CHISHOLM, Ex'r. versus Georgia.

Upon which Mr. Randolph, the Attorney General of the United States, as counsel for the plaintiff.

IREDELL, Justice.

This great cause comes before the Court, on a motion made by the Attorney-General, that an order be made by this Court to the following effect: — "That, unless "the State of Georgia shall, after reasonable notice of this motion, "cause an appearance to be entered on behalf of the "said State, on the fourth day of next Term, or shew cause to "the contrary, judgment shall be entered for the Plaintiff, and "a writ of enquiry shall be awarded." Before such an order be made, it is proper that this Court should be satisfied it hath cognizance of the suit; for, to be sure we ought not to enter a conditional judgment (which this would be) in a case where we were not fully persuaded we had authority to do so.

This is the first instance wherein the important question involved in this cause has come regularly before the Court. In the Maryland case it did not, because the Attorney-General of the State voluntarily appeared. We could not, therefore, without the greatest impropriety, have taken up the question suddenly. That case has since been compromised: But, had it proceeded to trial, and a verdict been given for the Plaintiff, it would have been our duty, previous to our giving judgment, to have well considered whether we were warranted in giving it. I had then great doubts upon my mind, and should in such a case, have proposed a discussion of the subject. Those doubts have increased since, and, after the fullest consideration, I have been able to bestow on the subject, and the most respectful attention to the able argument of the Attorney-General, I am now decidedly of opinion that no such action as this before the Court can legally be maintained.

The action is an action of assumpsit. The particular question then before the Court, is, will an action of assumpsit lie against a State? This particular question (abstracted from the general one, viz. Whether, a State can in any instance be sued?) I took the liberty to propose to the consideration of the Attorney-General, last Term. I did so, because I have often found a great deal of confusion to arise from taking too large a view at once, and I had found myself embarrassed on this very subject, until I considered the abstract question itself. The Attorney-General has spoken to it, in deference to my request, as he has been pleased to intimate, but he spoke to this particular question slightly, conceiving it to be involved in the general one; and after establishing, as he thought, that point, he seemed to consider the other followed of course. He expressed, indeed, some doubt how to prove what appeared so plain. It seemed to him (if I recollect right) to depend principally on the solution of this simple question; can a State assume? But the Attorney-General must know, that in England, certain judicial proceedings not inconsistent with the sovereignty, may take place against the Crown, but that an action of assumpsit will not lie. Yet surely the King can assume as well as a State. So can the United States themselves, as well as any State in the Union: Yet, the Attorney-General himself has taken some pains to shew, that no action whatever is maintainable against the United States. I shall, therefore, confine myself, as much as possible, to the particular question before the Court, though every thing I have to say upon it will effect every kind of suit, the object of which is to compel the payment of money by a State.

The question, as I before observed, is, — will an action of assumpsit lie against a State? If it will, it must be in virtue of the Constitution of the United States, and of some law of Congress conformable thereto. The part of the Constitution concerning the Judicial Power, is as follows, viz: Art. 3. sect. 2. The Judicial Power shall extend, (1.) To all cases, in law and equity, arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. (2.) To all cases affecting Ambassadors, or other public Ministers, and Consuls; (3.) To all cases of Admiralty and Maritime Jurisdiction; (4.) To controversies to which the United States shall be a party; (5.) To controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State, claiming lands under grants of different States; and, between a State or the citizens thereof, and foreign States, citizens or subjects. The Constitution, therefore, provides for the jurisdiction wherein a State is a party, in the following instances: — 1st. Controversies between two or more States. 2d. Controversies between a State and citizens of another State. 3d. Controversies between a State, and foreign States, citizens, or subjects. And it also provides, that in all cases in which a State shall be a party, the Supreme Court shall have original jurisdiction.

The words of the general judicial act, conveying the authority of the Supreme Court, under the Constitution, so far as they concern this question, are as follow: — Sect. 13. "That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a State is a party, except between a State and its citizens; and except also, between a State and citizens of other States, or aliens, in which latter case it shall have original, but not exclusive jurisdiction. And shall have, exclusively, all jurisdiction of suits or proceedings against Ambassadors, or other public Ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by Ambassadors, or other public Ministers, or in which a Consul, or Vice-Consul, shall be a party."

The Supreme Court hath, therefore, FIRST. Exclusive jurisdiction in every controversy of a civil nature: 1st. Between two or more States. 2d. Between a State and a foreign State. 3d. Where a suit or proceeding is depending against Ambassadors, other public ministers, or their domestics, or domestic servants. SECOND. Original, but not exclusive jurisdiction, 1st. between a State and citizens of other States. 2d. Between a State and foreign citizens or subjects. 3d. Where a suit is brought by Ambassadors, or other public ministers. 4th, Where a consul or vice-consul, is a party. The suit now before the Court (if maintainable at all) comes within the latter description, it being a suit against a State by a citizen of another State.

The Constitution is particular in expressing the parties who may be the objects of the jurisdiction in any of these cases, but in respect to the subject-matter upon which such jurisdiction is to be exercised, uses the word "controversies" only. The act of Congress more particularly mentions civil controversies, a qualification of the general word in the Constitution, which I do not doubt every reasonable man will think well warranted, for it cannot be presumed that the general word "controversies" was intended to include any proceedings that relate to criminal cases, which in all instances that respect the same Government, only, are uniformly considered of a local nature, and to be decided by its particular laws. The word "controversy" indeed, would not naturally justify any such construction, but nevertheless it was perhaps a proper instance of caution in Congress to guard against the possibility of it.

A general question of great importance here occurs. What controversy of a civil nature can be maintained against a State by an individual? The framers of the Constitution, I presume, must have meant one of two things: Either 1. In the conveyance of that part of the judicial power which did not relate to the execution of the other authorities of the general Government (which it must be admitted are full and discretionary, within the restrictions of the Constitution itself), to refer to antecedent laws for the construction of the general words they use: Or, 2. To enable Congress in all such cases to pass all such laws, as they might deem necessary and proper to carry the purposes of this Constitution into full effect, either absolutely at their discretion, or at least in cases where prior laws were deficient for such purposes, if any such deficiency existed.

The Attorney-General has indeed suggested another construction, a construction, I confess, that I never heard of before, nor can I now consider it grounded on any solid foundation, though it appeared to me to be the basis of the Attorney-General's argument. His construction I take to be this: — "That the moment a Supreme Court is formed, it is to exercise all the judicial power vested in it by the Constitution, by its own authority, whether the Legislature has prescribed methods of doing so, or not." My conception of the Constitution is entirely different. I conceive, that all the Courts of the United States must receive, not merely their organization as to the number of Judges of which they are to consist; but all their authority, as to the manner of their proceeding, from the Legislature only. This appears to me to be one of those cases, with many others, in which an article of the Constitution cannot be effectuated without the intervention of the Legislative authority. There being many such, at the end of the special enumeration of the powers of Congress in the Constitution, is this general one: "To make all laws which shall be necessary and proper for carrying into execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." None will deny, that an act of Legislation is necessary to say, at least of what number the Judges are to consist; the President with the consent of the Senate could not nominate a number at their discretion. The Constitution intended this article so far at least to be the subject of a Legislative act. Having a right thus to establish the Court, and it being capable of being established in no other manner, I conceive it necessarily follows, that they are also to direct the manner of its proceedings. Upon this authority, there is, that I know, but one limit; that is, "that they shall not exceed their authority." If they do, I have no hesitation to say, that any act to that effect would be utterly void, because it would be inconsistent with the Constitution, which is a fundamental law paramount to all others, which we are not only bound to consult, but sworn to observe; and, therefore, where there is an interference, being superior in obligation to the other, we must unquestionably obey that in preference. Subject to this restriction, the whole business of organizing the Courts, and directing the methods of their proceeding where necessary, I conceive to be in the discretion of Congress. If it shall be found on this occasion, or on any other, that the remedies now in being are defective, for any purpose it is their duty to provide for, they no doubt will provide others. It is their duty to legislate so far as is necessary to carry the Constitution into effect. It is ours only to judge. We have no reason, nor any more right to distrust their doing their duty, than they have to distrust that we all do ours. There is no part of the Constitution that I know of, that authorises this Court to take up any business where they left it, and, in order that the powers given in the Constitution may be in full activity, supply their omission by making new laws for new cases; or, which I take to be same thing, applying old principles to new cases materially different from those to which they were applied before.

With regard to the Attorney-General's doctrine of incidents, that was founded entirely on the supposition of the other I have been considering. The authority contended for is certainly not one of those necessarily incident to all Courts merely as such.

If therefore, this Court is to be (as I consider it) the organ of the Constitution and the law, not of the Constitution only in respect to the manner of its proceeding, we must receive our directions from the Legislature in this particular, and have no right to constitute ourselves an officina brevium, or take any other short method of doing what the Constitution has chosen (and, in my opinion, with the most perfect propriety) should be done in another manner.

But the act of Congress has not been altogether silent upon this subject. The 14th sect. of the judicial act, provides in the following words: "All the before mentioned Courts of the United States, shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law." These words refer as well to the Supreme Court as to the other Courts of the United States. Whatever writs we issue, that are necessary for the exercise of our jurisdiction, must be agreeable to the principles and usages of law. This is a direction, I apprehend, we cannot supercede, because it may appear to us not sufficiently extensive. If it be not, we must wait till other remedies are provided by the same authority. From this it is plain that the Legislature did not chuse to leave to our own discretion the path to justice, but has prescribed one of its own. In doing so, it has, I think, wisely, referred us to principles and usages of law already well known, and by their precision calculated to guard against that innovating spirit of Courts of Justice, which the Attorney-General in another case reprobated with so much warmth, and with whose sentiments in that particular, I most cordially join. The principles of law to which reference is to be had, either upon the general ground I first alluded to, or upon the special words I have above cited, from the judicial act, I apprehend, can be, either, 1st. Those of the particular laws of the State, against which the suit is brought. Or, 2d. Principles of law common to all the States. I omit any consideration arising from the word "usages," tho' a still stronger expression. In regard to the principles of the particular laws of the State of Georgia, if they in any manner differed, so as to effect this question, from the principles of law, common to all the States, it might be material to enquire, whether, there would be any propriety or congruity in laying down a rule of decision which would induce this consequence, that an action would lie in the Supreme Court against some States, whose laws admitted of a compulsory remedy against their own Governments, but not against others, wherein no such remedy was admitted, or which would require, perhaps, if the principle was received, fifteen different methods of proceeding against States, all standing in the same political relation to the general Government, and none having any pretence to a distinction in its favor, or justly liable to any distinction to its prejudice. If any such difference existed in the laws of the different States, there would seem to be a propriety, in order to induce uniformity, (if a Constitutional power for that purpose exists), that Congress should prescribe a rule, fitted to this new case, to which no equal, uniform, and impartial mode of proceeding could otherwise be applied.

But this point, I conceive, it is unnecessary to determine, because I believe there is no doubt that neither in the State now in question, nor in any other in the Union, any particular Legislative mode, authorising a compulsory suit for the recovery of money against a State, was in being either when the Constitution was adopted, or at the time the judicial act was passed. Since that time an act of Assembly for such a purpose has been passed in Georgia. But that surely could have no influence in the construction of an act of the Legislature of the United States passed before.

The only principles of law, then, that can be regarded, are those common to all the States. I know of none such, which can affect this case, but those that are derived from what is properly termed "the common law," a law which I presume is the ground-work of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of Legislation controuls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the country. The statutes of England that are in force in America differ perhaps in all the States; and, therefore, it is probable the common law in each, is in some respects different. But it is certain that in regard to any common law principle which can influence the question before us no alteration has been made by any statute, which could occasion the least material difference, or have any partial effect. No other part of the common law of England, it appears to me, can have any reference to this subject, but that part of it which prescribes remedies against the crown. Every State in the Union in every instance where its sovereignty has not been delegated to the United States, I consider to be as compleatly sovereign, as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved. It must necessarily be so, because the United States have no claim to any authority but such as the States have surrendered to them: Of course the part not surrendered must remain as it did before. The powers of the general Government, either of a Legislative or Executive nature, or which particularly concerns Treaties with Foreign Powers, do for the most part (if not wholly) affect individuals, and not States: They require no aid from any State authority. This is the great leading distinction between the old articles of consederation, and the present constitution. The Judicial power is of a peculiar kind. It is indeed commensurate with the ordinary Legislative and Executive powers of the general government, and the Power which concerns treaties. But it also goes further. Where certain parties are concerned, although the subject in controversy does not relate to any of the special objects of authority of the general Government, wherein the separate sovereignties of the States are blended in one common mass of supremacy, yet the general Government has a Judicial Authority in regard to such subjects of controversy, and the Legislature of the United States may pass all laws necessary to give such Judicial Authority its proper effect. So far as States under the Constitution can be made legally liable to this authority, so far to be sure they are subordinate to the authority of the United States, and their individual sovereignty is in this respect limited. But it is limited no farther than the necessary execution of such authority requires. The authority extends only to the decision of controversies in which a State is a party, and providing laws necessary for that purpose. That surely can refer only to such controversies in which a State can be a party; in respect to which, if any question arises, it can be determined, according to the principles I have supported, in no other manner than by a reference either to pre-existent laws, or laws passed under the Constitution and in conformity to it.

Whatever be the true construction of the Constitution in this particular; whether it is to be construed as intending merely a transfer of jurisdiction from one tribunal to another, or as authorising the Legislature to provide laws for the decision of all possible controversies in which a State may be involved with an individual, without regard to any prior exemption; yet it is certain that the Legislature has in fact proceeded upon the former supposition, and not upon the latter. For, besides what I noticed before as to an express reference to principles and usages of law as the guide of our proceeding, it is observable that in instances like this before the Court, this Court hath a concurrent jurisdiction only; the present being one of those cases where by the judicial act this Court hath original but not exclusive jurisdiction. This Court, therefore, under that act, can exercise no authority in such instances, but such authority as from the subject matter of it may be exercised in some other Court. — There are no Courts with which such a concurrence can be suggested but the Circuit Courts, or Courts of the different States. With the former it cannot be, for admitting that the Constitution is not to have a restrictive operation, so as to confine all cases in which a State is a party exclusively to the Supreme Court (an opinion to which I am strongly inclined), yet there are no words in the definition of the powers of the Circuit Court which give a colour to an opinion, that where a suit is brought against a State by a citizen of another State, the Circuit Court could exercise any jurisdiction at all. If they could, however, such a jurisdiction, by the very terms of their authority, could be only concurrent with the Courts of the several States. It follows, therefore, unquestionably, I think, that looking at the act of Congress, which I consider is on this occasion the limit of our authority (whatever further might be constitutionaly, enacted) we can exercise no authority in the present instance consistently with the clear intention of the act, but such as a proper State Court would have been at least comepetent to exercise at the time the act was passed.

If therefore, no new remedy be provided (as plainly is the case), and consequently we have no other rule to govern us but the principles of the pre-existent laws, which must remain in force till superceded by others, then it is incumbent upon us to enquire, whether previous to the adoption of the Constitution (which period, or the period of passing the law, in respect to the object of this enquiry, is perfectly equal) an action of the nature like this before the Court could have been maintained against one of the States in the Union upon the principles of the common law, which I have shewn to be alone applicable. If it could, I think it is now maintainable here: If it could not, I think, as the law stands at present, it is not maintainable; whatever opinion may be entertained, upon the construction of the Constitution, as to the power of Congress to authorise such a one. Now I presume it will not be denied, that in every State in the Union, previous to the adoption of the Constitution, the only common law principles in regard to suits that were in any manner admissible in respect to claims against the State, were those which in England apply to claims against the crown; there being certainly no other principles of the common law which, previous to the adoption of this Constitution could, in any manner, or upon any colour, apply to the case of a claim against a State in its own Courts, where it was solely and completely sovereign in respect to such cases at least. Whether that remedy was strictly applicable or not, still I apprehend there was no other. The only remedy in a case like that before the Court, by which, by any possibility, a suit can be maintained against the crown in England, or could be at any period from which the common law, as in force in America, could be derived, I believe is that which is called a Petition of right. It is stated, indeed, in Com. Dig. 105. That "until the time of Edward I. the King might have been sued in all actions as a common person." And some authorities are cited for that position, though it is even there stated as a doubt. But the same authority adds — "but now none can have an action against the King, but one shall be put to sue to him by petition." This appears to be a quotation or abstract from Theloall's Digest, which is also one of the authorities quoted in the former case. And this book appears (from the law catalogue) to have been printed so long ago as the year 1579. The same doctrine appears (according to a quotation in Blackstone's Commentaries, 1 Vol. 243) to be stated in Finch's Law 253, the first edition of which, it seems, was published in 1579. This also more fully appears in the case of the Bankers, and particularly from the celebrated argument of Lord Somers, in the time of W. III. for, though that case was ultimately decided against Lord Somers's opinion, yet the ground on which the decision was given no way invalidates the reasoning of that argument, so far as it respects the simple case of a sum of money demandable from the King, and not by him secured on any particular revenues. The case is reported in Freeman, Vol. 1. p. 331. 5 Mod. 29. Skinn. 601. and lately very elaborately in a small pamphlet published by Mr. Hargrave, which contains all the reports at length, except Skinner's, together with the argument at large of Lord Somers; besides some additional matter.

The substance of the case was as follows: — King Charles II. having received large sums of money from bankers, on the credit of the growing produce of the revenue, for the payment of which, tallies and orders of the Exchequer were given (afterwards made transferable by statute) and the payment of these having been afterward postponed, the King at length, in order to relieve the Bankers, in 1677, granted annuities to them out of the hereditary Excise, equal to 6 per cent interest on their several debts, but redeemable on payment of the principal. This interest was paid 'till 1683, but it then became in arrear, and continued so at the Revolution; and the suits which were commenced to enforce the payment of these arrears, were the subject of this case. The Bankers presented a petition to the Barons of the Exchequer, for the payment of the arrears of the annuities granted; to which petition the Attorney General demurred. Two points were made: First, whether the grant out of the Excise was good; second, whether a petition to the Barons of the Exchequer was a proper remedy. On the first point the whole Court agreed, that in general the King could alienate the revenues of the crown; but Mr. Baron Lechmere differed from the other Barons, by thinking that this particular revenue of the Excise, was an exception to the general rule. But all agreed, that the petition was a proper remedy. Judgment was therefore given for the petition by directing payment to the complainants at the receipt of the Exchequer. A writ of Error was brought on this judgment by the Attorney General in the Exchequer-Chamber. There all the judges who argued held the grant out of the Excise good. A majority of them, including Lord Chief Justice Holt, also approved of the remedy by petition to the Barons. But, Lord Chief Justice Treby was of opinion, that the Barons of the Exchequer were not authorised to make order for payments on the receipt of the Exchequer, and, therefore, that the remedy by petition to the Barons was inapplicable. In this opinion Lord Somers concurred. A doubt then arose, whether the Lord Chancellor and Lord High Treasurer were at liberty to give judgment according to their own opinion, in opposition to that of a majority of the attendant Judges; in other words, whether the Judges called by the Lord Chancellor and Lord High Treasurer were to be considered as mere assistants to them without voices. The opinion of the Judges being taken on this point, seven against three held, that the Lord Chancellor and Lord Treasurer were not concluded by the opinions of the Judges, and therefore that the Lord Keeper in the case in question, there being then no Lord Treasurer, might give judgment according to his own opinion. Lord Somers concurring in this idea, reversed the judgment of the Court of Exchequer. But the case was afterwards carried by error into Parliament, and there the Lords reversed the judgment of the Exchequer-Chamber, and affirmed that of the Exchequer. However, notwithstanding this final decision in favour of the Bankers and their creditors, it appears by a subsequent statute, that they were to receive only one half of their debts; the 12 and 14 W. 3. after appropriating certain sums out of the hereditary Excise for public uses, providing, that in lieu of the annuities granted to the Bankers and all arrears, the hereditary Excise should, after the 26th of December 1601, be charged with annual sums equal to an interest of three per cent, till redeemed by payment of one moiety of the principal sums. Hargrave's case of the Bankers, 1, 2, 3.

Upon perusing the whole of this case, these inferences naturally follow: — 1st. That admitting the authority of that decision in its fullest extent, yet it is an authority only in respect to such cases, where letters patent from the crown have been granted for the payment of certain sums out of a particular revenue. 2d. That such relief was grantable in the Exchequer, upon no other principle than that that Court had a right to direct the issues of the Exchequer as well after the money was deposited there as while (in the Exchequer language) it was in transitu. 3d. That such an authority could not have been exercised by any other Court in Westminster-Hall, or by any Court that from its particular constitution had no conrroul over the revenues of the Kingdom. Lord G.J. Holt, and Lord Somers (though they differed in the main point) both agreed in that case, that the Court of King's bench could not send a writ to the Treasury. Hargrave's case, 45, 89. Consequently, no such remedy could, under any circumstances, I apprehend, be allowed in any of the American States, in none of which it is presumed any Court of Justice hath any express authority over the revenues of the State such as has been attributed to the Court of Exchequer in England.

The observations of Lord Somers, concerning the general remedy by petition to the King, have been extracted and referred to by some of the ablest law characters since; particularly by Lord C. Baron Comyns in his digest. I shall, therefore, extract some of them, as he appears to have taken uncommon pains to collect all the material learning on the subject; and indeed is said to have expended several hundred pounds in the procuring of records relative to that case. Hargrave's preface to the case of the Bankers.

After citing many authorities, Lord Somers proceeds thus: — "By all there authorities, and by many others, which I could cite, both ancient and modern, it is plain, that if the subject was to recover a rent, or annuity, or other charge from the crown; whether it was a rent or annuity, originally granted by the King; or issuing out of lands, which by subsequent title came to be in the King's hands; in all cases the remedy to come at it was by petition to the person of the King: and no other method can be shewn to have been practised at common law. Indeed I take it to be generally true, that in all cases where the subject is in the nature of a Plaintiff, to recover any thing from the King, his only remedy, at common law, is to sue by Petition to the person of the King. I say, where the subject comes as a Plaintiff. For, as I said before, when, upon a title found for the King, by office, the subject comes in to traverse the King's title, or to shew his own right, he comes in the nature of a Defendant; and is admitted to interplead in the case with the King in defence of his title, which otherwise would be defeated by finding the office. And to shew that this was so, I would take notice of several instances. That, in cases of debts owing by the crown, the subject's remedy was by Petition, appears by Aynesham's case, Ryley, 251. which is a petition for £19. due for work done at Carnarvon castle. So Ryley 251. The executors of John Estrateling petition for £132. due to the testator for wages. The answer is remarkable; for there is a latitude taken, which will very well agree with the notion that is taken up in this case: Habeant bre. de liberate in Canc. thes. & camevar. de £32, in partem solutionis. So the case of Yerward de Galeys, for £56. Ryley 414. In like manner in the same book 253. 33. Ed. I. several parties sue by petition for money and goods taken for the King's use; and also for wages due to them; and for debts owing to them by the King. The answer is, Ren ordinavit per concilium thesaurarii & baronum de scaccario, quod satisfied iis quam citius fieri poterit; ita quod conterros fe tenebunt. And this is an answer given to a petition presented to the King in Parliament; and therefore we have reason to conclude it to be warranted by law. They must be content, and they shall be paid, quam citius fieri polerit. The parties, in these cases, first go to the King by petition: it is by him they are sent to the Exchequer; and it is by writ under the great seal, that the Exchequer is impowered to act. Nor can any such writ be found (unless in a very few instances, where it is mere matter of account) in which the Treasurer is not joined with the Barons. So far was it from being taken to be law at that time, that the Barons had any original power of paying the King's debts; or of commanding annuities, granted by the King or his progenitors, to be paid, when the person applied to them for such payment. But perhaps it may be objected, that it is not to be inferred, because petitions were brought in these cases, that therefore it was of necessity that the subject should pursue that course, and could take no other way. It might be reasonable to require from those who object thus, that they should produce some precedents at least, of another remedy taken. But I think there is a good answer to be given to this objection. All these petitions which I have mentioned, are after the Stat. 8 Ed. I. Ryley 442, where notice is taken that the business of Parliament is interrupted by a multitude of petitions, which might be redressed by the Chancellor and Justices. Wherefore it is thereby enacted, that petitions which touch the seal shall come first to the Chancellor; those which touch the Exchequer, to the Exchequer; and those which touch the Justices, or the law of the land, should come to the Justices; and if the business be so great, or si de grace that the Chancellor, or others, cannot do them without the King, then the petitions shall be brought before the King to know his pleasure; so that no petitions come before the King and his Council, but by the hands of the Chancellor, and other chief Ministers; that the King and his Council may attend the great affairs of the King's Realm, and his sovereign dominions." This law being made; there is reason to conclude that all petitions brought before the King or Parliament after this time, and answered there, were brought according to the method of this law; and were of the nature of such petitions as ought to be brought before the person of the King. And that petitions did lie for a chattel, as well as for a freehold, does appear 37 Ass. pl ii. Bro. Pet. 17. If tenant by the statute merchant be ousted, he may have petition, and shall be restored. Vide 9 H. 4. 4. Bro. Pet. 9. 9. H. 6. 21. Bro. Pet. 2. If the subject be ousted of his term, he shall have his petition. 7. H. 7. ii. Of a chattel real a man shall have his petition of right, as of his freehold. 34. H. 6. 51. Bro. Pet. 3. A man shall have a petition of right for goods and chattels, and the King indorses it in the usual form. It is said indeed, 1 H. 7. 3. Bro. Pet. 19. that a petition will not lie of a chattel. And, admitting there was any doubt as to that point, in the present suit we are in the case of a freehold." Lord Somers's argument in Hargrave's case of the Bankers, 103 to 105.

The solitary case, noticed at the conclusion of Lord Somers's argument, "that a petition will not lie of a chattel," certainly is deserving of no consideration, opposed to so many other instances mentioned, and unrecognized (as I believe it is) by any other authority either ancient or modern, whereas the contrary, it appears to me, has long been received and established law. In Comyns's Dig. 4 Vol. 458. It is said expressly "suit shall be to the King by petition, for goods as well as for land." He cites Staundf. Prær. 75. b. 72. b. for his authority, and takes no notice of any authority to the contrary. The same doctrine is also laid down with equal explicitness, and without noticing any distinction whatever, in Blackstone's Commentaries, 3 Vol. 256. where he points out the petition of right as one of the common law methods of obtaining possession or restitution from the crown, either of real or personal property; and says expressly the petition of right "is of use where the King is in full possession of any hereditaments or chattels, and the petitioner suggests such a right as controverts the title of the crown, grounded on facts disclosed in the petition itself."

I leave out of the argument, from which I have made so long a quotation, every thing concerning the restriction on the Exchequer, so far as it concerned the case then before the Court, as Lord Somers (although more perhaps by weight of authority than reasoning) was over-ruled in that particular. As to all others I consider the authorities on which he relied, and his deduction from them, to be unimpeached.

Blackstone, in the first volume of his commentaries (p. 203), speaking of demands in point of property, upon the King, states the general remedy thus: — "If any person has, in point of property, a just demand upon the King, he must petition him in his Court of Chancery, where his Chancellor will administer right, as a matter of grace, though not upon compulsion. (For which he cites Finch L. 255.) "And this is exactly consonant to what is laid down by the writers on natural law. — A subject, say Puffendorf, so long as he continues a subject, hath no way to oblige his Prince to give him his due when he refuses it; though no wife Prince will ever refuse to stand to a lawful contract. And if the Prince gives the subject leave to enter an action against him upon such contract, in his own Courts, the action itself proceeds rather upon natural equity, than upon the municipal laws. For the end of such action is not to compel the Prince to observe the contract, but to pursuade him."

It appears, that when a petition to the person of the King is properly presented, the usual way is for the King to indorse or underwrite, soit droit fait al partie, (let right be done to the party); upon which, unless the Attorney-General confesses the suggestion, a commission is issued to enquire into the truth of it: after the return of which, the King's attorney is at liberty to plead in bar, and the merits shall be determined upon issue or demurrer, as in suits between subject and subject. If the Attorney-General confesses the suggestion there is no occasion for a commission, his admission of the truth of the facts being equally conclusive as if they had been found by a jury. — See 3 Blackstone's Commentaries 256. and 4 Com. Dig. 458. and the authorities there cited. Though the above mentioned indorsement be the usual one, Lord Somers, in the course of his voluminous search, discovered a variety of other answers to what he considered were unquestionable petitions of right; in respect to which he observes: "The truth is, the manner of answering petitions to the person of the King was very various; which variety did sometimes arise from the conclusion of the party's petition; sometimes from the nature of the thing; and sometimes from favour to the person; and according as the indorsement was, the party was sent into Chancery, or the other Courts. If the indorsement was general, soit droit fait al partie, it must be delivered to the Chancellor of England, and then a commission was to go to find the right of the party; and that being found, so that there was a record so rhim, thus warranted, he is let in to interplead with the King: but if the indorsement was special, then the proceeding was to be according to the indorsement in any other Court. This is fully explained by Stamford, (Staundfort) in his treatise of the Prerog. c. 22. The case Mich. 10 H. 4. 4. no. 8. is full as to this matter. The King recovers in a Quare impedit by default against one who was never summoned; the party cannot have a writ of deceit without a petition. If then, says the book, he concludes his petition generally "que le Roy lui face droit" (that the King will cause right to be done) and the answer be general, it must go into the Chancery, that the right may inquired of by commission; and, upon the inquest sound, an original writ must be directed to the Justices to examine the deceit; otherwise, the Justices, before whom the suit was, cannot moddle: But if he conclude his petition especially, that it may please his Highness to command his Justices to proceed to the examination, and the indorsement be accordingly, that had given the Justices a jurisdiction. They might in such case have proceeded upon the petition without any commission, or any writ to be sued out; the petition and answer indorsed giving a sufficient jurisdiction to the Court to which it was directed. And as the book I have mentioned proves this, so many other authorities may be cited." He accordingly mentions many other instances, immaterial to be recitedhere, particularly remarking a very extraordinary difference in the case belonging to the revenue, in regard to which he said, he thought there was not an instance to be found where petitions were answered, soit droit fait aux parties (let right be done to the parties): The usual reference appears to have been to the Treasurer and Barons, commanding them to do justice: Sometimes a writ under the great seal was directed to be issued to them for that purpose: Sometimes a writ from the Chancery directing payment of money immediately, without taking notice of the Barons. And other varieties appear to have taken place. See Hargrave's case of the Bankers, p. 73, & seq. But in all cases of petition of right, of whatever nature is the demand, I think it is clear beyond all doubt, that there must be some indorsement or order of the King himself to warrant any further proceedings. The remedy, in the language of Blackstone, being a matter of grace, and not on compulsion.

In a very late case in England, this point was incidentally discussed. The case I refer to, is the case of Macbeath against Haldimand, reported 1st Durnford & East 172. The action was against the Defendant, for goods furnished by the Defendant's order in Canada, when the Defendant was Governor of Quebec. The defence was, that the Plaintiff was employed by the Defendant in his official capacity, and not upon his personal credit, and that the goods being therefore furnished for the use of Government, and the Defendant not having undertaken personally to pay, he was not liable. This defence was set up at the trial on the plea of the general issue, and the Jury, by. Judge Buller's direction, found a verdict for the Defendant. Ugon a motion for a new trial he reported particularly all the facts given in evidence, and said his opinion had been at the trial that the Plaintiff should be non-suited; "but the Plaintiff's counsel appearing for their client, when he was called, he left the question to the Jury, telling them that they were bound to find for the Defendant in point of law. And upon their asking him whether, in the event of the Defendant not being liable, any other person was, he told them, that was no part of their consideration, but being willing to give them any information, he added, that he was of opinion, that if the Plaintiff's demands were just, his proper remedy was by a Petition of right to the crown. On which they found a verdict for the Defendant. The rule for granting a new trial was moved for, on the misdirection of two points. 1st. That the Defendant had by his own conduct made himself liable, which question should have been left to the Jury. 2dly. That the Plaintiff had no remedy against the crown by a Petition of right, on the supposition of which the Jury had been induced to give their verdict." "Lord Mansfield, Chief Justice, now declared, that the Court did not feel it necessary for them to give any opinion on the second ground. His Lordship said that great difference had arisen since the revolution with respect to the expenditure of the public money. Before that period, all the public supplies were given to the King, who in 445*445 his individual capacity contracted for all expences. He alone had the disposition of the public money. But since that time the supplies had been appropriated by Parliament to particular purposes, and now, whoever advances money for the public service trusts to the faith of Parliament. That according to the tenor of Lord Somers's argument in the Bankers case, though a Petition of right would lie, yet it would probably produce no effect. No benefit was ever derived from it in the Bankers case; and Parliament was afterwards obliged to provide a particular fund for the payment of those debts. Whether, however, this alteration in the mode of distributing the supplies had made any difference in the law upon this subject, it was unnecessary to determine; at any rate, if there were a recovery against the crown, application must be made to Parliament, and it would come under the head of supplies for the year." The motion was afterwards argued on the other ground (with which I have at present nothing to do) and rejected.

In the old authorities there does not appear any distinction between debts that might be contracted personally by the King, for his own private use, and such as he contracted in his political capacity for the service of the kingdom. As he had however then fixed and independent revenues, upon which depended the ordinary support of Government, as well as the expenditure for his own private occasions, probably no material distinction at that time existed, or could easily be made. A very important distinction may however perhaps now subsist between the two cases, for the reasons intimated by Lord Mansfield; since the whole support of Government depends now on Parliamentary provisions, and, except in the case of the civil lift, those for the most part annual.

Thus, it appears, that in England even in case of a private debt contracted by the King, in his own person, there is no remedy but by petition, which must receive his express sanction, otherwise there can be no proceeding upon it. If the debt contracted be avowedly for the public uses of Government, it is at least doubtful whether that remedy will lie, and if it will, it remains afterwards in the power of Parliament to provide for it or not among the current supplies of the year.

Now let us consider the case of a debt due from a State. None can, I apprehend, be directly claimed but in the following instances. 1st. In case of a contract with the Legislature itself. 2d. In case of a contract with the Executive, or any other person, in consequence of an express authority from the Legislature. 3d. In case of a contract with the Executive without any special authority. In the first and second cases, the contract is evidently made on the public faith alone. Every man must know that no suit can lie against a Legislative body. His only dependence therefore can be, that the Legislature on principles of public duty, will make a provision for the execution of their own contracts, and if that fails, whatever reproach the Legislature may incur, the case is certainly without remedy in any of the Courts of the State. It never was pretended, even in the case of the crown in England, that if any contract was made with Parliament, or with the crown by virtue of an authority from Parliament, that a Petition to the crown would in such case lie. In the third case, a contract with the Governor of a State without any special authority. This case is entirely different from such a contract made with the crown in England. The crown there has very high prerogatives, in many instances is a kind of trustee for the public interest, in all cases represents the sovereignty of the Kingdom, and is the only authority which can sue or be sued in any manner on behalf of the Kingdom in any Court of Justice. A Governor of a State is a mere Executive officer; his general authority very narrowly limited by the Constitution of the State; with no undefined or disputable prerogatives; without power to effect one shilling of the public money, but as he is authorised under the Constitution, or by a particular law; having no colour to represent the sovereignty of the State, so as to bind it in any manner to its prejudice, unless specially authorised thereto. And therefore all who contract with him do it at their own peril, and are bound to see (or take the consequence of their own indiscretion) that he has strict authority for any contract he makes. Of course such contract when so authorised will come within the description I mentioned of cases where public faith alone is the ground of relief, and the Legislative body the only one that can afford a remedy, which from the very nature of it must be the effect of its discretion, and not of any compulsory process. If however any such cases were similar to those which would entitle a party to relief by petition to the King in England, that Petition being only presentable to him as he is the sovereign of the Kingdom, so far as analogy is to take place, such Petition in a State could only be presented to the sovereign power, which surely the Governor is not. The only constituted authority to which such an application could with any propriety be made, must undoubtedly be the Legislature, whose express consent, upon the principle of analogy, would be necessary to any further proceeding. So that this brings us (though by a different route) to the same goal; The discretion and good faith of the Legislative body.

There is no other part of the common law, besides that which I have considered, which can by any person be pretended in any manner to apply to this case, but that which concerns corporations. The applicability of this, the Attorney-General, with great candour, has expressly waved. But as it may be urged on other occasions, and as I wish to give the fullest satisfaction, I will say a few words to that doctrine. Suppose, therefore, it should be objected, that the reasoning I have now used is not conclusive, because, inasmuch as a State is made subject to the judicial power of Congress, its sovereignty must not stand in the way of the proper exercise of that power, and, therefore, in all such cases (though in no other) a State can only be considered as a subordinate corporation merely. I answer, 1st. That this construction can only be allowed, at the utmost, upon the supposition that the judicial authority of the United States, as it respects States, cannot be effectuated, without proceeding against them in that light: a position I by no means admit. 2d. That according to the principles I have supported in this argument, admitting that States ought to be so considered for that purpose, an act of the Legislature is necessary to give effect to such a construction, unless the old doctrine concerning corporations will naturally apply to this particular case. 3d. That as it is evident the act of Congress has not made any special provision in this case, grounded on any such construction, so it is to my mind perfectly clear that we have no authority, upon any supposed analogy between the two cases, to apply the common doctrine concerning corporations, to the important case now before the Court. I take it for granted, that when any part of an antient law is to be applied to a new case the circumstances of the new case must agree in all essential points with the circumstances of the old cases to which that antient law was formerly appropriated. Now there are, in my opinion, the most essential differences between the old cases of corporations to which the law intimated has reference, and the great and extraordinary case of States separately possessing, as to every thing simply relating to themselves, the fullest powers of sovereignty, and yet in some other defined particulars subject to a superior power composed out of themselves for the common welfare of the whole. The only law concerning corporations, to which I conceive the least reference is to be had, is the common law of England on that subject. I need not repeat the observations I made in respect to the operation of that law in this country. The word "corporations," in its largest sense, has a more extensive meaning than people generally are aware of. Any body politic (sole or aggregate) whether its power be restricted or transcendant, is in this sense "a corporation." The King, accordingly, in England is called a corporation. 10 Co. 29. b. So also, by a very respectable author (Sheppard, in his abridgement, 1 Vol. 431.) is the Parliament itself. In this extensive sense, not only each State singly, but even the United States may without impropriety be termed "corporations." I have, therefore, in contradistinction to this large and indefinite term, used the term "subordinate corporations," meaning to refer to such only (as alone capable of the slightest application, for the purpose of the objection) whose creation and whose powers are limited by law.

The differences between such corporations, and the several States in the Union, as relative to the general Government, are very obvious in the following particulars. 1st. A corporation is a mere creature of the King, or of Parliament; very rarely of the latter; most usually of the former only. It owes its existence, its name, and its laws, (except such laws as are necessarily incident to all corporations merely as such) to the authority which create it. A State does not owe its origin to the Government of the United States, in the highest or in any of its branches. It was in existence before it. It derives its authority from the same pure and sacred source as itself: The voluntary and deliberate choice of the people. 2d. A corporation can do no act but what is subject to the revision either of a Court of Justice, or of some other authority within the Government. A State is altogether exempt from the jurisdiction of the Courts of the United States, or from any other exterior authority, unless in the special instances where the general Government has power derived from the Constitution itself. 3d. A corporation is altogether dependant on that Government to which it owes its existence. Its charter may be forfeited by abuse. Its authority may be annihilated, without abuse, by an act of the Legislative body. A State, though subject in certain specified particulars to the authority of the Government of the United States, is in every other respect totally independent upon it. The people of the State created, the people of the State can only change, its Constitution. Upon this power there is no other limitation but that imposed by the Constitution of the United States; that it must be of the Republican form. I omit minuter distinctions. These are so palpable, that I never can admit that a system of law calculated for one of these cases is to be appllied, as a matter of course, to the other, without admitting (as I conceive) that the distinct boundaries of law and Legislation may be confounded, in a manner that would make Courts arbitrary, and in effect makers of a new law, instead of being (as certainly they alone ought to be) expositors of an existing one. If still it should be insisted, that though a State cannot be considered upon the same footing as the municipal corporations I have been considering, yet, as relative to the powers of the General Government it must be deemed in some measure dependent; admitting that to be the case (which to be sure is, so far as the necessary execution of the powers of the General Government extends) yet in whatever character this may place a State, this can only afford a reason for a new law; calculated to effectuate the powers of the General Government in this new case: But it affords no reason whatever for the Court admitting a new action to fit a case, to which no old ones apply, when the application of law, not the making of it, is the sole province of the Court.

I have now, I think, established the following particulars. — Ist. That the Constitution, so far as it respects the judicial authority, can only be carried into effect by acts of the Legislature appointing Courts, and prescribing their methods of proceeding. 2d. That Congress has provided no new law in regard to this case, but expressly referred us to the old. 3d. That there are no principles of the old law, to which we must have recourse, that in any manner authorise the present suit, either by precedent or by analogy. The consequence of which, in my opinion, clearly is, that the suit in question cannot be maintained, nor, of course, the motion made upon it be complied with.

From the manner in which I have viewed this subject, so different from that in which it has been contemplated by the Attorney General, it is evident, that I have not had occasion to notice many arguments offered by the Attorney General, which certainly were very proper, as to his extended view of the case, but do not affect mine. No part of the Law of Nations can apply to this case, as I apprehend, but that part which is termed "The Conventional Law of Nations;" nor can this any otherwise apply than as furnishing rules of interpretation, since unquestionably the people of the United States had a right to form what kind of union, and upon what terms they pleased, without reference to any former examples. If upon a fair construction of the Constitution of the United States, the power contended for really exists, it undoubtedly may be exercised, though it be a power of the first impression. If it does not exist, upon that authority, ten thousand examples of similar powers would not warrant its assumption. So far as this great question affects the Constitution itself, if the present afforded, consistently with the particular grounds of my opinion, a proper occasion for a decision upon it, I would not shrink from its discussion. But it is of extreme moment that no Judge should rashly commit himself upon important questions, which it is unnecessary for him to decide. My opinion being, that even if the Constitution would admit of the exercise of such a power, a new law is necessary for the purpose, since no part of the existing law applies, this alone is sufficient to justify my determination in the present case. So much, however, has been said on the Constitution, that it may not be improper to intimate that my present opinion is strongly against any construction of it, which will admit, under any circumstances, a compulsive suit against a State for the recovery of money. I 450*450 think every word in the Constitution may have its full effect without involving this consequence, and that nothing but express words, or an insurmountable implication (neither of which I consider, can be found in this case) would authorise the deduction of so high a power. This opinion I hold, however, with all the reserve proper for one, which, according to my sentiments in this case, may be deemed in some measure extra-judicial. With regard to the policy of maintaining such suits, that is not for this Court to consider, unless the point in all other respects was very doubtful. Policy might then be argued from with a view to preponderate the judgment. Upon the question before us, I have no doubt. I have therefore nothing to do with the policy. But I consess, if I was at liberty to speak on that subject, my opinion on the policy of the case would also differ from that of the Attorney General. It is, however, a delicate topic. I pray to God, that if the Attorney General's doctrine, as to the law, be established by the judgment of this Court, all the good he predicts from it may take place, and none of the evils with which, I have the concern to say, it appears to me to be pregnant.

BLAIR, Justice.

In considering this important case, I have thought it best to pass over all the strictures which have been made on the various European consederations; because, as, on the one hand, their likeness to our own is not sufficiently close to justify any analogical application; so, on the other, they are utterly destitute of any binding authority here. The Constitution of the United States is the only fountain from which I shall draw; the only authority to which I shall appeal. Whatever be the true language of that, it is obligatory upon every member of the Union; for, no State could have become a member, but by an adoption of it by the people of that State. What then do we find there requiring the submission of individual States to the judicial authority of the United States? This is expressly extended, among other things, to controversies between a State and citizens of another State. Is then the case before us one of that description? Undoubtedly it is, unless it may be a sufficient denial to say, that it is a controversy between a citizen of one State and another State. Can this change of order be an essential change in the thing intended? And is this alone a sufficient ground from which to conclude, that the jurisdiction of this Court reaches the case where a State is Plaintiff, but not where it is Defendant? In this latter case, should any man be asked, whether it was not a controversy between a State and citizen of another State, must not a answer be in the affirmative? A dispute between A. and B. is surely a dispute between B. and A. Both cases, I have no doubt, were intended; and probably the State was first named, in respect to the dignity of a State. But that very dignity seems to have been thought a sufficient reason for confining the sense to the case where a State is plaintiff. It is, however, a sufficient answer to say, that our Constitution most certainly contemplates, in another banch of the cases enumerated, the maintaining a jurisdiction against a State, as Defendant; this is unequivocally asserted when the judicial power of the United States is extended to controversies between two or more States; for there, a State must, of necessity, be a Defendant. It is extended also, to controversies between a State and foreign States; and if the argument taken from the order of designation were good, it would be meant here, that this Court might have cognizance of a suit, where a State is Plaintiff, and some foreign State a Defendant, but not where a foreign State brings a suit against a State. This, however, not to mention that the instances may rarely occur, when a State may have an opportunity of suing in the American Courts a foreign State, seems to lose sight of the policy which, no doubt, suggested this provision, viz. That no State in the Union should, by withholding justice, have it in its power to embroil the whole confederacy in disputes of another nature. But if a foreign State, though last named, may, nevertheless, be a Plaintiff against an individual State, how can it be said, that a controversy between a State and a citizen of another State means, from the mere force of the order of the words, only such cases where a State is Plaintiff? After describing, generally, the judicial powers of the United States, the Constitution goes on to speak of it distributively, and gives to the Supreme Court original jurisdiction, among other instances, in the case where a State shall be a party; but is not a State a party as well in the condition of a Defendant as in that of a Plaintiff? And is the whole force of that expression satisfied by confining its meaning to the case of a Plaintiff-State? It seems to me, that if this Court should refuse to hold jurisdiction of a case where a State is Defendant, it would renounce part of the authority conferred, and, consequently, part of the duty imposed on it by the Constitution; because it would be a refusal to take cognizance of a case where a State is a party. Nor does the jurisdiction of this Court, in relation to a State, seem to me to be questionable, on the ground that Congress has not provided any form of execution, or pointed out any mode of making the judgment against a State effectual; the argument ab in utili may weigh much in cases depending upon the construction of doubtful Legislative acts, but can have no force, I think, against the clear and positive directions of an act of Congress and of the Constitution. Let us go on as far as we can; and if, at the end of the business, notwithstanding the powers given us in the 14th section of the judicial law, we meet difficulties insurmountable to us, we must leave it to those departments of Government which have higher powers; to which, however, there may be no necessity to have recourse: Is it altogether a vain expectation, that a State may have other motives than such as arise from the apprehension of coercion, to carry into execution a judgment of the Supreme Court of the United States, though not conformable to their own ideas of justice? Besides, this argument takes it for granted, that the judgment of the Court will be against the State; it possibly may be in favor of the State; and the difficulty vanishes. Should judgment be given against the Plaintiff, could it be said to be void, because extra-judicial? If the Plaintiff, grounding himself upon that notion, should renew his suit against the State, in any mode in which the may permit herself to be sued in her own Courts, would the Attorney General for the State be obliged to go again into the merits of the case, because the matter, when here, was coram non judice? Might he not rely upon the judgment given by this Court in bar of the new suit? To me it seems clear that he might. And if a State may be brought before this Court, as a Defendant, I fee no reason for confining the Plaintiff to proceed by way of petition; indeed there would even seem to be an impropriety in proceeding in that mode. When sovereigns are sued in their own Courts, such a method may have been established as the most respectful form of demand; but we are not now in a State-Court; and if sovereignty be an exemption from suit in any other than the sovereign's own Courts, it follows that when a State, by adopting the Constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty.

With respect to the service of the summons to appear, the manner in which it has been served seems to be as proper as any which could be devised for the purpose of giving notice of the suit, which is the end proposed by it, the Governor being the head of the Executive Department, and the Attorney General the law-officer, who generally represents the State in legal proceedings: And this mode is the less liable to exception, when it is considered, that in the suit brought in this Court by the State of Georgta against Brailsford*and others, it is conceived in the name of the Governor in behalf of the State. If the opinion which I have delivered, respecting the liability of a State to be sued in this Court, should be the opinion of the Court, it will come in course to consider, what is the proper step to be taken for inducing appearance, none having been yet entered in behalf of the Defendant. A judgment by default, in the present stage of the business, and writ of enquiry of damages, would be too precipitate in any case, and too incompatible with the dignity of a State in this. Farther opportunity of appearing to defend the suit ought to be given. The conditional order moved for the last term, the consideration of which was deferred to this, seems to me to be a very proper mode; it will warn the State of the meditated consequence of a refusal to appear, and give an opportunity for more deliberate consideration. The order, I think, should be thus: `Ordered, that `unless the State of Georgia should, after due notice of this `order, by a service thereof upon the Governor and Attorney `General of the said State, cause an appearance to be entered `in behalf of the State, on the 5th day of the next Term, or `then shew cause to the contrary, judgment be then entered up `against the State, and a writ of enquiry of damages be `awarded.'

*

Ant. p.

WILSON, Justice.

This is a case of uncommon magnitude. One of the parties to it is a STATE; certainly respectable, claiming to be sovereign. The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others, more important still; and, may, perhaps, be ultimately resolved into one, no less radical than this — "do the people of the United States form a NATION?"

A cause so conspicuous and interesting, should be carefully and accurately viewed from every possible point of sight. I shall examine it, 1st. By the principles of general jurisprudence. 2d. By the laws and practice of particular States and Kingdoms. From the law of nations little or no illustration of this subject can be expected. By that law the several States and Governments spread over our globe, are considered as forming a society, not a NATION. It has only been by a very few comprehensive minds, such as those of Elizabeth and the Fourth Henry, that this last great idea has been even contemplated. 3dly. and chiefly, I shall examine the important question before us, by the Constitution of the United States, and the legitimate result of that valuable instrument.

I. I am, first, to examine this question by the principles of general jurisprudence. What I shall say upon this head, I introduce by the observation of an original and profound writer, who, in the philosophy of mind, and all the sciences attendant on this prime one, has formed an æra not less remarkable, and far more illustrious, than that formed by the justly celebrated Bacon, in another science, not prosecuted with less ability, but less dignified as to its object; I mean the philosophy of matter. Dr. Reid, in his excellent enquiry into the human mind, on the principles of common sense, speaking of the sceptical and illiberal philosophy, which under bold, but false, pretentions to liberality, prevailed in many parts of Europe before he wrote, makes the following judicious remark: "The language of philosophers, with regard to the original faculties of the mind, is so adapted to the prevailing system, that it cannot fit any other; like a coat that fits the man for whom it was made, and shews him to advantage, which yet will fit very awkward upon one of a different make, although as handsome and well proportioned. It is hardly possible to make any innovation in our philosophy concerning the mind and its operations, without using new words and phrases, or giving a different meaning to those that are received." With equal propriety may this solid remark be applied to the great subject, on the principles of which the decision of this Court is to be founded. The perverted use of genus and species in logic, and of impressions and ideas in metaphysics, have never done mischief so extensive or so practically pernicious, as has been done by States and sovereigns, in politics and jurisprudence; in the politics and jurisprudence even of those, who wished and meant to be free. In the place of those expressions I intend not to substitute new ones; but the expressions themselves I shall certainly use for purposes different from those, for which hitherto they have been frequently used; and one of them I shall apply to an object still more different from that, to which it has hitherto been more frequently, I may say almost universally, applied. In these purposes, and in this application, I shall be justified by example the most splendid, and by authority the most binding; the example of the most refined as well as the most free nation known to antiquity; and the authority of one of the best Constitutions known to modern times. With regard to one of the terms — State — this authority is declared: With regard to the other — sovereign — the authority is implied only: But it is equally strong: For, in an instrument well drawn, as in a poem well composed, silence is sometimes most expressive

To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves "SOVEREIGN" people of the United States. But serenely conscious of the fact, they avoided the ostentatious declaration.

Having thus avowed my disapprobation of the purposes, for which the terms, State and sovereign, are frequently used, and of the object, to which the application of the lost of them is almost universally made; it is now proper that I should disclose the meaning, which I assign to both, and the application, which I make of the latter. In doing this, I shall have occasion incidently to evince, how true it is, that States and Governments were made for made for man; and, at the same time, how true it is, that his creatures and servants have first deceived, next vilified, and, at last, oppressed their master and maker.

MAN, fearfully and wonderfully made, is the workmanship of his all perfect CREATOR: A State; useful and valuable as the contrivance is, is the inferior contrivance of man; and from his native dignity derives all its acquired importance. When I speak of a State as an inferior contrivance, I mean that it is a contrivance inferior only to that, which is divine: Of all human contrivances, it is certainly most transcendantly excellent. It is concerning this contrivance that Cicero says so sublimely, "Nothing, which is exhibited upon our globe, is more acceptable to that divinity, which governs the whole universe, than those communities and assemblages of men, which, lawfully associated, are denominated STATES*".

Let a State be considered as subordinate to the PEOPLE: But let every thing else be subordinate to the State. The latter part of this position is equally necessary with the former. For in the practice, and even at length, in the science of politics there has very frequently been a strong current against the natural order of things, and an inconsiderate or an interested disposition to sacrifice the end to the means. As the State has claimed precedence of the people; so, in the same inverted course of things, the Government has often claimed precedence of the State; and to this perversion in the second degree, many of the volumes of confusion concerning sovereignty owe their existence. The ministers, dignified very properly by the appellation of the magistrates, have wished, and have succeeded in their wish, to be considered as the sovereigns of the State. This second degree of perversion is confined to the old world, and begins to diminish even there: but the first degree is still too prevalent, even in the several States, of which our union is composed. By a State I mean, a complete body of free persons united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others. It is an artificial person. It has its affairs and its interests: It has its rules: It has its rights: And it has its obligations. It may acquire property distinct from that of its members: It may incur debts to be discharged out of the public stock, not out of the private fortunes of individuals: It may be bound by contracts; and for damages arising from the breach of those contracts. In all our contemplations, however, concerning this feigned and artificial person, we should never forget, that, in truth and nature, those, who think and speak, and act, are men.

