130
Souter, J., dissenting
must attend"); Bennis v. Michigan, 516 U. S. 442, 450 (1996). But because the Court disregards this norm today, I must consider the soundness of Hans's original recognition of a background principle of sovereign immunity that applies even in federal-question suits, and the reasons that counsel against the Court's extension of Hans's holding to the point of rendering its immunity unalterable by Congress.
III
Three critical errors in Hans weigh against constitutionalizing its holding as the majority does today. The first we have already seen: the Hans Court misread the Eleventh Amendment, see supra, at 118-123. It also misunderstood the conditions under which common-law doctrines were received or rejected at the time of the founding, and it fundamentally mistook the very nature of sovereignty in the young Republic that was supposed to entail a State's immunity to federal-question jurisdiction in a federal court. While I would not, as a matter of stare decisis, overrule Hans today, an understanding of its failings on these points will show how the Court today simply compounds already serious error in taking Hans the further step of investing its rule with constitutional inviolability against the considered judgment of Congress to abrogate it.
A
There is and could be no dispute that the doctrine of sovereign immunity that Hans purported to apply had its origins in the "familiar doctrine of the common law," The Siren, 7 Wall. 152, 153 (1869), "derived from the laws and practices of our English ancestors," United States v. Lee, 106 U. S. 196, 205 (1882).26 Although statutes came to affect its impor-26 The Court seeks to disparage the common-law roots of the doctrine, and the consequences of those roots which I outline infra, at 132-142 and 159-164, by asserting that Hans "found its roots not solely in the common law of England, but in the much more fundamental ' "jurisprudence in all
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