Cite as: 517 U. S. 44 (1996)
Stevens, J., dissenting
against unconsenting States.5 I agree with Justice Iredell that such a construction of Article III is incorrect; that Article should not then have been construed, and should not now be construed, to prevent Congress from granting States a sovereign immunity defense in such cases.6 That reading of Article III, however, explains why the majority's holding in Chisholm could not have been reversed by a simple statutory amendment adopting Justice Iredell's interpretation of the Judiciary Act of 1789. There is a special irony in the fact that the error committed by the Chisholm majority was its decision that this Court, rather than Congress, should define the scope of the sovereign immunity defense. That, of course, is precisely the same error the Court commits today.
In light of the nature of the disagreement between Justice Iredell and his colleagues, Chisholm's holding could have been overturned by simply amending the Constitution to restore to Congress the authority to recognize the doctrine. As it was, the plain text of the Eleventh Amendment would seem to go further and to limit the judicial power itself in a certain class of cases. In doing so, however, the Amend-5 In this respect, Chisholm v. Georgia should be understood to be of a piece with the debate over judicial power famously joined in Martin v. Hunter's Lessee, 1 Wheat. 304, 337 (1816). There, too, the argument centered on whether Congress had the power to limit the seemingly expansive jurisdictional grant that Article III had conferred, not on whether Article III itself provided the relevant limitation.
6 The contention that Article III withdrew Georgia's sovereign immunity had special force precisely because Chisholm involved an action premised on the Supreme Court's original jurisdiction. While Article III leaves it to Congress to establish the lower federal courts, and to make exceptions to the Supreme Court's appellate jurisdiction, it specifically mandates that there be a Supreme Court and that it shall be vested with original jurisdiction over those actions in which "a State shall be Party." Art. III, § 2. In light of that language, the Chisholm majority's conclusion that the Supreme Court had a constitutional obligation to take jurisdiction of all suits against States was not implausible.
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