142
Souter, J., dissenting
ing the lack of evidence to support the proposition that the Framers intended a general reception of the English common law through the Constitution); Jay II, at 1254 (arguing that "[i]t would have been untenable to maintain that the body of British common law had been adopted by the Constitution . . . "). Madison concluded that
"[i]t is . . . distressing to reflect that it ever should have been made a question, whether the Constitution, on the whole face of which is seen so much labor to enumerate and define the several objects of Federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law—a law filling so many ample volumes; a law over-spreading the entire field of legislation; and a law that would sap the foundation of the Constitution as a system of limited and specified powers." Alien and Sedition Laws 382.
B
Given the refusal to entertain any wholesale reception of common law, given the failure of the new Constitution to make any provision for adoption of common law as such, and given the protests already quoted that no general reception had occurred, the Hans Court and the Court today cannot reasonably argue that something like the old immunity doctrine somehow slipped in as a tacit but enforceable background principle. But see ante, at 72. The evidence is even more specific, however, that there was no pervasive understanding that sovereign immunity had limited federal-question jurisdiction.
1
As I have already noted briefly, see supra, at 105-106, the Framers and their contemporaries did not agree about the
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