794
Souter, J., dissenting
It should not be surprising, then, to realize that although much post-Chisholm discussion was disapproving (as the States saw their escape from debt cut off), the decision had champions "every bit as vigorous in defending their interpretation of the Constitution as were those partisans on the other side of the issue." Marcus & Wexler, Suits Against States: Diversity of Opinion In The 1790s, 1993 J. Sup. Ct. Hist. 73, 83; see, e. g., 5 Documentary History of the Supreme Court, supra n. 21, at 251-252, 252-253, 262-264, 268-269 (newspaper articles supporting holding in Chisholm); 5 Documentary History of the Supreme Court, supra, at 616 (statement of a committee of Delaware Senate in support of holding in Chisholm). The federal citizen-state diversity jurisdiction was settled by the Eleventh Amendment; Article III was not "restored."
Amendment had in mind only diversity cases, as the Court was prepared to concede in Seminole Tribe, see 517 U. S., at 69-70 ("The text dealt in terms only with the problem presented by the decision in Chisholm . . . . [I]t seems unlikely that much thought was given to the prospect of federal-question jurisdiction over the States"), then it might plausibly follow that the framers of that Amendment assumed that States possessed sovereign immunity in their own courts with respect to state law. But it certainly does not follow that the Amendment's authors would have thought that States enjoyed immunity in state court on questions of federal law. To accept this would require one to believe that the framers of the Eleventh Amendment were blind to an extremely anomalous application of sovereign immunity, under which a State is immune even when it is not the font of the law under which it is sued, cf. infra, at 797-798, 800. The Court today may labor under the misapprehension that sovereign immunity can apply where the sovereign is not the font of law, but the Court adduces no evidence to suggest that the framers of the Eleventh Amendment held such a view. And the framers were much closer than the Court to the theory of sovereign immunity according to which the font of law may not be subject to suit under that law. This leaves the Court in the position of supporting its view of what the Eleventh Amendment means by the "historical" assertion that the framers must have intended it to mean the same.
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