Cite as: 517 U. S. 44 (1996)
Souter, J., dissenting
to ask whether the old law brought the old defenses with it. But it is equally understandable that questions seem not to have been raised about state sovereign immunity in federal-question cases. The very idea of a federal question depended on the rejection of the simple concept of sovereignty from which the immunity doctrine had developed; under the English common law, the question of immunity in a system of layered sovereignty simply could not have arisen. Cf., e. g., Jay II, at 1282-1284; Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States, at 6-7.51 The Framers' principal objectives in rejecting English theories of unitary sovereignty, moreover, would have been impeded if a new concept of sovereign immunity had taken its place in federal-question cases, and would have been substantially thwarted if that new immunity had been held to be untouchable by any congressional effort to abrogate it.52
51 Cf. Jay I, at 1033-1034 ("English common law might afford clues to the meaning of some terms in the Constitution, but the absence of any close federal model was recognized even at the Convention"); F. Coker, Commentary, in R. Pound, C. McIlwain, & R. Nichols, Federalism as a Democratic Process 81-82 (1942).
52 See, e. g., Prout v. Starr, 188 U. S. 537, 543 (1903) (acknowledging the immunity recognized in Hans and other cases, but observing that "[i]t would, indeed, be most unfortunate if the immunity of the individual States from suits by citizens of other States, provided for in the Eleventh Amendment, were to be interpreted as nullifying those other provisions which confer power on Congress . . . all of which provisions existed before the adoption of the Eleventh Amendment, which still exist, and which would be nullified and made of no effect, if the judicial power of the United States could not be invoked to protect citizens affected by the passage of state laws disregarding these constitutional limitations"). The majority contends that state compliance with federal law may be enforced by other means, ante, at 71, n. 14, but its suggestions are all pretty cold comfort: the enforcement resources of the Federal Government itself are limited; appellate review of state court decisions is contingent upon state consent to suit in state court, and is also called into question by the majority's rationale, see supra, at 114; and the Court's decision today illustrates
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