Cite as: 527 U. S. 706 (1999)
Souter, J., dissenting
demands, and it is fair to read its references to a "fundamental aspect" of state sovereignty as referring not to a prerogative inherited from the Crown, but to a conception necessarily implied by statehood itself. The conception is thus not one of common law so much as of natural law, a universally applicable proposition discoverable by reason. This, I take it, is the sense in which the Court so emphatically relies on Alexander Hamilton's reference in The Federalist No. 81, p. 548 (J. Cooke ed. 1961), to the States' sovereign immunity from suit as an "inherent" right, see ante, at 716, a characterization that does not require, but is at least open to, a natural law reading.
I understand the Court to rely on the Hamiltonian formulation with the object of suggesting that its conception of sovereign immunity as a "fundamental aspect" of sovereignty was a substantially popular, if not the dominant, view in the periods of Revolution and Confederation. There is, after all, nothing else in the Court's opinion that would suggest a basis for saying that the ratification of the Tenth Amendment gave this "fundamental aspect" its constitutional status and protection against any legislative tampering by Congress.2 The Court's principal rationale for today's result, then, turns on history: was the natural law conception of sovereign immunity as inherent in any notion of an independent State widely held in the United States in the period preceding the ratification of 1788 (or the adoption of the Tenth Amendment in 1791)?
2 I am assuming that the Court does not put forward the theory of the "fundamental aspect" as a newly derived conception of its own, necessarily comprehended by the Tenth Amendment guarantee only as a result of logic independent of any intention of the Framers. Nor does the Court argue, and I know of no reason to suppose, that every legal advantage a State might have enjoyed at common law was assumed to be an inherent attribute of all sovereignties, or was constitutionalized wholesale by the Tenth Amendment, any more than the Ninth Amendment constitutionalized all common law individual rights.
763
Page: Index Previous 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 NextLast modified: October 4, 2007