Is the foregoing description of a State a true description? It will not be questioned but it is. Is there any part of this description, which intimates, in the remotest manner, that a State, any more than the men who compose it, ought not to do justice and fulfil engagements? It will not be pretended that there is. If justice is not done; if engagements are not fulfilled; is it upon general principles of right, less proper, in the case of a great number, than in the case of an individual, to secure, by compulsion, that, which will not be voluntarily performed? Less proper it surely cannot be. The only reason, I believe, why a free man is bound by human laws, is, that he binds himself. Upon the same principles, upon which he becomes bound by the laws, he becomes amenable to the Courts of Justice, which are formed and authorised by those laws. If one free man, an original sovereign, may do all this; why may not an aggregate of free men, a collection of original sovereigns, do this likewise? If the dignity of each singly is undiminished; the dignity of all jointly must be unimpaired. A State, like a merchant, makes a contract. A dishonest State, like a dishonest merchant, wilfully refuses to discharge it: The latter is amenable to a Court of Justice: Upon general principles of right, shall the former when summoned to answer the fair demands of its creditor, be permitted, proteus-like, to assume a new appearance, and to insult him and justice, by declaring I am a SOVEREIGN State? Surely not. Before a claim, so contrary, in its first appearance, to the general principles of right and equality, be sustained by a just and impartial tribunal, the person, natural or artificial, entitled to make such claim, should certainly be well known and authenticated. Who, or what, is a sovereignty? What is his or its sovereignty? On this subject, the errors and the mazes are endless and inexplicable. To enumerate all, therefore, will not be expected: To take notice of some will be necessary to the full illustration of the present important cause. In one sense, the term sovereign has for its correlative, subject, In this sense, the term can receive no application; for it has no object in the Constitution of the United States. Under that Constitution there are citizens, but no subjects. "Citizen of the United States*". "Citizens of another State." "Citizens of different States." "A State or citizen thereof[†]". The term, subject, occurs, indeed, once in the instrument; but to mark the contrast strongly, the epithet "foreign"[‡] is prefixed. In this sense, I presume the State of Georgia has no claim upon her own citizens: In this sense, I am certain, she can have no claim upon the citizens of another State.

In another sense, according to some writers*, every State, which governs itself without any dependence on another power, is a sovereign State. Whether, with regard to her own citizens, this is case of the State of Georgia; whether those citizens have done, as the individuals of England are said, by their later instructors, to have done, surrendered the Supreme Power to the State or Government, and reserved nothing to themselves; or whether, like the people of other States, and of the United States, the citizens of Georgia have reserved the Supreme Power in their own hands; and on that Supreme Power have made the State dependent, instead of being sovereign; there are questions, to which, as a Judge in this cause. I can neither know nor suggest the proper answers; though, as a citizen of the Union, I know, and am interested to know, that the most satisfactory answers can be given. As a citizen, I know the Government of that State to be republican; and my short definition of such a Government is, — one constructed on this principle, that the Supreme Power resides in the body of the people. As a Judge of this Court, I know, and can decide upon the knowledge, that the citizens of Georgia, when they acted upon the large scale of the Union, as a part of the "People of the United States," did not surrender the Supreme or sovereign Power to that State; but, as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia is NOT a sovereign State. If the Judicial decision of this case forms one of those purposes; the allegation, that Georgia is a sovereign Stat, is unsupported by the fact. Whether the judicial decision of this cause is, or is not, one of those purposes, is a question which will be examined particularly in a subsequent part of my argument.

There is a third sense, in which the term sovereign is frequently used, and which it is very material to trace and explain, as it furnishes a basis for what I presume to be one of the principal objections against the jurisdiction of this Court over the State of Georgia. In this sense, sovereignty is derived from a feudal source; and like many other parts of that system so degrading to man, still retains its influence over our sentiments and conduct, though the cause, by which that influence was produced, never extended to the American States. The accurate and well informed President Henault, in his excellent chronological abridgment of the History of France, tells us, that, about the end of the second race of Kings, a new kind of possession was acquired, under the name of Fief. The Governors of Cities and Provinces usurped equally the property of land, and the administration of justice; and established themselves as proprietary Seigniors over those places, in which they had been only civil magistrates or military officers. By this means, there was introduced into the State a new kind of authority, to which was assigned the appellation of sovereignty*. In process of time the feudal system was extended over France, and almost all the other nations of Europe: And every Kingdom became, in fact, a large fief. Into England this system was introduced by the conqueror: and to this æra we may, probably, refer the English maxim, that the King or sovereign is the fountain of Justice. But, in the case of the King, the sovereignty had a double operation. While it vested him with jurisdiction over others, it excluded all others from jurisdiction over him. With regard to him, there was no superior power; and, consequently, on feudal principles, no right of jurisdiction. "[†] The law, says Sir William Blackstone, ascribes to the King the attribute of sovereignty: he is sovereign and independent within his own dominions; and owes no kind of objection to any other potentate upon earth. Hence it is, that no suit or action can be brought against the King, even in civil matters; because no Court can have jurisdiction over him: for all jurisdiction implies superiority of power." This last position is only a branch of a much more extensive principle, on which a plan of systematic despotism has been lately formed in England, and prosecuted with unwearied assiduity and care. Of this plan the author of the Commentaries was, if not the introducer, at least the great supporter. He has been followed in it by writers later and less known; and his doctrines have, both on the other and this fide of the Atlantic, been implicitly and generally received by those, who neither examined their principles nor their consequences, The principle is, that all human law must be prescribed by a superior. This principle I mean not now to examine. Suffice it, at present to say, that another principle, very different in its nature and operations, forms, in my judgment, the basis of found and genuine jurisprudence; laws derived from the pure source of equality and justice must be founded on the CONSENT of those, whose obedience they require. The sovereign, when traced to his source, must be found in the man.

I have now fixed, in the scale of things, the grade of a State; and have described its composure: I have considered the nature of sovereignty; and pointed its application to the proper object. I have examined the question before us, by the principles of general jurisprudence. In those principles I find nothing, which tends to evince an exemption of the State of Georgia, from the jurisdiction of the Court. I find every thing to have a contrary tendency.

II. I am, in the second place, to examine this question by the laws and practice of different States and Kingdoms. In ancient Greece, as we learn from Isocrates, whole nations defended their rights before crouded tribunals. Such occasions as these excited, we are told, all the powers of persuasion; and the vehemence and enthusiasm of the sentiment was gradually infused into the Grecian language, equally susceptible of strength and harmony. In those days, law, liberty, and refining science, made their benign progress in strict and graceful union: The rude and degrading league between the bar and feudal barbarism was not yet formed.

When the laws and practice of particular States have any application to the question before us; that application will furnish what is called an argument a fortiori; because all the instances produced will be instances of subjects instituting and supporting suits against those, who were deemed their own sovereigns. These instances are stronger than the present one; because between the present plaintiff and defendant no such unequal relation is alledged to exist.

Columbus atchieved the discovery of that country, which, perhaps, ought to bear his name. A contract made by Columbus furnished the first precedent for supporting, in his discovered country, the cause of injured merit against the claims and pretentions of haughty and ungrateful power. His son Don Diego wasted two years in incessant, but fruitless, solicitation at the Court of Spain, for the rights which descended to him in consequence of his father's original capitulation. He endeavoured, at length, to obtain, by a legal sentence, what he could not procure from the favour of an interested Monarch. He commenced a suit against Ferdinand before the Council, which managed Indian affairs; and that Court, with integrity which reflects honour on their proceedings, decided against the King, and sustained Don Diego's claim.*

Other States have instituted officers to judge the proceedings of their Kings: Of this kind were the Ephori of Sparta: of this kind also was the mayor of the Palace, and afterwards the constable of France.[†]

But of all the laws and institutions relating to the present question, none is so striking as that described by the famous Hottoman, in his book entitled Francogallia. When the Spaniards of Arragon elect a King, they represent a kind of play, and introduce a personage, whom they dignify by the name of LAW, la Justiza, of Arragon. This personage they declare, by a public decree, to be greater and more powerful than their King; and then address him in the following remarkable expressions. "We, who are of as great worth as you, and can do more than you can do, elect you to be our King, upon the conditions stipulated: But between you and us there is one of greater authority than you."*

In England, according to Sir William Blackstone, no suit can be brought against the King, even in civil matters. So, in that Kingdom, is the law, at this time, received. But it was not always so. Under the Saxon Government, a very different doctrine was held to be orthodox. Under that Government, as we are informed by the Mirror of Justice, a book said, by Sir Edward Coke, to have been written, in part, at least, before the conquest; under that Government it was ordained, that the King's Court should be open to all Plaintiffs, by which, without delay, they should have remedial writs, as well against the King or against the Queen, as against any other of the people.[†] The law continued to be the same for some centuries after the conquest. Until the time of Edward I. the King might have been sued as a common person. The form of the process was even imperative. "Præcipe Henrico Regi Angliæ" &c. "Command Henry King of England" &c.[‡] Bractan, who wrote in the time of Henry III. uses these very remarkable expressions concerning the King "in justitia recipienda, minimo de regno suo comparetur" — "in receiving justice, he should be placed on a level with the meanest person in the Kingdom[§]." True it is, that now in England the King must be sued in his Courts by Petition; but even now, the difference is only in the form, not in the thing. The judgments or decrees of those Courts will substantially be the same upon a precatory as upon a mandatory process. In the Courts of Justice, says the very able author of the considerations on the laws of forfeiture, the King enjoys many privileges; yet not to deter the subject from contending with him freely[†]. The Judge of the High Court of Admiralty in England made, in a very late cause, the following manly and independent declaration. "In any case, where the Crown is a party, it is to be observed, that the Crown can no more withhold evidence of documents in its possession, than a private person. If the Court thinks proper to order the production of any public instrument; that order must be obeyed. It wants no Insignia of an authority derived from the Crown[¶]."

"Judges ought to know, that the poorest peasant is a man as well as the King himself; all men ought to obtain justice; since in the estimation of justice, all men are equal; whether the Prince complain of a peasant, or a peasant complain of the Prince."* These are the words of a King, of the late Frederic of Prussia. In his Courts of Justice, that great man stood upon his native greatness; and disdained to mount upon the artificial stilts of sovereignty.

Thus much concerning the laws and practice of other States and Kingdoms. We see nothing against, but much in favour of, the jurisdiction of this Court over the State of Georgia, a party to this cause.

III. I am, thirdly, and chiefly, to examine the important question now before us, by the Constitution of the United States, and the legitimate result of that valuable instrument. Under this view, the question is naturally subdivided into two others. 1. Could the Constitution of the United States vest a jurisdiction over the State of Georgia? 2. Has that Constitution vested such jurisdiction in this Court? I have already remarked, that in the practice, and even in the science of politics, there has been frequently a strong current against the natural order of things; and an inconsiderate or an interested disposition to sacrifice the end to the means. This remark deserves a more particular illustration. Even in almost every nation, which has been denominated free, the state has assumed a supercilious pre-eminence above the people, who have formed it: Hence the haughty notions of state independence, state sovereignty and state supremacy. In despotic Governments, the Government has usurped, in a similar manner, both upon the state and the people: Hence all arbitrary doctrines and pretensions concerning the Supreme, absolute, and incontrolable, power of Government. In each, man is degraded from the prime rank, which he ought to hold in human affairs: In the latter, the state as well as the man is degraded. Of both degradations, striking instances occur in history, in politics, and in common life. One of them is drawn from an anecdote, which is recorded concerning Louis XIV. who has been stiled the grand Monarch of France. This Prince, who diffused around him so much dazzling splendour, and so little vivifying heat, was vitiated by that inverted manner of teaching and of thinking, which forms Kings to be tyrants, without knowing or even suspecting that they are so. The oppression, under which he held his subjects during the whole course of his long reign, proceeded chiefly from the principles and habits of his erroneous education. By these, he had been accustomed to consider his Kingdom as his patrimony, and his power over his subjects as his rightful and undelegated inheritance. These sentiments were so deeply and strongly imprinted on his mind, that when one of his Ministers represented to him the miserable condition, to which those subjects were reduced, and, in the course of his representation, frequently used the word L'Etat, the state, the King, though he felt the truth and approved the substance of all that was said, yet was shocked at the frequent repetition of the expression L'Etat; and 462*462 complained of it it as an indecency offered to his person and character. And, indeed, that Kings should imagine themselves the final causes, for which men were made, and societies were formed and Governments were instituted, will cease to be a matter of wonder or surprise, when we find that lawyers, and statesmen, and philosophers, have taught or favoured principles, which necessarily lead to the same conclusion. Another instance, equally strong, but still more astonishing, is drawn from the British Government, as described by Sir William Blackstone and his followers. As described by him and them, the British is a despotic Government. It is a Government without a people. In that Government, as so described, the sovereignty is possessed by the Parliament: In the Parliament, therefore, the supreme and absolute authority is vested:* In the Parliament resides that incontrolable and despotic power, which, in all Governments, must reside somewhere. The constituent parts of the Parliament are the King's Majesty, the Lord's Spiritual, the Lord's Temporal, and the Commons. The King and there three Estates together form the great corporation or body politic of the Kingdom. All these sentiments are found; the last expressions are found verbatim[†]in the commentaries upon the laws of England.[†] The Parliament form the great body politic of England! What, then, or where, are the PEOPLE? Nothing! No where! They are not so much as even the "baseless fabric of a vision!" From legal contemplation they totally disappear! Am I not warranted in saying, that, if this is a just description; a Government, so and justly so described, is a despotic Government? Whether this description is or is not a just one, is a question of very different import.

In the United States, and in the several States, which compose the Union, we go not so far: but still we go one step farther than we ought to go in this unnatural and inverted order of things. The states, rather than the PEOPLE, for whose sakes the States exist, are frequently the objects which attract and arrest car principal attention. This, I believe, has produced much of the confusion and perplexity, which have appeared in several proceedings and several publications on state-politics, and on the politics, too, of the United States. Sentiments and expressions of this inaccurate kind prevail in our common, even in our convivial, language. Is a toast asked? "The United States," instead of the "People of the United States," is the toast given. This is not politically correct. The toast is meant to present to view the first great object in the Union: It presents only the second: It presents only the artificial person, instead of the natural persons, who spoke it into existence. A State I cheerfully admit, is the noblest work of Man: But, Man himself, free and honest, is, I speak as to this would, the noblest work of GOD.

Concerning the prerogative of Kings, and concerning the sovereignty of States, much has been said and written; but little has been said and written concerning a subject much more dignified and important, the majesty of the people. The mode of expression, which I would substitute in the place of that generally used, is not only politically, but also (for between true liberty and true taste there is a close alliance) classically more correct. On the mention of Athens, a thousand refined and endearing associations rush at once into the memory of the scholar, the philosopher, and the patriot. When Homer, one of the most correct as well as the oldest of human authorities, enumerates the other nations of Greece, whose forces acted at the fiege of Troy, he arranges them under the names of their different Kings or Princes: But when he comes to the Athenians, he distinguishes them by the peculiar appellation of the PEOPLE* of Athens. The well known address used by Demosthenes, when he harrangued and animated his assembled countrymen, was "O Men of Athens." With the strictest propriety, therefore, classical and political, our national scene opens with the most magnificent object, which the nation could present. "The PEOPLE of the United States" are the first personages introduced. Who were those people? They were the citizens of thirteen States, each of which had a separate Constitution and Government, and all of which were connected together by articles of consederation. To the purposes of public strength and felicity, that confederacy was totally inadequate. A requisition on the several States terminated its Legislative authority: Executive or Judicial authority it had none. In order, therefore, to form a more perfect union, to establish justice, to ensure domestic tranquillity, to provide for common defence, and to secure the blessings of liberty, those people, among whom were the people of Georgia, ordained and established the present Constitution. By that Constitution Legislative power is vested, Executive power is vested, Judicial power is vested.

The question now opens fairly to our view, could the people of those States, among whom were those of Georgia, bind those States, and Georgia among the others, by the Legislative, Executive, and Judicial power to vested? If the principles, on which I have founded myself, are just and true; this question must unavoidably receive an affirmative answer. If those States were the work of those people; those people, and, that I may apply the case closely, the people of Georgia, in particular, could alter, as they pleased, their former work: To any given degree, they could diminish as well as enlarge it. Any or all of the former State-powers, they could extinguish or transfer. The inference, which necessarily results, is, that the Constitution ordained and established by those people; and, still closely to apply the case, in particular by the people of Georgia, could vest jurisdiction or judicial power over those States and over the State of Georgia in particular.

The next question under this head, is, — Has the Constitution done so? Did those people mean to exercise this, their undoubted power? These questions may be resolved, either by fair and conclusive deductions, or by direct and explicit declarations. In order, ultimately, to discover, whether the people of the United States intended to bind those States by the Judicial power vested by the national Constitution, a previous enquiry will naturally be: Did those people intend to bind those states by the Legislative power vested by that Constitution? The articles of confederation, it is well known, did not operate upon individual citizens; but operated only upon states, This defect was remedied by the national Constitution, which, as all allow, has an operation on individual citizens. But if an opinion, which some seem to entertain, be just; the defect remedied, on one side, was balanced by a defect introduced on the other: For they seem to think, that the present Constitution operates only on individual citizens, and not on States. This opinion, however, appears to be altogether unfounded. When certain laws of the States are declared to be "subject to the revision and control of the Congress;"* it cannot, surely, be contended that the Legislative power of the national Government was meant to have no operation on the several States. The fact, uncontrovertibly established in one instance, proves the principle in all other instances, to which the facts will be found to apply. We may then infer, that the people of the United States intended to bind the several States, by the Legislative power of the national Government.

In order to make the discovery, at which we ultimately aim, a second previous enquiry will naturally be — Did the people of the United States intend to bind the several States by the Executive power of the national Government? The affirmative answer to the former question directs, unavoidably, an affirmative answer to this. Ever since the time of Bracton, his maxim, I believe, has been deemed a good one — "Supervacuum esset leges condere, nisi esset qui leges tueretur."[†] "It would be superfluous to make laws, unless those laws, when made, were to be enforced." When the laws are plain, and the application of them is uncontroverted, they are enforced immediately by the Executive authority of Government. When the application of them is doubtful or intricate, the interposition of the judicial authority becomes necessary. The same principle, therefore, which directed us from the first to the second step, will direct us from the second to the third and last step of our deduction. Fair and conclusive deduction, then, evinces that the people of the United States did vest this Court with jurisdiction over the State of Georgia. The same truth may be deduced from the declared objects, and the general texture of the Constitution of the United States. One of its declared objects is, to form an union more perfect, than, before that time, had been formed. Before that time, the Union possessed Legislative, but uninforced Legislative power over the States. Nothing could be more natural than to intend that this Legislative power should be enforced by powers Executive and Judicial. Another declared object is, "to establish justice." This points, in a particular manner, to the Judicial authority. And when we view this object in conjunction with the declaration, "that no State shall pass a law impairing the obligation of contracts;" we shall probably think, that this object points, in a particular manner, to the jurisdiction of the Court over the several States. What good purpose could this Constitutional provision secure, if a State might pass a law impairing the obligation of its own contracts; and be amenable, for such a violation of right, to no controuling judiciary power? We have seen, that on the principles of general jurisprudence, a State, for the breach of a contract, may be liable for damages. A third declared object is — "to ensure domestic tranquillity." This tranquillity is most likely to be disturbed by controversies between States. These consequences will be most peaceably and effectually decided by the establishment and by the exercise of a superintending judicial authority. By such exercise and establishment, the law of nations; the rule between contending States; will be enforced among the several States, in the same manner as municipal law.

Whoever considers, in a combined and comprehensive view, the general texture of the Constitution, will be satisfied, that the people of the United States intended to form themselves into a nation for national purposes. They instituted, for such purposes, a national Government, complete in all its parts, with powers Legislative, Executive and Judiciary; and, in all those powers, extending over the whole nation. Is it congruous, that, with regard to such purposes, any man or body of men, any person natural or artificial, should be permitted to claim successfully an entire exemption from the jurisdiction of the national Government? Would not such claims, crowned with success, be repugnant to our very existence as a nation? When so many trains of deduction, coming from different quarters, converge and unite, at last, in the same point; we may safely conclude, as the legitimate result of this Constitution, that the State of Georgia is amenable to the jurisdiction of this Court.

But, in my opinion, this doctrine rests not upon the legitimate result of fair and conclusive deduction from the Constitution: It is confirmed, beyond all doubt, by the direct and explicit declaration of the Constitution itself. "The judicial power of the United States shall extend, to controversies between two States."* Two States are supposed to have a controversy between them: This controversy is supposed to be brought before those vested with the judicial power of the United States: Can the most consummate degree of professional ingenuity devise a mode by which this "controversy between two States" can be brought before a Court of law; and yet neither of those States be a Defendant? "The judicial power of the United States shall extend to controversies, between a state and citizens of another State." Could the strictest legal language; could even that language, which is peculiarly appropriated to an art, deemed, by a great master, to be one of the most honorable, laudable, and profitable things in our law; could this strict and appropriated language, describe, with more precise accuracy, the cause now depending before the tribunal? Causes, and not parties to causes, are weighed by justice, in her equal scales: On the former solely, her attention is fixed: To the latter, she is, as she is painted, blind.

I have now tried this question by all the touchstones, to which I proposed to apply it. I have examined it by the principles of general jurisprudence; by the laws and practice of States and Kingdoms; and by the Constitution of the United States. From all, the combined inference is; that the action lies.

*

Sum. Sup. c. 3.

*

Art. 1. s. 2.

[†]

Art. 3. s. 3.

[‡]

Art. 3. s. 3.

*

Vatt. B. I. & s. 4.

*

Ht. 113.

[†]

1 Bl. 1 Com. 241. 242.

*

R.A. 231.

[†]

Sid. 131.

*

Hol. 71. Book 31.

[†]

4 C.A.N. 487.

[‡]

Brac. 107. Com. 104.

[§]

Com. 104.

[†]

G.F. 124.

[¶]

Col. Jur. 68.

*

War. 343.

*

Bl. 46-52, 147, 160-162.

[†]

Bl. 153.

[†]

Bl. 153.

*

Il. I. 2. v. 54. Δημοσ Pol. 12. one of the words, of which democracy in compounded.

*

Ar. 1. s. 10.

[†]

 Brac. 107.

*

Art. 3. s. 2.

CUSHING, Justice.

The grand and principal question in this case is, whether a State can, by the Federal Constitution, be sued by an individual citizen of another State?

The point turns not upon the law or practice of England, although perhaps it may be in some measure elucidated thereby, nor upon the law of any other country whatever; but upon the Constitution established by the people of the United States; and particularly upon the extent of powers given to the Fœderal Judicial in the 2d section of the 3d article of the Constitution. It is declared that "the Judicial power shall extend to all cases in law and equity arising under the Constitution, the laws of the United States, or treaties made or which shall be made under their authority; to all cases affecting ambassadors or other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies, to which the United States shall be a party; to controversies between two or more States and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State and citizens thereof and foreign States, citizens or subjects." The judicial power, then, is expressly extended to "controversies between a State and citizens of another State." When a citizen makes a demand against a State, of which he is not a citizen, it is as really a controversy between a State and a citizen of another State, as if such State made a demand against such citizen. The case, then, seems clearly to fall within the letter of the Constitution. It may be suggested that it could not be intended to subject a State to be a Defendant, because it would effect the sovereignty of States. If that be the case, what shall we do with the immediate preceding clause; "controversies between two or more States," where a State must of necessity be Defendant? If it was not the intent, in the very next clause also, that a State might be made Defendant, why was it so expressed as naturally to lead to and comprehend that idea? Why was not an exception made if one was intended?

Again — what are we to do with the last clause of the section of judicial powers, viz. "Controversies between a state, or the citizens thereof, and foreign states or citizens?" Here again, States must be suable or liable to be made Defendants by this clause, which has a similar mode of language with the two other clauses I have remarked upon. For if the judicial power extends to a controversy between one of the United States and a foreign State, as the clause expresses, one of them must be Defendant. And then, what becomes of the sovereignty of States as far as suing affects it? But although the words appear reciprocally to affect the State here and a foreign State, and put them on the same footing as far as may be, yet ingenuity may say, that the State here may sue, but cannot be sued; but that the foreign State may be sued but cannot sue. We may touch foreign sovereignties but not our own. But I conceive the reason of the thing, as well as the words of the Constitution, tend to show that the Fœderal Judicial power extends to a suit brought by a foreign State against any one of the United States. ONE design of the general Government was for managing the great affairs of peace and war and the general defence, which were impossible to be conducted, with safety, by the States separately. Incident to these powers, and for preventing controversies between foreign powers or citizens from rising to extremeties and to an appeal to the sword, a national tribunal was necessary, amicably to decide them, and thus ward off such fatal, public calamity. Thus, States at home and their citizens, and foreign States and their citizens, are put together without distinction upon the same footing, as far as may be, as to controversies between them. So also, with respect to controversies between a State and citizens of another State (at home) comparing all the clauses together, the remedy is reciprocal; the claim to justice equal. As controversies between State and State, and between a State and citizens of another State, might tend gradually to involve States in war and bloodshed, a disinterested civil tribunal was intended to be instituted to decide such controversies, and preserve peace and friendship. Further; if a State is entitled to Justice in the Federal Court, against a citizen of another State, why not such citizen against the State, when the same language equally comprehends both? The rights of individuals and the justice due to them, are as dear and precious as those of States. Indeed the latter are founded upon the former; and the great end and object of them must be to secure and support the rights of individuals, or else vain is Government.

But still it may be insisted, that this will reduce States to mere corporations, and take away all sovereignty. As to corporations, all States whatever are corporations or bodies politic. The only question is, what are their powers? As to individual States and the United States, the Constitution marks the boundary of powers. Whatever power is deposited with the Union by the people for their own necessary security, is so far a curtailing of the power and prerogatives of States. This is, as it were, a self-evident proposition; at least it cannot be contested. Thus the power of declaring war, making peace, raising and supporting armies for public defence, levying duties, excises and taxes, if necessary, with many other powers, are lodged in Congress; and are a most essential abridgement of State sovereignty. Again; the restrictions upon States; "No State shall enter into any treaty, alliance, or confederation, coin money, emit bills of credit, make any thing but gold and silver a tender in payment of debts, pass any law impairing the obligation of contracts;" these, with a number of others, are important restrictions of the power of States, and were thought necessary to maintain the Union; and to establish some fundamental uniform principles of public justice, throughout the whole Union. So that, I think, no argument of force can be taken from the sovereignty of States. Where it has been abridged, it was thought necessary for the greater indispensable good of the whole. If the Constitution is found inconvenient in practice in this or any other particular, it is well that a regular mode is pointed out for amendment. But, while it remains, all offices Legislative, Executive, and Judicial, both of the States and of the Union, are bound by oath to support it.

One other objection has been suggested, that if a State may be sued by a citizen of another State, then the United States may be sued by a citizen of any of the States, or, in other words, by any of their citizens. If this be a necessary consequence, it must be so. I doubt the consequence, from the different wording of the different clauses, connected with other reasons. When speaking of the United States, the Constitution says "controversies to which the UNITED STATES shall be a party" not controversies between the United States and any of their citizens. When speaking of States, it says, "controversies between two or more states; between a state and citizens of another state." As to reasons for citizens suing a different State, which do not hold equally good for suing the United States; one may be, that as controversies between a State and citizens of another State, might have a tendency to involve both States in contest, and perhaps in war, a common umpire to decide such controversies, may have a tendency to prevent the mischief. That an object of this kind was had in view by the framers of the Constitution, I have no doubt, when I consider the clashing interfering laws which were made in the neighbouring States, before the adoption of the Constitution, and some affecting the property of citizens of another State in a very different manner from that of their own citizens. But I do not think it necessary to enter fully into the question, whether the United States are liable to be sued by an individual citizen? In order to decide the point before us. Upon the whole, I am of opinion, that the Constitution warrants a suit again a State, by an individual citizen of another State.

A second question made in the case was, whether the particular action of assumpsit could lie against a State? I think assumpsit will lie, if any suit; provided a State is capable of contracting.

The third question respects the competency of service, which I apprehend is good and proper; the service being by summons and notifying the suit to the Governor and the Attorney General; the Governor, who is the Supreme Executive Magistrate and representative of the State, who is bound by oath to defend the State, and by the Constitution to give information to the Legislature of all important matters which concern the interest of the State; the Attorney General who is bound to defend the interest of the State in Courts of Law.

JAY, Chief Justice.

The question we are now to decide has been accurately stated, viz. Is a State suable by individual citizens of another State?

It is said, that Georgia refuses to appear and answer to the Plaintiff in this action, because she is a sovereign State, and therefore not liable to such actions. In order to ascertain the merits of this objection, let us enquire, 1st. In what sense Georgia is a sovereign State. 2d. Whether suability is incompatable with such sovereignty. 3d. Whether the Constitution (to which Georgia is a party) authorises such an action against her.

Suability and suable are words not in common use, but they concisely and correctly convey the idea annexed to them.

1st. In determining the sense in which Georgia is a sovereign State, it may be useful to turn our attention to the political situation we were in, prior to the Revolution, and to the political rights which emerged from the Revolution. All the country now possessed by the United States was then a part of the dominions appertaining to the crown of Great Britain. Every acre of land in this country was then held mediately or immediately by grants from that crown. All the people of this country were then, subjects of the King of Great Britain, and owed allegiance to him; and all the civil authority then existing or exercised here, flowed from the head of the British Empire. They were in strict sense fellow subjects, and in a variety of respects one people. When the Revolution commenced, the patriots did not assert that only the same affinity and social connection subsisted between the people, of the colonies, which subsisted between the people of Gaul, Britain, and Spain, while Roman Provinces, viz. only that affinity and social connection which result from the mere circumstance of being governed by the same Prince; different ideas prevailed, and gave occasion to the Congress of 1774 and 1775.

The Revolution, or rather the Declaration of Independence, found the people already united for general purposes, and at the same time providing for their more domestic concerns by State conventions, and other temporary arrangements. From the crown of Great Britain, the sovereignty of their country passed to the people of it; and it was then not an uncommon opinion, that the unappropriated lands, which belonged to that crown, passed not to the people of the Colony or States within whose limits they were situated, but to the whole people; on whatever principles this opinion rested, it did not give way to the other, and thirteen sovereignties were considered as emerged from the principles of the Revolution, combined with local convenience and considerations; the people nevertheless continued to consider themselves, in a national point of view, as one people; and they continued without interruption to manage their national concerns accordingly; afterwards, in the hurry of the war, and in the warmth of mutual confidence, they made a confederation of the States, the basis of a general Government. Experience disappointed the expectations they had formed from it; and then the people, in their collective and national capacity, established the present Constitution. It is remarkable that in establishing it, the people exercised their own rights, and their own proper sovereignty, and conscious of the plenitude of it, they declared with becoming dignity, "We "the people of the United States, do ordain and establish this "Constitution." Here we fee the people acting as sovereigns of the whole country; and in the language of sovereignty, establishing a Constitution by which it was their will, that the State Governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner; and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects, in a certain manner. By this great compact however, many prerogatives were transferred to the national Government, such as those of making war and peace, contracting alliances, coining money, &c. &c.

If then it be true, that the sovereignty of the nation is in the people of the nation, and the residuary sovereinty of each State in the people of each State, it may be useful to compare these sovereignties with those in Europe, that we may thence be enabled to judge, whether all the prerogatives which are allowed to the latter, are so essential to the former. There is reason to suspect that some of the difficulties which embarrass the present question, arise from inattention to differences which subsist between them.

It will be sufficient to observe briefly, that the sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the Prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance, and excludes the idea of his being on an equal footing with a subject, either in a Court of Justice or elsewhere. That system contemplates him as being the fountain of honor and authority; and from his grace and grant derives all franchises, immunities and privileges; it is easy to perceive that such a sovereign could not be amenable to a Court of Justice, or subjected to judicial controul and actual constraint. It was of necessity, therefore, that suability became incompatible with such sovereignty. Besides, the Prince having all the Executive powers, the judgment of the Courts would, in fact, be only monitory, not mandatory to him, and a capacity to be advised, is a distinct thing from a capacity to be sued. The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the Prince and the subject. No such ideas obtain here; at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called) and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.

From the differences existing between feudal sovereignties and Governments founded on compacts, it necessarily follows that their respective prerogatives must differ. Soverignty is the right to govern; a nation or State-sovereign is the person or persons in whom that resides. In Europe the sovereignty is generally ascribed to the Prince; here it rests with the people; there, the sovereign actually administers the Government; here, never in a single instance; our Governors are the agents of the people, and at most stand in the same relation to their sovereign, in which regents in Europe stand to their sovereigns. Their Princes have personal powers, dignities, and pre-eminences, our rulers have none but official; nor do they partake in the sovereignty otherwise, or in any other capacity, than as private citizens.

2d. The second object of enquiry now presents itself, viz. whether suability is compatible with State sovereignty.

Suability, by whom? Not a subject, for in this country there are none; not an inferior, for all the citizens being as to civil rights perfectly equal, there is not, in that respect, one citizen inferior to another. It is agreed, that one free citizen may sue another; the obvious dictates of justice, and the purposes of society demanding it. It is agreed, that one free citizen may sue any number on whom process can be conveniently executed; nay, in certain cases one citizen may sue forty thousand; for where a corporation is sued, all the members of sand; for where a corporation is sued, all the members of it are actually sued, though not personally, sued. In this city there are forty odd thousand free citizens, all of whom may be collectively sued by any individual citizen. In the State of Delaware, there are fifty odd thousand free citizens, and what reason can be assigned why a free citizen who has demands against them should not prosecute them? Can the difference between forty odd thousand, and fifty odd thousand make any distinction as to right? Is it not as easy, and as convenient to the public and parties, to serve a summons on the Governor and Attorney General of Delaware, as on the Mayor or other Officers of the Corporation of Philadelphia? Will it be said, that the fifty odd thousand citizens in Delaware being associated under a State Government, stand in a rank so superior to the forty odd thousand of Philadelphia, associated under their charter, that although it may become the latter to meet an individual on an equal footing in a Court of Justice, yet that such a procedure would not comport with the dignity of the former? — In this land of equal liberty, shall forty odd thousand in one place be compellable to do justice, and yet fifty odd thousand in another place be privileged to do justice only as they may think proper? Such objections would not correspond with the equal rights we claim; with the equality we profess to admire and maintain, and with that popular sovereignty in which every citizen partakes. Grant that the Governor of Delaware holds an office of superior rank to the Mayor of Philadelphia, they are both nevertheless the officers of the people; and however more exalted the one may be than the other, yet in the opinion of those who dislike aristocracy, that circumstance cannot be a good reason for impeding the course of justice.

If there be any such incompatability as is pretended, whence does it arise? In what does it consist? There is at least one strong undeniable fact against this incompatibility, and that is this, any one State in the Union may sue another State, in this Court, that is, all the people of one State may sue all the people of another State. It is plain then, that a State may be sued, and hence it plainly follows, that suability and state sovereignty are not incompatible. As one State may sue another State in this Court, it is plain that no degradation to a State is thought to accompany her appearance in this Court. It is not therefore to an appearance in this Court that the objection points. To what does it point? It points to an appearance at the suit of one or more citizens. But why it should be more incompatible, that all the people of a State should be sued by one citizen, than by one hundred thousand, I cannot perceive, the process in both cases being alike; and the consequences of a judgment alike. Nor can I observe any greater inconveniencies in the one case than in the other, except what may arise from the feelings of those who may regard a lesser number in an inferior light. But if any reliance be made on this inferiority as an objection, at least one half of its force is done away by this fact, viz. that it is conceded that a State may appear in this Court as Plaintiff against a single citizen as Defendant; and the truth is, that the State of Georgia is at this moment prosecuting an action in this Court against two citizens of South Carolina.*

The only remnant of objection therefore that remains is, that the State is not bound to appear and answer as a Defendant at the suit of an individual: but why it is unreasonable that she should be so bound, is hard to conjecture: That rule is said to be a bad one, which does not work both ways; the citizens of Georgia are content with a right of suing citizens of other States; but are not content that citizens of other States should have a right to sue them.

Let us now proceed to enquire whether Georgia has not, by being a party to the national compact, consented to be suable by individual citizens of another State. This enquiry naturally leads our attention, 1st. To the design of the Constitution. 2d. To the letter and express declaration in it.

Prior to the date of the Constitution, the people had not any national tribunal to which they could resort for justice; the distribution of justice was then confined to State judicatories, in whose institution and organization the people of the other States had no participation, and over whom they had not the least controul. There was then no general Court of appellate jurisdiction, by whom the errors of State Courts, affecting either the nation at large or the citizens of any other State, could be revised and corrected. Each State was obliged to acquiesce in the measure of justice which another State might yield to her, or to her citizens; and that even in cases where State considerations were not always favorable to the most exact measure. There was danger that from this source animosities would in time result; and as the transition from animosities to hostilities was frequent in the history of independent States, a common tribunal for the termination of controversies became desirable, from motives both of justice and of policy.

Prior also to that period, the United States had, by taking a place among the nations of the earth, become amenable to the laws of nations; and it was their interest as well as their duty to provide, that those laws should be respected and obeyed; in their national character and capacity, the United States were responsible to foreign nations for the conduct of each State, relative to the laws of nations, and the performance of treaties; and there the inexpediency of referring all such questions to State Courts, and particularly to the Courts of delinquent States became apparent. While all the States were bound to protect each, and the citizens of each, it was highly proper and reasonable, that they should be in a capacity, not only to cause justice to be done to each, and the citizens of each; but also to cause justice to be done by each, and the citizens of each; and that, not by violence and force, but in a stable, sedate, and regular course of judicial procedure.

These were among the evils against which it was proper for the nation, that is, the people of all the United States, to provide by a national judiciary, to be instituted by the whole nation, and to be responsible to the whole nation.

Let us now turn to the Constitution. The people therein declare, that their design in establishing it, comprehended six objects. 1st. To form a more perfect union. 2d. To establish justice. 3d. To ensure domestic tranquility. 4th. To provide for the common defence. 5th. To promote the general welfare. 6th. To secure the blessings of liberty to themselves and their posterity. It would be pleasing and useful to consider and trace the relations which each of these objects bears to the others; and to shew that they collectively comprise every thing requisite, with the blessing of Divine Providence, to render a people prosperous and happy: on the present occasion such disquisitions would be unreasonable, because foreign to the subject immediately under consideration.

It may be asked, what is the precise sense and latitude in which the words "to establish justice," as here used, are to be understood? The answer to this question will result from the provisions made in the Constitution on this head. They are specified in the 2d. section of the 3d article, where it is ordained, that the judicial power of the United States shall extend to ten descriptions of cases, viz. 1st. To all cases arising under this Constitution; because the meaning, construction, and operation of a compact ought always to be ascertained by all the parties, or by authority derived only from one of them. 2d. To all cases arising under the laws of the United States; because as such laws constitutionally made, are obligatory on each State, the measure of obligation and obedience ought not to be decided and fixed by the party from whom they are due, but by a tribunal deriving authority from both the parties. 3d. To all cases arising under treaties made by their authority; because, as treaties are compacts made by, and obligatory on, the whole nation, their operation ought not to be affected or regulated by the local laws or Courts of a part of the nation. 4th. To all cases affecting Ambassadors, or other public Ministers and Consuls; because, as these are officers of foreign nations, whom this nation are bound to protect and treat according to the laws of nations, cases affecting them ought only to be cognizable by national authority. 5th. To all cases of Admiralty and Maritime jurisdiction; because, as the seas are the joint property of nations, whose right and privileges relative thereto, are regulated by the law of nations and treaties, such cases necessarily belong to national jurisdiction. 6th. To controversies to which the United States shall be a party; because in cases in which the whole people are interested, it would not be equal or wife to let any one State decide and measure out the justice due to others. 7th. To controversies between two or more States; because domestic tranquillity requires, that the contentions of States should be peaceably terminated by a common judicatory; and, because, in a free country justice ought not to depend on the will of either of the litigants. 8th. To controversies between a State and citizens of another State; because in case a State (that is all the citizens of it) has demands against some citizens of another State, it is better that she should prosecute their demands in a national Court, than in a Court of the State to which those citizens belong; the danger of irritation and criminations arising from apprehensions and suspicions of partiality, being thereby obviated. Because, in cases where some citizens of one State have demands against all the citizens of another State, the cause of liberty and the rights of men forbid, that the latter should be the sole Judges of the justice due to the latter; and true Republican Government requires that free and equal citizens should have free, fair, and equal justice. 9th. To controversies between citizens of the same State, claiming lands under grants of different States; because, as the rights of the two States to grant the land, are drawn into question, neither of the two States ought to decide the controversy. 10th. To controversies between a State, or the citizens thereof; and foreign States, citizens or subjects; because, as every nation is responsible for the conduct of its citizens towards other nations; all questions touching the justice due to foreign nations, or people, ought to be ascertained by, and depend on national authority. Even this cursory view of the judicial powers of the United States, leaves the mind strongly impressed with the importance of them to the preservation of the tranquility, the equal sovereignty, and the equal right of the people.

The question now before us renders it necessary to pay particular attention to that part of the 2d section, which extends the judicial power "to controversies between a state and citizens of another state." It is contended, that this ought to be construed to reach none of these controversies, excepting those in which a State may be Plaintiff. The ordinary rules for construction will easily decide whether those words are to be understood in that limited sense.

This extension of power is remedial, because it is to settle controversies. It is therefore, to be construed liberally. It is politic, wife, and good that, not only the controversies, in which a State is Plaintiff, but also those in which a State is Defendant, should be settled; both cases, therefore, are within the reason of the remedy; and ought to be so adjudged, unless the obvious, plain, and literal sense of the words forbid it. If we attend to the words, we find them to be express, positive, free from ambiguity, and without room for such implied expressions: "The judicial power of the United States shall extend to controversies between a state and citizens of another state." If the Constitution really meant to extend these powers only to those controversies in which a State might be Plaintiff, to the exclusion of those in which citizens had demands against a State, it is inconceivable that it should have attempted to convey that meaning in words, not only so incompetent, but also repugnant to it; if it meant to exclude a certain class of these controversies, why were they not expressly excepted; on the contrary, not even an intimation of such intention appears in any part of the Constitution. It cannot be pretended that where citizens urge and insist upon demands against a State, which the State refuses to admit and comply with, that there is no controversy between them. If it is a controversy between them, then it clearly falls not only within the spirit, but the very words of the Constitution. What is it to the cause of justice, and how can it effect the definition of the word controversy, whether the demands which cause the dispute, are made by a State against citizens of another State, or by the latter against the former? When power is thus extended to a controversy, it necessarily, as to all judicial purposes, is also extended to those, between whom it subsists.

The exception contended for, would contradict and do violence to the great and leading principles of a free and equal national government, one of the great objects of which is, to ensure justice to all: To the few against the many, as well as to the many against the few. It would be strange, indeed, that the joint and equal sovereigns of this country, should, in the very Constitution by which they professed to establish justice, so far deviate from the plain path of equality and impartiality, as to give to the collective citizens of one State, a right of suing individual citizens of another State, and yet deny to those citizens a right of suing them. We find the same general and comprehensive manner of expressing the same ideas, in a subsequent clause; in which the Constitution ordains, that "in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction." Did it mean here party-Plaintiff? If that only was meant, it would have been easy to have found words to express it. Words are to be understood in their ordinary and common acceptation, and the word party being in common usage, applicable both to Plaintiff and Defendant, we cannot limit it to one of them in the present case. We find the Legislature of the United States expressing themselves in the like general and comprehensive manner; they speak in the 13th section of the judicial act, of controversies where a State is a party, and as they do not impliedly or expressly apply that term to either of the litigants, in particular, we are to understand them as speaking of both. In the same section they distinguish the cases where Ambassadors are Plaintiffs, from those in which Ambassadors are Defendants, and make different provisions respecting those cases; and it is not unnatural to suppose, that they would in like manner have distinguished between cases where a State was Plaintiff, and where a State was Defendant, if they had intended to make any difference between them; or if they had apprehended that the Constitution had made any difference between them.

I perceive, and therefore candor urges me to mention, a circumstance, which seems to favor the opposite side of the question. It is this: the same section of the Constitution which extends the judicial power to controversies "between a State and the citizens of another State," does also extend that power to controversies to which the United States are a party. Now, it may be said, if the word party comprehends both Plaintiff and Defendant, it follows, that the United States may be sued by any citizen, between whom and them there may be a controversy. This appears to me to be fair reasoning; but the same principles of candour which urge me to mention this objection, also urge me to suggest an important difference between the two cases. It is this: in all cases of actions against States or individual citizens, the National Courts are supported in all their legal and Constitutional proceedings and judgments, by the arm of the Executive power of the United States; but in cases of actions against the United States, there is no power which the Courts can call to their aid. From this distinction important conclusions are deducible, and they place the case of a State, and the case of the United States, in very different points of view.

I with the State of society was so far improved, and the science of Government advanced to such a degree of perfection, as that the whole nation could in the peaceable course of law, be compelled to do justice, and be sued by individual citizens. Whether that is, or is not, now the case, ought not to be thus collaterally and incidentally decided: I leave it a question.

As this opinion, though deliberately formed, has been hastily reduced to writing between the intervals of the daily adjournments, and while my mind was occupied and wearied by the business of the day, I fear it is less concise and connected than it might otherwise have been. I have made no references to cases, because I know of none that are not distinguishable from this case; nor does it appear to me necessary to shew that the sentiments of the best writers on Government and the rights of men, harmonize with the principles which direct my judgment on the present question. The acts of the former Congresses, and the acts of many of the State Conventions, are replete with similar ideas; and to the honor of the United States, it may be observed, that in no other country are subjects of this kind better, if so well, understood. The attention and attachment of the Constitution to the equal rights of the people are discernable in almost every sentence of it; and it is to be regretted that the provision in it which we have been considering, has not in every instance received the approbation and acquiescence which it merits. Georgia has in strong language advocated the cause of republican equality: and there is reason to hope that the people of that State will yet perceive that it would not have been consistent with that equality, to have exempted the body of her citizens from that suability, which they are at this moment exercising against citizens of another State.

For my own part, I am convinced that the sense in which I understand and have explained the words "controversies between States and citizens of another State," is the true sense. The extension of the judiciary power of the United States to such controversies, appears to me to be wife, because it is honest, and because it is useful. It is honest, because it provides for doing justice without respect of persons, and by securing individual citizens as well as States, in their respective rights, performs the promise which every free Government makes to every free citizen, of equal justice and protection. It is useful, because it is honest, because it leaves not even the most obscure and friendless citizen without means of obtaining justice from a neighbouring State; because it obviates occasions of quarrels between States on account of the claims of their respective citizens; because it recognizes and strongly rests on this great moral truth, that justice is the same whether due from the man or a million, or from a million to one man; because it teaches and greatly appreciates the value of our free republican national Government, which places all our citizens on an equal footing, and enables each and every of them to obtain justice without any danger of being overborne by the weight and number of their opponents; and, because it brings into action, and enforces this great and glorious principle, that the people are the sovereign of this country, and consequently that fellow citizens and joint sovereigns cannot be degraded by appearing with each other in their own Courts to have their controversies determined. The people have reason to prize and rejoice in such valuable privileges; and they ought not to forget, that nothing but the free course of Constitutional law and Government can ensure the continuance and enjoyment of them.

For the reasons before given, I am clearly of opinion, that a State is suable by citizens of another State; but left I should be understood in a latitude beyond my meaning, I think it necessary to subjoin this caution, viz., That such suability may nevertheless not extend to all the demands, and to every kind of action; there may be exceptions. For instance, I am far from being prepared to say that an individual may sue a State on bills of credit issued before the Constitution was established, and which were issued and received on the faith of the State, and at a time when no ideas or expectations of judicial interposition were entertained or contemplated.

The following order was made: — BY THE COURT. It is ordered, that the Plaintiff in this cause do file his declaration on or before the first day of March next.

Ordered, that certified copies of the said declaration be served on the Governor and Attorney General of the State of Georgia, on or before the first day of June next.

Ordered, that unless the said State shall either in due form appear, or shew cause to the contrary in this Court, by the first day of next Term, judgment by default shall be entered against the said State.*

*

Georgia v. Brailsford, et al. Ant. 1.

*

In February Term, 1794, judgment was rendered for the Plaintiff, and a Writ of Enquiry awarded. The Writ, however, was not sued out and executed, so that this cause, and all the other suits against States, were swept at once from the Records of the Court, by the amendment to the Federal Constitution, agreeably to the unanimous determination of the Judges, in Hollingsworth et al. v. Virginia, argued at February Term, 1798.

HANS v. LOUISIANA.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE ' EASTERN DISTRICT OF LOUISIANA.

No. 4.

Argued and submitted January 22, 1890.

Decided March 3, 1890.

Mr. J.D. Rouse, (Mr. William Grant was also on the brief,) for plaintiff in error.

Mr. Walter H. Rogers, Attorney General of the State of Louisiana, Mr. M.J. Cunningham, Mr. B.J. Sage and Mr. Alexander Porter Morse, for defendant in error, submitted on their briefs.

BRADLEY, J.

This is an action brought in the circuit court of the United States, in December, 1884, against the state of Louisiana, by Hans, a citizen of that state, to recover the amount of certain coupons annexed to bonds of the state, issued under the provisions of an act of the legislature approved January 24, 1874. The bonds are known and designated as the ‘consolidated bonds of the state of Louisiana,’ and the coupons sued on are for interest which accrued January 1, 1880. The grounds of the action are stated in the petition as follows: ‘Your petitioner avers that by the issue of said bonds and *2 coupons said state contracted with and agreed to pay the bearer thereof the principal sum of said bonds forty years from the date thereof, to-wit, the 1st day of January 1874, and to pay the interest thereon represented by coupons as aforesaid, including the coupons held by your petitioner, semiannually upon the maturity of said coupons; and said legislature, by an act approved January 24, 1874, proposed an amendment to the constitution of said state, which was afterwards duly adopted, and is as follows, to-wit: ‘No. 1. The issue of consolidated bonds, authorized by the general assembly of the state at its regular session in the year 1874, is hereby declared to create a valid contract between the state and each and every holder of said bonds, which the state shall by no means and in no wise impair. The said bonds shall be a valid obligation of the state in favor of any holder thereof, and no court shall enjoin the payment of the principal or interest thereof or the levy and collection of the tax therefor. To secure such levy, collection, and payment the judicial power shall be exercised when necessary. The tax required for the payment of the principal and interest of said bonds shall be assessed and collected each and every year until the bonds shall be paid, principal and interest, and the proceeds shall be paid by the treasurer of the state to the holders of said bonds as the principal and interest of the same shall fall due, and no further legislation or appropriation shall be requisite for the said assessment, and collection and for such payment from the treasury.’ And petitioner further avers that, notwithstanding said solemn compact with the holders of said bonds, said state hath refused and still refuses to pay said coupons held by petitioner, and by its constitution, adopted in 1879, ordained as follows: ‘That the coupons of said consolidated bonds falling due the 1st of January, 1880, be, and the same is hereby, remitted, and any interest taxes collected to meet said coupons are hereby transferred to defray the expenses of the state government;’ and by article 257 of said constitution also prescribed that ‘the constitution of this state, adopted in 1868, and all amendments thereto, is declared *3 to be superseded by this constitution;’ and said state thereby undertook to repudiate her contract obligations aforesaid, and to prohibit her officers and agents executing the same, and said state claims that by said provisions of said constitution she is relieved from the obligations of her aforesaid contract, and from the payment of said coupons held by petitioner, and so refuses payment thereof, and has prohibited her officers and agents making such payment. Petitioner also avers that taxes for the payment of the interest upon said bonds due January 1, 1880, were levied, assessed, and collected, but said state unlawfully and wrongfully diverted the money so collected, and appropriated the same to payment of the general expenses of the state, and has made no other provision for the payment of said interest. Petitioner also avers that said provisions of said constitution are in contravention of said contract, and their adoption was an active violation thereof, and that said state thereby sought to impair the validity thereof with your petitioner, in violation of article 1, section 10, of the constitution of the United States, and the effect so given to said state constitution does impair said contract. Wherefore petitioner prays that the state of Louisiana be cited to answer this demand, and that after due proceedings she be condemned to pay your petitioner said sum of ($87,500) eighty-seven thousand five hundred dollars, with legal interest from January 1, 1880, until paid, and all costs of suit; and petitioner prays for general relief.’

A citation being issued directed to the state, and served upon the governor thereof, the attorney general of the state filed an exception, of which the following is a copy, to-wit: ‘Now comes defendant, by the attorney general, and excepts to plaintiff’s suit, on the ground that this court is without jurisdiction ratione personae. Plaintiff cannot sue the state without its permission; the constitution and laws do not give this honorable court jurisdiction of a suit against the state; and its jurisdiction is respectfully declined. Wherefore respondent prays to be hence dismissed, with costs, and for general relief.’ By the judgment of the court this exception was sustained, and the suit was dismissed. See Hans v. Louisiana, 24 Fed. Rep. 55. To this judgment the present writ of error is brought.

MR. JUSTICE BRADLEY, after stating the case as above, delivered the opinion of the court.

The question is presented, whether a State can be sued in a Circuit Court of the United States by one of its own citizens upon a suggestion that the case is one that arises under the Constitution or laws of the United States.

The ground taken is, that under the Constitution, as well as under the act of Congress passed to carry it into effect, a case is within the jurisdiction of the federal courts, without regard to the character of the parties, if it arises under the Constitution or laws of the United States, or, which is the same thing, if it necessarily involves a question under said Constitution or laws. The language relied on is that clause of the 3d article of the Constitution, which declares that "the judicial power of the United States shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;" and the corresponding clause of the act conferring jurisdiction upon the Circuit Court, which, as found in the act of March 3, 1875, 18 Stat. 470, c. 137, § 1, is as follows, to wit: "That the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity, ... arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority." It is said that these jurisdictional clauses make no exception arising from the character of the parties, and, therefore, that a State can claim no exemption from suit, if the case is really one arising under the Constitution, laws or treaties of the United States. It is conceded that where the jurisdiction depends alone upon the character of the parties, a controversy between a State and its own citizens is not embraced within it; but it is contended that though jurisdiction does not exist on that ground, it nevertheless does exist if the case itself is one which necessarily involves a federal question; and with regard to ordinary parties this is undoubtedly true. The question now to be decided is, whether it is true where one of the parties is a State, and is sued as a defendant by one of its own citizens.

That a State cannot be sued by a citizen of another State, or of a foreign state, on the mere ground that the case is one arising under the Constitution or laws of the United States, is clearly established by the decisions of this court in several recent cases. Louisiana v. Jumel, 107 U.S. 711; Hagood v. Southern, 117 U.S. 52; In re Ayers, 123 U.S. 443. Those were cases arising under the Constitution of the United States, upon laws complained of as impairing the obligation of contracts, one of which was the constitutional amendment of Louisiana complained of in the present case. Relief was sought against state officers who professed to act in obedience to those laws. This court held that the suits were virtually against the States themselves and were consequently violative of the Eleventh Amendment of the Constitution, and could not be maintained. It was not denied that they presented cases arising under the Constitution; but, notwithstanding that, they were held to be prohibited by the amendment referred to.

