Cite as: 527 U. S. 706 (1999)
Souter, J., dissenting
one would think the remedy adequate if private tort claims against a State could only be brought by the National Government: the tradition of private enforcement, as old as the common law itself, is the benchmark. But wage claims have a lineage of private enforcement just as ancient, and a claim under the FLSA is a claim for wages due on work performed. Denying private enforcement of an FLSA claim is thus on par with closing the courthouse door to state tort victims unaccompanied by a lawyer from Washington.
So there is much irony in the Court's profession that it grounds its opinion on a deeply rooted historical tradition of sovereign immunity, when the Court abandons a principle nearly as inveterate, and much closer to the hearts of the Framers: that where there is a right, there must be a remedy. Lord Chief Justice Holt could state this as an unquestioned proposition already in 1702, as he did in Ashby v. White, 6 Mod. 45, 53-54, 87 Eng. Rep. 808, 815 (Q. B.):
"If an act of parliament be made for the benefit of any person, and he is hindered by another of that benefit, by necessary consequence of law he shall have an action; and the current of all the books is so" (citation omitted).41
41 The principle is even older with respect to rights created by statute, like the FLSA rights here, than it is for common law damages. Lord Holt in fact argued that the well-established principle in the context of statutory rights applied to common law rights as well. See Ashby v. White, 6 Mod., at 54, 87 Eng. Rep., at 816 ("Now if this be so in case of an Act of Parliament, why shall not common law be so too? For sure the common law is as forcible as any Act of Parliament"). A still older formulation of the statutory right appears in a note in Coke's Reports: "[W]hen any thing is prohibited by an act, although that the act doth not give an action, yet action lieth upon it." 6 Co. Rep., pt. 12, p. *100. Coke's Institutes yield a similar statement: "When any act doth prohibit any wrong or vexation, though no action be particularly named in the act, yet the party grieved shall have an action grounded upon this statute." 1 E. Coke, The Second Part of the Institutes of the Laws of England 117 (1797) (reprinted in 5B 2d Historical Writings in Law and Jurisprudence (1986)). In our case, of course, the statute expressly gives an action.
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