138
Souter, J., dissenting
beas corpus, U. S. Const., Art. I, § 9, cl. 2, and the distinction between law and equity, U. S. Const., Amdt. 7, by specific reference in the constitutional text. See 1 J. Goebel, Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Antecedents and Beginnings to 1801, pp. 229- 230 (1971).34 This approach reflected widespread agreement that ratification would not itself entail a general reception of the common law of England. See Letter from John Marshall to St. George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A, at 1326 ("I do not believe one man can be found" who maintains "that the common law of England has . . . been adopted as the common law of America by the Constitution of the United States"); Jay II, at 1255 (noting that the use of the term "laws" in Article III "could not have been meant to accomplish a general reception of British common law").
Records of the ratification debates support Marshall's understanding that everyone had to know that the new Constitution would not draw the common law in its train. Anti-federalists like George Mason went so far as to object that
34 See also Jones 123-124 (noting that the common-law institutions of habeas corpus and jury trial were "not merely received as ordinary law," but rather "received by [specific textual provisions] of the Constitution itself, as part of the supreme law of the land"). Sovereign immunity, of course, was not elevated to constitutional status in this way; such immunity thus stands on the same footing as any other common-law principle which the Framers refused to place beyond the reach of legislative change. That such principles were and are subject to legislative alteration is confirmed by our treatment of other forms of common-law immunities, such as the immunity enjoyed under certain circumstances by public officials. Butz v. Economou, 438 U. S. 478, 508 (1978) (officer immunity is derived from the common law); Imbler v. Pachtman, 424 U. S. 409, 421 (1976) (same). In this context, "our immunity decisions have been informed by the common law" only "in the absence of explicit . . . congressional guidance." Nixon v. Fitzgerald, 457 U. S. 731, 747 (1982). See generally ante, at 87-88 (Stevens, J., dissenting); Jackson, 98 Yale L. J., at 75-104. Surely no one would deny Congress the power to abrogate those immunities if it should so choose.
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