118
Souter, J., dissenting
industrial development. E. Foner, Reconstruction: America's Unfinished Revolution 1863-1877, pp. 383-384 (1988); Gibbons, 83 Colum. L. Rev., at 1976-1977. As Reconstruction governments collapsed, however, the post-Reconstruction regimes sought to repudiate these debts, and the Hans litigation arose out of Louisiana's attempt to renege on its bond obligations.
Hans sued the State in federal court, asserting that the State's default amounted to an impairment of the obligation of its contracts in violation of the Contract Clause. This Court affirmed the dismissal of the suit, despite the fact that the case fell within the federal court's "arising under," or federal-question, jurisdiction. Justice Bradley's opinion did not purport to hold that the terms either of Article III or of the Eleventh Amendment barred the suit, but that the ancient doctrine of sovereign immunity that had inspired adoption of the Eleventh Amendment applied to cases beyond the Amendment's scope and otherwise within the federal-question jurisdiction. Indeed, Bradley explicitly admitted that "[i]t is true, the amendment does so read [as to permit Hans's suit], and if there were no other reason or ground for abating his suit, it might be maintainable." Hans, 134 U. S., at 10. The Court elected, nonetheless, to recognize a broader immunity doctrine, despite the want of any textual manifestation, because of what the Court described as the anomaly that would have resulted otherwise: the Eleventh Amendment (according to the Court) would have barred a federal-question suit by a noncitizen, but the State would have been subject to federal jurisdiction at its own citizen's behest. Id., at 10-11. The State was accordingly held to be free to resist suit without its consent, which it might grant or withhold as it pleased.
Hans thus addressed the issue implicated (though not directly raised) in the preratification debate about the Citizen-State Diversity Clauses and implicitly settled by Chisholm: whether state sovereign immunity was cognizable by federal
Page: Index Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 NextLast modified: October 4, 2007