700
Breyer, J., dissenting
eign immunity where "necessary and proper" to the exercise of an Article I power. My reasons include those that Justices Stevens and Souter already have described in detail.
(1) Neither constitutional text nor the surrounding debates support Seminole Tribe's view that Congress lacks the Article I power to abrogate a State's sovereign immunity in federal-question cases (unlike diversity cases). Seminole Tribe, 517 U. S., at 82-83, and nn. 8, 9 (Stevens, J., dissenting); id., at 142-150 (Souter, J., dissenting); cf. the majority's characterization of this argument, ante, at 687-688.
(2) The precedents that offer important legal support for the doctrine of sovereign immunity do not help the Seminole Tribe majority. They all focus upon a critically different question, namely, whether courts, acting without legislative support, can abrogate state sovereign immunity, not whether Congress, acting legislatively, can do so. See Principality of Monaco v. Mississippi, 292 U. S. 313 (1934); Hans v. Louisiana, 134 U. S. 1 (1890); Chisholm v. Georgia, 2 Dall. 419, 429 (1793) (Iredell, J., dissenting); Seminole Tribe, supra, at 119 (Souter, J., dissenting) ("Because no federal legislation purporting to pierce state immunity was at issue, it cannot fairly be said that Hans held state sovereign immunity to have attained some constitutional status immunizing it from abrogation").
(3) Sovereign immunity is a common-law doctrine. The new American Nation received common-law doctrines selectively, accepting some, abandoning others, and frequently modifying those it accepted in light of the new Nation's special needs and circumstances. Seminole Tribe, supra, at 130-142 (Souter, J., dissenting). The new Nation's federalist lodestar, dual sovereignty (of State and Nation), demanded modification of the traditional single-sovereign immunity doctrine, thereby permitting Congress to narrow or abolish state sovereign immunity where necessary.
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