128
Souter, J., dissenting
matter jurisdiction where it would not otherwise exist. See, e. g., Sosna v. Iowa, 419 U. S. 393, 398 (1975); see also E. Chemerinsky, Federal Jurisdiction § 7.6, p. 405 (2d ed. 1994) (noting that "allowing such waivers seems inconsistent with viewing the Eleventh Amendment as a restriction on the federal courts' subject matter jurisdiction"). Likewise, the Court's broad theory of immunity runs doubly afoul of the appellate jurisdiction problem that I noted earlier in rejecting an interpretation of the Eleventh Amendment's text that would bar federal-question suits. See supra, at 109-116. If "the whole sum of the judicial power granted by the Constitution to the United States does not embrace the authority to entertain a suit brought by a citizen against his own State without its consent," Duhne v. New Jersey, 251 U. S. 311, 313 (1920), and if consent to suit in state court is not sufficient to show consent in federal court, see Atascadero, supra, at 241, then Article III would hardly permit this Court to exercise appellate jurisdiction over issues of federal law arising in lawsuits brought against the States in their own courts. We have, however, quite rightly ignored any post-Hans dicta in that sort of case and exercised the jurisdiction that the plain text of Article III provides. See, e. g., Fulton Corp. v. Faulkner, 516 U. S. 325 (1996); see also supra, at 113-114.
If these examples were not enough to distinguish Hans's rationale of a pre-existing doctrine of sovereign immunity from the post-Hans dicta indicating that this immunity is constitutional, one would need only to consider a final set of cases: those in which we have assumed, without deciding, that congressional power to abrogate state sovereign immunity exists even when § 5 of the Fourteenth Amendment has no application. A majority of this Court was willing to make that assumption in Hoffman v. Connecticut Dept. of Income Maintenance, 492 U. S. 96, 101 (1989) (plurality opinion), in Welch v. Texas Dept. of Highways and Public Transp., supra, at 475 (plurality opinion), and in County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 252
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