Cite as: 527 U. S. 706 (1999)
Souter, J., dissenting
unlike Maine, provided the remedy to complement the right. To the Americans of the founding generation it would have been clear (as it was to Chief Justice Marshall) that if the King would do right, the democratically chosen Government of the United States could do no less.43 The Chief Justice's
43 Unfortunately, and despite the Court's professed "unwilling[ness] to assume the States will refuse to honor the Constitution and obey the binding laws of the United States," ante, at 755, that presumption of the sovereign's good-faith intention to follow the laws has managed somehow to disappear in the intervening two centuries, despite the general trend toward greater, not lesser, government accountability. Anyone inclined toward economic theories of history may look at the development of sovereign immunity doctrine in this country and see that it has been driven by the great and recurrent question of state debt, both in the aftermath of Chisholm and in the last quarter of the 19th century, see Seminole Tribe, 517 U. S., at 120-122 (Souter, J., dissenting). And no matter what one may think of the quality of the legal doctrine that the problem of state debt has helped to produce, one can at least argue that States' periodic attempts to repudiate their debts were not purely or egregiously lawless, because those who held state-issued bonds may well have valued and purchased them with the knowledge that default was a real possibility.
Maine's refusal to follow federal law in the case before us, however, is of a different order. Far from defaulting on debt to eyes-open creditors, Maine is simply withholding damages from private citizens to whom they appear to be due. Before Seminole Tribe was decided, petitioners here were the beneficiaries of a District Court ruling to the effect that they were entitled to some coverage, and hence to some amount of damages, under the FLSA. Mills v. Maine, 839 F. Supp. 3 (Me. 1993). Before us, Maine has not claimed that petitioners are not covered by the FLSA, but only that it is protected from suit. Indeed, Maine acknowledges that it may be sued by the United States in federal court for damages on the very same claim, Brief for Respondent 12-13, and we are told that Maine now pays employees like petitioners overtime as covered by the FLSA, id., at 3. Why the State of Maine has not rendered this case unnecessary by paying damages to petitioners under the FLSA of its own free will remains unclear to me. The Court says that "it is conceded by all that the State has altered its conduct so that its compliance with federal law cannot now be questioned." Ante, at 759. But the ambiguous qualifier "now" allows the Court to avoid the fact that whatever its forward-looking compliance, the State still has not paid damages to petitioners; had it done so, the case before us would be moot.
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