisdiction to that which could be

exercised in accordance with "`the principles and usages of law.'" 

Chisholm v. Georgia, 2 Dall. at 434 (quoting  14 of the Judiciary Act of

1789).  He reasoned that the inclusion of this phrase constituted a

command to the federal courts to construe their jurisdiction in light of

the prevailing common law, a background legal regime which he believed

incorporated the doctrine of sovereign immunity.  Chisholm v. Georgia, 2

Dall. at (Iredell, J., dissenting).



Because Justice Iredell believed that the expansive text of Article III

did not prevent Congress from imposing this common law limitation on

federal court jurisdiction, he concluded that judges had no authority to

entertain a suit against an unconsenting State.  At the same time,

although he acknowledged that the Constitution might allow Congress to

extend federal court jurisdiction to such an action, he concluded that

the terms of the Judiciary Act of 1789 plainly had not done so.

[Congress'] direction, I apprehend, we cannot supersede because it may

appear to us not sufficiently extensive.  If it be not, we must wait

till other remedies are provided by the same authority.  From this it is

plain that the Legislature did not chuse to leave to our own discretion

the path to justice, but has prescribed one of its own.  In doing so, it

has, I think, wisely, referred us to principles and usages of law

already well known,and by their precision calculated to guard against

the innovating spirit of Courts of Justice, which the Attorney-General

in another case reprobated with so much warmth, and with whose

sentiments in that particular I most cordially join. Id. at 434

(emphasis added).



For Justice Iredell, then, it was enough to assume that Article III

permitted Congress to impose sovereign immunity as a jurisdictional

limitation; he did not proceed to resolve the further question whether

the Constitution went so far as to prevent Congress from withdrawing a

State's immunity.  Thus, it would be ironic to construe the Chisholm

dissent as precedent for the conclusion that Article III limits

Congress' power to determine the scope of a State's sovereign immunity

in federal court.



The precise holding in Chisholm is difficult to state, because each of

the Justices in the majority wrote his own opinion.  They seem to have

held, however, not that the Judiciary Act of 1789 precluded the defense

of sovereign immunity, but that Article III of the Constitution itself

required the Supreme Court to entertain original actions against

unconsenting States.  I agree with Justice Iredell that such a

construction of Article III is incorrect; that Article should not then

have been construed, and should not now be construed, to prevent

Congress from granting States a sovereign immunity defense in such

cases.  That reading of Article III, however, explains why the

majority's holding in Chisholm could not have been reversed by a simple

statutory amendment adopting Justice Iredell's interpretation of the

Judiciary Act of 1789.  There is a special irony in the fact that the

error committed by the Chisholm majority was its decision that this

Court, rather than Congress, should define the scope of the sovereign

immunity defense.  That, of course, is precisely the same error the

Court commits today.



In light of the nature of the disagreement between Justice Iredell and

his colleagues, Chisholm's holding could have been overturned by simply

amending the Constitution to restore to Congress the authority to

recognize the doctrine.  As it was, the plain text of the Eleventh

Amendment would seem to go further and to limit the judicial power

itself in a certain class of cases.  In doing so, however, the

Amendment's quite explicit text establishes only a partial bar to a

federal court's power to entertain a suit against a State.



Justice Brennan has persuasively explained that the Eleventh Amendment's

jurisdictional restriction is best understood to apply only to suits

premised on diversity jurisdiction, see Atascadero State Hospital v.

Scanlon, 473 U.S. 234, 247 (1985) (dissenting opinion), and JUSTICE

SCALIA has agreed that the plain text of the Amendment cannot be read to

apply to federal question cases.  See Pennsylvania v. Union Gas, 491

U.S. at 31 (dissenting opinion).  Whatever the precise dimensions of the

Amendment, its express terms plainly do not apply to all suits brought

against unconsenting States.  The question thus becomes whether the

relatively modest jurisdictional bar that the Eleventh Amendment imposes

should be understood to reveal that a more general jurisdictional bar

implicitly inheres in Article III.



The language of Article III certainly gives no indication that such an

implicit bar exists.  That provision's text specifically provides for

federal court jurisdiction over all cases arising under federal law. 

Moreover, as I have explained, Justice Iredell's dissent argued that it

was the Judiciary Act of 1789, not Article III, that prevented the

federal courts from entertaining Chisholm's diversity action against

Georgia.  Therefore, Justice Iredell's analysis at least suggests that

it was by no means a fixed view at the time of the founding that Article

III prevented Congress from rendering States suable in federal court by

their own citizens.  In sum, little more than speculation justifies the

conclusion that the Eleventh Amendment's express but partial limitation

on the scope of Article III reveals that an implicit but more general

one was already in place. II



The majority appears to acknowledge that one cannot deduce from either

the text of Article III or the plain terms of the Eleventh Amendment

that the judicial power does not extend to a congressionally created

cause of action against a State brought by one of that State's citizens.

 Nevertheless, the majority asserts that precedent compels that same

conclusion.  I disagree.  The majority relies first on our decision in

Hans v. Louisiana, 134 U.S. 1 (1890), which involved a suit by a citizen

of Louisiana against that State for a claimed violation of the Contracts

Clause.  The majority suggests that by dismissing the suit, Hans

effectively held that federal courts have no power to hear federal

question suits brought by same-state plaintiffs.



Hans does not hold, however, that the Eleventh Amendment, or any other

constitutional provision, precludes federal courts from entertaining

actions brought by citizens against their own States in the face of

contrary congressional direction.  As I have explained before, see

Pennsylvania v. Union Gas Co., 491 U.S. at 25-26 (STEVENS, J.,

concurring), and as JUSTICE SOUTER effectively demonstrates, Hans

instead reflects, at the most, this Court's conclusion that, as a matter

of federal common law, federal courts should decline to entertain suits

against unconsenting States.  Because Hans did not announce a

constitutionally mandated jurisdictional bar, one need not overrule

Hans, or even question its reasoning, in order to conclude that Congress

may direct the federal courts to reject sovereign immunity in those

suits not mentioned by the Eleventh Amendment.  Instead, one need only

follow it.



Justice Bradley's somewhat cryptic opinion for the Court in Hans relied

expressly on the reasoning of Justice Iredell's dissent in Chisholm,

which, of course, was premised on the view that the doctrine of state

sovereign immunity was a common law rule that Congress had directed

federal courts to respect, not a constitutional immunity that Congress

was powerless to displace.  For that reason, Justice Bradley explained

that the State's immunity from suit by one of its own citizens was based

not on a constitutional rule but rather on the fact that Congress had

not, by legislation, attempted to overcome the common law presumption of

sovereign immunity.  His analysis so clearly supports the position

rejected by the majority today that it is worth quoting at length.



But besides the presumption that no anomalous and unheard of proceedings

or suits were intended to be raised up by the Constitution -- anomalous

and unheard of when the Constitution was adopted -- an additional reason

why the jurisdiction claimed for the Circuit Court does not exist, is

the language of an act of Congress by which its jurisdiction is

conferred.  The words are these: The circuit courts of the United States

shall have original cognizance, concurrent with the courts of the

several States, of all suits of a civil nature at common law or in

equity, . . . arising under the Constitution or laws of the United

States, or treaties, etc. -- "Concurrent with the Courts of the several

States."  Does not this qualification show that Congress, in legislating

to carry the Constitution into effect, did not intend to invest its

courts with any new and strange jurisdictions?  The state courts have no

power to entertain suits by individuals against a State without its

consent.   Then how does the Circuit Court, having only concurrent

jurisdiction, acquire any such power?  It is true that the same

qualification existed in the judiciary act of 1789, which was before the

court in Chisholm v. Georgia, and the majority of the court did not

think that it was sufficient to limit the jurisdiction of the Circuit

Court. Justice Iredell thought differently.  In view of the manner in

which that decision was received by the country, the adoption of the

Eleventh Amendment, the light of history and the reason of the thing, we

think we are at liberty to prefer Justice Iredell's view in this regard.

 Hans v. Louisiana, 134 U.S. at 18-19.



As this passage demonstrates, Hans itself looked to see whether Congress

had displaced the presumption that sovereign immunity obtains.  Although

the opinion did go to great lengths to establish the quite

uncontroversial historical proposition that unconsenting States

generally were not subject to suit, that entire discussion preceded the

opinion's statutory analysis.  See Hans v. Louisiana, 134 U.S. at 10-18.

 Thus, the opinion's thorough historical investigation served only to

establish a presumption against jurisdiction that Congress must

overcome, not an inviolable jurisdictional restriction that inheres in

the Constitution itself.



Indeed, the very fact that the Court characterized the doctrine of

sovereign immunity as a "presumption" confirms its assumption that it

could be displaced.  The Hans Court's inquiry into congressional intent

would have been wholly inappropriate if it had believed that the

doctrine of sovereign immunity was a constitutionally inviolable

jurisdictional limitation.  Thus, Hans provides no basis for the

majority's conclusion that Congress is powerless to make States suable

in cases not mentioned by the text of the Eleventh Amendment.  Instead,

Hans provides affirmative support for the view that Congress may create

federal court jurisdiction over private causes of action against

unconsenting States brought by their own citizens.



It is true that the underlying jurisdictional statute involved in this

case, 28 U.S.C.  1331, does not itself purport to direct federal courts

to ignore a State's sovereign immunity any more than did the underlying

jurisdictional statute discussed in Hans, the Judiciary Act of 1875. 

However, unlike in Hans, in this case, Congress has, by virtue of the

Indian Gaming Regulation Act, affirmatively manifested its intention to

"invest its courts with" jurisdiction beyond the limits set forth in the

general jurisdictional statute.  134 U.S. at 18.  By contrast, because

Hans involved only an implied cause of action based directly on the

Constitution, the Judiciary Act of 1875 constituted the sole indication

as to whether Congress intended federal court jurisdiction to extend to

a suit against an unconsenting State.{10}



Given the nature of the cause of action involved in Hans, as well as the

terms of the underlying jurisdictional statute, the Court's decision to

apply the common law doctrine of sovereign immunity in that case clearly

should not control the outcome here.  The reasons that may support a

federal court's hesitancy to construe a judicially crafted

constitutional remedy narrowly out of respect for a State's sovereignty

do not bear on whether Congress may preclude a State's invocation of

such a defense when it expressly establishes a federal remedy for the

violation of a federal right.



No one has ever suggested that Congress would be powerless to displace

the other common law immunity doctrines that this Court has recognized

as appropriate defenses to certain federal claims such as the judicially

fashioned Bivens remedy.  See Mitchell v. Forsyth, 472 U.S. 511 (1985);

Harlow v. Fitzgerald, 457 U.S. 800 (1982).  Similarly, our cases

recognizing qualified officer immunity in  1983 actions rest on the

conclusion that, in passing that statute, Congress did not intend to

displace the common law immunity that officers would have retained under

suits premised solely on the general jurisdictional statute.  See Tower

v. Glover, 467 U.S. 914, 920 (1984).  For that reason, the federal

common law of officer immunity that Congress meant to incorporate, not a

contrary state immunity, applies in  1983 cases.  See Martinez v.

California, 444 U.S. 277, 284 (1980).  There is no reason why Congress'

undoubted power to displace those common law immunities should be either

greater or lesser than its power to displace the common law sovereign

immunity defense.



Some of our precedents do state that the sovereign immunity doctrine

rests on fundamental constitutional "postulates" and partakes of

jurisdictional aspects rooted in Article III.  See ante at ___.  Most

notably, that reasoning underlies this Court's holding in Principality

of Monaco v. Mississippi, 292 U.S. 313 (1934).



Monaco is a most inapt precedent for the majority's  holding today. 

That case barred a foreign sovereign from suing a State in an equitable

state law action to recover payments due on State bonds.  It did not,

however, involve a claim based on federal law.  Instead, the case

concerned a purely state law question to which the State had interposed

a federal defense.  Principality of Monaco v. Mississippi, 292 U.S. 313,

317 (1934).  Thus, Monaco reveals little about the power of Congress to

create a private federal cause of action to remedy a State's violation

of federal law.



Moreover, although Monaco attributes a quasi-constitutional status to

sovereign immunity, even in cases not covered by the Eleventh

Amendment's plain text, that characterization does not constitute

precedent for the proposition that Congress is powerless to displace a

State's immunity.  Our abstention doctrines have roots in both the Tenth

Amendment and Article III, and thus may be said to rest on

constitutional "postulates" or to partake of jurisdictional aspects. 

Yet it has not been thought that the Constitution would prohibit

Congress from barring federal courts from abstaining.  The majority

offers no reason for making the federal common law rule of sovereign

immunity less susceptible to congressional displacement than any other

quasi-jurisdictional common law rule.



In this regard, I note that Monaco itself analogized sovereign immunity

to the prudential doctrine that "controversies" identified in Article

III must be "justiciable" in order to be heard by federal courts.  Id.

at 329.  The justiciability doctrine is a prudential, rather than a

jurisdictional, one, and thus Congress' clearly expressed intention to

create federal jurisdiction over a particular Article III controversy

necessarily strips federal courts of the authority to decline

jurisdiction on justiciability grounds.  See Allen v. Wright, 468 U.S.

737, 791 (1984) (STEVENS, J., dissenting); Flast v. Cohen, 392 U.S. 83,

(1968).  For that reason, Monaco, by its own terms, fails to resolve the

question before us.{11}



More generally, it is quite startling to learn that the  reasoning of

Hans and Monaco (even assuming that it did not undermine the majority's

view) should have a stare decisis effect on the question whether

Congress possesses the authority to provide a federal forum for the

vindication of a federal right by a citizen against its own State.  In

light of the Court's development of a "clear statement" line of

jurisprudence, see, e.g., Atascadero State Hospital v. Scanlon, 473 U.S.

234, (1985); Hoffman v. Connecticut Dept. of Income Maintenance, 492

U.S. 96 (1989), I would have thought that Hans and Monaco had at least

left open the question whether Congress could permit the suit we

consider here.  Our clear statement cases would have been all but

unintelligible if Hans and Monaco had already established that Congress

lacked the constitutional power to make States suable in federal court

by individuals no matter how clear its intention to do so.{12}



Finally, the particular nature of the federal question involved in Hans

renders the majority's reliance upon its rule even less defensible. 

Hans deduced its rebuttable presumption in favor of sovereign immunity

largely on the basis of its extensive analysis of cases holding that the

sovereign could not be forced to make good on its debts via a private

suit.  See Louisiana v. Jumel, 107 U.S. 711 (1883); Hagood v. Southern,

117 U.S. 52 (1886); In re Ayers, 123 U.S. 443 (1887).  Because Hans,

like these other cases, involved a suit that attempted to make a State

honor its debt, its holding need not be read to stand even for the

relatively limited proposition that there is a presumption in favor of

sovereign immunity in all federal question cases.{13}



In Hans, the plaintiff asserted a Contracts Clause claim against his

State and thus asserted a federal right.  To show that Louisiana had

impaired its federal obligation, however, Hans first had to demonstrate

that the State had entered into an enforceable contract as a matter of

state law.  That Hans chose to bring his claim in federal court as a

Contract Clause action could not change the fact that he was at bottom,

seeking to enforce a contract with the State.  See Burnham, Taming the

Eleventh Amendment Without Overruling Hans v. Louisiana, 40 Case

W.Res.L.Rev. 931 (1990).



Because Hans' claimed federal right did not arise independently of state

law, sovereign immunity was relevant to the threshold state law question

of whether a valid contract existed.{14}  Hans expressly pointed out,

however, that an individual who could show that he had an enforceable

contract under state law would not be barred from bringing suit in

federal court to prevent the State from impairing it.



To avoid misapprehension, it may be proper to add that, although the

obligations of a State rest for their performance upon its honor and

good faith, and cannot be made the subject of judicial cognizance unless

the State consents to be sued, or comes itself into court; yet where

property or rights are enjoyed under a grant or contract made by a

State, they cannot wantonly be invaded.  Whilst the State cannot be

compelled by suit to perform its contracts, any attempt on its part to

violate property or rights acquired under its contracts, may be

judicially resisted; and any law impairing the obligation of contracts

under which such property or rights are held is void and powerless to

effect their enjoyment. Hans v. Louisiana, 134 U.S. at 20-21.



That conclusion casts doubt on the absolutist view that Hans

definitively establishes that Article III prohibits federal courts from

entertaining federal question suits brought against States by their own

citizens.  At the very least, Hans suggests that such suits may be

brought to enjoin States from impairing existing contractual

obligations.



The view that the rule of Hans is more substantive than jurisdictional

comports with Hamilton's famous discussion of sovereign immunity in The

Federalist Papers.  Hamilton offered his view that the federal judicial

power would not extend to suits against unconsenting States only in the

context of his contention that no contract with a State could be

enforceable against the State's desire.  He did not argue that a State's

immunity from suit in federal court would be absolute. [T]here is no

color to pretend that the State governments would, by the adoption of

[the plan of convention], be divested of the privilege of paying their

own debts in their own way, free from every constraint but that which

flows from the obligations of good faith.  The contracts between a

nation and individuals are only binding on the conscience of the

sovereign, and have no pretensions to a compulsive force.  They confer

no right of action independent of the sovereign will. The Federalist No.

81, p. 488 (C. Rossiter ed. 1961).



Here, of course, no question of a State's contractual obligations is

presented.  The Seminole Tribe's only claim is that the State of Florida

has failed to fulfill a duty to negotiate that federal statutory law

alone imposes.  Neither the Federalist Papers nor Hans provides support

for the view that such a claim may not be heard in federal court. III



In reaching my conclusion that the Constitution does not prevent

Congress from making the State of Florida suable in federal court for

violating one of its statutes, I emphasize that I agree with the

majority that, in all cases to which the judicial power does not extend

-- either because they are not within any category defined in Article

III or because they are within the category withdrawn from Article III

by the Eleventh Amendment -- Congress lacks the power to confer

jurisdiction on the federal courts.  As I have previously insisted:  "A

statute cannot amend the Constitution."  Pennsylvania v. Union Gas Co.,

491 U.S. at 24.



It was, therefore, misleading for the Court, in Fitzpatrick v. Bitzer,

427 U.S. 445 (1976), to imply that  5 of the Fourteenth Amendment

authorized Congress to confer jurisdiction over cases that had been

withdrawn from Article III by the Eleventh Amendment.  Because that

action had been brought by Connecticut citizens against officials of the

State of Connecticut, jurisdiction was not precluded by the Eleventh

Amendment.  As Justice Brennan pointed out in his concurrence, the

congressional authority to enact the provisions at issue in the case was

found in the Commerce Clause and provided a sufficient basis for

refusing to allow the State to "avail itself of the nonconstitutional

but ancient doctrine of sovereign immunity."  Id. at 457 (opinion

concurring in judgment).



In confronting the question whether a federal grant of jurisdiction is

within the scope of Article III, as limited by the Eleventh Amendment, I

see no reason to distinguish among statutes enacted pursuant to the

power granted to Congress to regulate Commerce among the several States,

and with the Indian Tribes, Art. I,  8, cl. 3, the power to establish

uniform laws on the subject of bankruptcy, Art. I,  8, cl. 4, the power

to promote the progress of science and the arts by granting exclusive

rights to authors and inventors, Art. I,  8, cl. 8, the power to enforce

the provisions of the Fourteenth Amendment,  5, or indeed any other

provision of the Constitution.  There is no language anywhere in the

constitutional text that authorizes Congress to expand the borders of

Article III jurisdiction or to limit the coverage of the Eleventh

Amendment.



The Court's holdings in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), and

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), do unquestionably

establish, however, that Congress has the power to deny the States and

their officials the right to rely on the nonconstitutional defense of

sovereign immunity in an action brought by one of their own citizens. 

As the opinions in the latter case demonstrate, there can be legitimate

disagreement about whether Congress intended a particular statute to

authorize litigation against a State.  Nevertheless, the Court there

squarely held that the Commerce Clause was an adequate source of

authority for such a private remedy.  In a rather novel rejection of the

doctrine of stare decisis, the Court today demeans that holding by

repeatedly describing it as a "plurality decision" because Justice White

did not deem it necessary to set forth the reasons for his vote.  As

JUSTICE SOUTER's opinion today demonstrates, the arguments in support of

Justice White's position are so patent and so powerful that his actual

vote should be accorded full respect.  Indeed, far more significant than

the "plurality" character of the three opinions supporting the holding

in Union Gas is the fact that the issue confronted today has been

squarely addressed by a total of 13 Justices, 8 of whom cast their votes

with the so-called "plurality".{15}



The fundamental error that continues to lead the Court astray is its

failure to acknowledge that its modern embodiment of the ancient

doctrine of sovereign immunity "has absolutely nothing to do with the

limit on judicial power contained in the Eleventh Amendment."  Id. at 25

(STEVENS, J., concurring).  It rests rather on concerns of federalism

and comity that merit respect, but are nevertheless, in cases such as

the one before us, subordinate to the plenary power of Congress. IV



As I noted above, for the purpose of deciding this case, it is not

necessary to question the wisdom of the Court's decision in Hans v.

Louisiana.  Given the absence of precedent for the Court's dramatic

application of the sovereign immunity doctrine today, it is nevertheless

appropriate to identify the questionable heritage of the doctrine and to

suggest that there are valid reasons for limiting, or even rejecting

that doctrine altogether, rather than expanding it.



Except insofar as it has been incorporated into the text of the Eleventh

Amendment, the doctrine is entirely the product of judge-made law. 

Three features of its English ancestry make it particularly unsuitable

for incorporation into the law of this democratic Nation.



First, the assumption that it could be supported by a belief that "the

King can do no wrong" has always been absurd; the bloody path trod by

English monarchs both before and after they reached the throne

demonstrated the fictional character of any such assumption.  Even if

the fiction had been acceptable in Britain, the recitation in the

Declaration of Independence of the wrongs committed by George III made

that proposition unacceptable on this side of the Atlantic.



Second, centuries ago, the belief that the monarch served by divine

right made it appropriate to assume that redress for wrongs committed by

the sovereign should be the exclusive province of still higher

authority.{16}  While such a justification for a rule that immunized the

sovereign from suit in a secular tribunal might have been acceptable in

a jurisdiction where a particular faith is endorsed by the government,

it should give rise to skepticism concerning the legitimacy of

comparable rules in a society where a constitutional wall separates the

State from the Church.



Third, in a society where noble birth can justify preferential

treatment, it might have been unseemly to allow a commoner to hale the

monarch into court.  Justice Wilson explained how foreign such a

justification is to this Nation's principles.  See Chisholm v. Georgia,

2 Dall. at 455.  Moreover, Chief Justice Marshall early on laid to rest

the view that the purpose of the Eleventh Amendment was to protect a

State's dignity.  Cohens v. Virginia, 6 Wheat. 264, (1821).  Its

purpose, he explained, was far more practical. That its motive was not

to maintain the sovereignty of a State from the degradation supposed to

attend a compulsory appearance before the tribunal of the nation may be

inferred from the terms of the Amendment. . . .  We must ascribe the

amendment, then, to some other cause than the dignity of a State.  There

is no difficulty in finding this cause.  Those who were inhibited from

commencing a suit against a State, or from prosecuting one which might

be commenced before the adoption of the amendment, were persons who

might probably be its creditors.  There was not much reason to fear that

foreign or sister States would be creditors to any considerable amount,

and there was reason to retain the jurisdiction of the Court in those

cases, because it might be essential to the preservation of peace.

Ibid.{17}



Nevertheless, this Court later put forth the interest in preventing

"indignity" as the "very object and purpose of the [Eleventh]

Amendment."  In re Ayers, 123 U.S. at  505.  That, of course, is an

"embarrassingly insufficient" rationale for the rule.  See Puerto Rico

Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, ___

(1993) (STEVENS, J., dissenting.)



Moreover, I find unsatisfying Justice Holmes' explanation that [a]

sovereign is exempt from suit, not because of any formal conception or

obsolete theory, but on the logical and practical ground that there can

be no legal right as against the authority that makes the law on which

the right depends. Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). 

As I have explained before, Justice Holmes' justification fails in at

least two respects. First, it is nothing more than a restatement of the

obvious proposition that a citizen may not sue the sovereign unless the

sovereign has violated the citizen's legal rights.  It cannot explain

application of the immunity defense in cases like Chisholm, in which it

is assumed that the plaintiff's rights have in fact been violated-and

those cases are, of course, the only ones in which the immunity defense

is needed.  Second, Holmes's statement does not purport to explain why a

general grant of jurisdiction to federal courts should not be treated as

an adequate expression of the sovereign's consent to suits against

itself as well as to suits against ordinary litigants. STEVENS, Is

Justice Irrelevant?, 87 Nw.U.L.Rev. 1121, 1126 (1993).



In sum, as far as its common law ancestry is concerned, there is no

better reason for the rule of sovereign immunity "than that so it was

laid down in the time of Henry IV."  Holmes, The Path of the Law, 10

Harv.L.Rev. 457, 469 (1897).  That "reason" for the perpetuation of this

ancient doctrine certainly cannot justify the majority's expansion of

it.



In this country. the sovereignty of the individual States is subordinate

both to the citizenry of each State and to the supreme law of the

federal sovereign.  For that reason, Justice Holmes' explanation for a

rule that allows a State to avoid suit in its own courts does not even

speak to the question whether Congress should be able to authorize a

federal court to provide a private remedy for a State's violation of

federal law.  In my view, neither the majority's opinion today, nor any

earlier opinion by any Member of the Court, has identified any

acceptable reason for concluding that the absence of a State's consent

to be sued in federal court should affect the power of Congress to

authorize federal courts to remedy violations of federal law by States

or their officials in actions not covered by the Eleventh Amendment's

explicit text.{18}



While I am persuaded that there is no justification for permanently

enshrining the judge-made law of sovereign immunity, I recognize that

federalism concerns -- and even the interest in protecting the solvency

of the States that was at work in Chisholm and Hans -- may well justify

a grant of immunity from federal litigation in certain classes of cases.

 Such a grant, however, should be the product of a reasoned decision by

the policymaking branch of our Government.  For this Court to conclude

that time-worn shibboleths iterated and reiterated by judges should take

precedence over the deliberations of the Congress of the United States

is simply irresponsible. V



Fortunately, and somewhat fortuitously, a jurisdictional problem that is

unmentioned by the Court may deprive its opinion of precedential

significance.  The Indian Gaming Regulatory Act establishes a unique set

of procedures for resolving the dispute between the Tribe and the State.

