126
Souter, J., dissenting
is not the only weakness of these statements, which are counterbalanced by many other opinions that have either stated the immunity principle without more, see, e. g., Dellmuth v. Muth, 491 U. S. 223, 229, n. 2 (1989) (noting that "an unconsenting State is immune from liability for damages in a suit brought in federal court by one of its own citizens," without suggesting that the immunity was unalterable by Congress),21 or have suggested that the Hans immunity is not of constitutional stature. The very language quoted by the majority from Monaco, for example, likens state sovereign immunity to other "essential postulates" such as the rules of justiciability. 292 U. S., at 322. Many of those rules, as Justice Stevens points out, are prudential in nature and therefore not unalterable by Congress. See ante, at 88-90.22
More generally, the proponents of the Court's theory have repeatedly referred to state sovereign immunity as a "background principle," ante, at 72, "postulate," Nevada v. Hall, 440 U. S., at 437 (Rehnquist, J., dissenting), or "implicit limitation," Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 496 (1987) (Scalia, J., concurring in part and concurring in judgment), and as resting on the "inherent nature of sovereignty," Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 51 (1944), rather than any explicit con-power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given" should not necessarily be taken as affirming that Article III itself incorporated a constitutional immunity doctrine. How else to explain Justice Harlan's concurring opinion in Hans, which stated, practically in the same breath, that "a suit directly against a State by one of its own citizens is not one to which the judicial power of the United States extends," and that Chisholm "was based upon a sound interpretation of the Constitution as that instrument then was"? 134 U. S., at 21.
21 See also Georgia Railroad & Banking Co. v. Redwine, supra, at 304; Fitts v. McGhee, supra, at 524-525.
22 See also Warth v. Seldin, 422 U. S. 490, 501 (1975) ("Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules"); E. Chemerinsky, Federal Jurisdiction § 2.1, pp. 42-43 (2d ed. 1994).
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