782
Souter, J., dissenting
resenting Chisholm, Edmund Randolph, the Framer 22 and
then Attorney General, not only argued for the necessity of a federal forum to vindicate private rights against the States, see id., at 422, but rejected any traditional conception of sovereignty. He said that the sovereignty of the States, which he acknowledged, id., at 423, was no barrier to jurisdiction, because "the present Constitution produced a new order of things. It derives its origin immediately from the people . . . . The States are in fact assemblages of these individuals who are liable to process," ibid.
Justice Wilson took up the argument for the sovereignty of the people more vociferously. Building on a conception of sovereignty he had already expressed at the Pennsylvania
past hath been accustomed to be, or could be drawn or compelled to answer against the will of the said State of Georgia, before any Justices of the federal Circuit Court for the District of Georgia or before any Justices of any Court of Law or Equity whatever." Plea to the Jurisdiction, Oct. 17, 1791, id., at 143. Chisholm demurred to the plea on the apparent ground that while the plea alleged that Georgia could not be compelled to appear before any court, Article III expressly declared that the federal judicial power extended to all controversies between a State and citizens of another State. Demurrer, id., at 144. In his unreported opinion, Justice Iredell dispensed with this demurrer. He first stated that the plea sufficiently alleged that the District Court lacked jurisdiction. Id., at 150. He added that in any case, the existence of Congress's constitutional authority to create courts to hear controversies between a State and citizens of another State did not mean that Congress had in fact created such courts. Id., at 151. Third, Justice Iredell pointed out that the right to create courts for cases in which a State was a party did not mean that Congress could confer jurisdiction in cases like the one at bar, because the word "controversies" in Article III might refer only to situations "where such controversies could formerly have been maintained" in state court. Since "under the jurisdiction of a particular State Sovereigns may be liable in some instances but not in others," just as "[i]n England the property in possession of the crown can be affected by an adverse Process, tho' certainly the King cannot be sued for the recovery of a sum of money," ibid., it appeared to Justice Iredell that under some conditions Article III did not authorize suits against States.
22 Framer but not signer.
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