786
Souter, J., dissenting
of law, be compelled to do justice, and be sued by individual citizens." Id., at 478. Although Chief Justice Jay did not speak specifically to the question of state sovereign immunity in state court, his theory shows that he considered not the States, but the people collectively, to be sovereign; and there is thus no reason to think he would have denied that the people of the Nation could override any state claim to sovereign immunity in a matter committed to the Nation.
Justice Cushing's opinion relied on the express language of Article III to hold that Georgia might be sued in federal court. He dealt shortly with the objection that States' sovereignty would be thereby restricted so that States would be reduced to corporations: "As to corporations, all States whatever are corporations or bodies politic. The only question is, what are their powers?" Id., at 468. Observing that the Constitution limits the powers of the States in numerous ways, he concluded that "no argument of force can be taken from the sovereignty of States. Where it has been abridged, it was thought necessary for the greater indispensable good of the whole." Ibid. From the opinion, it is not possible to tell with certainty what Justice Cushing thought about state sovereign immunity in state court, although his introductory remark is suggestive. The case, he wrote, "turns not upon the law or practice of England, although perhaps it may be in some measure elucidated thereby, nor upon the law of any other country whatever; but upon the Constitution established by the people of the United States." Id., at 466. It is clear that he had no sympathy for a view of sovereign immunity inherent in statehood and untouchable by national legislative authority.
Justice Blair, like Justice Cushing, relied on Article III, and his brief opinion shows that he acknowledged state sovereign immunity, but common law immunity in state court. First, Justice Blair asked hypothetically whether a verdict against the plaintiff would be preclusive if the plaintiff "should renew his suit against the State, in any mode in
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