Cite as: 527 U. S. 706 (1999)
Souter, J., dissenting
v. Read, 322 U. S. 47, 51 (1944), it found no favor in the early Supreme Court, see infra, at 781.
In the Virginia ratifying convention, Madison was among those who debated sovereign immunity in terms of the result it produced, not its theoretical underpinnings. He maintained that "[i]t is not in the power of individuals to call any state into court," 3 Debates on the Federal Constitution 533 (J. Elliot 2d ed. 1863) (hereinafter Elliot's Debates), and thought that the phrase "in which a State shall be a Party" in Article III, § 2, must be interpreted in light of that general principle, so that "[t]he only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court." Elliot's Debates 533.15
John Marshall argued along the same lines against the possibility of federal jurisdiction over private suits against States, and he invoked the immunity of a State in its own courts in support of his argument:
"I hope that no gentleman will think that a state will be called at the bar of the federal court. Is there no such case at present? Are there not many cases in which the legislature of Virginia is a party, and yet the state is not sued? It is not rational to suppose that the sovereign power should be dragged before a court." Id., at 555.
There was no unanimity among the Virginians either on state- or federal-court immunity, however, for Edmund Randolph anticipated the position he would later espouse as plaintiff's counsel in Chisholm v. Georgia, 2 Dall. 419 (1793). He contented himself with agnosticism on the significance of what Hamilton had called "the general practice of mankind," and argued that notwithstanding any natural law view of the nonsuability of States, the Constitution permitted suit against a State in federal court: "I think, whatever the law
15 Madison seems here to have overlooked the possibility of concurrent jurisdiction between the Supreme Court's original jurisdiction and that of state courts.
775
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