In the present case the plaintiff in error contends that he, being a citizen of Louisiana, is not embarrassed by the obstacle of the Eleventh Amendment, inasmuch as that amendment only prohibits suits against a State which are brought by the citizens of another State, or by citizens or subjects of a foreign State. It is true, the amendment does so read: and if there were no other reason or ground for abating his suit, it might be maintainable; and then we should have this anomalous result, that in cases arising under the Constitution or laws of the United States, a State may be sued in the federal courts by its own citizens, though it cannot be sued for a like cause of action by the citizens of other States, or of a foreign state; and may be thus sued in the federal courts, although not allowing itself to be sued in its own courts. If this is the necessary consequence of the language of the Constitution and the law, the result is no less startling and unexpected than was the original decision of this court, that under the language of the Constitution and of the judiciary act of 1789, a State was liable to be sued by a citizen of another State, or of a foreign country. That decision was made in the case of Chisholm v. Georgia, 2 Dall. 419, and created such a shock of surprise throughout the country that, at the first meeting of Congress thereafter, the Eleventh Amendment to the Constitution was almost unanimously proposed, and was in due course adopted by the legislatures of the States. This amendment, expressing the will of the ultimate sovereignty of the whole country, superior to all legislatures and all courts, actually reversed the decision of the Supreme Court. It did not in terms prohibit suits by individuals against the States, but declared that the Constitution should not be construed to import any power to authorize the bringing of such suits. The language of the amendment is that "the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State or by citizens or subjects of any foreign state." The Supreme Court had construed the judicial power as extending to such a suit, and its decision was thus overruled. The court itself so understood the effect of the amendment, for, after its adoption, Attorney General Lee, in the case of Hollingsworth v. Virginia, 3 Dall. 378, submitted this question to the court, "whether the amendment did, or did not, supersede all suits depending, as well as prevent the institution of new suits, against any one of the United States, by citizens of another State?" Tilghman and Rawle argued in the negative, contending that the jurisdiction of the court was unimpaired in relation to all suits instituted previously to the adoption of the amendment. But, on the succeeding day, the court delivered a unanimous opinion, "that the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a State was sued by the citizens of another State, or by citizens or subjects of any foreign state."

This view of the force and meaning of the amendment is important. It shows that, on this question of the suability of the States by individuals, the highest authority of this country was in accord rather with the minority than with the majority of the court in the decision of the case of Chisholm v. Georgia; and this fact lends additional interest to the able opinion of Mr. Justice Iredell on that occasion. The other justices were more swayed by a close observance of the letter of the Constitution, without regard to former experience and usage; and because the letter said that the judicial power shall extend to controversies "between a State and citizens of another State;" and "between a State and foreign states, citizens or subjects," they felt constrained to see in this language a power to enable the individual citizens of one State, or of a foreign state, to sue another State of the Union in the federal courts. Justice Iredell, on the contrary, contended that it was not the intention to create new and unheard of remedies, by subjecting sovereign States to actions at the suit of individuals, (which he conclusively showed was never done before,) but only, by proper legislation, to invest the federal courts with jurisdiction to hear and determine controversies and cases, between the parties designated, that were properly susceptible of litigation in courts.

Looking back from our present standpoint at the decision in Chisholm v. Georgia, we do not greatly wonder at the effect which it had upon the country. Any such power as that of authorizing the federal judiciary to entertain suits by individuals against the States, had been expressly disclaimed, and even resented, by the great defenders of the Constitution whilst it was on its trial before the American people. As some of their utterances are directly pertinent to the question now under consideration, we deem it proper to quote them.

The eighty-first number of the Federalist, written by Hamilton, has the following profound remarks:

"It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation:

"It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of state sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the state governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretension to a compulsive force. They confer no right of action independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting State; and to ascribe to the federal courts by mere implication, and in destruction of a pre-existing right of the state governments, a power which would involve such a consequence, would be altogether forced and unwarrantable."

The obnoxious clause to which Hamilton's argument was directed, and which was the ground of the objections which he so forcibly met, was that which declared that "the judicial power shall extend to all ... controversies between a State and citizens of another State, ... and between a State and foreign states, citizens or subjects." It was argued by the opponents of the Constitution that this clause would authorize jurisdiction to be given to the federal courts to entertain suits against a State brought by the citizens of another State, or of a foreign state. Adhering to the mere letter, it might be so; and so, in fact, the Supreme Court held in Chisholm v. Georgia; but looking at the subject as Hamilton did, and as Mr. Justice Iredell did, in the light of history and experience and the established order of things, the views of the latter were clearly right, — as the people of the United States in their sovereign capacity subsequently decided.

But Hamilton was not alone in protesting against the construction put upon the Constitution by its opponents. In the Virginia convention the same objections were raised by George Mason and Patrick Henry, and were met by Madison and Marshall as follows. Madison said: "Its jurisdiction [the federal jurisdiction] in controversies between a State and citizens of another State is much objected to, and perhaps without reason. It is not in the power of individuals to call any State into court. The only operation it can have is that, if a State should wish to bring a suit against a citizen, it must be brought before the federal court. This will give satisfaction to individuals, as it will prevent citizens on whom a State may have a claim being dissatisfied with the state courts... . It appears to me that this [clause] can have no operation but this — to give a citizen a right to be heard in the federal courts; and if a State should condescend to be a party, this court may take cognizance of it." 3 Elliott's Debates, 2d ed. 533. Marshall, in answer to the same objection, said: "With respect to disputes between a State and the citizens of another State, its jurisdiction has been decried with unusual vehemence. I hope that no gentleman will think that a State will be called at the bar of the federal court... . It is not rational to suppose that the sovereign power should be dragged before a court. The intent is to enable States to recover claims of individuals residing in other States... . But, say they, there will be partiality in it if a State cannot be defendant — if an individual cannot proceed to obtain judgment against a State, though he may be sued by a State. It is necessary to be so, and cannot be avoided. I see a difficulty in making a State defendant which does not prevent its being plaintiff." Id. 555.

It seems to us that these views of those great advocates and defenders of the Constitution were most sensible and just; and they apply equally to the present case as to that then under discussion. The letter is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual against a State. The reason against it is as strong in this case as it was in that. It is an attempt to strain the Constitution and the law to a construction never imagined or dreamed of. Can we suppose that, when the Eleventh Amendment was adopted, it was understood to be left open for citizens of a State to sue their own state in the federal courts, whilst the idea of suits by citizens of other states, or of foreign states, was indignantly repelled? Suppose that Congress, when proposing the Eleventh Amendment, had appended to it a proviso that nothing therein contained should prevent a State from being sued by its own citizens in cases arising under the Constitution or laws of the United States: can we imagine that it would have been adopted by the States? The supposition that it would is almost an absurdity on its face.

The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States. Some things, undoubtedly, were made justiciable which were not known as such at the common law; such, for example, as controversies between States as to boundary lines, and other questions admitting of judicial solution. And yet the case of Penn v. Lord Baltimore, 1 Ves. Sen. 444, shows that some of these unusual subjects of litigation were not unknown to the courts even in colonial times; and several cases of the same general character arose under the Articles of Confederation, and were brought before the tribunal provided for that purpose in those articles. 131 U.S. App. 1. The establishment of this new branch of jurisdiction seemed to be necessary from the extinguishment of diplomatic relations between the States. Of other controversies between a State and another State or its citizens, which, on the settled principles of public law, are not subjects of judicial cognizance, this court has often declined to take jurisdiction. See Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 288, 289, and cases there cited.

The suability of a State without its consent was a thing unknown to the law. This has been so often laid down and acknowledged by courts and jurists that it is hardly necessary to be formally asserted. It was fully shown by an exhaustive examination of the old law by Mr. Justice Iredell in his opinion in Chisholm v. Georgia; and it has been conceded in every case since, where the question has, in any way, been presented, even in the cases which have gone farthest in sustaining suits against the officers or agents of States. Osborn v. Bank of United States, 9 Wheat. 738; Davis v. Gray, 16 Wall. 203; Board of Liquidation v. McComb, 92 U.S. 531; United States v. Lee, 106 U.S. 196; Poindexter v. Greenhow, 109 U.S. 63; Virginia Coupon Cases, 114 U.S. 269. In all these cases the effort was to show, and the court held, that the suits were not against the State or the United States, but against the individuals; conceding that if they had been against either the State or the United States, they could not be maintained.

Mr. Webster stated the law with precision in his letter to Baring Brothers & Co., of October 16, 1839. Works, Vol. VI, 537, 539. "The security for state loans," he said, "is the plighted faith of the State as a political community. It rests on the same basis as other contracts with established governments, the same basis, for example, as loans made by the United States under the authority of Congress; that is to say, the good faith of the government making the loan, and its ability to fulfil its engagements."

In Briscoe v. Bank of Kentucky, 11 Pet. 257, 321, Mr. Justice McLean, delivering the opinion of the court, said: "What means of enforcing payment from the State had the holder of a bill of credit? It is said by the counsel for the plaintiffs, that he could have sued the State. But was a State liable to be sued? ... No sovereign State is liable to be sued without her consent. Under the Articles of Confederation, a State could be sued only in cases of boundary. It is believed that there is no case where a suit has been brought, at any time, on bills of credit against a State; and it is certain that no suit could have been maintained on this ground prior to the Constitution."

"It may be accepted as a point of departure unquestioned," said Mr. Justice Miller, in Cunningham v. Macon & Brunswick Railroad, 109 U.S. 446, 451, "that neither a State nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a State may be made a party in the Supreme Court of the United States by virtue of the original jurisdiction conferred on this court by the Constitution."

Undoubtedly a State may be sued by its own consent, as was the case in Curran v. Arkansas et al., 15 How. 304, 309, and in Clark v. Barnard, 108 U.S. 436, 447. The suit in the former case was prosecuted by virtue of a state law which the legislature passed in conformity to the constitution of that state. But this court decided, in Beers et al. v. Arkansas, 20 How. 527, 529, that the State could repeal that law at any time; that it was not a contract within the terms of the constitution prohibiting the passage of state laws impairing the obligation of a contract. In that case the law allowing the State to be sued was modified, pending certain suits against the State on its bonds, so as to require the bonds to be filed in court, which was objected to as an unconstitutional change of the law. Chief Justice Taney, delivering the opinion of the court, said: "It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege and permit itself to be made a defendant in a suit by individuals, or by another State. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it... . The prior law was not a contract. It was an ordinary act of legislation, prescribing the conditions upon which the State consented to waive the privilege of sovereignty. It contained no stipulation that these regulations should not be modified afterwards if, upon experience, it was found that further provisions were necessary to protect the public interest; and no such contract can be implied from the law, nor can this court inquire whether the law operated hardly or unjustly upon the parties whose suits were then pending. That was a question for the consideration of the legislature. They might have repealed the prior law altogether, and put an end to the jurisdiction of their courts in suits against the State, if they had thought proper to do so, or prescribe new conditions upon which the suits might still be allowed to proceed. In exercising this power the State violated no contract with the parties." The same doctrine was held in Railroad Company v. Tennessee, 101 U.S. 337, 339; Railroad Company v. Alabama, 101 U.S. 832; and In re Ayers, 123 U.S. 443, 505.

But besides the presumption that no anomalous and unheard-of proceedings or suits were intended to be raised up by the Constitution — anomalous and unheard of when the Constitution was adopted — an additional reason why the jurisdiction claimed for the Circuit Court does not exist, is the language of the act of Congress by which its jurisdiction is conferred. The words are these: "The circuit courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, ... arising under the Constitution or laws of the United States, or treaties," etc. — "Concurrent with the courts of the several States." Does not this qualification, show that Congress, in legislating to carry the Constitution into effect, did not intend to invest its courts with any new and strange jurisdictions? The state courts have no power to entertain suits by individuals against a State without its consent. Then how does the Circuit Court, having only concurrent jurisdiction, acquire any such power? It is true that the same qualification existed in the judiciary act of 1789, which was before the court in Chisholm v. Georgia, and the majority of the court did not think that it was sufficient to limit the jurisdiction of the Circuit Court. Justice Iredell thought differently. In view of the manner in which that decision was received by the country, the adoption of the Eleventh Amendment, the light of history and the reason of the thing, we think we are at liberty to prefer Justice Iredell's views in this regard.

Some reliance is placed by the plaintiff upon the observations of Chief Justice Marshall, in Cohens v. Virginia, 6 Wheat. 264, 410. The Chief Justice was there considering the power of review exercisable by this court over the judgments of a state court, wherein it might be necessary to make the State itself a defendant in error. He showed that this power was absolutely necessary in order to enable the judiciary of the United States to take cognizance of all cases arising under the Constitution and laws of the United States. He also showed that making a State a defendant in error was entirely different from suing a State in an original action in prosecution of a demand against it, and was not within the meaning of the Eleventh Amendment; that the prosecution of a writ of error against a State was not the prosecution of a suit in the sense of that amendment, which had reference to the prosecution, by suit, of claims against a State. "Where," said the Chief Justice, "a State obtains a judgment against an individual, and the court rendering such judgment overrules a defence set up under the Constitution or laws of the United States, the transfer of this record into the Supreme Court for the sole purpose of inquiring whether the judgment violates the Constitution of the United States, can, with no propriety, we think, be denominated a suit commenced or prosecuted against the State whose judgment is so far reëxamined. Nothing is demanded from the State. No claim against it of any description is asserted or prosecuted. The party is not to be restored to the possession of any thing... . He only asserts the constitutional right to have his defence examined by that tribunal whose province it is to construe the Constitution and laws of the Union... . The point of view in which this writ of error, with its citation, has been considered uniformly in the courts of the Union, has been well illustrated by a reference to the course of this court in suits instituted by the United States. The universally received opinion is that no suit can be commenced or prosecuted against the United States; that the judiciary act does not authorize such suits. Yet writs of error, accompanied with citations, have uniformly issued for the removal of judgments in favor of the United States into a superior court... . It has never been suggested that such writ of error was a suit against the United States, and, therefore, not within the jurisdiction of the appellate court."

After thus showing by incontestable argument that a writ of error to a judgment recovered by a State, in which the State is necessarily the defendant in error, is not a suit commenced or prosecuted against a State in the sense of the amendment, he added, that if the court were mistaken in this, its error did not affect that case, because the writ of error therein was not prosecuted by "a citizen of another State" or "of any foreign state," and so was not affected by the amendment; but was governed by the general grant of judicial power, as extending "to all cases arising under the Constitution or laws of the United States, without respect to parties." p. 412.

It must be conceded that the last observation of the Chief Justice does favor the argument of the plaintiff. But the observation was unnecessary to the decision, and in that sense extra judicial, and though made by one who seldom used words without due reflection, ought not to outweigh the important considerations referred to which lead to a different conclusion. With regard to the question then before the court, it may be observed, that writs of error to judgments in favor of the crown, or of the State, had been known to the law from time immemorial; and had never been considered as exceptions to the rule, that an action does not lie against the sovereign.

To avoid misapprehension it may be proper to add that, although the obligations of a State rest for their performance upon its honor and good faith, and cannot be made the subjects of judicial cognizance unless the State consents to be sued, or comes itself into court; yet where property or rights are enjoyed under a grant or contract made by a State, they cannot wantonly be invaded. Whilst the State cannot be compelled by suit to perform its contracts, any attempt on its part to violate property or rights acquired under its contracts, may be judicially resisted; and any law impairing the obligation of contracts under which such property or rights are held is void and powerless to affect their enjoyment.

It is not necessary that we should enter upon an examination of the reason or expediency of the rule which exempts a sovereign State from prosecution in a court of justice at the suit of individuals. This is fully discussed by writers on public law. It is enough for us to declare its existence. The legislative department of a State represents its polity and its will; and is called upon by the highest demands of natural and political law to preserve justice and judgment, and to hold inviolate the public obligations. Any departure from this rule, except for reasons most cogent, (of which the legislature, and not the courts, is the judge,) never fails in the end to incur the odium of the world, and to bring lasting injury upon the State itself. But to deprive the legislature of the power of judging what the honor and safety of the State may require, even at the expense of a temporary failure to discharge the public debts, would be attended with greater evils than such failure can cause.

The judgment of the Circuit Court is

Affirmed.

MR. JUSTICE HARLAN concurring.

I concur with the court in holding that a suit directly against a State by one of its own citizens is not one to which the judicial power of the United States extends, unless the State itself consents to be sued. Upon this ground alone I assent to the judgment. But I cannot give my assent to many things said in the opinion. The comments made upon the decision in Chisholm v. Georgia do not meet my approval. They are not necessary to the determination of the present case. Besides, I am of opinion that the decision in that case was based upon a sound interpretation of the Constitution as that instrument then was.

ALDEN et al. v. MAINE

No. 98-436.

Argued March 31, 1999

Decided June 23, 1999

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, and Thomas, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined, post, p. 760.

Laurence Gold argued the cause for petitioners. With him on the briefs were Jonathan P. Hiatt, Timothy L. Belcher, and David L. Shapiro.

Solicitor General Waxman argued the cause for intervenor United States. With him on the briefs were Assistant Attorney General Hunger, Acting Assistant Attorney General Ogden, Deputy Solicitor General Kneedler, Irving L. Gomstein, Mark B. Stern, Robert M. Loeb, Peter J. Smith, Allen H. Feldman, Nathaniel I. Spiller, and Ellen L. Beard.

Andrew Ketterer, Attorney General of Maine, argued the cause for respondent. With him on the brief were Paul Stern, Deputy Attorney General, and Peter J. Brann, State Solicitor.*

*

Briefs of amid curiae urging reversal were filed for the Association of American Publishers, Inc., et al. by Charles S. Sims; and for the National Association of Police Organizations by Stephen R. McSpadden.

Briefs of amici curiae urging affirmance were filed for the Commonwealth of Kentucky by Stuart E. Alexander Ill; for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, and Andrew H. Baida and Michele J. McDonald, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Mark Pryor of Arkansas, Ken Salazar of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Jeffrey A. Modisett of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Thomas F. Reilly of Massachusetts, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Peter Verniero of New Jersey, Eliot Spitzer of New York, Heidi Heitkamp of North Dakota, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Sheldon Whitehouse of Rhode Island, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, John Cornyn of Texas, Jan Graham of Utah, William H. Sorrell of Vermont, Mark L. Earley of Virginia, Darrell V. McGraw of West Virginia, James E. Doyle of Wisconsin, and Guy Woodhouse of Wyoming; for the Home School Legal Defense Association by Michael P. Farris; for the Pacific Legal Foundation by M. Reed Hopper; and for the National Conference of State Legislatures et al. by Richard Ruda and Richard H. Seamon.

Justice Kennedy delivered the opinion of the Court.

In 1992, petitioners, a group of probation officers, filed suit against their employer, the State of Maine, in the United States District Court for the District of Maine. The officers alleged the State had violated the overtime provisions of the Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1060, as amended, 29 U. S. C. §201 et seq. (1994 ed. and Supp. Ill), and sought compensation and liquidated damages. While the suit was pending, this Court decided Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996), which made it clear that Congress lacks power under Article I to abrogate the States’ sovereign immunity from suits commenced or prosecuted in the federal courts. Upon consideration of Seminole Tribe, the District Court dismissed petitioners’ action, and the Court of Appeals affirmed. Mills v. Maine, 118 F. 3d 37 (CA1 1997). Petitioners then filed the same action in state court. The state trial court dismissed the suit on the basis of sovereign immunity, and the Maine Supreme Judicial Court? affirmed. 715 A. 2d 172 (1998).

The Maine Supreme Judicial Court’s decision conflicts with the decision of the Supreme Court of Arkansas, Jacoby v. Arkansas Dept. of Ed., 331 Ark. 508, 962 S. W. 2d 773 (1998), and calls into question the constitutionality of the provisions of the FLSA purporting to authorize private actions against States in their own courts without regard for consent, see 29 U. S. C. §§ 216(b), 203(x). In light of the importance of the question presented and the conflict between the courts, we granted certiorari. 525 U. S. 981 (1998). The United States intervened as a petitioner to defend the statute.

We hold that the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts. We decide as well that the State of Maine has not consented to suits for overtime pay and liquidated damages under the FLSA. On these premises we affirm the judgment sustaining dismissal of the suit.

I

The Eleventh Amendment makes explicit reference to the States’ immunity from suits “commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U. S. Const., Amdt. 11. We have, as a result, sometimes referred to the States’ immunity from suit as “Eleventh Amendment immunity.” The phrase is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment. Rather, as the Constitution’s structure, its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit.is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.

A

Although the Constitution establishes a National Government with broad, often plenary authority over matters within its recognized competence, the founding document “specifically recognizes the States as sovereign entities.” Seminole Tribe of Fla. v. Florida, supra, at 71, n. 15; accord, Blatchford v. Native Village of Noatak, 501 U. S. 775, 779 (1991) (“[T]he States entered the federal system with their sovereignty intact”). Various textual provisions of the Constitution assume the States’ continued existence and active participation in the fundamental processes of governance. See Printz v. United States, 521 U. S. 898, 919 (1997) (citing Art. III, §2; Art. IV, §§2-4; Art. V). The limited and enumerated powers granted to the Legislative, Executive, and Judicial Branches of the National Government, moreover, underscore the vital role reserved to the States by the constitutional design, see, e.g., Art. I, §8; Art. II, §§2-3; Art. III, §2. Any doubt regarding the constitutional role of the States as sovereign entities is removed by the Tenth Amendment, which, like the other provisions of the Bill of Rights, was enacted to allay lingering concerns about the extent of the national power. The Amendment confirms the promise implicit in the original document: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U. S. Const., Amdt. 10; see also Priniz, supra, at 919; New York v. United States, 505 U. S. 144, 156-159, 177 (1992).

The federal system established by our Constitution preserves the sovereign status of the States in two ways. First, it reserves to them a substantial portion of the Nation’s primary sovereignty, together with the dignity and essential attributes inhering in that status. The States “form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.” The Federalist No. 39, p. 245 (C. Rossiter ed. 1961) (J. Madison).

Second, even as to matters within the competence of the National Government, the constitutional design secures the founding generation’s rejection of “the concept of a central government that would act upon and through the States” in favor of “a system in which the State and Federal Governments would exercise concurrent authority over the people— who were, in Hamilton’s words, ‘the only proper objects of government.’ ” Printz, supra, at 919-920 (quoting The Federalist No. 15, at 109); accord, New York, supra, at 166 (“The Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States”). In this the Founders achieved a deliberate departure from the Articles of Confederation: Experience under the Articles had “exploded on all hands” the “practicality of making laws, with coercive sanctions, for the States as political bodies.” 2 Records of the Federal Convention of 1787, p. 9 (M. Farrand ed. 1911) (J. Madison); accord, The Federalist No. 20, at 138 (J. Madison and A. Hamilton); James Iredell: Some Objections to the Constitution Answered, reprinted in 3 Annals of America 249 (1976).

The States thus retain “a residuary and inviolable sovereignty.” The Federalist No. 39, at 245. They are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the Ml authority, of sovereignty.

B

The generation that designed and adopted our federal system considered immunity from private suits central to sovereign dignity. When the Constitution was ratified, it was well established in English law that the Crown could not be sued without consent in its own courts. See Chisholm v. Georgia, 2 Dall. 419, 437-446 (1793) (Iredell, J., dissenting) (surveying English practice); cf. Nevada v. Hall, 440 U. S. 410, 414 (1979) (“The immunity of a truly independent sovereign from suit in its own courts has been enjoyed as a matter of absolute right for centuries. Only the sovereign’s own consent could qualify the absolute character of that immunity”). In reeiting the prerogatives of the Crown, Blackstone — whose works constituted the preeminent authority on English law for the founding generation — underscored the close and necessary relationship understood to exist between sovereignty and immunity from suit:

“And, first, the law ascribes to the king the attribute of sovereignty, or pre-eminence. . . . Hence it is, that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him. For all jurisdiction implies superiority of power . . . .” 1 W. Blackstone, Commentaries on the Laws of England 234r-235 (1765).

Although the American people had rejected other aspects of English political theory, the doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified. See Chisholm, supra, at 434-435 (Iredell, J., dissenting) (“I believe there is no doubt that neither in the State now in question, nor in any other in the Union, any particular Legislative mode, authorizing a compulsory suit for the recovery of money against a State, was in being either when the Constitution was adopted, or at the time the judicial act was passed”); Hans v. Louisiana, 134 U. S. 1, 16 (1890) (“The suability of a State, without its consent, was a thing unknown to the law. This has been so often laid down and acknowledged by courts and jurists that it is hardly necessary to be formally asserted”).

The ratification debates, furthermore, underscored the importance of the States' sovereign immunity to the American people. Grave concerns were raised by the provisions of Article III, which extended the federal judicial power to controversies between States and citizens of other States or foreign nations. As we have explained:

“Unquestionably the doctrine of sovereign immunity was a matter of importance in the early days of independence. Many of the States were heavily indebted as a result of the Revolutionary War. They were vitally interested in the question whether the creation of a new federal sovereign, with courts of its own, would automatically subject them, like lower English lords, to suits in the courts of the ‘higher’ sovereign.” Hall, supra, at 418 (footnote omitted).

The leading advocates of the Constitution assured the people in no uncertain terms that the Constitution would not strip the States of sovereign immunity. One assurance was contained in The Federalist No. 81, written by Alexander Hamilton:

“It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States and the danger intimated must be merely ideal.. .. [T]here is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a preexisting right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable.” Id., at 487-488 (emphasis in original).

At the Virginia ratifying convention, James Madison echoed this theme:

“Its jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court....

“. . . It appears to me that this [clause] can have no operation but this — to give a citizen a right to be heard in the federal courts; and if a state should condescend to be a party, this court may take cognizance of it.” 8 Debates on the Federal Constitution 533 (J. Elliot 2d ed. 1854) (hereinafter Elliot’s Debates).

When Madison’s explanation was questioned, John Marshall provided immediate support:

“With respect to disputes between a state and the citizens of another state, its jurisdiction has been decried with unusual vehemence. I hope no gentleman will think that a state will be called at the bar of the federal court. Is there no such ease at present? Are there not many cases in which the legislature of Virginia is a party, and yet the state is not sued? It is not rational to suppose that the sovereign power should be dragged before a court. The intent is, to enable states to recover claims of individuals residing in other states. I contend this construction is warranted by the words. But, say they, there will be partiality in it if a state cannot be defendant.... It is necessary to be so, and cannot be avoided. I see a difficulty in making a state defendant, which does not prevent its being plaintiff.” 3 id., at 555-556 (emphasis in original).

Although the state conventions which addressed the issue of sovereign immunity in their formal ratification documents sought to clarify the point by constitutional amendment, they made clear that they, like Hamilton, Madison, and Marshall, understood the Constitution as drafted to preserve the States’ immunity from private suits. The Rhode Island Convention thus proclaimed that “[i]t is declared by the Convention, that the judicial power of the United States, in eases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state.” 1 id., at 386. The convention sought, in addition, an express amendment “to remove all doubts or controversies respecting the same.” Ibid. In a similar fashion, the New York Convention “declare[d] and ma[d]e known,” 1 id., at 327, its understanding “[t]hat the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state,” 1 id., at 329. The convention proceeded to ratify the Constitution “[u]nder these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution, and in confidence that the amendments which shall have been proposed to the said Constitution will receive an early and mature consideration.” Ibid.

Despite the persuasive assurances of the Constitution’s leading advocates and the expressed understanding of the only state conventions to address the issue in explicit terms, this Court held, just five years after the Constitution was adopted, that Article III authorized a private citizen of another State to sue the State of Georgia without its consent. Chisholm v. Georgia, 2 Dall. 419 (1793). Each of the four Justices who concurred in the judgment issued a separate opinion. The common theme of the opinions was that the case fell within the literal text of Article III, which by its terms granted jurisdiction over controversies “between a State and Citizens of another State,” and “between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects.” U. S. Const., Art. III, §2. The argument that this provision granted jurisdiction only over cases in which the State was a plaintiff was dismissed as inconsistent with the ordinary meaning of “between,” and with the provision extending jurisdiction to “Controversies between two or more States,” which by necessity contemplated jurisdiction over suits to which States were defendants. Two Justices also argued that sovereign immunity was inconsistent with the principle of popular sovereignty established by the Constitution, 2 Dall., at 454-458 (Wilson, J.); id., at 470-472 (Jay, C. J.); although the others did not go so far, they contended that the text of Article III evidenced the States’ surrender of sovereign immunity as to those provisions extending jurisdiction over suits to which States were parties, id., at 452 (Blair, J.); id., at 468 (Cushing, J.).

Justice Iredell dissented, relying on American history, id., at 434-435, English history, id., at 437-446, and the principles of enumerated powers and separate sovereignty, id., at 435-436, 448, 449-450. See generally Hans, 134 U. S., at 12 (“The other justices were more swayed by a close observance of the letter of the Constitution, without regard to former experience and usage .... Justice Iredell, on the contrary, contended that it was not the intention to create new and unheard of remedies, by subjecting sovereign States to actions at the suit of individuals, (which he conclusively showed was never done before,) but only ... to invest the federal courts with jurisdiction to hear and determine controversies and cases, between the parties designated, that were properly susceptible of litigation in courts”).

The Court’s decision “fell upon the country with a profound shock.” 1 C. Warren, The Supreme Court in United States History 96 (rev. ed. 1926); accord, Hans, supra, at 11; Principality of Monaco v. Mississippi, 292 U. S. 313, 325 (1934); Seminole Tribe, 517 U. S., at 69. “Newspapers representing a rainbow of opinion protested what they viewed as an unexpected blow to state sovereignty. Others spoke more concretely of prospective raids on state treasuries.” D. Currie, The Constitution in Congress: The Federalist Period 1789-1801, p. 196 (1997).

The States, in particular, responded with outrage to the decision. The Massachusetts Legislature, for example, denounced the decision as “repugnant to the first principles of a federal government,” and called upon the Commonwealth’s Senators and Representatives to take all necessary steps to “remove any clause or article of the ... Constitution, which can be construed to imply or justify a decision, that, a State is compellable to answer in any suit by an individual or individuals in any Court of the United States.” 15 Papers of Alexander Hamilton 314 (H. Syrett & J. Cooke eds. 1969) (internal quotation marks omitted). Georgia’s response was more intemperate: Its House of Representatives passed a bill providing that anyone attempting to enforce the Chisholm decision would be “ ‘guilty of felony and shall suffer death, without benefit of clergy, by being hanged/ ” Currie, supra, at 196.

An initial proposal to amend the Constitution was introduced in the House of Representatives the day after Chisholm was announced; the proposal adopted as the Eleventh Amendment was introduced in the Senate promptly following an intervening recess. Currie, supra, at 196. Congress turned to the latter proposal with great dispatch; little more than two months after its introduction it had been endorsed by both Houses and forwarded to the States. 4 Annals of Congress 25, 30, 477, 499 (1794); 1 Stat. 402.

Each House spent but a single day discussing the Amendment, and the vote in each House was close to unanimous. See 4 Annals of Congress, at 30-31, 476-478 (the Senate divided 23 to 2; the House 81 to 9). All attempts to weaken the Amendment were defeated. Congress in succession rejected proposals to limit the Amendment to suits in which “ ‘the cause of action shall have arisen before the ratification of the amendment,’” or even to cases “‘where such State shall have previously made provision in their own Courts, whereby such suit may be prosecuted to effect’ ”; it refused as well to make an exception for “ ‘cases arising under treaties made under the authority of the United States.’ ” 4 id., at 30, 476.

It might be argued that the Chisholm decision was a correct interpretation of the constitutional design and that the Eleventh Amendment represented a deviation from the original understanding. This, however, seems unsupportable. First, despite the opinion of Justice Iredell, the majority failed to address either the practice or the understanding that prevailed in the States at the time the Constitution was adopted. Second, even a casual reading of the opinions suggests the majority suspected the decision would be unpopular and surprising. See, e. g., 2 Dall., at 454-455 (Wilson, J.) (condemning the prevailing conception of sovereignty); id., at 468 (Cushing, J.) (“If the Constitution is found inconvenient in practice in this or any other particular, it is well that a regular mode is pointed out for amendment”); id., at 478-479 (Jay, C. J.) (“[T]here is reason to hope that the people of [Georgia] will yet perceive that [sovereign immunity] would not have been consistent with [republican] equality”); cf. id., at 419-420 (attorney for Chisholm) (“I did not want the remonstrance of Georgia, to satisfy me, that the motion, which I have made is unpopular. Before that remonstrance was read, I had learnt from the acts of another State, whose will must be always dear to me, that she too condemned it”). Finally, two Members of the majority acknowledged that the United States might well remain immune from suit despite Article Ill’s grant of jurisdiction over “Controversies to which the United States shall be a Party,” see id., at 469 (Cushing, J.); id., at 478 (Jay, C. J.), and, invoking the example of actions to collect debts incurred before the Constitution was adopted, one raised the possibility of “exceptions,” suggesting the rule of the case might not “extend to all the demands, and to every kind of action,” id., at 479 (Jay, C. J.). These concessions undercut the crucial premise that either the Constitution’s literal text or the principle of popular sovereignty necessarily overrode widespread practice and opinion.

The text and history of the Eleventh Amendment also suggest that Congress acted not to change but to restore the original constitutional design. Although earlier drafts of the Amendment had been phrased as express limits on the judicial power granted in Article III, see, e. g., 3 Annals of Congress 651-652 (1793) (“The Judicial Power of the United States shall not extend to any suits in law or equity, commenced or prosecuted against one of the United States ...”), the adopted text addressed the proper interpretation of that provision of the original Constitution, see U. S. Const., Arndt. 11 (“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States.. By its terms, then, the Eleventh Amendment did not redefine the federal judicial power but instead overruled the Court:

“This amendment, expressing the will of the ultimate sovereignty of the whole country, superior to all legislatures and all courts, actually reversed the decision of the Supreme Court. It did not in terms prohibit suits by individuals against the States, but declared that the Constitution should not be construed to import any power to authorize the bringing of such suits. . . . The Supreme Court had construed the judicial power as extending to such a suit, and its decision was thus overruled.” Hans, 134 U. S., at 11.

The text reflects the historical context and the congressional objective in endorsing the Amendment for ratification. Congress chose not to enact language codifying the traditional understanding of sovereign immunity but rather to address the specific provisions of the Constitution that had raised concerns during the ratification debates and formed the basis of the Chisholm decision. Cf. 15 Papers of Alexander Hamilton, at 314 (quoted supra, at 720). Given the outraged reaction to Chisholm, as well as Congress’ repeated refusal to otherwise qualify the text of the Amendment, it is doubtful that if Congress meant to write a new immunity into the Constitution it would have limited that immunity to the narrow text of the Eleventh Amendment:

“Can we suppose that, when the Eleventh Amendment was adopted, it was understood to be left open for citizens of a State to sue their own state in the federal courts, whilst the idea of suits by citizens of other states, or of foreign states, was indignantly repelled? Suppose that Congress, when proposing the Eleventh Amendment, had appended to it a proviso that nothing therein contained should prevent a State from being sued by its own citizens in cases arising under the Constitution or laws of the United States: can we imagine that it would have been adopted by the States? The supposition that it would is almost an absurdity on its face.” Hans, supra, at 14-15.

The more natural inference is that the Constitution was understood, in light of its history and structure, to preserve the States’ traditional immunity from private suits. As the Amendment clarified the only provisions of the Constitution that anyone had suggested might support a contrary understanding, there was no reason to draft with a broader brush.

Finally, the swiftness and near unanimity with which the Eleventh Amendment was adopted suggest “either that the Court had not captured the original understanding, or that the country had changed its collective mind most rapidly.” D. Currie, The Constitution in the Supreme Court: The First Hundred Years: 1789-1888, p. 18, n. 101 (1985). The more reasonable interpretation, of course, is that regardless of the views of four Justices in Chisholm, the country as a whole— which had adopted the Constitution just five years earlier— had not understood the document to strip the States of their immunity from private suits. Cf. Currie, The Constitution in Congress, at 196 (“It is plain that just about everybody in Congress agreed the Supreme Court had misread the Constitution”).

Although the dissent attempts to rewrite history to reflect a different original understanding, its evidence is unpersuasive. The handful of state statutory and constitutional provisions authorizing suits or petitions of right against States only confirms the prevalence of the traditional understanding that a State could not be sued in the absence of an express waiver, for if the understanding were otherwise, the provisions would have been unnecessary. The constitutional amendments proposed by the New York and Rhode Island Conventions undercut rather than support the dissent’s view of history, see supra, at 718-719, and the amendments proposed by the Virginia and North Carolina Conventions do not cast light upon the original understanding of the States’ immunity to suit. It is true that, in the course of all but eliminating federal-question and diversity jurisdiction, see 3 Elliot’s Debates 660-661 (amendment proposed by the Virginia Convention limiting the federal-question jurisdiction to suits arising under treaties and the diversity jurisdiction to suits between parties claiming lands under grants from different States); 4 id., at 246 (identical amendment proposed by the North Carolina Convention), the amendments would have removed the language in the Constitution relied upon by the Chisholm Court. While the amendments do reflect dissatisfaction with the scope of federal jurisdiction as a general matter, there is no evidence that they were directed toward the question of sovereign immunity or that they reflect an understanding that the States would be subject to private suits without consent under Article III as drafted.

The dissent’s remaining evidence cannot bear the weight the dissent seeks to place on it. The views voiced during the ratification debates by Edmund Randolph and James Wilson, when reiterated by the same individuals in their respective capacities as advocate and Justice in Chisholm, were decisively rejected by the Eleventh Amendment, and General Pinkney did not speak to the issue of sovereign immunity at all. Furthermore, Randolph appears to have recognized that his views were in tension with the traditional understanding of sovereign immunity, see 3 Elliot’s Debates 573 (“I think, whatever the law of nations may say, that any doubt respecting the construction that a state may be plaintiff, and not defendant, is taken away by the words where a state shall be a party”), and Wilson and Pinkney expressed a radical nationalist vision of the constitutional design that not only deviated from the views that prevailed at the time but, despite the dissent’s apparent embrace of the position, remains startling even today, see post, at 776 (quoting with approval Wilson’s statement that “ ‘the government of each state ought to be subordinate to the government of the United States’”). Nor do the controversial early suits prosecuted against Maryland and New York reflect a widespread understanding that the States had surrendered their immunity to suit. Maryland’s decision to submit to process in Vanstophorst v. Maryland, 2 Dall. 401 (1791), aroused great controversy, see Marcus & Wexler, Suits Against States: Diversity of Opinion in the 1790s, 1993 J. Sup. Ct. History 73, 74-75, and did not go unnoticed by the Supreme Court, see Chisholm, 2 Dall., at 429-430 (Iredell, J., dissenting). In Oswald v. New York, the State refused to respond to the plaintiff’s summons until after the decision in Chisholm had been announced; even then it at first asserted the defense that it was “a free, sovereign and independent State,” and could not be “drawn or compelled” to defend the suit. Marcus & Wexler, supra, at 76-77 (internal quotation marks omitted). And, though the Court’s decision in Chisholm may have had “champions ‘every bit as vigorous in defending their interpretation of the Constitution as were those partisans on the other side of the issue,’ ” post, at 794, the vote on the Eleventh Amendment makes clear that they were decidedly less numerous. See supra, at 721.

In short, the scanty and equivocal evidence offered by the dissent establishes no more than what is evident from the decision in Chisholm — that some members of the founding generation disagreed with Hamilton, Madison, Marshall, Ire-dell, and the only state conventions formally to address the matter. The events leading to the adoption of the Eleventh Amendment, however, make clear that the individuals who believed the Constitution stripped the States of their immunity from suit were at most a small minority.

Not only do the ratification debates and the events leading to the adoption of the Eleventh Amendment reveal the original understanding of the States’ constitutional immunity from suit; they also underscore the importance of sovereign immunity to the founding generation. Simply put, “The Constitution never would have been ratified if the States and their courts were to be stripped of their sovereign authority except as expressly provided by the Constitution itself.” Atascadero State Hospital v. Scanlon, 473 U. S. 234, 239, n. 2 (1985); accord, Edelman v. Jordan, 415 U. S. 651, 660 (1974).

C

The Court has been consistent in interpreting the adoption of the Eleventh Amendment as conclusive evidence “that the decision in Chisholm was contrary to the well-understood meaning of the Constitution,” Seminole Tribe, 517 U. S., at 69, and that the views expressed by Hamilton, Madison, and Marshall during the ratification debates, and by Justice Ire-dell in his dissenting opinion in Chisholm, reflect the original understanding of the Constitution. See, e.g., Hans, 134 U. S., at 12, 14-15, 18-19; Principality of Monaco, 292 U. S., at 325; Edelman, supra, at 660, n. 9; Seminole Tribe, supra, at 70, and nn. 12-13. In accordance with this understanding, we have recognized a “presumption that no anomalous and unheard-of proceedings or suits were intended to be raised up by the Constitution — anomalous and unheard of when the constitution was adopted.” Hans, 134 U. S., at 18; accord, id., at 15. As a consequence, we have looked to “history and experience, and the established order of things,” id., at 14, rather than “[a]dhering to the mere letter” of the Eleventh Amendment, id., at 13, in determining the scope of the States’ constitutional immunity from suit.

Following this approach, the Court has upheld States’ assertions of sovereign immunity in various contexts falling outside the literal text of the Eleventh Amendment. In Hans, the Court held that sovereign immunity barred a citizen from suing his own State under the federal-question head of jurisdiction. The Court was unmoved by the petitioner’s argument that the Eleventh Amendment, by its terms, applied only to suits brought by citizens of other States:

“It seems to us that these views of those great advocates and defenders of the Constitution were most sensible and just; and they apply equally to the present ease as to that then under discussion. The letter is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual against a State. The reason against it is as strong in this ease as it was in that. It is an attempt to strain the Constitution and the law to a construction never imagined or dreamed of.” Id., at 14-15.

Later decisions rejected similar requests to conform the principle of sovereign immunity to the strict language of the Eleventh Amendment in holding that nonconsenting States are immune from suits brought by federal corporations, Smith v. Reeves, 178 U. S. 436 (1900), foreign nations, Principality of Monaco, supra, or Indian tribes, Blatchford v. Native Village of Noatak, 501 U. S. 775 (1991), and in concluding that sovereign immunity is a defense to suits in admiralty, though the text of the Eleventh Amendment addresses only suits “in law or equity,” Ex parte New York, 256 U. S. 490 (1921).

These holdings reflect a settled doctrinal understanding, consistent with the views of the leading advocates of the Constitution’s ratification, that sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself. See, e. g., Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S. 261, 267-268 (1997) (acknowledging “the broader concept of immunity, implicit in the Constitution, which we have regarded the Eleventh Amendment as evidencing and exemplifying”); Seminole Tribe, supra, at 55-56; Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 98-99 (1984); Ex parte New York, supra, at 497. The Eleventh Amendment confirmed, rather than established, sovereign immunity as a constitutional principle; it follows that the scope of the States’ immunity from suit is demarcated not by the text of the Amendment alone but by fundamental postulates implicit in the constitutional design. As we explained in Principality of Monaco:

“Manifestly, we cannot rest with a mere literal application of the words of §2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. There is the essential postulate that the controversies, as contemplated, shall be found to be of a justiciable character. There is also the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been ‘a surrender of this immunity in the plan of the convention.’ ” 292 U. S., at 322-323 (quoting The Federalist No. 81 (footnote omitted).

Or, as we have more recently reaffirmed:

“Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, ‘we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition .. . which it confirms.’ Blatchford v. Native Village of Noatak, 501 U. S. 775, 779 (1991). That presupposition, first observed over a century ago in Hans v. Louisiana, 134 U. S. 1 (1890), has two parts: first, that each State is a sovereign entity in our federal system; and second, that ‘ “[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent,” ’ id., at 13 (emphasis deleted), quoting The Federalist No. 81, p. 487 ....” Seminole Tribe, supra, at 54.

Accord, Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 146 (1993) (“The Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity”).

II

In this case we must determine whether Congress has the power, under Article I, to subject nonconsenting States to private suits in their own courts. As the foregoing discussion makes clear, the fact that the Eleventh Amendment by its terms limits only “[t]he Judicial power of the United States” does not resolve the question. To rest on the words of the Amendment alone would be to engage in the type of ahistorical literalism we have rejected in interpreting the scope of the States’ sovereign immunity since the discredited decision in Chisholm. Seminole Tribe, 517 U. S., at 68; see also id., at 69 (quoting Principality of Monaco, supra, at 326, in turn quoting Hans, 134 U. S., at 15) (“[W]e long have recognized that blind reliance upon the text of the Eleventh Amendment is ‘“to strain the Constitution and the law to a construction never imagined or dreamed of” ’ ”).

While the constitutional principle of sovereign immunity does pose a bar to federal jurisdiction over suits against nonconsenting States, see, e. g., Principality of Monaco, 292 U. S., at 322-323, this is not the only structural basis of sovereign immunity implicit in the constitutional design. Rather, “[t]here is also the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been ‘a surrender of this immunity in the plan of the convention.’ ” Ibid. (quoting The Federalist No. 81; accord, Blatchford, supra, at 781; Seminole Tribe, supra, at 68. This separate and distinct structural principle is not directly related to the scope of the judicial power established by Article III, but inheres in the system of federalism established by the Constitution. In exercising its Article I powers Con gress may subject the States to private suits in their own courts only if there is “compelling evidence” that the States were required to surrender this power to Congress pursuant to the constitutional design. Blatchford, 501 U. S., at 781.

A

Petitioners contend the text of the Constitution and our recent sovereign immunity decisions establish that the States were required to relinquish this portion of their sovereignty. We turn first to these sources.

1

Article I, §8, grants, Congress broad power to enact legislation in several enumerated areas of national concern. The Supremacy Clause, furthermore, provides:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof..., shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U. S. Const., Art. VI.

It is contended that, by virtue of these provisions, where Congress enacts legislation subjecting the States to suit, the legislation by necessity overrides the sovereign immunity of the States.

As is evident from its text, however, the Supremacy Clause enshrines as “the supreme Law of the Land” only those Federal Acts that accord with the constitutional design. See Printz, 521 U. S., at 924. Appeal to the Supremacy Clause alone merely raises the question whether a law is a valid exercise of the national power. See The Federalist No. 33, at 204 (A. Hamilton) (“But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land”); Printz, supra, at 924-925.

The Constitution, by delegating to Congress the power to establish the supreme law of the land when acting within its enumerated powers, does not foreclose a State from asserting immunity to claims arising under federal law merely because that law derives not from the State itself but from the national power. A contrary view could not be reconciled with Hans, supra, which sustained Louisiana’s immunity in a private suit arising under the Constitution itself; with Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279, 283 (1973), which recognized that the FLSA was binding upon Missouri but nevertheless upheld the State’s immunity to a private suit to recover under that Act; or with numerous other decisions to the same effect. We reject any contention that substantive federal law by its own force necessarily overrides the sovereign immunity of the States. When a State asserts its immunity to suit, the question is not the primacy of federal law but the implementation of the law in a manner consistent with the constitutional sovereignty of the States.

Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers. Although some of our decisions had endorsed this contention, see Parden v. Terminal R. Co. of Ala. Docks Dept., 377 U. S. 184, 190-194 (1964); Pennsylvania v. Union Gas Co., 491 U. S. 1, 13-23 (1989) (plurality opinion), they have since been overruled, see Seminole Tribe, supra, at 63-67, 72; College Savings Bank v. Florida Prepaid Post-secondary Ed. Expense Bd., ante, at 680. As we have recognized in an analogous context:

‘When a ‘La[w] ... for carrying into Execution’ the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions ... it is not a ‘La[w]... proper for carrying into Execution the Commerce Clause,’ and is thus, in the words of The Federalist, 'merely [an] ae[t] of usurpation’ which ‘deserve[s] to be treated as such.’” Printz, supra, at 923-924 (quoting The Federalist No. 33, at 204) (ellipses and alterations in Printz).

The eases we have cited, of course, came at last to the conclusion that neither the Supremacy Clause nor the enumerated powers of Congress confer authority to abrogate the States’ immunity from suit in federal court. The logic of the decisions, however, does not turn on the forum in which the suits were prosecuted but extends to state-court suits as well.

The dissenting opinion seeks to reopen these precedents, contending that state sovereign immunity must derive either from the common law (in which case the dissent contends it is defeasible by statute) or from natural law (in which case the dissent believes it cannot bar a federal claim). See post, at 797-798. As should be obvious to all, this is a false dichotomy. The text and the structure of the Constitution protect various rights and principles. Many of these, such as the right to trial by jury and the prohibition on unreasonable searches and seizures, derive from the common law. The common-law lineage of these rights does not mean they are defeasible by statute or remain mere common-law rights, however. They are, rather, constitutional rights, and form the fundamental law of the land.

Although the sovereign immunity of the States derives at least in part from the common-law tradition, the structure and history of the Constitution make clear that the immunity exists today by constitutional design. The dissent has provided no persuasive evidence that the founding generation regarded the States’ sovereign immunity as defeasible by federal statute. While the dissent implies this view was held by Madison and Marshall, see post, at 778, nothing in the comments made by either individual at the ratification conventions states, or even implies, such an understanding. Although the dissent seizes upon Justice Iredell’s statutory analysis in Chisholm in an attempt to attribute this view to Justice Iredell, see post, at 787-789, citing Chisholm, 2 Dall., at 449, Justice Iredell’s views on the underlying constitutional question are clear enough from other portions of his dissenting opinion:

“So much, however, has been said on the Constitution, that it may not be improper to intimate that my present opinion is strongly against any construction of it, which will admit, under any circumstances, a compulsive suit against a State for the recovery of money. I think every word in the Constitution may have its full effect without involving this consequence, and that nothing but express words, or an insurmountable implication (neither of which I consider, can be found in this ease) would authorize the deduction of so high a power.” Id., at 449-450.

Despite the dissent’s assertion to the contrary, the fact that a right is not defeasible by statute means only that it is protected by the Constitution, not that it derives from natural law. Whether the dissent’s attribution of our reasoning and conclusions to natural law results from analytical confusion or rhetorical device, it is simply inaccurate. We do not contend the Founders could not have stripped the States of sovereign immunity and granted Congress power to subject them to private suit but only that they did not do so. By the same token, the contours of sovereign immunity are determined by the Founders’ understanding, not by the principles or limitations derived from natural law.

The dissent has offered no evidence that the Founders believed sovereign immunity extended only to cases where the sovereign was the source of the right asserted. No such limitation existed on sovereign immunity in England, where sovereign immunity was predicated on a different theory altogether. See 1 F. Pollock & F. Maitland, History of English Law 518 (2d ed. 1909), quoted in Nevada v. Hall, 440 U. S., at 415, n. 6 (“ ‘[The King] can not be compelled to answer in his own court, but this is true of every petty lord of every petty manor’ ”); accord, 8 W. Holdsworth, A History of English Law 465 (3d ed. 1927) (“[N]o feudal lord could be sued in his own court”). It is doubtful whether the King was regarded, in any meaningful sense, as the font of the traditions and customs which formed the substance of the common law, yet he could not be sued on a common-law claim in his own courts. And it strains credibility to imagine that the King could have been sued in his own court on, say, a French cause of action.

In light of the ratification debates and the history of the Eleventh Amendment, there is no reason to believe the Founders intended the Constitution to preserve a more restricted immunity in the United States. On the contrary, Congress’ refusal to modify the text of the Eleventh Amendment to create an exception to sovereign immunity for cases arising under treaties, see supra, at 721, suggests the States’ sovereign immunity was understood to extend beyond state-law causes of action. And surely the dissent does not believe that sovereign immunity poses no bar to a state-law suit against the United States in federal court, or that the Federal Tort Claims Act effected a contraction, rather than an expansion, of the United States’ amenability to suit.

2

There are isolated statements in some of our cases suggesting that the Eleventh Amendment is inapplicable in state courts. See Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 204-205 (1991); Will v. Michigan Dept. of State Police, 491 U. S. 58, 63 (1989); Atascadero State Hospital v. Scanlon, 473 U. S., at 239-240, n. 2; Maine v. Thiboutot, 448 U. S. 1, 9, n. 7 (1980); Hall, supra, at 418-421. This, of course, is a truism as to the literal terms of the Eleventh Amendment. As we have explained, however, the bare text of the Amendment is not an exhaustive description of the States’ constitutional immunity from suit. The eases, furthermore, do not decide the question presented here — whether the States retain immunity from private suits in their own courts notwithstanding an attempted abrogation by the Congress.

Two of the eases discussing state-court immunity may be dismissed out of hand. The footnote digressions in Atascadero State Hospital and Thiboutot were irrelevant to either opinion’s holding or rationale. The discussion in Will was also unnecessary to the decision; our holding that 42 U. S. C. §1983 did not create a cause of action against the States rendered it unnecessary to determine the scope of the States’ constitutional immunity from suit in their own courts. Our opinions in Hilton and Hall, however, require closer attention, for in those eases we sustained suits against States in state courts.

In Hilton we held that an injured employee of a state-owned railroad could sue his employer (an arm of the State) in state court under the Federal Employers’ Liability Act (FELA), 53 Stat. 1404, 45 U.S.C. §§51-60. Our decision was “controlled and informed” by stare decisis. 502 U. S., at 201. A generation earlier we had held that because the FELA made clear that all who operated railroads would be subject to suit by injured workers, States that chose to enter the railroad business after the statute’s enactment impliedly waived their sovereign immunity from such suits. See Parden v. Terminal R. Co. of Ala. Docks Dept., 377 U. S. 184 (1964). Some States had excluded railroad workers from the coverage of their workers’ compensation statutes on the assumption that the FELA provided adequate protection for those workers. Hilton, 502 U. S., at 202. Closing the courts to FELA suits against state employers would have dislodged settled expectations and required an extensive legislative response. Ibid.

There is language in Hilton which gives some support to the position of petitioners here but our decision did not squarely address, much less resolve, the question of Congress’ power to abrogate States’ immunity from suit in their own courts. The respondent in Hilton, the South Carolina Public Railways Commission, neither contested Congress’ constitutional authority to subject it to suits for money damages nor raised sovereign immunity as an affirmative defense. See Brief for Respondent in No. 90-848, O. T. 1991, pp. 7, n. 14, 21. Nor was the State’s litigation strategy surprising. Hilton was litigated and decided in the wake of Union Gas, and before this Court’s decisions in New York, Printz, and Seminole Tribe. At that time 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, so long as Congress made its intent sufficiently clear.

