164
Souter, J., dissenting
"[t]he Common law is nothing more than the unwritten law, and is left by all the Constitutions equally liable to legislative alterations." Ibid.58 Indeed, Madison anticipated, and rejected, the Court's approach today when he wrote that if "the common law be admitted as . . . of constitutional obligation, it would confer on the judicial department a discretion little short of a legislative power . . . [which] would be permanent and irremediable by the Legislature." Alien and Sedition Laws 380. "A discretion of this sort," he insisted, "has always been lamented as incongruous and dangerous . . . ." Id., at 381.59
Madison's suspicion of the common law was that it included "a thousand heterogeneous & antirepublican doctrines." Letter from Madison to Washington (Oct. 18, 1787), reprinted in 3 Farrand 130, App. A. "[I]t will merit the most profound consideration," Madison was later to warn in his Report on the Virginia Resolutions Concerning the Alien and Sedition Laws, "how far an indefinite admission of the common law . . . might draw after it the various prerogatives making part of the unwritten law of England." Alien and Sedition Laws 380. Such an admission, Madison feared, would mean that "the whole code, with all its incongruities, barbarisms, and bloody maxims, would be inviolably saddled on the good people of the United States." Ibid. See also Amar, 96 Yale L. J., at 1490 ("[The] sole basis [of absolute government immunity from all suits] is the British idea that the sovereign government, as the source of all law, cannot itself be bound by any law absent its consent. . . . [L]iterally every article of the Federalist Constitution and every amendment in the Bill of Rights rests on the repudiation of the British view" (footnote omitted)).
58 See Wood 304, n. 75 ("To Jefferson in 1785 judicial discretion in the administration of justice was still the great evil and codification the great remedy"); G. White, The Marshall Court and Cultural Change, 1815-1835, p. 130 (1991) ("[A]n assumption of the constitutional design was that if Congress exercised [its enumerated] powers through legislation, its laws would supersede any competing ones").
59 The Court attempts to sidestep this history by distinguishing sovereign immunity as somehow different from other common-law principles. Ante, at 69. But see Chisholm v. Georgia, 2 Dall., at 435 (Iredell, J., dissenting) (arguing that the common law of England should control the case "so far as it is applicable to the peculiar circumstances of the country, and where no special act of Legislation controuls it"). The Court cannot find solace in any distinction between "substantive rules of law" and "ju-
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