Cite as: 517 U. S. 44 (1996)
Souter, J., dissenting
tance in the succeeding centuries, the doctrine was never reduced to codification, and Americans took their understanding of immunity doctrine from Blackstone, see 3 W. Blackstone, Commentaries on the Laws of England, ch. 17 (1768). Here, as in the mother country, it remained a common-law rule. See generally Jaffe, 77 Harv. L. Rev., at 2-19; Borchard, Governmental Responsibility in Tort, VI, 36 Yale L. J. 1, 17-41 (1926).
This fact of the doctrine's common-law status in the period covering the founding and the later adoption of the Eleventh Amendment should have raised a warning flag to the Hans Court and it should do the same for the Court today. For although the Court has persistently assumed that the common law's presence in the minds of the early Framers must
civilized nations." ' " Ante, at 69 (quoting Hans, 134 U. S., at 17). The Hans Court, however, relied explicitly on the ground that a suit against the State by its own citizen was "not known . . . at the common law" and was not among the departures from the common law recognized by the Constitution. Id., at 15. Moreover, Hans explicitly adopted the reasoning of Justice Iredell's dissent in Chisholm, see 134 U. S., at 18-19, and that opinion could hardly have been clearer in relying exclusively on the common law. "The only principles of law . . . which can affect this case," Justice Iredell wrote, "[are] those that are derived from what is properly termed 'the common law,' a law which I presume is the ground-work of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of Legislation controuls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the country." 2 Dall., at 435 (emphasis deleted). See also Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279, 288 (1973) (Marshall, J., concurring in result) ("Sovereign immunity is a common-law doctrine that long predates our Constitution and the Eleventh Amendment, although it has, of course, been carried forward in our jurisprudence"); R. Watkins, The State as a Party Litigant 51-52 (1927) ("It thus seems probable that the doctrine of state immunity was accepted rather as an existing fact by the people of the states, than adopted as a theory. It was a matter of universal practice, and was accepted from the mother country along with the rest of the common law of England applicable to our changed state and condition").
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