Furthermore, our decision in Parden was based on concepts of waiver and consent. Although later decisions have undermined the basis of Parden’s reasoning, see, e. g., Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 476-478 (1987) (recognizing that Parden erred in finding a clear congressional intent to subject the States to suit); College Savings Bank, ante, at 680 (overruling Parden’s theory of constructive waiver), we have not questioned the general proposition that a State may waive its sovereign immunity and consent to suit, see Seminole Tribe, 517 U. S., at 65.

Hilton, then, must be read in light of the doctrinal basis of Parden, the issues presented and argued by the parties, and the substantial reliance interests drawn into question by the litigation. When so read, we believe the decision is best understood not as recognizing a congressional power to subject nonconsenting States to private suits in their own courts, nor even as endorsing the constructive waiver theory of Parden, but as simply adhering, as a matter of stare decisis and presumed historical fact, to the narrow proposition that certain States had consented to be sued by injured workers covered by the FELA, at least in their own courts.

In Hall we considered whether California could subject Nevada to suit in California’s courts and determined the Constitution did not bar it from doing so. We noted that “[t]he doctrine of sovereign immunity is an amalgam of two quite different concepts, one applicable to suits in the sovereign’s own courts and the other to suits in the courts of another sovereign.” 440 U. S., at 414. We acknowledged that “[t]he immunity of a truly independent sovereign from suit in its own courts has been enjoyed as a matter of absolute right for centuries. Only the sovereign’s own consent could qualify the absolute character of that immunity,” ibid., that “the notion that immunity from suit is an attribute of sovereignty is reflected in our eases,” id., at 415, and that “[t]his explanation adequately supports the conclusion that no sovereign may be sued in its own courts without its consent,” id., at 416. We sharply distinguished, however, a sovereign’s immunity from suit in the courts of another sovereign:

“[B]ut [this explanation] affords no support for a claim of immunity in another sovereign’s courts. Such a claim necessarily implicates the power and authority of a second sovereign; its source must be found either in an agreement, express or implied, between the two sovereigns, or in the voluntary decision of the second to respect the dignity of the first as a matter of comity.” Ibid.

Since we determined the Constitution did not reflect an agreement between the States to respect the sovereign immunity of one another, California was free to determine whether it would respect Nevada’s sovereignty as a matter of comity.

Our opinion in Hall did distinguish a State’s immunity from suit in federal court from its immunity in the courts of other States; it did not, however, address or consider any differences between a State’s sovereign immunity in federal court and in its own courts. Our reluctance to find an implied constitutional limit on the power of the States cannot be construed, furthermore, to support an analogous reluctance to find implied constitutional limits on the power of the Federal Government. The Constitution, after all, treats the powers of the States differently from the powers of the Federal Government. As we explained in Hall:

“[I]n view of the Tenth Amendment’s reminder that powers not delegated to the Federal Government nor prohibited to the States are reserved to the States or to the people, the existence of express limitations on state sovereignty may equally imply that caution should be exercised before concluding that unstated limitations on state power were intended by the Framers.” Id., at 425 (footnote omitted).

The Federal Government, by contrast, “can claim no powers which are not granted to it by the constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication.” Martin v. Hunter’s Lessee, 1 Wheat. 304, 326 (1816); see also City of Boerne v. Flores, 521 U. S. 507, 516 (1997); United States v. Lopez, 514 U. S. 549, 552 (1995).

Our decision in Hall thus does not support the argument urged by petitioners here. The decision addressed neither Congress’ power to subject States to private suits nor the States’ immunity from suit in their own courts. In fact, the distinction drawn between a sovereign’s immunity in its own courts and its immunity in the courts of another sovereign, as well as the reasoning on which this distinction was based, are consistent with, and even support, the proposition urged by respondent here — that the Constitution reserves to the States a constitutional immunity from private suits in their own courts which cannot be abrogated by Congress.

Petitioners seek support in two additional decisions. In Reich v. Collins, 513 U. S. 106 (1994), we held that, despite its immunity from suit in federal court, a State which holds out what plainly appears to be “a clear and certain” postdeprivation remedy for taxes collected in violation of federal law may not declare, after disputed taxes have been paid in reliance on this remedy, that the remedy does not in fact exist. Id., at 108. This case arose in the context of tax-refund litigation, where a State may deprive a taxpayer of all other means of challenging the validity of its tax laws by holding out what appears to be a “dear and certain” postdeprivation remedy. Ibid.; see also Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U. S. 100 (1981). In this context, due process requires the State to provide the remedy it has promised. Cf. Hudson v. Palmer, 468 U. S. 517, 539 (1984) (O’Connor, J., concurring). The obligation arises from the Constitution itself; Reich does not speak to the power of Congress to subject States to suits in their own courts.

In Howlett v. Rose, 496 U. S. 356 (1990), we held that a state court could not refuse to hear a § 1983 suit against a school board on the basis of sovereign immunity. The school board was not an arm of the State, however, so it could not assert any constitutional defense of sovereign immunity to which the State would have been entitled. See Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 280 (1977). In Howlett, then, the only question was “whether a state-law defense of 'sovereign immunity' is available to a school board otherwise subject to suit in a Florida court even though such a defense would not be available if the action had been brought in a federal forum.” 496 U. S., at 358-359. The dedsion did not address the question of Congress’ power to compel a state court to entertain an action against a noncon-senting State.

B

Whether Congress has authority under Article I to abrogate a State’s immunity from suit in its own courts is, then, a question of first impression. In determining whether there is “compelling evidence” that this derogation of the States’ sovereignty is “inherent in the constitutional compact,” Blatchford, 501 U. S., at 781, we continue our discussion of history, practice, precedent, and the structure of the Constitution.

1

We look first to evidence of the original understanding of the Constitution. Petitioners contend that because the ratification debates and the events surrounding the adoption of the Eleventh Amendment focused on the States’ immunity from suit in federal courts, the historical record gives no instruction as to the founding generation’s intent to preserve the States’ immunity from suit in their own courts.

We believe, however, that the Founders’ silence is best explained by the simple fact that no one, not even the Constitution’s most ardent opponents, suggested the document might strip the States of the immunity. In light of the overriding concern regarding the States’ war-time debts, together with the well-known creativity, foresight, and vivid imagination of the Constitution’s opponents, the silence is most instructive. It suggests the sovereign’s right to assert immunity from suit in its own courts was a principle so well established that no one conceived it would be altered by the new Constitution.

The arguments raised against the Constitution confirm this strong inference. In England, the rule was well established that “no lord could be sued by a vassal in his own court, but each petty lord was subject to suit in the courts of a higher lord.” Hall, 440 U. S., at 414-415. It was argued that, by analogy, the States could be sued without consent in federal court. Id., at 418. The point of the argument was that federal jurisdiction under Article III would circumvent the States’ immunity from suit in their own courts. The argument would have made little sense if the States were understood to have relinquished the immunity in all events.

The response the Constitution’s advocates gave to the argument is also telling. Relying on custom and practice— and, in particular, on the States’ immunity from suit in their own courts, see 3 Elliot’s Debates 555 (remarks of J. Marshall) — they contended that no individual could sue a sovereign without its consent. It is true the point was directed toward the power of the Federal Judiciary, for that was the only question at issue. The logic of the argument, however, applies with even greater force in the context of a suit prosecuted against a sovereign in its own courts, for in this setting, more than any other, sovereign immunity was long established and unquestioned. See Hall, supra, at 414.

Similarly, while the Eleventh Amendment by its terms addresses only “the Judicial power of the United States,” nothing in Chisholm, the catalyst for the Amendment, suggested the States were not immune from suits in their own courts. The only Justice to address the issue, in fact, was explicit in distinguishing between sovereign immunity in federal court and in a State’s own courts. See 2 Dall., at 452 (opinion of Blair, J.) (“When sovereigns are sued in their own Courts, such a method [a petition of right] may have been established as the most respectful form of demand; but we are not now in a State-Court; and if sovereignty be an exemption from suit in any other than the sovereign’s own Courts, it follows that when a State, by adopting the Constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty”).

The language of the Eleventh Amendment, furthermore, was directed toward the only provisions of the constitutional text believed to call the States’ immunity from private suits into question. Although Article III expressly contemplated jurisdiction over suits between States and individuals, nothing in the Article or in any other part of the Constitution suggested the States could not assert immunity from private suit in their own courts or that Congress had the power to abrogate sovereign immunity there.

Finally, the Congress which endorsed the Eleventh Amendment rejected language limiting the Amendment’s scope to eases where the States had made available a remedy in their own courts. See supra, at 721. Implicit in the proposal, it is evident, was the premise that the States retained their immunity and the concomitant authority to deeide whether to allow private suits against the sovereign in their own courts.

In light of the language of the Constitution and the historical context, it is quite apparent why neither the ratification debates nor the language of the Eleventh Amendment addressed the States’ immunity from suit in their own courts. The concerns voiced at the ratifying conventions, the furor raised by Chisholm, and the speed and unanimity with which the Amendment was adopted, moreover, underscore the jealous care with which the founding generation sought to preserve the sovereign immunity of the States. To read this history as permitting the inference that the Constitution stripped the States of immunity in their own courts and allowed Congress to subject them to suit there would turn on its head the concern of the founding generation — that Article III might be used to circumvent state-court immunity. In light of the historical record it is difficult to conceive that the Constitution would have been adopted if it had been understood to strip the States of immunity from suit in their own courts and cede to the Federal Government a power to subject nonconsenting States to private suits in these fora.

2

Our historical analysis is supported by early congressional practice, which provides “contemporaneous and weighty evidence of the Constitution’s meaning.” Printz, 521 U. S., at 905 (internal quotation marks omitted). Although early Congresses enacted various statutes authorizing federal suits in state court, see id., at 906-907 (listing statutes); Testa v. Katt, 330 U. S. 386, 389-390 (1947), we have discovered no instance in which they purported to authorize suits against nonconsenting States in these fora. The “numerousness of these statutes [authorizing suit in state court], contrasted with the utter lack of statutes” subjecting States to suit, “suggests an assumed absence of such power.” 521 U. S., at 907-908. It thus appears early Congresses did not believe they had the power to authorize private suits against the States in their own courts.

Not only were statutes purporting to authorize private suits against nonconsenting States in state courts not enacted by early Congresses; statutes purporting to authorize such suits in any forum are all but absent from our historical experience. The first statute we confronted that even arguably purported to subject the States to private actions was the FELA. See Parden, 377 U. S., at 187 (“Here, for the first time in this Court, a State’s claim of immunity against suit by an individual meets a suit brought upon a cause of action expressly created by Congress”). As we later recognized, however, even this statute did not clearly create a cause of action against the States. See Welch, 483 U. S., at 476-478. The provisions of the FLSA at issue here, which were enacted in the aftermath of Parden, are among the first statutory enactments purporting in express terms to subject nonconsenting States to private suits. Although similar statutes have multiplied in the last generation, “they are of such recent vintage that they are no more probative than the [FLSA] of a constitutional tradition that lends meaning to the text. Their persuasive force is far outweighed by almost two centuries of apparent congressional avoidance of the practice.” Printz, supra, at 918.

Even the recent statutes, moreover, do not provide evidence of an understanding that Congress has a greater power to subject States to suit in their own courts than in federal courts. On the contrary, the statutes purport to create causes of actions against the States which are enforceable in federal, as well as state, court. To the extent recent practice thus departs from longstanding tradition, it reflects not so much an understanding that the States have surrendered their immunity from suit in their own courts as the erroneous view, perhaps inspired by Parden and Union Gas, that Congress may subject noneonsenting States to private suits in any forum.

3

The theory and reasoning of our earlier cases suggest the States do retain a constitutional immunity from suit in their own courts. We have often described the States’ immunity in sweeping terms, without reference to whether the suit was prosecuted in state or federal court. See, e. g., Briscoe v. Bank of Kentucky, 11 Pet. 257, 321-322 (1837) (“No sovereign state is liable to be sued without her consent”); Board of Liquidation v. McComb, 92 U. S. 531, 541 (1876) (“A State, without its consent, cannot be sued by an individual”); In re Ayers, 123 U. S. 443, 506 (1887) (same); Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 51 (1944) (“The inherent nature of sovereignty prevents actions against a state by its own citizens without its consent”).

We have said on many occasions, furthermore, that the States retain their immunity from private suits prosecuted in their own courts. See, e. g., Beers v. Arkansas, 20 How. 527, 529 (1858) (“It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission”); Railroad Co. v. Tennessee, 101 U. S. 337, 339 (1880) (“The principle is elementary that a State cannot be sued in its own courts without its consent. This is a privilege of sovereignty”); Gunningham v. Macon & Brunswick R. Co., 109 U. S. 446, 451 (1883) (“It may be accepted as a point of departure unquestioned, that neither a State nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a State may be made a party in the Supreme Court of the United States by virtue of the original jurisdiction conferred on this court by the Constitution”); Louisiana ex rel. New York Guaranty & Indemnity Co. v. Steele, 134 U. S. 230, 232 (1890) (finding a suit against a state official in state court to be “clearly within the principle” of the Eleventh Amendment decisions); Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 39 (1994) (“The Eleventh Amendment largely shields States from suit in federal court without their consent, leaving parties with claims against a State to present them, if the State permits, in the State’s own tribunals”); Seminole Tribe, 517 U. S., at 71, n. 14 (“[T]his Court is empowered to review a question of federal law arising from a state-court decision where a State has consented to suit”); see also Great Northern Life Ins. Co. v. Read, 322 U. S., at 59 (Frankfurter, J., dissenting) (“The Eleventh Amendment has put state immunity from suit into the Constitution. Therefore, it is not in the power of individuals to bring any State Into court — the State’s or that of the United States — except with its consent”); accord, id., at 51, 53 (majority opinion); cf. Quern v. Jordan, 440 U. S. 332, 340 (1979); Green v. Mansour, 474 U. S. 64, 71 (1985).

We have also relied on the States’ immunity in their own courts as a premise in our Eleventh Amendment rulings. See Hans, 134 U. S., at 10 (“It is true the amendment does so read, and, if there were no other reason or ground for abating his suit, it might be maintainable; and then we should have this anomalous result [that a State may be sued by its own citizen though not by the citizen of another State, and that a State] may be thus sued in the federal courts, although not allowing itself to be sued in its own courts. If this is the necessary consequence of the language of the Constitution and the law, the result is no less startling and unexpected than [Chisholm]”); id., at 18 (“The state courts have no power to entertain suits by individuals against a State without its consent. Then how does the Circuit Court, having only concurrent jurisdiction, acquire any such power?”).

In particular, the exception to our sovereign immunity doctrine recognized in Ex parte Young, 209 U. S. 123 (1908), is based in part on the premise that sovereign immunity bars relief against States and their officers in both state and federal courts, and that certain suits for declaratory or injunc-tive relief against state officers must therefore be permitted if the Constitution is to remain the supreme law of the land. As we explained in General Oil Co. v. Crain, 209 U. S. 211 (1908), a ease decided the same day as Ex parte Young and extending the rule of that case to state-court suits:

“It seems to be an obvious consequence that as a State can only perform its functions through its officers, a restraint upon them is a restraint upon its sovereignty from which it is exempt without its consent in the state tribunals, and exempt by the Eleventh Amendment of the Constitution of the United States, in the national tribunals. The error is in the universality of the conclusion, as we have seen. Necessarily to give adequate protection to constitutional rights a distinction must be made between valid and invalid state laws, as determining the character of the suit against state officers. And the suit at bar illustrates the necessity. If a suit against state officers is precluded in the national courts by the Eleventh Amendment to the Constitution, and may be forbidden by a State to its courts, as it is contended in the case at bar that it may be, without power of review by this court, it must be evident that an easy way is open to prevent the enforcement of many provisions of the Constitution .... See Ex parte Young, [209 U. S., at] 123, where this subject is fully discussed and the cases reviewed.” 209 U. S., at 226-227.

Had we not understood the States to retain a constitutional immunity from suit in their own courts, the need for the Ex parte Young rule would have been less pressing, and the rule would not have formed so essential a part of our sovereign immunity doctrine. See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S., at 270-271 (principal opinion).

As it is settled doctrine that neither substantive federal law nor attempted congressional abrogation under Article I bars a State from raising a constitutional defense of sovereign immunity in federal court, see Part II-A-1, supra, our decisions suggesting that the States retain an analogous constitutional immunity from private suits in their own courts support the conclusion that Congress lacks the Article I power to subject the States to private suits in those fora.

4

Our final consideration is whether a congressional power to subject nonconsenting States to private suits in their own courts is consistent with the structure of the Constitution. We look both to the essential principles of federalism and to the special role of the state courts in the constitutional design.

Although the Constitution grants broad powers to Congress, our federalism requires that Congress treat the States in a manner consistent with their status as residuary sovereigns and joint participants in the governance of the Nation. See, e. g., United States v. Lopez, 514 U. S., at 583 (Kennedy, J., concurring); Printz, 521 U. S., at 935; New York, 505 U. S., at 188. The founding generation thought it “neither becoming nor convenient that the several States of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons.” In re Ayers, 123 U. S., at 505. The principle of sovereign immunity preserved by constitutional design “thus accords the States the respeet owed them as members of the federation.” Puerto Rico Aqueduct and Sewer Authority, 506 U. S., at 146; accord, Coeur d’Alene Tribe, supra, at 268 (recognizing “the dignity and respect afforded a State, which the immunity is designed to protect”).

Petitioners contend that immunity from suit in federal court suffices to preserve the dignity of the States. Private suits against nonconsenting States, however, present “the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties,” In re Ayers, supra, at 505; accord, Seminole Tribe, 517 U. S., at 58, regardless of the forum. Not only must a State defend or default but also it must face the prospect of being thrust, by federal fiat and against its will, into the disfavored status of a debtor, subject to the power of private citizens to levy on its treasury or perhaps even government buildings or property which the State administers on the public’s behalf.

In some ways, of course, a congressional power to authorize private suits against nonconsenting States in their own courts would be even more offensive to state sovereignty than a power to authorize the suits in a federal forum. Although the immunity of one sovereign in the courts of another has often depended in part on comity or agreement, the immunity of a sovereign in its own courts has always been understood to be within the sole control of the sovereign itself. See generally Hall, 440 U. S., at 414-418. A power to press a State’s own courts into federal service to coerce the other branches of the State, furthermore, is the power first to turn the State against itself and ultimately to commandeer the entire political machinery of the State against its will and at the behest of individuals. Cf. Coeur d’Alene Tribe, supra, at 276. Such plenary federal control of state governmental processes denigrates the separate sovereignty of the States.

It is unquestioned that the Federal Government retains its own immunity from suit not only in state tribunals but also in its own courts. In light of our constitutional system recognizing the essential sovereignty of the States, we are reluctant to conclude that the States are not entitled to a reciprocal privilege.

Underlying constitutional form are considerations of great substance. Private suits against nonconsenting States — especially suits for money damages — may threaten the financial integrity of the States. It is indisputable that, at the time of the founding, many of the States could have been forced into insolvency but for their immunity from private suits for money damages. Even today, an unlimited congressional power to authorize suits in state court to levy upon the treasuries of the States for compensatory damages, attorney’s fees, and even punitive damages could create staggering burdens, giving Congress a power and a leverage over the States that is not contemplated by our constitutional design. The potential national power would pose a severe and notorious danger to the States and their resources.

A congressional power to strip the States of their immunity from private suits in their own courts would pose more subtle risks as well. “The principle of immunity from litigation assures the states and the nation from unanticipated intervention in the processes of government.” Great Northern Life Ins. Co. v. Read, 322 U. S., at 53. When the States’ immunity from private suits is disregarded, “the course of their public policy and the administration of their public affairs” may become “subject to and controlled by the mandates of judicial tribunals without their consent, and in favor of individual interests.” In re Ayers, supra, at 505. While the States have relinquished their immunity from suit in some special contexts — at least as a practical matter — see Part III, infra, this surrender carries with it substantial costs to the autonomy, the decisionmaking ability, and the sovereign capacity of the States.

A general federal power to authorize private suits for money damages would place unwarranted strain on the States’ ability to govern in accordance with the will of their citizens. Today, as at the time of the founding, the allocation of scarce resources among competing needs and interests lies at the heart of the political process. While the judgment creditor of a State may have a legitimate claim for compensartion, other important needs and worthwhile ends compete for access to the public fisc. Since all cannot be satisfied in full, it is inevitable that difficult decisions involving the most sensitive and political of judgments must be made. If the principle of representative government is to be preserved to the States, the balance between competing interests must be reached after deliberation by the political process established by the citizens of the State, not by judicial decree mandated by the Federal Government and invoked by the private citizen. “It needs no argument to show that the political power cannot be thus ousted of its jurisdiction and the judiciary set in its place.” Louisiana v. Jumel, 107 U. S. 711, 727-728 (1883).

By “ ‘splitting] the atom of sovereignty,”’ the Founders established “ ‘two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.’” Saenz v. Roe, 526 U. S. 489, 504, n. 17 (1999), quoting U S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring). “The Constitution thus contemplates that a State’s government will represent and remain accountable to its own citizens.” Printz, 521 U. S., at 920. When the Federal Government asserts authority over a State’s most fundamental political processes, it strikes at the heart of the political accountability so essential to our liberty and republican form of government.

The asserted authority would blur not only the distinct responsibilities of the State and National Governments but also the separate duties of the judicial and political branches of the state governments, displacing “state decisions that ‘go to the heart of representative government.’” Gregory v.

Ashcroft, 501 U. S. 452, 461 (1991). A State is entitled to order the processes of its own governance, assigning to the political branches, rather than the courts, the responsibility for directing the payment of debts. See id., at 460 (“Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign”). If Congress could displace a State's allocation of governmental power and responsibility, the judicial branch of the State, whose legitimacy derives from fidelity to the law, would be compelled to assume a role not only foreign to its experience but beyond its competence as defined by the very Constitution from which its existence derives.

Congress cannot abrogate the States' sovereign immunity in federal court; were the rule to be different here, the National Government would wield greater power in the state courts than in its own judicial instrumentalities. Cf. Howlett, 496 U. S., at 365 (noting the anomaly that would arise if “a State might be forced to entertain in its own courts suits from which it was immune in federal court”); Hilton, 502 U. S., at 206 (recognizing the “federalism-related concerns that arise when the National Government uses the state courts as the exclusive forum to permit recovery under a congressional statute”).

The resulting anomaly cannot be explained by reference to the special role of the state courts in the constitutional design. Although Congress may not require the legislative or executive branches of the States to enact or administer federal regulatory programs, see Printz, supra, at 935; New York, 505 U. S., at 188, it may require state courts of “adequate and appropriate” jurisdiction, Testa, 330 U. S., at 394, “to enforce federal prescriptions, insofar as those prescriptions relat[e] to matters appropriate for the judicial power,” Printz, supra, at 907. It would be an unprecedented step, however, to infer from the fact that Congress may declare federal law binding and enforceable in state courts the further principle that Congress’ authority to pursue federal objectives through the state judiciaries exceeds not only its power to press other branches of the State into its service but even its control over the federal courts themselves. The conclusion would imply that Congress may in some eases act only through instrumentalities of the States. Yet, as Chief Justice Marshall explained: “No trace is to be found in the constitution of an intention to create a dependence of the government of the Union on those of the States, for the execution of the great powers assigned to it. Its means are adequate to its ends; and on those means alone was it expected to rely for the accomplishment of its ends.” McCulloch v. Maryland, 4 Wheat. 316, 424 (1819); cf. Osborn v. Bank of United States, 9 Wheat. 738, 821 (1824) (“It is not insinuated that the judicial power, in cases depending on the character of the cause, cannot be exercised in the first instance, in the Courts of the Union, but must first be exercised in the tribunals of the State”).

The provisions of the Constitution upon which we have relied in finding the state courts peculiarly amenable to federal command, moreover, do not distinguish those courts from the Federal Judiciary. The Supremacy Clause does impose specific obligations on state judges. There can be no serious contention, however, that the Supremacy Clause imposes greater obligations on state-court judges than on the Judiciary of the United States itself. The text of Article III, §1, which extends federal judicial power to enumerated classes of suits but grants Congress discretion whether to establish inferior federal courts, does give strong support to the inference that state courts may be opened to suits falling within the federal judicial power. The Article in no way suggests, however, that state courts may be required to assume jurisdiction that could not be vested in the federal courts and forms no part of the judicial power of the United States.

We have recognized that Congress may require state courts to hear only “matters appropriate for the judicial power,” Printz, 521 U. S., at 907. Our sovereign immunity precedents establish that suits against nonconsenting States are not “properly susceptible of litigation in courts,” Hans, 134 U. S., at 12, and, as a result, that “[t]he ‘entire judicial power granted by the Constitution’ does not embrace authority to entertain such suits in the absence of the State’s consent,” Principality of Monaco, 292 U. S., at 329 (quoting Ex parte New York, 256 U. S., at 497); accord, 292 U. S., at 322-323 (private suits against noneonsenting sovereigns are not “of a justiciable character”). We are aware of no constitutional precept that would admit of a congressional power to require state courts to entertain federal suits which are not within the judicial power of the United States and could not be heard in federal courts. As we explained in Erie R. Co. v. Tompkins, 304 U. S. 64 (1938):

“[T]he Constitution of the United States ... recognizes and preserves the autonomy and independence of the States — independence in their legislative and independence in their judicial departments. Supervision over either the legislative or the judicial action of the States is in no case permissible except as to matters by the Constitution specifically authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence.” Id., at 78-79.

In light of history, practice, precedent, and the structure of the Constitution, we hold that the States retain immunity from private suit in their own courts, an immunity beyond the congressional power to abrogate by Article I legislation.

III

The constitutional privilege of a State to assert its sovereign immunity in its own courts does not confer upon the State a concomitant right to disregard the Constitution or valid federal law. The States and their officers are bound by obligations imposed by the Constitution and by federal statutes that comport with the constitutional design. We are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States. The good faith of the States thus provides an important assurance that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the Land.” U. S. Const., Art. VI.

Sovereign immunity, moreover, does not bar all judicial review of state compliance with the Constitution and valid federal law. Rather, certain limits are implicit in the constitutional principle of state sovereign immunity.

The first of these limits is that sovereign immunity bars suits only in the absence of consent. Many States, on their own initiative, have enacted statutes consenting to a wide variety of suits. The rigors of sovereign immunity are thus "mitigated by a sense of justice which has continually expanded by consent the suability of the sovereign.” Great Northern Life Ins. Co. v. Read, 322 U. S., at 53. Nor, subject to constitutional limitations, does the Federal Government lack the authority or means to seek the States’ voluntary consent to private suits. Cf. South Dakota v. Dole, 483 U. S. 203 (1987).

The States have consented, moreover, to some suits pursuant to the plan of the Convention or to subsequent constitutional Amendments. In ratifying the Constitution, the States consented to suits brought by other States or by the Federal Government. Principality of Monaco, supra, at 328-329 (collecting cases). A suit which is commenced and prosecuted against a State in the name of the United States by those who are entrusted with the constitutional duty to "take Care that the Laws be faithfully executed,” U. S. Const., Art. II, § 3, differs in kind from the suit of an individual: While the Constitution contemplates suits among the members of the federal system as an alternative to extralegal measures, the fear of private suits against noneonsenting States was the central reason given by the Founders who chose to preserve the States’ sovereign immunity. Suits brought by the United States itself require the exercise of political responsibility for each suit prosecuted against a State, a control which is absent from a broad delegation to private persons to sue noneonsenting States.

We have held also that in adopting the Fourteenth Amendment, the people required the States to surrender a portion of the sovereignty that had been preserved to them by the original Constitution, so that Congress may authorize private suits against nonconsenting States pursuant to its §5 enforcement power. Fitzpatrick v. Bitzer, 427 U. S. 445 (1976). By imposing explicit limits on the powers of the States and granting Congress the power to enforce them, the Amendment “fundamentally altered the balance of state and federal power struck by the Constitution.” Seminole Tribe, 517 U. S., at 59. When Congress enacts appropriate legislation to enforce this Amendment, see City of Boerne v. Flores, 521 U. S. 507 (1997), federal interests are paramount, and Congress may assert an authority over the States which would be otherwise unauthorized by the Constitution. Fitzpatrick, supra, at 456.

The second important limit to the principle of sovereign immunity is that it bars suits against States but not lesser entities. The immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the State. See, e. g., Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S., at 280; Lincoln County v. Luning, 133 U. S. 529 (1890). Nor does sovereign immunity bar all suits against state officers. Some suits against state officers are barred by the rule that sovereign immunity is not limited to suits which name the State as a party if the suits are, in fact, against the State. See, e. g., In re Ayers, 123 U. S., at 505-506; Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S., at 270 (“The real interests served by the Eleventh Amendment are not to be sacrificed to elementary mechanics of captions and pleading”). The rule, however, does not bar certain actions against state officers for injunctive or declaratory relief. Compare Ex parte Young, 209 U. S. 123 (1908), and In re Ayers, supra, with Coeur d'Alene Tribe of Idaho, supra, Seminole Tribe, supra, and Edelman v. Jordan, 415 U. S. 651 (1974). Even a suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally. Scheuer v. Rhodes, 416 U. S. 232, 237-238 (1974); Ford Motor Co. v. Department of Treasury of Ind., 323 U. S. 459, 462 (1945).

The principle of sovereign immunity as reflected in our jurisprudence strikes the proper balance between the supremacy of federal law and the separate sovereignty of the States. See Pennhurst State School and Hospital v. Halderman, 465 U. S., at 105. Established rules provide ample means to correct ongoing violations of law and to vindicate the interests which animate the Supremacy Clause. See Green v. Mansour, 474 U. S., at 68. That we have, during the first 210 years of our constitutional history, found it unnecessary to decide the question presented here suggests a federal power to subject nonconsenting States to private suits in their own courts is unnecessary to uphold the Constitution and valid federal statutes as the supreme law.

IV

The sole remaining question is whether Maine has waived its immunity. The State of Maine “regards the immunity from suit as ‘one of the highest attributes inherent in the nature of sovereignty,'” Cushing v. Cohen, 420 A. 2d 919, 923 (Me. 1981) (quoting Drake v. Smith, 390 A. 2d 541, 543 (Me. 1978)), and adheres to the general rule that “a specific authority conferred by an enactment of the legislature is requisite if the sovereign is to be taken as having shed the protective mantle of immunity,” 420 A. 2d, at 923. Petitioners have not attempted to establish a waiver of immunity under this standard. Although petitioners contend the State has discriminated against federal rights by claiming sovereign immunity from this FLSA suit, there is no evidence that the State has manipulated its immunity in a systematic fashion to discriminate against federal causes of action. To the extent Maine has chosen to consent to certain classes of suits while maintaining its immunity from others, it has done no more than exercise a privilege of sovereignty concomitant to its constitutional immunity from suit. The State, we conclude, has not consented to suit.

V

This ease at one level concerns the formal structure of federalism, but in a Constitution as resilient as ours form mirrors substance. Congress has vast power but not all power. When Congress legislates in matters affecting the States, it may not treat these sovereign entities as mere prefectures or corporations. Congress must accord States the esteem due to them as joint participants in a federal system, one beginning with the premise of sovereignty in both the central Government and the separate States. Congress has ample means to ensure compliance with valid federal laws, but it must respect the sovereignty of the States.

In an apparent attempt to disparage a conclusion with which it disagrees, the dissent attributes our reasoning to natural law. We seek to discover, however, only what the Framers and those who ratified the Constitution sought to accomplish when they created a federal system. We appeal to no higher authority than the Charter which they wrote and adopted. Theirs was the unique insight that freedom is enhanced by the creation of two governments, not one. We need not attach a label to our dissenting colleagues’ insistence that the constitutional structure adopted by the Founders must yield to the polities of the moment. Although the Constitution begins with the principle that sovereignty rests with the people, it does not follow that the National Government becomes the ultimate, preferred mechanism for expressing the people’s will. The States exist as a refutation of that concept. In choosing to ordain and establish the Constitution, the people insisted upon a federal structure for the very purpose of rejecting the idea that the will of the people in all instances is expressed by the central power, the one most remote from their control. The Framers of the Constitution did not share our dissenting colleagues’ belief that the Congress may circumvent the federal design by regulating the States directly when it pleases to do so, including by a proxy in which individual citizens are authorized to levy upon the state treasuries absent the States’ consent to jurisdiction.

The ease before us depends upon these principles. The State of Maine has not questioned Congress’ power to prescribe substantive rules of federal law to which it must comply. Despite an initial good-faith disagreement about the requirements of the FLSA, it is conceded by all that the State has altered its conduct so that its compliance with federal law cannot now be questioned. The Solicitor General of the United States has appeared before this Court, however, and asserted that the federal interest in compensating the States’ employees for alleged past violations of federal law is so compelling that the sovereign State of Maine must be stripped of its immunity and subjected to suit in its own courts by its own employees. Yet, despite specific statutory authorization, see 29 U. S. C. § 216(c), the United States apparently found the same interests insufficient to justify sending even a single attorney to Maine to prosecute this litigation. The difference between a suit by the United States on behalf of the employees and a suit by the employees implicates a rule that the National Government must itself deem the case of sufficient importance to take action against the State; and history, precedent, and the structure of the Constitution make clear that, under the plan of the Convention, the States have consented to suits of the first kind but not of the second. The judgment of the Supreme Judicial Court of Maine is

Affirmed.

Justice Souter,

with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting.

In Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996), a majority of this Court invoked the Eleventh Amendment to declare that the federal judicial power under Article III of the Constitution does not reach a private action against a State, even on a federal question. In the Court’s conception, however, the Eleventh Amendment was understood as having been enhanced by a “background principle” of state sovereign immunity (understood as immunity to suit), see id., at 72, that operated beyond its limited codification in the Amendment, dealing solely with federal citizen-state diversity jurisdiction. To the Seminole Tribe dissenters, of whom I was one, the Court’s enhancement of the Amendment was at odds with constitutional history and at war with the conception of divided sovereignty that is the essence of American federalism.

Today’s issue arises naturally in the aftermath of the decision in Seminole Tribe. The Court holds that the Constitution bars an individual suit against a State to enforce a federal statutory right under the Fair Labor Standards Act of 1938 (FLSA), 29 U. S. C. § 201 et seq. (1994 ed. and Supp. III), when brought in the State’s courts over its objection. In thus complementing its earlier decision, the Court of course confronts the fact that the state forum renders the Eleventh Amendment beside the point, and it has responded by discerning a simpler and more straightforward theory of state sovereign immunity than it found in Seminole Tribe: a State’s sovereign immunity from all individual suits is a “fundamental aspect” of state sovereignty “confirmed]” by the Tenth Amendment. Ante, at 713, 714. As a consequence, Seminole Tribe’s contorted reliance on the Eleventh Amendment and its background was presumably unnecessary; the Tenth would have done the work with an economy that the majority in Seminole Tribe would have welcomed. Indeed, if the Court’s current reasoning is correct, the Eleventh Amendment itself was unnecessary. Whatever Article III may originally have said about the federal judicial power, the embarrassment to the State of Georgia occasioned by attempts in federal court to enforce the State’s war debt could easily have been avoided if only the Court that decided Chisholm v. Georgia, 2 Dall. 419 (1793), had understood a State’s inherent, Tenth Amendment right to be free of any judicial power, whether the court be state or federal, and whether the cause of action arise under state or federal law.

The sequence of the Court’s positions prompts a suspicion of error, and skepticism is confirmed by scrutiny of the Court’s efforts to justify its holding. There is no evidence that the Tenth Amendment constitutionalized a concept of sovereign immunity as inherent in the notion of statehood, and no evidence that any concept of inherent sovereign immunity was understood historically to apply when the sovereign sued was not the font of the law. Nor does the Court fare any better with its subsidiary lines of reasoning, that the state-court action is barred by the scheme of American federalism, a result supposedly confirmed by a history largely devoid of precursors to the action considered here. The Court’s federalism ignores the accepted authority of Congress to bind States under the FLSA and to provide for enforcement of federal rights in state court. The Court’s history simply disparages the capacity of the Constitution to order relationships in a Republic that has changed since the founding.

On each point the Court has raised it is mistaken, and I respectfully dissent from its judgment.

I

The Court rests its decision principally on the claim that immunity from suit was “a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution,” ante, at 718, an aspect which the Court understands to have survived the ratification of the Constitution in 1788 and to have been “confirm[ed]” and given constitutional status, ante, at 714, by the adoption of the Tenth Amendment in 1791. If the Court truly means by "sovereign immunity" what that term meant at common law, see ante, at 787, its argument would be insupportable. While sovereign immunity entered many new state legal systems as a part of the common law selectively received from England, it was not understood to be indefeasible or to have been given any such status by the new National Constitution, which did not mention it. See Seminole Tribe, supra, at 132-142, 160-162, and n. 55 (Souter, J., dissenting). Had the question been posed, state sovereign immunity could not have been thought to shield a State from suit under federal law on a subject committed to national jurisdiction by Article I of the Constitution. Congress exercising its conceded Article I power may unquestionably abrogate such immunity. I set out this position at length in my dissent in Seminole Tribe and will not repeat it here.1

The Court does not, however, offer today’s holding as a mere corollary to its reasoning in Seminole Tribe, substituting the Tenth Amendment for the Eleventh as the occasion demands, and it is fair to read its references to a “fundamental aspect” of state sovereignty as referring not to a prerogative inherited from the Crown, but to a conception necessarily implied by statehood itself. The conception is thus not one of common law so much as of natural law, a universally applicable proposition discoverable by reason. This, I take it, is the sense in which the Court so emphatically relies on Alexander Hamilton’s reference in The Federalist No. 81, p. 548 (J. Cooke ed. 1961), to the States’ sovereign immunity from suit as an “inherent” right, see ante, at 716, a characterization that does not require, but is at least open to, a natural law reading.

I understand the Court to rely on the Hamiltonian formulation with the object of suggesting that its conception of sovereign immunity as a “fundamental aspect” of sovereignty was a substantially popular, if not the dominant, view in the periods of Revolution and Confederation. There is, after all, nothing else in the Court’s opinion that would suggest a basis for saying that the ratification of the Tenth Amendment gave this “fundamental aspect” its constitutional status and protection against any legislative tampering by Congress.2 The Court’s principal rationale for today’s result, then, turns on history: was the natural law conception of sovereign immunity as inherent in any notion of an independent State widely held in the United States in the period preceding the ratification of 1788 (or the adoption of the Tenth Amendment in 1791)?

The answer is certainly no. There is almost no evidence that the generation of the Framers thought sovereign immunity was fundamental in the sense of being unalterable. Whether one looks at the period before the framing, to the ratification controversies, or to the early republican era, the evidence is the same. Some Framers thought sovereign immunity was an obsolete royal prerogative inapplicable in a republic; some thought sovereign immunity was a common law power defeasible, like other common law rights, by statute; and perhaps a few thought, in keeping with a natural law view distinct from the common law conception, that immunity was inherent in a sovereign because the body that made a law could not logically be bound by it. Natural law thinking on the part of a doubtful few will not, however, support the Court's position.

A

The American Colonies did not enjoy sovereign immunity, that being a privilege understood in English law to be reserved for the Crown alone; “antecedent to the Declaration of Independence, none of the colonies were, or pretended to be, sovereign states,” 1 J. Story, Commentaries on the Constitution §207, p. 149 (5th ed. 1891). Several colonial charters, including those of Massachusetts, Connecticut, Rhode Island, and Georgia, expressly specified that the corporate body established thereunder could sue and be sued. See 5 Sources and Documents of United States Constitutions 36 (W. Swindler ed. 1975) (Massachusetts); 2 id., at 131 (Connecticut); 8 id., at 363 (Rhode Island); 2 id., at 434 (Georgia). Other charters were given to individuals, who were necessarily subject to suit. See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1897 (1983). If a colonial lawyer had looked into Blackstone for the theory of sovereign immunity, as indeed many did, he would have found nothing clearly suggesting that the Colonies as such enjoyed any immunity from suit. “[T]he law ascribes to the king the attribute of sovereignty, or pre-eminence,” said Blackstone, 1 W. Blackstone, Commentaries *241 (hereinafter Blackstone), and for him, the sources for this notion were Bracton3 and Acts of Parliament that declared the Crown imperial, id., at *241-*242. It was simply the King against whom "no suit or action can be brought . . . even in civil matters, because no court can have jurisdiction over him.” Id., at *242.4 If a person should have “a just upon petition him in his court of chancery, where his chancellor will administer right as a matter of grace, though not upon compulsion.” Id., at *243.

It is worth pausing here to note that after Blackstone had explained sovereign immunity at common law, he went on to say that the common law tradition was compatible with sovereign immunity as discussed by writers on "natural law”:

"And this is entirely consonant to what is laid down by the writers on natural law. ‘A subject/ says Pufendorf, ‘so long as he continues a subject, hath no way to oblige his prince to give him his due, when he refuses it; though no wise prince will ever refuse to stand to a lawful contract. And, if the prince gives the subject leave to enter an action against him, upon such contract, in his own courts, the action itself proceeds rather upon natural equity, than upon the municipal laws/ For the end of such action is not to compel the prince to observe the contract, but to persuade him.” Ibid, (footnote omitted).5

Next Blackstone quoted Locke’s explanation for immunity, according to which the risks of overreaching by “ ‘a heady prince’” are “‘well recompensed by the peace of the public and security of the government, in the person of the chief magistrate being thus set out of the reach of danger.’ ” Ibid. (quoting J. Locke, Second Treatise of Civil Government §205 (1690 J. Gough ed. 1947)). By quoting Pufendorf and Locke, Blackstone revealed to his readers a legal-philosophical tradition that derived sovereign immunity not from the immemorial practice of England but from general theoretical principles. But although Blackstone thus juxtaposed the common law and natural law6 conceptions of sovereign immunity, he did not confuse them. It was as well he did not, for although the two conceptions were arguably “consonant” in England, where according to Blackstone, the Crown was sovereign,7 their distinct foundations could make a difference in America, where the location of sovereignty was an issue that independence would raise with some exigence.

B

Starting in the mid-1760’s, ideas about sovereignty in colonial America began to shift as Americans argued that, lacking a voice in Parliament, they had not in any express way consented to being taxed. See B. Bailyn, The Ideological Origins of the American Revolution 204-219 (1968); G. Wood, The Creation of the American Republic, 1776-1787, pp. 347-348 (1969). The story of the subsequent development of conceptions of sovereignty is complex and uneven; here, it is enough to say that by the time independence was declared in 1776, the locus of sovereignty was still an open question, except that almost by definition, advocates of independence denied that sovereignty with respect to the American Colonies remained with the King in Parliament.

As the concept of sovereignty was unsettled, so was that of sovereign immunity. Some States appear to have understood themselves to be without immunity from suit in their own courts upon independence.8 Connecticut and Rhode Island adopted their pre-existing charters as constitutions, without altering the provisions specifying their suability. See Gibbons, 83 Colum. L. Rev., at 1898, and nn. 42-43. Other new States understood themselves to be inheritors of the Crown’s common law sovereign immunity and so enacted statutes authorizing legal remedies against the State parallel to those available in England.9 There, although the Crown was immune from suit, the contemporary practice allowed private litigants to seek legal remedies against the Crown through the petition of right or the monstrans de droit in the Chancery or Exchequer. See 3 Blackstone *256-*257. A Virginia statute provided:

“ ‘Where the auditors according to their discretion and judgment shall disallow or abate any article of demand against the commonwealth, and any person shall think himself aggrieved thereby, he shall be at liberty to petition the high court of chancery or the general court, according to the nature of his case, for redress, and such court shall proceed to do right thereon; and a like petition shall be allowed in all other cases to any other person who is entitled to demand against the commonwealth any right in law or equity.’” 9 W. Hening, Statutes at Large: Being a Collection of the Laws of Virginia 536, 540 (1821), quoted in Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U. L. Rev. 899, 939-940, and n. 142 (1997).

This “petition” was clearly reminiscent of the English petition of right, as was the language “shall proceed to do right thereon,” which paralleled the formula of royal approval, “soit droit fait al partie,” technically required before a petition of right could be adjudicated. See 3 Blackstone *256; Pfander, supra, at 940, and nn. 143-144. A New York statute similarly authorized petition to the court of chancery by anyone who thought himself aggrieved by the state auditor general’s resolution of his account with the State. See An Act Directing a Mode for the Recovery of Debts Due to, and the Settlement of Accounts with, this State, March 30, 1781, in The First Laws of the State of New York 192 (1782 ed., reprinted 1984); see also Pfander, supra, at 941, and n. 145.

Pennsylvania not only adopted a law conferring the authority to settle accounts upon, the Comptroller General, see Act of Apr. 18, 1782, ch. 959, 2 Laws of the Commonwealth of Pennsylvania 19 (1810), but in 1785 provided for appeal from such adjudications to the Pennsylvania Supreme Court, where a jury trial could be had, see id., at 26-27; Pfander, supra, at 941, n. 147. Although in at least one recorded case before the Pennsylvania Supreme Court the Commonwealth, citing Blackstone, pleaded common law sovereign immunity, see Respublica v. Sparhawk, 1 Dall. 357, 363 (Pa. 1788), the Supreme Court of Pennsylvania did not reach this argument, concluding on other grounds that it lacked jurisdiction.10 Two years after this decision, under the influence of James Wilson, see C. Jacobs, The Eleventh Amendment and Sovereign Immunity 25, and 169, n. 53 (1972), Pennsylvania adopted a new constitution, which provided that “[sjuits may be brought against the commonwealth in such manner, in such courts, and in such eases as the legislature may by law direct.” Pa. Const., Art. IX, §11 (1790), reprinted in 8 Sources and Documents of United States Constitutions, at 293; see also Pfander, supra, at 928, n. 101.11

Around the time of the Constitutional Convention, then, there existed among the States some diversity of practice with respect to sovereign immunity; but despite a tendency among the state constitutions to announce and declare certain inalienable and natural rights of men and even of the collective people of a State, see, e. g., Pennsylvania Constitution, Art. III (1776), 8 Sources and Documents of United States Constitutions, supra, at 278 (“That the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same”), no State declared that sovereign immunity was one of those rights. To the extent that States were thought to possess immunity, it was perceived as a prerogative of the sovereign under common law. And where sovereign immunity was recognized as barring suit, provisions for recovery from the State were in order, just as they had been at common law in England.

C

At the Constitutional Convention, the notion of sovereign immunity, whether as natural law or as common law, was not an immediate subject of debate, and the sovereignty of a State in its own courts seems not to have been mentioned. This comes as no surprise, for although the Constitution required state courts to apply federal law, the Framers did not consider the possibility that federal law might bind States, say, in their relations with their employees.12 In the subsequent ratification debates, however, the issue of jurisdiction over a State did emerge in the question whether States might be sued on their debts in federal court, and on this point, too, a variety of views emerged and the diversity of sovereign immunity conceptions displayed itself.

The only arguable support for the Court’s absolutist view that I have found among the leading participants in the debate surrounding ratification was the one already mentioned, that of Alexander Hamilton in The Federalist No. 81, where he described the sovereign immunity of the States in language suggesting principles associated with natural law:

“It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the union. Unless therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated [that States might be sued on their debts in federal court] must be merely ideal. . . . The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will.” The Federalist No. 81, at 548-549.

Hamilton chose his words carefully, and he acknowledged the possibility that at the Convention the States might have surrendered sovereign immunity in some circumstances, but the thrust of his argument was that sovereign immunity was “inherent in the nature of sovereignty.”13 An echo of Pufendorf may be heard in his reference to “the conscience of the sovereign”;14 and the universality of the phenomenon of sovereign immunity, which Hamilton claimed (“the general sense and the general practice of mankind”), is a peculiar feature of the natural law conception. The apparent novelty and uniqueness of Hamilton’s employment of natural law terminology to explain the sovereign immunity of the States is worth remarking, because it stands in contrast to formulations indicating no particular position on the natural-law-versus-common-law origin, to the more widespread view that sovereign immunity derived from common law, and to the more radical stance that the sovereignty of the people made sovereign immunity out of place in the United States. Hamilton’s view is also worth noticing because, in marked contrast to its prominence in the Court’s opinion today, as well as in Seminole Tribe, 517 U. S., at 54, and in Hans v. Louisiana, 134 U. S. 1, 13 (1890), cf. Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 51 (1944), it found no favor in the early Supreme Court, see infra, at 781.

In the Virginia ratifying convention, Madison was among those who debated sovereign immunity in terms of the result it produced, not its theoretical underpinnings. He maintained that “[i]t is not in the power of individuals to call any state into court,” 3 Debates on the Federal Constitution 533 (J. Elliot 2d ed. 1863) (hereinafter Elliot’s Debates), and thought that the phrase “in which a State shall be a Party” in Article III, §2, must be interpreted in light of that general principle, so that “[t]he only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court.” Elliot’s Debates 533.15 John Marshall argued along the same lines against the possibility of federal jurisdiction over private suits against States, and he invoked the immunity of a State in its own courts in support of his argument:

“I hope that no gentleman will think that a state will be called at the bar of the federal court. Is there no such ease at present? Are there not many cases in which the legislature of Virginia is a party, and yet the state is not sued? It is not rational to suppose that the sovereign power should be dragged before a court.” Id., at 555.

There was no unanimity among the Virginians either on state- or federal-court immunity, however, for Edmund Randolph anticipated the position he would later espouse as plaintiff’s counsel in Chisholm v. Georgia, 2 Dall. 419 (1793). He contented himself with agnosticism on the significance of what Hamilton had called “the general practice of mankind,” and argued that notwithstanding any natural law view of the nonsuability of States, the Constitution permitted suit against a State in federal court: “I think, whatever the law of nations may say, that any doubt respecting the construction that a state may be plaintiff, and not defendant, is taken away by the words where a state shall he a party.” 3 Elliot’s Debates 573. Randolph clearly believed that the Constitution both could, and in fact by its language did, trump any inherent immunity enjoyed by the States; his view on sovereign immunity in state court seems to have been that the issue was uncertain (“whatever the law of nations may say”).

At the furthest extreme from Hamilton, James Wilson made several comments in the Pennsylvania Convention that suggested his hostility to any idea of state sovereign immunity. First, he responded to the argument that “the sovereignty of the states is destroyed” if they are sued by the United States, “because a suiter in a court must acknowledge the jurisdiction of that court, and it is not the custom of sovereigns to suffer their names to be made use of in this manner.” 2 id., at 490. For Wilson, “[t]he answer [was] plain and easy: the government of each state ought to be subordinate to the government of the United States.” Ibid.16 Wilson was also pointed in commenting on federal jurisdiction over eases between a State and citizens of another State: “When this power is attended to, it will be found to be a necessary one. Impartiality is the leading feature in this Constitution; it pervades the whole. When a citizen has a controversy with another state, there ought to be a tribunal where both parties may stand on a just and equal footing.” Id., at 491. Finally, Wilson laid out his view that sovereignty was in fact not located in the States at all: “Upon what principle is it contended that the sovereign power resides in the state governments? The honorable gentleman has said truly, that there can be no subordinate sovereignty. Now, if there cannot, my position is, that the sovereignty resides in the people; they have not parted with it; they have only dispensed such portions of the power as were conceived necessary for the public welfare.” Id., at 443.17 While this statement did not specifically address sovereign immunity, it expressed the major premise of what would later become Justice Wilson’s position in Chisholm: that because the people, and not the States, are sovereign, sovereign immunity has no applicability to the States.

From a canvass of this spectrum of opinion expressed at the ratifying conventions, one thing is certain. No one was espousing an indefeasible, natural law view of sovereign immunity. The controversy over the enforceability of state debts subject to state law produced emphatic support for sovereign immunity from eminences as great as Madison and Marshall, but neither of them indicated adherence to any immunity conception outside the common law.

D

At the close of the ratification debates, the issue of the sovereign immunity of the States under Article III had not been definitively resolved, and-in some instances the indeterminacy led the ratification conventions to respond in ways that point to the range of thinking about the doctrine. Several state ratifying conventions proposed amendments and issued declarations that would have exempted States from subjection to suit in federal court.18 The New York Convention’s statement of ratification included a series of declarations framed as proposed amendments, among which was one stating “That the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state.” 1 Elliot’s Debates 329.19 Whether that amendment was meant to alter or to clarify Article III as ratified is uncertain, but regardless of its precise intent, New York’s response to the draft proposed by the Convention of 1787 shows that there was no consensus at all on the question of state suability (let alone on the underlying theory of immunity doctrine). There was, rather, an unclear state of affairs which it seemed advisable to stabilize.

The Rhode Island Convention, when it finally ratified on June 16, 1790, called upon its representatives to urge the passage of a list of amendments. This list incorporated language, some of it identical to that proposed by New York, in the following form:

“It is declared by the Convention, that the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state; but, to remove all doubts or controversies respecting the same, that it be especially expressed, as a part of the Constitution of the United States, that Congress shall not, directly or indirectly, either by themselves or through the judiciary, interfere with any one of the states ... in liquidating and discharging the public securities of any one state.” Id., at 336.

Even more clearly than New York’s proposal, this amendment appears to have been intended to clarify Article III as reflecting some theory of sovereign immunity, though without indicating which one.

Unlike the Rhode Island proposal, which hinted at a clarification of Article III, the Virginia and North Carolina ratifying conventions proposed amendments that by their terms would have fundamentally altered the content of Article III. The Virginia Convention’s proposal for a new Article III omitted entirely the language conferring federal jurisdiction over a controversy between a State and citizens of another State, see 3 id., at 660-661, and the North Carolina Convention proposed an identical amendment, see 4 id., at 246-247. These proposals for omission suggest that the conventions of Virginia and North Carolina thought they had subjected themselves to citizen suits under Article III as enacted, and that they wished not to have done so.20 There is, thus, no suggestion in their resolutions that Article III as drafted was fundamentally at odds with an indefeasible natural law sovereignty, or with a conception that went to the essence of what it meant to be a State. At all events, the state ratifying conventions’ felt need for clarification on the question of state suability demonstrates that uncertainty surrounded the matter even at the moment of ratification. This uncertainty set the stage for the divergent views expressed in Chisholm.

E

If the natural law conception of sovereign immunity as an inherent characteristic of sovereignty enjoyed by the States had been broadly accepted at the time of the founding, one would expect to find it reflected somewhere in the five opinions delivered by the Court in Chisholm v. Georgia, 2 Dall. 419 (1793). Yet that view did not appear in any of them. And since a bare two years before Chisholm, the Bill of Rights had been added to the original Constitution, if the Tenth Amendment had been understood to give federal constitutional status to state sovereign immunity so as to endue it with the equivalent of the natural law conception, one would be certain to find such a development mentioned somewhere in the Chisholm writings. In fact, however, not one of the opinions espoused the natural law view, and not one of them so much as mentioned the Tenth Amendment. Not even Justice Iredell, who alone among the Justices thought that a State could not be sued in federal court, echoed Hamilton or hinted at a constitutionally immutable immunity doctrine.

