Cite as: 517 U. S. 44 (1996)
Souter, J., dissenting
I
It is useful to separate three questions: (1) whether the States enjoyed sovereign immunity if sued in their own courts in the period prior to ratification of the National Constitution; (2) if so, whether after ratification the States were entitled to claim some such immunity when sued in a federal court exercising jurisdiction either because the suit was between a State and a nonstate litigant who was not its citizen, or because the issue in the case raised a federal question; and (3) whether any state sovereign immunity recognized in federal court may be abrogated by Congress.
The answer to the first question is not clear, although some of the Framers assumed that States did enjoy immunity in their own courts. The second question was not debated at the time of ratification, except as to citizen-state diversity jurisdiction; 1 there was no unanimity, but in due course the Court in Chisholm v. Georgia, 2 Dall. 419 (1793), answered that a state defendant enjoyed no such immunity. As to federal-question jurisdiction, state sovereign immunity seems not to have been debated prior to ratification, the silence probably showing a general understanding at the time that the States would have no immunity in such cases.
The adoption of the Eleventh Amendment soon changed the result in Chisholm, not by mentioning sovereign immunity, but by eliminating citizen-state diversity jurisdiction over cases with state defendants. I will explain why the
1 The two Citizen-State Diversity Clauses provide as follows: "The judicial Power shall extend . . . to Controversies . . . between a State and Citizens of another State; . . . and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." U. S. Const., Art. III, § 2. In his opinion in Union Gas, Justice Stevens referred to these Clauses as the "citizen-state" and "alien-state" Clauses, respectively, Pennsylvania v. Union Gas Co., 491 U. S. 1, 24 (1989) (concurring opinion). I have grouped the two as "Citizen-State Diversity Clauses" for ease in frequent repetition here.
101
Page: Index Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 NextLast modified: October 4, 2007