 If each adversary adamantly adheres to its understanding of the law, if

the District Court determines that the State's inflexibility constitutes

a failure to negotiate in good faith, and if the State thereafter

continues to insist that it is acting within its rights, the maximum

sanction that the Court can impose is an order that refers the

controversy to a member of the Executive Branch of the Government for

resolution.  25 U.S.C.  2710(d)(7)(B).  As the Court of Appeals

interpreted the Act, this final disposition is available even though the

action against the State and its Governor may not be maintained.  11

F.3d 1016, 1029 (CA11 1994) (The Court does not tell us whether it

agrees or disagrees with that disposition.)  In my judgment, it is

extremely doubtful that the obviously dispensable involvement of the

judiciary in the intermediate stages of a procedure that begins and ends

in the Executive Branch is a proper exercise of judicial power.  See

Gordon v. United States, 117 U.S. Appx. 697, 702-703 (1864) (opinion of

Taney, C.J.); United States v. Ferreira, 13 How. 40, 48 (1851).  It may

well follow that the misguided opinion of today's majority has nothing

more than an advisory character.  Whether or not that be so, the better

reasoning in JUSTICE SOUTER's far wiser and far more scholarly opinion

will surely be the law one day.



For these reasons, as well as those set forth in JUSTICE SOUTER's

opinion, I respectfully dissent. SOUTER, J., dissenting



JUSTICE SOUTER, with whom JUSTICE GINSBURG and JUSTICE BREYER join,

dissenting.



In holding the State of Florida immune to suit under the Indian Gaming

Regulatory Act, the Court today holds for the first time since the

founding of the Republic that Congress has no authority to subject a

State to the jurisdiction of a federal court at the behest of an

individual asserting a federal right.  Although the Court invokes the

Eleventh Amendment as authority for this proposition, the only sense in

which that amendment might be claimed as pertinent here was tolerantly

phrased by JUSTICE STEVENS in his concurring opinion in Pennsylvania v.

Union Gas, 491 U.S. 1, 23 (1989) (STEVENS, J., concurring).  There, he

explained how it has come about that we have two Eleventh Amendments,

the one ratified in 1795, the other (so-called) invented by the Court

nearly a century later in Hans v. Louisiana, 134 U.S. 1 (1890).  JUSTICE

STEVENS saw in that second Eleventh Amendment no bar to the exercise of

congressional authority under the Commerce Clause in providing for suits

on a federal question by individuals against a State, and I can only say

that, after my own canvass of the matter, I believe he was entirely

correct in that view, for reasons given below.  His position, of course,

was also the holding in Union Gas, which the Court now overrules and

repudiates.



The fault I find with the majority today is not in its decision to

reexamine Union Gas, for the Court in that case produced no majority for

a single rationale supporting congressional authority.  Instead, I part

company from the Court because I am convinced that its decision is

fundamentally mistaken, and for that reason I respectfully dissent. I



It is useful to separate three questions:  (1) whether the States

enjoyed sovereign immunity if sued in their own courts in the period

prior to ratification of the National Constitution; (2) if so, whether

after ratification the States were entitled to claim some such immunity

when sued in a federal court exercising jurisdiction either because the

suit was between a State and a non-state litigant who was not its

citizen, or because the issue in the case raised a federal question; and

(3) whether any state sovereign immunity recognized in federal court may

be abrogated by Congress.



The answer to the first question is not clear, although some of the

Framers assumed that States did enjoy immunity in their own courts.  The

second question was not debated at the time of ratification, except as

to citizen-state diversity jurisdiction; there was no unanimity, but, in

due course, the Court, in Chisholm v. Georgia, 2 Dall. 419 (1793),

answered that a state defendant enjoyed no such immunity.  As to federal

question jurisdiction, state sovereign immunity seems not to have been

debated prior to ratification, the silence probably showing a general

understanding at the time that the States would have no immunity in such

cases.



The adoption of the Eleventh Amendment soon changed the result in

Chisholm, not by mentioning sovereign immunity, but by eliminating

citizen-state diversity jurisdiction over cases with state defendants. 

I will explain why the Eleventh Amendment did not affect federal

question jurisdiction, a notion that needs to be understood for the

light it casts on the soundness of Hans' holding that States did enjoy

sovereign immunity in federal question suits.  The Hans Court

erroneously assumed that a State could plead sovereign immunity against

a noncitizen suing under federal question jurisdiction, and for that

reason held that a State must enjoy the same protection in a suit by one

of its citizens.  The error of Hans' reasoning is underscored by its

clear inconsistency with the Founders' hostility to the implicit

reception of common law doctrine as federal law, and with the Founders'

conception of sovereign power as divided between the States and the

National Government for the sake of very practical objectives.



The Court's answer today to the third question is likewise at odds with

the Founders' view that common law, when it was received into the new

American legal systems, was always subject to legislative amendment.  In

ignoring the reasons for this pervasive understanding at the time of the

ratification, and in holding that a nontextual common law rule limits a

clear grant of congressional power under Article I, the Court follows a

course that has brought it to grief before in our history, and promises

to do so again.



Beyond this third question that elicits today's holding, there is one

further issue.  To reach the Court's result, it must not only hold the

Hans doctrine to be outside the reach of Congress, but must also

displace the doctrine of Ex parte Young, 209 U.S. 123 (1908), that an

officer of the government may be ordered prospectively to follow federal

law, in cases in which the government may not itself be sued directly. 

None of its reasons for displacing Young's jurisdictional doctrine

withstand scrutiny. A



The doctrine of sovereign immunity comprises two distinct rules, which

are not always separately recognized.  The one rule holds that the King

or the Crown, as the font of law, is not bound by the law's provisions;

the other provides that the King or Crown, as the font of justice, is

not subject to suit in its own courts.  See, e.g., Jaffe, Suits Against

Governments and Officers:  Sovereign Immunity, 77 Harv.L.Rev. 1, 3-4

(1963).  The one rule limits the reach of substantive law; the other,

the jurisdiction of the courts.  We are concerned here only with the

latter rule, which took its common law form in the high middle ages. 

"At least as early as the thirteenth century, during the reign of Henry

III (1216-1272), it was recognized that the king could not be sued in

his own courts."  C. Jacobs, Eleventh Amendment and Sovereign Immunity 5

(1972).  See also 3 W. Blackstone, Commentaries, *244-*245; Jaffe, supra

at 2 ("By the time of Bracton (1268) it was settled doctrine that the

King could not be sued eo nomine in his own courts").



The significance of this doctrine in the nascent American law is less

clear, however, than its early development and steady endurance in

England might suggest.  While some colonial governments may have enjoyed

some such immunity, Jacobs, supra at 6-7, the scope (and even the

existence) of this governmental immunity in pre-Revolutionary America

remains disputed.  See Gibbons, The Eleventh Amendment and State

Sovereign Immunity:  A Reinterpretation, 83 Colum. L.Rev. 1889,

1895-1899 (1983).



Whatever the scope of sovereign immunity might have been in the

Colonies, however, or during the period of Confederation, the proposal

to establish a National Government under the Constitution drafted in

1787 presented a prospect unknown to the common law prior to the

American experience:  the States would become parts of a system in which

sovereignty over even domestic matters would be divided or parcelled out

between the States and the Nation, the latter to be invested with its

own judicial power and the right to prevail against the States whenever

their respective substantive laws might be in conflict.  With this

prospect in mind, the 1787 Constitution might have addressed state

sovereign immunity by eliminating whatever sovereign immunity the States

previously had, as to any matter subject to federal law or jurisdiction;

by recognizing an analogue to the old immunity in the new context of

federal jurisdiction, but subject to abrogation as to any matter within

that jurisdiction; or by enshrining a doctrine of inviolable state

sovereign immunity in the text, thereby giving it constitutional

protection in the new federal jurisdiction.  See Field, The Eleventh

Amendment and Other Sovereign Immunity Doctrines:  Part One, 126

U.Pa.L.Rev. 515, 536-538 (1977).



The 1787 draft in fact said nothing on the subject, and it was this very

silence that occasioned some, though apparently not widespread, dispute

among the Framers and others over whether ratification of the

Constitution would preclude a State sued in federal court from asserting

sovereign immunity as it could have done on any matter of nonfederal law

litigated in its own courts.  As it has come down to us, the discussion

gave no attention to congressional power under the proposed Article I

but focused entirely on the limits of the judicial power provided in

Article III.  And although the jurisdictional bases together

constituting the judicial power of the national courts under section 2

of Article III included questions arising under federal law and cases

between States and individuals who are not citizens, it was only upon

the latter citizen-state diversity provisions that pre-ratification

questions about state immunity from suit or liability centered.



Later in my discussion I will canvass the details of the debate among

the Framers and other leaders of the time, see infra at ___; for now it

is enough to say that there was no consensus on the issue.  See

Atascadero State Hospital v. Scanlon, 473 U.S. 234, (1985) (Brennan, J.,

dissenting); Nevada v. Hall, 440 U.S. 410, 419 (1979); Jacobs, supra at

40 ("[T]he legislative history of the Constitution hardly warrants the

conclusion drawn by some that there was a general understanding at the

time of ratification, that the states would retain their sovereign

immunity").  There was, on the contrary, a clear disagreement, which was

left to fester during the ratification period, to be resolved only

thereafter.  One other point, however, was also clear:  the debate

addressed only the question whether ratification of the Constitution

would, in diversity cases and without more, abrogate the state sovereign

immunity or allow it to have some application.  We have no record that

anyone argued for the third option mentioned above, that the

Constitution would affirmatively guarantee state sovereign immunity

against any congressional action to the contrary.  Nor would there have

been any apparent justification for any such argument, since no clause

in the proposed (and ratified) Constitution even so much as suggested

such a position.  It may have been reasonable to contend (as we will see

that Madison, Marshall, and Hamilton did) that Article III would not

alter States' preexisting common law immunity despite its unqualified

grant of jurisdiction over diversity suits against States.  But then, as

now, there was no textual support for contending that Article III or any

other provision would "constitutionalize" state sovereign immunity, and

no one uttered any such contention. B



The argument among the Framers and their friends about sovereign

immunity in federal citizen-state diversity cases, in any event, was

short lived and ended when this Court, in Chisholm v. Georgia, 2 Dall.

419 (1793), chose between the constitutional alternatives of abrogation

and recognition of the immunity enjoyed at common law.  The 4-to-1

majority adopted the reasonable (although not compelled) interpretation

that the first of the two Citizen-State Diversity Clauses abrogated for

purposes of federal jurisdiction any immunity the States might have

enjoyed in their own courts, and Georgia was accordingly held subject to

the judicial power in a common law assumpsit action by a South Carolina

citizen suing to collect a debt.  The case also settled, by implication,

any question there could possibly have been about recognizing state

sovereign immunity in actions depending on the federal question (or

"arising under") head of jurisdiction as well.  The constitutional text

on federal question jurisdiction, after all, was just as devoid of

immunity language as it was on citizen-state diversity, and at the time

of Chisholm any influence that general common law immunity might have

had as an interpretive force in construing constitutional language would

presumably have been no greater when addressing the federal question

language of Article III than its Diversity Clauses.  See Sherry, The

Eleventh Amendment and Stare Decisis:  Overruling Hans v Louisiana, 57

U.Chi.L.Rev. 1260, 1270 (1990).



Although Justice Iredell's dissent in Chisholm seems at times to reserve

judgment on what I have called the third question, whether Congress

could authorize suits against the States, Chisholm, supra at (Iredell,

J., dissenting), his argument is largely devoted to stating the position

taken by several federalists that state sovereign immunity was

cognizable under the Citizen-State Diversity Clauses, not that state

immunity was somehow invisibly codified as an independent constitutional

defense.  As JUSTICE STEVENS persuasively explains in greater detail,

ante at ___, Justice Iredell's dissent focused on the construction of

the Judiciary Act of 1789, not Article III.  See also Orth, The Truth

About Justice Iredell's Dissent in Chisholm v. Georgia (1793), 73 N. C.

L.Rev. 255 (1994).  This would have been an odd focus, had he believed

that Congress lacked the constitutional authority to impose liability. 

Instead, on Justice Iredell's view, States sued in diversity retained

the common law sovereignty "where no special act of Legislation controls

it, to be in force in each state, as it existed in England (unaltered by

any statute) at the time of the first settlement of the country."  2

Dall. at 435.  While, in at least some circumstances, States might be

held liable to "the authority of the United States," id. at 436, any

such liability would depend upon "laws passed under the Constitution and

in conformity to it."  Ibid.  Finding no congressional action abrogating

Georgia's common law immunity, Justice Iredell concluded that the State

should not be liable to suit. C



The Eleventh Amendment, of course, repudiated Chisholm and clearly

divested federal courts of some jurisdiction as to cases against state

parties:



The Judicial power of the United States shall not be construed to extend

to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or Subjects

of any Foreign State. There are two plausible readings of this

provision's text.  Under the first, it simply repeals the Citizen-State

Diversity Clauses of Article III for all cases in which the State

appears as a defendant.  Under the second, it strips the federal courts

of jurisdiction in any case in which a state defendant is sued by a

citizen not its own, even if jurisdiction might otherwise rest on the

existence of a federal question in the suit.  Neither reading of the

Amendment, of course, furnishes authority for the Court's view in

today's case, but we need to choose between the competing readings for

the light that will be shed on the Hans doctrine and the legitimacy of

inflating that doctrine to the point of constitutional immutability as

the Court has chosen to do.



The history and structure of the Eleventh Amendment convincingly show

that it reaches only to suits subject to federal jurisdiction

exclusively under the Citizen-State Diversity Clauses.  In precisely

tracking the language in Article III providing for citizen-state

diversity jurisdiction, the text of the Amendment does, after all,

suggest to common sense that only the Diversity Clauses are being

addressed.  If the Framers had meant the Amendment to bar federal

question suits as well, they could not only have made their intentions

clearer very easily, but could simply have adopted the first

post-Chisholm proposal, introduced in the House of Representatives by

Theodore Sedgwick of Massachusetts on instructions from the Legislature

of that Commonwealth.  Its provisions would have had exactly that

expansive effect: [N]o state shall be liable to be made a party

defendant, in any of the judicial courts, established, or which shall be

established under the authority of the United States at the suit of any

person or persons, whether a citizen or citizens, or a foreigner or

foreigners, or of any body politic or corporate, whether within or

without the United States. Gazette of the United States 303 (Feb. 20,

1793).



With its references to suits by citizens as well as non-citizens, the

Sedgwick amendment would necessarily have been applied beyond the

Diversity Clauses, and for a reason that would have been wholly obvious

to the people of the time.  Sedgwick sought such a broad amendment

because many of the States, including his own, owed debts subject to

collection under the Treaty of Paris.  Suits to collect such debts would

"arise under" that Treaty, and thus be subject to federal question

jurisdiction under Article III.  Such a suit, indeed, was then already

pending against Massachusetts, having been brought in this Court by

Christopher Vassal, an erstwhile Bostonian whose move to England on the

eve of revolutionary hostilities had presented his former neighbors with

the irresistible temptation to confiscate his vacant mansion.  5

Documentary History of the Supreme Court of the United States,

1789-1800, pp. 352-449 (Marcus ed. 1994).



Congress took no action on Sedgwick's proposal, however, and the

Amendment as ultimately adopted two years later could hardly have been

meant to limit federal question jurisdiction, or it would never have

left the states open to federal question suits by their own citizens. 

To be sure, the majority of state creditors were not citizens, but

nothing in the Treaty would have prevented foreign creditors from

selling their debt instruments (thereby assigning their claims) to

citizens of the debtor State.  If the Framers of the Eleventh Amendment

had meant it to immunize States from federal question suits like those

that might be brought to enforce the Treaty of Paris, they would surely

have drafted the Amendment differently.  See Fletcher, The Diversity

Explanation of the Eleventh Amendment:  A Reply to Critics, 56

U.Chi.L.Rev. 1261, 1280-1282 (1989).



It should accordingly come as no surprise that the weightiest commentary

following the amendment's adoption described it simply as constricting

the scope of the Citizen-State Diversity Clauses.  In Cohens v.

Virginia, 6 Wheat. 264 (1821), for instance, Chief Justice Marshall,

writing for the Court, emphasized that the amendment had no effect on

federal courts' jurisdiction grounded on the "arising under" provision

of Article III and concluded that "a case arising under the constitution

or laws of the United States, is cognizable in the Courts of the Union,

whoever may be the parties to that case."  Id. at 383.  The point of the

Eleventh Amendment, according to Cohens, was to bar jurisdiction in

suits at common law by Revolutionary War debt creditors, not "to strip

the government of the means of protecting, by the instrumentality of its

Courts, the constitution and laws from active violation."  Id. at 407.



The treatment of the amendment in Osborn v. Bank of United States, 9

Wheat. 738 (1824), was to the same effect.  The Amendment was held there

to be no bar to an action against the State seeking the return of an

unconstitutional tax.  "The eleventh amendment of the constitution has

exempted a State from the suits of citizens of other States, or aliens,"

Marshall stated, omitting any reference to cases that arise under the

Constitution or federal law.  Id. at 847.



The good sense of this early construction of the Amendment as affecting

the diversity jurisdiction and no more has the further virtue of making

sense of this Court's repeated exercise of appellate jurisdiction in

federal question suits brought against states in their own courts by

out-of-staters.  Exercising appellate jurisdiction in these cases would

have been patent error if the Eleventh Amendment limited federal

question jurisdiction, for the Amendment's unconditional language

("shall not be construed") makes no distinction between trial and

appellate jurisdiction.{10}  And yet, again and again we have

entertained such appellate cases, even when brought against the State in

its own name by a private plaintiff for money damages. See, e.g.,

Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981); Minneapolis

Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983). 

The best explanation for our practice belongs to Chief Justice Marshall:

 the Eleventh Amendment bars only those suits in which the sole basis

for federal jurisdiction is diversity of citizenship.  See Atascadero

State Hospital v. Scanlon, 473 U.S. at 294 (Brennan, J., dissenting);

Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign

Immunity, 98 Yale L.J. 1, 44 (1988).



In sum, reading the Eleventh Amendment solely as a limit on

citizen-state diversity jurisdiction has the virtue of coherence with

this Court's practice, with the views of John Marshall, with the history

of the Amendment's drafting, and with its allusive language.  Today's

majority does not appear to disagree at least insofar as the

constitutional text is concerned; the Court concedes, after all, that

"the text of the Amendment would appear to restrict only the Article III

diversity jurisdiction of the federal courts."  Ante at 8.{11}



Thus, regardless of which of the two plausible readings one adopts, the

further point to note here is that there is no possible argument that

the Eleventh Amendment, by its terms, deprives federal courts of

jurisdiction over all citizen lawsuits against the States.  Not even the

Court advances that proposition, and there would be no textual basis for

doing so.{12}  Because the plaintiffs in today's case are citizens of

the State that they are suing, the Eleventh Amendment simply does not

apply to them.  We must therefore look elsewhere for the source of that

immunity by which the Court says their suit is barred from a federal

court.{13} II



The obvious place to look elsewhere, of course, is Hans v. Louisiana,

134 U.S. 1 (1890), and Hans was indeed a leap in the direction of

today's holding, even though it does not take the Court all the way. 

The parties in Hans raised, and the Court in that case answered, only

what I have called the second question, that is, whether the

Constitution, without more, permits a State to plead sovereign immunity

to bar the exercise of federal question jurisdiction.  See id. at 9. 

Although the Court invoked a principle of sovereign immunity to cure

what it took to be the Eleventh Amendment's anomaly of barring only

those state suits brought by noncitizen plaintiffs, the Hans Court had

no occasion to consider whether Congress could abrogate that background

immunity by statute.  Indeed (except in the special circumstance of

Congress's power to enforce the Civil War Amendments), this question

never came before our Court until Union Gas, and any intimations of an

answer in prior cases were mere dicta.  In Union Gas the Court held that

the immunity recognized in Hans had no constitutional status and was

subject to congressional abrogation.  Today the Court overrules Union

Gas and holds just the opposite.  In deciding how to choose between

these two positions, the place to begin is with Hans' holding that a

principle of sovereign immunity derived from the common law insulates a

state from federal question jurisdiction at the suit of its own citizen.

 A critical examination of that case will show that it was wrongly

decided, as virtually every recent commentator has concluded.{14}  It

follows that the Court's further step today of constitutionalizing Hans'

rule against abrogation by Congress compounds and immensely magnifies

the century-old mistake of Hans itself and takes its place with other

historic examples of textually untethered elevations of judicially

derived rules to the status of inviolable constitutional law. A



The Louisiana plaintiff in Hans held bonds issued by that State, which,

like virtually all of the Southern States, had issued them in

substantial amounts during the Reconstruction era to finance public

improvements aimed at stimulating industrial development.  E. Foner,

Reconstruction:  America's Unfinished Revolution 1863-1877 pp. 383-384

(1988); Gibbons, 83 Colum. L.Rev. at 1976-1977.  As Reconstruction

governments collapsed, however, the post-Reconstruction regimes sought

to repudiate these debts, and the Hans litigation arose out of

Louisiana's attempt to renege on its bond obligations.



Hans sued the State in federal court, asserting that the State's default

amounted to an impairment of the obligation of its contracts in

violation of the Contract Clause.  This Court affirmed the dismissal of

the suit, despite the fact that the case fell within the federal court's

"arising under," or federal question, jurisdiction.  Justice Bradley's

opinion did not purport to hold that the terms either of Article III or

of the Eleventh Amendment barred the suit, but that the ancient doctrine

of sovereign immunity that had inspired adoption of the Eleventh

Amendment applied to cases beyond the Amendment's scope and otherwise

within the federal question jurisdiction.  Indeed, Bradley explicitly

admitted that [i]t is true, the amendment does so read [as to permit

Hans' suit], and if there were no other reason or ground for abating his

suit, it might be maintainable. Hans, 134 U.S. at 10.  The Court

elected, nonetheless, to recognize a broader immunity doctrine, despite

the want of any textual manifestation, because of what the Court

described as the anomaly that would have resulted otherwise:  the

Eleventh Amendment (according to the Court) would have barred a federal

question suit by a noncitizen, but the State would have been subject to

federal jurisdiction at its own citizen's behest.  Id. at 10-11.  The

State was accordingly held to be free to resist suit without its

consent, which it might grant or withhold as it pleased.



Hans thus addressed the issue implicated (though not directly raised) in

the pre-ratification debate about the Citizen-State Diversity Clauses

and implicitly settled by Chisholm: whether state sovereign immunity was

cognizable by federal courts on the exercise of federal question

jurisdiction.  According to Hans, and contrary to Chisholm, it was.  But

that is all that Hans held.  Because no federal legislation purporting

to pierce state immunity was at issue, it cannot fairly be said that

Hans held state sovereign immunity to have attained some constitutional

status immunizing it from abrogation.{15}



Taking Hans only as far as its holding, its vulnerability is apparent. 

The Court rested its opinion on avoiding the supposed anomaly of

recognizing jurisdiction to entertain a citizen's federal question suit,

but not one brought by a noncitizen.  See Hans, supra at 10-11.  There

was, however, no such anomaly at all.  As already explained, federal

question cases are not touched by the Eleventh Amendment, which leaves a

State open to federal question suits by citizens and noncitizens alike. 

If Hans had been from Massachusetts the Eleventh Amendment would not

have barred his action against Louisiana.



Although there was thus no anomaly to be cured by Hans, the case

certainly created its own anomaly in leaving federal courts entirely

without jurisdiction to enforce paramount federal law at the behest of a

citizen against a State that broke it.  It destroyed the congruence of

the judicial power under Article III with the substantive guarantees of

the Constitution, and with the provisions of statutes passed by Congress

in the exercise of its power under Article I:  when a State injured an

individual in violation of federal law no federal forum could provide

direct relief.  Absent an alternative process to vindicate federal law

(see ___ Part IV, infra) John Marshall saw just what the consequences of

this anomaly would be in the early Republic, and he took that

consequence as good evidence that the Framers could never have intended

such a scheme. Different States may entertain different opinions on the

true construction of the constitutional powers of Congress.  We know,

that at one time, the assumption of the debts contracted by the several

States, during the war of our revolution, was deemed unconstitutional by

some of them. . . .  States may legislate in conformity to their

opinions and may enforce those opinions by penalties.  It would be

hazarding too much to assert, that the judicatures of the States will be

exempt from the prejudices by which the legislatures and people are

influenced, and will constitute perfectly impartial tribunals.  In many

States the judges are dependent for office and for salary on the will of

the legislature.  The constitution of the United States furnishes no

security against the universal adoption of this principle.  When we

observe the importance which that constitution attaches to the

independence of judges, we are less inclined to suppose that it can have

intended to leave these constitutional questions to tribunals where this

independence may not exist. Cohens v. Virginia, 6 Wheat. at   And yet

that is just what Hans threatened to do.



How such a result could have been threatened on the basis of a principle

not so much as mentioned in the Constitution is difficult to understand.

 But history provides the explanation.  As I have already said, Hans was

one episode in a long story of debt repudiation by the States of the

former Confederacy after the end of Reconstruction.  The turning point

in the States' favor came with the Compromise of 1877, when the

Republican party agreed effectively to end Reconstruction and to

withdraw federal troops from the South in return for Southern

acquiescence in the decision of the Electoral Commission that awarded

the disputed 1876 presidential election to Rutherford B. Hayes.  See J.

Orth, Judicial Power of the United States:  The Eleventh Amendment in

American History 53-57 (1987); Gibbons, 83 Colum.L.Rev. at 1978-1982;

see generally Foner, Reconstruction at 575-587 (describing the events of

1877 and their aftermath).  The troop withdrawal, of course, left the

federal judiciary "effectively without power to resist the rapidly

coalescing repudiation movement."  Gibbons, 83 Colum.L.Rev. at 1981. 

Contract Clause suits like the one brought by Hans thus presented this

Court with a draconian choice between repudiation of some of its most

inviolable constitutional doctrines and the humiliation of seeing its

political authority compromised as its judgments met the resistance of

hostile state governments. Id. at 1974.  Indeed, Louisiana's brief in

Hans unmistakably bore witness to this Court's inability to enforce a

judgment against a recalcitrant State: The solemn obligation of a

government arising on its own acknowledged bond would not be enhanced by

a judgment rendered on such bond.  If it either could not or would not

make provision for paying the bond, it is probable that it could not or

would not make provision for satisfying the judgment. Brief for

Respondent in No. 4, O.T. 1889, p. 25.  Given the likelihood that a

judgment against the State could not be enforced, it is not wholly

surprising that the Hans Court found a way to avoid the certainty of the

State's contempt.{16}



So it is that history explains, but does not honor, Hans.  The ultimate

demerit of the case centers, however, not on its politics but on the

legal errors on which it rested.{17}  Before considering those errors,

it is necessary to address the Court's contention that subsequent cases

have read into Hans what was not there to begin with, that is, a

background principle of sovereign immunity that is constitutional in

stature and therefore unalterable by Congress. B



The majority does not dispute the point that Hans v. Louisiana, 134 U.S.