Chisholm presented the questions whether a State might be made a defendant in a suit brought by a citizen of another State, and if so, whether an action of assumpsit would lie against it. See id., at 420 (questions presented).21 In representing Chisholm, Edmund Randolph, the Framer22 and then Attorney General, not only argued for the necessity of a federal forum to vindicate private rights against the States, see id., at 422, but rejected any traditional conception of sovereignty. He said that the sovereignty of the States, which he acknowledged, id., at 423, was no barrier to jurisdiction, because “the present Constitution produced a new order of things. It derives its origin immediately from the people .... The States are in fact assemblages of these individuals who are liable to process,” ibid.

Justice Wilson took up the argument for the sovereignty of the people more vociferously. Building on a conception of sovereignty he had already expressed at the Pennsylvania ratifying convention, see supra, at 777-778, he began by noting what he took to be the pregnant silence of the Constitution regarding sovereignty:

“To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves ‘SOVEREIGN’ people of the United States: But serenely conscious of the fact, they avoided the ostentatious declaration.” 2 Dali., at 454.

As if to contrast his own directness23 with the Framers’ delicacy, the Framer-turned-Justice explained in no uncertain terms that Georgia was not sovereign with respect to federal jurisdiction (even in a diversity case):

“As a Judge of this Court, I know, and can decide upon the knowledge, that the citizens of Georgia, when they acted upon the large scale of the Union, as a part of the ‘People of the United States,’ did not surrender the Supreme or sovereign Power to that State; but, as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia is NOT a sovereign State.” Id., at 457.

This was necessarily to reject any natural law conception of sovereign immunity as inherently attached to an American State, but this was not all. Justice Wilson went on to identify the origin of sovereign immunity in the feudal system that had, he said, been brought to England and to the common law by the Norman Conquest. After quoting Blackstone’s formulation of the doctrine as it had developed in England, he discussed it in the most disapproving terms imaginable:

“This last position [that the King is sovereign and no court can have jurisdiction over him] is only a branch of a much more extensive principle, on which a plan of systematic despotism has been lately formed in England, and prosecuted with unwearied assiduity and care. Of this plan the author of the Commentaries was, if not the introducer, at least the great supporter. He has been followed in it by writers later and. less known; and his doctrines have, both on the other and this side of the Atlantic, been implicitly and generally received by those, who neither examined their principles nor their consequences[.] The principle is, that all human law must be prescribed by a superior. This principle I mean not now to examine. Suffice it, at present to say, that another principle, very different in its nature and operations, forms, in my judgment, the basis of sound and genuine jurisprudence; laws derived from the pure source of equality and justice must be founded on the CONSENT of those, whose obedience they require. The sovereign, when traced to his source, must be found in the man.” Id., at 458.

With this rousing conclusion of revolutionary ideology and rhetoric, Justice Wilson left no doubt that he thought the doctrine of sovereign immunity entirely anomalous in the American Republic. Although he did not speak specifically of a State’s immunity in its own courts, his view necessarily requires that such immunity would not have been justifiable as a tenet of absolutist natural law.

Chief Justice Jay took a less vehement tone in his opinion, but he, too, denied the applicability of the doctrine of sovereign immunity to the States. He explained the doctrine as an incident of European feudalism, id., at 471, and said that by contrast,

“[n]o such ideas obtain here; at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called) and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.” Id., at 471-472.

From the difference between the sovereignty of princes and that of the people, Chief Justice Jay argued, it followed that a State might be sued. When a State sued another State, as all agreed it could do in federal court, all the people of one State sued all the people of the other. '‘But why it should be more incompatible, that all the people of a State should be sued by one citizen, than by one hundred thousand, I cannot perceive, the process in both cases being alike; and the consequences of a judgment alike.” Id., at 473. Finally, Chief Justice Jay pointed out, Article III authorized suits between a State and citizens of another State. Although the Chief Justice reserved judgment on whether the United States might be sued by a citizen, given that the courts must rely on the Executive to implement their decisions, he made it clear that this reservation was practical, and not theoretical: “I wish the State of society was so far improved, and the science of Government advanced to such a degree of perfection, as that the whole nation could in the peaceable course of law, be compelled to do justice, and be sued by individual citizens.” Id., at 478. Although Chief Justice Jay did not speak specifically to the question of state sovereign immunity in state court, his theory shows that he considered not the States, but the people collectively, to be sovereign; and there is thus no reason to think he would have denied that the people of the Nation could override any state claim to sovereign immunity in a matter committed to the Nation.

Justice Cushing’s opinion relied on the express language of Article III to hold that Georgia might be sued in federal court. He dealt shortly with the objection that States’ sovereignty would be thereby restricted so that States would be reduced to corporations: “As to corporations, all States whatever are corporations or bodies politic. The only question is, what are their powers?” Id., at 468. Observing that the Constitution limits the powers of the States in numerous ways, he concluded that "no argument of force can be taken from the sovereignty of States. Where it has been abridged, it was thought necessary for the greater indispensable good of the whole.” Ibid. From the opinion, it is not possible to tell with certainty what Justice Cushing thought about state sovereign immunity in state court, although his introductory remark is suggestive. The case, he wrote, “turns not upon the law or practice of England, although perhaps it may be in some measure elucidated thereby, nor upon the law of any other country whatever; but upon the Constitution established by the people of the United States.” Id., at 466. It is clear that he had no sympathy for a view of sovereign immunity inherent in statehood and untouchable by national legislative authority.

Justice Blair, like Justice Cushing, relied on Article III, and his brief opinion shows that he acknowledged state sovereign immunity, but common law immunity in state court. First, Justice Blair asked hypothetically whether a verdict against the plaintiff would be preclusive if the plaintiff “should renew his suit against the State, in any mode in which she may permit herself to be sued in her own Courts.” Id., at 452. Second, he commented that there was no need to require the plaintiff to proceed by way of petition:

“When sovereigns are sued in their own Courts, such a method may have been established as the most respectful form of demand; but we are not now in a State-Court; and if sovereignty be an exemption from suit in any other than the sovereign’s own Courts, it follows that when a State, by adopting the Constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty.” Ibid.

It is worth noting that for Justice Blair, the petition brought in state court was properly called a suit. This reflects the contemporary practice of his native Virginia, where, as we have seen, supra, at 769, suits as of right against the State were authorized by statute. Justice Blair called sovereignty “an exemption from suit in any other than the sovereign’s own Courts” because he assumed that, in its own courts, a sovereign will naturally permit itself to be sued as of right.

Justice Iredell was the only Member of the Court to hold that the suit could not lie; but if his discussion was far-reaching, his reasoning was cautious. Its core was that the Court could not assume a waiver of the State’s common law sovereign immunity where Congress had not expressly passed such a waiver. See 2 Dall., at 449 (dissenting opinion). Although Justice Iredell added, in what he clearly identified as dictum, that he was “strongly against” any construction of the Constitution “which will admit, under any circumstances, a compulsive suit against a State for the recovery of money,” ibid.,24 he made it equally clear that he understood sovereign immunity as a common law doctrine passed to the States with independence:

“No other part of the common law of England, it appears to me, can have any reference to this subject, but that part of it which prescribes remedies against the crown. Every State in the Union in every instance where its sovereignty has not been delegated to the United States, I consider to be as completely sovereign, as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved. It must necessarily be so, because the United States have no claim to any authority but such as the States have surrendered to them: Of course the part not surrenderred must remain as it did before.” Id., at 435.

This did not mean, of course, that the States had not delegated to Congress the power to subject them to suit, but merely that such a delegation would have been necessary on Justice Iredell’s view.

In sum, then, in Chisholm two Justices (Jay and Wilson), one of whom had been present at the Constitutional Convention, took a position suggesting that States should not enjoy sovereign immunity (however conceived) even in their own courts; one (Cushing) was essentially silent on the issue of sovereign immunity in state court; one (Blair) took a cautious position affirming the pragmatic view that sovereign immunity was a continuing common law doctrine and that States would permit suit against themselves as of right; and one (Iredell) expressly thought that state sovereign immunity at common law rightly belonged to the sovereign States. Not a single Justice suggested that sovereign immunity was an inherent and indefeasible right of statehood, and neither counsel for Georgia before the Circuit Court, see n. 21, supra, nor Justice Iredell seems even to have conceived the possibility that the new Tenth Amendment produced the equivalent of such a doctrine. This dearth of support makes it very implausible for today’s Court to argue that a substantial (let alone a dominant) body of thought at the time of the framing understood sovereign immunity to be an inherent right of statehood, adopted or confirmed by the Tenth Amendment.25

The Court’s discomfort is evident in its obvious recognition that its natural law or Tenth Amendment conception of state sovereign immunity is insupportable if Chisholm stands. Hence the Court’s attempt to discount the Chisholm opinions, an enterprise in which I believe it fails.

The Court, citing Hans v. Louisiana, 134 U. S. 1 (1890), says that the Eleventh Amendment “overruled” Chisholm, ante, at 723, but the animadversion is beside the point. The significance of Chisholm is its indication that in 1788 and 1791 it was not generally assumed (indeed, hardly assumed at all) that a State’s sovereign immunity from suit in its own courts was an inherent, and not merely a common law, advantage. On the contrary, the testimony of five eminent legal minds of the day confirmed that virtually everyone who understood immunity to be legitimate saw it as a common law prerogative (from which it follows that it was subject to abrogation by Congress as to a matter within Congress’s Article I authority).

The Court does no better with its trio of arguments to undercut Chisholm’s legitimacy: that the Chisholm majority “failed to address either the practice or the understanding that prevailed in the States at the time the Constitution was adopted,” ante, at 721; that “the majority suspected the decision would be unpopular and surprising,” ibid.; and that “two Members of the majority acknowledged that the United States might well remain immune from suit despite” Article III, ante, at 722. These three claims do not, of course, go to the question whether state sovereign immunity was understood to be “fundamental” or “inherent,” but in any case, none of them is convincing.

With respect to the first, Justice Blair in fact did expressly refer to the practice of state sovereign immunity in state court, and acknowledged the petition of right as an appropriate and normal practice. This aside, the Court would have a legitimate point if it could show' that the Chisholm majority took insufficient account of a body of practice that somehow indicated a widely held absolutist conception of state sovereign immunity untouchable and untouched by the Constitution. But of course it cannot.26

As for the second point, it is a remarkable doctrine that would hold anticipation of unpopularity the benchmark of constitutional error. In any event, the evidence proffered by the Court is merely this: that Justice Wilson thought the prerevolutionary conception of sovereignty misguided, 2 Dali., at 454-455; that Justice Cushing stated axiomatically that the Constitution could always be amended, id., at 468; that Chief Justice Jay noted that the losing defendant might still come to understand that sovereign immunity is inconsistent with republicanism, id., at 478-479; and that Attorney General Randolph admitted that the position he espoused was unpopular not only in Georgia, but also in another State, probably Virginia.27 These items boil down to the proposition that the Justices knew (as who could not, with such a case before him) that at the ratifying conventions the significance of sovereign immunity had been, as it still was, a matter of dispute. This reality does not detract from, but confirms, the view that the Framers showed no intent to recognize sovereign immunity as an immutably inherent power of the States.

As to the third objection, that two Justices noted that the United States might possess sovereign immunity notwithstanding Article III, I explained, supra, at 785-786, that Chief Justice Jay thought this possibility was purely practical, not at all legal, and without any implication for state immunity vis-a-vis federal claims. Justice Cushing was so little troubled by the possibility he raised that he wrote, “If this be a necessary consequence, it must be so,” Chisholm, supra, at 469, and simply suggested a textual reading that might have led to a different consequence.

Nor can the Court make good on its claim that the enactment of the Eleventh Amendment retrospectively reestablished the view that had already been established at the time of the framing (though eluding the perception of all but one Member of the Supreme Court), and hence “acted . , . to restore the original constitutional design,” ante, at 722.28 There was nothing “established” about the position espoused by Georgia in the effort to repudiate its debts, and the Court’s implausible suggestion to the contrary merely echoes the brio of its remark in Seminole Tribe that Chisholm was “contrary to the well-understood meaning of the Constitution,” 517 U. S., at 69 (citing Principality of Monaco v. Mississippi, 292 U. S. 313, 325 (1934)). The fact that Chisholm was no conceptual aberration is apparent from the ratification debates and the several state requests to rewrite Article III There was no received view either of the role this sovereign immunity would play in the circumstances of the case or of a conceptual foundation for immunity doctrine at odds with Chisholm’s reading of Article III. As an author on whom the Court relies, see ante, at 724, has it, “there was no unanimity among the Framers that immunity would exist,” D. Currie, The Constitution in the Supreme Court: The First Hundred Years: 1789-1888, p. 19 (1985).29

It should not be surprising, then, to realize that although much -post-Chisholm discussion was disapproving (as the States saw their escape from debt cut off), the decision had champions “every bit as vigorous in defending their interpretation of the Constitution as were those partisans on the other side of the issue.” Marcus & Wexler, Suits Against States: Diversity of Opinion In The 1790s, 1998 J. Sup. Ct. Hist. 73, 83; see, e. g., 5 Documentary History of the Supreme Court, supra n. 21, at 251-252, 252-253, 262-264, 268-269 (newspaper articles supporting holding in Chisholm's Documentary History of the Supreme Court, supra, at 616 (statement of a committee of Delaware Senate in support of holding in Chisholm). The federal citizen-state diversity jurisdiction was settled by the Eleventh Amendment; Article III was not “restored.”

F

It is clear enough that the Court has no historical predicate to argue for a fundamental or inherent theory of sovereign immunity as limiting authority elsewhere conferred by the Constitution or as imported into the Constitution by the Tenth Amendment. But what if the facts were otherwise and a natural law conception of state sovereign immunity in a State’s own courts were implicit in the Constitution? On good authority, it would avail the State nothing, and the Court would be no less mistaken than it is already in sustaining the State’s claim today.

The opinion of this Court that comes closer to embodying the present majority’s inherent, natural law theory of sovereign immunity than any other I can find was written by Justice Holmes in Kawananakoa v. Polyblank, 205 U. S. 349 (1907).30 I do not, of course, suggest that Justice Holmes was a natural law jurist, see “Natural Law,” in O. Holmes, Collected Legal Papers 812 (1920, reprinted 1952) (“The jurists who believe in natural law seem to me to be in that naive state of mind that accepts what has been familiar and accepted ... as something that must be accepted”). But in Kawananakoa he gave not only a cogent restatement of the natural law view of sovereign immunity, but one that includes a feature (omitted from Hamilton’s formulation) explaining why even the most absolutist version of sovereign immunity doctrine actually refutes the Court’s position today: the Court fails to realize that under the natural law theory, sovereign immunity may be invoked only by the sovereign that is the source of the right upon which suit is brought. Justice Holmes said so expressly: “A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” Kawananakoa, supra, at 353.

His cited authorities stand in the line that today’s Court purports to follow: Hobbes, Bodin, Sir John Eliot, and Baldus de Ubaldis. Hobbes, in the cited work, said this:

“The sovereign of a Commonwealth, be it an assembly or one man, is not subject to the civil laws. For having power to make and repeal laws, he may, when he pleaseth, free himself from that subjection by repealing those laws that trouble him, and making of new; and consequently he was free before. For he is free that can be free when he will: nor is it possible for any person to be bound to himself, because he that can bind can release; and therefore he that is bound to himself only is not bound.” Leviathan, ch. 26, §2, p. 130.

Jean Bodin produced a similar explanation nearly three-quarters of a century before Hobbes, see J. Bodin, Les six livres de la république, Bk. 1, ch. 8 (1577); Six Books of the Commonwealth 28 (M. Tooley transl. 1967) (“[T]he sovereign ... cannot in any way be subject to the commands of another, for it is he who makes law”). Eliot cited Baldus for the crux of the theory: majesty is “a fulness of power subject to noe necessitie, limitted within no rules of publicke Law,” 1 J. Eliot, De Jure Maiestatis: or Political Treatise of Government 15 (A. Grosart ed. 1882), and Baldus himself made the point in observing that no one is bound by his own statute as of necessity, see Commentary of Baldus on the statute Digna vox in Justinian’s Code 1.14.4, Lectura super Codice folio 51b (Chapter De Legibus et constitutionibus) (Venice ed. 1496) (“nemo suo statuto ligatur necessitate").

The “jurists who believe in natural law” might have reproved Justice Holmes for his general skepticism about the intrinsic value of their views, but they would not have faulted him for seeing the consequence of their position: if the sovereign is not the source of the law to be applied, sovereign immunity has no applicability. Justice Holmes indeed explained that in the case of multiple sovereignties, the subordinate sovereign will not be immune where the source of the right of action is the sovereign that is dominant. See Kawananakoa, 205 U. S., at 353, 354 (District of Columbia not immune to private suit, because private rights there are “created and controlled by Congress and not by a legislature of the District”). Since the law in this case proceeds from the national source, whose laws authorized by Article I are binding in state courts, sovereign immunity cannot be a defense. After Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985), Justice Holmes’s logically impeccable theory yields the clear conclusion that even in a system of “fundamental” state sovereign immunity, a State would be subject to suit eo nomine in its own courts on a federal claim.

There is no escape from the trap of Holmes’s logic save recourse to the argument that the doctrine of sovereign immunity is not the rationally necessary or inherent immunity of the civilians, but the historically contingent, and to a degree illogical, immunity of the common law. But if the Court admits that the source of sovereign immunity is the common law, it must also admit that the common law doctrine could be changed by Congress acting under the Commerce Clause. It is not for me to say which way the Court should turn; but in either ease it is clear that Alden’s suit should go forward.

II

The Court’s rationale for today’s holding based on a conception of sovereign immunity as somehow fundamental to sovereignty or inherent in statehood fails for the lack of any substantial support for such a conception in the thinking of the founding era. The Court cannot be counted out yet, however, for it has a second line of argument looking not to a clause-based reception of the natural law conception or even to its recognition as a “background principle,” see Seminole Tribe, 517 U. S., at 72, but to a structural basis in the Constitution’s creation of a federal system. Immunity, the Court says, “inheres in the system of federalism established by the Constitution,” ante, at 730, its “contours [being] determined by the Founders’ understanding, not by the principles or limitations derived from natural law,” ante, at 734. Again, “[w]e look both to the essential principles of federalism and to the special role of the state courts in the constitutional design.” Ante, at 748. That is, the Court believes that the federal constitutional structure itself necessitates recognition of some degree of state autonomy broad enough to include sovereign immunity from suit in a State’s own courts, regardless of the federal source of the claim asserted against the State. If one were to read the Court’s federal structure rationale in isolation from the preceding portions of the opinion, it would appear that the Court’s position on state sovereign immunity might have been rested entirely on federalism alone. If it had been, however, I would still be in dissent, for the Court’s argument that state-court sovereign immunity on federal questions is inherent in the very concept of federal structure is demonstrably mistaken.

A

The National Constitution formally and finally repudiated the received political wisdom that a system of multiple sovereignties constituted the “great solecism of an imperium in imperio,” cf. Bailyn, The Ideological Origins of the American Revolution, at 223.31 Once “the atom of sovereignty” had been split, U S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring), the general scheme of delegated sovereignty as between the two component governments of the federal system was clear, and was succinctly stated by Chief Justice Marshall: “In America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other.” McCulloch v. Maryland, 4 Wheat. 316, 410 (1819).32

Hence the flaw in the Court’s appeal to federalism. The State of Maine is not sovereign with respect to the national objectives of the FLSA.33 It is not the authority that promulgated the FLSA, on which the right of action in this case depends. That authority is the United States acting through the Congress, whose legislative power under Article I of the Constitution to extend FLSA coverage to state employees has already been decided, see Garcia v. San Antonio Metropolitan Transit Authority, supra, and is not eon-tested here.

Nor can it be argued that because the State of Maine creates its own court system, it has authority to decide what sorts of claims may be entertained there, and thus in effect to control the right of action in this case. Maine has created state courts of general jurisdiction; once it has done so, the Supremacy Clause of the Constitution, Art. VI, cl. 2, which requires state courts to enforce federal law and state-court judges to be bound by it, requires the Maine courts to entertain this federal cause of action. Maine has advanced no “ Valid excuse,’ ” Howlett v. Rose, 496 U. S. 356, 369 (1990) (quoting Douglas v. New York, N. H. & H. R. Co., 279 U. S. 377, 387-388 (1929)), for its courts’ refusal to hear federal-law claims in which Maine is a defendant, and sovereign immunity cannot be that excuse, simply because the State is not sovereign with respect to the subject of the claim against it. The Court’s insistence that the federal structure bars Congress from making States susceptible to suit in their own courts is, then, plain mistake.34

B

It is symptomatic of the weakness of the structural notion proffered by the Court that it seeks to buttress the argument by relying on “the dignity and respect afforded a State, which the immunity is designed to protect,’” ante, at 749 (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S. 261, 268 (1997)), and by invoking the many demands on a State’s fisc, ante, at 750-751. Apparently beguiled by Gilded Era language describing private suits against States as “ ‘neither becoming nor convenient,’ ” ante, at 748 (quoting In re Ayers, 123 U. S. 443, 505 (1887)), the Court calls “immunity from private suits central to sovereign dignity,” ante, at 715, and assumes that this “dignity” is a quality easily translated from the person of the King to the participatory abstraction of a republican State, see, e.g., ante, at 749 (“[Congressional power to authorize private suits against nonconsenting States in their own courts would be . . . offensive to state sovereignty”). The thoroughly anomalous character of this appeal to dignity is obvious from a reading of Blackstone’s description of royal dignity, which he sets out as a premise of his discussion of sovereignty:

“First, then, of the royal dignity. Under every monarchical establishment, it is necessary to distinguish the prince from his subjects.... The law therefore ascribes to the king . . . certain attributes of a great and transcendent nature; by which the people are led to consider him in the light of a superior being, and to pay him that awful respect, which may enable him with greater ease to carry on the business of government. This is what I understand by the royal dignity, the several branches of which we will now proceed to examine.” 1 Blackstone *241.

It would be hard to imagine anything more inimical to the republican conception, which rests on the understanding of its citizens precisely that the government is not above them, but of them, its actions being governed by law just like their own. Whatever justification there may be for an American government’s immunity from private suit, it is not dignity.35 See United States v. Lee, 106 U. S. 196, 208 (1882).

It is equally puzzling to hear the Court say that “federal power to authorize private suits for money damages would place unwarranted strain on the States’ ability to govern in accordance with the will of their citizens.” Ante, at 750-751. So long as the citizens’ will, expressed through state legislation, does not violate valid federal law, the strain will not be felt; and to the extent that state action does violate federal law, the will of the citizens of the United States already trumps that of the citizens of the State: the strain then is not only expected, but necessarily intended.

Least of all does the Court persuade by observing that “other important needs” than that of the “judgment creditor” compete for public money, ante, at 751. The “judgment creditor” in question is not a dunning bill collector, but a citizen whose federal rights have been violated, and a constitutional structure that stints on enforcing federal rights out of an abundance of delicacy toward the States has substituted politesse in place of respect for the rule of law.36

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 problem with arguing from historical practice in this case is that past practice, even if unbroken, provides no basis for demanding preservation when the conditions on which the practice depended have changed in a constitutionally relevant way.

It was at one time, though perhaps not from the framing, believed that “Congress’ authority to regulate the States under the Commerce Clause” was limited by “certain underlying elements of political sovereignty ... deemed essential to the States’ ‘separate and independent existence/” Garcia, 469 U. S., at 547-548 (quoting Lane County v. Oregon, 7 Wall. 71, 76 (1869)). On this belief, the preordained balance between state and federal sovereignty was understood to trump the terms of Article I and preclude Congress from subjecting States to federal law on certain subjects. (From time to time, wage and hour regulation has been counted among those subjects, see infra, at 808.) As a consequence it was rare, if not unknown, for state courts to confront the situation in which federal law enacted under the Commerce Clause provided the authority for a private right of action against a State in state court. The question of state immunity from a Commerce Clause based federal-law suit in state court thus tended not to arise for the simple reason that Acts of Congress authorizing such suits did not exist.

Today, however, in light of Garcia, supra (overruling National League of Cities v. Usery, 426 U. S. 833 (1976)), the law is settled that federal legislation enacted under the Commerce Clause may bind the States without having to satisfy a test of undue incursion into state sovereignty. “[T]he fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the ‘States as States’ is one of process rather than one of result.” Garcia, supra, at 554. Because the commerce power is no longer thought to be circumscribed, the dearth of prior private federal claims entertained against the States in state courts does not tell us anything, and reflects nothing but an earlier and less expansive application of the commerce power.

Least of all is it to the point for the Court to suggest that because the Framers would be surprised to find States subjected to a federal-law suit in their own courts under the commerce power, the suit must be prohibited by the Constitution. See ante, at 741-743 (arguing on the basis of the “historical record” that the Constitution would not have been adopted if it had been understood to allow suit against States in state court under federal law). The Framers’ intentions and expectations count so far as they point to the meaning of the Constitution’s text or the fair implications of its structure, but they do not hover over the instrument to veto any application of its principles to a world that the Framers could not have anticipated.

If the Framers would be surprised to see States subjected to suit in their own courts under the commerce power, they would be astonished by the reach of Congress under the Commerce Clause generally. The proliferation of Government, State and Federal, would amaze the Framers, and the administrative state with its reams of regulations would leave them rubbing their eyes. But the Framers’ surprise at, say, the FLSA, or the Federal Communications Commission, or the Federal Reserve Board is no threat to the constitutionality of any one of them, for a very fundamental reason:

“[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.” Missouri v. Holland, 252 U. S. 416, 433 (1920) (Holmes, J.).

“ ‘We must never forget,’ said Mr. Chief Justice Marshall in McCulloch, [4 Wheat., at] 407, 'that it is a Constitution we are expounding.’ Since then this Court has repeatedly sustained the exercise of power by Congress, under various clauses of that instrument, over objects of which the Fathers could not have dreamed.”

Olmstead v. United States, 277 U. S. 438, 472 (1928) (Brandéis, J., dissenting).

IV

A

If today’s decision occasions regret at its anomalous versions of history and federal theory, it is the more regrettable in being the second time the Court has suddenly changed the course of prior decision in order to limit the exercise of authority over a subject now concededly within the Article I jurisdiction of the Congress. The FLSA, which requires employers to pay a minimum wage, was first enacted in 1938, with an exemption for States acting as employers. See Maryland v. Wirtz, 392 U. S. 183, 185-186 (1968). In 1966, it was amended to remove the state employer exemption so far as it concerned workers in hospitals, institutions, and schools. See id., at 186-187, and n. 6. In Wirtz, the Court upheld the amendment over the dissent’s argument that extending the FLSA to these state employees was “such a serious invasion of state sovereignty protected by the Tenth Amendment that it is . . . not consistent with our constitutional federalism.” Id., at 201 (opinion of Douglas, J.).

In 1974, Congress again amended the FLSA, this time “extending] the minimum wage and maximum hour provisions to almost all public employees employed by the States and by their various political subdivisions.” National League of Cities, 426 U. S., at 836. This time the Court went the other way: in National League of Cities, the Court held the extension of the Act to these employees an unconstitutional infringement of state sovereignty, id., at 852; for good measure, the Court overturned Wirtz, dismissing its reasoning as no longer authoritative, see 426 U. S., at 854-855.

But National League of Cities was not the last word. In Garcia, decided some nine years later, the Court addressed the question whether a municipally owned mass-transit system was exempt from the FLSA. 469 U. S., at 634, 536. In holding that it was not, the Court overruled National League of Cities, see 469 U. S., at 557, this time taking the position that Congress was not barred by the Constitution from binding the States as employers under the Commerce Clause, id., at 554. As already mentioned, the Court held that whatever protection the Constitution afforded to the States’ sovereignty lay in the constitutional structure, not in some substantive guarantee. Ibid.39 Garcia remains good law, its reasoning has not been repudiated, and it has not been challenged here.

The FLSA has not, however, fared as well in practice as it has in theory. The Court in Seminole Tribe created a significant impediment to the statute’s practical application by rendering its damages provisions unenforceable against the States by private suit in federal court. Today’s decision blocking private actions in state courts makes the barrier to individual enforcement a total one.

B

The Court might respond to the charge that in practice it has vitiated Garcia by insisting, as counsel for Maine argued, Brief for Respondent 11-12, that the United States may bring suit in federal court against a State for damages under the FLSA, on the authority of United States v. Texas, 143 U. S. 621, 644-645 (1892). See also Seminole Tribe, 517 U. S., at 71, n. 14. It is true, of course, that the FLSA does authorize the Secretary of Labor to file suit seeking damages, see 29 U. S. C. § 216(c), but unless Congress plans a significant expansion of the National Government’s litigating forces to provide a lawyer whenever private litigation is barred by today’s decision and Seminole Tribe, the allusion to enforcement of private rights by the National Government is probably not much more than whimsy. Facing reality, Congress specifically found, as long ago as 1974, “that the enforcement capability of the Secretary of Labor is not alone sufficient to provide redress in all or even a substantial portion of the situations where compliance is not forthcoming voluntarily.” S. Rep. No. 93-690, p. 27 (1974). One hopes that such voluntary compliance will prove more popular than it has in Maine, for there is no reason today to suspect that enforcement by the Secretary of Labor alone would likely prove adequate to assure compliance with this federal law in the multifarious circumstances of some 4.7 million employees of the 50 States of the Union.40

The point is not that the difficulties of enforcement should drive the Court’s decision, but simply that where Congress has created a private right to damages, it is implausible to claim that enforcement by a public authority without any incentive beyond its general enforcement power will ever afford the private right a traditionally adequate remedy. No 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

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, 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 contemporaries might well have reacted to the Court’s decision today in the words spoken by Edmund Randolph when responding to the objection to jurisdiction in Chisholm: “[The Framers] must have viewed human rights in their essence, not in their mere form.” 2 Dall., at 423.

V

The Court has swung back and forth with regrettable disruption on the enforceability of the FLSA against the States, but if the present majority had a defensible position one could at least accept its decision with an expectation of stability ahead. As it is, any such expectation would be naive. The resemblance of today’s state sovereign immunity to the Lochner era’s industrial due process is striking. The Court began this century by imputing immutable constitutional status to a conception of economic self-reliance that was never true to industrial life and grew insistently fictional with the years, and the Court has chosen to close the century by conferring like status on a conception of state sovereign immunity that is true neither to history nor to the structure of the Constitution. I expect the Court’s late essay into immunity doctrine will prove the equal of its earlier experiment in laissez-faire, the one being as unrealistic as the other, as indefensible, and probably as fleeting.

1

The Court inexplicably protests that “the right to trial by jury and the prohibition on unreasonable searches and seizures . . . derive from the common law,” ante, at 733, but are nonetheless indefeasible. I cannot imagine how this could be thought relevant to my argument. These rights are constitutional precisely because they are enacted in the Sixth and Fourth Amendments, respectively, while the general prerogative of sovereign immunity appears nowhere in the Constitution. My point is that the common law rights that were not enacted into the Constitution were universally thought defeasible by statute.

2

I am assuming that the Court does not put forward the theory of the “fundamental aspect” as a newly derived conception of its own, necessarily comprehended by the Tenth Amendment guarantee only as a result of logic independent of any intention of the Framers. Nor does the Court argue, and I know of no reason to suppose, that every legal advantage a State might have enjoyed at common law was assumed to be an inherent attribute of all sovereignties, or was constitutionalized wholesale by the Tenth Amendment, any more than the Ninth Amendment constitutionalized all common law individual rights.

3

Bracton is the earliest source for the common law immunity of the King, and his explanation is essentially practical: “Si autem ab eo petatur, cum breve non currat contra ipsum, locus erit supplication, quod factum suum corrigat et emendet.” That is, “If [justice] is asked of him, since no writ runs against him there will [only] be opportunity for a petition, that he correct and amend his act.” 2 Bracton, De Legibus et Consuetudinibus Angliae 33 (G. Woodbine ed., S. Thorne transl. 1968) (London 1569 ed., folio 5b, Bk. I, ch. 8). The fact that no writ ran against the King was “no peculiar privilege; for no feudal lord could be sued in his own court.” 3 W. Holdsworth, History of English Law 465 (3d ed. 1927). “‘He can not be compelled to answer in his own court, but this is true of every petty lord of every petty manor; that there happens to be in this world no court above his court is, we may say, an accident.’ ” Nevada v. Hall, 440 U. S. 410, 415, n. 6 (1979) (quoting 1 F. Pollock & F. Maitland, History of English Law 518 (2d ed. 1899)). It was this same view of the immunity that came down to Blackstone, who cited Finch for the view that the King must be petitioned and not sued. See H. Finch, Law, or a Discourse thereof, in Four Books 255 (1678 ed., reprinted 1992) (“Here in place of action against the King petition must be made unto him in the Chancery, or in Parliament, for no action did ever lie against the K[ing] at the Common Law, but the party is driven to his petition” (footnotes omitted)); 1 Blackstone *242.

4

As I explain, infra, at 767-768, this common law conception of sovereign immunity differed from the natural law version, which understood immunity as derived from the fact that the sovereign was the font of the law, which could not bind him. I do not dispute, indeed I insist, that in England it was the common law version that existed, and so it is beside the point for the Court to protest that the King could not be sued under French law in his own courts, see ante, at 735; naturally not, since the common law conception was not couched in terms of who was the font of the law. This said, I note that it is surprising for the Court to say that “[i]t is doubtful whether the King was regarded ... as the font of the traditions and customs which formed the substance of the common law,” ibid. Although Bracton said that “law makes the king,” 2 Bracton, at 33, he also said that the unwritten law of England could properly be called law only to the extent that “the authority of the king or prince [has] first been added thereto,” id., at 19, and he spoke of “these English laws and customs, by the authority of kings,” id., at 21. The judges who announced the common law sat “in the place of the king,” id., at 20, and so in practice the common law certainly derived from him. Thus, at least for the most part, “[t]he custom of the king’s court is the custom of England, and becomes the common law.” 1 Pollock & Maitland, supra n. 3, at 184. But for this, Blackstone would probably not have remarked that the natural law theory produced a result “consonant” with the common law, 1 Blackstone *243; see infra this page and 768.

5

For the original of the quoted passage, see 1 S. Pufendorf, De Jure Naturae et Gentium Libri Octo 915 (1688 ed., reprinted 1934); for a modern translation, see 2 S. Pufendorf, De Jure Naturae et Gentium Libri Octo 1344-1345 (C. & W. Oldfather transl. 1934) (hereinafter Pufendorf). Elsewhere in the same chapter, Pufendorf expressly derives the impossibility of enforcing a King's promises against him from natural law theory: “Therefore, since a king enjoys natural liberty, if he has discovered any fault in a pact of his making, he can of his own authority serve notice upon the other party that he refuses to be obligated by reason of that fault; nor does he have to secure of the other [party to the pact] a release from a thing [namely, the pact] which, of its own nature, is incapable of producing an obligation or right.” Id., at 1342-1343.

6

The Court says that to call its approach “natural law” is “an apparent attempt to disparage,” ante, at 758. My object, however, is not to call names but to show that the majority is wrong, and in doing that it is illuminating to explain the conceptual tradition on which today's majority draws, one that can be traced to the Court’s opinion from its origins in Roman sources. I call this conception the “natural law” view of sovereign immunity, despite the historical ambiguities associated with the term, because the expression by such figures as Pufendorf, Hobbes, and Locke, of the doctrine that the sovereign might not be sued, was associated with a concept of sovereignty itself derived from natural law. See Pufendorf 1103-1104; T. Hobbes, Leviathan Part 2, chs. 17-18 (1651), in 23 Great Books of the Western World 99-104 (1952) (hereinafter Leviathan) (describing sovereignty as the result of surrender of individual natural rights to single authority); J. Locke, Second Treatise of Civil Government §§95-99 (1690 J. Gough ed. 1947) (describing political community formed by individual consent out of a state of nature). The doctrine that the sovereign could not be sued by his subjects might have been thought by medieval civil lawyers to belong to jus gentium, the law of nations, which was a type of natural law; or perhaps in its original form it might have been understood as a precept of positive, written law. The earliest source for this conception is a statement of Ulpian’s recorded in the Digest, 1.8.31, and much interpreted by medieval jurists, “Princeps legibus solutus est”; “The emperor is not bound by statutes.” See 1 The Digest of Justinian 13 (T. Mommsen & P. Krueger eds., A. Watson transl. 1985); Tierney, The Prince Is Not Bound by the Laws: Accursius and the Origins of the Modern State, 5 Comparative Studies in Society and History 378 (1963); K. Pennington, The Prince and the Law, 1200-1600: Sovereignty and Rights in the Western Legal Tradition 77-79 (1993). Through its reception and discussion in the continental legal tradition, where it related initially to the Emperor, but also eventually to a King, to the Pope, and even to a city-state, see id., at 90, this conception of sovereign immunity developed into a theoretical model applicable to any sovereign body. Thus Hobbes could begin his discussion of the subject by saying, “The sovereign of a Commonwealth, be it an assembly or one man, is not subject to the civil laws.” Leviathan, ch. 26, p. 130. There is debate on the degree to which different medieval interpreters of the maxim Princeps legibus solutus est understood natural or divine law to limit the prince’s freedom from the statutes. See Tierney, supra, at 390-394; Pennington, supra, at 206-208; J. Canning, The Political Thought of Baldus de Ubaldis 74-79 (1987).

7

A better formulation would have clarified that sovereignty resided in the King in Parliament, which was the dominant view by the later 17th century. See, e.g., G. Wood, The Creation of the American Republic, 1776-1787, p. 347 (1969).

8

The Court claims that the doctrine of sovereign immunity was “universal in the States when the Constitution was drafted and ratified,” ante, at 715-716, but the examples of Connecticut and Rhode Island suggest that this claim is overstated. It is of course true that these States’ preservation without comment of their colonial suability could be construed merely as a waiver of sovereign immunity, and not as a denial of the principle. But in light of these States’ silence as to any change in their status as suable bodies, it would be tendentious so to understand it. The Court relies for its claim on Justice Iredell’s statement in Chisholm v. Georgia, 2 Dall. 419 (1793), that there was “no doubt” that no State had “'any particular Legislative mode, authorizing a compulsory suit for the recovery of money against a State . . . either when the Constitution was adopted, or at the time the judicial act was passed.’ ” Ante, at 716 (quoting Chisholm, supra, at 434-435). But as the cases of Rhode Island and Connecticut demonstrate, Justice Iredell was simply wrong. As I have had occasion to say elsewhere, that an assertion of historical fact has been made by a Justice of the Court does not make it so. See Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 107, n. 5 (1996) (dissenting opinion).

9

The Court seems to think I have overlooked this point, that the exceptions imply a rule, see ante, at 724 (provisions for chancery petitions “only confir[m]” immunity enjoyed by these States). The reason for canvassing the spectrum of state thought and practice is not to deny the undoubted place of sovereign immunity in most States’ courts, but to examine what turns out to be the scanty evidence that the States understood sovereign immunity in the indefeasible, civilian, natural law sense, necessary to support the Court's position here.

10

In a suit against Virginia in the Court of Common Pleas for Philadelphia County, Virginia pleaded sovereign immunity in natural law terms, and the sheriff was excused from making return of the writ attaching Virginia’s goods, see Nathan v. Virginia, 1 Dall. 77, n. (1781), but this was only after the Supreme Executive Council of the Commonwealth had already ordered the goods returned and, in any event, involved the immunity of one State in the courts of another, and not the distinct immunity of a State in her own courts, see Nevada v. Hall, 440 U. S., at 4111

11

Whether this formulation was a constitutional waiver of sovereign immunity or an affirmative repudiation of its applicability is uncertain, but the broad language opening the courts to all suits, and the apparent desire to exceed the previously available statutory scheme, would appear to support the latter interpretation.

12

The Court says, “the Founders’ silence is best explained by the simple fact that no one, not even the Constitution’s most ardent opponents, suggested the document might strip States of the immunity.” Ante, at 741. In fact, a stalwart supporter of the Constitution, James "Wilson, laid the groundwork for just such a view at the Pennsylvania Convention, see infra, at 777-778. For the most part, it is true, the surviving records of the ratifying conventions do not suggest that much thought was given to the issue of suit against States in their own courts. But this silence does not tell us that the Framers’ generation thought the prerogative so well settled as to be an inherent right of States, and not a common law creation. It says only that at the conventions, the issue was not on the participants’ minds because the nature of sovereignty was not always explicitly addressed.

13

In Seminole Tribe, I explained that Hamilton had in mind state sovereign immunity only with respect to diversity cases applying state contract law. See 517 U. S., at 145-149 (dissenting opinion). Here I intend simply to point out that with respect to state law, in the main Hamilton spoke consistently with deriving sovereign immunity from a natural law model. That he did so is consistent with his focus on state law; Hamilton almost certainly knew that the natural law theory of sovereign immunity extended only to rights created by the sovereign, and so would not have applied to federal-question claims against a State in either state or federal court. Thus when the Court claims that subjecting States to suit in state court “would turn on its head the concern of the founding generation— that Article III might be used to circumvent state-court immunity,” ante, at 743, it has failed to realize that even those Framers who, like Hamilton, aimed to preserve state sovereign immunity, had in mind only state immunity on state-law claims, not federal questions.

14

Pufendorf’s discussion of sovereign immunity, just before the passage quoted by Blackstone, begins (in a modern translation): 'Now although promises and pacts are as binding upon the conscience of a king as upon that of any private citizen, there is, nevertheless, this difference between the obligation of a king and that of subjects, namely, that it is no trouble for the former to exact what is owed him from a subject, when he demurs, while a citizen, so long as he remains such, has no means within his power to recover his due from a king against his will.” 2 Pufendorf 1344-1345.

15

Madison seems here to have overlooked the possibility of concurrent jurisdiction between the Supreme Court’s original jurisdiction and that of state courts.

16

The Court says this statement of Wilson’s is “startling even today,” ante, at 725, but it is hard to see what is so startling, then or now, about the proposition that, since federal law may bind state governments, the state governments are in this sense subordinate to the national. The Court seems to have forgotten that one of the main reasons a Constitutional Convention was necessary at all was that under the Articles of Confederation Congress lacked the effective capacity to bind the States. The Court speaks as if the Supremacy Clause did not exist or McCulloch v. Maryland, 4 Wheat. 316 (1819), had never been decided.

Nor is the Court correct to say that the views of Wilson, Randolph, and General Charles Cotesworth Pinckney, see n. 17, infra, “cannot bear the weight” I put upon them, ante, at 725. Indeed, the yoke is light, since I intend these Framers only to do their part in showing that a diversity of views with respect to sovereignty and sovereign immunity existed at the several state conventions, and that this diversity stands in the way of the Court’s assumption that the founding generation understood sovereign immunity in the natural law sense as indefeasibly “fundamental” to statehood.

Finally, the Court calls Wilson’s view “a radical nationalist vision of the constitutional design,” ibid., apparently in an attempt to discount it. But while Wilson’s view of sovereignty was indeed radical in its deviation from older conceptions, this hardly distanced him from the American mainstream, and in October 1787, Washington himself called Wilson “as able, candid, & honest a member as any in Convention,” 5 Papers of George Washington: Confederation Series 379 (W. Abbot & D. Twohig eds. 199717

17

Nor was Wilson alone in this theory. At the South Carolina Convention, General Charles Cotesworth Pinckney, who had attended the Philadelphia Convention, took the position that the States never enjoyed individual and unfettered sovereignly, because the Declaration of Independence was an act of the Union, not of the particular States. See 4 Elliot’s Debates 301. In his view, the Declaration “sufficiently confutes the . . . doctrine of the individual sovereignly and independence of the several states.... The separate independence and individual sovereignty of the several states were never thought of by the enlightened band of patriots who framed this Declaration; the several states are not even mentioned by name in any part of it, — as if it was intended to impress this maxim on America, that our freedom and independence arose from our union, and that without it we could neither be free nor independent.” Ibid.

18

“['T']he grand objection, that the states were made subject to the action of an individual, still remained for several years, notwithstanding the concurring dissent of several states at the time of accepting the constitution.” 1 W. Blackstone, Commentaries, App. 352 (St. G. Tucker ed. 1803). In a footnote, Tucker specified that “[t]he several conventions of Massachusetts, New Hampshire, Rhode Island, New York, Virginia, and North Carolina, proposed amendments in this respect.” Ibid. The proposed amendments of the latter four States, which may be found in Elliot’s Debates, are discussed immediately infra this page and 779-781. The extant published versions of the proposed amendments of Massachusetts and New Hampshire do not include such a proposed amendment. See, e. g., 1 Elliot’s Debates 322-323 (nine proposed amendments of Massachusetts); 2 id., at 177-178 (same); H. R. Doc. No. 398, 69th Cong., 1st Sess., 1018-1020 (1927) (same); 1 Elliot’s Debates §25-326 (12 proposed amendments of New Hampshire); H. R. Doe. No. 398, supra, at 1025-1026 (same). 19

19

It is conceivable that the New York Convention, which was after all the intended audience for The Federalist, thought that the States had some sort of an inherent right against being sued in federal court. But this is unlikely, because numerous other of the proposed amendments declared so-called “rights” in no uncertain terms, see, e. g., 1 Elliot’s Debates 328 (“[T]he people have an equal, natural, and unalienable right freely and peaceably to exercise their religion”; trial by jury is “one of the greatest securities to the rights of a free people”; “[T]he people have a right peaceably to assemble together”), whereas the proposed amendment regarding suits against States simply stated that the judicial power “does not extend ... to authorize any suit by any person against a state,” and said nothing about any rights, inherent or otherwise. Id., at 329.

20

The Court says “there is no evidence that [the proposed amendments] were directed toward the question of sovereign immunity or that they reflect an understanding that the States would be subject to private suits without consent under Article III as drafted.” Ante, at 725. No evidence, that is, except the proposed amendments themselves, which would have omitted the Citizen-State Diversity Clause. If the proposed omission is not evidence going to sovereign immunity to private suits, one wonders what would satisfy the Court,

21

The case had first been brought before the Federal Circuit Court for the District of Georgia, over which Justice Iredell and District Judge Nathaniel Pendleton had presided. Ultimately, Justice Iredell held that the Circuit Court had no jurisdiction in the case because Congress had not conferred such jurisdiction on it. See 5 Documentary History of the Supreme Court of the United States, 1789-1800, pp. 128-129, 154 (M. Marcus ed. 1994). Georgia had maintained that it was “a free, sovereign, and independent State, and... cannot be drawn or compelled, nor at any Time past hath been accustomed to be, or could be drawn or compelled to answer against the will of the said State of Georgia, before any Justices of the federal Circuit Court for the District of Georgia or before any Justices of any Court of Law or Equity whatever.” Plea to the Jurisdiction, Oct. 17, 1791, id., at 148. Chisholm demurred to the plea on the apparent ground that while the plea alleged that Georgia could not be compelled to appear before any court, Article III expressly declared that the federal judicial power extended to all controversies between a State and citizens of another State. Demurrer, id., at 144. In his unreported opinion, Justice Iredell dispensed with this demurrer. He first stated that the plea sufficiently alleged that the District Court lacked jurisdiction. Id., at 150. He added that in any case, the existence of Congress’s constitutional authority to create courts to hear controversies between a State and citizens of another State did not mean that Congress had in fact created such courts. Id., at 151. Third, Justice Iredell pointed out that the right to create courts for cases in which a State was a party did not mean that Congress could confer jurisdiction in cases like the one at bar, because the word "controversies” in Article III might refer only to situations “where such controversies could' formerly have been maintained” in state court. Since “under the jurisdiction of a particular State Sovereigns may be liable in some instances but not in others,” just as “[i]n England the property in possession of the crown can' be affected by an adverse Process, tho’ certainly the King cannot be sued for the recovery of a sum of money,” ibid., it appeared to Justice Iredell that under some conditions Article III did not authorize suits against States.

22

Framer but not signer.

23

Justice Wilson hinted that in his own private view, citizens of the States had not conferred sovereignty in the sense of absolute authority upon their state governments, because they had retained some rights to themselves: “[A]ccording to some writers, every State, which governs itself without any dependence on another power, is a sovereign State. Whether, with regard to her own citizens, this is the case of the State of Georgia; whether those citizens have done, as the individuals of England are said, by their late instructors, to have done, surrendered the Supreme Power to the State or Government, and reserved nothing to themselves; or whether, like the people of other States, and of the United States, the citizens of Georgia have reserved the Supreme Power in their own hands; and on that Supreme Power have made the State dependent, instead of being sovereign; these are questions, to which, as a Judge in this cause, I can neither know nor suggest the proper answers; though, as a citizen of the Union, I know, and am interested to know, that the most satisfactory answers can be given.” Chisholm, 2 Dall., at 457 (citation omitted).

24

The basis for the dictum may be found earlier in the opinion, where Justice Iredell explained that it was uncertain whether Article III’s extension of the federal judicial power to cases between a State and citizens of another State “is to be construed as intending merely a transfer of jurisdiction from one tribunal to another, or as authorizing the Legislature to provide laws for the decision of all possible controversies in which a State may be involved with an individual, without regard to any prior exemption.” Id., at 436. Justice Iredell seems to have believed that Article III authorized only the former; in other words, that the Framers intended to permit Article III jurisdiction in suits against a State only where some other existing court could also hear such a claim. Because in Justice Iredell’s view, state courts could nowhere hear suits against a State at the time of ratification, see id., at 434-435, it followed that Article III probably did not authorize such suits. Justice Iredell’s reasoning, it must be said, differed markedly from the reasoning the Court adopts today. Justice Iredell believed simply that the Clause in Article III extending jurisdiction to controversies between a State and citizens of another State did not confer any extra lawmaking authority on Congress that was not found elsewhere in the Constitution. Because he could conceive of no other constitutional provision authorizing Congress to create a private right of action against a State, he concluded that none could exist. Today, of course, it is established that the commerce power authorizes Congress to create private rights as against the States. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985). The Court today takes the altogether different tack of arguing that state immunity from suit in state court was an inherent right of States preserved by the Tenth Amendment. Whatever Justice Iredell might have thought of this argument, it gets no support from his opinion.

25

It only makes matters worse for the Court that two States, New York and Maryland, voluntarily subjected themselves to suit in the Supreme Court around the time of Chisholm. See Marcus & Wexler, Suits Against States: Diversity of Opinion in the 1790s, 1993 J. Sup. Ct. Hist. 73, 74-78. At the Court’s February Term, 1791, before Chisholm, Maryland entered a plea (probably as to the merits) in Van Staphorst v. Maryland, see 1993 J. Sup. Ct. Hist., at 74, a suit brought by a foreign citizen for debts owed by the State, but then settled the suit to avoid the establishment of an adverse precedent on immunity, see id., at 75. In Oswald v. New York, an action that commenced before Chisholm but that was continued after it, New York initially objected to jurisdiction, see 1993 J. Sup. Ct. Hist., at 77, but the suit was tried to a jury in the Supreme Court, and after New York lost, it paid the fell jury verdict out of the State’s treasury, id., at 78.

26

The Court thinks that Justice Iredell’s adversion to state practice gives reason to think so, see ante, at 721 (“[Despite the opinion of Justice Iredell, the majority failed to address ...”), Even if Justice Iredell had been right about state practice, failure to respond to a specific argument raised by another Justice (as opposed to counsel) has even less significance with respect to this early Supreme Court opinion than it would have today, because the Justices may not have afforded one another the opportunity to read their opinions before they were announced. See 1 J. Goebel, The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States, Antecedents and Beginnings to 1801, p. 728 (1971) (“There are hints... that there may have been no conference and that each Justice arrived at his conclusion independently without knowing what each of his brethren had decided”). Indeed, since “opinions were given only orally in the Supreme Court in the 1790s,” 5 Documentary History of the Supreme Court, supra n. 21, at 164, n., it is possible that the opinion as reported by Dallas followed a document prepared by Wilson after the oral announcement of the opinion, ibid.; see also id., at xxiv-xxv, in which case it is possible that the other Justices never heard certain arguments until publication.

27

The circumlocution "another State, whose will must be always dear to me,” Chisholm, 2 Dall., at 419, hints at Randolph’s home State. It seems odd to suggest that Randolph’s acknowledgment of the unpopularity of his position in two States would somehow support the thought that the view was incorrect. Randolph himself had urged the same position at the Virginia ratifying convention, see supra, at 775-776, and so knew perfectly well that Virginia had ratified with full knowledge that his position might be the law.

28

It is interesting to note a case argued in the Supreme Court of Pennsylvania in 1798, in which counsel for the Commonwealth urged a version of the point that the Court makes here, and said that “[t]he language of the amendment, indeed, does not import an alteration of the Constitution, but an authoritative declaration of its true construction.” Respublica v. Cobbet, 3 Dall. 467, 472 (1798). The court expressly repudiated the historical component of this claim in an opinion by its Chief Justice: “When the judicial law [i. e., the Judiciary Act of 1789] was passed, the opinion prevailed that States might be sued, which by this amendment is settled otherwise.” Id., at 475 (M’Kean, C. J.).

29

The Court might perhaps respond that if the role of state sovereign immunity was not the subject of universal consensus in 1792, the enactment of the Eleventh Amendment brought the doctrine into the constitutional realm. The strongest form of this view must maintain that, notwithstanding the Amendment’s silence regarding state courts and its exclusive focus on the federal judicial power, the motivation of the framers of the Eleventh Amendment must have been affirmatively to embrace the position that the States enjoyed the immunity from suit previously enjoyed by the Crown. On this account, the framers of the Eleventh Amendment said nothing about sovereign immunity in state court because it never occurred to them that such immunity could be questioned; had they thought of this possibility, they would have considered it absurd that States immune in federal court could be subjected to suit in their own courts.

