812
Souter, J., dissenting
Blackstone considered it "a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded." 3 Blackstone *23. The generation of the Framers thought the principle so crucial that several States put it into their constitutions.42 And when Chief Justice Marshall asked about Marbury: "If he has a right, and that right has been violated, do the laws of his country afford him a remedy?," Marbury v. Madison, 1 Cranch 137, 162 (1803), the question was rhetorical, and the answer clear:
"The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court." Id., at 163.
Yet today the Court has no qualms about saying frankly that the federal right to damages afforded by Congress under the FLSA cannot create a concomitant private remedy. The right was "made for the benefit of" petitioners; they have been "hindered by another of that benefit"; but despite what has long been understood as the "necessary consequence of law," they have no action, cf. Ashby, supra, at 53, 87 Eng. Rep., at 815. It will not do for the Court to respond that a remedy was never available where the right in question was against the sovereign. A State is not the sovereign when a federal claim is pressed against it, and even the English sovereign opened itself to recovery and,
42 See, e. g., A Declaration of Rights and Fundamental Rules of the Delaware State § 12 (1776), 2 Sources and Documents of United States Constitutions 197, 198 (W. Swindler ed. 1775); Md. Const., Art. XVII (1776), 4 id., at 372, 373; Mass. Const., Art. XI (1780), 5 id., at 92, 94; Ky. Const., Art. XII, cl. 13 (1792), 4 id., at 142, 150; Tenn. Const., Art. XI, § 17 (1796), 9 id., at 141, 148.
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