Cite as: 517 U. S. 44 (1996)
Souter, J., dissenting
considering those errors, it is necessary to address the Court's contention that subsequent cases have read into Hans what was not there to begin with, that is, a background principle of sovereign immunity that is constitutional in stature and therefore unalterable by Congress.
B
The majority does not dispute the point that Hans v. Louisiana, 134 U. S. 1 (1890), had no occasion to decide whether Congress could abrogate a State's immunity from federal-question suits. The Court insists, however, that the negative answer to that question that it finds in Hans and subsequent opinions is not "mere obiter dicta, but rather . . . the well-established rationale upon which the Court based the results of its earlier decisions." Ante, at 66-67. The exact rationale to which the majority refers, unfortunately, is not easy to discern. The Court's opinion says, immediately after its discussion of stare decisis, that "[f]or over a century, we have grounded our decisions in the oft-repeated understanding of state sovereign immunity as an essential part of the Eleventh Amendment." Ante, at 67. This cannot be the "rationale," though, because this Court has repeatedly acknowledged that the Eleventh Amendment standing alone
that one is forced to look elsewhere in order to understand how the Court could have gone so far wrong. Nor is there anything new or remarkable in taking such a look, for we have sought similar explanations in other cases. In Puerto Rico v. Branstad, 483 U. S. 219 (1987), for example, we suggested that the Court's holding in Kentucky v. Dennison, 24 How. 66 (1861), that "the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it," id., at 107, was influenced by "the looming shadow of a Civil War," Branstad, supra, at 227, and we ultimately determined that Dennison should be overruled, 483 U. S., at 230. The author of the Court's opinion today joined that analysis, as did the other Members of today's majority who were then on the Court. See ibid. (O'Connor, J., concurring in part and concurring in judgment) (joining the relevant portion of the majority opinion); id., at 231 (Scalia, J., concurring in part and concurring in judgment) (same).
123
Page: Index Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 NextLast modified: October 4, 2007