1 (1890), had no occasion to decide whether Congress could abrogate a

State's immunity from federal question suits.  The Court insists,

however, that the negative answer to that question that it finds in Hans

and subsequent opinions is not "mere obiter dicta, but rather . . . the

well established rationale upon which the Court based the results of its

earlier decisions."  Ante at ___.  The exact rationale to which the

majority refers, unfortunately, is not easy to discern.  The Court's

opinion says, immediately after its discussion of stare decisis, that,

[f]or over a century, we have grounded our decisions in the oft-repeated

understanding of state sovereign immunity as an essential part of the

Eleventh Amendment. Ante at ___.  This cannot be the "rationale,"

though, because this Court has repeatedly acknowledged that the Eleventh

Amendment standing alone cannot bar a federal question suit against a

State brought by a state citizen.  See, e.g., Edelman v. Jordan, 415

U.S. 651, 662 (1974) (acknowledging that "the Amendment by its terms

does not bar suits against a State by its own citizens").{18}  Indeed,

as I have noted, Justice Bradley's opinion in Hans conceded that Hans

might successfully have pursued his claim "if there were no other reason

or ground [other than the Amendment itself] for abating his suit."  134

U.S. at 10.  The Hans Court, rather, held the suit barred by a

nonconstitutional common law immunity.  See supra at ___.



The "rationale" which the majority seeks to invoke is, I think, more

nearly stated in its quotation from Principality of Monaco v.

Mississippi, 292 U.S. 313, 321-323 (1934).  There, the Court said that

we cannot rest with a mere literal application of the words of  2 of

Article III, or assume that the letter of the Eleventh Amendment

exhausts the restrictions upon suits against nonconsenting States. Id.

at 322.{19}  This statement certainly is true to Hans, which clearly

recognized a preexisting principle of sovereign immunity, broader than

the Eleventh Amendment itself, that will ordinarily bar federal question

suits against a nonconsenting State.  That was the "rationale" which was

sufficient to decide Hans and all of its progeny prior to Union Gas. 

But leaving aside the indefensibility of that rationale, which I will

address further below, that was as far as it went.



The majority, however, would read the "rationale" of Hans and its line

of subsequent cases as answering the further question whether the

"postulate" of sovereign immunity that "limit[s] and control[s]" the

exercise of Article III jurisdiction, Monaco, supra at 322, is

constitutional in stature and therefore unalterable by Congress.  It is

true that there are statements in the cases that point toward just this

conclusion. See, e.g., Pennhurst State School and Hospital v. Halderman,

465 U.S. 89, 98 (1984) ("In short, the principle of sovereign immunity

is a constitutional limitation on the federal judicial power established

in Art. III"); Ex parte New York, 256 U.S. 490, 497 (1921) ("[T]he

entire judicial power granted by the Constitution does not embrace

authority to entertain a suit brought by private parties against a State

without consent given . . .").  These statements, however, are dicta in

the classic sense, that is, sheer speculation about what would happen in

cases not before the court.{20}  But this is not the only weakness of

these statements, which are counterbalanced by many other opinions that

have either stated the immunity principle without more, see, e.g.,

Dellmuth v. Muth, 491 U.S. 223, 229, n. 2 (1989) (noting that "an

unconsenting State is immune from liability for damages in a suit

brought in federal court by one of its own citizens," without suggesting

that the immunity was unalterable by Congress),{21} or have suggested

that the Hans immunity is not of constitutional stature.  The very

language quoted by the majority from Monaco, for example, likens state

sovereign immunity to other "essential postulates" such as the rules of

justiciability.  292 U.S. at 322.  Many of those rules, as JUSTICE

STEVENS points out, are prudential in nature and therefore not

unalterable by Congress.  See ante at ___.{22}  More generally, the

proponents of the Court's theory have repeatedly referred to state

sovereign immunity as a "background principle," ante at ___,

"postulate," Nevada v. Hall, 440 U.S. at 437 (REHNQUIST, J.,

dissenting), or "implicit limitation," Welch v. Texas Dept. of Highways

and Public Transp., 483 U.S. 468, 496 (1987) (SCALIA, J., concurring in

part and concurring in judgment), and as resting on the "inherent nature

of sovereignty," Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 51

(1944), rather than any explicit constitutional provision.{23}  But

whatever set of quotations one may prefer, taking heed of such

jurisprudential creations in assessing the contents of federal common

law is a very different thing from reading them into the Founding

Document itself.



The most damning evidence for the Court's theory that Hans rests on a

broad rationale of immunity unalterable by Congress,  however, is the

Court's proven tendency to disregard the post-Hans dicta in cases where

that dicta would have mattered.{24}  If it is indeed true that "private

suits against States [are] not permitted under Article III (by virtue of

the understanding represented by the Eleventh Amendment)," Union Gas,

491 U.S. at 40 (SCALIA, J., concurring in part and dissenting in part),

then it is hard to see how a State's sovereign immunity may be waived

any more than it may be abrogated by Congress.  See, e.g., Atascadero

State Hospital v. Scanlon, 473 U.S. at 238 (recognizing that immunity

may be waived).  After all, consent of a party is in all other instances

wholly insufficient to create subject matter jurisdiction where it would

not otherwise exist.  See, e.g., Sosna v. Iowa, 419 U.S. 393, 398

(1975); see also E. Chemerinsky, Federal Jurisdiction  7.6 at 405 (2d

ed. 1994) (noting that "allowing such waivers seems inconsistent with

viewing the Eleventh Amendment as a restriction on the federal courts'

subject matter jurisdiction").  Likewise, the Court's broad theory of

immunity runs doubly afoul of the appellate jurisdiction problem that I

noted earlier in rejecting an interpretation of the Eleventh Amendment's

text that would bar federal question suits.  See supra at ___.  If the

whole sum of the judicial power granted by the Constitution to the

United States does not embrace the authority to entertain a suit brought

by a citizen against his own State without its consent, Duhne v. New

Jersey, 251 U.S. 311, 313 (1920), and if consent to suit in state court

is not sufficient to show consent in federal court, see Atascadero,

supra at 241, then Article III would hardly permit this Court to

exercise appellate jurisdiction over issues of federal law arising in

lawsuits brought against the States in their own courts.  We have,

however, quite rightly ignored any post-Hans dicta in that sort of case

and exercised the jurisdiction that the plain text of Article III

provides. See, e.g., Fulton Corp. v. Faulkner, 516 U.S. ___ (1996); see

also supra at ___.



If these examples were not enough to distinguish Hans' rationale of a

preexisting doctrine of sovereign immunity from the post-Hans dicta

indicating that this immunity is constitutional, one would need only to

consider a final set of cases:  those in which we have assumed, without

deciding, that congressional power to abrogate state sovereign immunity

exists even when  5 of the Fourteenth Amendment has an application.  A

majority of this Court was willing to make that assumption in Hoffman v.

Connecticut Dept. of Income Maintenance, 492 U.S. 96, 101 (1989)

(plurality opinion), in Welch v. Texas Dept. of Highways and Public

Transp., supra at 475 (plurality opinion), and in County of Oneida v.

Oneida Indian Nation of N.Y., 470 U.S. 226, 252 (1985).{25}  Although

the Court in each of these cases failed to find abrogation for lack of a

clear statement of congressional intent, the assumption that such power

was available would hardly have been permissible if at that time,

today's majority's view of the law had been firmly established.  It is

one thing, after all, to avoid an open constitutional question by

assuming an answer and rejecting the claim on another ground; it is

quite another to avoid a settled rationale (an emphatically settled one

if the majority is to be taken seriously) only to reach an issue of

statutory construction that the Court would otherwise not have to

decide.  Even worse, the Court could not have been unaware that its

decision of cases like Hoffman and Welch, on the ground that the

statutes at issue lacked a plain statement of intent to abrogate, would

invite Congress to attempt abrogation in statutes like the Indian Gaming

Regulatory Act, 25 U.S.C.  2701 et seq. (IGRA).  Such a course would

have been wholly irresponsible if, as the majority now claims, the

constitutionally unalterable nature of Hans immunity had been well

established for a hundred years.



Hans itself recognized that an "observation [in a prior case that] was

unnecessary to the decision, and in that sense extrajudicial . . . ought

not to outweigh" present reasoning which points to a different

conclusion. 134 U.S. at 20.  That is good advice, which Members of

today's majority have been willing to heed on other occasions. See,

e.g., Kokkonen v. Guardian Life Ins. Co., 511 U.S. ___, ___ (1994) ("It

is to the holdings of our cases, rather than their dicta, that we must

attend"); Bennis v. Michigan, 516 U.S. ___, ___ (1996).  But because the

Court disregards this norm today, I must consider the soundness of Hans'

original recognition of a background principle of sovereign immunity

that applies even in federal question suits, and the reasons that

counsel against the Court's extension of Hans' holding to the point of

rendering its immunity unalterable by Congress. III



Three critical errors in Hans weigh against constitutionalizing its

holding as the majority does today.  The first we have already seen: 

the Hans Court misread the Eleventh Amendment, see supra at ___.  It

also misunderstood the conditions under which common law doctrines were

received or rejected at the time of the Founding, and it fundamentally

mistook the very nature of sovereignty in the young Republic that was

supposed to entail a State's immunity to federal question jurisdiction

in a federal court.  While I would not, as a matter of stare decisis,

overrule Hans today, an understanding of its failings on these points

will show how the Court today simply compounds already serious error in

taking Hans the further step of investing its rule with constitutional

inviolability against the considered judgment of Congress to abrogate

it. A



There is and could be no dispute that the doctrine of sovereign immunity

that Hans purported to apply had its origins in the "familiar doctrine

of the common law," The Siren, 74 U.S. 152, 153 (1869), "derived from

the laws and practices of our English ancestors," United States v. Lee,

106 U.S. 196, 205 (1882).{26}  Although statutes came to affect its

importance in the succeeding centuries, the doctrine was never reduced

to codification, and Americans took their understanding of immunity

doctrine from Blackstone, see 3 W. Blackstone, Commentaries on the Laws

of England ch. 17 (1768).  Here, as in the mother country, it remained a

common law rule.  See generally Jaffe, 77 Harv. L.Rev. at 2-19;

Borchard, Governmental Responsibility in Tort, VI, 36 Yale L.J. 1, 17-41

(1926).



This fact of the doctrine's common law status in the period covering the

Founding and the later adoption of the Eleventh Amendment should have

raised a warning flag to the Hans Court, and it should do the same for

the Court today.  For although the Court has persistently assumed that

the common law's presence in the minds of the early Framers must have

functioned as a limitation on their understanding of the new Nation's

constitutional powers, this turns out not to be so at all.  One of the

characteristics of the Founding generation, on the contrary, was its

joinder of an appreciation of its immediate and powerful common law

heritage with caution in settling that inheritance on the political

systems of the new Republic.  It is not that the Framers failed to see

themselves to be children of the common law; as one of their

contemporaries put it, [w]e live in the midst of the common law, we

inhale it at every breath, imbibe it at every pore . . . [and] cannot

learn another system of laws without learning at the same time another

language. P. Du Ponceau, A Dissertation on the Nature and Extent of

Jurisdiction of Courts of the United States 91 (1824).  But still it is

clear that the adoption of English common law in America was not taken

for granted, and that the exact manner and extent of the common law's

reception were subject to careful consideration by courts and

legislatures in each of the new States.{27}  An examination of the

States' experience with common law reception will shed light on

subsequent theory and practice at the national level, and demonstrate

that our history is entirely at odds with Hans' resort to a common law

principle to limit the Constitution's contrary text. 1



This American reluctance to import English common law wholesale into the

New World is traceable to the early colonial period.  One scholar of

that time has written that [t]he process which we may call the reception

of the English common law by the colonies was not so simple as the legal

theory would lead us to assume.  While their general legal conceptions

were conditioned by, and their terminology derived from, the common law,

the early colonists were far from applying it as a technical system,

they often ignored it or denied its subsidiary force, and they

consciously departed from many of its most essential principles. P.

Reinsch, English Common Law in the Early American Colonies 58

(1899).{28}  For a variety of reasons, including the absence of trained

lawyers and judges, the dearth of law books, the religious and

ideological commitments of the early settlers, and the novel conditions

of the New World, the colonists turned to a variety of other sources in

addition to principles of common law.{29}



It is true that, with the development of colonial society and the

increasing sophistication of the colonial bar, English common law gained

increasing acceptance in colonial practice.  See Reinsch, supra at 7-8;

Hall, The Common Law:  An Account of Its Reception in the United States,

4 Vand. L.Rev. 791, 797 (1951).{30}  But even in the late colonial

period, Americans insisted that the whole body of the common law . . .

was not transplanted, but only so much as was applicable to the

colonists in their new relations and conditions.  Much of the common law

related to matters which were purely local, which existed under the

English political organization, or was based upon the triple relation of

king, lords and commons, or those peculiar social conditions, habits and

customs which have no counterpart in the New World.  Such portions of

the common law, not being applicable to the new conditions of the

colonists, were never recognised as part of their jurisprudence. Dale,

The Adoption of the Common Law by the American Colonies, 30 Am.L.Reg.

553, 554 (1882).{31}  The result was that the increasing influx of

common law principles by no means obliterated the indigenous systems

which had developed during the colonial era and that there existed

important differences in law in action on the two sides of the Atlantic.

Hall, supra at 797.



Understandably, even the trend toward acceptance of the common law that

had developed in the late colonial period was imperiled by the

Revolution and the ultimate break between the colonies and the old

country.  Dean Pound has observed that, [f]or a generation after the

Revolution, . . . political conditions gave rise to a general distrust

of English law. . . .  The books are full of illustrations of the

hostility toward English law simply because it was English which

prevailed at the end of the eighteenth and in the earlier years of the

nineteenth century. R. Pound, The Formative Era of American Law 7

(1938); see also C. Warren, A History of the American Bar 224-225 (1911)

(noting a "prejudice against the system of English Common Law" in the

years following the Revolution).  James Monroe went so far as to write

in 1802 that "the application of the principles of the English common

law to our constitution" should be considered "good cause for

impeachment."  Letter from James Monroe to John Breckenridge (Jan. 15,

1802) (quoted in 3 A. Beveridge, The Life of John Marshall:  Conflict

and Construction 1800-1815, p. 59 (1919)).{32}  Nor was anti-English

sentiment the only difficulty; according to Dean Pound, "[s]ocial and

geographical conditions contributed also to make the work of receiving

and reshaping the common law exceptionally difficult."  Pound, supra at

7.



The consequence of this anti-English hostility and awareness of changed

circumstances was that the independent States continued the colonists'

practice of adopting only so much of the common law as they thought

applicable to their local conditions.{33}  As Justice Story explained,

[t]he common law of England is not to be taken in all respects to be

that of America.  Our ancestors brought with them its general

principles, and claimed it as their birthright; but they brought with

them and adopted only that portion which was applicable to their

situation. Van Ness v. Pacard, 2 Pet. 137, 144 (1829).  In 1800, John

Marshall had expressed the similar view that our ancestors brought with

them the laws of England, both statute & common law as existing at the

settlement of each colony, so far as they were applicable to our

situation. Letter from John Marshall to St. George Tucker, Nov. 27,

1800, reprinted in Jay II, App. A at 1326, 1327.  Accordingly, in the

period following independence, "[l]egislatures and courts and doctrinal

writers had to test the common law at every point with respect to its

applicability to America."  Pound, supra at 20; see also Jones 103

(observing that "suitab[ility] to local institutions and conditions" was

"incomparably the most important" principle of reception in the new

states). 2



While the States had limited their reception of English common law to

principles appropriate to American conditions, the 1787 draft

Constitution contained no provision for adopting the common law at all. 

This omission stood in sharp contrast to the state constitutions then

extant, virtually all of which contained explicit provisions dealing

with common law reception.  See n. 55, infra.  Since the experience in

the States set the stage for thinking at the national level, see

generally G. Wood, Creation of the American Republic, 1776-1787, p. 467

(1969) (Wood), this failure to address the notion of common law

reception could not have been inadvertent.  Instead, the Framers chose

to recognize only particular common law concepts, such as the writ of

habeas corpus, U.S.Const., Art. I,  9, cl. 2, and the distinction

between law and equity, U.S.Const., Amdt. VII, by specific reference in

the constitutional text.  See 1 J. Goebel, Oliver Wendell Holmes Devise

History of the Supreme Court of the United States, Antecedents and

Beginnings to 1801, pp. 229-230 (1971).{34}  This approach reflected

widespread agreement that ratification would not itself entail a general

reception of the common law of England.  See Letter from John Marshall

to St. George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A at 1326

("I do not believe one man can be found" who maintains "that the common

law of England has . . . been adopted as the common law of America by

the Constitution of the United States."); Jay II at 1255 (noting that

the use of the term "laws" in Article III "could not have been meant to

accomplish a general reception of British common law").



Records of the ratification debates support Marshall's understanding

that everyone had to know that the new constitution would not draw the

common law in its train.  Antifederalists like George Mason went so far

as to object that under the proposed Constitution the people would not

be "secured even in the enjoyment of the benefit of the common law." 

Mason, Objections to This Constitution of Government, in 2 Records of

the Federal Convention of 1787, p. 637 (M. Farrand ed. 1911) (Farrand);

see also 3 Elliot's Debates 446-449 (Patrick Henry, Virginia

Convention).  In particular, the Antifederalists worried about the

failure of the proposed Constitution to provide for a reception of "the

great rights associated with due process" such as the right to a jury

trial, Jay II at 1256, and they argued that "Congress's powers to

regulate the proceedings of federal courts made the fate of these common

law procedural protections uncertain."  Id. at 1257.{35}  While

Federalists met this objection by arguing that nothing in the

Constitution necessarily excluded the fundamental common law protections

associated with due process, see, e.g., 3 Elliot's Debates 451 (George

Nicholas, Virginia Convention), they defended the decision against any

general constitutional reception of the common law on the ground that

constitutionalizing it would render it "immutable," see id. at 469-470

(Edmund Randolph, Virginia Convention), and not subject to revision by

Congress, id. at 550 (Edmund Pendleton, Virginia Convention); see also

infra at ___.



The Framers also recognized that the diverse development of the common

law in the several states made a general federal reception impossible. 

"The common law was not the same in any two of the Colonies," Madison

observed; "in some the modifications were materially and extensively

different."  Report on Resolutions, House of Delegates, Session of

1799-1800, Concerning Alien and Sedition Laws, in 6 Writings of James

Madison 373 (G. Hunt ed. 1906) (Alien and Sedition Laws).{36}  In

particular, although there is little evidence regarding the immunity

enjoyed by the various colonial governments prior to the Revolution, the

profound differences as to the source of colonial authority between

chartered colonies, royal colonies, and so on seems unlikely, wholly

apart from other differences in circumstance, to have given rise to a

uniform body of immunity law.  There was not, then, any unified "Common

Law" in America that the Federal Constitution could adopt, Jay, "Origins

of Federal Common Law:  Part I," 133 U.Pa.L.Rev. 1003, 1056 (1985) (Jay

I); Stoebuck, 10 Wm. & Mary L.Rev. at 401 ("The assumption that colonial

law was essentially the same in all colonies is wholly without

foundation"), and, in particular, probably no common principle of

sovereign immunity, cf. Madison, supra at 376.  The Framers may, as

Madison, Hamilton, and Marshall argued, have contemplated that federal

courts would respect state immunity law in diversity cases, but the

generalized principle of immunity that today's majority would graft onto

the Constitution itself may well never have developed with any common

clarity and, in any event, has not been shown to have existed.



Finally, the Framers' aversion to a general federal reception of the

common law is evident from the Federalists' response to the

Antifederalist claim that Article III granted an unduly broad

jurisdiction to the federal courts.  That response was to emphasize the

limited powers of the National Government.  See, e.g., 3 Elliot's

Debates 553 (John Marshall, Virginia Convention) ("Has the government of

the United States power to make laws on every subject? . . .  Can they

make laws affecting the mode of transferring property, or contracts, or

claims, between citizens of the same state?  Can they go beyond the

delegated powers?"); Jay II at 1260.{37}  That answer assumes, of

course, no generalized reception of English common law as federal law;

otherwise, "arising under" jurisdiction would have extended to any

subject comprehended by the general common law.



Madison made this assumption absolutely clear during the subsequent

debates over the Alien and Sedition Acts, which raised the issue of

whether the Framers intended to recognize a general federal jurisdiction

to try common law crimes.  Rejecting the idea of any federal reception,

Madison insisted that the consequence of admitting the common law as the

law of the United States, on the authority of the individual States, is

as obvious as it would be fatal.  As this law relates to every subject

of legislation, and would be paramount to the Constitutions and laws of

the States, the admission of it would overwhelm the residuary

sovereignty of the States, and by one constructive operation new model

the whole political fabric of the country. Alien and Sedition Laws 381. 

See also Goebel, Oliver Wendell Holmes Devise History of the Supreme

Court of the United States at 651-655 (discussing the lack of evidence

to support the proposition that the Framers intended a general reception

of the English common law through the Constitution); Jay II at 1254

(arguing that "[i]t would have been untenable to maintain that the body

of British common law had been adopted by the Constitution . . . "). 

Madison concluded that [i]t is . . . distressing to reflect that it ever

should have been made a question, whether the Constitution, on the whole

face of which is seen so much labor to enumerate and define the several

objects of Federal power, could intend to introduce in the lump, in an

indirect manner, and by a forced construction of a few phrases, the vast

and multifarious jurisdiction involved in the common law -- a law

filling so many ample volumes; a law overspreading the entire field of

legislation; and a law that would sap the foundation of the Constitution

as a system of limited and specified powers. Alien and Sedition Laws

382. B



Given the refusal to entertain any wholesale reception of common law,

given the failure of the new Constitution to make any provision for

adoption of common law as such, and given the protests already quoted

that no general reception had occurred, the Hans Court and the Court

today cannot reasonably argue that something like the old immunity

doctrine somehow slipped in as a tacit but enforceable background

principle.  But see ante at ___.  The evidence is even more specific,

however, that there was no pervasive understanding that sovereign

immunity had limited federal question jurisdiction. 1



As I have already noted briefly, see supra at ___, the Framers and their

contemporaries did not agree about the place of common law state

sovereign immunity even as to federal jurisdiction resting on the

Citizen-State Diversity Clauses.  Edmund Randolph argued in favor of

ratification on the ground that the immunity would not be recognized,

leaving the States subject to jurisdiction.{38}  Patrick Henry opposed

ratification on the basis of exactly the same reading.  See 3 Elliot's

Debates 543.  On the other hand, James Madison, John Marshall, and

Alexander Hamilton all appear to have believed that the common law

immunity from suit would survive the ratification of Article III, so as

to be at a State's disposal when jurisdiction would depend on diversity.

 This would have left the States free to enjoy a traditional immunity as

defendants without barring the exercise of judicial power over them if

they chose to enter the federal courts as diversity plaintiffs or to

waive their immunity as diversity defendants.  See id. at 533 (Madison: 

the Constitution "give[s] a citizen a right to be heard in the federal

courts; and if a state should condescend to be a party, this court may

take cognizance of it");{39} id. at 556 (Marshall:  "I see a difficulty

in making a state defendant, which does not prevent its being

plaintiff").  As Hamilton stated in Federalist 81, It is inherent in the

nature of sovereignty not to be amenable to the suit of an individual

without its consent.  This is the general sense and the general practice

of mankind; and the exemption, as one of the attributes of sovereignty,

is now enjoyed by the government of every state in the Union.  Unless

therefore, there is a surrender of this immunity in the plan of the

convention, it will remain with the states, and the danger intimated

must be merely ideal. The Federalist No. 81, pp. 548-549 (J. Cooke ed.

1961).  See generally Fletcher, A Historical Interpretation of the

Eleventh Amendment:  A Narrow Construction of an Affirmative Grant of

Jurisdiction Rather than a Prohibition Against Jurisdiction, 35

Stan.L.Rev. 1033, 1045-1054 (1983) (discussing the adoption of the

state-citizen diversity clause); Gibbons, 83 Colum.L.Rev. at 1902-1914. 

The majority sees in these statements, and chiefly in Hamilton's

discussion of sovereign immunity in Federalist No. 81, an unequivocal

mandate "which would preclude all federal jurisdiction over an

unconsenting State."  Ante at ___.  But there is no such mandate to be

found.



As I have already said, the immediate context of Hamilton's discussion

in Federalist No. 81 has nothing to do with federal question cases.  It

addresses a suggestion that an assignment of the public securities of

one state to the citizens of another, would enable them to prosecute

that state in the federal courts for the amount of those securities.

Federalist No. 81 at 548.  Hamilton is plainly talking about a suit

subject to a federal court's jurisdiction under the Citizen-State

Diversity Clauses of Article III.



The general statement on sovereign immunity emphasized by the majority

then follows, along with a reference back to Federalist No. 32.  Ibid. 

What Hamilton draws from that prior paper, however, is not a general

conclusion about state sovereignty but a particular point about state

contracts: A recurrence to the principles there established will satisfy

us, that there is no colour to pretend that the state governments, would

by the adoption of that plan, be divested of the privilege of paying

their own debts in their own way, free from every constraint but that

which flows from the obligations of good faith.  The contracts between a

nation and individuals are only binding on the conscience of the

sovereign, and have no pretensions to a compulsive force.  They confer

no right of action independent of the sovereign will. The Federalist No.

81 at 549.



The most that can be inferred from this is, as noted above, that, in

diversity cases applying state contract law, the immunity that a State

would have enjoyed in its own courts is carried into the federal court. 

When, therefore, the Hans Court relied in part upon Hamilton's

statement, see 134 U.S. at 20, its reliance was misplaced; Hamilton was

addressing diversity jurisdiction, whereas Hans involved federal

question jurisdiction under the Contracts Clause.  No general theory of

federal question immunity can be inferred from Hamilton's discussion of

immunity in contract suits.  But that is only the beginning of the

difficulties that accrue to the majority from reliance on Federalist No.

81.



