Cite as: 513 U. S. 30 (1994)
Stevens, J., concurring
Court of Appeals is accordingly reversed, and the Hess and Walsh cases are remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Stevens, concurring.
Justice Ginsburg's thorough opinion demonstrates why the Court's answer to the open question this case presents is entirely faithful to precedent. I join her opinion without reservation, but believe it appropriate to identify an additional consideration that has motivated my vote.
Most of this Court's Eleventh Amendment jurisprudence is the product of judge-made law unsupported by the text of the Constitution. The Amendment provides as follows:
"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."
As Justice Brennan explained in his dissent in Atascadero State Hospital v. Scanlon, 473 U. S. 234, 259-302 (1985), this language, when read in light of the historical evidence, is properly understood to mean that the grant of diversity jurisdiction found in Article III, § 2, does not extend to actions brought by individuals against States. See also Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 509-516 (1987) (Brennan, J., dissenting). Yet since Hans v. Louisiana, 134 U. S. 1 (1890), the Court has interpreted the Eleventh Amendment as injecting broad notions of sovereign immunity into the whole corpus of federal jurisdiction. The Court's decisions have given us "two Eleventh Amendments," one narrow and textual and the other—not truly a constitutional doctrine at all—based on prudential considerations of comity and federalism. See Pennsylvania v. Union Gas Co., 491 U. S. 1, 23-29 (1989) (Stevens, J., concurring).
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