798
Souter, J., dissenting
ordinate sovereign will not be immune where the source of the right of action is the sovereign that is dominant. See Kawananakoa, 205 U. S., at 353, 354 (District of Columbia not immune to private suit, because private rights there are "created and controlled by Congress and not by a legislature of the District"). Since the law in this case proceeds from the national source, whose laws authorized by Article I are binding in state courts, sovereign immunity cannot be a defense. After Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985), Justice Holmes's logically impeccable theory yields the clear conclusion that even in a system of "fundamental" state sovereign immunity, a State would be subject to suit eo nomine in its own courts on a federal claim.
There is no escape from the trap of Holmes's logic save recourse to the argument that the doctrine of sovereign immunity is not the rationally necessary or inherent immunity of the civilians, but the historically contingent, and to a degree illogical, immunity of the common law. But if the Court admits that the source of sovereign immunity is the common law, it must also admit that the common law doctrine could be changed by Congress acting under the Commerce Clause. It is not for me to say which way the Court should turn; but in either case it is clear that Alden's suit should go forward.
II
The Court's rationale for today's holding based on a conception of sovereign immunity as somehow fundamental to sovereignty or inherent in statehood fails for the lack of any substantial support for such a conception in the thinking of the founding era. The Court cannot be counted out yet, however, for it has a second line of argument looking not to a clause-based reception of the natural law conception or even to its recognition as a "background principle," see Seminole Tribe, 517 U. S., at 72, but to a structural basis in the Constitution's creation of a federal system. Immunity, the
Page: Index Previous 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 NextLast modified: October 4, 2007