796
Souter, J., dissenting
was a natural law jurist, see "Natural Law," in O. Holmes, Collected Legal Papers 312 (1920, reprinted 1952) ("The jurists who believe in natural law seem to me to be in that nai¨ve state of mind that accepts what has been familiar and accepted . . . as something that must be accepted"). But in Kawananakoa he gave not only a cogent restatement of the natural law view of sovereign immunity, but one that includes a feature (omitted from Hamilton's formulation) explaining why even the most absolutist version of sovereign immunity doctrine actually refutes the Court's position today: the Court fails to realize that under the natural law theory, sovereign immunity may be invoked only by the sovereign that is the source of the right upon which suit is brought. Justice Holmes said so expressly: "A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." Kawananakoa, supra, at 353.
roots not solely in the common law of England, but in the much more fundamental "jurisprudence in all civilized nations." ' " 517 U. S., at 69 (quoting Hans, supra, at 17, in turn quoting Beers v. Arkansas, supra, at 529). The Court's occasional seduction by the natural law view should not, however, obscure its basic adherence to the common law approach. In United States v. Lee, 106 U. S. 196 (1882), the Court explained that "the doctrine is derived from the laws and practices of our English ancestors," id., at 205, and added approvingly that the petition of right "has been as efficient in securing the rights of suitors against the crown in all cases appropriate to judicial proceedings, as that which the law affords to the subjects of the King in legal controversies among themselves," ibid. The Court went on to notice that at common law one reason given for sovereign immunity was the "absurdity" of the King's writ running against the King, id., at 206, but, recognizing the distinct situation in the United States, the Court admitted candidly that "it is difficult to see on what solid foundation of principle the exemption from liability to suit rests," ibid. Even the dissent there discussed in great detail the common law heritage of the doctrine. See id., at 227-234 (opinion of Gray, J.).
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