Hamilton says that a State is "not . . . amenable to the suit of an

individual without its consent. . . .   [u]nless . . . there is a

surrender of this immunity in the plan of the convention."  The

Federalist No. 81 at 548-549 (emphasis omitted).  He immediately adds,

however, that "[t]he circumstances which are necessary to produce an

alienation of state sovereignty, were discussed in considering the

article of taxation, and need not be repeated here."  Id. at 549.  The

reference is to Federalist No. 32, also by Hamilton, which has this to

say about the alienation of state sovereignty: [A]s the plan of the

Convention aims only at a partial Union or consolidation, the State

Governments would clearly retain all the rights of sovereignty which

they before had and which were not by that act exclusively delegated to

the United States.  This exclusive delegation or rather this alienation

of State sovereignty would only exist in three cases; where the

Constitution in express terms granted an exclusive authority to the

Union; where it granted in one instance an authority to the Union and in

another prohibited the States from exercising the like authority; and

where it granted an authority to the Union, to which a similar authority

in the States would be absolutely and totally contradictory and

repugnant.  I use these terms to distinguish this last case from another

which might appear to resemble it; but which would in fact be

essentially different; I mean where the exercise of a concurrent

jurisdiction might be productive of occasional interferences in the

policy of any branch of administration, but would not imply any direct

contradiction or repugnancy in point of constitutional authority. The

Federalist No. 32 at 200 (emphasis in original).  As an instance of the

last case, in which exercising concurrent jurisdiction may produce

interferences in "policy," Hamilton gives the example of concurrent

power to tax the same subjects: It is indeed possible that a tax might

be laid on a particular article by a State which might render it

inexpedient that thus a further tax should be laid on the same article

by the Union; but it would not imply a constitutional inability to

impose a further tax.  The quantity of the imposition, the expediency or

inexpediency of an increase on either side, would be mutually questions

of prudence; but there would be involved no direct contradiction of

power.  The particular policy of the national and of the State systems

of finance might now and then not exactly coincide, and might require

reciprocal forbearances.  It is not however a mere possibility of

inconvenience in the exercise of powers, but an immediate constitutional

repugnancy, that can by implication alienate and extinguish a

preexisting right of sovereignty. Id. at 202 (emphasis in original).



The first embarrassment Hamilton's discussion creates for the majority

turns on the fact that the power to regulate commerce with Indian Tribes

has been interpreted as making "Indian relations . . . the exclusive

province of federal law."  County of Oneida v. Oneida Indian Nation of

N.Y., 470 U.S. 226, 234 (1985).{40}  We have accordingly recognized that

"[s]tate laws generally are not applicable to tribal Indians on an

Indian reservation except where Congress has expressly provided that

State laws shall apply."  McClanahan v. Arizona State Tax Comm'n, 411

U.S. 164, (1973) (internal quotation marks omitted); see also Rice v.

Olson, 324 U.S. 786, 789 (1945) ("The policy of leaving Indians free

from state jurisdiction and control is deeply rooted in the Nation's

history").{41}  We have specifically held, moreover, that the states

have no power to regulate gambling on Indian lands.  California v.

Cabazon Band of Mission Indians, 480 U.S. 202, (1987).  In sum, since

the States have no sovereignty in the regulation of commerce with the

tribes, on Hamilton's view, there is no source of sovereign immunity to

assert in a suit based on congressional regulation of that commerce.  If

Hamilton is good authority, the majority of the Court today is wrong.



Quite apart, however, from its application to this particular act of

Congress exercising the Indian Commerce power, Hamilton's sovereignty

discussion quoted above places the Court in an embarrassing dilemma. 

Hamilton posited four categories:  (a) congressional legislation on

subjects committed expressly and exclusively to Congress, (b) on

subjects over which state authority is expressly negated, (c) on

subjects over which concurrent authority would be impossible (as

"contradictory and repugnant"), and (d) on subjects over which

concurrent authority is not only possible, but its exercise by both is

limited only by considerations of policy (as when one taxing authority

is politically deterred from adding too much to the exaction the other

authority is already making).  But what of those situations involving

concurrent powers, like the power over interstate commerce, see e.g.,

Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for

Relief of Distressed Pilots, 12 How. 299 (1851) (recognizing power of

states to engage in some regulation of interstate commerce), when a

congressional statute not only binds the States but even creates an

affirmative obligation on the State as such, as in this case? 

Hamilton's discussion does not seem to cover this (quite possibly

because, as a good political polemicist, he did not wish to raise it). 

If in fact it is fair to say that Hamilton does not cover this

situation, then the Court cannot claim him as authority for the

preservation of state sovereignty and consequent immunity.  If, however,

on what I think is an implausible reading, one were to try to shoehorn

this situation into Hamilton's category (c) (on the theory that

concurrent authority is impossible after passage of the congressional

legislation), then any claim of sovereignty and consequent immunity is

gone entirely.



In sum, either the majority reads Hamilton as I do, to say nothing about

sovereignty or immunity in such a case, or it will have to read him to

say something about it that bars any state immunity claim.  That is the

dilemma of the majority's reliance on Hamilton's Federalist No. 81, with

its reference to No. 32.  Either way, he is no authority for the Court's

position.



Thus, the Court's attempt to convert isolated statements by the Framers

into answers to questions not before them is fundamentally

misguided.{42}  The Court's difficulty is far more fundamental however,

than inconsistency with a particular quotation, for the Court's position

runs afoul of the general theory of sovereignty that gave shape to the

Framers' enterprise.  An enquiry into the development of that concept

demonstrates that American political thought had so revolutionized the

concept of sovereignty itself that calling for the immunity of a State

as against the jurisdiction of the national courts would have been sheer

illogic. 2



We said in Blatchford v. Native Village of Noatak, 501 U.S. 775, 779

(1991) that "the States entered the federal system with their

sovereignty intact," but we surely did not mean that they entered that

system with the sovereignty they would have claimed if each State had

assumed independent existence in the community of nations, for even the

Articles of Confederation allowed for less than that.  See Articles of

Confederation, Art. VI,  1 ("No State without the consent of the United

States in Congress assembled, shall send any embassy to, or receive any

embassy from, or enter into any conference, agreement, alliance, or

treaty, with any king, prince or state. . . . ").  While there is no

need here to calculate exactly how close the American States came to

sovereignty in the classic sense prior to ratification of the

Constitution, it is clear that the act of ratification affected their

sovereignty in a way different from any previous political event in

America or anywhere else.  For the adoption of the Constitution made

them members of a novel federal system that sought to balance the

States' exercise of some sovereign prerogatives delegated from their own

people with the principle of a limited but centralizing federal

supremacy.



As a matter of political theory, this federal arrangement of dual

delegated sovereign powers truly was a more revolutionary turn than the

late war had been.  See, e.g., U.S. Term Limits, Inc. v. Thornton, 514

U.S. ___, ___ (1995) (KENNEDY, J., concurring) ("Federalism was our

Nation's own discovery.  The Framers split the atom of

sovereignty").{43}  Before the new federal scheme appeared, 18th-century

political theorists had assumed that there must reside somewhere in

every political unit a single, undivided, final power, higher in legal

authority than any other power, subject to no law, a law unto itself. B.

Bailyn, The Ideological Origins of the American Revolution 198 (1967);

see also Wood 345.{44}  The American development of divided sovereign

powers, which "shatter[ed] . . . the categories of government that had

dominated Western thinking for centuries," id. at 385, was made possible

only by a recognition that the ultimate sovereignty rests in the people

themselves.  See id. at 530 (noting that because "none of these

arguments about `joint jurisdictions' and `coequal sovereignties'

convincingly refuted the Antifederalist doctrine of a supreme and

indivisible sovereignty," the Federalists could succeed only by

emphasizing that the supreme power "`resides in the PEOPLE, as the

fountain of government'" (citing 1 Pennsylvania and the Federal

Constitution, 1787-1788, p. 302 (J. McMaster & F. Stone, eds. 1888)

(quoting James Wilson))).{45}  The people possessing this plenary bundle

of specific powers were free to parcel them out to different governments

and different branches of the same government as they saw fit.  See

McDonald, Novus Ordo Seclorum at 278.  As James Wilson emphasized, the

location of ultimate sovereignty in the People meant that [t]hey can

distribute one portion of power to the more contracted circle called

State governments; they can also furnish another proportion to the

government of the United States. 1 Pennsylvania and the Federal

Constitution, 1787-1788, supra at 302.{46}



Under such a scheme, Alexander Hamilton explained, [i]t does not follow

. . . that each of the portions of powers delegated to [the national or

state government] is not sovereign with regard to its proper objects.

Hamilton, Opinion on the Constitutionality of an Act to Establish a

Bank, in 8 Papers of Alexander Hamilton 98 (Syrett ed. 1965) (emphasis

in original).{47}  A necessary consequence of this view was that "the

Government of the United States has sovereign power as to its declared

purposes & trusts."  Ibid.  Justice Iredell was to make the same

observation in his Chisholm dissent, commenting that [t]he United States

are sovereign as to all the powers of government actually surrendered: 

each State in the Union is sovereign, as to all the powers reserved. 2

Dall. at 434.  And to the same point was Chief Justice Marshall's

description of the National and State Governments as "each sovereign,

with respect to the objects committed to it, and neither sovereign with

respect to the objects committed to the other."  McCulloch v. Maryland,

4 Wheat. 316, 410 (1819).



Given this metamorphosis of the idea of sovereignty in the years leading

up to 1789, the question whether the old immunity doctrine might have

been received as something suitable for the new world of federal

question jurisdiction is a crucial one.{48}  The answer is that

sovereign immunity as it would have been known to the Framers before

ratification thereafter became inapplicable as a matter of logic in a

federal suit raising a federal question.  The old doctrine, after all,

barred the involuntary subjection of a sovereign to the system of

justice and law of which it was itself the font, since to do otherwise

would have struck the common law mind from the Middle Ages onward as

both impractical and absurd.  See, e.g., Kawananakoa v. Polyblank, 205

U.S. 349, 353 (1907) (Holmes, J.) ("A sovereign is exempt from suit . .

. on the logical and practical ground that there can be no legal right

as against the authority that makes the law on which the right

depends").{49}  But the ratification demonstrated that state governments

were subject to a superior regime of law in a judicial system

established, not by the State, but by the people through a specific

delegation of their sovereign power to a National Government that was

paramount within its delegated sphere.  When individuals sued States to

enforce federal rights, the Government that corresponded to the

"sovereign" in the traditional common law sense was not the State but

the National Government, and any state immunity from the jurisdiction of

the Nation's courts would have required a grant from the true sovereign,

the people, in their Constitution, or from the Congress that the

Constitution had empowered.  We made a similar point in Nevada v. Hall,

440 U.S. at  416, where we considered a suit against a State in another

State's courts: This [traditional] explanation [of sovereign immunity]

adequately supports the conclusion that no sovereign may be sued in its

own courts without its consent, but it affords no support for a claim of

immunity in another sovereign's courts.  Such a claim necessarily

implicates the power and authority of a second sovereign; its source

must be found either in an agreement, express or implied, between the

two sovereigns, or in the voluntary decision of the second to respect

the dignity of the first as a matter of comity. Cf. United States v.

Texas, 143 U.S. 621, 646 (1892) (recognizing that a suit by the National

Government against a State "does no violence to the inherent nature of

sovereignty").  Subjecting States to federal jurisdiction in federal

question cases brought by individuals thus reflected nothing more than

Professor Amar's apt summary that "[w]here governments are acting within

the bounds of their delegated `sovereign' power, they may partake of

sovereign immunity; where not, not."  Amar, 96 Yale L.J. at 1490-1491 n.

261.



State immunity to federal question jurisdiction would, moreover, have

run up against the common understanding of the practical necessity for

the new federal relationship.  According to Madison, the "multiplicity,"

"mutability," and "injustice" of then-extant state laws were prime

factors requiring the formation of a new government. 1 Farrand 318-319

(remarks of J. Madison).{50}  These factors, Madison wrote to Jefferson,

contributed more to that uneasiness which produced the Convention, and

prepared the Public mind for a general reform, than those which accrued

to our national character and interest from the inadequacy of the

Confederation to its immediate objects. 5 Writings of James Madison 27

(G. Hunt ed. 1904).  These concerns ultimately found concrete expression

in a number of specific limitations on state power, including provisions

barring the States from enacting bills of attainder or ex post facto

laws, coining money or emitting bills of credit, denying the privileges

and immunities of out-of-staters, or impairing the obligation of

contracts.  But the proposed Constitution also dealt with the old

problems affirmatively by granting the powers to Congress enumerated in

Article I,  8, and by providing through the Supremacy Clause that

Congress could preempt State action in areas of concurrent state and

federal authority.



Given the Framers' general concern with curbing abuses by state

governments, it would be amazing if the scheme of delegated powers

embodied in the Constitution had left the National Government powerless

to render the States judicially accountable for violations of federal

rights.  And of course the Framers did not understand the scheme to

leave the government powerless.  In The Federalist No. 80 at 535,

Hamilton observed that [n]o man of sense will believe that such

prohibitions [running against the states] would be scrupulously

regarded, without some effectual power in the government to restrain or

correct the infractions of them, and that "an authority in the federal

courts, to overrule such as might be in manifest contravention of the

articles of union" was the Convention's preferred remedy.  By speaking

in the plural of an authority in the federal "courts," Hamilton made it

clear that he envisioned more than this Court's exercise of appellate

jurisdiction to review federal questions decided by state courts.  Nor

is it plausible that he was thinking merely of suits brought against

States by the National Government itself, which The Federalist's authors

did not describe in the paternalistic terms that would pass without an

eyebrow raised today.  Hamilton's power of the Government to restrain

violations of citizens' rights was a power to be exercised by the

federal courts at the citizens' behest.  See also Marshall, 102 Harv.

L.Rev. at 1367-1371 (discussing the Framers' concern with preserving as

much state accountability as possible even in the course of enacting the

Eleventh Amendment).



This sketch of the logic and objectives of the new federal order is

confirmed by what we have previously seen of the pre-ratification debate

on state sovereign immunity, which in turn becomes entirely intelligible

both in what it addressed and what it ignored.  It is understandable

that reasonable minds differed on the applicability of the immunity

doctrine in suits that made it to federal court only under the original

Diversity Clauses, for their features were not wholly novel.  While they

were, of course, in the courts of the new and, for some purposes,

paramount National Government, the law that they implicated was largely

the old common law (and in any case was not federal law).  It was not

foolish, therefore, to ask whether the old law brought the old defenses

with it.  But it is equally understandable that questions seem not to

have been raised about state sovereign immunity in federal question

cases.  The very idea of a federal question depended on the rejection of

the simple concept of sovereignty from which the immunity doctrine had

developed; under the English common law, the question of immunity in a

system of layered sovereignty simply could not have arisen.  Cf., e.g.,

Jay II at 1282-1284; Du Ponceau, A Dissertation on the Nature and Extent

of Jurisdiction of Courts of the United States at 6-7.{51}  The Framers'

principal objectives in rejecting English theories of unitary

sovereignty, moreover, would have been impeded if a new concept of

sovereign immunity had taken its place in federal question cases, and

would have been substantially thwarted if that new immunity had been

held to be untouchable by any congressional effort to abrogate it.{52}



Today's majority discounts this concern.  Without citing a single source

to the contrary, the Court dismisses the historical evidence regarding

the Framers' vision of the relationship between national and state

sovereignty, and reassures us that "the Nation survived for nearly two

centuries without the question of the existence of [the abrogation]

power ever being presented to this Court."  Ante at ___.{53}  But we are

concerned here not with the survival of the Nation but the opportunity

of its citizens to enforce federal rights in a way that Congress

provides.  The absence of any general federal question statute for

nearly a century following ratification of Article III (with a brief

exception in 1800) hardly counts against the importance of that

jurisdiction either in the Framers' conception or in current reality;

likewise, the fact that Congress has not often seen fit to use its power

of abrogation (outside the Fourteenth Amendment context at least) does

not compel a conclusion that the power is not important to the federal

scheme.  In the end, is it plausible to contend that the plan of the

convention was meant to leave the National Government without any way to

render individuals capable of enforcing their federal rights directly

against an intransigent state? C



The considerations expressed so far, based on text, Chisholm, caution in

common law reception, and sovereignty theory, have pointed both to the

mistakes inherent in Hans and, even more strongly, to the error of

today's holding.  Although, for reasons of stare decisis, I would not

today disturb the century-old precedent, I surely would not extend its

error by placing the common law immunity it mistakenly recognized beyond

the power of Congress to abrogate.  In doing just that, however, today's

decision declaring state sovereign immunity itself immune from

abrogation in federal question cases is open to a further set of

objections peculiar to itself.  For today's decision stands condemned

alike by the Framers' abhorrence of any notion that such common law

rules as might be received into the new legal systems would be beyond

the legislative power to alter or repeal, and by its resonance with this

Court's previous essays in constitutionalizing common law rules at the

expense of legislative authority. 1



I have already pointed out how the views of the Framers reflected the

caution of state constitutionalists and legislators over reception of

common law rules, a caution that the Framers exalted to the point of

vigorous resistance to any idea that English common law rules might be

imported wholesale through the new Constitution.  The state politicians

also took pains to guarantee that once a common law rule had been

received, it would always be subject to legislative alteration, and

again the state experience was reflected in the Framers' thought. 

Indeed, the Framers' very insistence that no common law doctrine would

be received by virtue of ratification was focused in their fear that

elements of the common law might thereby have been placed beyond the

power of Congress to alter by legislation.



The imperative of legislative control grew directly out of the Framers'

revolutionary idea of popular sovereignty.  According to one historian,

[s]hared ideas about the sovereignty of the people and the

accountability of government to the people resulted at an early date in

a new understanding of the role of legislation in the legal system. . .

.  Whereas a constitution had been seen in the colonial period as a body

of vague and unidentifiable precedents and principles of common law

origin that imposed ambiguous restrictions on the power of men to make

or change law, after independence it came to be seen as a written

charter by which the people delegated powers to various institutions of

government and imposed limitations on the exercise of those powers. . .

.  [T]he power to modify or even entirely to repeal the common law . . .

now fell explicitly within the jurisdiction of the legislature. W.

Nelson, Americanization of the Common Law 90 (1975).{54}



Virtually every state reception provision, be it constitutional or

statutory, explicitly provided that the common law was subject to

alteration by statute.  See Wood 299-300; Jones 99.  The New Jersey

Constitution of 1776, for instance, provided that the common law of

England, as well as so much of the statute law, as have been heretofore

practised in this Colony, shall still remain in force, until they shall

be altered by a future law. . . . N.J.Const., Art. XXII (1776), in 6 W.

Swindler, Sources and Documents of United States Constitutions 452

(1976).{55}  Just as the early state governments did not leave reception

of the common law to implication, then, neither did they receive it as

law immune to legislative alteration.{56}



I have already indicated that the Framers did not forget the state law

examples.  When Antifederalists objected that the 1787 draft failed to

make an explicit adoption of certain common law protections of the

individual, part of the Federalists' answer was that a general

constitutional reception of the common law would bar congressional

revision.  Madison was particularly concerned with the necessity for

legislative control, noting in a letter to George Washington that "every

State has made great inroads & with great propriety on this monarchical

code."  Letter from James Madison to George Washington (Oct. 18, 1787),

reprinted in 3 Farrand 130, App. A (emphasis in original).{57}  Madison

went on to insist that "[t]he Common law is nothing more than the

unwritten law, and is left by all the Constitutions equally liable to

legislative alterations."  Ibid.{58}  Indeed, Madison anticipated, and

rejected, the Court's approach today when he wrote that if the common

law be admitted as . . . of constitutional obligation, it would confer

on the judicial department a discretion little short of a legislative

power . . . [which] would be permanent and irremediable by the

Legislature. Report on the Virginia Resolutions Concerning the Alien and

Sedition Acts, in 6 Writings of James Madison 380.  "A discretion of

this sort," he insisted, "has always been lamented as incongruous and

dangerous. . . ."  Id. at 381.{59} 2



History confirms the wisdom of Madison's abhorrence of

constitutionalizing common law rules to place them beyond the reach of

congressional amendment.  The Framers feared judicial power over

substantive policy and the ossification of law that would result from

transforming common law into constitutional law, and their fears have

been borne out every time the Court has ignored Madison's counsel on

subjects that we generally group under economic and social policy.  It

is, in fact, remarkable that, as we near the end of this century, the

Court should choose to open a new constitutional chapter in confining

legislative judgments on these matters by resort to textually

unwarranted common law rules, for it was just this practice in the

century's early decades that brought this Court to the nadir of

competence that we identify with Lochner v. New York, 198 U.S. 45

(1905).{60}



It was the defining characteristic of the Lochner era, and its

characteristic vice, that the Court treated the common law background

(in those days, common law property rights and contractual autonomy) as

paramount, while regarding congressional legislation to abrogate the

common law on these economic matters as constitutionally suspect.  See,

e.g., Adkins v. Childrens Hospital of D.C., 261 U.S. 525, 557 (1923)

(finding abrogation of common law freedom to contract for any wage an

unconstitutional "compulsory exaction"); see generally Sunstein,

Lochner's Legacy, 87 Colum. L.Rev. 873 (1987).  And yet the superseding

lesson that seemed clear after West Coast Hotel Co. v. Parrish, 300 U.S.

379 (1937), that action within the legislative power is not subject to

greater scrutiny merely because it trenches upon the case law's ordering

of economic and social relationships, seems to have been lost on the

Court.



The majority today, indeed, seems to be going Lochner one better.  When

the Court has previously constrained the express Article I powers by

resort to common law or background principles, it has done so at least

in an ostensible effort to give content to some other written provision

of the Constitution, like the Due Process Clause, the very object of

which is to limit the exercise of governmental power.  See, e.g., Adair

v. United States, 208 U.S. 161 (1908).  Some textual argument at least,

could be made that the Court was doing no more than defining one

provision that happened to be at odds with another.  Today, however, the

Court is not struggling to fulfill a responsibility to reconcile two

arguably conflicting and Delphic constitutional provisions, nor is it

struggling with any Delphic text at all.  For even the Court concedes

that the Constitution's grant to Congress of plenary power over

relations with Indian tribes at the expense of any state claim to the

contrary is unmistakably clear, and this case does not even arguably

implicate a textual trump to the grant of federal question jurisdiction.



I know of only one other occasion on which the Court has spoken of

extending its reach so far as to declare that the plain text of the

Constitution is subordinate to judicially discoverable principles

untethered to any written provision.  Justice Chase once took such a

position almost 200 years ago: There are certain vital principles in our

free Republican governments which will determine and overrule an

apparent and flagrant abuse of legislative power.  . . .  An act of the

Legislature (for I cannot call it a law) contrary to the great first

principles of the social compact, cannot be considered a rightful

exercise of legislative authority. Calder v. Bull, 3 Dall. 386, 388

(1798) (emphasis deleted).



This position was no less in conflict with American constitutionalism in

1798 than it is today, being inconsistent with the Framers' view of the

Constitution as fundamental law.   Justice Iredell understood this, and

dissented (again) in an opinion that still answers the position that

"vital" or "background" principles, without more, may be used to confine

a clear constitutional provision: [S]ome speculative jurists have held

that a legislative act against natural justice must, in itself, be void;

but I cannot think that, under such a government, any Court of Justice

would possess a power to declare it so. . . .



. . .  [I]t has been the policy of the American states, . . . and of the

people of the United States . . . to define with precision the objects

of the legislative power, and to restrain its exercise within marked and

settled boundaries.  If any act of Congress, or of the Legislature of a

state violates those constitutional provisions, it is unquestionably

void. . . .  If, on the other hand, the Legislature of the Union, or the

Legislature of any member of the Union, shall pass a law within the

general scope of their constitutional power, the Court cannot pronounce

it to be void merely because it is, in their judgment, contrary to the

principles of natural justice.  The ideas of natural justice are

regulated by no fixed standard:  the ablest and the purest men have

differed upon the subject, and all that the Court could properly say in

such an event would be that the Legislature (possessed of an equal right

of opinion) had passed an act which, in the opinion of the judges, was

inconsistent with the abstract principles of natural justice. Id. at

398-399 (emphasis deleted) (opinion dissenting in part).  Later

jurisprudence vindicated Justice Iredell's view, and the idea that

"first principles" or concepts of "natural justice" might take

precedence over the Constitution or other positive law "all but

disappeared in American discourse."  J. Ely, Democracy and Distrust 52

(1980).  It should take more than references to "background

principle[s]," ante at ___, and "implicit limitation[s]," Welch, 483

U.S. at 496 (SCALIA, J., concurring in part and concurring in judgment),

to revive the judicial power to overcome clear text unopposed to any

other provision, when that clear text is in harmony with an almost

equally clear intent on the part of the Framers and the

constitutionalists of their generation. IV



The Court's holding that the States' Hans immunity may not be abrogated

by Congress leads to the final question in this case, whether federal

question jurisdiction exists to order prospective relief enforcing IGRA

against a state officer, respondent Chiles, who is said to be authorized

to take the action required by the federal law.  Just as with the issue

about authority to order the State as such, this question is entirely

jurisdictional, and we need not consider here whether petitioner

Seminole Tribe would have a meritorious argument for relief, or how much

practical relief the requested order (to bargain in good faith) would

actually provide to the Tribe.  Nor, of course, does the issue turn in

any way on one's views about the scope of the Eleventh Amendment or Hans

and its doctrine, for we ask whether the state officer is subject to

jurisdiction only on the assumption that action directly against the

State is barred.  The answer to this question is an easy yes, the

officer is subject to suit under the rule in Ex parte Young, 209 U.S.

123 (1908), and the case could, and should, readily be decided on this

point alone. A



In Ex parte Young, this Court held that a federal court has jurisdiction

in a suit against a state officer to enjoin official actions violating

federal law, even though the State itself may be immune.  Under Young, a

federal court, consistent with the Eleventh Amendment, may enjoin state

officials to conform their future conduct to the requirements of federal

law. Quern v. Jordan, 440 U.S. 332, 337 (1979); see also Milliken v.

Bradley, 433 U.S. 267, 289 (1977).



The fact, without more, that such suits may have a significant impact on

state governments does not count under Young.  Milliken, for example,

was a suit, under the authority of Young, brought against Michigan's

Governor, Attorney General, Board of Education, Superintendent of Public

Instruction, and Treasurer, which resulted in an order obligating the

State of Michigan to pay money from its treasury to fund an education

plan.  The relief requested (and obtained) by the plaintiffs effectively

ran against the State:  state moneys were to be removed from the state

treasury, and they were to be spent to fund a remedial education program

that it would be the State's obligation to implement.  To take another

example, Quern v. Jordan involved a court order requiring state

officials to notify welfare beneficiaries of the availability of past

benefits.  Once again, the defendants were state officials, but it was

the obligation of the State that was really at issue:  the notices would

be sent from the state welfare agency, to be returned to the state

agency, and the state agency would pay for the notices and any ensuing

awards of benefits.  Indeed, in the years since Young was decided, the

Court has recognized only one limitation on the scope of its doctrine: 

under Edelman v. Jordan, 415 U.S. 651 (1974), Young permits prospective

relief only, and may not be applied to authorize suits for retrospective

monetary relief.