The first trouble with this view is that it assumes that the Eleventh Amendment was intended to reach all federal-law suits, and not only those arising under diversity jurisdiction. If the framers of the Eleventh Amendment had in mind only diversity eases, as the Court was prepared to concede in Seminole Tribe, see 517 U. S., at 69-70 (“The text dealt in terms only with the problem presented by the decision in Chisholm.... [I]t seems unlikely that much thought was given to the prospect of federal-question jurisdiction over the States”), then it might plausibly follow that the framers of that Amendment assumed that States possessed sovereign immunity in their own courts with respect to state law. But it certainly does not follow that the Amendment’s authors would have thought that States enjoyed immunity in state court on questions of federal law. To accept this would require one to believe that the framers of the Eleventh Amendment were blind to an extremely anomalous application of sovereign immunity, under which a State is immune even when it is not the font of the law under which it is sued, c£ infra, at 797-798, 800. The Court today may labor under the misapprehension that sovereign immunity can apply where the sovereign is not the font of law, but the Court adduces no evidence to suggest that the framers of the Eleventh Amendment held such a view. And the framers were much closer than the Court to the theory of sovereign immunity according to which the font of law may not be subject to suit under that law. This leaves the Court in the position of supporting its view of what the Eleventh Amendment means by the “historical” assertion that the framers must have intended it to mean the same.

30

The temptation to look to the natural law conception had shown up occasionally before Justice Holmes’s appointment, and goes back at least to Beers v. Arkansas, 20 How. 527 (1858), in which Chief Justice Taney wrote for the Court that “[i]t is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission,” id., at 529. But nothing turned on this pronouncement, because the outcome in the case would have been the same had sovereign immunity been understood as a common law property of the States. In Nichols v. United States, 7 Wall. 122 (1869), Justice Davis wrote: “Every government has an inherent right to protect itself against suits .... The principle is fundamental, [and] applies to every sovereign power ....” Id., at 126. This description came in dicta, and the origin of the immunity had no bearing on the decision. Justice Bradley quoted both Hamilton and Chief Justice Taney in Hans v. Louisiana, 134 U. S. 1, 13, 17 (1890), but nothing there depended on the natural law approach, and in the main the opinion, whatever its other demerits, see Seminole Tribe, supra, at 119 (Souter, J., dissenting), understood state sovereign immunity as a common law concept, see Hans, supra, at 16 (“The suability of a State without its consent was a thing unknown to the law”). And the Court in Seminole Tribe may possibly have intended to hint at the natural law background of sovereign immunity when it said approvingly that the decision in Hans ‘“found its roots not solely in the common law of England, but in the much more fundamental “jurisprudence in all civilized nations.’”” 517 U.S., at 69 (quoting Hans, supra, at 17, in turn quoting Beers v. Arkansas, supra, at 529). The Court’s occasional seduction by the natural law view should not, however, obscure its basic adherence to the common law approach. In United States v. Lee, 106 U. S. 196 (1882), the Court explained that “the doctrine is derived from the laws and practices of our English ancestors,” id., at 205, and added approvingly that the petition of right “has been as efficient in securing the rights of suitors against the crown in all cases appropriate to judicial proceedings, as that which the law affords to the subjects of the King in legal controversies among themselves,” ibid. The Court went on to notice that at common law one reason given for sovereign immunity was the “absurdity” of the King’s writ running against the King, id., at 206, but, recognizing the distinct situation in the United States, the Court admitted candidly that “it is difficult to see on what solid foundation of principle the exemption from liability to suit rests,” ibid. Even the dissent there discussed in great detail the common law heritage of the doctrine. See id., at 227-234 (opinion of Gray, J.).

31

The authority of the view that Parliament’s sovereignty must be indivisible had already been eroded in the decade before independence. Iredell himself, as early as 1774, rejected the applicability of the theory “to the case of several distinct and independent legislatures each engaged within a separate scale and employed about different objects,” in the course of arguing for the possibility of a kind of proto-federalist relationship between the Colonies and the King. Iredell, Address to the Inhabitants of Great Britain, in 1 G. McRee, Life and Correspondence of James Iredell 205, 219 (1857, reprinted 1949); see Bailyn, The Ideological Origins of the American Revolution, at 224-225, and n. 64.

32

This is entirely consistent with, and indeed is a corollary of, the statement quoted by the Court that the States are ‘“no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.’ ” Ante, at 714 (quoting The Federalist No. 39, p. 245 (C. Rossiter ed. 1961) (J. Madison)). The point is that matters subject to federal law are within the federal sphere, and so the States are subject to the general authority where such matters are concerned.

33

It is therefore sheer circularity for the Court to talk of the “anomaly,” ante, at 752, that would arise if a State could be sued on federal law in its own courts, when it may not be sued under federal law in federal court, Seminole Tribe of Florida v. Florida, 517 U. S. 44 (1996). The short and sufficient answer is that the anomaly is the Court’s own creation: the Eleventh Amendment was never intended to bar federal-question suits against the States in federal court. The anomaly is that Seminole Tribe, an opinion purportedly grounded in the Eleventh Amendment, should now be used as a lever to argue for state sovereign immunity in state courts, to which the Eleventh Amendment by its terms does not apply.

34

Perhaps as a corollary to its view of sovereign immunity as to some degree indefeasible because “fundamental,” the Court frets that the “power to press a State’s own courts into federal service to coerce the other branches of the State ... is the power first to turn the State against itself and ultimately to commandeer the entire political machinery of the State against its will and at the behest of individuals.” Ante, at 749. But this is to forget that the doctrine of separation of powers prevails in our Republic, When the state judiciary enforces federal law against state officials, as the Supremacy Clause requires it to do, it is not turning against the State’s executive any more than we turn against the Federal Executive when we apply federal law to the United States: it is simply upholding the rule of law. There is no “commandeering” of the State’s resources where the State is asked to do no more than enforce federal law.

35

Furthermore, the very idea of dignify ought also to imply that the State should be subject to, and not outside of, the law. It is surely ironic that one of the loci classici of Roman law regarding the imperial prerogative begins with (and is known by) the assertion that it is appropriate to the Emperor’s dignity that he acknowledge (or, on some readings, at least claim) that he is bound by the laws. See Digna Vox, Justinian’s Code 1.4.14 (“Digna vox maiestate regnantis legis alligatum se principem proftteri”) (“It is a statement worthy of the majesty of the ruler for the Prince to profess himself bound by the laws”); see Pennington, The Prince and the Law, 1200-1600, at 78, and n. 6.

36

The Court also claims that subjecting States to suit puts power in the hands of state courts that the State may wish to assign to its legislature, thus assigning the state judiciary a role “foreign to its experience but beyond its competence-” Ante, at 752. This comes perilously dose to legitimizing political defiance of valid federal law.

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 bonds that specified on their face that the attached coupons should be receivable at and after maturity for all taxes, debts, dues, and demands due the State. Id., at 278. In 1882, however, Virginia passed a law requiring its tax collectors to accept nothing but gold, silver, or currency in payment of taxes. Id., at 275. After the bonds reached maturity, Poindexter used them to pay state property taxes; Greenhow, the local tax collector, ignored the payment and took possession of an office desk in Poindexter’s possession to sell it for unpaid taxes. Poindexter brought a common law action in detinue against the tax collector in state court for recovery of the desk, arguing that the later Virginia statute barring use of the coupons violated the Contracts Clause. Greenhow defended, inter alia, on the theory that the suit was “substantially an action against the State of Virginia, to which it has not assented.” Id., at 285. The Court rejected this claim by applying to the State of Virginia reasoning akin to, though broader than, that later adopted in Ex parte Young, 209 U. S. 123 (1908). We held that, where state legislative action is unconstitutional, it “is not the word or deed of the State, but is the mere wrong and trespass of those individual persons who falsely speak and act in its name,” 114 U. S., at 290. Because the original bonds were binding contracts, the obligation of which Virginia could not constitutionally impair, “[t]he true and real Commonwealth which contracted the obligation is incapable in law of doing anything in derogation of it.” Id., at 293. It therefore could not be argued that the tax collector was acting on behalf of the State, because “[t]he State of Virginia has done none of these things with which this defence charges her. The defendant in error is not her officer, her agent, or her representative, in the matter complained of, for he has acted not only without her authority, but contrary to her express commands.” Ibid. Although the tax collector had done nothing more than collect taxes under duly enacted state law, he was held to be liable to suit. Thus in the only case to have come before this Court specifically involving a claim of state sovereign immunity of constitutional magnitude in a State’s own court, jurisdiction was upheld.

39

Garcia demonstrates that, contra the Court’s suggestion, the FLSA does not impermissibly act upon the States, see ante, at 714. Rather, the FLSA, enacted lawfully pursuant to the commerce power, treats the States like other employers. The Court seems to have misunderstood Hamilton’s statement in The Federalist No. 15 that the citizens are “ ‘ “the only proper objects of government,”’” ante, at 714 (quoting Printz v. United States, 521 U. S. 898, 919-920 (1997)). Hamilton’s point is not, as the Court seems to think, that the National Government should dictate nothing to the States in order to protect their residual sovereignty. To the contrary, Hamilton, who was arguing against the extreme respect for state sovereignty in the Articles of Confederation, meant precisely that the National Government should not act as the leader of a “league,” The Federalist No. 15, p. 95 (J. Cooke ed. 1961), mediating among several sovereignties, but as a “national government,” ibid., with power to produce obedience through the “COER[C]ION of the magistracy,” ibid. Hamilton is therefore the wrong person to quote for the proposition that the National Government may not act upon the States, since his point was that the National Government should not be limited to acting through the medium of the States.

40

The most recent available data give 4,782,608 as the total number of employees of the 50 States of the Union, see State Government Employment Data; March 1997, http://www.census.gov/pub/govs/apes/97stus.txt.

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.

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.

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, 889 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.

SEMINOLE TRIBE OF FLORIDA v. FLORIDA et al.

No. 94-12.

Argued October 11, 1995

Decided March 27, 1996

Rehnquist, C. J., delivered the opinion of the Court, in which O’Connor, Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 76. Souter, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined, post, p. 100.

Bruce S. Rogow argued the cause for petitioner. With him on the briefs were Beverly A. Pohl, Jerry C. Straus, Michael L. Roy, Judith A. Shapiro, Eugene Gressman, and John J. Gibbons.

Solicitor General Days argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, Irving L. Gornstein, Edward J. Shawaker, and Anne S. Almy.

Jonathan A. Glogau, Assistant Attorney General of Florida, argued the cause for respondents. With him on the brief was Robert A. Butterworth, Attorney General.*

*

Briefs of amici curiae urging reversal were filed for the Miccosukee Tribe of Indians of Florida by Sonia Escobio O’Donnell; for the National Indian Gaming Association et al. by Jerome L. Levine, Frank R. Lawrence, and Kurt V. BlueDog; for the Poareh Band of Creek Indians et al. by William R. Perry, Donald J. Simon, and Gary Pitchlynn; for the San Manuel Band of Mission Indians et al. by Howard L. Dickstem, Jerome L. Levine, and Frank R. Lawrence; for the Spokane Tribe of Indians et al. by Michael J. Wahoske; and for the Tohono O’Odham Nation et al. by Eric N. Dahlstrom and Robert C. Brauchli.

Briefs of amici curiae urging affirmance were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, Manuel M. Medeiros, Deputy Attorney General, and Thomas F. Gede, Special Assistant Attorney General, Christine O. Gregoire, Attorney General of Washington, and Jonathan Tate McCoy, Assistant Attorney General, joined by the Attorneys General for their respective jurisdictions as follows: Jeff Sessions of Alabama, Grant Woods of Arizona, Winston Bryant of Arkansas, Gale A. Norton of Colorado, Richard Blumenthal of Connecticut, Margery S. Bronster of Hawaii, Alan Lance of Idaho, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Mike Moore of Mississippi, Jeremiah W. Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Betty D. Montgomery of Ohio, Drew Edmondson of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, Mark Barnett of South Dakota, Dan Morales of Texas, Jeffrey L. Amestoy of Vermont, James S. Gilmore III of Virginia, and Darrell V. McGraw, Jr., of West Virginia; and for the National Governors’ Association et al. by Richard Ruda and Richard G. Taranto.

Richard Dauphinais, Arlinda F. Locklear, Francis R. Skenandore, Curtis G. Berkey, and Donald Juneau filed a brief for the Stockbridge-Munsee Indian Community et al. as amici curiae.

Chief Justice Rehnquist delivered the opinion of the Court.

The Indian Gaming Regulatory Act provides that an Indian tribe may conduct certain gaming activities only in conformance with a valid compact between the tribe and the State in which the gaming activities are located. 102 Stat. 2475, 25 U.S.C. § 2710(d)(1)(C). The Act, passed by Congress under the Indian Commerce Clause, U. S. Const., Art. I, § 8, cl. 3, imposes upon the States a duty to negotiate in good faith with an Indian tribe toward the formation of a compact, § 2710(d)(3)(A), and authorizes a tribe to bring suit in federal court against a State in order to compel performance of that duty, § 2710(d)(7). We hold that notwithstanding Congress’ clear intent to abrogate the States’ sovereign immunity, the Indian Commerce Clause does not grant Congress that power, and therefore § 2710(d)(7) cannot grant jurisdiction over a State that does not consent to be sued. We further hold that the doctrine of Ex parte Young, 209 U. S. 123 (1908), may not be used to enforce § 2710(d)(3) against a state official.

I

Congress passed the Indian Gaming Regulatory Act m 1988 in order to provide a statutory basis for the operation and regulation of gaming by Indian tribes. See 25 U. S. C. §2702. The Act divides gaming on Indian lands into three classes — I, II, and III — and provides a different regulatory scheme for each class. Class III gaming — the type with which we are here concerned — is defined as “all forms of gaming that are not class I gaming or class II gaming,” §2703(8), and includes such things as slot machines, casino games, banking card games, dog racing, and lotteries.1 It is the most heavily regulated of the three classes. The Act provides that class III gaming is lawful only where it is: (1) authorized by an ordinance or resolution that (a) is adopted by the governing body of the Indian tribe, (b) satisfies certain statutorily prescribed requirements, and (c) is approved by the National Indian Gaming Commission; (2) located in a State that permits such gaming for any purpose by any person, organization, or entity; and (3) “conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State under paragraph (3) that is in effect.” § 2710(d)(1).

The “paragraph (3)” to which the last prerequisite of § 2710(d)(1) refers is § 2710(d)(3), which describes the permissible scope of a Tribal-State compact, see § 2710(d)(3)(C), and provides that the compact is effective “only when notice of approval by the Secretary [of the Interior] of such compact has been published by the Secretary in the Federal Register,” § 2710(d)(3)(B). More significant for our purposes, however, is that § 2710(d)(3) describes the process by which a State and an Indian tribe begin negotiations toward a Tribal-State compact:

“(A) Any Indian tribe having jurisdiction over the Indian lands upon which a class III gaming activity is being conducted, or is to be conducted, shall request the State in which such lands are located to enter into negotiations for the purpose of entering into a Tribal-State compact governing the conduct of gaming activities. Upon receiving such a request, the State shall negotiate with the Indian tribe in good faith to enter into such a compact.”

The State’s obligation to “negotiate with the Indian tribe in good faith” is made judicially enforceable by §§ 2710(d) (7)(A)(i) and (B)(i):

“(A) The United States district courts shall have jurisdiction over—

“(i) any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact under paragraph (3) or to conduct such negotiations in good faith ....

“(B)(i) An Indian tribe may initiate a cause of action described in subparagraph (A)(i) only after the close of the 180-day period beginning on the date on which the Indian tribe requested the State to enter into negotiations under paragraph (3)(A).”

Sections 2710(d)(7)(B)(ii)-(vii) describe an elaborate remedial scheme designed to ensure the formation of a Tribal-State compact. A tribe that brings an action under § 2710(d) (7)(A)(i) must show that no Tribal-State compact has been entered and that the State failed to respond in good faith to the tribe’s request to negotiate; at that point, the burden then shifts to the State to prove that it did in fact negotiate in good faith. § 2710(d)(7)(B)(ii). If the district court concludes that the State has failed to negotiate in good faith toward the formation of a Tribal-State compact, then it “shall order the State and Indian Tribe to conclude such a compact within a 60-day period.” §2710(d)(7)(B)(iii). If no compact has been concluded 60 days after the court’s order, then “the Indian tribe and the State shall each submit to a mediator appointed by the court a proposed compact that represents their last best offer for a compact.” § 2710(d)(7) (B)(iv). The mediator chooses from between the two proposed compacts the one “which best comports with the terms of [the Act] and any other applicable Federal law and with the findings and order of the court,” ibid., and submits it to the State and the Indian tribe, § 2710(d)(7)(B)(v). If the State consents to the proposed compact within 60 days of its submission by the mediator, then the proposed compact is “treated as a Tribal-State compact entered into under paragraph (3).” § 2710(d)(7)(B)(vi). If, however, the State does not consent within that 60-day period, then the Act provides that the mediator “shall notify the Secretary [of the Interior]” and that the Secretary “shall prescribe . .. procedures . . . under which class III gaming may be conducted on the Indian lands over which the Indian tribe has jurisdiction.” § 2710(d)(7)(B)(vii).2

In September 1991, the Seminole Tribe of Florida, petitioner, sued the State of Florida and its Governor, Lawton Chiles, respondents. Invoking jurisdiction under 25 U. S. C. § 2710(d)(7)(A), as well as 28 U. S. C. §§1331 and 1362, petitioner alleged that respondents had “refused to enter into any negotiation for inclusion of [certain gaming activities] in a tribal-state compact,” thereby violating the “requirement of good faith negotiation” contained in § 2710(d)(3). Petitioner’s Complaint ¶24, see App. 18. Respondents moved to dismiss the complaint, arguing that the suit violated the State’s sovereign immunity from suit in federal court. The District Court denied respondents’ motion, 801 F. Supp. 655 (SD Fla. 1992), and respondents took an interlocutory appeal of that decision. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139 (1993) (collateral order doctrine allows immediate appellate review of order denying claim of Eleventh Amendment immunity).

The Court of Appeals for the Eleventh Circuit reversed the decision of the District Court, holding that the Eleventh Amendment barred petitioner’s suit against respondents.3 11 F. 3d 1016 (1994). The court agreed with the District Court that Congress in § 2710(d)(7) intended to abrogate the States’ sovereign immunity, and also agreed that the Act had been passed pursuant to Congress’ power under the Indian Commerce Clause, U. S. Const., Art. I, § 8, cl. 3. The court disagreed with the District Court, however, that the Indian Commerce Clause grants Congress the power to abrogate a State’s Eleventh Amendment immunity from suit, and concluded therefore that it had no jurisdiction over petitioner’s suit against Florida. The court further held that Ex parte Young, 209 U. S. 123 (1908), does not permit an Indian tribe to force good-faith negotiations by suing the Governor of a State. Finding that it lacked subject-matter jurisdiction, the Eleventh Circuit remanded to the District Court with directions to dismiss petitioner’s suit.4

Petitioner sought our review of the Eleventh Circuit’s decision,5 and we granted certiorari, 513 U. S. 1125 (1995), in order to consider two questions: (1) Does the Eleventh Amendment prevent Congress from authorizing suits by Indian tribes against States for prospective injunctive relief to enforce legislation enacted pursuant to the Indian Commerce Clause?; and (2) Does the doctrine of Ex parte Young permit suits against a State’s Governor for prospective injunctive relief to enforce the good-faith bargaining requirement of the Act? We answer the first question in the affirmative, the second in the negative, and we therefore affirm the Eleventh Circuit’s dismissal of petitioner’s suit.6

The Eleventh Amendment provides:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one' of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, “we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition ... which it confirms.” Blatchford v. Native Village of Noatak, 501 U. S. 775, 779 (1991). That presupposition, first observed over a century ago in Hans v. Louisiana, 134 U. S. 1 (1890), has two parts: first, that each State is a sovereign entity in our federal system; and second, that “ ‘[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent,’ ” id., at 13 (emphasis deleted), quoting The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton). See also Puerto Rico Aqueduct and Sewer Authority, supra, at 146 (“The Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity”). For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States “was not contemplated by the Constitution when establishing the judicial power of the United States.” Hans, supra, at 15.7

Here, petitioner has sued the State of Florida and it is undisputed that Florida has not consented to the suit. See Blatchford, supra, at 782 (States by entering into the Constitution did not consent to suit by Indian tribes). Petitioner nevertheless contends that its suit is not barred by state sovereign immunity. First, it argues that Congress through the Act abrogated the States’ sovereign immunity. Alternatively, petitioner maintains that its suit against the Governor may go forward under Ex parte Young, supra. We consider each of those arguments in turn.

II

Petitioner argues that Congress through the Act abrogated the States’ immunity from suit. In order to determine whether Congress has abrogated the States’ sovereign immunity, we ask two questions: first, whether Congress has “unequivocally expresse[d] its intent to abrogate the immunity,” Green v. Mansour, 474 U. S. 64, 68 (1985); and second, whether Congress has acted “pursuant to a valid exercise of power,” ibid.

A

Congress’ intent to abrogate the States’ immunity from suit must be obvious from “a clear legislative statement.” Blatchford, supra, at 786. This rule arises from a recognition of the important role played by the Eleventh Amendment and the broader principles that it reflects. See Atascadero State Hospital v. Scanlon, 473 U. S. 234, 238-239 (1985); Quern v. Jordan, 440 U. S. 332, 345 (1979). In Atascadero, we held that “[a] general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment.” 473 U. S., at 246; see also Blatchford, supra, at 786, n. 4 (“The fact that Congress grants jurisdiction to hear a claim does not suffice to show Congress has abrogated all defenses to that claim”) (emphases deleted). Rather, as we said in Dellmuth v. Muth, 491 U. S. 223 (1989):

“To temper Congress’ acknowledged powers of abrogation with due concern for the Eleventh Amendment’s role as an essential component of our constitutional structure, we have applied a simple but stringent test: ‘Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.’” Id., at 227-228.

See also Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 474 (1987) (plurality opinion).

Here, we agree with the parties, with the Eleventh Circuit in the decision below, 11 F. 3d, at 1024, and with virtually every other court that has confronted the question8 that Congress has in § 2710(d)(7) provided an “unmistakably clear” statement of its intent to abrogate. Section 2710(d)(7)(A)(i) vests jurisdiction in “[t]he United States district courts . . . over any cause of action . . . arising from the failure of a State to enter into negotiations ... or to conduct such negotiations in good faith.” Any conceivable doubt as to the identity of the defendant in an action under § 2710(d)(7)(A)(i) is dispelled when one looks to the various provisions of § 2710(d)(7)(B), which describe the remedial scheme available to a tribe that files suit under § 2710(d)(7)(A)(i). Section 2710(d)(7)(B)(ii)(II) provides that if a suing tribe meets its burden of proof, then the “burden of proof shall be upon the State . . § 2710(d)(7)(B)(iii) states that if the court “finds that the State has failed to negotiate in good faith . . . , the court shall order the State . . § 2710(d)(7)(B)(iv) provides that “the State shall . . . submit to a mediator appointed by the court” and subsection (B)(v) of § 2710(d)(7) states that the mediator “shall submit to the State.” Sections 2710(d) (7)(B)(vi) and (vii) also refer to the “State” in a context that makes it clear that the State is the defendant to the suit brought by an Indian tribe under § 2710(d)(7)(A)(i). In sum, we think that the numerous references to the “State” in the text of § 2710(d)(7)(B) make it indubitable that Congress intended through the Act. to abrogate the States’ sovereign immunity from suit.9

B

Having concluded that Congress clearly intended to abrogate the States’ sovereign immunity through § 2710(d)(7), we turn now to consider whether the Act was passed “pursuant to a valid exercise of power.” Green v. Mansour, 474 U. S., at 68. Before we address that question here, however, we think it necessary first to define the scope of our inquiry.

Petitioner suggests that one consideration weighing in favor of finding the power to abrogate here is that the Act authorizes only prospective injunctive relief rather than retroactive monetary relief. But we have often made it clear that the relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment. See, e. g., Cory v. White, 457 U. S. 85, 90 (1982) (“It would be a novel proposition indeed that the Eleventh Amendment does not bar a suit to enjoin the State itself simply because no money judgment is sought”). We think it follows a fortiori from this proposition that the type of relief sought is irrelevant to whether Congress has power to abrogate States’ immunity. The Eleventh Amendment does not exist solely in order to “preven[t] federal-court judgments that must be paid out of a State’s treasury,” Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 48 (1994); it also serves to avoid “the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties,” Puerto Rico Aqueduct and Sewer Authority, 506 U. S., at 146 (internal quotation marks omitted).

Similarly, petitioner argues that the abrogation power is validly exercised here because the Act grants the States a power that they would not otherwise have, viz., some measure of authority over gaming on Indian lands. It is true enough that the Act extends to the States a power withheld from them by the Constitution. See California v. Cabazon Band of Mission Indians, 480 U. S. 202 (1987). Nevertheless, we do not see how that consideration is relevant to the question whether Congress may abrogate state sovereign immunity. The Eleventh Amendment immunity may not be lifted by Congress unilaterally deciding that it will be replaced by grant of some other authority. Cf. Atascadero, 473 U. S., at 246-247 (“[T]he mere receipt of federal funds cannot establish that a State has consented to suit in federal court”).

Thus our inquiry into whether Congress has the power to abrogate unilaterally the States’ immunity from suit is narrowly focused on one question: Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate? See, e. g., Fitzpatrick v. Bitzer, 427 U. S. 445, 452-456 (1976). Previously, in conducting that inquiry, we have found authority to abrogate under only two provisions of the Constitution. In Fitzpatrick, we recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had fundamentally altered the balance of state and federal power struck by the Constitution. Id., at 455. We noted that § 1 of the Fourteenth Amendment contained prohibitions expressly directed at the States and that § 5 of the Amendment expressly provided that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” See id., at 453 (internal quotation marks omitted). We held that through the Fourteenth Amendment, federal power extended to intrude upon the province of the Eleventh Amendment and therefore that § 5 of the Fourteenth Amendment allowed Congress to abrogate the immunity from suit guaranteed by that Amendment.

In only one other case has congressional abrogation of the States’ Eleventh Amendment immunity been upheld. In Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989), a plurality of the Court found that the Interstate Commerce Clause, Art. I, §8, cl. 3, granted Congress the power to abrogate state sovereign immunity, stating that the power to regulate interstate commerce would be “incomplete without the authority to render States liable in damages.” 491 U. S., at 19-20. Justice White added the fifth vote necessary to the result in that case, but wrote separately in order to express that he “[did] not agree with much of [the plurality’s] reasoning.” Id., at 57 (opinion concurring in judgment in part and dissenting in part).

In arguing that Congress through the Act abrogated the States’ sovereign immunity, petitioner does not challenge the Eleventh Circuit’s conclusion that the Act was passed pursuant to neither the Fourteenth Amendment nor the Interstate Commerce Clause. Instead, accepting the lower court’s conclusion that the Act was passed pursuant to Congress’ power under the Indian Commerce Clause, petitioner now asks us to consider whether that Clause grants Congress the power to abrogate the States’ sovereign immunity.

Petitioner begins with the plurality decision in Union Gas and contends that “[t]here is no principled basis for finding that congressional power under the Indian Commerce Clause is less than that conferred by the Interstate Commerce Clause.” Brief for Petitioner 17. Noting that the Union Gas plurality found the power to abrogate from the “plenary” character of the grant of authority over interstate commerce, petitioner emphasizes that the Interstate Commerce Clause leaves the States with some power to regulate, see, e. g., West Lynn Creamery, Inc. v. Healy, 512 U. S. 186 (1994), whereas the Indian Commerce Clause makes “Indian relations ... the exclusive province of federal law.” County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 234 (1985). Contending that the Indian Commerce Clause vests the Federal Government with “the duty of protecting]” the tribes from “local ill feeling” and “the people of the States,” United States v. Kagama, 118 U. S. 375, 383-384 (1886), petitioner argues that the abrogation power is necessary “to protect the tribes from state action denying federally guaranteed rights.” Brief for Petitioner 20.

Respondents dispute petitioner’s analogy between the Indian Commerce Clause and the Interstate Commerce Clause. They note that we have recognized that “the Interstate Commerce and Indian Commerce Clauses have very different applications." Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163, 192 (1989), and from that they argue that the two provisions are “wholly dissimilar.” Brief for Respondents 21. Respondents contend that the Interstate Commerce Clause grants the power of abrogation only because Congress’ authority to regulate interstate commerce would be “incomplete” without that “necessary” power. Id., at 23, citing Union Gas, supra, at 19-20. The Indian Commerce Clause is distinguishable, respondents contend, because it gives Congress complete authority over the Indian tribes. Therefore, the abrogation power is not “necessary” to Congress’ exercise of its power under the Indian Commerce Clause.10

Both parties make their arguments from the plurality decision in Union Gas, and we, too, begin there. We think it clear that Justice Brennan’s opinion finds Congress’ power to abrogate under the Interstate Commerce Clause from the States’ cession of their sovereignty when they gave Congress plenary power to regulate interstate commerce. See Union Gas, 491 U. S., at 17 (“The important point ... is that the provision both expands federal power and contracts state power”). Respondents’ focus elsewhere is misplaced. While the plurality decision states that Congress’ power under the Interstate Commerce Clause would be incomplete without the power to abrogate, that statement is made solely in order to emphasize the broad scope of Congress’ authority over interstate commerce. Id., at 19-20. Moreover, respondents’ rationale would mean that where Congress has less authority, and the States have more, Congress’ means for exercising that power must be greater. We read the plurality opinion to provide just the opposite. Indeed, it was in those circumstances where Congress exercised complete authority that Justice Brennan thought the power to abrogate most necessary. Id., at 20 (“Since the States may not legislate at all in [the aforementioned] situations, a conclusion that Congress may not create a cause of action for money damages against the States would mean that no one could do so. And in many situations, it is only money damages that will carry out Congress’ legitimate objectives under the Commerce Clause”).

Following the rationale of the Union Gas plurality, our inquiry is limited to determining whether the Indian Commerce Clause, like the Interstate Commerce Clause, is a grant of authority to the Federal Government at the expense of the States. The answer to that question is obvious. If anything, the Indian Commerce Clause accomplishes a greater transfer of power from the States to the Federal Government than does the Interstate Commerce Clause. This is clear enough from the fact that the States still exercise some authority over interstate trade but have been divested of virtually all authority over Indian commerce and Indian tribes. Under the rationale of Union Gas, if the States’ partial cession of authority over a particular area includes cession of the immunity from suit, then their virtually total cession of authority over a different area must also include cession of the immunity from suit. See id., at 42 (Scalia, J., joined by Rehnquist, C. J., and O’Connor and Kennedy, JJ., dissenting) (“[I]f the Article I commerce power enables abrogation of state sovereign immunity, so do all the other Article I powers”); see Ponca Tribe of Oklahoma v. Oklahoma, 37 F. 3d 1422, 1428 (CA10 1994) (Indian Commerce Clause grants power to abrogate), cert. pending, No. 94-1029; Cheyenne River Sioux Tribe v. South Dakota, 3 F. 3d 273, 281 (CA8 1993) (same); cf. Chavez v. Arte Publico Press, 59 F. 3d 539, 546-547 (CA5 1995) (After Union Gas, Copyright Clause, U. S. Const., Art. I, §8, cl. 8, must grant Congress power to abrogate). We agree with petitioner that the plurality opinion in Union Gas allows no principled distinction in favor of the States to be drawn between the Indian Commerce Clause and the Interstate Commerce Clause.

Respondents argue, however, that we need not conclude that the Indian Commerce Clause grants the power to abrogate the States’ sovereign immunity. Instead, they contend that if we find the rationale of the Union Gas plurality to extend to the Indian Commerce Clause, then “Union Gas should be reconsidered and overruled.” Brief for Respondents 25. Generally, the principle of stare decisis, and the interests that it serves, viz., “the evenhanded, predictable, and consistent development of legal principles, . . . reliance on judicial decisions, and ... the actual and perceived integrity of the judicial process,” Payne v. Tennessee, 501 U. S. 808, 827 (1991), counsel strongly against reconsideration of our precedent. Nevertheless, we always have treated stare decisis as a “principle of policy,” Helvering v. Hallock, 309 U. S. 106, 119 (1940), and not as an “inexorable command,” Payne, 501 U. S., at 828. “[W]hen governing decisions are unworkable or are badly reasoned, ‘this Court has never felt constrained to follow precedent.’” Id., at 827 (quoting Smith v. Allwright, 321 U. S. 649, 665 (1944)). Our willingness to reconsider our earlier decisions has been “particularly true in constitutional cases, because in such cases ‘correction through legislative action is practically impossible.’” Payne, supra, at 828 (quoting Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 407 (1932) (Brandeis, J., dissenting)).

The Court in Union Gas reached a result without an expressed rationale agreed upon by a majority of the Court. We have already seen that Justice Brennan’s opinion received the support of only three other Justices. See Union Gas, 491 U. S., at 5 (Marshall, Blackmun, and Stevens, JJ., joined Justice Brennan). Of the other five, Justice White, who provided the fifth vote for the result, wrote separately in order to indicate his disagreement with the plurality’s rationale, id., at 57 (opinion concurring in judgment and dissenting in part), and four Justices joined together in a dissent that rejected the plurality’s rationale, id., at 35-45 (Scalia, J., dissenting, joined by Rehnquist, C. J., and O’Connor and Kennedy, JJ.). Since it was issued, Union Gas has created confusion among the lower courts that have sought to understand and apply the deeply fractured decision. See, e.g., Chavez v. Arte Publico Press, supra, at 543-545 (“Justice White’s concurrence must be taken on its face to disavow” the plurality’s theory); 11 F. 3d, at 1027 (Justice White’s “vague concurrence renders the continuing validity of Union Gas in doubt”).

The plurality’s rationale also deviated sharply from our established federalism jurisprudence and essentially eviscerated our decision in Hans. See Union Gas, supra, at 36 (“If Hans means only that federal-question suits for money damages against the States cannot be brought in federal court unless Congress clearly says so, it means nothing at all”) (Scalia, J., dissenting). It was well established in 1989 when Union Gas was decided that the Eleventh Amendment stood for the constitutional principle that state sovereign immunity limited the federal courts’ jurisdiction under Article III. The text of the Amendment itself is clear enough on this point: “The Judicial power of the United States shall not be construed to extend to any suit. ...” And our decisions since Hans had been equally clear that the Eleventh Amendment reflects “the fundamental principle of sovereign immunity [that] limits the grant of judicial authority in Art. III,” Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 97-98 (1984); see Union Gas, supra, at 38 (“ ‘[T]he entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given ...’”) (Scalia, J., dissenting) (quoting Ex parte New York, 256 U. S. 490, 497 (1921)); see also cases cited at n. 7, supra. As the dissent in Union Gas recognized, the plurality’s conclusion — that Congress could under Article I expand the scope of the federal courts’ jurisdiction under Article III — “contradicted] our unvarying approach to Article III as setting forth the exclusive catalog of permissible federal-court jurisdiction.” Union Gas, supra, at 39.

Never before the decision in Union Gas had we suggested that the bounds of Article III could be expanded by Congress operating pursuant to any constitutional provision other than the Fourteenth Amendment. Indeed, it had seemed fundamental that Congress could not expand the jurisdiction of the federal courts beyond the bounds of Article III. Marbury v. Madison, 1 Cranch 137 (1803). The plurality’s citation of prior decisions for support was based upon what we believe to be a misreading of precedent. See Union Gas, 491 U. S., at 40-41 (Scalia, J., dissenting). The plurality claimed support for its decision from a case holding the unremarkable, and completely unrelated, proposition that the States may waive their sovereign immunity, see id., at 14-15 (citing Parden v. Terminal Railway of Ala. Docks Dept., 377 U. S. 184 (1964)), and cited as precedent propositions that had been merely assumed for the sake of argument in earlier cases, see 491 U. S., at 15 (citing Welch v. Texas Dept. of Highways and Public Transp., 483 U. S., at 475-476, and n. 5, and County of Oneida v. Oneida Indian Nation of N. Y. 470 U. S., at 252).

The plurality’s extended reliance upon our decision in Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), that Congress could under the Fourteenth Amendment abrogate the States’ sovereign immunity was also, we believe, misplaced. Fitzpatrick was based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption of the Eleventh Amendment and the ratification of the Constitution, operated to alter the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment. Id., at 454. As the dissent in Union Gas made clear, Fitzpatrick cannot be read to justify “limitation of the principle embodied in the Eleventh Amendment through appeal to antecedent provisions of the Constitution.” Union Gas, supra, at 42 (Scalia, J., dissenting).

In the five years since it was decided, Union Gas has proved to be a solitary departure from established law. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139 (1993). Reconsidering the decision in Union Gas, we conclude that none of the policies underlying stare decisis require our continuing adherence to its holding. The decision has, since its issuance, been of questionable precedential value, largely because a majority of the Court expressly disagreed with the rationale of the plurality. See Nichols v. United States, 511 U. S. 738, 746 (1994) (the “degree of confusion following a splintered decision ... is itself a reason for reexamining that decision”). The case involved the interpretation of the Constitution and therefore may be altered only by constitutional amendment or revision by this Court. Finally, both the result in Union Gas and the plurality’s rationale depart from our established understanding of the Eleventh Amendment and undermine the accepted function of Article III. We feel bound to conclude that Union Gas was wrongly decided and that it should be, and now is, overruled.

The dissent makes no effort to defend the decision in Union Gas, see post, at 100, but nonetheless would find congressional power to abrogate in this case.11 Contending that our decision is a novel extension of the Eleventh Amendment, the dissent chides us for “attending]” to dicta. We adhere in this case, however, not to mere obiter dicta, but rather to the well-established rationale upon which the Court based the results of its earlier decisions. When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound. Cf. Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604, 613 (1990) (exclusive basis of a judgment is not dicta) (plurality); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 668 (1989) (“As a general rule, the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also to their explications of the governing rules of law”) (Kennedy, J., concurring and dissenting); Sheet Metal Workers v. EEOC, 478 U. S. 421, 490 (1986) (“Although technically dicta,... an important part of the Court’s rationale for the result that it reache[s] ... is entitled to greater weight. . .”) (O’Connor, J., concurring). For over a century, we have grounded our decisions in the oft-repeáted understanding of state sovereign immunity as an essential part of the Eleventh Amendment. In Principality of Monaco v. Mississippi, 292 U. S. 313 (1934), the Court held that the Eleventh Amendment barred a suit brought against a State by a foreign state. Chief Justice Hughes wrote for a unanimous Court:

“[NJeither the literal sweep of the words of Clause one of § 2 of Article III, nor the absence of restriction in the letter of the Eleventh Amendment, permits the conclusion that in all controversies of the sort described in Clause one, and omitted from the words of the Eleventh Amendment, a State may be sued without her consent. Thus Clause one specifically provides that the judicial Power shall extend ‘to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.’ But, although a case may arise under the Constitution and laws of the United States, the judicial power does not extend to it if the suit is sought to be prosecuted against a State, without her consent, by one of her own citizens. . . .

“Manifestly, we cannot rest with a mere literal application of the words of §2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. There is the essential postulate that the controversies, as contemplated, shall be found to be of a justiciable character. There is also the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been a ‘surrender of this immunity in the plan of the convention.’” Id., at 321-323 (citations and footnote omitted).

See id., at 329-330; see also Pennhurst, 465 U. S., at 98 (“In short, the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. Ill”); Ex parte New York, 256 U. S., at 497 (“[T]he entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given . . .”). It is true that we have not had occasion previously to apply established Eleventh Amendment principles to the question whether Congress has the power to abrogate state sovereign immunity (save in Union Gas). But consideration of that question must proceed with fidelity to this century-old doctrine.

The dissent, to the contrary, disregards our case law in favor of a theory cobbled together from law review articles and its own version of historical events. The dissent cites not a single decision since Hans (other than Union Gas) that supports its view of state sovereign immunity, instead relying upon the now-discredited decision in Chisholm v. Georgia, 2 Dall. 419 (1793). See, e. g., post, at 152, n. 47. Its undocumented and highly speculative extralegal explanation of the decision in Hans is a disservice to the Court’s traditional method of adjudication. See post, at 120-123.

The dissent mischaracterizes the Hans opinion. That decision found its roots not solely in the common law of England, but in the much more fundamental “ ‘jurisprudence in all civilized nations.’” Hans, 134 U. S., at 17, quoting Beers v. Arkansas, 20 How. 527, 529 (1858); see also The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton) (sovereign immunity “is the general sense and the general practice of mankind”). The dissent’s proposition that the common law of England, where adopted by the States, was open to change by the Legislature is wholly unexceptionable and largely beside the point: that common law provided the substantive rules of law rather than jurisdiction. Cf. Monaco, supra, at 323 (state sovereign immunity, like the requirement that there be a “justiciable” controversy, is a constitutionally grounded limit on federal jurisdiction). It also is noteworthy that the principle of state sovereign immunity stands distinct from other principles of the common law in that only the former prompted a specific constitutional amendment.

Hans — with a much closer vantage point than the dissent — recognized that the decision in Chisholm was contrary to the well-understood meaning of the Constitution. The dissent’s conclusion that the decision in Chisholm was “reasonable,” post, at 106, certainly would have struck the Framers of the Eleventh Amendment as quite odd: That decision created “such a shock of surprise that the Eleventh Amendment was at once proposed and adopted.” Monaco, supra, at 325. The dissent’s lengthy analysis of the text of the Eleventh Amendment is directed at a straw man — we long have recognized that blind reliance upon the text of the Eleventh Amendment is “ ‘to strain the Constitution and the law to a construction never imagined or dreamed of.’ ” Monaco, supra, at 326, quoting Hans, supra, at 15. The text dealt in terms only with the problem presented by the decision in Chisholm; in light of the fact that the federal courts did not have federal-question jurisdiction at the time the Amendment was passed (and would not have it until 1875), it seems unlikely that much thought was given to the prospect of federal-question jurisdiction over the States.

That same consideration causes the dissent’s criticism of the views of Marshall, Madison, and Hamilton to ring hollow. The dissent cites statements made by those three influential Framers, the most natural reading of which would preclude all federal jurisdiction over an unconsenting State.12 Struggling against this reading, however, the dissent finds significant the absence of any contention that sovereign immunity would affect the new federal-question jurisdiction. Post, at 142-150. But the lack of any statute vesting general federal-question jurisdiction in the federal courts until much later makes the dissent’s demand for greater specificity about a then-dormant jurisdiction overly exacting.13

In putting forward a new theory of state sovereign immunity, the dissent develops its own vision of the political system created by the Framers, concluding with the statement that “[t]he Framers’ principal objectives in rejecting English theories of unitary sovereignty... would have been impeded if a new concept of sovereign immunity had taken its place in federal-question cases, and would have been substantially thwarted if that new immunity had been held untouchable by any congressional effort to abrogate it.”14 Post, at 157. This sweeping statement ignores the fact that the Nation survived for nearly two centuries without the question of the existence of such power ever being presented to this Court. And Congress itself waited nearly a century before even conferring federal-question jurisdiction on the lower federal courts.15

In overruling Union Gas today, we reconfirm that the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area, like the regulation of Indian commerce, that is under the exclusive control of the Federal Government. Even when the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States.16 The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction. Petitioner’s suit against the State of Florida must be dismissed for a lack of jurisdiction.

III

Petitioner argues that we may exercise jurisdiction over its suit to enforce § 2710(d)(3) against the Governor notwithstanding the jurisdictional bar of the Eleventh Amendment. Petitioner notes that since our decision in Ex parte Young, 209 U. S. 123 (1908), we often have found federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief in order to “end a continuing violation of federal law.” Green v. Mansour, 474 U. S., at 68. The situation presented here, however, is sufficiently different from that giving rise to the traditional Ex parte Young action so as to preclude the availability of that doctrine.

Here, the “continuing violation of federal law” alleged by petitioner is the Governor’s failure to bring the State into compliance with § 2710(d)(3). But the duty to negotiate imposed upon the State by that statutory provision does not stand alone. Rather, as we have seen, supra, at 49-50, Congress passed § 2710(d)(3) in conjunction with the carefully crafted and intricate remedial scheme set forth in § 2710(d)(7).

Where Congress has created a remedial scheme for the enforcement of a particular federal right, we have, in suits against federal officers, refused to supplement that scheme with one created by the judiciary. Schweiker v. Chilicky, 487 U. S. 412, 423 (1988) (“When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional... remedies”). Here, of course, the question is not whether a remedy should be created, but instead is whether the Eleventh Amendment bar should be lifted, as it was in Ex parte Young, in order to allow a suit against a state officer. Nevertheless, we think that the same general principle applies: Therefore, where Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young. .

Here, Congress intended § 2710(d)(3) to be enforced against the State in an action brought under § 2710(d)(7); the intricate procedures set forth in that provision show that Congress intended therein not only to define, but also to limit significantly, the duty imposed by § 2710(d)(3). For example, where the court finds that the State has failed to negotiate in good faith, the only remedy prescribed is an order directing the-State and the Indian tribe to conclude a compact within 60 days. And if the parties disregard the court’s order and fail to conclude a compact within the 60-day period, the only sanction is that each party then must submit a proposed compact to a mediator who selects the one which best embodies the terms of the Act. Finally, if the State fails to accept the compact selected by the mediator, the only sanction against it is that the mediator shall notify the Secretary of the Interior who then must prescribe regulations governing class III gaming on the tribal lands at issue. By contrast with this quite modest set of sanctions, an action brought against a state official under Ex parte Young would expose that official to the full remedial powers of a federal court, including, presumably, contempt sanctions. If § 2710(d)(3) could be enforced in a suit under Ex parte Young, § 2710(d)(7) would have been superfluous; it is difficult to see why an Indian tribe would suffer through the intricate scheme of § 2710(d)(7) when more complete and more immediate relief would be available under Ex parte Young.17

Here, of course, we have found that Congress does not have authority under the Constitution to make the State suable in federal court under § 2710(d)(7). Nevertheless, the fact that Congress chose to impose upon the State a liability that is significantly more limited than would be the liability imposed upon the state officer under Ex parte Young strongly indicates that Congress had no wish to create the latter under § 2710(d)(3). Nor are we free to rewrite the statutory scheme in order to approximate what we think Congress might have wanted had it known that § 2710(d)(7) was beyond its authority. If that effort is to be made, it should be made by Congress, and not by the federal courts. We hold that Ex parte Young is inapplicable to petitioner’s suit against the Governor of Florida, and therefore that suit is barred by the Eleventh Amendment and must be dismissed for a lack of jurisdiction.

IV

The Eleventh Amendment prohibits Congress from making the State of Florida capable of being sued in federal court. The narrow exception to the Eleventh Amendment provided by the Ex parte Young doctrine cannot be used to enforce § 2710(d)(3) because Congress enacted a remedial scheme, § 2710(d)(7), specifically designed for the enforcement of that right. The Eleventh Circuit’s dismissal of petitioner’s suit is hereby affirmed.18

It is so ordered.

1

Class I gaming “means social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as a part of, or in connection with, tribal ceremonies or celebrations,” 25 U. S. C. § 2703(6), and is left by the Act to “the exclusive jurisdiction of the Indian tribes,” § 2710(a)(1).

Class II gaming is more extensively defined to include bingo, games similar to bingo, nonbanking card games not illegal under the laws of the State, and card games actually operated in particular States prior to the passage of the Act. See § 2703(7). Banking card games, electronic games of chance, and slot machines are expressly excluded from the scope of class II gaming. § 2703(B). The Act allows class II gaming where the State “permits such gaming for any purpose by any person, organization or entity,” and the “governing body of the Indian tribe adopts an ordinance or resolution which is approved by the Chairman” of the National Indian Gaming Commission. § 2710(b)(1). Regulation of class II gaming contemplates a federal role, but places primary emphasis on tribal self-regulation. See §§ 2710(c)(8) — (6).

2

Sections 2710(d)(7)(B)(ii)-(vii) provide in full:.

“(ii) In any action described in subparagraph (A)(i), upon the introduction of evidence by an Indian tribe that—

“(I) a Tribal-State compact has not been entered into under paragraph (3), and

“(II) the State did not respond to the request of the Indian tribe to negotiate such a compact or did not respond to such request in good faith, the burden of proof shall be upon the State to prove that the State has negotiated with the Indian tribe in good faith to conclude a Tribal-State compact governing the conduct of gaming activities.

“(iii) If, in any action described in subparagraph (A)(i), the court finds that the State has failed to negotiate in good faith with the Indian tribe to conclude a Tribal-State compact governing the conduct of gaming activities, the court shall order the State and the Indian Tribe to conclude such a compact within a 60-day period. In determining in such an action whether a State has negotiated in good faith, the court—

“(I) may take into account the public interest, public safety, criminality, financial integrity, and adverse economic impacts on existing gaming activities, and

“(II) shall consider any demand by the State for direct taxation of the Indian tribe or of any Indian lands as evidence that the State has not negotiated in good faith.

“(iv) If a State and an Indian tribe fail to conclude a Tribal-State compact . . . within the 60-day period provided in the order of a court issued under clause (iii), the Indian tribe and the State shall each submit to a mediator appointed by the court a proposed compact that represents their last best offer for a compact. The mediator shall select from the two proposed compacts the one which best comports with the terms of this chapter and any other applicable Federal law and with the findings and order of the court.

“(v) The mediator appointed by the court under clause (iv) shall submit to the State and the Indian tribe the compact selected by the mediator under clause (iv).

“(vi) If a State consents to a proposed compact during the 60-day period beginning on the date on which the proposed compact is submitted by the mediator to the State under clause (v), the proposed compact shall be treated as a Tribal-State compact entered into under paragraph (3).

“(vii) If the State does not consent during the 60-day period described in clause (vi) to a proposed compact submitted by a mediator under clause (v), the mediator shall notify the Secretary and the Secretary shall prescribe, in consultation with the Indian tribe, procedures—

“(I) which are consistent with the proposed compact selected by the mediator under clause (iv), the provisions of this chapter, and the relevant provisions of the laws of the State, and

“(II) under which class III gaming may be conducted on the Indian lands over which the.Indian tribe has jurisdiction.”

3

The Eleventh Circuit consolidated petitioner’s appeal with an appeal from another suit brought under § 2710(d)(7)(A)(i) by a different Indian tribe. Although the District Court in that ease had granted the defendants’ motions to dismiss, the legal issues presented by the two appeals were virtually identical. See Poarch Band of Creek Indians v. Alabama, 776 F. Supp. 550 (SD Ala. 1991) (Eleventh Amendment bars suit against State), and 784 F. Supp. 1549 (SD Ala. 1992) (Eleventh Amendment bars suit against Governor).

4

Following its conclusion that petitioner’s suit should be dismissed, the Court of Appeals went on to consider how § 2710(d)(7) would operate in the wake of its decision. The court decided that those provisions of § 2710(d)(7) that were problematic could be severed from the rest of the section, and read the surviving provisions of § 2710(d)(7) to provide an Indian tribe with immediate recourse to the Secretary of the Interior from the dismissal of a suit against a State. 11 F. 3d 1016, 1029 (1994).

5

Respondents filed a cross-petition, No. 94-219, challenging only the Eleventh Circuit’s modification of § 2710(d)(7), see n. 4, supra. That petition is still pending.

6

While the appeal was pending before the Eleventh Circuit, the District Court granted respondents’ earlier filed summary judgment motion, finding that Florida had fulfilled its obligation under the Act to negotiate in good faith. The Eleventh Circuit has stayed its review of that decision pending the disposition of this ease.

7

E.g., North Carolina v. Temple, 134 U. S. 22, 30 (1890); Fitts v. McGhee, 172 U. S. 516, 524 (1899); Bell v. Mississippi, 177 U. S. 693 (1900); Smith v. Reeves, 178 U. S. 436, 446 (1900); Palmer v. Ohio, 248 U. S. 32, 34 (1918); Duhne v. New Jersey, 251 U. S. 311, 313 (1920); Ex parte New York, 256 U. S. 490, 497 (1921); Missouri v. Fiske, 290 U. S. 18, 26 (1933); Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 51 (1944); Ford Motor Co. v. Department of Treasury of Ind., 323 U. S. 459, 464 (1945); Georgia Railroad & Banking Co. v. Redwine, 342 U. S. 299, 304, n. 13 (1952); Parden v. Terminal Railway of Ala. Docks Dept., 377 U. S. 184, 186 (1964); United States v. Mississippi, 380 U. S. 128, 140 (1965); Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279, 280 (1973); Edelman v. Jordan, 415 U. S. 651, 662-663 (1974); Fitzpatrick v. Bitzer, 427 U. S. 445 (1976); Cory v. White, 457 U. S. 85 (1982); Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 97-100 (1984); Atascadero State Hospital v. Scanlon, 473 U. S. 234, 237-238 (1985); Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 472-474 (1987) (plurality opinion); Dellmuth v. Muth, 491 U. S. 223, 227-229, and n. 2 (1989); Port Authority Trans-Hudson Corp. v. Feeney, 495 U. S. 299, 304 (1990); Blatchford v. Native Village of Noatak, 501 U. S. 775, 779 (1991); Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 144 (1993).

8

See Ponca Tribe of Oklahoma v. Oklahoma, 37 F. 3d 1422, 1427-1428 (CA10 1994), cert. pending, No. 94-1029; Spokane Tribe v. Washington, 28 F. 3d 991, 994-995 (CA9 1994); Cheyenne River Sioux Tribe v. South Dakota, 3 F. 3d 273, 280-281 (CA8 1993); Ponca Tribe of Oklahoma v. Oklahoma, 834 F. Supp. 1341, 1345 (WD Okla. 1992); Maxam v. Lower Sioux Indian Community of Minnesota, 829 F. Supp. 277 (D. Minn. 1993); Kickapoo Tribe of Indians v. Kansas, 818 F. Supp. 1423, 1427 (D. Kan. 1993); 801 F. Supp. 655, 658 (SD Fla. 1992) (case below); Sault Ste. Marie Tribe of Chippewa Indians v. Michigan, 800 F. Supp. 1484, 1488-1489 (WD Mich. 1992); Poarch Band of Creek Indians v. Alabama, 776 F. Supp., at 557-558.

9

Justice Souter, in his dissenting opinion, argues that in order to avoid a constitutional question, we should interpret the Act to provide only a suit against state officials rather than a suit against the State itself. Post, at 182. But in light of the plain text of § 2710(d)(7)(B), we disagree with the dissent’s assertion that the Act can reasonably be read in that way. “We cannot press statutory construction ‘to the point of disingenuous evasion’ even to avoid a constitutional question.” See United States v. Locke, 471 U. S. 84, 96 (1985), quoting George Moore Ice Cream Co. v. Rose, 289 U. S. 373, 379 (1933) (Cardozo, J.). We already have found the clear statement rule satisfied, and that finding renders the preference for avoiding a constitutional question inapplicable.

