792
Souter, J., dissenting
General Randolph admitted that the position he espoused was unpopular not only in Georgia, but also in another State, probably Virginia.27 These items boil down to the proposition that the Justices knew (as who could not, with such a case before him) that at the ratifying conventions the significance of sovereign immunity had been, as it still was, a matter of dispute. This reality does not detract from, but confirms, the view that the Framers showed no intent to recognize sovereign immunity as an immutably inherent power of the States.
As to the third objection, that two Justices noted that the United States might possess sovereign immunity notwithstanding Article III, I explained, supra, at 785-786, that Chief Justice Jay thought this possibility was purely practical, not at all legal, and without any implication for state immunity vis-à-vis federal claims. Justice Cushing was so little troubled by the possibility he raised that he wrote, "If this be a necessary consequence, it must be so," Chisholm, supra, at 469, and simply suggested a textual reading that might have led to a different consequence.
Nor can the Court make good on its claim that the enactment of the Eleventh Amendment retrospectively reestablished the view that had already been established at the time of the framing (though eluding the perception of all but one Member of the Supreme Court), and hence "acted . . . to restore the original constitutional design," ante, at 722.28
27 The circumlocution "another State, whose will must be always dear to me," Chisholm, 2 Dall., at 419, hints at Randolph's home State. It seems odd to suggest that Randolph's acknowledgment of the unpopularity of his position in two States would somehow support the thought that the view was incorrect. Randolph himself had urged the same position at the Virginia ratifying convention, see supra, at 775-776, and so knew perfectly well that Virginia had ratified with full knowledge that his position might be the law.
28 It is interesting to note a case argued in the Supreme Court of Pennsylvania in 1798, in which counsel for the Commonwealth urged a version of the point that the Court makes here, and said that "[t]he language of the amendment, indeed, does not import an alteration of the Constitution,
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