Cite as: 527 U. S. 706 (1999)
Souter, J., dissenting
here, it is enough to say that by the time independence was declared in 1776, the locus of sovereignty was still an open question, except that almost by definition, advocates of independence denied that sovereignty with respect to the American Colonies remained with the King in Parliament.
As the concept of sovereignty was unsettled, so was that of sovereign immunity. Some States appear to have understood themselves to be without immunity from suit in their own courts upon independence.8 Connecticut and Rhode Island adopted their pre-existing charters as constitutions, without altering the provisions specifying their suability. See Gibbons, 83 Colum. L. Rev., at 1898, and nn. 42-43. Other new States understood themselves to be inheritors of the Crown's common law sovereign immunity and so enacted statutes authorizing legal remedies against the State parallel to those available in England.9 There, although the Crown
8 The Court claims that the doctrine of sovereign immunity was "universal in the States when the Constitution was drafted and ratified," ante, at 715-716, but the examples of Connecticut and Rhode Island suggest that this claim is overstated. It is of course true that these States' preservation without comment of their colonial suability could be construed merely as a waiver of sovereign immunity, and not as a denial of the principle. But in light of these States' silence as to any change in their status as suable bodies, it would be tendentious so to understand it. The Court relies for its claim on Justice Iredell's statement in Chisholm v. Georgia, 2 Dall. 419 (1793), that there was "no doubt" that no State had " 'any particular Legislative mode, authorizing a compulsory suit for the recovery of money against a State . . . either when the Constitution was adopted, or at the time the judicial act was passed.' " Ante, at 716 (quoting Chisholm, supra, at 434-435). But as the cases of Rhode Island and Connecticut demonstrate, Justice Iredell was simply wrong. As I have had occasion to say elsewhere, that an assertion of historical fact has been made by a Justice of the Court does not make it so. See Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 107, n. 5 (1996) (dissenting opinion).
9 The Court seems to think I have overlooked this point, that the exceptions imply a rule, see ante, at 724 (provisions for chancery petitions "only confir[m]" immunity enjoyed by these States). The reason for canvassing the spectrum of state thought and practice is not to deny the undoubted place of sovereign immunity in most States' courts, but to examine what
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