770
Stevens, J., dissenting
Justice Stevens, dissenting.
Justice Breyer has explained why the Court's recent sovereign immunity jurisprudence does not support today's decision. I join his opinion without reservation, but add these words to emphasize the weakness of the two predicates for the majority's holding. Those predicates are, first, the Court's recent decision in Alden v. Maine, 527 U. S. 706 (1999), and second, the "preeminent" interest in according States the "dignity" that is their due. Ante, at 760.
Justice Souter has already demonstrated that Alden's creative "conception of state sovereign immunity . . . is true neither to history nor to the structure of the Constitution." 527 U. S., at 814 (dissenting opinion). And I have previously explained that the "dignity" rationale is " 'embarrassingly insufficient,' " Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 97 (1996) (dissenting opinion; citation omitted), in part because "Chief Justice Marshall early on laid to rest the view that the purpose of the Eleventh Amendment was to protect a State's dignity," id., at 96-97 (citing Cohens v. Virginia, 6 Wheat. 264, 406-407 (1821)).
This latter point is reinforced by the legislative history of the Eleventh Amendment. It is familiar learning that the Amendment was a response to this Court's decision in Chisholm v. Georgia, 2 Dall. 419 (1793). Less recognized, however, is that Chisholm necessarily decided two jurisdictional issues: that the Court had personal jurisdiction over the state defendant, and that it had subject-matter jurisdiction over the case.1 The first proposed draft of a constitutional amendment responding to Chisholm—introduced in the House of Representatives in February 1793, on the day after Chisholm was decided—would have overruled the first
1 See Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1561, 1565-1566 (2002).
Page: Index Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 NextLast modified: October 4, 2007