10

Respondents also contend that the Act mandates state regulation of Indian gaming and therefore violates the Tenth Amendment by allowing federal officials to avoid political accountability for those actions for which they are in fact responsible. See New York v. United States, 505 U. S. 144 (1992). This argument was not considered below by either the Eleventh Circuit or the District Court, and is not fairly within the question presented. Therefore we do not consider it here. See this Court’s Rule 14.1; Yee v. Escondido, 503 U. S. 519 (1992).

11

Unless otherwise indicated, all references to the dissent are to the dissenting opinion authored by Justice Souter.

12

We note here also that the dissent quotes selectively from the Framers’ statements that it references. The dissent cites the following, for instance, as a statement made by Madison: “[T]he Constitution *give[s] a citizen a right to be heard in the federal courts; and if a state should condescend to be a party, this court may take cognizance of it.’ ” Post, at 143 (opinion of Souter, J.). But that statement, perhaps ambiguous when read in isolation, was preceded by the following: “[j]urisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal courts. It appears to me that this can have no operation but this:” See 3 J. Elliot, Debates on the Federal Constitution 533 (2d ed. 1836).

13

Although the absence of any discussion dealing with federal-question jurisdiction is therefore unremarkable, what is notably lacking in the Framers’ statements is any mention of Congress’ power to abrogate the States’ immunity. The absence of any discussion of that power is particularly striking in light of the fact that the Framers virtually always were very specific about the exception to state sovereign immunity arising from a State’s consent to suit. See, e. g., The Federalist No. 81, pp. 487-488 (C. Rossiter ed. 1961) (A. Hamilton) (“It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.... Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States and the danger intimated must be merely ideal”) (emphasis in the original); 3 Elliot, supra, at 533 (J. Madison) (“It is not in the power of individuals to call any state into court.... [The Constitution] can have no operation but this:... if a state should condescend to be a party, this court may take cognizance of it”).

14

This argument wholly disregards other methods of ensuring the States’ compliance with federal law: The Federal Government can bring suit in federal court against a State, see, e. g., United States v. Texas, 143 U. S. 621, 644-645 (1892) (finding such power necessary to the “permanence of the Union”); an individual can bring suit against a state officer in order to ensure that the officer’s conduct is in compliance with federal law, see, e. g., Ex parte Young, 209 U. S. 123 (1908); and this Court is empowered to review a question of federal law arising from a state-court decision where a State has consented to suit, see, e. g., Cohens v. Virginia, 6 Wheat. 264 (1821).

15

Justice Stevens, in his dissenting opinion, makes two points that merit separate response. First, he contends that no distinction may be drawn between state sovereign immunity and the immunity enjoyed by state and federal officials. But even assuming that the latter has no constitutional foundation, the distinction is clear: The Constitution specifically recognizes the States as sovereign entities, while government officials enjoy no such constitutional recognition. Second, Justice Stevens criticizes our prior decisions applying the “clear statement rule,” suggesting that they were based upon an understanding that Article I allowed Congress to abrogate state sovereign immunity. His criticism, however, ignores the fact that many of those cases arose in the context of a statute passed under the Fourteenth Amendment, where Congress’ authority to abrogate is undisputed. See, e. g., Quern v. Jordan, 440 U. S. 332 (1979). And a more fundamental flaw of the criticism is its failure to recognize that both the doctrine requiring avoidance of constitutional questions, and principles of federalism, require us always to apply the clear statement rule before we consider the constitutional question whether Congress has the power to abrogate.

16

Justice Stevens understands our opinion to prohibit federal jurisdiction over suits to enforce the bankruptcy, copyright, and antitrust laws against the States. He notes that federal jurisdiction over those statutory schemes is exclusive, and therefore concludes that there is “no remedy” for state violations of those federal statutes. Post, at 78, n. 1.

That conclusion is exaggerated both in its substance and in its significance. First, Justice Stevens’ statement is misleadingly overbroad. We have already seen that several avenues remain open for ensuring state compliance with federal law. See n. 14, supra. Most notably, an individual may obtain injunctive relief under Ex parte Young in order to remedy a state officer’s ongoing violation of federal law. See n. 14, supra. Second, contrary to the implication of Justice Stevens’ conclusion, it has not been widely thought that the federal antitrust, bankruptcy, or copyright statutes abrogated the States’ sovereign immunity. This Court never has awarded relief against a State under any of those statutory schemes; in the decision of this Court that Justice Stevens cites (and somehow labels “incompatible” with our decision here), we specifically reserved the question whether the Eleventh Amendment would allow a suit to enforce the antitrust laws against a State. See Goldfarb v. Virginia State Bar, 421 U. S. 773, 792, n. 22 (1975). Although the copyright and bankruptcy laws have existed practically since our Nation’s inception, and the antitrust laws have been in force for over a century, there is no established tradition in the lower federal courts of allowing enforcement of those federal statutes against the States. Notably, both Court of Appeals decisions cited by Justice Stevens were issued last year and were based upon Union Gas. See Chavez v. Arte Publico Press, 59 F. 3d 539 (CA5 1995); Matter of Merchants Grain, Inc. v. Mahern, 59 F. 3d 630 (CA7 1995). Indeed, while the. Court of Appeals in Chavez allowed the suit against the State to go forward, it expressly recognized that its holding was unprecedented. See Chavez, 59 F. 3d, at 546 (“[W]e are aware of no case that specifically holds that laws passed pursuant to the Copyright Clause can abrogate State immunity”).

17

Contrary to the claims of the dissent, we do not hold that Congress cannot authorize federal jurisdiction under Ex parte Young over a cause of action with a limited remedial scheme. We find only that Congress did not intend that result in the Indian Gaming Regulatory Act. Although one might argue that the text of §2710(d)(7)(A)(i), taken alone, is broad enough to encompass both a suit against a State (under an abrogation theory) and a suit against a state official (under an Ex parte Young theory), subsection (A)(i) of § 2710(d)(7) cannot be read in isolation from subsections (B)(ii)-(vii), which repeatedly refer exclusively to “the State.” See supra, at 56-57. In this regard, § 2710(d)(7) stands in contrast to the statutes cited by the dissent as examples where lower courts have found that Congress implicitly authorized suit under Ex parte Young. Compare 28 U. S. C. § 2254(e) (federal court authorized to issue an “order directed to an appropriate State official”); 42 U. S. C. § 11001 (1988 ed.) (requiring “the Governor” of a State to perform certain actions and holding “the Governor” responsible for nonperformance); 33 U. S. C. § 1365(a) (authorizing a suit against “any person” who is alleged to be in violation of relevant water pollution laws). Similarly the duty imposed by the Act — to “negotiate ... in good faith to enter into” a compact with another sovereign— stands distinct in that it is not of the sort likely to be performed by an individual state executive officer or even a group of officers. Cf. State ex rel. Stephan v. Finney, 836 P. 2d 1169, 251 Kan. 559 (1992) (Governor of Kansas may negotiate but may not enter into compact without grant of power from legislature).

18

We do not here consider, and express no opinion upon, that portion of the decision below that provides a substitute remedy for a tribe bringing suit. See 11 F. 3d, at 1029.

Justice Stevens,dissenting.

This case is about power — the power of the Congress of the United States to create a private federal cause of action against a State, or its Governor, for the violation of a federal right. In Chisholm v. Georgia, 2 Dall. 419 (1793), the entire Court — including Justice Iredell whose dissent provided the blueprint for the Eleventh Amendment — assumed that Congress had such power. In Hans v. Louisiana, 134 U. S. 1 (1890) — a case the Court purports to follow today — the Court again assumed that Congress had such power. In Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), and v. Union Gas Co., 491 U. S. 1, 24 (1989) (Stevens, J., concurring), the Court squarely held that Congress has such power. In a series of cases beginning with Atascadero State Hospital v. Scanlon, 478 U. S. 234, 238-289 (1985), the Court formulated a special “clear statement rule” to determine whether specific Acts of Congress contained an effective exercise of that power. Nevertheless, in a sharp break with the past, today the Court holds that with the narrow and illogical exception of statutes enacted pursuant to the Enforcement Clause of the Fourteenth Amendment, Congress has no such power.

The importance of the majority’s decision to overrule the Court’s holding in Pennsylvania v. Union Gas Co. cannot be overstated. The majority’s opinion does not simply preclude Congress from establishing the rather curious statutory scheme under which Indian tribes may seek the aid of a federal court to secure a State’s good-faith negotiations over gaming regulations. Rather, it prevents Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy.1

There may be room for debate over whether, in light of the Eleventh Amendment, Congress has the power to ensure that such a cause of action may be enforced in federal court by a citizen of another State or a foreign citizen. There can be no serious debate, however, over whether Congress has the power to ensure that such a cause of action may be brought by a citizen of the State being sued. Congress’ authority in that regard is clear.

As Justice Souter has convincingly demonstrated, the Court’s contrary conclusion is profoundly misguided. Despite the thoroughness of his analysis, supported by sound reason, history, precedent, and strikingly uniform scholarly commentary, the shocking character of the majority’s affront to a coequal branch of our Government merits additional comment.

I

For the purpose of deciding this case, I can readily assume that Justice Iredell’s dissent in Chisholm v. Georgia, 2 Dall., at 429-450, and the Court’s opinion in Hans v. Louisiana, 134 U. S. 1 (1890), correctly stated the law that should govern our decision today. As I shall explain, both of those opinions relied on an interpretation of an Act of Congress rather than a want of congressional power to authorize a suit against the State.

In concluding that the federal courts could not entertain Chisholm’s action against the State of Georgia, Justice Iredell relied on the text of the Judiciary Act of 1789, not the State’s assertion that Article III did not extend the judicial power to suits against unconsenting States. Justice Iredell argued that, under Article III, federal courts possessed only such jurisdiction as Congress had provided, and that the Judiciary Act expressly limited federal-court jurisdiction to that which could be exercised in accordance with “ 'the principles and usages of law.’ ” Chisholm v. Georgia, 2 Dall., at 434 (quoting § 14 of the Judiciary Act of 1789). He reasoned that the inclusion of this phrase constituted a command to the federal courts to construe their jurisdiction in light of the prevailing common law, a background legal regime that he believed incorporated the doctrine of sovereign immunity. Chisholm v. Georgia, 2 Dall., at 434-436 (dissenting opinion).2

Because Justice Iredell believed that the expansive text of Article III did not prevent Congress from imposing this common-law limitation on federal-court jurisdiction, he concluded that judges had no authority to entertain a suit against an unconsenting State.3 At the same time, although he acknowledged that the Constitution might allow Congress to extend federal-court jurisdiction to such an action, he concluded that the terms of the Judiciary Act of 1789 plainly had not done so.

“[Congress’] direction, I apprehend, we cannot supersede, because it may appear to us not sufficiently extensive. If it be not, we must wait till other remedies are provided by the same authority. From this it is plain that the Legislature did not chuse to leave to our own discretion the path to justice, but has prescribed one of its own. In doing so, it has, I think, wisely, referred us to principles and usages of law already well known, and by their precision calculated to guard against that innovating spirit of Courts of Justice, which the Attorney-General in another case reprobated with so much warmth, and with whose sentiments in that particular, I most cordially join.” Id., at 434 (emphasis added).

For Justice Iredell then, it was enough to assume that Article III permitted Congress to impose sovereign immunity as a jurisdictional limitation; he did not proceed to resolve the further question whether the Constitution went so far as to prevent Congress from withdrawing a State’s immunity.4 Thus, it would be ironic to construe the Chisholm dissent as precedent for the conclusion that Article III limits Congress’ power to determine the scope of a State’s sovereign immunity in federal court.

The precise holding in Chisholm is difficult to state because each of the Justices in the majority wrote his own opinion. They seem to have held, however, not that the Judiciary Act of 1789 precluded the defense of sovereign immunity, but that Article III of the Constitution itself required the Supreme Court to entertain original actions against unconsenting States.5 I agree with Justice Iredell that such a construction of Article III is incorrect; that Article should not then have been construed, and should not now be construed, to prevent Congress from granting States a sovereign immunity defense in such cases.6 That reading of Article III, however, explains why the majority’s holding in Chisholm could not have been reversed by a simple statutory amendment adopting Justice Iredell’s interpretation of the Judiciary Act of 1789. There is a special irony in the fact that the error committed by the Chisholm majority was its decision that this Court, rather than Congress, should define the scope of the sovereign immunity defense. That, of course, is precisely the same error the Court commits today.

In light of the nature of the disagreement between Justice Iredell and his colleagues, Chisholm’s holding could have been overturned by simply amending the Constitution to restore to Congress the authority to recognize the doctrine. As it was, the plain text of the Eleventh Amendment would seem to go further and to limit the judicial power itself in a certain class of cases. In doing so, however, the Amendment’s quite explicit text establishes only a partial bar to a federal court’s power to entertain a suit against a State.7

Justice Brennan has persuasively explained that the Eleventh Amendment’s jurisdictional restriction is best understood to apply only to suits premised on diversity jurisdiction, see Atascadero State Hospital v. Scanlon, 473 U. S., at 247 (dissenting opinion), and Justice Scalia has agreed that the plain text of the Amendment cannot be read to apply to federal-question cases. See Pennsylvania v. Union Gas, 491 U. S., at 31 (dissenting opinion).8 Whatever the precise dimensions of the Amendment, its express terms plainly do not apply to all suits brought against unconsenting States.9 The question thus becomes whether the relatively modest jurisdictional bar that the Eleventh Amendment imposes should be understood to reveal that a more general jurisdictional bar implicitly inheres in Article III.

The language of Article III certainly gives no indication that such an implicit bar exists. That provision’s text specifically provides for federal-court jurisdiction over all cases arising under federal law. Moreover, as I have explained, Justice Iredell’s dissent argued that it was the Judiciary Act of 1789, not Article III, that prevented the federal courts from entertaining Chisholm’s diversity action against Georgia. Therefore, Justice Iredell’s analysis at least suggests that it was by no means a fixed view at the time of the founding that Article III prevented Congress from rendering States suable in federal court by their own citizens. In sum, little more than speculation justifies the conclusion that the Eleventh Amendment’s express but partial limitation on the scope of Article III reveals that an implicit but more general one was already in place.

II

The majority appears to acknowledge that one cannot deduce from either the text of Article III or the plain terms of the Eleventh Amendment that the judicial power does not extend to a congressionally created cause of action against a State brought by one of that State’s citizens. Nevertheless, the majority asserts that precedent compels that same conclusion. I disagree. The majority relies first on our decision in Hans v. Louisiana, 134 U. S. 1 (1890), which involved a suit by a citizen of Louisiana against that State for a claimed violation of the Contracts Clause. The majority suggests that by dismissing the suit, Hans effectively held that federal courts have no power to hear federal-question suits brought by same-state plaintiffs.

Hans does not hold, however, that the Eleventh Amendment, or any other constitutional provision, precludes federal courts from entertaining actions brought by citizens against their own States in the face of contrary congressional direction. As I have explained before, see Pennsylvania v. Union Gas Co., 491 U. S., at 25-26 (Stevens, J., concurring), and as Justice Souter effectively demonstrates, Hans instead reflects, at the most, this Court’s conclusion that, as a matter of federal common law, federal courts should decline to entertain suits against unconsenting States. Because Hans did not announce a constitutionally mandated jurisdictional bar, one need not overrule Hans, or even question its reasoning, in order to conclude that Congress may direct the federal courts to reject sovereign immunity in those suits not mentioned by the Eleventh Amendment. Instead, one need only follow it.

Justice Bradley’s somewhat cryptic opinion for the Court in Hans relied expressly on the reasoning of Justice Iredell’s dissent in Chisholm, which, of course, was premised on the view that the doctrine of state sovereign immunity was a common-law rule that Congress had directed federal courts to respect, not a constitutional immunity that Congress was powerless to displace. For that reason, Justice Bradley explained that the State’s immunity from suit by one of its own citizens was based not on a constitutional rule but rather on the fact that Congress had not, by legislation, attempted to overcome the common-law presumption of sovereign immunity. His analysis so clearly supports the position rejected by the majority today that it is worth quoting at length.

“But besides the presumption that no anomalous and unheard of proceedings or suits were intended to be raised up by the Constitution — anomalous and unheard of when the Constitution was adopted — an additional reason why the jurisdiction claimed for the Circuit Court does not exist, is the language of the act of Congress by which its jurisdiction is conferred. The words are these: ‘The circuit courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity,... arising under the Constitution or laws of the United States, or treaties,’ etc. — ‘Concurrent with the courts of the several States.’ Does not this qualification show that Congress, in legislating to carry the Constitution into effect, did not intend to invest its. courts with any new and strange jurisdictions? The state courts have no power to entertain suits by individuals against a State without its consent. Then how does the Circuit Court, having only concurrent jurisdiction, acquire any such power? It is true that the same qualification existed in the judiciary act of 1789, which was before the court in Chisholm v. Georgia, and the majority of the court did not think that it was sufficient to limit the jurisdiction of the Circuit Court. Justice Iredell thought differently. In view of the manner in which that decision was received by the country, the adoption of the Eleventh Amendment, the light of history and the reason of the thing, we think we are at liberty to prefer Justice Iredell’s views in this regard.” Hans v. Louisiana, 134 U. S., at 18-19.

As this passage demonstrates, Hans itself looked to see whether Congress had displaced the presumption that sovereign immunity obtains. Although the opinion did go to great lengths to establish the quite uncontroversial historical proposition that unconsenting States generally were not subject to suit, that entire discussion preceded the opinion’s statutory analysis. See id., at 10-18. Thus, the opinion’s thorough historical investigation served only to establish a presumption against jurisdiction that Congress must overcome, not an inviolable jurisdictional restriction that inheres in the Constitution itself.

Indeed, the very fact that the Court characterized the doctrine of sovereign immunity as a “presumption” confirms its assumption that it could be displaced. The Hans Court’s inquiry into congressional intent would have been wholly inappropriate if it had believed that the doctrine of sovereign immunity was a constitutionally inviolable jurisdictional limitation. Thus, Hans provides no basis for the majority’s conclusion that Congress is powerless to make States suable in cases not mentioned by the text of the Eleventh Amendment. Instead, Hans provides affirmative support for the view that Congress may create federal-court jurisdiction over private causes of action against unconsenting States brought by their own citizens.

It is true that the underlying jurisdictional statute involved in this case, 28 U. S. C. § 1331, does not itself purport to direct federal courts to ignore a State’s sovereign immunity any more than did the underlying jurisdictional statute discussed in Hans, the Judiciary Act of 1875. However, unlike in Hans, in this case Congress has, by virtue of the Indian Gaming Regulatory Act, affirmatively manifested its intention to “invest its courts with” jurisdiction beyond the limits set forth in the general jurisdictional statute. 134 U. S., at 18. By contrast, because Hans involved only an implied cause of action based directly on the Constitution, the Judiciary Act of 1875 constituted the sole indication as to whether Congress intended federal-court jurisdiction to extend to a suit against an unconsenting State.10

Given the nature of the cause of action involved in Hans, as well as the terms of the underlying jurisdictional statute, the Court’s decision to apply the common-law doctrine of sovereign immunity in that case clearly should not control the outcome here. The reasons that may support a federal court’s hesitancy to construe a judicially crafted constitutional remedy narrowly out of respect for a State’s sovereignty do not bear on whether Congress may preclude a State’s invocation of such a defense when it expressly establishes a federal remedy for the violation of a federal right.

No one has ever suggested that Congress would be powerless to displace the other common-law immunity doctrines that this Court has recognized as appropriate defenses to certain federal claims such as the judicially fashioned remedy in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). See Mitchell v. Forsyth, 472 U.S. 511 (1985); Harlow v. Fitzgerald, 457 U. S. 800 (1982). Similarly, our cases recognizing qualified officer immunity in 42 U. S. C. §1983 actions rest on the conclusion that, in passing that statute, Congress did not intend to displace the common-law immunity that officers would have retained under suits premised solely on the general jurisdictional statute. See Tower v. Glover, 467 U. S. 914, 920 (1984). For that reason, the federal common law of officer immunity that Congress meant to incorporate, not a contrary state immunity, applies in § 1983 cases. See Martinez v. California, 444 U. S. 277, 284 (1980). There is no reason why Congress’ undoubted power to displace those common-law immunities should be either greater or lesser than its power to displace the common-law sovereign immunity defense.

Some of our precedents do state that the sovereign immunity doctrine rests on fundamental constitutional “postulates” and partakes of jurisdictional aspects rooted in Article III. See ante, at 67-70. Most notably, that reasoning underlies this Court’s holding in Principality of Monaco v. Mississippi, 292 U. S. 313 (1934).

Monaco is a most inapt precedent for the majority’s holding today. That case barred a foreign sovereign from suing a State in an equitable state-law action to recover payments due on state bonds. It did not, however, involve a claim based on federal law. Instead, the case concerned a purely state-law question to which the State had interposed a federal defense. Id., at 317. Thus, Monaco reveals little about the power of Congress to create a private federal cause of action to remedy a State’s violation of federal law.

Moreover, although Monaco attributes a quasi-constitutional status to sovereign immunity, even in cases not covered by the Eleventh Amendment’s plain text, that characterization does not constitute precedent for the proposition that Congress is powerless to displace a State’s immunity. Our abstention doctrines have roots in both the Tenth Amendment and Article III, and thus may be said to rest on constitutional “postulates” or to partake of jurisdictional aspects. Yet it has not been thought that the Constitution would prohibit Congress from barring federal courts from abstaining. The majority offers no reason for making the federal common-law rule of sovereign immunity less susceptible to congressional displacement than any other quasi-jurisdictional common-law rule.

In this regard, I note that Monaco itself analogized sovereign immunity to the prudential doctrine that “controversies” identified in Article III must be “justiciable” in order to be heard by federal courts. Id., at 329. The justiciability doctrine is a prudential rather than a jurisdictional one, and thus Congress’ clearly expressed intention to create federal jurisdiction over a particular Article III controversy necessarily strips federal courts of the authority to decline jurisdiction on justiciability grounds. See Allen v. Wright, 468 U. S. 737, 791 (1984) (Stevens, J., dissenting); Flast v. Cohen, 392 U. S. 83, 100-101 (1968). For that reason, Monaco, by its own terms, fails to resolve the question before us.11

More generally, it is quite startling to learn that the reasoning of Hans and Monaco (even assuming that it did not undermine the majority’s view) should have a stare decisis effect on the question whether Congress possesses the authority to provide a federal forum for the vindication of a federal right by a citizen against its own State. In light of the Court’s development of a “clear-statement” line of jurisprudence, see, e. g., Atascadero State Hospital v. Scanlon, 473 U. S., at 238-289; Hoffman v. Connecticut Dept. of Income Maintenance, 492 U. S. 96 (1989), I would have thought that Hans and Monaco had at least left open the question whether Congress could permit the suit we consider here. Our clear-statement cases would have been all but unintelligible if Hans and Monaco had already established that Congress lacked the constitutional power to make States suable in federal court by individuals no matter how clear its intention to do so.12

Finally, the particular nature of the federal question involved in Hans renders the majority’s reliance upon its rule even less defensible. Hans deduced its rebuttable presumption in favor of sovereign immunity largely on the basis of its extensive analysis of cases holding that the sovereign could not be forced to make good on its debts via a private suit. See Louisiana v. Jumel, 107 U. S. 711 (1883); Hagood v. Southern, 117 U. S. 52 (1886); In re Ayers, 123 U. S. 443 (1887). Because Hans, like these other cases, involved a suit that attempted to make a State honor its debt, its holding need not be read to stand even for the relatively limited proposition that there is a presumption in favor of sovereign immunity in all federal-question cases.13

In Hans, the plaintiff asserted a Contracts Clause claim against his State and thus asserted a federal right. To show that Louisiana had impaired its federal obligation, however, Hans first had to demonstrate that the State had entered into an enforceable contract as a matter of state law. That Hans chose to bring his claim in federal court as a Contract Clause action could not change the fact that he was, at bottom, seeking to enforce a contract with the State. See Burnham, Taming the Eleventh Amendment Without Overruling Hans v. Louisiana, 40 Case W. Res. L. Rev. 931 (1990).

Because Hans’ claimed federal right did not arise independently of state law, sovereign immunity was relevant to the threshold state-law question of whether a valid contract existed.14 Hans expressly pointed out, however, that an individual who could show that he had an enforceable contract under state law would not be barred from bringing suit in federal court to prevent the State from impairing it.

“To avoid misapprehension it may be proper to add that, although the obligations of a State rest for their performance upon its honor and good faith, and cannot be made the subject of judicial cognizance unless the State consents to be sued, or comes itself into court; yet where property or rights are enjoyed under a grant or contract made by a State, they cannot wantonly be invaded. Whilst the State cannot be compelled by suit to perform its contracts, any attempt on its part to violate property or rights acquired under its contracts, may be judicially resisted; and any law impairing the obligation of contracts under which such property or rights are held is void and powerless to affect their enjoyment.” Hans v. Louisiana, 134 U. S., at 20-21.

That conclusion casts doubt on the absolutist view that Hans definitively establishes that Article III prohibits federal courts from entertaining federal-question suits brought against States by their own citizens. At the very least, Hans suggests that such suits may be brought to enjoin States from impairing existing contractual obligations.

The view that the rule of Hans is more substantive than jurisdictional comports with Hamilton’s famous discussion of sovereign immunity in The Federalist Papers. Hamilton offered his view that the federal judicial power would not extend to suits against unconsenting States only in the context of his contention that no contract with a State could be enforceable against the State’s desire. He did not argue that a State’s immunity from suit in federal court would be absolute.

“[T]here is no color to pretend that the State governments would, by the adoption of [the plan of convention], be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will.” The Federalist No. 81, p. 488 (C. Rossiter ed. 1961).

Here, of course, no question of a State’s contractual obligations is presented. The Seminole Tribe’s only claim is that the State of Florida has failed to fulfill a duty to negotiate that federal statutory law alone imposes. Neither the Federalist Papers, nor Hans, provides support for the view that such a claim may not be heard in federal court.

III

In reaching my conclusion that the Constitution does not prevent Congress from making the State of Florida suable in federal court for violating one of its statutes, I emphasize that I agree with the majority that in all cases to which the judicial power does not extend — either because they are not within any category defined in Article III or because they are within the category withdrawn from Article III by the Eleventh Amendment — Congress lacks the power to confer jurisdiction on the federal courts. As I have previously insisted: “A statute cannot amend the Constitution.” Pennsylvania v. Union Gas Co., 491 U. S., at 24.

It was, therefore, misleading for the Court in Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), to imply that § 5 of the Fourteenth Amendment authorized Congress to confer jurisdiction over cases that had been withdrawn from Article III by the Eleventh Amendment. Because that action had been brought by Connecticut citizens against officials of the State of Connecticut, jurisdiction was not precluded by the Eleventh Amendment. As Justice Brennan pointed out in his concurrence, the congressional authority to enact the provisions at issue in the case was found in the Commerce Clause and provided a sufficient basis for refusing to allow the State to “avail itself of the nonconstitutional but ancient doctrine of sovereign immunity.” Id., at 457 (opinion concurring in judgment).

In confronting the question whether a federal grant of jurisdiction is within the scope of Article III, as limited by the Eleventh Amendment, I see no reason to distinguish among statutes enacted pursuant to the power granted to Congress to regulate commerce among the several States, and with the Indian tribes, Art. I, §8, cl. 3, the power to establish uniform laws on the subject of bankruptcy, Art. I, § 8, cl. 4, the power to promote the progress of science and the arts by granting exclusive rights to authors and inventors, Art. I, § 8, cl. 8, the power to enforce the provisions of the Fourteenth Amendment, § 5, or indeed any other provision of the Constitution. There is no language anywhere in the constitutional text that authorizes Congress to expand the borders of Article III jurisdiction or to limit the coverage of the Eleventh Amendment.

The Court’s holdings in Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), and Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989), do unquestionably establish, however, that Congress has the power to deny the States and their officials the right to rely on the nonconstitutional defense of sovereign immunity in an action brought by one of their own citizens. As the opinions in the latter case demonstrate, there can be legitimate disagreement about whether Congress intended a particular statute to authorize litigation against a State. Nevertheless, the Court there squarely held that the Commerce Clause was an adequate source of authority for such a private remedy. In a rather novel rejection of the doctrine of stare decisis, the Court today demeans that holding by repeatedly describing it as a “plurality decision” because Justice White did not deem it necessary to set forth the reasons for his vote. As Justice Souter’s opinion today demonstrates, the arguments in support of Justice White’s position are so patent and so powerful that his actual vote should be accorded full respect. Indeed, far more significant than the “plurality” character of the three opinions supporting the holding in Union Gas is the fact that the issue confronted today has been squarely addressed by a total of 13 Justices, 8 of whom cast their votes with the so-called “plurality.”15

The fundamental error that continues to lead the Court astray is its failure to acknowledge that its modern embodiment of the ancient doctrine of sovereign immunity “has absolutely nothing to do with the limit on judicial power contained in the Eleventh Amendment.” Id., at 25 (Stevens, J., concurring). It rests rather on concerns of federalism and comity that merit respect but are nevertheless, in eases such as the one before us, subordinate to the plenary power of Congress.

IV

As I noted above, for the purpose of deciding this case, it is not necessary to question the wisdom of the Court’s decision in Hans v. Louisiana. Given the absence of precedent for the Court’s dramatic application of the sovereign immunity doctrine today, it is nevertheless appropriate to identify the questionable heritage of the doctrine and to suggest that there are valid reasons for limiting, or even rejecting that doctrine altogether, rather than expanding it.

Except insofar as it has been incorporated into the text of the Eleventh Amendment, the doctrine is entirely the product of judge-made law. Three features of its English ancestry make it particularly unsuitable for incorporation into the law of this democratic Nation.

First, the assumption that it could be supported by a belief that “the King can do no wrong” has always been absurd; the bloody path trod by English monarchs both before and after they reached the throne demonstrated the fictional character of any such assumption. Even if the fiction had been acceptable in Britain, the recitation in the Declaration of Independence of the wrongs committed by George III made that proposition unacceptable on this side of the Atlantic.

Second, centuries ago the belief that the monarch served by divine right made it appropriate to assume that redress for wrongs committed by the sovereign should be the exclusive province of still higher authority.16 While such a justification for a rule that immunized the sovereign from suit in a secular tribunal might have been acceptable in a jurisdiction where a particular faith is endorsed by the government, it should give rise to skepticism concerning the legitimacy of comparable rules in a society where a constitutional wall separates the State from the Church.

Third, in a society where noble birth can justify preferential treatment, it might have been unseemly to allow a commoner to hale the monarch into court. Justice Wilson explained how foreign such a justification is to this Nation’s principles. See Chisholm v. Georgia, 2 Dall., at 455. Moreover, Chief Justice Marshall early on laid to rest the view that the purpose of the Eleventh Amendment was to protect a State’s dignity. Cohens v. Virginia, 6 Wheat. 264, 406-407 (1821). Its purpose, he explained, was far more practical.

“That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. . . . We must ascribe the amendment, then, to some other cause than the dignity of a State. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a State, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister States would be creditors to any considerable amount, and there was reason to retain the jurisdiction of the Court in those cases, because it might be essential to the preservation of peace.” Ibid,17

Nevertheless, this Court later put forth the interest in preventing “indignity” as the “very object and purpose of the [Eleventh] Amendment.” In re Ayers, 123 U. S., at 505. That, of course, is an “embarrassingly insufficient” rationale for the rule. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 151 (1993) (Stevens, J., dissenting).

Moreover, I find unsatisfying Justice Holmes’ explanation that “[a] sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” Kawananakoa v. Polyblank, 205 U. S. 349, 353 (1907). As I have explained before, Justice Holmes’ justification fails in at least two respects.

“First, it is nothing more than a restatement of the obvious proposition that a citizen may not sue the sovereign unless the sovereign has violated the citizen’s legal rights. It cannot explain application of the immunity defense in cases like Chisholm, in which it is assumed that the plaintiff’s rights have in fact been violated— and those cases are, of course, the only ones in which the immunity defense is needed. Second, Holmes’s statement does not purport to explain why a general grant of jurisdiction to federal courts should not be treated as an adequate expression of the sovereign’s consent to suits against itself as well as to suits against ordinary litigants.” Stevens, Is Justice Irrelevant?, 87 Nw. U. L. Rev. 1121, 1126 (1993).

In sum, as far as its common-law ancestry is concerned, there is no better reason for the rule of sovereign immunity “than that so it was laid down in the time of Henry IV.” Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). That “reason” for the perpetuation of this ancient doctrine certainly cannot justify the majority’s expansion of it.

In this country the sovereignty of the individual States is subordinate both to the citizenry of each State and to the supreme law of the federal sovereign. For that reason, Justice Holmes’ explanation for a rule that allows a State to avoid suit in its own courts does not even speak to the question whether Congress should be able to authorize a federal court to provide a private remedy for a State’s violation of federal law. In my view, neither the majority’s opinion today, nor any earlier opinion by any Member of the Court, has identified any acceptable reason for concluding that the absence of a State’s consent to be sued in federal court should affect the power of Congress to authorize federal courts to remedy violations of federal law by States or their officials in actions not covered by the Eleventh Amendment’s explicit text.18

While I am persuaded that there is no justification for permanently enshrining the judge-made law of sovereign immunity, I recognize that federalism concerns — and even the interest in protecting the solvency of the States that was at work in Chisholm and Hans — may well justify a grant of immunity from federal litigation in certain classes of cases. Such a grant, however, should be the product of a reasoned decision by the policymaking branch of our Government. For this Court to conclude that timeworn shibboleths iterated and reiterated by judges should take precedence over the deliberations of the Congress of the United States is simply irresponsible.

V

Fortunately, and somewhat fortuitously, a jurisdictional problem that is unmentioned by the Court may deprive its opinion of precedential significance. The Indian Gaming Regulatory Act establishes a unique set of procedures for resolving the dispute between the Tribe and the State. If each adversary adamantly adheres to its understanding of the law, if the District Court determines that the State’s inflexibility constitutes a failure to negotiate in good faith, and if the State thereafter continues to insist that it is acting within its rights, the maximum sanction that the Court can impose is an order that refers the controversy to a member of the Executive Branch of the Government for resolution. 25 U. S. C. § 2710(d)(7)(B). As the Court of Appeals interpreted the Act, this final disposition is available even though the action against the State and its Governor may not be maintained. 11 F. 3d 1016, 1029 (CA11 1994). (The Court does not tell us whether it agrees or disagrees with that disposition.) In my judgment, it is extremely doubtful that the obviously dispensable involvement of the judiciary in the intermediate stages of a procedure that begins and ends in the Executive Branch is a proper exercise of judicial power. See Gordon v. United States, 117 U. S. Appx. 697, 702-703 (1864) (opinion of Taney, C. J.); United States v. Ferreira, 13 How. 40, 48 (1852). It may well follow that the misguided opinion of today’s majority has nothing more than an advisory character. Whether or not that be so, the better reasoning in Justice Souter’s far wiser and far more scholarly opinion will surely be the law one day.

For these reasons, as well as those set forth in Justice Souter’s opinion, I respectfully dissent.

1

See, e. g., Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989) (holding that a federal court may order a State to pay cleanup costs pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980); In re Merchants Grain, Inc., 59 F. 3d 630 (CA7 1995) (holding that the Eleventh Amendment does not bar a bankruptcy court from issuing a money judgment against a State under the Bankruptcy Code); Chavez v. Arte Publico Press, 59 F. 3d 539 (CA5 1995) (holding that a state university could be sued in federal court for infringing an author’s copyright). The conclusion that suits against States may not be brought in federal court is also incompatible with our cases concluding that state entities may be sued for antitrust violations. See, e. g., Goldfarb v. Virginia State Bar, 421 U. S. 773, 791-792 (1975).

As federal courts have exclusive jurisdiction over cases arising under these federal laws, the majority’s conclusion that the Eleventh Amendment shields States from being sued under them in federal court suggests that persons harmed by state violations of federal copyright, bankruptcy, and antitrust laws have no remedy. See Harris & Kenny, Eleventh Amendment Jurisprudence After Atascadero: The Coming Clash With Antitrust, Copyright, and Other Causes of Action Over Which the Federal Courts Have Exclusive Jurisdiction, 37 Emory L. J. 645 (1988).

2

Because Justice Iredell read the Judiciary Act of 1789 to have incorporated the common law, he did not even conclude that Congress would have to make a clear statement in order to override the common law’s recognition of sovereign immunity.

3

Actually, he limited his conclusion to the narrower question whether an action of assumpsit would lie against a State, which he distinguished from the more general question whether a State can ever be sued. Chisholm v. Georgia, 2 Dall. 419, 430 (1793). He did so because he recognized “that in England, certain judicial proceedings not inconsistent with the sovereignty, may take place against the Crown, but that an action of assumpsit will not lie,” and because he had “often found a great deal of confusion to arise from taking too large a view at once.” Ibid.

4

In two sentences at the end of his lengthy opinion, Justice Iredell stated that his then-present view was that the Constitution would not permit a “compulsive suit against a State for the recovery of money.” Id., at 449. In light of Justice Iredell’s express statement that the only question before the Court was the propriety of an individual’s action for assumpsit against a State, an action which, of course, results in a money judgment, see n. 2, supra, this dicta should not be understood to state the general view that the Constitution bars all suits against unconsenting States. Moreover, even as to the limited question whether the Constitution permits actions for money judgments, Justice Iredell took pains to reserve ultimate judgment. Chisholm v. Georgia, 2 Dall., at 449. Thus, nothing in Justice Iredell’s two sentences of dicta provides a basis for concluding that Congress lacks the power to authorize the suit for the nonmonetary relief at issue here.

5

In this respect, Chisholm v. Georgia should be understood to be of a piece with the debate over judicial power famously joined in Martin v. Hunter’s Lessee, 1 Wheat. 304, 337 (1816). There, too, the argument centered on whether Congress had the power to limit the seemingly expansive jurisdictional grant that Article III had conferred, not on whether Article III itself provided the relevant limitation.

6

The contention that Article III withdrew Georgia’s sovereign immunity had special force precisely because Chisholm involved an action premised on the Supreme Court’s original jurisdiction. While Article III leaves it to Congress to establish the lower federal courts, and to make exceptions to the Supreme Court’s appellate jurisdiction, it specifically mandates that there be a Supreme Court and that it shall be vested with original jurisdiction over those actions in which “a State shall be Party.” Art. Ill, § 2. In light of that language, the Chisholm majority’s conclusion that the Supreme Court had a constitutional obligation to take jurisdiction of all suits against States was not implausible.

7

It should be remembered that at the time of Chisholm, there was a general fear of what Justice Iredell termed the “innovating spirit” of the Federal Judiciary. See, e. g., 3 A. Beveridge, The Life of John Marshall 19-30 (1919) (discussing the consternation that the federal courts’ creation of common-law felonies engendered). Thus, there is good reason to believe that the reaction to Chisholm reflected the popular hostility to the Federal Judiciary more than any desire to restrain the National Legislature.

8

Of course, even if the Eleventh Amendment applies to federal-question cases brought by a citizen of another State, its express terms pose no bar to a federal court assuming jurisdiction in a federal-question case brought by an in-state plaintiff pursuant to Congress’ express authorization. As that is precisely the posture of the suit before us, and as it was also precisely the posture of the suit at issue in Pennsylvania v. Union Gas, there is no need to decide here whether Congress would be barred from authorizing out-of-state plaintiffs to enforce federal rights against States in federal court. In fact, Justice Brennan left open that question in his dissent in Atascadero State Hospital v. Scanlon, 473 U. S. 234, 288, n. 41 (1985). “When the Court is prepared to embark on a defensible interpretation of the Eleventh Amendment consistent with its history and purposes, the question whether the Amendment bars federal-question or admiralty suits by a noncitizen or alien against a State would be open.” Ibid.

9

Under the “plain text” of the Eleventh Amendment, I note that there would appear to be no more basis for the conclusion that States may consent to federal-court jurisdiction in actions brought by out-of-state or foreign citizens than there would be for the view that States should be permitted to consent to the jurisdiction of a federal court in a case that poses no federal question. See, e. g., Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365, 377, n. 21 (1978); Sosna v. Iowa, 419 U. S. 393, 398 (1975); California v. LaRue, 409 U. S. 109, 112-113, n. 3 (1972); American Fire & Casualty Co. v. Finn, 341 U. S. 6, 17-18, and n. 17 (1951); Mitchell v. Maurer, 293 U. S. 237, 244 (1934); Jackson v. Ashton, 8 Pet. 148, 149 (1834). We have, however, construed the Amendment, despite its text, to apply only to unconsenting States. See, e. g., Clark v. Barnard, 108 U. S. 436, 447 (1883). In so doing, we of course left it for Congress to determine whether federal courts should entertain any claim against a State in federal court. A departure from the text to expand the class of plaintiffs to whom the Eleventh Amendment’s bar applies would, however, limit Congress’ authority to exercise its considered judgment as to the propriety of federal-court jurisdiction. The absence of a textual warrant for imposing such a broad limitation on the legislative branch counsels against this Court extratextually imposing one.

10

In his dissent in Pennsylvania v. Union Gas Co., 491 U. S., at 36-37, Justice Scalia contended that the existence of the Judiciary Act of 1875 at the time of Hans requires one to accept the “gossamer distinction between cases in which Congress has assertedly sought to eliminate state sovereign immunity pursuant to its powers to create and organize courts, and eases in which it has assertedly sought to do so pursuant to some of its other powers,” in order to conclude that, in spite of Hans, Congress may authorize federal courts to hear a suit against an unconsenting State. I rely on no such “gossamer distinction” here.

Congress has the authority to withdraw sovereign immunity in eases not covered by the Eleventh Amendment under all of its various powers. Nothing in Hans is to the contrary. As the passage quoted above demonstrates, Hans merely concluded that Congress, in enacting the Judiciary Act of 1875, did not manifest a desire to withdraw state sovereign immunity with sufficient clarity to overcome the countervailing presumption. Therefore, I rely only on the distinction between a statute that clearly directs federal courts to entertain suits against States, such as the one before us here, and a statute that does not, such as the Judiciary Act of 1875. In light of our repeated application of a clear-statement rule in Eleventh Amendment eases, from Hans onward, I would be surprised to learn that such a distinction is too thin to be acceptable.

11

Indeed, to the extent the reasoning of Monaco was premised on the ground that a contrary ruling might permit foreign governments and States indirectly to frustrate Congress’ treaty power, 292 U. S., at 331, the opinion suggests that its outcome would have been quite different had Congress expressly authorized suits by foreign governments against individual States as part of its administration of foreign policy.

12

Moreover, they would have most unnecessarily burdened Congress. For example, after deciding that Congress had not made sufficiently explicit its intention to withdraw the state sovereign immunity defense in certain bankruptcy actions, see Hoffman v. Connecticut Dept. of Income Maintenance, 392 U. S. 96 (1989), Congress understandably concluded that it could correct the confusion by amending the relevant statute to make its intentions to override such a defense unmistakably clear. See In re Merchants Grain, Inc., 59 F. 3d 630 (CA7 1995). Congress will no doubt be surprised to learn that its exercise in legislative clarification, which it undertook for our benefit, was for naught because the Constitution makes it so.

13

Significantly, Chief Justice Marshall understood the Eleventh Amendment’s bar to have been designed primarily to protect States from being sued for their debts. See Cohens v. Virginia, 6 Wheat. 264, 406 (1821).

14

Significantly, many of the cases decided after Hans in which this Court has recognized state sovereign immunity involved claims premised on the breach of rights that were rooted in state law. See Ford Motor Co. v. Department of Treasury of Ind., 323 U. S. 459 (1945); Great Northern Life Ins. Co. v. Read, 322 U. S. 47 (1944); Smith v. Reeves, 178 U. S. 436 (1900). In such cases, the Court’s application of the state-law immunity appears simply to foreshadow (or follow) the rule of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), not to demark the limits of Article III.

15

It is significant that Justice Souter’s opinion makes it perfectly clear that Justice Ginsburg, Justice Breyer, and he did not consider it necessary to rely on the holding in Union Gas to support their conclusion. I find today’s decision particularly unfortunate because of its failure to advance an acceptable reason for refusing to adhere to a precedent upon which the Congress, as well as the courts, should be entitled to rely.

16

See Stevens, Is Justice Irrelevant?, 87 Nw. U. L. Rev. 1121, 1124-1125 (1993).

17

Interestingly, this passage demonstrates that the Court’s application of a common-law sovereign immunity defense in Principality of Monaco v. Mississippi, 292 U. S. 313 (1934), was quite probably justified. There a foreign state sued a State as a substantial creditor, and thus implicated the very purpose of the Eleventh Amendment.

18

Because Hans v. Louisiana, 134 U. S. 1 (1890), was the first case in which the Court held that a State could not be sued in federal court by one of its citizens, this comment is of interest:

“It is not necessary that we should enter upon an examination of the reason or the expediency of the rule which exempts a sovereign State from prosecution in a court of justice at the suit of individuals. This is fully discussed by writers on public law. It is enough for us to declare its existence.” Id., at 21.

So it is today.

Justice Souter,

with whom Justice Ginsburg and Justice Breyer join, dissenting.

In holding the State of Florida immune to suit under the Indian Gaming Regulatory Act, the Court today holds for the first time since the founding of the Republic that Congress has no authority to subject a State to the jurisdiction of a federal court at the behest of an individual asserting a federal right. Although the Court invokes the Eleventh Amendment as authority for this proposition, the only sense in which that amendment might be claimed as pertinent here was tolerantly phrased by Justice Stevens in his concurring opinion in Pennsylvania v. Union Gas Co., 491 U. S. 1, 23 (1989). There, he explained how it has come about that we have two Eleventh Amendments, the one ratified in 1795, the other (so-called) invented by the Court nearly a century later in Hans v. Louisiana, 134 U. S. 1 (1890). Justice Stevens saw in that second Eleventh Amendment no bar to the exercise of congressional authority under the Commerce Clause in providing for suits on a federal question by individuals against a State, and I cap only say that after my own canvass of the matter I believe he was entirely correct in that view, for reasons given below. His position, of course, was also the holding in Union Gas, which the Court now overrules and repudiates.

The fault I find with the majority today is not in its decision to reexamine Union Gas, for the Court in that case produced no majority for a single rationale supporting congressional authority. Instead, I part company from the Court because I am convinced that its decision is fundamentally mistaken, and for that reason I respectfully dissent.

I

It is useful to separate three questions: (1) whether the States enjoyed sovereign immunity if sued in their own courts in the period prior to ratification of the National Constitution; (2) if so, whether after ratification the States were entitled to claim some such immunity when sued in a federal court exercising jurisdiction either because the suit was between a State and a nonstate litigant who was not its citizen, or because the issue in the case raised a federal question; and (3) whether any state sovereign immunity recognized in federal court may be abrogated by Congress.

The answer to the first question is not clear, although some of the Framers assumed that States did enjoy immunity in their own courts. The second question was not debated at the time of ratification, except as to citizen-state diversity jurisdiction;1 there was no unanimity, but in due course the Court in Chisholm v. Georgia, 2 Dall. 419 (1793), answered that a state defendant enjoyed no such immunity. As to federal-question jurisdiction, state sovereign immunity seems not to have been debated prior to ratification, the silence probably showing a general understanding at the time that the States would have no immunity in such cases.

The adoption of the Eleventh Amendment soon changed the result in Chisholm, not by mentioning sovereign immunity, but by eliminating citizen-state diversity jurisdiction over cases with state defendants. I will explain why the Eleventh Amendment did not affect federal-question jurisdiction, a notion that needs to be understood for the light it casts on the soundness of Hans’s holding that States did enjoy sovereign immunity in federal-question suits. The Hans Court erroneously assumed that a State could plead sovereign immunity against a noncitizen suing under federal-question jurisdiction, and for that reason held that a State must enjoy the same protection in a suit by one of its citizens. The error of Hans’s reasoning is underscored by its clear inconsistency with the Founders’ hostility to the implicit reception of common-law doctrine as federal law, and with the Founders’ conception of sovereign power as divided between the States and the National Government for the sake of very practical objectives.

The Court’s answer today to the third question is likewise at odds with the Founders’ view that common law, when it was received into the new American legal system, was always subject to legislative amendment. In ignoring the reasons for this pervasive understanding at the time of the ratification, and in holding that a nontextual common-law rule limits a clear grant of congressional power under Article I, the Court follows a course that has brought it to grief before in our history, and promises to do so again.

Beyond this third question that elicits today’s holding, there is one further issue. To reach the Court’s result, it must not only hold the Hans doctrine to be outside the reach of Congress, but must also displace the doctrine of Ex parte Young, 209 U. S. 123 (1908), that an officer of the government may be ordered prospectively to follow federal law, in cases in which the government may not itself be sued directly. None of its reasons for displacing Young’s jurisdictional doctrine withstand scrutiny.

A

The doctrine of sovereign immunity comprises two distinct rules, which are not always separately recognized. The one rule holds that the King or the Crown, as the font of law, is not bound by the law’s provisions; the other provides that the King or Crown, as the font of justice, is not subject to suit in its own courts. See, e. g., Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 3-4 (1963).2 The one rule limits the reach of substantive law; the other, the jurisdiction of the courts. We are concerned here only with the latter rule, which took its common-law form in the high Middle Ages. “At least as early as the thirteenth century, during the reign of Henry III (1216-1272), it was recognized that the king could not be sued in his own courts.” C. Jacobs, Eleventh Amendment and Sovereign Immunity 5 (1972). See also 3 W. Blackstone, Commentaries *244-*245; Jaffe, supra, at 2 (“By the time of Bracton (1268) it was settled doctrine that the King could not be sued eo nomine in his own courts”).

The significance of this doctrine in the nascent American law is less clear, however, than its early development and steady endurance in England might suggest. While some colonial governments may have enjoyed some such immunity, Jacobs, supra, at 6-7, the scope (and even the existence) of this governmental immunity in pre-Revolutionary America remains disputed. See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1895-1899 (1983).

Whatever the scope of sovereign immunity might have been in the Colonies, however, or during the period of Confederation, the proposal to establish a National Government under the Constitution drafted in 1787 presented a prospect unknown to the common law prior to the American experience: the States would become parts of a system in which sovereignty over even domestic matters would be divided or parcelled out between the States and the Nation, the latter to be invested with its own judicial power and the right to prevail against the States whenever their respective substantive laws might be in conflict. With this prospect in mind, the 1787 Constitution might have addressed state sovereign immunity by eliminating whatever sovereign immunity the States previously had, as to any matter subject to federal law or jurisdiction; by recognizing an analogue to the old immunity in the new context of federal jurisdiction, but subject to abrogation as to any matter within that jurisdiction; or by enshrining a doctrine of inviolable state sovereign immunity in the text, thereby giving it constitutional protection in the new federal jurisdiction. See Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. Pa. L. Rev. 515, 536-538 (1977).

The 1787 draft in fact said nothing on the subject, and it was this very silence that occasioned some, though apparently not widespread, dispute among the Framers and others over whether ratification of the Constitution would preclude a State sued in federal court from asserting sovereign immunity as it could have done on any matter of nonfederal law litigated in its own courts. As it has come down to us, the discussion gave no attention to congressional power under the proposed Article I but focused entirely on the limits of the judicial power provided in Article III. And although the jurisdictional bases together constituting the judicial power of the national courts under § 2 of Article III included questions arising under federal law and cases between States and individuals who are not citizens,3 it was only upon the latter citizen-state diversity provisions that preratification questions about state immunity from suit or liability centered.4

Later in my discussion I will canvass the details of the debate among the Framers and other leaders of the time, see infra, at 142-150; for now it is enough to say that there was no consensus on the issue. See Atascadero State Hospital v. Scanlon, 473 U. S. 234, 263-280 (1985) (Brennan, J., dissenting); Nevada v. Hall, 440 U. S. 410, 419 (1979); Jacobs, supra, at 40 (“[T]he legislative history of the Constitution hardly warrants the conclusion drawn by some that there was a general understanding, at the time of ratification, that the states would retain their sovereign immunity”). There was, on the contrary, a clear disagreement, which was left to fester during the ratification period, to be resolved only thereafter. One other point, however, was also clear: the debate addressed only the question whether ratification of the Constitution would, in diversity cases and without more, abrogate the state sovereign immunity or allow it to have some application. We have no record that anyone argued for the third option mentioned above, that the Constitution would affirmatively guarantee state sovereign immunity against any congressional action to the contrary. Nor would there have been any apparent justification for any such argument, since no clause in the proposed (and ratified) Constitution even so much as suggested such a position. It may have been reasonable to contend (as we will see that Madison, Marshall, and Hamilton did) that Article III would not alter States’ pre-existing common-law immunity despite its unqualified grant of jurisdiction over diversity suits against States. But then, as now, there was no textual support for contending that Article III or any other provision would “constitutionalize” state sovereign immunity, and no one uttered any such contention.

B

The argument among the Framers and their friends about sovereign immunity in federal citizen-state diversity cases, in any event, was short lived and ended when this Court, in Chisholm v. Georgia, 2 Dall. 419 (1793), chose between the constitutional alternatives of abrogation and recognition of the immunity enjoyed at common law. The 4-to-1 majority adopted the reasonable (although not compelled) interpretation that the first of the two Citizen-State Diversity Clauses abrogated for purposes of federal jurisdiction any immunity the States might have enjoyed in their own courts, and Georgia was accordingly held subject to the judicial power in a common-law assumpsit action by a South Carolina citizen suing to collect a debt.5 The case also settled, by implication, any question there could possibly have been about recognizing state sovereign immunity in actions depending on the federal question (or “arising under”) head of jurisdiction as well. The constitutional text on federal-question jurisdiction, after all, was just as devoid of immunity language as it was on citizen-state diversity, and at the time of Chisholm any influence that general common-law immunity might have had as an interpretive force in construing constitutional language would presumably have been no greater when addressing the federal-question language of Article III than its Diversity Clauses. See Sherry, The Eleventh Amendment and Stare Decisis: Overruling Hans v Louisiana, 57 U. Chi. L. Rev. 1260, 1270 (1990).

