Cite as: 517 U. S. 44 (1996)
Souter, J., dissenting
and individuals who are not citizens,3 it was only upon the latter citizen-state diversity provisions that preratification questions about state immunity from suit or liability centered.4
Later in my discussion I will canvass the details of the debate among the Framers and other leaders of the time, see infra, at 142-150; for now it is enough to say that there was no consensus on the issue. See Atascadero State Hospital v. Scanlon, 473 U. S. 234, 263-280 (1985) (Brennan, J., dissenting); Nevada v. Hall, 440 U. S. 410, 419 (1979); Jacobs, supra, at 40 ("[T]he legislative history of the Constitution hardly warrants the conclusion drawn by some that there was a general understanding, at the time of ratification, that the states would retain their sovereign immunity"). There was, on the contrary, a clear disagreement, which was left to fester during the ratification period, to be resolved only thereafter. One other point, however, was also clear: the
3 The text reads that "[t]he Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."
4 The one statement I have found on the subject of States' immunity in federal-question cases was an opinion that immunity would not be applicable in these cases: James Wilson, in the Pennsylvania ratification debate, stated that the federal-question clause would require States to make good on pre-Revolutionary debt owed to English merchants (the enforcement of which was promised in the Treaty of 1783) and thereby "show the world that we make the faith of treaties a constitutional part of the character of the United States; that we secure its performance no longer nominally, for the judges of the United States will be enabled to carry it into effect, let the legislatures of the different states do what they may." 2 J. Elliot, Debates on the Federal Constitution 490 (2d ed. 1836) (Elliot's Debates).
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