It should be no cause for surprise that Young itself appeared when it

did in the national law.  It followed as a matter of course after the

Hans Court's broad recognition of immunity in federal question cases,

simply because [r]emedies designed to end a continuing violation of

federal law are necessary to vindicate the federal interest in assuring

the supremacy of that law. Green v. Mansour, 474 U.S. 64, 68 (1985). 

Young provided, as it does today, a sensible way to reconcile the

Court's expansive view of immunity expressed in Hans with the principles

embodied in the Supremacy Clause and Article III.



If Young may be seen as merely the natural consequence of Hans, it is

equally unsurprising as an event in the longer history of sovereign

immunity doctrine, for the rule we speak of under the name of Young is

so far inherent in the jurisdictional limitation imposed by sovereign

immunity as to have been recognized since the Middle Ages.  For that

long, it has been settled doctrine that suit against an officer of the

Crown permitted relief against the government despite the Crown's

immunity from suit in its own courts and the maxim that the king could

do no wrong.  See Jaffe, 77 Harv.L.Rev. at 3, 18-19; Ehrlich, No. XII: 

Proceedings Against the Crown (1216-1377) pp. 28-29, in 6 Oxford Studies

in Social and Legal History (P. Vinogradoff ed. 1921).  An early

example, from "time immemorial" of a claim "affecting the Crown [that]

could be pursued in the regular courts [without consent since it] did

not take the form of a suit against the Crown," Jaffe, supra at 1, was

recognized by the Statute of Westminster I, 1275, which established a

writ of disseisin against a King's officers.  When a King's officer

disseised any person in the King's name, the wrongfully deprived party

could seek the draconian writ of attaint against the officer, by which

he would recover his land.  77 Harv.L.Rev. at 9.  Following this example

forward, we may see how the writ of attaint was ultimately overtaken by

the more moderate common law writs of certiorari and mandamus,

"operat[ing] directly on the government; [and commanding] an officer not

as an individual but as a functionary."  Id. at 16.  Thus, the Court of

King's Bench made it clear in 1701 that wherever any new jurisdiction is

erected, be it by private or public act of parliament, they are subject

to the inspections of this Court by writ of error, or by certiorari and

mandamus. The Case of Cardiffe Bridge, 1 Salk. 146, 91 Eng.Rep. 135

(K.B.). B



This history teaches that it was only a matter of course that, once the

National Constitution had provided the opportunity for some recognition

of state sovereign immunity, the necessity revealed through six

centuries or more of history would show up in suits against state

officers, just as Hans would later open the door to Ex parte Young

itself.  Once, then, the Eleventh Amendment was understood to forbid

suit against a State eo nomine, the question arose "which suits against

officers will be allowed and which will not be."  Jaffe, 77 Harv.L.Rev.

at 20. It early became clear that a suit against an officer was not

forbidden simply because it raised a question as to the legality of his

action as an agent of the government or because it required him, as in

mandamus, to perform an official duty.  These as we know had been well

established before the eleventh amendment as not necessarily requiring

consent.  To be sure, the renewed emphasis on immunity given by the

eleventh amendment might conceivably have been taken so to extend the

doctrine as to exclude suits against state officers even in cases where

the English tradition would have allowed them.  There was a running

battle as to where the line would be drawn.  The amendment was appealed

to as an argument for generous immunity.  But there was the vastly

powerful counterpressure for the enforcement of constitutional limits on

the states.  The upshot . . . was to confine the amendment's prohibition

more or less to the occasion which gave it birth, to-wit, the

enforcement of contracts and to most (though not all) suits involving

the title and disposition of a state's real and personal property. Id.

at 20-21.  The earliest cases, United States v. Peters, 5 Cranch 115

(1809), and Osborn v. Bank of United States, 9 Wheat. 738 (1824),

embrace the English practice of permitting suits against officers, see

Orth, Judicial Power of the United States at 34-35, 40-41, 122, by

focusing almost exclusively on whether the State had been named as a

defendant.  Governor of Georgia v. Madrazo, 1 Pet. 110, 123-124 (1828),

shifted this analysis somewhat, finding that a governor could not be

sued because he was sued "not by his name, but by his title," which was

thought the functional equivalent of suing the State itself.  Madrazo

did not, however, erase the fundamental principle of Osborn that

sovereign immunity would not bar a suit against a state officer.  See,

e.g., Davis v. Gray, 16 Wall. 203 (1873) (applying Osborn by enjoining

the Governor of Texas to interfere with the possession of land granted

by the State); United States v. Lee, 106 U.S. 196 (1882) (applying

Osborn in context of federal sovereign immunity).



This simple rule for recognizing sovereign immunity without gutting

substantial rights was temporarily muddled in Louisiana v. Jumel, 107

U.S. 711 (1883), where the Court, although it "did not clearly say why,"

refused to hear a suit that would have required a state treasurer to

levy taxes to pay interest on a bond.  Currie, Sovereign Immunity and

Suits Against Government Officers, 1984 S.Ct. Rev. 149, 152.  (One

recalls the circumstances of Hans itself, see supra at 20-26.)  The

Court, however, again applied Osborn in the Virginia Coupon Cases, 114

U.S. 269 (1885) (permitting injunctions, restitution, and damages

against state officers who seized property to collect taxes already paid

with interest coupons the State had agreed to accept).  In re Ayers, 123

U.S. 443, 502 (1887), sought to rationalize the competing strands of

doctrine on the ground that an action may be sustained only in those

instances where the act complained of, considered apart from the

official authority alleged as its justification, and as the personal act

of the individual defendant, constituted a violation of right for which

the plaintiff was entitled to a remedy at law or in equity against the

wrongdoer in his individual character.



Ex parte Young restored the old simplicity by complementing In re Ayers

with the principle that state officers never have authority to violate

the Constitution or federal law, so that any illegal action is stripped

of state character and rendered an illegal individual act.  Suits

against these officials are consequently barred by neither the Eleventh

Amendment nor Hans immunity.  The officer's action is simply an illegal

act upon the part of a state official in attempting by the use of the

name of the State to enforce a legislative enactment which is void

because unconstitutional. . . .  The State has no power to impart to him

any immunity from responsibility to the supreme authority of the United

States. Ex parte Young, 209 U.S. at



The decision in Ex parte Young, and the historic doctrine it embodies,

thus play a foundational role in American constitutionalism, and while

the doctrine is sometimes called a "fiction," the long history of its

felt necessity shows it to be something much more estimable, as we may

see by considering the facts of the case. Young was really and truly

about to damage the interest of plaintiffs.  Whether what he was about

to do amounted to a legal injury depended on the authority of his

employer, the state.  If the state could constitutionally authorize the

act, then the loss suffered by plaintiffs was not a wrong for which the

law provided a remedy. . . .  If the state could not constitutionally

authorize the act then, Young was not acting by its authority. Orth,

Judicial Power of the United States at 133.  The doctrine we call Ex

parte Young is nothing short of "indispensable to the establishment of

constitutional government and the rule of law."  C. Wright, Law of

Federal Courts 292 (4th ed. 1983).  See also E. Chemerinsky, Federal

Jurisdiction 393 (2d ed. 1994).



A rule of such lineage, engendered by such necessity, should not be

easily displaced, if indeed it is displaceable at all, for it marks the

frontier of the enforceability of federal law against sometimes

competing state policies.  We have, in fact, never before inferred a

congressional intent to eliminate this time-honored practice of

enforcing federal law.  That, of course, does not mean that the intent

may never be inferred, and where, as here, the underlying right is one

of statutory, rather than constitutional, dimension, I do not in theory

reject the Court's assumption that Congress may bar enforcement by suit

even against a state official.  But because, in practice, in the real

world of congressional legislation, such an intent would be exceedingly

odd, it would be equally odd for this Court to recognize an intent to

block the customary application of Ex parte Young without applying the

rule recognized in our previous cases, which have insisted on a clear

statement before assuming a congressional purpose to "affec[t] the

federal balance,"  United States v. Bass, 404 U.S. 336, 349 (1971).  See

also Will v. Michigan Dept. of State Police, 491 U.S. 58, 65 (1989)

("[I]f Congress intends to alter the `usual constitutional balance

between the States and the Federal Government,' it must make its

intention to do so `unmistakably clear in the language of the statute'")

(quoting Atascadero State Hospital v. Scanlon, 473 U.S. at 242); Gregory

v. Ashcroft, 501 U.S. 452, (1991).  Our habitual caution makes sense for

just the reason we mentioned in Dellmuth v. Muth, 491 U.S. 223, (1989): 

it is difficult to believe that . . . Congress, taking careful stock of

the state of Eleventh Amendment law, decided it would drop coy hints but

stop short of making its intention manifest. C



There is no question that, by its own terms, Young's indispensable rule

authorizes the exercise of federal jurisdiction over respondent Chiles. 

Since this case does not, of course, involve retrospective relief,

Edelman's limit is irrelevant, and there is no other jurisdictional

limitation.  Obviously, for jurisdictional purposes, it makes no

difference in principle whether the injunction orders an official not to

act, as in Young, or requires the official to take some positive step,

as in Milliken or Quern.  Nothing, then, in this case renders Young

unsuitable as a jurisdictional basis for determining on the merits

whether the petitioners are entitled to an order against a state

official under general equitable doctrine.  The Court does not say

otherwise, and yet it refuses to apply Young.  There is no adequate

reason for its refusal.



No clear statement of intent to displace the doctrine of Ex parte Young

occurs in IGRA, and the Court is instead constrained to rest its effort

to skirt Young on a series of suggestions thought to be apparent in

Congress's provision of "intricate procedures" for enforcing a State's

obligation under the Act.  The procedures are said to implicate a rule

against judicial creativity in devising supplementary procedures; it is

said that applying Young would nullify the statutory procedures; and

finally, the statutory provisions are said simply to reveal a

congressional intent to preclude the application of Young. 1



The Court cites Schweiker v. Chilicky, 487 U.S. 412, 423 (1988), in

support of refraining from what it seems to think would be judicial

creativity in recognizing the applicability of Young.  The Court quotes

from Chilicky for the general proposition that when Congress has

provided what it considers adequate remedial mechanisms for violations

of federal law, this Court should not "creat[e]" additional remedies. 

Ante at ___.  The Court reasons that Congress's provision in IGRA of

"intricate procedures" shows that it considers its remedial provisions

to be adequate, with the implication that courts as a matter of prudence

should provide no "additional" remedy under Ex parte Young.  Ante at

___.



Chilicky's remoteness from the point of this case is, however, apparent

from its facts.  In Chilicky, Congress had addressed the problem of

erroneous denials of certain government benefits by creating a scheme of

appeals and awards that would make a successful claimant whole for all

benefits wrongly denied.  The question was whether this Court should

create a further remedy on the model of Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388 (1971), for such harms as emotional

distress, when the erroneous denial of benefits had involved a violation

of procedural due process.  The issue, then, was whether to create a

supplemental remedy, backward-looking on the Bivens model, running

against a federal official in his personal capacity, and requiring an

affirmative justification (as Bivens does).  See Bivens, supra; FDIC v.

Meyer, 510 U.S. ___, ___ (1994).



The Bivens issue in Chilicky (and in Meyer) is different from the Young

issue here in every significant respect.  Young is not an example of a

novel rule that a proponent has a burden to justify affirmatively on

policy grounds in every context in which it might arguably be

recognized; it is a general principle of federal equity jurisdiction

that has been recognized throughout our history and for centuries before

our own history began.  Young does not provide retrospective monetary

relief, but allows prospective enforcement of federal law that is

entitled to prevail under the Supremacy Clause.  It requires not money

payments from a government employee's personal pocket, but lawful

conduct by a public employee acting in his official capacity.  Young

would not function here to provide a merely supplementary regime of

compensation to deter illegal action, but the sole jurisdictional basis

for an Article III court's enforcement of a clear federal statutory

obligation, without which a congressional act would be rendered a

nullity in a federal court.  One cannot intelligibly generalize from

Chilicky's standards for imposing the burden to justify a supplementary

scheme of tort law, to the displacement of Young's traditional and

indispensable jurisdictional basis for ensuring official compliance with

federal law when a State itself is immune from suit. 2



Next, the Court suggests that it may be justified in displacing Young

because Young would allow litigants to ignore the "intricate procedures"

of IGRA in favor of a menu of streamlined equity rules from which any

litigant could order as he saw fit.  But there is no basis in law for

this suggestion, and the strongest authority to reject it.  Young did

not establish a new cause of action, and it does not impose any

particular procedural regime in the suits it permits.  It stands,

instead, for a jurisdictional rule by which paramount federal law may be

enforced in a federal court by substituting a non-immune party (the

state officer) for an immune one (the State itself).  Young does no

more, and furnishes no authority for the Court's assumption that it

somehow preempts procedural rules devised by Congress for particular

kinds of cases that may depend on Young for federal jurisdiction.{61}



If, indeed, the Court were correct in assuming that Congress may not

regulate the procedure of a suit jurisdictionally dependent on Young,

the consequences would be revolutionary, for example, in habeas law.  It

is well established that, when a habeas corpus petitioner sues a state

official alleging detention in violation of federal law and seeking the

prospective remedy of release from custody, it is the doctrine

identified in Ex parte Young that allows the petitioner to evade the

jurisdictional bar of the Eleventh Amendment (or, more properly, the

Hans doctrine).  See Young, 209 U.S. at  Larson v. Domestic and Foreign

Commerce Corp., 337 U.S. 682, 689-690 (1949).{62}  And yet Congress has

imposed a number of restrictions upon the habeas remedy, see, e.g., 28

U.S.C.  2254(b) (requiring exhaustion of state remedies prior to

bringing a federal habeas petition), and this Court has articulated

several more, see, e.g., McCleskey v. Zant, 499 U.S. 467 (1991) (abuse

of the writ); Teague v. Lane, 489 U.S. 288 (1989) (limiting

applicability of "new rules" on habeas); Brecht v. Abrahamson, 507 U.S.

619 (1993) (applying a more deferential harmless error standard on

habeas review).  By suggesting that Ex parte Young provides a

free-standing remedy not subject to the restrictions otherwise imposed

on federal remedial schemes (such as habeas corpus), the Court suggests

that a state prisoner may circumvent these restrictions by ostensibly

bringing his suit under Young, rather than 28 U.S.C.  2254.  The Court's

view implies similar consequences under any number of similarly

structured federal statutory schemes.{63}



This, of course, cannot be the law, and the plausible rationale for

rejecting the Court's contrary assumption is that Congress has just as

much authority to regulate suits when jurisdiction depends on Young as

it has to regulate when Young is out of the jurisdictional picture.  If

Young does not preclude Congress from requiring state exhaustion in

habeas cases (and it clearly does not), then Young does not bar the

application of IGRA's procedures when effective relief is sought by

suing a state officer. 3



The Court's third strand of reasoning for displacing Ex parte Young is a

supposed inference that Congress so intended.  Since the Court rests

this inference in large part on its erroneous assumption that the

statute's procedural limitations would not be applied in a suit against

an officer for which Young provided the jurisdictional basis, the error

of that assumption is enough to show the unsoundness of any inference

that Congress meant to exclude Young's application.  But there are

further reasons pointing to the utter implausibility of the Court's

reading of the congressional mind.



IGRA's jurisdictional provision reads as though it had been drafted with

the specific intent to apply to officer liability under Young.  It

provides that [t]he United States district courts shall have

jurisdiction over . . . any cause of action . . . arising from the

failure of a State to enter into negotiations . . . or to conduct such

negotiations in good faith. (Emphasis added.)  This language does not

limit the possible defendants to States and is quite literally

consistent with the possibility that a tribe could sue an appropriate

state official for a State's failure to negotiate.{64}  The door is so

obviously just as open to jurisdiction over an officer under Young as to

jurisdiction over a State directly that it is difficult to see why the

statute would have been drafted as it was unless it was done in

anticipation that Young might well be the jurisdictional basis for

enforcement action.



But even if the jurisdictional provision had spoken narrowly of an

action against the State itself (as it subsequently speaks in terms of

the State's obligation), that would be no indication that Congress had

rejected the application of Young.  An order requiring a "State" to

comply with federal law can, of course, take the form of an order

directed to the State in its sovereign capacity.  But as Ex parte Young

and innumerable other cases show, there is nothing incongruous about a

duty imposed on a "State" that Congress intended to be effectuated by an

order directed to an appropriate state official.  The habeas corpus

statute, again, comes to mind.  It has long required "the State," by

"order directed to an appropriate State official," to produce the state

court record where an indigent habeas petitioner argues that a state

court's factual findings are not fairly supported in the record.  See 28

U.S.C.  2254(e) ("the State shall produce such part of the record and

the Federal court shall direct the State to do so by order directed to

an appropriate State official").  If, then, IGRA's references to "a

State's" duty were not enforceable by order to a state official, it

would have to be for some other reason than the placement of the

statutory duty on "the State."



It may be that even the Court agrees, for it falls back to the position,

see ante at ___, n. 17, that only a State, not a state officer, can

enter into a compact.  This is true but wholly beside the point.  The

issue is whether negotiation should take place as required by IGRA and

an officer (indeed, only an officer) can negotiate.  In fact, the only

case cited by the Court, State ex rel. Stephan v. Finney, 251 Kan. 559,

836 P.2d 1169 (Kan. 1992), makes that distinction abundantly clear.



Finally, one must judge the Court's purported inference by stepping back

to ask why Congress could possibly have intended to jeopardize the

enforcement of the statute by excluding application of Young's

traditional jurisdictional rule, when that rule would make the

difference between success or failure in the federal court if state

sovereign immunity was recognized.  Why would Congress have wanted to go

for broke on the issue of state immunity in the event the State pleaded

immunity as a jurisdictional bar?  Why would Congress not have wanted

IGRA to be enforced by means of a traditional doctrine giving federal

courts jurisdiction over state officers, in an effort to harmonize state

sovereign immunity with federal law that is paramount under the

Supremacy Clause?  There are no plausible answers to these questions. D



There is, finally, a response to the Court's rejection of Young that

ought to go without saying.  Our longstanding practice is to read

ambiguous statutes to avoid constitutional infirmity, Edward J.

DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades

Council, 485 U.S. 568, 575 (1988) ("`every reasonable construction must

be resorted to, in order to save a statute from unconstitutionality'")

(quoting Hooper v. California, 155 U.S. 648, 657 (1895)).  This practice

alone (without any need for a clear statement to displace Young) would

be enough to require Young's application.  So, too, would the

application of another rule, requiring courts to choose any reasonable

construction of a statute that would eliminate the need to confront a

contested constitutional issue (in this case, the place of state

sovereign immunity in federal question cases and the status of Union

Gas).  NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, (1979). 

Construing the statute to harmonize with Young, as it readily does,

would have saved an act of Congress and rendered a discussion on

constitutional grounds wholly unnecessary.  This case should be decided

on this basis alone. V



Absent the application of Ex parte Young, I would, of course, follow

Union Gas in recognizing congressional power under Article I to abrogate

Hans immunity.  Since the reasons for this position, as explained in

Parts II-III, supra, tend to unsettle Hans as well as support Union Gas,

I should add a word about my reasons for continuing to accept Hans'

holding as a matter of stare decisis.



The Hans doctrine was erroneous, but it has not previously proven to be

unworkable or to conflict with later doctrine or to suffer from the

effects of facts developed since its decision (apart from those

indicating its original errors).  I would therefore treat Hans as it has

always been treated in fact until today, as a doctrine of federal common

law.  For, as so understood, it has formed one of the strands of the

federal relationship for over a century now, and the stability of that

relationship is itself a value that stare decisis aims to respect.



In being ready to hold that the relationship may still be altered, not

by the Court but by Congress, I would tread the course laid out

elsewhere in our cases.  The Court has repeatedly stated its assumption

that insofar as the relative positions of States and Nation may be

affected consistently with the Tenth Amendment,{65} they would not be

modified without deliberately expressed intent.  See Gregory v.

Ashcroft, 501 U.S. at   The plain statement rule, which "assures that

the legislature has in fact faced, and intended to bring into issue, the

critical matters involved in the judicial decision," United States v.

Bass, 404 U.S. at 349, is particularly appropriate in light of our

primary reliance on "[t]he effectiveness of the federal political

process in preserving the States' interests."  Garcia v. San Antonio

Metropolitan Transit Authority, 469 U.S. 528, 552 (1985).{66}  Hence, we

have required such a plain statement when Congress preempts the historic

powers of the States, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230

(1947), imposes a condition on the grant of federal moneys, South Dakota

v. Dole, 483 U.S. 203, 207 (1987), or seeks to regulate a State's

ability to determine the qualifications of its own officials. Gregory,

supra at 464.



When judging legislation passed under unmistakable Article I powers, no

further restriction could be required.  Nor does the Court explain why

more could be demanded.  In the past, we have assumed that a plain

statement requirement is sufficient to protect the States from undue

federal encroachments upon their traditional immunity from suit.  See,

e.g., Welch v. Texas Dept. of Highways & Public Transp., 483 U.S. at

475; Atascadero State Hospital v. Scanlon, 473 U.S. at   It is hard to

contend that this rule has set the bar too low, for (except in Union

Gas) we have never found the requirement to be met outside the context

of laws passed under  5 of the Fourteenth Amendment.  The exception I

would recognize today proves the rule, moreover, because the federal

abrogation of state immunity comes as part of a regulatory scheme which

is itself designed to invest the States with regulatory powers that

Congress need not extend to them.  This fact suggests to me that the

political safeguards of federalism are working, that a plain statement

rule is an adequate check on congressional overreaching, and that

today's abandonment of that approach is wholly unwarranted.



There is an even more fundamental "clear statement" principle, however,

that the Court abandons today.  John Marshall recognized it over a

century and a half ago in the very context of state sovereign immunity

in federal question cases:



The jurisdiction of the Court, then, being extended by the letter of the

constitution to all cases arising under it, or under the laws of the

United States, it follows that those who would withdraw any case of this

description from that jurisdiction, must sustain the exemption they

claim on the spirit and true meaning of the constitution, which spirit

and true meaning must be so apparent as to overrule the words which its

framers have employed. Cohens v. Virginia, 6 Wheat. at   Because neither

text, precedent, nor history supports the majority's abdication of our

responsibility to exercise the jurisdiction entrusted to us in Article

III, I would reverse the judgment of the Court of Appeals. Footnotes

REHNQUIST, J., lead opinion (Footnotes)



1. Class I gaming means social games solely for prizes of minimal value

or traditional forms of Indian gaming engaged in by individuals as a

part of, or in connection with, tribal ceremonies or celebrations, 25

U.S.C.  2703(6), and is left by the Act to "the exclusive jurisdiction

of the Indian tribes."   2710(a)(1).  Class II gaming is more

extensively defined to include bingo, games similar to bingo, nonbanking

card games not illegal under the laws of the State, and card games

actually operated in particular States prior to the passage of the Act. 

See  2703(7).  Banking card games, electronic games of chance, and slot

machines are expressly excluded from the scope of class II gaming.  

2703(B).  The Act allows class II gaming where the State "permits such

gaming for any purpose by any person, organization or entity," and the

"governing body of the Indian tribe adopts an ordinance or resolution

which is approved by the Chairman" of the National Indian Gaming

Commission.   2710(b)(1).  Regulation of class II gaming contemplates a

federal role, but places primary emphasis on tribal self-regulation. 

See  2710(c)(3)-(6).



2. Sections 2710(d)(7)(B)(ii)-(vii) provide in full:



(ii) In any action described in subparagraph (A)(i), upon the

introduction of evidence by an Indian tribe that



(I) a Tribal-State compact has not been entered into under paragraph

(3), and



(II) the State did not respond to the request of the Indian tribe to

negotiate such a compact or did not respond to such request in good

faith, the burden of proof shall be upon the State to prove that the

State has negotiated with the Indian tribe in good faith to conclude a

Tribal-State compact governing the conduct of gaming activities.



(iii) If, in any action described in subparagraph (A)(i), the court

finds that the State has failed to negotiate in good faith with the

Indian tribe to conclude a Tribal-State compact governing the conduct of

gaming activities, the court shall order the State and the Indian Tribe

to conclude such a compact within a 60-day period.  In determining in

such an action whether a State has negotiated in good faith, the court

--



(I) may take into account the public interest, public safety,

criminality, financial integrity, and adverse economic impacts on

existing gaming activities, and



(II) shall consider any demand by the State for direct taxation of the

Indian tribe or of any Indian lands as evidence that the State has not

negotiated in good faith.



(iv) If a State and an Indian tribe fail to conclude a Tribal-State

compact . . . within the 60-day period provided in the order of a court

issued under clause (iii), the Indian tribe and the State shall each

submit to a mediator appointed by the court a proposed compact that

represents their last best offer for a compact.  The mediator shall

select from the two proposed compacts the one which best comports with

the terms of this chapter and any other applicable Federal law and with

the findings and order of the court.



(v) The mediator appointed by the court under clause (iv) shall submit

to the State and the Indian tribe the compact selected by the mediator

under clause (iv).



(vi) If a State consents to a proposed compact during the 60-day period

beginning on the date on which the proposed compact is submitted by the

mediator to the State under clause (v), the proposed compact shall be

treated as a Tribal-State compact entered into under paragraph (3).



(vii) If the State does not consent during the 60-day period described

in clause (vi) to a proposed compact submitted by a mediator under

clause (v), the mediator shall notify the Secretary and the Secretary

shall prescribe, in consultation with the Indian tribe, procedures --



(I) which are consistent with the proposed compact selected by the

mediator under clause (iv), the provisions of this chapter, and the

relevant provisions of the laws of the State, and



(II) under which class III gaming may be conducted on the Indian lands

over which the Indian tribe has jurisdiction.



3. The Eleventh Circuit consolidated petitioner's appeal with an appeal

from another suit brought under  2710(d)(7)(A)(i) by a different Indian

tribe.  Although the district court in that case had granted the

defendants' motions to dismiss, the legal issues presented by the two

appeals were virtually identical.  See Poarch Band of Creek Indians v.

Alabama, 776 F.Supp. 550 (SD Ala. 1991) (Eleventh Amendment bars suit

against State), and 784 F.Supp. 1549 (SD Ala. 1992) (Eleventh Amendment

bars suit against Governor).



