724
Opinion of the Court
contained should prevent a State from being sued by its own citizens in cases arising under the Constitution or laws of the United States: can we imagine that it would have been adopted by the States? The supposition that it would is almost an absurdity on its face." Hans, supra, at 14-15.
The more natural inference is that the Constitution was understood, in light of its history and structure, to preserve the States' traditional immunity from private suits. As the Amendment clarified the only provisions of the Constitution that anyone had suggested might support a contrary understanding, there was no reason to draft with a broader brush.
Finally, the swiftness and near unanimity with which the Eleventh Amendment was adopted suggest "either that the Court had not captured the original understanding, or that the country had changed its collective mind most rapidly." D. Currie, The Constitution in the Supreme Court: The First Hundred Years: 1789-1888, p. 18, n. 101 (1985). The more reasonable interpretation, of course, is that regardless of the views of four Justices in Chisholm, the country as a whole— which had adopted the Constitution just five years earlier— had not understood the document to strip the States of their immunity from private suits. Cf. Currie, The Constitution in Congress, at 196 ("It is plain that just about everybody in Congress agreed the Supreme Court had misread the Constitution").
Although the dissent attempts to rewrite history to reflect a different original understanding, its evidence is unpersuasive. The handful of state statutory and constitutional provisions authorizing suits or petitions of right against States only confirms the prevalence of the traditional understanding that a State could not be sued in the absence of an express waiver, for if the understanding were otherwise, the provisions would have been unnecessary. The constitutional amendments proposed by the New York and Rhode Island Conventions undercut rather than support the dissent's view
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