Cite as: 517 U. S. 44 (1996)
Souter, J., dissenting
1982; see generally Foner, Reconstruction, at 575-587 (describing the events of 1877 and their aftermath). The troop withdrawal, of course, left the federal judiciary "effectively without power to resist the rapidly coalescing repudiation movement." Gibbons, 83 Colum. L. Rev., at 1981. Contract Clause suits like the one brought by Hans thus presented this Court with "a draconian choice between repudiation of some of its most inviolable constitutional doctrines and the humiliation of seeing its political authority compromised as its judgments met the resistance of hostile state governments." Id., at 1974. Indeed, Louisiana's brief in Hans unmistakably bore witness to this Court's inability to enforce a judgment against a recalcitrant State: "The solemn obligation of a government arising on its own acknowledged bond would not be enhanced by a judgment rendered on such bond. If it either could not or would not make provision for paying the bond, it is probable that it could not or would not make provision for satisfying the judgment." Brief for Respondent in No. 4, O. T. 1889, p. 25. Given the likelihood that a judgment against the State could not be enforced, it is not wholly surprising that the Hans Court found a way to avoid the certainty of the State's contempt.16
16 See Gibbons, 83 Colum. L. Rev., at 2000 ("Without weakening the contract clause, which over the next two decades the Fuller Court might need both in its fight against government regulation of business and as a weapon against defaulting local governments, the justices needed a way to let the South win the repudiation war. The means Bradley chose was to rewrite the eleventh amendment and the history of its adoption"). The commentators' contention that this Court's inability to enforce the obligation of Southern States to pay their debts influenced the result in Hans v. Louisiana, 134 U. S. 1 (1890), is substantiated by three anomalies of this Court's sovereign immunity jurisprudence during that period. First, this Court held in 1885 that Virginia's sovereign immunity did not allow it to abrogate its bonds. Virginia Coupon Cases, 114 U. S. 269. The difference from the situation in other States, however, was that Virginia had made its bond coupons receivable in payment of state taxes; "[u]nder these circumstances federal courts did not need to rely on the political branches of government to enforce their orders but could protect creditors by a
121
Page: Index Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 NextLast modified: October 4, 2007