4. Following its conclusion that petitioner's suit should be dismissed,

the Court of Appeals went on to consider how  2710(d)(7) would operate

in the wake of its decision.  The court decided that those provisions of

 2710(d)(7) that were problematic could be severed from the rest of the

section, and read the surviving provisions of  2710(d)(7) to provide an

Indian tribe with immediate recourse to the Secretary of the Interior

from the dismissal of a suit against a State.  11 F.3d at 1029.



5. Respondents filed a cross-petition, No. 94-219, challenging only the

Eleventh Circuit's modification of  2710(d)(7), see n. 4, supra.  That

petition is still pending.



6. While the appeal was pending before the Eleventh Circuit, the

District Court granted respondents' earlier-filed summary judgment

motion, finding that Florida had fulfilled its obligation under the Act

to negotiate in good faith.  The Eleventh Circuit has stayed its review

of that decision pending the disposition of this case.



7. E.g., North Carolina v. Temple, 134 U.S. 22, 30 (1890); Fitts v.

McGhee, 172 U.S. 516, 524 (1899); Bell v. Mississippi, 177 U.S. 693

(1900); Smith v. Reeves, 178 U.S. 436, 446 (1900); Palmer v. Ohio, 248

U.S. 32, 34 (1918); Duhne v. New Jersey, 251 U.S. 311, 313 (1920); Ex

parte New York, 256 U.S. 490, 497 (1921); Missouri v. Fiske, 290 U.S.

18, 26 (1933); Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 51

(1944); Ford Motor Co. v. Department of Treasury of Ind., 323 U.S. 459,

464 (1945); Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299,

304, n. 13 (1952); Parden v. Terminal Railway of Ala. Docks Dept., 377

U.S. 184, 186 (1964); United States  v. Mississippi, 380 U.S. 128, 140

(1965); Employees v. Department of Public Health and Welfare of Mo., 411

U.S. 279, 280 (1973); Edelman v. Jordan, 415 U.S. 651, (1974);

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Cory v. White, 457 U.S. 85

(1982); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89,

97-100 (1984); Atascadero State Hospital v. Scanlon, 473 U.S. 234,

(1985); Welch v. Texas Dept. of Highways and Public Transp., 483 U.S.

468, (1987) (plurality opinion); Dellmuth v. Muth, 491 U.S. 223,  and n.

2 (1989); Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304

(1990); Blatchford v. Native Village of Noatak, 501 U.S. 775, 779

(1991); Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy,

Inc., 506 U.S. 139, ___ (1993).



8. See Ponca Tribe of Oklahoma v. Oklahoma, 37 F.3d 1422, 1427-1428

(CA10 1994), cert. pending, No. 94-1029; Spokane Tribe v. Washington,28

F.3d 991, 994-995 (CA9 1994); Cheyenne River Sioux Tribe v. South

Dakota, 3 F.3d 273, 280-281 (CA8 1993); Ponca Tribe of Oklahoma v.

Oklahoma, 834 F.Supp. 1341, 1345 (WD Okla. 1993); Maxam v. Lower Sioux

Indian Community of Minnesota, 829 F.Supp. 277 (D. Minn. 1993); Kickapoo

Tribe of Indians v. Kansas, 818 F.Supp. 1423, 1427 (D. Kan. 1993); 801

F.Supp. 655, 658 (SD Fla. 1992) (case below); Sault Ste. Marie Tribe of

Chippewa Indians v. Michigan, 800 F.Supp. 1484, 1488-1489 (WD Mich.

1992); Poarch Band of Creek Indians v. Alabama, 776 F.Supp. at 557-558.



9. The dissent argues that in order to avoid a constitutional question,

we should interpret the Act to provide only a suit against state

officials, rather than a suit against the State itself.  Post at ___. 

But, in light of the plain text of  2710(d)(7)(B), we disagree with the

dissent's assertion that the Act can reasonably be read in that way. 

"We cannot press statutory construction `to the point of disingenuous

evasion' even to avoid a constitutional question."  See United States v.

Locke, 471 U.S. 84, 96 (1985), quoting George Moore Ice Cream Co. v.

Rose, 289 U.S. 373, 379 (1933) (Cardozo, J.).  We already have found the

clear statement rule satisfied, and that finding renders the preference

for avoiding a constitutional question inapplicable.



10. Respondents also contend that the Act mandates state regulation of

Indian gaming and therefore violates the Tenth Amendment by allowing

federal officials to avoid political accountability for those actions

for which they are in fact responsible.  See New York v. United States,

505 U.S. 144 (1992).  This argument was not considered below by either

the Eleventh Circuit or the District Court, and is not fairly within the

question presented.  Therefore we do not consider it here.  See this

Court's Rule 14.1; Yee v. Escondido, 503 U.S. 519 (1992).



11. Unless otherwise indicated, all references to the dissent are to the

dissenting opinion authored by JUSTICE SOUTER.



12. We note here also that the dissent quotes selectively from the

Framers' statements that it references.  The dissent cites the

following, for instance, as a statement made by Madison: the

Constitution "give[s] a citizen a right to be heard in the federal

courts; and if a state should condescend to be a party, this court may

take cognizance of it." See post at ___.  But that statement, perhaps

ambiguous when read in isolation, was preceded by the following:

[J]urisdiction in controversies between a state and citizens of another

state is much objected to, and perhaps without reason.  It is not in the

power of individuals to call any state into court.  The only operation

it can have, is that, if a state should wish to bring a suit against a

citizen, it must be brought before the federal courts.  It appears to me

that this can have no operation but this. See 3 J. Elliot, Debates on

the Federal Constitution 67 (1866).



13. Although the absence of any discussion dealing with federal question

jurisdiction is therefore unremarkable, what is notably lacking in the

Framers' statements is any mention of Congress' power to abrogate the

States' immunity.  The absence of any discussion of that power is

particularly striking in light of the fact that the Framers virtually

always were very specific about the exception to state sovereign

immunity arising from a State's consent to suit.  See, e.g., The

Federalist No. 81, pp. 487-488 (C. Rossiter ed. 1961) (A. Hamilton) ("It

is inherent in the nature of sovereignty not to be amenable to the suit

of an individual without its consent. . . .  Unless, therefore, there is

a surrender of this immunity in the plan of the convention, it will

remain with the States and the danger intimated must be merely ideal.")

(emphasis in the original); Madison in 3 Elliot, supra n. 11 ("It is not

in the power of individuals to call any state into court. . . .  [The

Constitution] can have no operation but this:  . . . if a state should

condescend to be a party, this court may take cognizance of it").



14. This argument wholly disregards other methods of ensuring the

States' compliance with federal law:  the Federal Government can bring

suit in federal court against a State, see, e.g., United States v.

Texas, 143 U.S. 621, 644-645 (1892) (finding such power necessary to the

"permanence of the Union"); an individual can bring suit against a state

officer in order to ensure that the officer's conduct is in compliance

with federal law, see, e.g., Ex parte Young, 209 U.S. 123 (1908); and

this Court is empowered to review a question of federal law arising from

a state court decision where a State has consented to suit, see, e.g.,

Cohens v. Virginia, 6 Wheat. 264 (1821).



15. JUSTICE STEVENS, in his dissenting opinion, makes two points that

merit separate response.  First, he contends that no distinction may be

drawn between state sovereign immunity and the immunity enjoyed by state

and federal officials.  But even assuming that the latter has no

constitutional foundation, the distinction is clear:  the Constitution

specifically recognizes the States as sovereign entities, while

government officials enjoy no such constitutional recognition.  Second,

JUSTICE STEVENS' criticizes our prior decisions applying the "clear

statement rule," suggesting that they were based upon an understanding

that Article I allowed Congress to abrogate state sovereign immunity. 

His criticism, however, ignores the fact that many of those cases arose

in the context of a statute passed under the Fourteenth Amendment, where

Congress' authority to abrogate is undisputed.  See, e.g., Quern v.

Jordan, 440 U.S. 332 (1979).  And a more fundamental flaw of the

criticism is its failure to recognize that both the doctrine requiring

avoidance of constitutional questions, and principles of federalism,

require us always to apply the clear statement rule before we consider

the constitutional question whether Congress has the power to abrogate.



16. JUSTICE STEVENS understands our opinion to prohibit federal

jurisdiction over suits to enforce the bankruptcy, copyright, and

antitrust laws against the States.  He notes that federal jurisdiction

over those statutory schemes is exclusive, and therefore concludes that

there is "no remedy" for state violations of those federal statutes. 

Post at ___ n. 1.



That conclusion is exaggerated both in its substance and in its

significance.  First, JUSTICE STEVENS' statement is misleadingly

overbroad.  We have already seen that several avenues remain open for

ensuring state compliance with federal law.  See supra, at n. 13.  Most

notably, an individual may obtain injunctive relief under Ex parte Young

in order to remedy a state officer's ongoing violation of federal law. 

See supra, at n. 14.  Second, contrary to the implication of JUSTICE

STEVENS' conclusion, it has not been widely thought that the federal

antitrust, bankruptcy, or copyright statutes abrogated the States'

sovereign immunity.  This Court never has awarded relief against a State

under any of those statutory schemes; in the decision of this Court that

JUSTICE STEVENS cites (and somehow labels "incompatible" with our

decision here), we specifically reserved the question whether the

Eleventh Amendment would allow a suit to enforce the antitrust laws

against a State.  See Goldfarb v. Virginia State Bar, 421 U.S. 773, 792

n. 22 (1975).  Although the copyright and bankruptcy laws have existed

practically since our nation's inception, and the antitrust laws have

been in force for over a century, there is no established tradition in

the lower federal courts of allowing enforcement of those federal

statutes against the States.  Notably, both Court of Appeals decisions

cited by JUSTICE STEVENS were issued last year and were based upon Union

Gas.  See Chavez v. Arte Publico Press, 59 F.3d 539 (CA5 1995); Matter

of Merchants Grain, Inc. v. Mahern, 59 F.3d 630 (CA7 1995).  Indeed,

while the Court of Appeals in Chavez allowed the suit against the State

to go forward, it expressly recognized that its holding was

unprecedented.  See Chavez, 59 F.3d at 546 ("we are aware of no case

that specifically holds that laws passed pursuant to the Copyright

Clause can abrogate state immunity").



17. Contrary to the claims of the dissent, we do not hold that Congress

cannot authorize federal jurisdiction under Ex parte Young over a cause

of action with a limited remedial scheme.  We find only that Congress

did not intend that result in the Indian Gaming Regulatory Act. 

Although one might argue that the text of  2710(d)(7)(A)(i), taken

alone, is broad enough to encompass both a suit against a State (under

an abrogation theory) and a suit against a state official (under an Ex

parte Young theory), subsection (A)(i) of  2710(d)(7) cannot be read in

isolation from subsections (B)(ii)-(vii), which repeatedly refers

exclusively to "the State."  See supra at ___.  In this regard, 

2710(d)(7) stands in contrast to the statutes cited by the dissent as

examples where lower courts have found that Congress implicitly

authorized suit under Ex parte Young.  Compare 28 U.S.C.  2254(e)

(federal court authorized to issue an "order directed to an appropriate

State official"); 42 U.S.C.  11001 (1988 ed.) (requiring "the Governor"

of a State to perform certain actions and holding "the Governor"

responsible for nonperformance); 33 U.S.C.  1365(a) (authorizing a suit

against "any person" who is alleged to be in violation of relevant water

pollution laws).  Similarly the duty imposed by the Act -- to "negotiate

. . . in good faith to enter into" a compact with another sovereign --

stands distinct in that it is not of the sort likely to be performed by

an individual state executive officer or even a group of officers.  Cf.

State ex rel Stephan v. Finney, 836 P.2d 1169, 251 Kan. 559 (1992)

(Governor of Kansas may negotiate, but may not enter into compact

without grant of power from legislature).



18. We do not here consider, and express no opinion upon, that portion

of the decision below that provides a substitute remedy for a tribe

bringing suit.  See 11 F.3d 1016, 1029 (CA11 1994) (case below).

STEVENS, J., dissenting (Footnotes)



1. See, e.g., Pennsylvania v. Union Gas Co., 496 U.S. 1 (1989) (holding

that a federal court may order a State to pay cleanup costs pursuant to

the Comprehensive Environmental Response, Compensation, and Liability

Act of 1980); In re Merchants Grain, Inc., 59 F.3d 630 (CA7 1995)

(holding that the Eleventh Amendment does not bar a bankruptcy court

from issuing a money judgment against a State under the Bankruptcy

Code); Chavez v. Arte Publico Press, 59 F.3d 539 (CA5 1995) (holding

that a state university could be sued in federal court for infringing an

author's copyright).  The conclusion that suits against States may not

be brought in federal court is also incompatible with our cases

concluding that state entities may be sued for antitrust violations. 

See, e.g, Goldfarb v. Virginia State Bar, 421 U.S. 773, 791-792 (1975).



As federal courts have exclusive jurisdiction over cases arising under

these federal laws, the majority's conclusion that the Eleventh

Amendment shields States from being sued under them in federal court

suggests that persons harmed by state violations of federal copyright,

bankruptcy, and antitrust laws have no remedy.  See Harris & Kenny,

Eleventh Amendment Jurisprudence After Atascadero:  The Coming Clash

With Antitrust, Copyright, and Other Causes of Action Over Which the

Federal Courts Have Exclusive Jurisdiction, 37 Emory L.J. 645 (1988).



2.  Because Justice Iredell read the Judiciary Act of 1789 to have

incorporated the common law, he did not even conclude that Congress

would have to make a clear statement in order to override the common

law's recognition of sovereign immunity.



3. Actually, he limited his conclusion to the narrower question whether

an action of assumpsit would lie against a State, which he distinguished

from the more general question whether a State can ever be sued. 

Chisholm v. Georgia, 2 Dall. at 430.  He did so because he recognized

that in England, certain judicial proceedings not inconsistent with the

sovereignty, may take place against the Crown, but that an action of

assumpsit will not lie, and because he had "often found a great deal of

confusion to arise from taking too large a view at once."  Ibid.



4. In two sentences at the end of his lengthy opinion, Justice Iredell

stated that his then-present view was that the Constitution would not

permit a "compulsive suit against a State for the recovery of money." 

Id. at 449.  In light of Justice Iredell's express statement that the

only question before the Court was the propriety of an individual's

action for assumpsit against a State, an action which, of course,

results in a money judgment, see n. 2, supra, this dicta should not be

understood to state the general view that the Constitution bars all

suits against unconsenting States.  Moreover, even as to the limited

question whether the Constitution permits actions for money judgments,

Justice Iredell took pains to reserve ultimate judgment.  Chisholm v.

Georgia, 2 Dall. at 449.  Thus, nothing in Justice Iredell's two

sentences of dicta provides a basis for concluding that Congress lacks

the power to authorize the suit for the nonmonetary relief at issue

here.



5. In this respect, Chisholm v. Georgia should be understood to be of a

piece with the debate over judicial power famously joined in Martin v.

Hunter's Lessee, 1 Wheat. 304, 337 (1816).  There, too, the argument

centered on whether Congress had the power to limit the seemingly

expansive jurisdictional grant that Article III had conferred, not on

whether Article III itself provided the relevant limitation.



6. The contention that Article III withdrew Georgia's sovereign immunity

had special force precisely because Chisholm involved an action premised

on the Supreme Court's original jurisdiction.  While Article III leaves

it to Congress to establish the lower federal courts, and to make

exceptions to the Supreme Court's appellate jurisdiction, it

specifically mandates that there be a Supreme Court and that it shall be

vested with original jurisdiction over those actions in which "a State

shall be a party."  Article III,  2.  In light of that language, the

Chisholm majority's conclusion that the Supreme Court had a

constitutional obligation to take jurisdiction of all suits against

States was not implausible.



7. It should be remembered that at the time of Chisholm, there was a

general fear of what Justice Iredell termed the "innovating spirit" of

the Federal Judiciary.  See, e.g., 3 A. Beveridge, The Life of John

Marshall 19-30 (1919) (discussing the consternation that the federal

courts' creation of common law felonies engendered).  Thus, there is

good reason to believe that the reaction to Chisholm reflected the

popular hostility to the Federal Judiciary more than any desire to

restrain the National Legislature.



8. Of course, even if the Eleventh Amendment applies to federal question

cases brought by a citizen of another State, its express terms pose no

bar to a federal court assuming jurisdiction in a federal question case

brought by an in-state plaintiff pursuant to Congress' express

authorization.  As that is precisely the posture of the suit before us,

and as it was also precisely the posture of the suit at issue in

Pennsylvania v. Union Gas, there is no need to decide here whether

Congress would be barred from authorizing out-of-state plaintiffs to

enforce federal rights against States in federal court.  In fact,

Justice Brennan left open that question in his dissent in Atascadero

State Hospital v. Scanlon, 473 U.S. 234, 288, n. 41 (1985) (Brennan, J.,

dissenting). When the Court is prepared to embark on a defensible

interpretation of the Eleventh Amendment consistent with its history and

purposes, the question whether the Amendment bars federal question or

admiralty suits by a noncitizen or alien against a State would be open.

Ibid.



9. Under the "plain text" of the Eleventh Amendment, I note that there

would appear to be no more basis for the conclusion that States may

consent to federal court jurisdiction in actions brought by out-of-state

or foreign citizens, than there would be for the view that States should

be permitted to consent to the jurisdiction of a federal court in a case

that poses no federal question.  See, e.g., Owen Equipment & Erection

Co. v. Kroger, 437 U.S. 365, 377, n. 21 (1978); Sosna v. Iowa, 419 U.S.

393, 398 (1975); California v. LaRue, 409 U.S. 109,  n. 3 (1972);

American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18, and n. 17

(1951); Mitchell v. Maurer, 293 U.S. 237, 244 (1934); Jackson v. Ashton,

8 Pet. 148, 149 (1834).  We have, however, construed the Amendment,

despite its text, to apply only to unconsenting States.  See, e.g.,

Clark v. Barnard, 108 U.S. 436, 447 (1883).  In so doing, we of course

left it for Congress to determine whether federal courts should

entertain any claim against a State in federal court.  A departure from

the text to expand the class of plaintiffs to whom the Eleventh

Amendment's bar applies would, however, limit Congress' authority to

exercise its considered judgment as to the propriety of federal court

jurisdiction.  The absence of a textual warrant for imposing such a

broad limitation on the legislative branch counsels against this Court

extratextually imposing one.



10. In his dissent in Pennsylvania v. Union Gas Co., 491 U.S. at 36-37,

JUSTICE SCALIA contended that the existence of the Judiciary Act of 1875

at the time of Hans requires one to accept the gossamer distinction

between cases in which Congress has assertedly sought to eliminate state

sovereign immunity pursuant to its powers to create and organize courts,

and cases in which it has assertedly sought to do so pursuant to some of

its other powers, in order to conclude that, in spite of Hans, Congress

may authorize federal courts to hear a suit against an unconsenting

State.  I rely on no such "gossamer distinction" here.



Congress has the authority to withdraw sovereign immunity in cases not

covered by the Eleventh Amendment under all of its various powers. 

Nothing in Hans is to the contrary.  As the passage quoted above

demonstrates, Hans merely concluded that Congress, in enacting the

Judiciary Act of 1875, did not manifest a desire to withdraw state

sovereign immunity with sufficient clarity to overcome the

countervailing presumption.  Therefore, I rely only on the distinction

between a statute that clearly directs federal courts to entertain suits

against States, such as the one before us here, and a statute that does

not, such as the Judiciary Act of 1875.  In light of our repeated

application of a clear statement rule in Eleventh Amendment cases, from

Hans onward, I would be surprised to learn that such a distinction is

too thin to be acceptable.



11. Indeed, to the extent the reasoning of Monaco was premised on the

ground that a contrary ruling might permit foreign governments and

States indirectly to frustrate Congress' treaty power, Principality of

Monaco v. Mississippi, 292 U.S. 313, 331 (1934), the opinion suggests

that its outcome would have been quite different had Congress expressly

authorized suits by foreign governments against individual States as

part of its administration of foreign policy.



12. Moreover, they would have most unnecessarily burdened  Congress. 

For example, after deciding that Congress had not made sufficiently

explicit its intention to withdraw the state sovereign immunity  defense

in certain bankruptcy actions, see Hoffman v. Connecticut Dept. of

Income Maintenance, 492 U.S. 96 (1989), Congress understandably

concluded that it could correct the confusion by amending the relevant

statute to make its intentions to override such a defense unmistakably

clear.  See In re Merchants Grain, Inc., 59 F.3d 630 (CA7 1995). 

Congress will no doubt be surprised to learn that its exercise in

legislative clarification,  which it undertook for our benefit, was for

naught because the Constitution makes it so.



13. Significantly, Chief Justice Marshall understood the Eleventh

Amendment's bar to have been designed primarily to protect States from

being sued for their debts.  See Cohens v. Virginia, 6 Wheat. 264, 406

(1821).



14. Significantly, many of the cases decided after Hans in which this

Court has recognized State sovereign immunity involved claims premised

on the breach of rights that were rooted in state law.  See Ford Motor

Co. v. Department of Treasury of Ind., 323 U.S. 459 (1945); Great

Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944); Smith v. Reeves, 178

U.S. 436 (1900).  In such cases, the Court's application of the state

law immunity appears simply to foreshadow (or follow) the rule of Erie

Railroad Co. v. Tompkins, 304 U.S. 64 (1938), not to demark the limits

of Article III.



15. It is significant that JUSTICE SOUTER's opinion makes it perfectly

clear that JUSTICE GINSBURG, JUSTICE BREYER, and he did not consider it

necessary to rely on the holding in Union Gas to support their

conclusion.  I find today's decision particularly unfortunate because of

its failure to advance an acceptable reason for refusing to adhere to a

precedent upon which the Congress, a well as the courts, should be

entitled to rely.



16. See STEVENS, Is Justice Irrelevant?, 87 NW Law Rev. 1121, 1124-1125

(1993).



17. Interestingly, this passage demonstrates that the Court's

application of a common law sovereign immunity defense in Principality

of Monaco v. Mississippi, 292 U.S. 313 (1934), was quite probably

justified.  There, a foreign State sued a State as a substantial

creditor, and thus implicated the very purpose of the Eleventh

Amendment.



18. Because Hans v. Louisiana, 134 U.S. 1 (1890), was the  first case in

which the Court held that a State could not be sued in federal court by

one of its citizens, this comment is of interest: It is not necessary

that we should enter upon an examination of the reason or the expediency

of the rule which exempts a sovereign State from prosecution in a court

of justice at the suit of individuals.  This is fully discussed by

writers on public law. It is enough for us to declare its existence. Id.

at 21.  So it is today. SOUTER, J., dissenting (Footnotes)



1. The two Citizen-State Diversity Clauses provide as follows: The

judicial Power shall extend . . . to Controversies . . . between a State

and Citizens of another State; . . . and between a State, or the

Citizens thereof, and foreign States, Citizens or Subjects. U.S.Const.,

Art. III,  2.  In his opinion in Union Gas, JUSTICE STEVENS referred to

these clauses as the "citizen-state" and "alien-state" clauses,

respectively, Pennsylvania v. Union Gas Co., 491 U.S. 1, 24 (1989)

(STEVENS, J., concurring).  I have grouped the two as "Citizen-State

Diversity Clauses" for ease in frequent repetition here.



2. The first of these notions rests on the ancient maxim that "the King

can do no wrong."  See, e.g., 1 W. Blackstone, Commentaries *244. 

Professor Jaffe has argued this expression "originally meant precisely

the contrary to what it later came to mean," that is, "`it meant that

the king must not, was not allowed, not entitled, to do wrong.'"  Jaffe,

77 Harv. L.Rev. at 4 (quoting Ehrlich, Proceedings Against the Crown

(1216-1377) p. 42, in 6 Oxford Studies in Social and Legal History (P.

Vinogradoff ed. 1921) at 42); see also 1 Blackstone, supra at *246

(interpreting the maxim to mean that "the prerogative of the crown

extends not to do any injury").  In any event, it is clear that the idea

of the sovereign, or any part of it, being above the law in this sense

has not survived in American law.  See, e.g., Langford v. United States,

101 U.S. 341, 342-343 (1880); Nevada v. Hall, 440 U.S. 410, 415 (1979).



3. The text reads that [t]he Judicial Power shall extend to all Cases,

in Law and Equity, arising under this Constitution, the Laws of the

United States, and Treaties made, or which shall be made, under their

Authority; -- to all Cases affecting Ambassadors, other public Ministers

and Consuls; -- to all Cases of admiralty and maritime Jurisdiction; --

to Controversies to which the United States shall be a Party; -- to

Controversies between two or more States; -- between a State and

Citizens of another State; -- between Citizens of different States, --

between Citizens of the same State claiming Lands under Grants of

different States, and between a State, or the Citizens thereof, and

foreign States, Citizens or Subjects.



4. The one statement I have found on the subject of States' immunity in

federal question cases was an opinion that immunity would not be

applicable in these cases:  James Wilson, in the Pennsylvania

ratification debate, stated that the federal question clause would

require States to make good on pre-Revolutionary debt owed to English

merchants (the enforcement of which was promised in the Treaty of 1783)

and thereby show the world that we make the faith of the treaties a

constitutional part of the character of the United States; that we

secure its performance no longer nominally, for the judges of the United

States will be enabled to carry it into effect, let the legislatures of

the different states do what they may. 2 J. Elliot, Debates on the

Federal Constitution, 490 (2d ed. 1836) (Elliot's Debates).



5. This lengthy discussion of the history of the Constitution's

ratification, the Court's opinion in Chisholm v. Georgia, 2 Dall. 419

(1793), and the adoption of the Eleventh Amendment is necessary to

explain why, in my view, the contentions in some of our earlier opinions

that Chisholm created a great "shock of surprise" misread the history. 

See Principality of Monaco v. Mississippi, 292 U.S. 313 (1934).  The

Court's response to this historical analysis is simply to recite yet

again Monaco's erroneous assertion that Chisholm created a "such a shock

of surprise that the Eleventh Amendment was at once proposed and

adopted," 292 U.S. at 325.  See ante at ___.  This response is, with

respect, no response at all.Monaco's ipse dixit that Chisholm created a

"shock of surprise" does not make it so.  This Court's opinions

frequently make assertions of historical fact, but those assertions are

not authoritative as to history in the same way that our interpretations

of laws are authoritative as to them.  In Tucker v. Alexandroff, 183

U.S. 424, 434 (1902), which was, like Monaco, decided a century after

the event it purported to recount, the Court baldly stated that, in

September, 1790, General Washington, on the advice of Mr. Adams, did

refuse to permit British troops to march through the territory of the

United States from Detroit to the Mississippi, apparently for the reason

that the object of such movement was an attack on New Orleans and the

Spanish possessions on the Mississippi. Modern historians agree,

however, that there was no such request, see J. Daly, The Use of History

in the Decisions of the Supreme Court:  1900-1930 65-66 (1954); W.

