112
Souter, J., dissenting
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,
ney 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.
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