804
Souter, J., dissenting
III
If neither theory nor structure can supply the basis for the Court's conceptions of sovereign immunity and federalism, then perhaps history might. The Court apparently believes that because state courts have not historically entertained Commerce Clause based federal-law claims against the States, such an innovation carries a presumption of unconstitutionality. See ante, at 744 (arguing that absence of statutes authorizing suits against States in state court suggests an assumed absence of such power). At the outset, it has to be noted that this approach assumes a more cohesive record than history affords. In Hilton v. South Carolina Public Railways Comm'n, 502 U. S. 197 (1991) (Kennedy, J.), a case the Court labors mightily to distinguish, see ante, at 737,37
we held that a state-owned railroad could be sued in state court under the Federal Employers' Liability Act, 45 U. S. C. §§ 51-60, notwithstanding the lack of an express congressional statement, because " 'the Eleventh Amendment does not apply in state courts.' " Hilton, supra, at 205 (quoting Will v. Michigan Dept. of State Police, 491 U. S. 58, 63-64 (1989)).38 But even if the record were less unkempt, the
37 In its discussion of Hilton, the Court attempts to explain away the State's failure to raise a sovereign immunity defense by acknowledging candidly that when that case was decided, "it may have appeared to the State that Congress' power to abrogate its immunity from suit in any court was not limited by the Constitution at all." Ante, at 737. The reasoning of Hilton suggests that it appeared not only to the State, but also to the Court, that Congress could abrogate state sovereign immunity in state court. If Congress could not, then there would have been no jurisdiction in the case. The Court never even hinted that constitutional structure, much less the Tenth Amendment, might bar the suit, even though the dissent stressed that "the principle of federalism underlying the [Eleventh] Amendment pervades the constitutional structure," 502 U. S., at 209 (opinion of O'Connor, J.).
38 Nor does Poindexter v. Greenhow, 114 U. S. 270 (1885), one of the Virginia Coupon Cases, fit comfortably with the assumption that state courts have exercised no disputed jurisdiction over their own governments on federal questions. Under its Funding Act of 1871, Virginia had issued
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