Manning, The Nootka Sound Controversy, in Annual Report of the American

Historical Association, H.R.Doc. 429 (1905) at 415-423, and it would of

course be absurd for this Court to treat the fact that Tucker asserted

the existence of the request as proof that it actually occurred.  Cf.

Erie R. Co. v. Tompkins, 304 U.S. 64, 72-73 (1938) ("But it was the more

recent research of a competent scholar, who examined the original

document, which established that the construction given to [the

Judiciary Act of 1789] by the Court was erroneous; and that the purpose

of the section was merely to make certain that, in all matters except

those in which some federal law is controlling, the federal courts

exercising jurisdiction in diversity of citizenship cases would apply as

their rules of decision the law of the State, unwritten as well as

written").



Moreover, in this case, there is ample evidence contradicting the "shock

of surprise" thesis.  Contrary to Monaco's suggestion, the Eleventh

Amendment was not "at once proposed and adopted."  Congress was in

session when Chisholm was decided, and a constitutional amendment in

response was proposed two days later, but Congress never acted on it,

and in fact it was not until two years after Chisholm was handed down

that an amendment was ratified.  See Gibbons, The Eleventh Amendment and

State Sovereign Immunity:  A Reinterpretation, 83 Colum.L.Rev. 1889,

1926-1927 (1983).



6. See also 2 Dall. at 435 ("[I]t is certain, that in regard to any

common law principle which can influence the question before us, no

alteration has been made by any statute,"); id. at 437 (if "no new

remedy be provided . . . we have no other rule to govern us, but the

principles of the preexistent laws, which must remain in force till

superseded by others"); Atascadero State Hospital v. Scanlon, 473 U.S.

234, 283 (1985) (Brennan, J., dissenting).  But see Justice Iredell's

dicta suggesting that the Constitution would not permit suits against a

State.  Chisholm, supra at 449 (Iredell, J., dissenting); Atascadero,

supra at 283, n. 34 (Brennan, J., dissenting).



7. Of course, even if Justice Iredell had concluded that state sovereign

immunity was not subject to abrogation, it would be inappropriate to

assume (as it appears the Court does today, and Hans did as well) that

the Eleventh Amendment (regardless of what it says) "constitutionalized"

Justice Iredell's dissent, or that it simply adopted the opposite of the

holding in Chisholm.  It is as odd to read the Eleventh Amendment's

rejection of Chisholm (which held that States may be sued in diversity)

to say that States may not be sued on a federal question as it would be

to read the Twenty-Sixth Amendment's rejection of Oregon v. Mitchell,

400 U.S. 112 (1970) (which held that Congress could not require States

to extend the suffrage to 18-year-olds) to permit Congress to require

States to extend the suffrage to 12-year-olds.



8. The great weight of scholarly commentary agrees.  See, e.g., Jackson,

The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity,

98 Yale L.J. 1 (1988); Amar, Of Sovereignty and Federalism, 96 Yale L.J.

1425 (1987); Fletcher, A Historical Interpretation of the Eleventh

Amendment:  A Narrow Construction of an Affirmative Grant of

Jurisdiction, Rather than a Prohibition Against Jurisdiction, 35

Stan.L.Rev. 1033 (1983); Gibbons, The Eleventh Amendment and State

Sovereign Immunity:  A Reinterpretation, 83 Colum.L.Rev. 1889 (1983);

Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: 

Congressional Imposition of Suit Upon the States, 126 U.Pa.L.Rev. 1203

(1978).  While a minority has adopted the second view set out above,

see, e.g., Marshall, Fighting the Words of the Eleventh Amendment, 102

Harv. L.Rev. 1342 (1989); Massey, State Sovereignty and the Tenth and

Eleventh Amendments, 56 U.Chi.L.Rev. 61 (1989), and others have

criticized the diversity theory, see, e.g., Marshall, The Diversity

Theory of the Eleventh Amendment:  A Critical Evaluation, 102

Harv.L.Rev. 1372 (1989), I have discovered no commentator affirmatively

advocating the position taken by the Court today.  As one scholar has

observed, the literature is remarkably consistent in its evaluation of

the historical evidence and text of the amendment as not supporting a

broad rule of constitutional immunity for states. Jackson, supra at 44,

n. 179.



9. Vassall initiated a suit against Massachusetts, invoking the original

jurisdiction of the Supreme Court.  Although the marshal for the

district of Massachusetts served a subpoena on Governor John Hancock and

Attorney General James Sullivan, the Commonwealth of Massachusetts did

not appear by the original return date of August, 1793, and the case was

continued to the February, 1794 Term.  Massachusetts never did appear,

and the case was "simply continued from term to term through 1796."  5

Documentary History of the Supreme Court of the United States at 369. 

In February, 1797, the suit was "dismissed with Costs, for reasons

unknown," ibid. (internal quotation marks omitted), perhaps because

"Vassall failed to prosecute it properly."  Ibid.



10. We have generally rejected Eleventh Amendment challenges to our

appellate jurisdiction on the specious ground that an appeal is not a

"suit" for purposes of the Amendment.  See, e.g., McKesson Corp. v.

Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business

Regulation, 496 U.S. 18, 27 (1990).  Although Cohens v. Virginia, 6

Wheat. 264, 412 (1821), is cited for this proposition, that case

involved a State as plaintiff.  See generally Jackson, "The Supreme

Court, the Eleventh Amendment, and State Sovereign Immunity," 98 Yale

L.J. 1, 32-35 (1988) (rejecting the appeal/suit distinction).  The

appeal/suit distinction, in any case, makes no sense.  Whether or not an

appeal is a "suit" in its own right, it is certainly a means by which an

appellate court exercises jurisdiction over a "suit" that began in the

courts below.  Cf. Griggs v. Provident Consumer Discount Co., 459 U.S.

56, 58 (1982) (per curiam) ("The filing of a notice of appeal is an

event of jurisdictional significance -- it confers jurisdiction on the

court of appeals and divests the district court of its control over

those aspects of the case involved in the appeal").



11. See also Pennsylvania v. Union Gas Co., supra at 31 (SCALIA, J.,

concurring in part and dissenting in part) ("If this text [of the

Eleventh Amendment] were intended as a comprehensive description of

state sovereign immunity in federal courts . . . , then it would

unquestionably be most reasonable to interpret it as providing immunity

only when the sole basis of federal jurisdiction is the diversity of

citizenship that it describes (which of course tracks some of the

diversity jurisdictional grants in U.S.Const., Art. III,  2).  For there

is no plausible reason why one would wish to protect a State from being

sued in federal court for violation of federal law . . . when the

plaintiff is a citizen of another State or country, but to permit a

State to be sued there when the plaintiff is citizen of the State

itself").



12. The Court does suggest that the drafters of the Eleventh Amendment

may not have had federal question jurisdiction in mind, in the apparent

belief that this somehow supports its reading.  Ante at ___.  The

possibility, however, that those who drafted the Eleventh Amendment

intended to deal "only with the problem presented by the decision in

Chisholm" would demonstrate, if any demonstration beyond the clear

language of the Eleventh Amendment were necessary, that the Eleventh

Amendment was not intended to address the broader issue of federal

question suits brought by citizens.



Moreover, the Court's point is built on a faulty foundation.  The Court

is simply incorrect in asserting that "the federal courts did not have

federal question jurisdiction at the time the Amendment was passed." 

Ante at ___.  Article III, of course, provided for such jurisdiction,

and early Congresses exercised their authority pursuant to Article III

to confer jurisdiction on the federal courts to resolve various matters

of federal law.  E.g., Act of Apr. 10, 1790,  5, 1 Stat. 111; Act of

Feb. 21, 1793,  6, 1 Stat. 322; Act of Mar. 23, 1792,  2,3, 1 Stat. 244;

see also Osborn v. Bank of United States, 9 Wheat. 738 (1824) (holding

that federal statute conferred federal question jurisdiction in cases

involving the Bank of the United States); see generally P. Bator, D.

Meltzer, P. Mishkin, & D. Shapiro, Hart & Wechsler's The Federal Courts

and the Federal System 960-982 (3d ed. 1988).  In fact, only six years

after the passage of the Eleventh Amendment, Congress enacted a statute

providing for general federal question jurisdiction.  Act of Feb. 13,

1801,  11, 2 Stat. 92 ("[T]he said circuit courts respectively shall

have cognizance of . . . all cases in law or equity, arising under the

constitution and laws of the United States, and treaties made, or which

shall be made, under their authority").  It is, of course, true that

this statute proved short-lived (it was repealed by the Act of Mar. 8,

1802, 2 Stat. 132), and that Congress did not pass another statute

conferring general federal jurisdiction until 1875, but the drafters of

the Eleventh Amendment obviously could not have predicted such things. 

The real significance of the 1801 act is that it demonstrates the

awareness among the Members of the early Congresses of the potential

scope of Article III.  This, in combination with the pre-Eleventh

Amendment statutes that conferred federal question jurisdiction on the

federal courts, cast considerable doubt on the Court's suggestion that

the issue of federal question jurisdiction never occurred to the

drafters of the Eleventh Amendment; on the contrary, just because these

early statutes underscore the early Congresses' recognition of the

availability of federal question jurisdiction, the silence of the

Eleventh Amendment is all the more deafening.



13. The majority chides me that the "lengthy analysis of the text of the

Eleventh Amendment is directed at a straw man," ante at ___.  But plain

text is the Man of Steel in a confrontation with "background

principle[s]" and "`postulates which limit and control,'" ante at ___. 

An argument rooted in the text of a constitutional provision may not be

guaranteed of carrying the day, but insubstantiality is not its failing.

 See, e.g., Monaghan, Our Perfect Constitution, 56 N.Y.U.L.Rev. 353,

383-384 (1981) ("For the purposes of legal reasoning, the binding

quality of the constitutional text is itself incapable of, and not in

need of, further demonstration"); cf. Bourjaily v. United States, 483

U.S. 171, 178 (1987) (REHNQUIST, C.J.) ("It would be extraordinary to

require legislative history to confirm the plain meaning of [Fed. R.

Evid.] 104"); Garcia v. United States, 469 U.S. 70, 75 (1984)

(REHNQUIST, J.) ("[O]nly the most extraordinary showing of contrary

intentions from [the legislative history] would justify a limitation on

the `plain meaning' of the statutory language").  This is particularly

true in construing the jurisdictional provisions of Art. III, which

speak with a clarity not to be found in some of the more open-textured

provisions of the Constitution.  See National Mutual Ins. Co. v.

Tidewater Transfer Co., 337 U.S. 582, 646-647 (1949) (Frankfurter, J.,

dissenting); Schauer, Easy Cases, 58 S. Cal.L.Rev. 399, 424 (1985)

(noting the "seemingly plain linguistic mandate" of the Eleventh

Amendment).  That the Court thinks otherwise is an indication of just

how far it has strayed beyond the boundaries of traditional

constitutional analysis.



14. Professor Jackson has noted the "remarkabl[e] consisten[cy]" of the

scholarship on this point, Jackson, 98 Yale L.J. at 44, n. 179.  See

also n. 8, supra.



15. Indeed, as JUSTICE STEVENS suggests, there is language in Hans

suggesting that the Court was really construing the Judiciary Act of

1875, rather than the Constitution.  See ante at ___.



16. See Gibbons, 83 Colum.L.Rev. at 2000 ("Without weakening the

contract clause, which over the next two decades the Fuller Court might

need both in its fight against government regulation of business and as

a weapon against defaulting local governments, the justices needed a way

to let the South win the repudiation war.  The means Bradley chose was

to rewrite the eleventh amendment and the history of its adoption"). 

The commentators' contention that this Court's inability to enforce the

obligation of Southern States to pay their debts influenced the result

in Hans v. Louisiana, 134 U.S. 1 (1890), is substantiated by three

anomalies of this Court's sovereign immunity jurisprudence during that

period.  First, this Court held in 1885 that Virginia's sovereign

immunity did not allow it to abrogate its bonds.  Virginia Coupon Cases,

114 U.S. 269 (1885).  The difference from the situation in other states,

however, was that Virginia had made its bond coupons receivable in

payment of state taxes; [u]nder these circumstances federal courts did

not need to rely on the political branches of government to enforce

their orders but could protect creditors by a judgment that their taxes

had in fact been paid.  In these cases the Eleventh Amendment faded into

the background. Orth, Judicial Power of the United States at 9; see

generally id. at 90-109.  Second at the same time that this Court was

articulating broad principles of immunity for States, we refused to

recognize similar immunity for municipalities and similar state

political subdivisions.  See, e.g., Lincoln County v. Luning, 133 U.S.

529 (1890).  Professor Orth suggests that this seeming inconsistency is

traceable to the enforcement difficulties arising from the withdrawal of

federal troops from the South.  "It just so happened," he points out,

that counties had tended to issue bonds in the West, while in the South,

states had usually done the job.  Property in the form of bonds could be

defended in the mid-West and West, but similar property in the South had

to be sacrificed to the higher politics of the Compromise of 1877. Orth,

supra at 111.  Finally, Professor Orth attributes this Court's

recognition (or revival) of the Ex parte Young action as a way around

state sovereign immunity to the fact that, by 1908, "the problem of

repudiated Southern bonds was clearly a specter from an increasingly

distant past."  Orth, supra at 128.  See also Gibbons, supra at 2002

(arguing that the Court's unanimous revival of its power to grant

equitable relief against state officers in Pennoyer v. McConnaughy, 140

U.S. 1 (1891), was made possible by the fact that the case "did not

involve Southern State bonds").  I am reluctant, to be sure, to ascribe

these legal developments to a single, extra-legal cause, and at least

one commentator has suggested that the Southern debt crisis may not have

been the only factor driving the Court's Eleventh Amendment

jurisprudence during this period.  See generally Collins, The Conspiracy

Theory of the Eleventh Amendment, 88 Colum.L.Rev. 212 (1988) (reviewing

Orth).  But neither would I ignore the pattern of the cases, which tends

to show that the presence or absence of enforcement difficulties

significantly influenced the path of the law in this area.  See id. at

243 (acknowledging that "[i]t is perfectly conceivable that

Compromise-related politics exerted their influence at the margin-in

doubtful cases in which the Court might have gone either way").



17. Today's majority condemns my attention to Hans' historical

circumstances as "a disservice to the Court's traditional method of

adjudication."  Ante at ___.  The point, however, is not that historical

circumstance may undermine an otherwise defensible decision; on the

contrary, it is just because Hans is so utterly indefensible on the

merits of its legal analysis that one is forced to look elsewhere in

order to understand how the Court could have gone so far wrong.  Nor is

there anything new or remarkable in taking such a look, for we have

sought similar explanations in other cases.  In Puerto Rico v. Branstad,

483 U.S. 219 (1987), for example, we suggested that the Court's holding

in Kentucky v. Dennison, 24 How. 66 (1861), that "the Federal

Government, under the Constitution, has no power to impose on a State

officer, as such, any duty whatever, and compel him to perform it," id.

at 107, was influenced by "the looming shadow of a Civil War," Branstad,

483 U.S. at 227,and we ultimately determined that Dennison should be

overruled.  Id. at 230.  The author of the Court's opinion today joined

that analysis, as did the other Members of today's majority who were

then on the Court.  See id. at 230 (O'CONNOR, J., concurring in part and

concurring in judgment) (joining the relevant portion of the majority

opinion); id. at 231 (SCALIA, J., concurring in part and concurring in

judgment) (same).



18. See also Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299,

304 (1952) (same); Fitts v. McGhee, 172 U.S. 516, 524 (1899) (same). 

Even JUSTICE SCALIA's dissent in Union Gas, the reasoning of which the

majority adopts today, acknowledged that its view of sovereign immunity

depended upon "some other constitutional principle beyond the immediate

text of the Eleventh Amendment."  491 U.S. at 31 (opinion concurring in

part and dissenting in part).  To the extent that our prior cases do

refer to Hans immunity as part of the Eleventh Amendment, they can only

be referring to JUSTICE STEVENS' "other" Eleventh Amendment.  Hess v.

Port Authority Trans-Hudson Corp., 513 U.S. ___, ___  (1994) (STEVENS,

J., concurring); see also Pennsylvania v. Union Gas Co., supra at 23-29

(STEVENS, J., concurring) (same).



19. See also Union Gas, 491 U.S. at 31-32 (SCALIA, J., concurring in

part and dissenting in part) ("What we said in Hans was, essentially,

that the Eleventh Amendment was important not merely for what it said

but for what it reflected:  a consensus that the doctrine of sovereign

immunity, for States as well as for the Federal Government, was part of

the understood background against which the Constitution was adopted,

and which its jurisdictional provisions did not mean to sweep away");

Nevada v. Hall, 440 U.S. at 440 (REHNQUIST, J., dissenting)

(interpreting Monaco as "rel[ying] on precepts underlying but not

explicit in Art. III and the Eleventh Amendment").



20. There are good reasons not to take many of these statements too

seriously.  Some are plainly exaggerated; for example, the suggestion in

Great Northern Ins. Co. v. Read, 322 U.S. 47, 51 (1944), that "[a]

state's freedom from litigation was established as a constitutional

right through the Eleventh Amendment" obviously ignores a State's

liability to suit by other States, see, e.g., South Dakota v. North

Carolina, 192 U.S. 286 (1904), and by the National Government, see,

e.g., United States v. Texas, 143 U.S. 621 (1892).  See also Nevada v.

Hall, supra, at 420, n. 19 (noting that "the Eleventh Amendment has not

accorded the States absolute sovereign immunity in federal court

actions").  Similarly, statements such as in Ex parte New York, 256 U.S.

at 497, that the entire judicial power granted by the Constitution does

not embrace authority to entertain a suit brought by private parties

against a State without consent given should not necessarily be taken as

affirming that Article III itself incorporated a constitutional immunity

doctrine.  How else to explain Justice Harlan's concurring opinion in

Hans, which stated, practically in the same breath, that "a suit

directly against a State by one of its own citizens is not one to which

the judicial power of the United States extends," and that Chisholm "was

based upon a sound interpretation of the Constitution as that instrument

then was"?  134 U.S. at 21.



21. See also Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299,

304 (1952); Fitts v. McGhee, 172 U.S. 516, 524-525 (1899).



22. See also Warth v. Seldin, 422 U.S. 490, 501 (1975) ("Congress may

grant an express right of action to persons who otherwise would be

barred by prudential standing rules"); E. Chemerinsky, Federal

Jurisdiction  2.1 at 42-43 (2d ed. 1994).



23. Indeed, The Chief Justice could hardly have been clearer in Fry v.

United States, 421 U.S. 542 (1975), where he explained that [t]he

Court's decision in Hans v. Louisiana, 134 U.S. 1 (1890), offers

impressive authority for the principle that the States as such were

regarded by the Framers of the Constitution as partaking of many

attributes of sovereignty quite apart from the provisions of the Tenth

Amendment. . . .  As it was not the Eleventh Amendment by its terms

which justified the result in Hans, it is not the Tenth Amendment by its

terms that prohibits congressional action which sets a mandatory ceiling

on the wages of all state employees.  Both Amendments are simply

examples of the understanding of those who drafted and ratified the

Constitution that the States were sovereign in many respects, and that

although their legislative authority could be superseded by Congress in

many areas where Congress was competent to act, Congress was nonetheless

not free to deal with a State as if it were just another individual or

business enterprise subject to regulation. Id. at (REHNQUIST, J.,

dissenting).



24. Indeed, in Nevada v. Hall, 440 U.S. at 439, The Chief Justice

complained in dissent that the same statements upon which he relies

today had been "dismiss[ed] . . . as dicta."



25. In Hoffman, one member of the four-Justice plurality expressly

disavowed the plurality's assumption that Congress could abrogate the

States' immunity by making its intent to do so clear.  See 492 U.S. at

105 (O'CONNOR, J., concurring).  The four dissenters, however, not only

assumed that Congress had the power to abrogate but found that it had

done so.  See id. at 106 (Marshall, J., dissenting).  Likewise, in

Welch, the four-justice plurality was joined by four dissenters who

insisted upon a congressional power of abrogation.  See 483 U.S. at 519

(Brennan, J., dissenting).



26. The Court seeks to disparage the common law roots of the doctrine,

and the consequences of those roots which I outline infra at ___ & ___,

by asserting that Hans "found its roots not solely in the common law of

England, but in the much more fundamental `"jurisprudence in all

civilized nations."'"  Ante at ___ (quoting Hans, 134 U.S. at 17).  The

Hans Court, however, relied explicitly on the ground that a suit against

the State by its own citizen was "not known . . . at the common law,"

and was not among the departures from the common law recognized by the

Constitution.  Hans, 134 U.S. at 15.  Moreover, Hans explicitly adopted

the reasoning of Justice Iredell's dissent in Chisholm, see 134 U.S. at

18-19, and that opinion could hardly have been clearer in relying

exclusively on the common law.  "The only principles of law . . . which

can affect this case," Justice Iredell wrote, [are] those that are

derived from what is properly termed "the common law," a law which I

presume is the groundwork of the laws in every State in the Union, and

which I consider, so far as it is applicable to the peculiar

circumstances of the country, and where no special act of Legislation

controuls it, to be in force in each State, as it existed in England,

(unaltered by any statute) at the time of the first settlement of the

country. 2 Dall. at 435 (emphasis omitted).  See also Employees of Dept.

of Public Health and Welfare of Missouri v. Department of Public Health

and Welfare of Missouri, 411 U.S. 279, 288 (1973) (Marshall, J.,

concurring in result) ("Sovereign immunity is a common law doctrine that

long predates our Constitution and the Eleventh Amendment, although it

has, of course, been carried forward in our jurisprudence"); R. Watkins,

The State as a Party Litigant 51-52 (1927) ("It thus seems probable that

the doctrine of state immunity was accepted rather as an existing fact

by the people of the states, than adopted as a theory.  It was a matter

of universal practice, and was accepted from the mother country along

with the rest of the common law of England applicable to our changed

state and condition").



27. See, e.g., Hall, The Common Law:  An Account of Its Reception in the

United States, 4 Vand.L.Rev. 791, 796 (1951) ("Whether we emphasize the

imitation by the colonists of the practices of English local courts or

whether we say the early colonial judges were really applying their own

common sense ideas of justice, the fact remains that there was an

incomplete acceptance in America of English legal principles, and this

indigenous law which developed in America remained as a significant

source of law after the Revolution").



28. See also Jones, The Common Law in the United States:  English Themes

and American Variations, in Political Separation and Legal Continuity

95-98 (H. Jones, ed. 1976) (Jones) (acknowledging that a true common law

system had not yet developed in the early colonial period); Stoebuck,

Reception of English Common Law in the American Colonies, 10 Wm. & Mary

L.Rev. 393, 406-407 (1968) (same).



29. See, e.g., Reinsch, English Common Law in the Early American

Colonies at 7 (finding that the colonists developed their own "rude,

popular, summary" system of justice despite professed adhesion to the

common law); C. Hilkey, Legal Development in Colonial Massachusetts,

1630-1686, p. 69 (1967) (emphasizing Biblical and indigenous sources);

Radin, The Rivalry of Common Law and Civil Law Ideas in the American

Colonies, in 2 Law:  A Century of Progress 404, 407-411 (1937)

(emphasizing natural law and Roman law); Goebel, King's Law and Local

Custom in Seventeenth Century New England, 31 Colum. L.Rev. 416 (1931)

(finding that the early settlers imported the law and procedure of the

borough and manor courts with which they had been familiar in England).



30. See also Stoebuck, supra at 411-412 (indicating that the Colonies

became significantly more receptive to the common law after 1700, in

part because of a British desire to regularize colonial legal systems).



31. See also Jones 98 ("The selective nature of the reception is evident

in any examination of the state of law in the colonies in the years

immediately preceding the Revolution").  An example is Trott's law,

adopted by South Carolina in 1712, which declared which English statutes

were in force in the colony.  Many laws of England, Trott conceded, were

"altogether useless" in South Carolina "by reason of the different way

of agriculture and the differing productions of the earth of this

Province from that of England"; others were "impracticable" because of

differences in institutions.  L. Friedman, A History of American Law

90-93 (2d ed. 1985); see also C. Warren, History of the American Bar

122-123 (1911) (quoting North Carolina statute, passed in 1715,

providing that the common law would be in force "`so far as shall be

compatible with our way of living and trade'").



32. American hostility to things English was so pronounced for a time

that Pennsylvania, New Jersey, and Kentucky proscribed by statute the

citation of English decisions in their courts, and the New Hampshire

courts promulgated a rule of court to the same effect.  See Hall, 4

Vand. L.Rev. at 806; Warren, supra at 227.  This hostility may appear

somewhat paradoxical in view of the colonists' frequent insistence

during the revolutionary crisis that they were entitled to common law

rights.  See, e.g., First Continental Congress Declaration and Resolves

(1774), in Documents Illustrative of the Formation of the Union of the

American States, H.R.Doc. No. 398, 69th Cong., 1st Sess., 1, 3 (C.

Tansill, ed. 1927) ("That the respective colonies are entitled to the

common law of England").  In this context, however, the colonists were

referring not to the corpus of English case law doctrine, but to such

profoundly valued common law procedures as trial by jury and the

subjection of governmental power to what John Locke had called the

"standing laws," such as Magna Carta, the Petition of Right, the Bill of

Rights of 1689, and the Act of Settlement of 1701.  Jones 110; see also

Jay, Origins of Federal Common Law:  Part Two, 133 U.Pa.L.Rev. 1231,

1256 (1985) (Jay II) (noting that "Antifederalists used the term common

law to mean the great rights associated with due process").  The

cardinal principles of this common law vision were parliamentary

supremacy and the rule of law, conceived as the axiom that "all members

of society, government officials as well as private persons, are equally

responsible to the law and . . . `equally amenable to the jurisdiction

of ordinary tribunals.'"  Jones 128-129 (quoting A. Dicey, Introduction

to Study of the Law of Constitution 192 (9th ed. 1939)).  It is hard to

imagine that the doctrine of sovereign immunity, so profoundly at odds

with both these cardinal principles, could have been imported to America

as part of this more generalized common law vision.



