Cite as: 517 U. S. 44 (1996)
Souter, J., dissenting
stitutional provision.23 But whatever set of quotations one may prefer, taking heed of such jurisprudential creations in assessing the contents of federal common law is a very different thing from reading them into the Founding Document itself.
The most damning evidence for the Court's theory that Hans rests on a broad rationale of immunity unalterable by Congress, however, is the Court's proven tendency to disregard the post-Hans dicta in cases where that dicta would have mattered.24 If it is indeed true that "private suits against States [are] not permitted under Article III (by virtue of the understanding represented by the Eleventh Amendment)," Union Gas, 491 U. S., at 40 (Scalia, J., concurring in part and dissenting in part), then it is hard to see how a State's sovereign immunity may be waived any more than it may be abrogated by Congress. See, e. g., Atascadero State Hospital v. Scanlon, 473 U. S., at 238 (recognizing that immunity may be waived). After all, consent of a party is in all other instances wholly insufficient to create subject-23 Indeed, The Chief Justice could hardly have been clearer in Fry v. United States, 421 U. S. 542 (1975), where he explained that "[t]he Court's decision in Hans v. Louisiana, 134 U. S. 1 (1890), offers impressive authority for the principle that the States as such were regarded by the Framers of the Constitution as partaking of many attributes of sovereignty quite apart from the provisions of the Tenth Amendment. . . .
"As it was not the Eleventh Amendment by its terms which justified the result in Hans, it is not the Tenth Amendment by its terms that prohibits congressional action which sets a mandatory ceiling on the wages of all state employees. Both Amendments are simply examples of the understanding of those who drafted and ratified the Constitution that the States were sovereign in many respects, and that although their legislative authority could be superseded by Congress in many areas where Congress was competent to act, Congress was nonetheless not free to deal with a State as if it were just another individual or business enterprise subject to regulation." Id., at 556-557 (dissenting opinion).
24 Indeed, in Nevada v. Hall, supra, at 439, The Chief Justice complained in dissent that the same statements upon which he relies today had been "dismiss[ed] . . . as dicta."
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