Cite as: 527 U. S. 706 (1999)
Souter, J., dissenting
F
It is clear enough that the Court has no historical predicate to argue for a fundamental or inherent theory of sovereign immunity as limiting authority elsewhere conferred by the Constitution or as imported into the Constitution by the Tenth Amendment. But what if the facts were otherwise and a natural law conception of state sovereign immunity in a State's own courts were implicit in the Constitution? On good authority, it would avail the State nothing, and the Court would be no less mistaken than it is already in sustaining the State's claim today.
The opinion of this Court that comes closer to embodying the present majority's inherent, natural law theory of sovereign immunity than any other I can find was written by Justice Holmes in Kawananakoa v. Polyblank, 205 U. S. 349 (1907).30 I do not, of course, suggest that Justice Holmes
30 The temptation to look to the natural law conception had shown up occasionally before Justice Holmes's appointment, and goes back at least to Beers v. Arkansas, 20 How. 527 (1858), in which Chief Justice Taney wrote for the Court that "[i]t is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission," id., at 529. But nothing turned on this pronouncement, because the outcome in the case would have been the same had sovereign immunity been understood as a common law property of the States. In Nichols v. United States, 7 Wall. 122 (1869), Justice Davis wrote: "Every government has an inherent right to protect itself against suits . . . . The principle is fundamental, [and] applies to every sovereign power . . . ." Id., at 126. This description came in dicta, and the origin of the immunity had no bearing on the decision. Justice Bradley quoted both Hamilton and Chief Justice Taney in Hans v. Louisiana, 134 U. S. 1, 13, 17 (1890), but nothing there depended on the natural law approach, and in the main the opinion, whatever its other demerits, see Seminole Tribe, supra, at 119 (Souter, J., dissenting), understood state sovereign immunity as a common law concept, see Hans, supra, at 16 ("The suability of a State without its consent was a thing unknown to the law"). And the Court in Seminole Tribe may possibly have intended to hint at the natural law background of sovereign immunity when it said approvingly that the decision in Hans " 'found its
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