790
Souter, J., dissenting
The Court's discomfort is evident in its obvious recognition that its natural law or Tenth Amendment conception of state sovereign immunity is insupportable if Chisholm stands. Hence the Court's attempt to discount the Chisholm opinions, an enterprise in which I believe it fails.
The Court, citing Hans v. Louisiana, 134 U. S. 1 (1890), says that the Eleventh Amendment "overruled" Chisholm, ante, at 723, but the animadversion is beside the point. The significance of Chisholm is its indication that in 1788 and 1791 it was not generally assumed (indeed, hardly assumed at all) that a State's sovereign immunity from suit in its own courts was an inherent, and not merely a common law, advantage. On the contrary, the testimony of five eminent legal minds of the day confirmed that virtually everyone who understood immunity to be legitimate saw it as a common law prerogative (from which it follows that it was subject to abrogation by Congress as to a matter within Congress's Article I authority).
The Court does no better with its trio of arguments to undercut Chisholm's legitimacy: that the Chisholm majority "failed to address either the practice or the understanding that prevailed in the States at the time the Constitution was adopted," ante, at 721; that "the majority suspected the decision would be unpopular and surprising," ibid.; and that "two Members of the majority acknowledged that the United States might well remain immune from suit despite" Article III, ante, at 722. These three claims do not, of course, go to the question whether state sovereign immunity was understood to be "fundamental" or "inherent," but in any case, none of them is convincing.
an adverse precedent on immunity, see id., at 75. In Oswald v. New York, an action that commenced before Chisholm but that was continued after it, New York initially objected to jurisdiction, see 1993 J. Sup. Ct. Hist., at 77, but the suit was tried to a jury in the Supreme Court, and after New York lost, it paid the full jury verdict out of the State's treasury, id., at 78.
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