33. See, e.g., Conner v. Shepherd, 15 Mass. 164 (1818) (rejecting

English common law rule regarding assignment of dower rights as

inapplicable to the state and condition of land in Massachusetts);

Parker & Edgarton v. Foote, 19 Wend. 309, 318 (N.Y. 1838) (rejecting

English rule entitling a landowner to damages for the stopping of his

lights; the court noted that "[i]t cannot be necessary to cite cases to

prove that those portions of the common law of England which are hostile

to the spirit of our institutions, or which are not adapted to the

existing state of things in this country, form no part of our law");

Fitch v. Brainerd, 2 Conn. 163, 189 (1805) (accepting English common law

rule barring married woman from disposing of her real estate by will,

and observing that "it long since became necessary . . . to make [the

English common law] our own, by practical adoption -- with such

exceptions as a diversity of circumstances, and the incipient customs of

our own country, required") (emphasis in original); Martin v. Bigelow, 2

Aiken 184 (Vt. 1827) (declaring English common law as to stream rights

inappropriate for conditions of Vermont waterways); Hall v. Smith, 1 Bay

330, 331 (S.C.Sup.Ct. 1793) (refusing to apply strict English rules

regarding promissory notes as unsuited to the "local situation of

Carolina").  See also Hall, supra at 805 ("[A] review of the cases shows

that no matter what the wording of the reception statute or

constitutional provision of the particular state, the rule developed,

which was sooner or later to be repeated in practically every American

jurisdiction, that only those principles of the common law were received

which were applicable to the local situation").



34. See also Jones 123-124 (noting that the common law institutions of

habeas corpus and jury trial were "not merely received as ordinary law,"

but rather "received by [specific textual provisions] of the

Constitution itself, as part of the supreme law of the land"). 

Sovereign immunity, of course, was not elevated to constitutional status

in this way; such immunity thus stands on the same footing as any other

common law principle which the Framers refused to place beyond the reach

of legislative change.  That such principles were and are subject to

legislative alteration is confirmed by our treatment of other forms of

common law immunities, such as the immunity enjoyed under certain

circumstances by public officials.  Butz v. Economou, 438 U.S. 478, 508

(1978) (officer immunity is derived from the common law); Imbler v.

Pachtman, 424 U.S. 409, 421 (1976) (same).  In this context, "our

immunity decisions have been informed by the common law" only "in the

absence of explicit . . . congressional guidance."  Nixon v. Fitzgerald,

457 U.S. 731, 747 (1982).  See generally ante at ___ (STEVENS, J.,

dissenting); Jackson, supra at 75-104.  Surely no one would deny

Congress the power to abrogate those immunities if it should so choose.



35. See, e.g., 2 Elliot's Debates 400 (Thomas Tredwell, New York

Convention) ("[W]e are ignorant whether [federal proceedings] shall be

according to the common, civil, the Jewish, or Turkish law. . . . ").



36. See also Justice Jay's Charge to the Grand Jury for the District of

New York (April 4, 1790) (observing that at the time the Nation was

formed, "[o]ur jurisprudence varied in almost every State, and was

accommodated to local, not general convenience -- to partial, not

national policy") (quoted in Jay, Origins of Federal Common Law:  Part

I, 133 U.Pa.L.Rev. 1003, 1056 n. 261 (1985)); United States v. Worrall,

28 F.Cas. 774, 779 (No. 16,766) (Chase, J.) (C.C. Pa. 1798) (noting that

"[t]he common law . . . of one state, is not the common law of

another"); 8 Annals of Cong. 2137 (1798) (statement of Rep. Albert

Gallatin) (asserting that there could be no national common law because

"[t]he common law of Great Britain received in each colony, had in every

one received modifications arising from their situation . . . and now

each State had a common law, in its general principles the same, but in

many particulars differing from each other").



37. See also Jay II at 1241-1250 (arguing that Jeffersonian Republicans

resisted the idea of a general federal reception of the common law as an

incursion on States' rights); Jay I at 1111 (same).  Given the roots of

the Framers' resistance, the Court's reception of the English common law

into the Constitution itself in the very name of state sovereignty goes

beyond the limits of irony.



38. See 3 Elliot's Debates 573 (the Constitution would "render valid and

effective existing claims" against the States).  See also 2 id. at 491

(James Wilson, in the Pennsylvania ratification debate:  "When a citizen

has a controversy with another state, there ought to be a tribunal where

both parties may stand on a just and equal footing").  Wilson, as I

noted above, took a similar position in addressing the federal question,

or arising under, clause, remarking that the effect of the clause would

be to require States to honor pre-Revolutionary debt owed to English

merchants, as had been promised in the Treaty of 1783.  See supra at n.

4.



39. The Court accuses me of quoting this statement out of context, ante

at ___, n. 12, but the additional material included by the Court makes

no difference.  I am conceding that Madison, Hamilton, and Marshall all

agreed that Article III did not of its own force abrogate the states'

preexisting common law immunity at least with respect to diversity

suits.  None of the statements offered by the Court, however, purports

to deal with federal question jurisdiction or with the question whether

Congress, acting pursuant to its Article I powers, could create a cause

of action against a State.  As I explain further below, the views of

Madison and his allies on this more difficult question can be divined,

if at all, only by reference to the more extended discussions by

Hamilton in Federalist No. 32, and by Iredell in his Chisholm dissent. 

Both those discussions, I submit, tend to support a congressional power

of abrogation.



40. See also Worcester v. Georgia, 6 Pet. 515, 561 (1832) ("The Cherokee

nation . . . is a distinct community . . . in which the laws of Georgia

can have no force. . . .  The whole intercourse between the United

States and this nation, is, by our constitution and laws, vested in the

government of the United States").  This Court has repeatedly rejected

state attempts to assert sovereignty over Indian lands.  See, e.g., The

New York Indians, 5 Wall. 761, 769 (1867) (rejecting state attempt to

tax reservation lands); Worcester, supra at (nullifying an attempted

prosecution by the state of Georgia of a person who resided on Indian

lands in violation of state law).



41. Although we have rejected a per se bar to state jurisdiction, it is

clear that such jurisdiction remains the exception and not the rule. 

See New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, (1983)

(footnotes omitted) ("[U]nder certain circumstances a State may validly

assert authority over the activities of nonmembers on a reservation, and

. . . in exceptional circumstances a State may assert jurisdiction over

the on-reservation activities of tribal members").



42. See The Federalist No. 82 at 553 (A. Hamilton) (disclaiming any

intent to answer all the "questions of intricacy and nicety" arising in

a judicial system that must accommodate "the total or partial

incorporation of a number of distinct sovereignties"); S. Elkins and E.

McKitrick, The Age of Federalism 64 (1993) (suggesting that "[t]he

amount of attention and discussion given to the judiciary in the

Constitutional Convention was only a fraction of that devoted to the

executive and legislative branches," and that the Framers deliberately

left many questions open for later resolution).



43. Regardless of its other faults, Chief Justice Taney's opinion in

Dred Scott v. Sandford, 19 How. 393 (1857), recognized as a structural

matter that [t]he new government was not a mere change in a dynasty, or

in a form of government, leaving the nation or sovereignty the same, and

clothed with all the rights, and bound by all the obligations of the

preceding one. Id. at 441.  See also F. McDonald, Novus Ordo Seclorum: 

The Intellectual Origins of the Constitution 276 (1985) ("The

constitutional reallocation of powers created a new form of government,

unprecedented under the sun . . ."); S. Beer, To Make a Nation:  The

Rediscovery of American Federalism 150-151 (1993) (American view of

sovereignty was "radically different" from that of British tradition).



44. Cf., e.g., 1 W. Blackstone, Commentaries 49, 160-162 (Cooper, ed.,

1803).  This modern notion of sovereignty is traceable to the writings

of Jean Bodin in the late 16th century.  See J. Bodin, Six Books of the

Commonwealth, bk. 2, ch. I at 52-53 (M. Tooley, abr. & trans. 1967)

(1576); see also T. Hobbes, Leviathan, Part II, ch. 29, at 150-151 (N.

Fuller, ed. 1952) (1651).



45. See Wood 530 (noting that James Wilson "[m]ore boldly and fully than

anyone else . . . developed the argument that would eventually become

the basis of all Federalist thinking" about sovereignty); see also The

Federalist No. 22 at 146 (A. Hamilton) (acknowledging the People as

"that pure original fountain of all legitimate authority"); id. No. 49

at 339 (J. Madison) ("the people are the only legitimate fountain of

power").



46. See also U.S. Term Limits, Inc. v. Thornton, 514 U.S. ___, ___

(1995) (KENNEDY, J., concurring) (the Constitution "created a legal

system unprecedented in form and design, establishing two orders of

government, each with its own direct relationship, its own privity, its

own set of mutual rights and obligations to the people who sustain it

and are governed by it").



47. See Amar, 96 Yale L.J. at 1434-1435 ("The ultimate American answer

[to the British notion that the sovereign was by definition above the

law], in part, lay in a radical redefinition of governmental

`sovereignty.'  Just as a corporation could be delegated limited

sovereign privileges by the King-in-Parliament, so governments could be

delegated limited powers to govern.  Within the limitations of their

charters, governments could be sovereign, but that sovereignty could be

bounded by the terms of the delegation itself").



48. See, e.g., Amar, supra at 1436 ("By thus relocating true sovereignty

in the People themselves . . . Americans domesticated government power

and decisively repudiated British notions of `sovereign' governmental

omnipotence").  That this repudiation extended to traditional principles

of sovereign immunity is clear from Justice Wilson's opinion in

Chisholm, in which he blasted "the haughty notions of state

independence, state sovereignty and state supremacy" as allowing "the

state [to] assum[e] a supercilious preeminence above the people who have

formed it."  2 Dall. at 461.



49. See also Hobbes, supra at 130 ("The sovereign of a Commonwealth, be

it an assembly or one man, is not subject to the civil laws. . . .  For

he is free that can be free when he will:  nor is it possible for any

person to be bound to himself, because he that can bind can release; and

therefore he that is bound to himself only is not bound."); Bodin, supra

at 28-29 ("One may be subject to laws made by another, but it is

impossible to bind oneself in any matter which is the subject of one's

own free exercise of will. . . .  It follows of necessity that the king

cannot be subject to his own laws").



50. See also Wood 466 ("[O]nce men grasped, as they increasingly did in

the middle [1780's], that reform of the national government was the best

means of remedying the evils caused by the state governments, then the

revision of the Articles of Confederation assumed an impetus and an

importance that it had not had a few years earlier").



51. Cf. Jay I at 1033-1034 ("English common law might afford clues to

the meaning of some terms in the Constitution, but the absence of any

close federal model was recognized even at the Convention"); F. Coker,

Commentary, in R. Pound, C. McIlwain, & R. Nichols, Federalism as a

Democratic Process 81-82 (1942).



52. See, e.g., Prout v. Starr, 188 U.S. 537, 543 (1903) (acknowledging

the immunity recognized in Hans and other cases, but observing that

"[i]t would, indeed, be most unfortunate if the immunity of the

individual States from suits by citizens of other States, provided for

in the 11th Amendment, were to be interpreted as nullifying those other

provisions which confer power on Congress . . . all of which provisions

existed before the adoption of the Eleventh Amendment, which still

exist, and which would be nullified and made of no effect, if the

judicial power of the United States could not be invoked to protect

citizens affected by the passage of state laws disregarding these

constitutional limitations. . .").  The majority contends that state

compliance with federal law may be enforced by other means, ante at ___,

n. 14 but its suggestions are all pretty cold comfort:  the enforcement

resources of the Federal Government itself are limited; appellate review

of state court decisions is contingent upon state consent to suit in

state court, and is also called into question by the majority's

rationale, see supra at ___; and the Court's decision today illustrates

the uncertainty that the Court will always permit enforcement of federal

law by suits for prospective relief against state officers.  Moreover,

the majority's position ignores the importance of citizen suits to

enforcement of federal law. See, e.g., Alyeska Pipeline Co. v.

Wilderness Society, 421 U.S. 240, 263 (1975) (acknowledging that, in

many instances, "Congress has opted to rely heavily on private

enforcement to implement public policy"); see also S.Rep. No. 94-1011,

p. 2 (Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C.  1988)

(recognizing that "[a]ll of these civil rights laws depend heavily upon

private enforcement"); Pennsylvania v. Delaware Valley Citizens' Council

for Clean Air, 483 U.S. 711, 737 (1987) (Blackmun, J., dissenting)

(noting importance of citizens' suits under federal environmental laws).



53. The Court's further assertion, that "Congress itself waited nearly a

century before even conferring federal question jurisdiction on the

lower federal courts," ante at ___, is simply incorrect.  As I have

noted, numerous early statutes conferred federal question jurisdiction

on the federal courts operating under the original Judiciary Act in

particular kinds of cases, and the Judiciary Act of 1800 provided for

general federal question jurisdiction in the brief period before its

repeal in 1801. See supra, n. 12.



54. Considering the example of Massachusetts, Professor Nelson observes

that the clearest illustration that legislation was coming to rest on

the arbitrary power of a majoritarian legislature rather than on its

conformity with past law and principle was the ease with which statutes

altering common law rights were enacted and repealed in the 1780s in

response to changing election results. Nelson, Americanization of the

Common Law at 91-92.



55. See also Del.Const. Art. 25 (1776), in 2 Swindler, Sources and

Documents of United States Constitutions at 203 ("The common law of

England, as well as so much of the statute law as has been heretofore

adopted in practice in this State, shall remain in force, unless they

shall be altered by a future law of the legislature; such parts only

excepted as are repugnant to the rights and privileges contained in this

constitution . . ."); Act of Feb. 25, 1784, in 1 First Laws of the State

of Georgia 290 (1981) (declaring "the common laws of England" to be "in

full force" "so far as they are not contrary to the constitution, laws

and form of government now established in this State"); Mass.Const., Ch.

VI, Art. VI (1780), in 5 Swindler, supra at 108 ("All the laws which

have heretofore been adopted, used, and approved in the province,

colony, or State of Massachusetts Bay . . . shall still remain and be in

full force, until altered or repealed by the legislature . . .");

Commonwealth v. Churchill, 2 Met. 118, 123-124 (Mass. 1840) (Shaw, C.J.)

(construing "laws" in this provision to include common law); N.H.Const.,

Part II (1784), in 6 Swindler, supra at 356 ("All the laws which have

heretofore been adopted, used and approved, in the province, colony, or

state of New Hampshire . . . shall remain and be in full force, until

altered and repealed by the legislature . . ."); N.C.Laws 1778, Ch. V,

in 1 First Laws of the State of North Carolina 353 (1984) ("[A]ll . . .

such Parts of the Common Law, as were heretofore in Force and Use within

this Territory . . . as are not destructive of, repugnant to, or

inconsistent with the Freedom and Independence of this State, and the

Form of Government therein established, and which have not been

otherwise provided for, . . . not abrogated, repealed, expired, or

become obsolete, are hereby declared to be in full Force within this

State"); N.Y.Const., Art. XXXV (1777), in 7 Swindler, supra at 177-178

("[S]uch parts of the common law of England . . . as together did form

the law of the said colony [of New York] on [April 19, 1775], shall be

and continue the law of this State, subject to such alterations and

provisions as the legislature of this State shall, from time to time,

make concerning the same"); R.I.Digest of 1766, quoted in 1 R. Powell &

P. Rohan, Powell On Real Property  62, p. 212 (1995) ("[I]n all actions,

causes, matters and things whatsoever, where there is no particular law

of this colony, or act of parliament . . . then and in such cases the

laws of England shall be in force for the decision and determination of

the same"); 2 T. Cooper, Statutes at Large of South Carolina 413 (1837)

(Act of Dec. 12, 1712,   V) (receiving "the Common Law of England, where

the same is not . . . inconsistent with the particular constitutions,

customs and laws of this Province"); S.C.Const., Art. VII (1790), in 8

Swindler, supra at 480 ("All laws of force in this State at the passing

of this constitution shall so continue, until altered or repealed by the

legislature . . ."); W. Slade, Vermont State Papers 450 (1823) (Act of

June 1782) (adopting "so much of the common law of England, as is not

repugnant to the constitution or to any act of the legislature of this

State"); Act of May 6, 1776, Ch. V,  VI, in First Laws of the State of

Virginia 37 (1982) ("the common law of England . . . shall be the rule

of decision, and shall be considered as in full force, until the same

shall be altered by the Legislative power of this colony").



Connecticut, which did not enact any reception statute or constitutional

provision, adopted the common law by judicial decision insofar as it was

appropriate for local conditions.  See 1 Powell & Rohan, supra,  52 at

140-141, and n.77; Hall, 4 Vand.L.Rev. at 800; Fitch v. Brainerd, 2 Day

163 (Conn. 1805).  Maryland's position appears to have been articulated

in an oath prescribed by the Assembly in 1728 for justices of the

Provincial Court.  The oath required that the justices act according to

the Laws, Customs, and Directions of the Acts of Assembly of this

Province; and where they are silent, according to the Laws, Statutes,

and reasonable Customs of England, as have been used and practiced in

this Province. . . . M. Andrews, History of Maryland 227 (1929). 

Finally, although Pennsylvania's reception statute did not state that

the common law could be altered by legislative enactment in so many

words, it may be read as assuming the primacy of legislative enactments,

see 9 Statutes at Large of Pennsylvania 29-30 (Mitchell & Flanders eds.

1903) (Act of Jan. 28, 1777) (declaring prior acts of the general

assembly to still be in force, as well as "the common law and such of

the statute laws of England as have heretofore been in force in the said

province . . ."), and the state Assembly seems to have believed it had

the power to depart from common law even prior to independence.  See

Warren, History of the American Bar at 103; cf. Kirk v. Dean, 2 Binn.

341, 345 (Pa. 1810) (interpreting the state constitution as permitting

departures from common law rules where local circumstances required it).



56. It bears emphasis that, in providing for statutory alteration of the

common law, the new States were in no way departing from traditional

understandings.  It is true that the colonial charters had generally

rendered colonial legislation void to the extent that it conflicted with

English common law, but this principle was simply indicative of the

colonies' legal subjugation to the mother country and, in any event,

seldom enforced in practice.  See Stoebuck, 10 Wm. & Mary L.Rev. at

396-398, 419-420.  The traditional conception of the common law as it

developed in England had always been that it was freely alterable by

statute. T. Plucknett, A Concise History of the Common Law 336-337 (5th

ed. 1956); see also T. Plucknett, Statutes and Their Interpretation in

the First Half of the Fourteenth Century 26-31 (1922) (finding no

historical support for the claim that common law was "fundamental" or

otherwise superior to statues).  Coke appears to have attempted at one

time to establish a paramount common law, see, e.g., Dr. Bonham's Case, 

8 Co.Rep. 107a, 118a, 77 Eng.Rep. 638, 652 (C.P. 1610), but that attempt

never took root in England.  See Plucknett, Concise History of the

Common Law, supra at 337; Jones 130; J. Gough, Fundamental Law in

English Constitutional History 202 (1955) (observing that. "[b]y the

nineteenth century, the overriding authority of statute law had become

the accepted principle in the courts").  And although Coke's dictum was

to have a somewhat greater influence in America, that influence took the

form of providing an early foundation for the idea that courts might

invalidate legislation that they found inconsistent with a written

constitution.  See Jones 130-132; Gough, supra at 206-207 (noting that

Coke's view of fundamental law came to be transformed and subsumed in

American practice by treatment of the written constitution as

fundamental law in the exercise of judicial review).  As I demonstrate

infra, the idea that legislation may be struck down based on principles

of common law or natural justice not located within the constitutional

text has been squarely rejected in this country.  See infra at ___.



57. See also 3 Elliot's Debates 469-470 (Edmund Randolph, Virginia

Convention) (arguing that constitutional incorporation of the common law

would be "destructive to republican principles").  Indeed, one reason

for Madison's suspicion of the common law was that it included "a

thousand heterogeneous & anti-republican doctrines."  Letter from

Madison to Washington (Oct. 18, 1787), reprinted in 3 Farrand 130, App.

A.  "[I]t will merit the most profound consideration," Madison was later

to warn in his Report on the Virginia Resolutions Concerning the Alien

and Sedition Laws, "how far an indefinite admission of the common law .

. . might draw after it the various prerogatives making part of the

unwritten law of England."  Alien and Sedition Laws 380.  Such an

admission, Madison feared, would mean that "the whole code, with all its

incongruities, barbarisms, and bloody maxims, would be inviolably

saddled on the good people of the United States." Ibid.  See also Amar,

96 Yale L.J. 1490 ("[The] sole basis [of absolute government immunity

from all suits] is the British idea that the sovereign government, as

the source of all law, cannot itself be bound by any law absent its

consent. . . .  [L]iterally every article of the Federalist Constitution

and every amendment in the Bill of Rights rests on the repudiation of

the British view").



58. See Wood 304, n. 75 ("To Jefferson in 1785 judicial discretion in

the administration of justice was still the great evil and codification

the great remedy"); G. White, The Marshall Court and Cultural Change,

1815-1835, p. 130 (1991) ("[A]n assumption of the constitutional design

was that if Congress exercised [its enumerated] powers through

legislation, its laws would supersede any competing ones").



59. The Court attempts to sidestep this history by distinguishing

sovereign immunity as somehow different from other common law

principles.  Ante at ___.  But see Chisholm v. Georgia, 2 Dall. at 435

(Iredell, J., dissenting) (arguing that the common law of England should

control the case "so far as it is applicable to the peculiar

circumstances of the country, and where no special act of Legislation

controls it").  The Court cannot find solace in any distinction between

"substantive rules of law" and "jurisdiction," ante at ___, however; it

is abundantly clear that we have drawn both sorts of principles from the

common law.  See, e.g., Burnham v. Superior Court of Cal., County of

Marin, 495 U.S. 604, 609 (1990) (plurality opinion of SCALIA, J.)

(noting that American notion of personal jurisdiction is a "common law

principle" that predates the Fourteenth Amendment).  Nothing in the

history, moreover, suggests that common law rules were more immutable

when they were jurisdictional rather than substantive in nature.  Nor is

it true that the principle of state sovereign immunity stands distinct

from other principles of the common law in that only the former prompted

a specific constitutional amendment. Ante at ___.  The Seventh

Amendment, after all, was adopted to respond to Antifederalist concerns

regarding the right to jury trial.  See supra at n. 34.  Indeed, that

amendment vividly illustrates the distinction between provisions

intended to adopt the common law (the amendment specifically mentions

the "common law" and states that the common law right "shall be

preserved") and those provisions, like the Eleventh Amendment, that may

have been inspired by a common law right but include no language of

adoption or specific reference.  Finally, the Court's recourse to a

vague "jurisprudence in all civilized nations," ante at ___, rather than

the common law of England, is unavailing.  When the Constitution has

received such general principles into our law, for example, in the

Admiralty Clause's adoption of the general "law of nations" or "law of

the sea," those principles have always been subject to change by

congressional enactment.  See, e.g., Panama R. Co. v. Johnson, 264 U.S.

375, 386 (1924) (noting that although "the principles of the general

maritime law, sometimes called the law of the sea" were "embodied" in

Art. III,  2 of the Constitution, they remained "subject to power in

Congress to alter, qualify or supplement"); The Nereide, 9 Cranch 388,

423 (1815) (Marshall, C.J.) (stating that the Court would be "bound by

the law of nations" until Congress passed a contrary enactment).



60. Cf. United States v. Lopez, 514 U.S. ___, ___ (1995) (SOUTER, J.,

dissenting) ("The fulcrums of judicial review in [the Lochner cases]

were the notions of liberty and property characteristic of laissez faire

economics, whereas the Commerce Clause cases turned on what was

ostensibly a structural limit of federal power, but under each

conception of judicial review the Court's character for the first third

of the century showed itself in exacting judicial scrutiny of a

legislature's choice of economic ends and of the legislative means

selected to reach them").



61. The Court accuses me of misrepresenting its argument.  Ante at ___,

n. 17.  The Court's claim, as I read it, is not that Congress cannot

authorize federal jurisdiction under Ex parte Young over a cause of

action with a limited remedial scheme, but rather that remedial

limitations on the underlying cause of action do not apply to a claim

based on Ex parte Young.  Otherwise, the existence of those remedial

limitations would provide no reason for the Court to assume that

Congress did not intend to permit an action under Young; rather, the

limitations would apply regardless of whether the suit was brought

against the State or a state officer.



62. See also Brennan v. Stewart, 834 F.2d 1248, 1252, n.6 (CA5 1988)

("[A]lthough not usually conceptualized as Ex parte Young cases, most of

the huge number of habeas claims in the federal courts under 28 U.S.C.  

2254 are effectively suits against the states.  These suits pass muster

under the Eleventh Amendment because the habeas theory of a civil suit

against the bad jailer fits perfectly with the Ex parte Young fiction");

United States ex. rel. Elliott v. Hendricks, 213 F.2d 922, 926-928 (CA3)

(exercising jurisdiction over a habeas suit despite an Eleventh

Amendment challenge on the theory that the suit was against a state

officer), cert. denied, 348 U.S. 851 (1954).



63. Many other federal statutes impose obligations on state officials,

the enforcement of which is subject to "intricate provisions" also

statutorily provided.  See, e.g., Federal Water Pollution Control Act,

33 U.S.C.  1365(a) (citizen suit provision to enforce states'

obligations under federal environmental law); Emergency Planning and

Community Right-to-Know Act, 42 U.S.C.  11001 (privately enforceable

requirement that states form commissions, appointed by the Governor, to

generate plans for addressing hazardous material emergencies).



64. In order for any person (whether individual or entity) to be a

proper defendant under  2710(d)(7) (and in order for standing to exist,

since one of its requirements is redressability), that person, of

course, would need to have some connection to the State's negotiations. 

See Young, 209 U.S. at 157; Franklin v. Massachusetts, 505 U.S. 788, 803

(1992).  The obvious candidates are the responsible state officials.



65. The scope of the Tenth Amendment's limitations of congressional

power remains a subject of debate.  New York v. United States, 505 U.S.

144 (1992), holds that principles of federalism are "violated by a

formal command from the National Government directing the State to enact

a certain policy."  United States v. Lopez, 514 U.S. ___, ___ (1995)

(KENNEDY, J., concurring).  Some suggest that the prohibition extends

further than barring the federal government from directing the creation

of state law.  The views I express today should not be understood to

take a position on that disputed question.



66. See also The Federalist No. 46, supra at 319 (J. Madison)

(explaining that the Federal Government "will partake sufficiently of

the spirit [of the States], to be disinclined to invade the rights of

the individual States, or the prerogatives of their governments");

Wechsler, The Political Safeguards of Federalism:  The Role of the

States in the Composition and Selection of the National Government, 54

Colum.L.Rev. 543 (1954).

