Cite as: 517 U. S. 44 (1996)
Souter, J., dissenting
suits 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
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 69-70. 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." Ibid. 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 It is, of course, true that this statute proved short lived (it was repealed by the Act of Mar. 8, 1802, 2 Stat. 132), and that Congress did not pass another statute conferring general federal jurisdiction until 1875, but the drafters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 Elev-
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