Cite as: 517 U. S. 44 (1996)
Souter, J., dissenting
suit subject to a federal court's jurisdiction under the Citizen-State Diversity Clauses of Article III.
The general statement on sovereign immunity emphasized by the majority then follows, along with a reference back to The Federalist No. 32. The Federalist No. 81, at 548. What Hamilton draws from that prior paper, however, is not a general conclusion about state sovereignty but a particular point about state contracts:
"A recurrence to the principles there established will satisfy us, that there is no colour to pretend that the state governments, would by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will." Id., at 549.
The most that can be inferred from this is, as noted above, that in diversity cases applying state contract law the immunity that a State would have enjoyed in its own courts is carried into the federal court. When, therefore, the Hans Court relied in part upon Hamilton's statement, see 134 U. S., at 20, its reliance was misplaced; Hamilton was addressing diversity jurisdiction, whereas Hans involved federal-question jurisdiction under the Contracts Clause. No general theory of federal-question immunity can be inferred from Hamilton's discussion of immunity in contract suits. But that is only the beginning of the difficulties that accrue to the majority from reliance on The Federalist No. 81.
Hamilton says that a State is "not . . . amenable to the suit
of an individual without its consent . . . . [u]nless . . . there is a surrender of this immunity in the plan of the convention." The Federalist No. 81, at 548-549 (emphasis deleted). He
145
Page: Index Previous 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 NextLast modified: October 4, 2007