772
Souter, J., dissenting
Around the time of the Constitutional Convention, then, there existed among the States some diversity of practice with respect to sovereign immunity; but despite a tendency among the state constitutions to announce and declare certain inalienable and natural rights of men and even of the collective people of a State, see, e. g., Pennsylvania Constitution, Art. III (1776), 8 Sources and Documents of United States Constitutions, supra, at 278 ("That the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same"), no State declared that sovereign immunity was one of those rights. To the extent that States were thought to possess immunity, it was perceived as a prerogative of the sovereign under common law. And where sovereign immunity was recognized as barring suit, provisions for recovery from the State were in order, just as they had been at common law in England.
C
At the Constitutional Convention, the notion of sovereign immunity, whether as natural law or as common law, was not an immediate subject of debate, and the sovereignty of a State in its own courts seems not to have been mentioned. This comes as no surprise, for although the Constitution required state courts to apply federal law, the Framers did not consider the possibility that federal law might bind States, say, in their relations with their employees.12 In the subse-12 The Court says, "the Founders' silence is best explained by the simple fact that no one, not even the Constitution's most ardent opponents, suggested the document might strip States of the immunity." Ante, at 741. In fact, a stalwart supporter of the Constitution, James Wilson, laid the groundwork for just such a view at the Pennsylvania Convention, see infra, at 777-778. For the most part, it is true, the surviving records of the ratifying conventions do not suggest that much thought was given to the issue of suit against States in their own courts. But this silence does not tell us that the Framers' generation thought the prerogative so well settled as to be an inherent right of States, and not a common law creation. It says only that at the conventions, the issue was not on the participants'
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