Although Justice Iredell’s dissent in Chisholm seems at times to reserve judgment on what I have called the third question, whether Congress could authorize suits against the States, Chisholm, supra, at 434-435, his argument is largely devoted to stating the position taken by several federalists that state sovereign immunity was cognizable under the Citizen-State Diversity Clauses, not that state immunity was somehow invisibly codified as an independent constitutional defense. As Justice Stevens persuasively explains in greater detail, ante, at 78-81, Justice Iredell’s dissent focused on the construction of the Judiciary Act of 1789, not Article III. See also Orth, The Truth About Justice Iredell’s Dissent in Chisholm v. Georgia (1793), 73 N. C. L. Rev. 255 (1994). This would have been an odd focus, had he believed that Congress lacked the constitutional authority to impose liability. Instead, on Justice Iredell’s view, States sued in diversity retained the common-law sovereignty “where no special act of Legislation controuls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the country.” 2 Dall, at 435 (emphasis deleted). While in at least some circumstances States might be held liable to “the authority of the United States,” id., at 436, any such liability would depend upon “laws passed under the Constitution and in conformity to it,” ibid.6 Finding no congressional action abrogating Georgia’s common-law immunity, Justice Iredell concluded that the State should not be liable to suit.7

C

The Eleventh Amendment, of course, repudiated Chisholm and clearly divested federal courts of some jurisdiction as to cases against state parties:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

There are two plausible readings of this provision’s text. Under the first, it simply repeals the Citizen-State Diversity Clauses of Article III for all cases in which the State appears as a defendant. Under the second, it strips the federal courts of jurisdiction in any case in which a state defendant is sued by a citizen not its own, even if jurisdiction might otherwise rest on the existence of a federal question in the suit. Neither reading of the Amendment, of course, furnishes authority for the Court’s view in today’s case, but we need to choose between the competing readings for the light that will be shed on the Hans doctrine and the legitimacy of inflating that doctrine to the point of constitutional immutability as the Court has chosen to do.

The history and structure of the Eleventh Amendment convincingly show that it reaches only to suits subject to federal jurisdiction exclusively under the Citizen-State Diversity Clauses.8 In precisely tracking the language in Article III providing for citizen-state diversity jurisdiction, the text of the Amendment does, after all, suggest to common sense that only the Diversity Clauses are being addressed. If the Framers had meant the Amendment to bar federal-question suits as well, they could not only have made their intentions clearer very easily, but could simply have adopted the first post -Chisholm proposal, introduced in the House of Representatives by Theodore Sedgwick of Massachusetts on instructions from the Legislature of that Commonwealth. Its provisions would have had exactly that expansive effect:

“[N]o state shall be liable to be made a party defendant, in any of the judicial courts, established, or which shall be established under the authority of the United States, at the suit of any person or persons, whether a citizen or citizens, or a foreigner or foreigners, or of any body politic or corporate, whether within or without the United States.” Gazette of the United States 303 (Feb. 20, 1793).

With its references to suits by citizens as well as non-citizens, the Sedgwick amendment would necessarily have been applied beyond the Diversity Clauses, and for a reason that would have been wholly obvious to the people of the time. Sedgwick sought such a broad amendment because many of the States, including his own, owed debts subject to collection under the Treaty of Paris. Suits to collect such debts would “arise under” that Treaty and thus be subject to federal-question jurisdiction under Article III. Such a suit, indeed, was then already pending against Massachusetts, having been brought in this Court by Christopher Vassal, an erstwhile Bostonian whose move to England on the eve of revolutionary hostilities had presented his former neighbors with the irresistible temptation to confiscate his vacant mansion. 5 Documentary History of the Supreme Court of the United States, 1789-1800, pp. 352-449 (M. Marcus ed. 1994).9

Congress took no action on Sedgwick’s proposal, however, and the Amendment as ultimately adopted two years later could hardly have been meant to limit federal-question jurisdiction, or it would never have left the States open to federal-question suits by their own citizens. To be sure, the majority of state creditors were not citizens, but nothing in the Treaty would have prevented foreign creditors from selling their debt instruments (thereby assigning their claims) to citizens of the debtor State. If the Framers of the Eleventh Amendment had meant it to immunize States from federal-question suits like those that might be brought to enforce the Treaty of Paris, they would surely have drafted the Amendment differently. See Fletcher, The Diversity Explanation of the Eleventh Amendment: A Reply to Critics, 56 U. Chi. L. Rev. 1261, 1280-1282 (1989).

It should accordingly come as no surprise that the weightiest commentary following the Amendment’s adoption described it simply as constricting the scope of the Citizen-State Diversity Clauses. In Cohens v. Virginia, 6 Wheat. 264 (1821), for instance, Chief Justice Marshall, writing for the Court, emphasized that the Amendment had no effect on federal courts’ jurisdiction grounded on the “arising under” provision of Article III and concluded that “a case arising under the constitution or laws of the United States, is cognizable in the Courts of the Union, whoever may be the parties to that case.” Id., at 383. The point of the Eleventh Amendment, according to Cohens, was to bar jurisdiction in suits at common law by Revolutionary War debt creditors, not “to strip the government of the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation.” Id., at 407.

The treatment of the Amendment in Osborn v. Bank of United States, 9 Wheat. 738 (1824), was to the same effect. The Amendment was held there to be no bar to an action against the State seeking the return of an unconstitutional tax. “The eleventh amendment of the constitution has exempted a State from the suits of citizens of other States, or aliens,” Marshall stated, omitting any reference to cases that arise under the Constitution or federal law. Id., at 847.

The good sense of this early construction of the Amendment as affecting the diversity jurisdiction and no more has the further virtue of making sense of this Court’s repeated exercise of appellate jurisdiction in federal-question suits brought against States in their own courts by out-of-staters. Exercising appellate jurisdiction in these cases would have been patent error if the Eleventh Amendment limited federal-question jurisdiction, for the Amendment’s unconditional language (“shall not be construed”) makes no distinction between trial and appellate jurisdiction.10 And yet, again and again we have entertained such appellate cases, even when brought against the State in its own name by a private plaintiff for money damages. See, e. g., Commonwealth Edison Co. v. Montana, 453 U. S. 609 (1981); Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575 (1983). The best explanation for our practice belongs to Chief Justice Marshall: the Eleventh Amendment bars only those suits in which the sole basis for federal jurisdiction is diversity of citizenship. See Atascadero State Hospital v. Scanlon, 473 U. S., at 294 (Brennan, J., dissenting); Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L. J. 1, 44 (1988).

In sum, reading the Eleventh Amendment solely as a limit on citizen-state diversity jurisdiction has the virtue of coherence with this Court’s practice, with the views of John Marshall, with the history of the Amendment’s drafting, and with its allusive language. Today’s majority does not appear to disagree, at least insofar as the constitutional text is concerned; the Court concedes, after all, that “the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts.” Ante, at 54.11

Thus, regardless of which of the two plausible readings one adopts, the further point to note here is that there is no possible argument that the Eleventh Amendment, by its terms, deprives federal courts of jurisdiction over all citizen lawsuits against the States. Not even the Court advances that proposition, and there would be no textual basis for doing so.12 Because the plaintiffs in today’s case are citizens of the State that they are suing, the Eleventh Amendment simply does not apply to them. We must therefore look elsewhere for the source of that immunity by which the Court says their suit is barred from a federal court.13

II

The obvious place to look elsewhere, of course, is Hans v. Louisiana, 134 U. S. 1 (1890), and Hans was indeed a leap in the direction of today’s holding, even though it does not take the Court all the way. The parties in Hans raised, and the Court in that case answered, only what I have called the second question, that is, whether the Constitution, without more, permits a State to plead sovereign immunity to bar the exercise of federal-question jurisdiction. See id., at 9. Although the Court invoked a principle of sovereign immunity to cure what it took to be the Eleventh Amendment’s anomaly of barring only those state suits brought by noncitizen plaintiffs, the Hans Court had no occasion to consider whether Congress could abrogate that background immunity by statute. Indeed (except in the special circumstance of Congress’s power to enforce the Civil War Amendments), this question never came before our Court until Union Gas, and any intimations of an answer in prior cases were mere dicta. In Union Gas the Court held that the immunity recognized in Hans had no constitutional status and was subject to congressional abrogation. Today the Court overrules Union Gas and holds just the opposite. In deciding how to choose between these two positions, the place to begin is with Hans’s holding that a principle of sovereign immunity derived from the common law insulates a State from federal-question jurisdiction at the suit of its own citizen. A critical examination of that case will show that it was wrongly decided, as virtually every recent commentator has concluded.14 It follows that the Court’s further step today of constitutionalizing Hans’s rule against abrogation by Congress compounds and immensely magnifies the century-old mistake of Hans itself and takes its place with other historic examples of textually untethered elevations of judicially derived rules to the status of inviolable constitutional law.

A

The Louisiana plaintiff in Hans held bonds issued by that State, which, like virtually all of the Southern States, had issued them in substantial amounts during the Reconstruction era to finance public improvements aimed at stimulating industrial development. E. Foner, Reconstruction: America’s Unfinished Revolution 1863-1877, pp. 383-384 (1988); Gibbons, 83 Colum. L. Rev., at 1976-1977. As Reconstruction governments collapsed, however, the post-Reconstruction regimes sought to repudiate these debts, and the Hans litigation arose out of Louisiana’s attempt to renege on its bond obligations.

Hans sued the State in federal court, asserting that the State’s default amounted to an impairment of the obligation of its contracts in violation of the Contract Clause. This Court affirmed the dismissal of the suit, despite the fact that the case fell within the federal court’s “arising under,” or federal-question, jurisdiction. Justice Bradley’s opinion did not purport to hold that the terms either of Article III or of the Eleventh Amendment barred the suit, but that the ancient doctrine of sovereign immunity that had inspired adoption of the Eleventh Amendment applied to cases beyond the Amendment’s scope and otherwise within the federal-question jurisdiction. Indeed, Bradley explicitly admitted that “[i]t is true, the amendment does so read [as to permit Hans’s suit], and if there were no other reason or ground for abating his suit, it might be maintainable.” Hans, 134 U. S., at 10. The Court elected, nonetheless, to recognize a broader immunity doctrine, despite the want of any textual manifestation, because of what the Court described as the anomaly that would have resulted otherwise: the Eleventh Amendment (according to the Court) would have barred a federal-question suit by a noncitizen, but the State would have been subject to federal jurisdiction at its own citizen’s behest. Id., at 10-11. The State was accordingly held to be free to resist suit without its consent, which it might grant or withhold as it pleased.

Hans thus addressed the issue implicated (though not directly raised) in the preratification debate about the Citizen-State Diversity Clauses and implicitly settled by Chisholm: whether state sovereign immunity was cognizable by federal courts on the exercise of federal-question jurisdiction. According to Hans, and contrary to Chisholm, it was. But that is all that Hans held. Because no federal legislation purporting to pierce state immunity was at issue, it cannot fairly be said that Hans held state sovereign immunity to have attained some constitutional status immunizing it from abrogation.15

Taking Hans only as far as its holding, its vulnerability is apparent. The Court rested its opinion on avoiding the supposed anomaly of recognizing jurisdiction to entertain a citizen’s federal-question suit, but not one brought by a non-citizen. See Hans, supra, at 10-11. There was, however, no such anomaly at all. As already explained, federal-question eases are not touched by the Eleventh Amendment, which leaves a State open to federal-question suits by citizens and noncitizens alike. If Hans had been from Massachusetts the Eleventh Amendment would not have barred his action against Louisiana.

Although there was thus no anomaly to be cured by Hans, the case certainly created its own anomaly in leaving federal courts entirely without jurisdiction to enforce paramount federal law at the behest of a citizen against a State that broke it. It destroyed the congruence of the judicial power under Article III with the substantive guarantees of the Constitution, and with the provisions of statutes passed by Congress in the exercise of its power under Article I: when a State injured an individual in violation of federal law no federal forum could provide direct relief. Absent an alternative process to vindicate federal law (see Part IV, infra) John Marshall saw just what the consequences of this anomaly would be in the early Republic, and he took that consequence as good evidence that the Framers could never have intended such a scheme.

“Different States may entertain different opinions on the true construction of the constitutional powers of congress. We know that, at one time, the assumption of the debts contracted by the several States, during the war of our Revolution, was deemed unconstitutional by some of them. . . . States may legislate in conformity to their opinions, and may enforce those opinions by penalties. It would be hazarding too much to assert that the judicatures of the States will be exempt from the prejudices by which the legislatures and people are influenced, and will constitute perfectly impartial tribunals. In many States the judges are dependent for office and for salary on the will of the legislature. The constitution of the United States furnishes no security against the universal adoption of this principle. When we observe the importance which that constitution attaches to the independence of judges, we are the less inclined to suppose that it can have intended to leave these constitutional questions to tribunals where this independence may not exist.” Cohens v. Virginia, 6 Wheat., at 386-387.

And yet that is just what Hans threatened to do.

How such a result could have been threatened on the basis of a principle not so much as mentioned in the Constitution is difficult to understand. But history provides the explanation. As I have already said, Hans was one episode in a long story of debt repudiation by the States of the former Confederacy after the end of Reconstruction. The turning point in the States’ favor came with the Compromise of 1877, when the Republican Party agreed effectively to end Reconstruction and to withdraw federal troops from the South in return for Southern acquiescence in the decision of the Electoral Commission that awarded the disputed 1876 presidential election to Rutherford B. Hayes. See J. Orth, Judicial Power of the United States: The Eleventh Amendment in American History 53-57 (1987); Gibbons, supra, at 1978-1982; see generally Foner, Reconstruction, at 575-587 (describing the events of 1877 and their aftermath). The troop withdrawal, of course, left the federal judiciary “effectively without power to resist the rapidly coalescing repudiation movement.” Gibbons, 83 Colum. L. Rev., at 1981. Contract Clause suits like the one brought by Hans thus presented this Court with “a draconian choice between repudiation of some of its most inviolable constitutional doctrines and the humiliation of seeing its political authority compromised as its judgments met the resistance of hostile state governments.” Id., at 1974. Indeed, Louisiana’s brief in Hans unmistakably bore witness to this Court’s inability to enforce a judgment against a recalcitrant State: “The solemn obligation of a government arising on its own acknowledged bond would not be enhanced by a judgment rendered on such bond. If it either could not or would not make provision for paying the bond, it is probable that it could not or would not make provision for satisfying the judgment.” Brief for Respondent in No. 4, O. T. 1889, p. 25. Given the likelihood that a judgment against the State could not be enforced, it is not wholly surprising that the Hans Court found a way to avoid the certainty of the State’s contempt.16

So it is that history explains, but does not honor, Hans. The ultimate demerit of the case centers, however, not on its politics but on the legal errors on which it rested.17 Before considering those errors, it is necessary to address the Court’s contention that subsequent cases have read into Hans what was not there to begin with, that is, a background principle of sovereign immunity that is constitutional in stature and therefore unalterable by Congress.

B

The majority does not dispute the point that Hans v. Louisiana, 134 U. S. 1 (1890), had no occasion to decide whether Congress could abrogate a State’s immunity from federal-question suits. The Court insists, however, that the negative answer to that question that it finds in Hans and subsequent opinions is not “mere obiter dicta, but rather . . . the well-established rationale upon which the Court based the results of its earlier decisions.” Ante, at 66-67. The exact rationale to which the majority refers, unfortunately, is not easy to discern. The Court’s opinion says, immediately after its discussion of stare decisis, that “[f]or over a century, we have grounded our decisions in the oft-repeated understanding of state sovereign immunity as an essential part of the Eleventh Amendment.” Ante, at 67. This cannot be the “rationale,” though, because this Court has repeatedly acknowledged that the Eleventh Amendment standing alone cannot bar a federal-question suit against a State brought by a state citizen. See, e. g., Edelman v. Jordan, 415 U. S. 651, 662 (1974) (acknowledging that “the Amendment by its terms does not bar suits against a State by its own citizens”).18 Indeed, as I have noted, Justice Bradley’s opinion in Hans conceded that Hans might successfully have pursued his claim “if there were no other reason or ground [other than the Amendment itself] for abating his suit.” 134 U. S., at 10. The Hans Court, rather, held the suit barred by a non-constitutional common-law immunity. See supra, at 116-117.

The “rationale” which the majority seeks to invoke is, I think, more nearly stated in its quotation from Principality of Monaco v. Mississippi, 292 U. S. 313, 321-323 (1934). There, the Court said that “we cannot rest with a mere literal application of the words of § 2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States.” Id., at 322.19 This statement certainly is true to Hans, which clearly recognized a pre-existing principle of sovereign immunity, broader than the Eleventh Amendment itself, that will ordinarily bar federal-question suits against a nonconsenting State. That was the “rationale” which was sufficient to decide Hans and all of its progeny prior to Union Gas. But leaving aside the indefensibility of that rationale, which I will address further below, that was as far as it went.

The majority, however, would read the “rationale” of Hans and its line of subsequent cases as answering the further question whether the “postulate” of sovereign immunity that “limit[s] and controls]” the exercise of Article III jurisdiction, Monaco, supra, at 322, is constitutional in stature and therefore unalterable by Congress. It is true that there are statements in the cases that point toward just this conclusion. See, e. g., Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 98 (1984) (“In short, the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. Ill”); Ex parte New York, 256 U. S. 490, 497 (1921) (“[T]he entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given . . .”). These statements, however, are dicta in the classic sense, that is, sheer speculation about what would happen in cases not before the court.20 But this is not the only weakness of these statements, which are counterbalanced by many other opinions that have either stated the immunity principle without more, see, e. g., Dellmuth v. Muth, 491 U. S. 223, 229, n. 2 (1989) (noting that “an uncon-senting State is immune from liability for damages in a suit brought in federal court by one of its own citizens,” without suggesting that the immunity was unalterable by Congress),21 or have suggested that the Hans immunity is not of constitutional stature. The very language quoted by the majority from Monaco, for example, likens state sovereign immunity to other “essential postulates” such as the rules of justiciability. 292 U. S., at 322. Many of those rules, as Justice Stevens points out, are prudential in nature and therefore not unalterable by Congress. See ante, at 88-90.22 More generally, the proponents of the Court’s theory have repeatedly referred to state sovereign immunity as a “background principle,” ante, at 72, “postulate,” Nevada v. Hall, 440 U. S., at 437 (Rehnquist, J., dissenting), or “implicit limitation,” Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 496 (1987) (Scalia, J., concurring in part and concurring in judgment), and as resting on the “inherent nature of sovereignty,” Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 51 (1944), rather than any explicit constitutional provision.23 But whatever set of quotations one may prefer, taking heed of such jurisprudential creations in assessing the contents of federal common law is a very different thing from reading them into the Founding Document itself.

The most damning evidence for the Court’s theory that Hans rests on a broad rationale of immunity unalterable by Congress, however, is the Court’s proven tendency to disregard the post-Hans dicta in cases where that dicta would have mattered.24 If it is indeed true that “private suits against States [are] not permitted under Article III (by virtue of the understanding represented by the Eleventh Amendment),” Union Gas, 491 U. S., at 40 (Scalia, J., concurring in part and dissenting in part), then it is hard to see how a State’s sovereign immunity may be waived any more than it may be abrogated by Congress. See, e. g., Atascadero State Hospital v. Scanlon, 473 U. S., at 238 (recognizing that immunity may be waived). After all, consent of a party is in all other instances wholly insufficient to create subject-matter jurisdiction where it would not otherwise exist. See, e. g., Sosna v. Iowa, 419 U. S. 393, 398 (1975); see also E. Chemerinsky, Federal Jurisdiction § 7.6, p. 405 (2d ed. 1994) (noting that “allowing such waivers seems inconsistent with viewing the Eleventh Amendment as a restriction on the federal courts’ subject matter jurisdiction”). Likewise, the Court’s broad theory of immunity runs doubly afoul of the appellate jurisdiction problem that I noted earlier in rejecting an interpretation of the Eleventh Amendment’s text that would bar federal-question suits. See supra, at 109-116. If “the whole sum of the judicial power granted by the Constitution to the United States does not embrace the authority to entertain a suit brought by a citizen against his own State without its consent,” Duhne v. New Jersey, 251 U. S. 311, 313 (1920), and if consent to suit in state court is not sufficient to show consent in federal court, see Atascadero, supra, at 241, then Article III would hardly permit this Court to exercise appellate jurisdiction over issues of federal law arising in lawsuits brought against the States in their own courts. We have, however, quite rightly ignored any post-Hans dicta in that sort of case and exercised the jurisdiction that the plain text of Article III provides. See, e. g., Fulton Corp. v. Faulkner, 516 U. S. 325 (1996); see also supra, at 113-114.

“As it was not the Eleventh Amendment by its terms which justified the result in Hans, it is not the Tenth Amendment by its terms that prohibits congressional action which sets a mandatory ceiling on the wages of all state employees. Both Amendments are simply examples of the understanding of those who drafted and ratified the Constitution that the States were sovereign in many respects, and that although their legislative authority could be superseded by Congress in many areas where Congress was competent to act, Congress was nonetheless not free to deal with a State as if it were just another individual or business enterprise subject to regulation.” Id., at 556-557 (dissenting opinion).

If these examples were not enough to distinguish Hans’s rationale of a pre-existing doctrine of sovereign immunity from the post-Hans dicta indicating that this immunity is constitutional, one would need only to consider a final set of cases: those in which we have assumed, without deciding, that congressional power to abrogate state sovereign immunity exists even when § 5 of the Fourteenth Amendment has no application. A majority of this Court was willing to make that assumption in Hoffman v. Connecticut Dept. of Income Maintenance, 492 U. S. 96, 101 (1989) (plurality opinion), in Welch v. Texas Dept. of Highways and, Public Transp., supra, at 475 (plurality opinion), and in County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 252 (1985).25 Although the Court in each of these cases failed to find abrogation for lack of a clear statement of congressional intent, the assumption that such power was available would hardly have been permissible if, at that time, today’s majority’s view of the law had been firmly established. It is one thing, after all, to avoid an open constitutional question by assuming an answer and rejecting the claim on another ground; it is quite another to avoid a settled rationale (an emphatically settled one if the majority is to be taken seriously) only to reach an issue of statutory construction that the Court would otherwise not have to decide. Even worse, the Court could not have been unaware that its decision of cases like Hoffman and Welch, on the ground that the statutes at issue lacked a plain statement of intent to abrogate, would invite Congress to attempt abrogation in statutes like the Indian Gaming Regulatory Act, 25 U. S. C. § 2701 et seq. (IGRA). Such a course would have been wholly irresponsible if, as the majority now claims, the constitutionally unalterable nature of Hans immunity had been well established for a hundred years.

Hans itself recognized that an “observation [in a prior case that] was unnecessary to the decision, and in that sense extra judicial . . . ought not to outweigh” present reasoning that points to a different conclusion. 134 U. S., at 20. That is good advice, which Members of today’s majority have been willing to heed on other occasions. See, e. g., Kokkonen v. Guardian Life Ins. Co., 511 U. S. 375, 379 (1994) (“It is to the holdings, of our cases, rather than their dicta, that we must attend”); Bennis v. Michigan, 516 U. S. 442, 450 (1996). But because the Court disregards this norm today, I must consider the soundness of Hans’s original recognition of a background principle of sovereign immunity that applies even in federal-question suits, and the reasons that counsel against the Court’s extension of Hans’s holding to the point of rendering its immunity unalterable by Congress.

III

Three critical errors in Hans weigh against constitutionalizing its holding as the majority does today. The first we have already seen: the Hans Court misread the Eleventh Amendment, see supra, at 118-123. It also misunderstood the conditions under which common-law doctrines were received or rejected at the time of the founding, and it fundamentally mistook the very nature of sovereignty in the young Republic that was supposed to entail a State’s immunity to federal-question jurisdiction in a federal court. While I would not, as a matter of stare decisis, overrule Hans today, an understanding of its failings on these points will show how the Court today simply compounds already serious error in taking Hans the further step of investing its rule with constitutional inviolability against the considered judgment of Congress to abrogate it.

A

There is and could be no dispute that the doctrine of sovereign immunity that Hans purported to apply had its origins in the “familiar doctrine of the common law,” The Siren, 7 Wall. 152, 153 (1869), “derived from the laws and practices of our English ancestors,” United States v. Lee, 106 U. S. 196, 205 (1882).26 Although statutes came to affect its importance in the succeeding centuries, the doctrine was never reduced to codification, and Americans took their understanding of immunity doctrine from Blackstone, see 3 W. Blackstone, Commentaries on the Laws of England, ch. 17 (1768). Here, as in the mother country, it remained a common-law rule. See generally Jaffe, 77 Harv. L. Rev., at 2-19; Borchard, Governmental Responsibility in Tort, VI, 36 Yale L. J. 1,17-41 (1926).

This fact of the doctrine’s common-law status in the period covering the founding and the later adoption of the Eleventh Amendment should have raised a warning flag to the Hans Court and it should do the same for the Court today. For although the Court has persistently assumed that the common law’s presence in the minds of the early Framers must have functioned as a limitation on their understanding of the new Nation’s constitutional powers, this turns out not to be so at all. One of the characteristics of the founding generation, on the contrary, was its joinder of an appreciation of its immediate and powerful common-law- heritage with caution in settling that inheritance on the political systems of the new Republic. It is not that the Framers failed to see themselves to be children of the common law; as one of their contemporaries put it, “[w]e live in the midst of the common law, we inhale it at every breath, imbibe it at every pore ... [and] cannot learn another system of laws without learning at the same time another language.” R Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States 91 (1824). But still it is clear that the adoption of English common law in America was not taken for granted, and that the exact manner and extent of the common law’s reception were subject to careful consideration by courts and legislatures in each of the new States.27 An examination of the States’ experience with common-law reception will shed light on subsequent theory and practice at the national level, and demonstrate that our history is entirely at odds with Hans’s resort to a common-law principle to limit the Constitution’s contrary text.

1

This American reluctance to import English common law wholesale into the New World is traceable to the early colonial period. One scholar of that time has written that “[t]he process which we may call the reception of the English common law by the colonies was not so simple as the legal theory would lead us to assume. While their general legal conceptions were conditioned by, and their terminology derived from, the common law, the early colonists were far from applying it as a technical system, they often ignored it or denied its subsidiary force, and they consciously departed from many of its most essential principles.” P. Reinsch, English Common Law in the Early American Colonies 58 (1899).28 For a variety of reasons, including the absence of trained lawyers and judges, the dearth of law books, the religious and ideological commitments of the early settlers, and the novel conditions of the New World, the colonists turned to a variety of other sources in addition to principles of common law.29

It is true that, with the development, of colonial society and the increasing sophistication of the colonial bar, English common law gained increasing acceptance in colonial practice. See id., at 7-8; Hall, The Common Law: An Account of its Reception in the United States, 4 Vand. L. Rev. 791, 797 (1951).30 But even in the late colonial period, Americans insisted that

“the whole body of the common law . . . was not transplanted, but only so much as was applicable to the colonists in their new relations and conditions. Much of the common law related to matters which were purely local, which existed under the English political organization, or was based upon the triple relation of king, lords and commons, or those peculiar social conditions, habits and customs which have no counterpart in the New World. Such portions of the common law, not being applicable to the new conditions of the colonists, were never recognised as part of their jurisprudence.” Dale, The Adoption of the Common Law by the American Colonies, 30 Am. L. Reg. 553, 554 (1882).31

The result was that “the increasing influx of common-law principles by no means obliterated the indigenous systems which had developed during the colonial era and that there existed important differences in law in action on the two sides of the Atlantic.” Hall, supra, at 797.

Understandably, even the trend toward acceptance of the common law that had developed in the late colonial period was imperiled by the Revolution and the ultimate break between the Colonies and the old country. Dean Pound has observed that, “[f]or a generation after the Revolution, . . . political conditions gave rise to a general distrust of English law. . . . The books are full of illustrations of the hostility toward English law simply because it was English which prevailed at the end of the eighteenth and in the earlier years of the nineteenth century.” R. Pound, The Formative Era of American Law 7 (1938); see also C. Warren, A History of the American Bar 224-225 (1911) (noting a “prejudice against the system of English Common Law” in the years following the Revolution). James Monroe went so far as to write in 1802 that “‘the application of the principles of the English common law to our constitution’ ” should be considered “‘good cause for impeachment.’” Letter from James Monroe to John Breckenridge, Jan. 15, 1802 (quoted in 3 A. Beveridge, The Life of John Marshall: Conflict and Construction 1800-1815, p. 59 (1919)).32 Nor was anti-English sentiment the only difficulty; according to Dean Pound, “[s]ocial and geographical conditions contributed also to make the work of receiving and reshaping the common law exceptionally difficult.” Pound, supra, at 7.

The consequence of this anti-English hostility and awareness of changed circumstances was that the independent States continued the colonists’ practice of adopting only so much of the common law as they thought applicable to their local conditions.33 As Justice Story explained, “[t]he common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation.” Van Ness v. Pacard, 2 Pet. 137, 144 (1829). In 1800, John Marshall had expressed the similar view that “our ancestors brought with them the laws of England, both statute & common law as existing at the settlement of each colony, so far as they were applicable to our situation.” Letter from John Marshall to St. George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A, at 1326, 1327. Accordingly, in the period following independence, “[legislatures and courts and doctrinal writers had to test the common law at every point with respect to its applicability to America.” Pound, supra, at 20; see also Jones 103 (observing that “suitability] to local institutions and conditions” was “incomparably the most important” principle of reception in the new States).

2

While the States had limited their reception of English common law to principles appropriate to American conditions, the 1787 draft Constitution contained no provision for adopting the common law at all. This omission stood in sharp contrast to the state constitutions then extant, virtually all of which contained explicit provisions dealing with common-law reception. See n. 56, infra. Since the experience in the States set the stage for thinking at the national level, see generally G. Wood, Creation of the American Republic, 1776-1787, p. 467 (1969) (Wood), this failure to address the notion of common-law reception could not have been inadvertent. Instead, the Framers chose to recognize only particular common-law concepts, such as the writ of habeas corpus, U. S. Const., Art. I, § 9, cl. 2, and the distinction between law and equity, U. S. Const., Amdt. 7, by specific reference in the constitutional text. See 1 J. Goebel, Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Antecedents and Beginnings to 1801, pp. 229-230 (1971).34 This approach reflected widespread agreement that ratification would not itself entail a general reception of the common law of England. See Letter from John Marshall to St. George Tucker, Nov. 27,1800, reprinted in Jay II, App. A, at 1326 (“I do not believe one man can be found” who maintains “that the common law of England has . . . been adopted as the common law of America by the Constitution of the United States”); Jay II, at 1255 (noting that the use of the term “laws” in Article III “could not have been meant to accomplish a general reception of British common law”).

Records of the ratification debates support Marshall’s understanding that everyone had to know that the new Constitution would not draw the common law in its train. Anti-federalists like George Mason went so far as to object that under the proposed Constitution the people would not be “secured even in the enjoyment of the benefit of the common law.” Mason, Objections to This Constitution of Government, in 2 Records of the Federal Convention of 1787, p. 637 (M. Farrand ed. 1911) (Farrand); see also 3 Elliot’s Debates 446-449 (Patrick Henry, Virginia Convention). In particular, the Antifederalists worried about the failure of the proposed Constitution to provide for a reception of “the great rights associated with due process” such as the right to a jury trial, Jay II, at 1256, and they argued that “Congress’s powers to regulate the proceedings of federal courts made the fate of these common-law procedural protections uncertain,” id., at 1257.35 While Federalists met this objection by arguing that nothing in the Constitution necessarily excluded the fundamental common-law protections associated with due process, see, e. g., 3 Elliot’s Debates 451 (George Nicholas, Virginia Convention), they defended the decision against any general constitutional reception of the common law on the ground that constitutionalizing it would render it “immutable,” see id., at 469-470 (Edmund Randolph, Virginia Convention), and not subject to revision by Congress, id., at 550 (Edmund Pendleton, Virginia Convention); see also infra, at 163-164.

The Framers also recognized that the diverse development of the common law in the several States made a general federal reception impossible. “The common law was not the same in any two of the Colonies,” Madison observed; “in some the modifications were materially and extensively different.” Report on the Virginia Resolutions, House of Delegates, Session of 1799-1800, Concerning Alien and Sedition Laws, in 6 Writings of James Madison 373 (G. Hunt ed. 1906) (Alien and Sedition Laws).36 In particular, although there is little evidence regarding the immunity enjoyed by the various colonial governments prior to the Revolution, the profound differences as to the source of colonial authority between chartered colonies, royal colonies, and so on seems unlikely, wholly apart from other differences in circumstance, to have given rise to a uniform body of immunity law. There was not, then, any unified “Common Law” in America that the Federal Constitution could adopt, Jay I, at 1056; Stoebuck, Reception of English Common Law in the American Colonies, 10 Wm. & Mary L. Rev. 393, 401 (1968) (“The assumption that colonial law was essentially the same in all colonies is wholly without foundation”), and, in particular, probably no common principle of sovereign immunity, cf. Alien and Sedition Laws 376. The Framers may, as Madison, Hamilton, and Marshall argued, have contemplated that federal courts would respect state immunity law in diversity cases, but the generalized principle of immunity that today’s majority would graft onto the Constitution itself may well never have developed with any common clarity and, in any event, has not been shown to have existed.

Finally, the Framers’ aversion to a general federal reception of the common law is evident from the Federalists’ response to the Antifederalist claim that Article III granted an unduly broad jurisdiction to the federal courts. That response was to emphasize the limited powers of the National Government. See, e.g., 3 Elliot’s Debates 553 (John Marshall, Virginia Convention) (“Has the government of the United States power to make laws on every subject? ... Can they make laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? Can they go beyond the delegated powers?”); Jay II, at 1260.37 That answer assumes, of course, no generalized reception of English common law as federal law; otherwise, “arising under” jurisdiction would have extended to any subject comprehended by the general common law.

Madison made this assumption absolutely clear during the subsequent debates over the Alien and Sedition Acts, which raised the issue of whether the Framers intended to recognize a general federal jurisdiction to try common-law crimes. Rejecting the idea of any federal reception, Madison insisted that

“the consequence of admitting the common law as the law of the United States, on the authority of the individual States, is as obvious as it would be fatal. As this law relates to every subject of legislation, and would be paramount to the Constitutions and laws of the States, the admission of it would overwhelm the residuary sovereignty of the States, and by one constructive operation new model the whole political fabric of the country.” Alien and Sedition Laws 381.

See also 1 Goebel, Oliver Wendell Holmes Devise History of the Supreme Court of the United States, at 651-655 (discussing the lack of evidence to support the proposition that the Framers intended a general reception of the English common law through the Constitution); Jay II, at 1254 (arguing that “[i]t would have been untenable to maintain that the body of British common law had been adopted by the Constitution . . . ”). Madison concluded that

“[i]t is . . . distressing to reflect that it ever should have been made a question, whether the Constitution, on the whole face of which is seen so much labor to enumerate and define the several objects of Federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law — a law filling so many ample volumes; a law overspreading the entire field of legislation; and a law that would sap the foundation of the Constitution as a system of limited and specified powers.” Alien and Sedition Laws 382.

B

Given the refusal to entertain any wholesale reception of common law, given the failure of the new Constitution to make any provision for adoption of common law as such, and given the protests already quoted that no general reception had occurred, the Hans Court and the Court today cannot reasonably argue that something like the old immunity doctrine somehow slipped in as a tacit but enforceable background principle. But see ante, at 72. The evidence is even more specific, however, that there was no pervasive understanding that sovereign immunity had limited federal-question jurisdiction.

1

As I have already noted briefly, see supra, at 105-106, the Framers and their contemporaries did not agree about the place of common-law state sovereign immunity even as to federal jurisdiction resting on the Citizen-State Diversity Clauses. Edmund Randolph argued in favor of ratification on the ground that the immunity would not be recognized, leaving the States subject to jurisdiction.38 Patrick Henry opposed ratification on the basis of exactly the same reading. See 3 Elliot’s Debates 543. On the other hand, James Madison, John Marshall, and Alexander Hamilton all appear to have believed that the common-law immunity from suit would survive the ratification of Article III, so as to be at a State’s disposal when jurisdiction would depend on diversity. This would have left the States free to enjoy a traditional immunity as defendants without barring the exercise of judicial power over them if they chose to enter the federal courts as diversity plaintiffs or to waive their immunity as diversity defendants. See id., at 533 (Madison: the Constitution “give[s] a citizen a right to be heard in the federal courts; and if a state should condescend to be a party, this court may take cognizance of it”);39 id., at 556 (Marshall: “I see a difficulty in making a state defendant, which does not prevent its being plaintiff”)- As Hamilton stated in The Federalist No. 81:

"It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. Unless therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated must be merely ideal.” The Federalist No. 81, pp. 548-549 (J. Cooke ed. 1961).

See generally Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033,1045-1054 (1983) (discussing the adoption of the Citizen-State Diversity Clauses); Gibbons, 83 Colum. L. Rev., at 1902-1914. The majority sees in these statements, and chiefly in Hamilton’s discussion of sovereign immunity in The Federalist No. 81, an unequivocal mandate “which would preclude all federal jurisdiction over an unconsenting State.” Ante, at 70. But there is no such mandate to be found.

As I have already said, the immediate context of Hamilton’s discussion in Federalist No. 81 has nothing to do with federal-question cases. It addresses a suggestion “that an assignment of the public securities of one state to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities.” The Federalist No. 81, at 548. Hamilton is plainly talking about a suit subject to a federal court’s jurisdiction under the Citizen-State Diversity Clauses of Article III.

The general statement on sovereign immunity emphasized by the majority then follows, along with a reference back to The Federalist No. 32. The Federalist No. 81, at 548. What Hamilton draws from that prior paper, however, is not a general conclusion about state sovereignty but a particular point about state contracts:

“A recurrence to the principles there established will satisfy us, that there is no colour to pretend that the state governments, would by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will.” Id., at 549.

The most that can be inferred from this is, as noted above, that in diversity cases applying state contract law the immunity that a State would have enjoyed in its own courts is carried into the federal court. When, therefore, the Hans Court relied in part upon Hamilton’s statement, see 134 U. S., at 20, its reliance was misplaced; Hamilton was addressing diversity jurisdiction, whereas Hans involved federal-question jurisdiction under the Contracts Clause. No general theory of federal-question immunity can be inferred from Hamilton’s discussion of immunity in contract suits. But that is only the beginning of the difficulties that accrue to the majority from reliance on The Federalist No. 81.

Hamilton says that a State is “not... amenable to the suit of an individual without its consent.... [u]nless ... there is a surrender of this immunity in the plan of the convention.” The Federalist No. 81, at 548-549 (emphasis deleted). He immediately adds, however, that “[t]he circumstances which are necessary to produce an alienation of state sovereignty, were discussed in considering the article of taxation, and need not be repeated here.” Id., at 549. The reference is to The Federalist No. 32, also by Hamilton, which has this to say about the alienation of state sovereignty:

“[A]s the plan of the Convention aims only at a partial Union or consolidation, the State Governments would clearly retain all the rights of sovereignty which they before had and which were not by that act exclusively delegated to the United States. This exclusive delegation or rather this alienation of State sovereignty would only exist in three cases; where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant. I use these terms to distinguish this last case from another which might appear to resemble it; but which would in fact be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority.” Id., at 200 (emphasis in original).

As an instance of the last case, in which exercising concurrent jurisdiction may produce interferences in “policy,” Hamilton gives the example of concurrent power to tax the same subjects:

“It is indeed possible that a tax might be laid on a particular article by a State which might render it inexpedient that thus a further tax should be laid on the same article by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. It is not however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy, that can by implication alienate and extinguish a pre-existing right of sovereignty.” Id., at 202 (emphasis in original).

The first embarrassment Hamilton’s discussion creates for the majority turns on the fact that the power to regulate commerce with Indian tribes has been interpreted as making “Indian relations . . . the exclusive province of federal law.” County of Oneida v. Oneida Indian Nation of N. Y, 470 U. S., at 234.40 We have accordingly recognized that “[s]tate laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply.” McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 170-171 (1973) (internal quotation marks omitted); see also Rice v. Olson, 324 U. S. 786, 789 (1945) (“The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation’s history”).41 We have specifically held, moreover, that the States have no power to regulate gambling on Indian lands. California v. Cabazon Band of Mission Indians, 480 U. S. 202, 221-222 (1987). In sum, since the States have no sovereignty in the regulation of commerce with the tribes, on Hamilton’s view there is no source of sovereign immunity to assert in a suit based on congressional regulation of that commerce. If Hamilton is good authority, the majority of the Court today is wrong.

Quite apart, however, from its application to this particular Act of Congress exercising the Indian commerce power, Hamilton’s sovereignty discussion quoted above places the Court in an embarrassing dilemma. Hamilton posited four categories: congressional legislation on (a) subjects committed expressly and exclusively to Congress, (b) subjects over which state authority is expressly negated, (c) subjects over which concurrent authority would be impossible (as “contradictory and repugnant”), and (d) subjects over which concurrent authority is not only possible, but its exercise by both is limited only by considerations of policy (as when one taxing authority is politically deterred from adding too much to the exaction the other authority is already making). But what of those situations involving concurrent powers, like the power over interstate commerce, see, e. g., Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299 (1852) (recognizing power of States to engage in some regulation of interstate commerce), when a congressional statute not only binds the States but even creates an affirmative obligation on the State as such, as in this case? Hamilton’s discussion does not seem to cover this (quite possibly because, as a good political polemicist, he did not wish to raise it). If in fact it is fair to say that Hamilton does not cover this situation, then the Court cannot claim him as authority for the preservation of state sovereignty and consequent immunity. If, however, on what I think is an implausible reading, one were to try to shoehorn this situation into Hamilton’s category (c) (on the theory that concurrent authority is impossible after passage of the congressional legislation), then any claim of sovereignty and consequent immunity is gone entirely.

In sum, either the majority reads Hamilton as I do, to say nothing about sovereignty or immunity in such a case, or it will have to read him to say something about it that bars any state immunity claim. That is the dilemma of the majority’s reliance on Hamilton’s The Federalist No. 81, with its reference to No. 32. Either way, he is no authority for the Court’s position.

Thus, the Court’s attempt to convert isolated statements by the Framers into answers to questions not before them is fundamentally misguided.42 The Court’s difficulty is far more fundamental, however, than inconsistency with a particular quotation, for the Court’s position runs afoul of the general theory of sovereignty that gave shape to the Framers’ enterprise. An enquiry into the development of that concept demonstrates that American political thought had so revolutionized the concept of sovereignty itself that calling for the immunity of a State as against the jurisdiction of the national courts would have been sheer illogic.

2

We said in Blatchford v. Native Village of Noatak, 501 U. S. 775, 779 (1991), that “the States entered the federal system with their sovereignty intact,” but we surely did not mean that they entered that system with the sovereignty they would have claimed if each State had assumed independent existence in the community of nations, for even the Articles of Confederation allowed for less than that. See Articles of Confederation, Art. VI, §1 (“No State without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any king, prince or state . ..”). While there is no need here to calculate exactly how close the American States came to sovereignty in the classic sense prior to ratification of the Constitution, it is clear that the act of ratification affected their sovereignty in a way different from any previous political event in America or anywhere else. For the adoption of the Constitution made them members of a novel federal system that sought to balance the States’ exercise of some sovereign prerogatives delegated from their own people with the principle of a limited but centralizing federal supremacy.

As a matter of political theory, this federal arrangement of dual delegated sovereign powers truly was a more revolutionary turn than the late war had been. See, e. g., U S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring) (“Federalism was our Nation’s own discovery. The Framers split the atom of sovereignty”).43 Before the new federal scheme appeared, 18th-century political theorists had assumed that “there must reside somewhere in every political unit a single, undivided, final power, higher in legal authority than any other power, subject to no law, a law unto itself.” B. Bailyn, The Ideological Origins of the American Revolution 198 (1967); see also Wood 345.44 The American development of divided sovereign powers, which “shattered]... the categories of government that had dominated Western thinking for centuries,” id., at 385, was made possible only by a recognition that the ultimate sovereignty rests in the people themselves. See id., at 530 (noting that because “none of these arguments about ‘joint jurisdictions’ and ‘coequal sovereignties’ convincingly refuted the Antifederalist doctrine of a supreme and indivisible sovereignty,” the Federalists could succeed only by emphasizing that the supreme power “‘resides in the PEOPLE, as the fountain of government’” (citing 1 Pennsylvania and the Federal Constitution, 1787-1788, p. 302 (J. McMaster & F. Stone eds. 1888) (quoting James Wilson)).45 The People possessing this plenary bundle of specific powers were free to parcel them out to different governments and different branches of the same government as they saw fit. See F. McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 278 (1985). As James Wilson emphasized, the location of ultimate sovereignty in the People meant that “[t]hey can distribute one portion of power to the more contracted circle called State governments; they can also furnish another proportion to the government of the United States.” 1 Pennsylvania and the Federal Constitution, 1787-1788, supra, at 302.46

Under such a scheme, Alexander Hamilton explained, “[i]t does not follow . .. that each of the portions of powers delegated to [the national or state government] is not sovereign with regard to its proper objects.” Hamilton, Opinion on the Constitutionality of an Act to Establish a Bank, in 8 Papers of Alexander Hamilton 98 (Syrett ed. 1965) (emphasis in original).47 A necessary consequence of this view was that “the Government of the United States has sovereign power as to its declared purposes & trusts.” Ibid. Justice Iredell was to make the same observation in his Chisholm dissent, commenting that “[t]he United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved.” 2 Dali., at 435. And to the same point was Chief Justice Marshall’s description of the National and State Governments as “each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other.” McCulloch v. Maryland, 4 Wheat. 316, 410 (1819).

Given this metamorphosis of the idea of sovereignty in the years leading up to 1789, the question whether the old immunity doctrine might have been received as something suitable for the new world of federal-question jurisdiction is a crucial one.48 The answer is that sovereign immunity as it would have been known to the Framers before ratification thereafter became inapplicable as a matter of logic in a federal suit raising a federal question. The old doctrine, after all, barred the involuntary subjection of a sovereign to the system of justice and law of which it was itself the font, since to do otherwise would have struck the common-law mind from the Middle Ages onward as both impractical and absurd. See, e. g., Kawananakoa v. Polyblank, 205 U. S. 349, 353 (1907) (Holmes, J.) (“A sovereign is exempt from suit.. . on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the. right depends”).49 But the ratification demonstrated that state governments were subject to a superior regime of law in a judicial system established, not by the State, but by the people through a specific delegation of their sovereign power to a National Government that was paramount within its delegated sphere. When individuals sued States to enforce federal rights, the Government that corresponded to the “sovereign” in the traditional common-law sense was not the State but the National Government, and any state immunity from the jurisdiction of the Nation’s courts would have required a grant from the true sovereign, the people, in their Constitution, or from the Congress that the Constitution had empowered. We made a similar point in Nevada v. Hall, 440 U. S., at 416, where we considered a suit against a State in another State’s courts:

“This [traditional] explanation [of sovereign immunity] adequately supports the conclusion that no sovereign may be sued in its own courts without its consent, but it affords no support for a claim of immunity in another sovereign’s courts. Such a claim necessarily implicates the power and authority of a second sovereign; its source must be found either in an agreement, express or implied, between the two sovereigns, or in the voluntary decision of the second to respect the dignity of the first as a matter of comity.”

Cf. United States v. Texas, 143 U. S. 621, 646 (1892) (recognizing that a suit by the National Government against a State “does no violence to the inherent nature of sovereignty”). Subjecting States to federal jurisdiction in federal-question cases brought by individuals thus reflected nothing more than Professor Amar’s apt summary that “[w]here governments are acting within the bounds of their delegated ‘sovereign’ power, they may partake of sovereign immunity; where not, not.” Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425,1490-1491, n. 261 (1987).

State immunity to federal-question jurisdiction would, moreover, have run up against the common understanding of the practical necessity for the new federal relationship. According to Madison, the “multiplicity,” “mutability,” and “injustice” of then-extant state laws were prime factors requiring the formation of a new government. 1 Farrand 318-319 (remarks of J. Madison).50 These factors, Madison wrote to Jefferson, “contributed more to that uneasiness which produced the Convention, and prepared the Public mind for a general reform, than those which accrued to our national character and interest from the inadequacy of the Confederation to its immediate objects.” 5 Writings of James Madison 27 (G. Hunt ed. 1904). These concerns ultimately found concrete expression in a number of specific limitations on state power, including provisions barring the States from enacting bills of attainder or ex post facto laws, coining money or emitting bills of credit, denying the privileges and immunities of out-of-staters, or impairing the obligation of contracts. But the proposed Constitution also dealt with the old problems affirmatively by granting the powers to Congress enumerated in Article I, § 8, and by providing through the Supremacy Clause that Congress could pre-empt state action in areas of concurrent state and federal authority.

Given the Framers’ general concern with curbing abuses by state governments, it would be amazing if the scheme of delegated powers embodied in the Constitution had left the National Government powerless to render the States judicially accountable for violations of federal rights. And of course the Framers did not understand the scheme to leave the Government powerless. In The Federalist No. 80, at 535, Hamilton observed that “[n]o man of sense will believe that such prohibitions [running against the States] would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them,” and that “an authority in the federal courts, to over-rule such as might be in manifest contravention of the articles of union” was the Convention’s preferred remedy. By speaking in the plural of an authority in the federal “courts,” Hamilton made it clear that he envisioned more than this Court’s exercise of appellate jurisdiction to review federal questions decided by state courts. Nor is it plausible that he was thinking merely of suits brought against States by the National Government itself, which The Federalist’s authors did not describe in the paternalistic terms that would pass without an eyebrow raised today. Hamilton’s power of the Government to restrain violations of citizens’ rights was a power to be exercised by the federal courts at the citizens’ behest. See also Marshall, Fighting the Words of the Eleventh Amendment, 102 Harv. L. Rev. 1342, 1367-1371 (1989) (discussing the Framers’ concern with preserving as much state accountability as possible even in the course of enacting the Eleventh Amendment).

This sketch of the logic and objectives of the new federal order is confirmed by what we have previously seen of the preratification debate on state sovereign immunity, which in turn becomes entirely intelligible both in what it addressed and what it ignored. It is understandable that reasonable minds differed on the applicability of the immunity doctrine in suits that made it to federal court only under the original Diversity Clauses, for their features were not wholly novel. While they were, of course, in the courts of the new and, for some purposes, paramount National Government, the law that they implicated was largely the old common law (and in any case was not federal law). It was not foolish, therefore, to ask whether the old law brought the old defenses with it. But it is equally understandable that questions seem not to have been raised about state sovereign immunity in federal-question cases. The very idea of a federal question depended on the rejection of the simple concept of sovereignty from which the immunity doctrine had developed; under the English common law, the question of immunity in a system of layered sovereignty simply could not have arisen. Cf., e. g., Jay II, at 1282-1284; Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States, at 6-7.51 The Framers’ principal objectives in rejecting English theories of unitary sovereignty, moreover, would have been impeded if a new concept of sovereign immunity had taken its place in federal-question cases, and would have been substantially thwarted if that new immunity had been held to be untouchable by any congressional effort to abrogate it.52

Today’s majority discounts this concern. Without citing a single source to the contrary, the Court dismisses the historical evidence regarding the Framers’ vision of the relationship between national and state sovereignty, and reassures us that “the Nation survived for nearly two centuries without the question of the existence of [the abrogation] power ever being presented to this Court.” Ante, at 71.53 But we are concerned here not with the survival of the Nation but the opportunity of its citizens to enforce federal rights in a way that Congress provides. The absence of any general federal-question statute for nearly a century following ratification of Article III (with a brief exception in 1800) hardly counts against the importance of that jurisdiction either in the Framers’ conception or in current reality; likewise, the fact that Congress has not often seen fit to use its power of abrogation (outside the Fourteenth Amendment context, at least) does not compel a conclusion that the power is not important to the federál scheme. In the end, is it plausible to contend that the plan of the convention was meant to leave the National Government without any way to render individuals capable of enforcing their federal rights directly against an intransigent State?

C

The considerations expressed so far, based on text, Chisholm, caution in common-law reception, and sovereignty theory, have pointed both to the mistakes inherent in Hans and, even more strongly, to the error of today’s holding. Although for reasons of stare decisis I would not today disturb the century-old precedent, I surely would not extend its error by placing the common-law immunity it mistakenly recognized beyond the power of Congress to abrogate. In doing just that, however, today’s decision declaring state sovereign immunity itself immune from abrogation in federal-question cases is open to a further set of objections peculiar to itself. For today’s decision stands condemned alike by the Framers’ abhorrence of any notion that such common-law rules as might be received into the new legal systems would be beyond the legislative power to alter or repeal, and by its resonance with this Court’s previous essays in constitutionalizing common-law rules at the expense of legislative authority.

1

I have already pointed out how the views of the Framers reflected the caution of state constitutionalists and legislators over reception of common-law rules, a caution that the Framers exalted to the point of vigorous resistance to any idea that English common-law rules might be imported wholesale through the new Constitution. The state politicians also took pains to guarantee that once a common-law rule had been received, it would always be subject to legislative alteration, and again the state experience was reflected in the Framers’ thought. Indeed, the Framers’ very insistence that no common-law doctrine would be received by virtue of ratification was focused in their fear that elements of the common law might thereby have been placed beyond the power of Congress to alter by legislation.

The imperative of legislative control grew directly out of the Framers’ revolutionary idea of popular sovereignty. According to one historian, “[s]hared ideas about the sovereignty of the people and the accountability of government to the people resulted at an early date in a new understanding of the role of legislation in the legal system. . . . Whereas a constitution had been seen in the colonial period as a body of vague and unidentifiable precedents and principles of common law origin that imposed ambiguous restrictions on the power of men to make or change law, after independence it came to be seen as a written charter by which the people delegated powers to various institutions of government and imposed limitations on the exercise of those powers. . . . [T]he power to modify or even entirely to repeal the common law ... now fell explicitly within the jurisdiction of the legislature.” W. Nelson, Americanization of the Common Law 90 (1975).54

Virtually every state reception provision, be it constitutional or statutory, explicitly provided that the common law was subject to alteration by statute. See Wood 299-300; Jones 99. The New Jersey Constitution of 1776, for instance, provided that “the common law of England, as well as so much of the statute law, as have been heretofore practised in this Colony, shall still remain in force, until they shall be altered by a future law . . . N. J. Const., Art. XXII (1776), in 6 W. Swindler, Sources and Documents of United States Constitutions 452 (1976).55 Just as the early state governments did not leave reception of the common law to implication, then, neither did they receive it as law immune to legislative alteration.56

I have already indicated that the Framers did not forget the state-law examples. When Antifederalists objected that the 1787 draft failed to make an explicit adoption of certain common-law protections of the individual, part of the Federalists’ answer was that a general constitutional reception of the common law would bar congressional revision. Madison was particularly concerned with the necessity for legislative control, noting in a letter to George Washington that “every State has made great inroads & with great propriety on this monarchical code.” Letter from James Madison to George Washington (Oct. 18,1787), reprinted in 3 Farrand 130, App. A (emphasis in original).57 Madison went on to insist that “[t]he Common law is nothing more than the unwritten law, and is left by all the Constitutions equally liable to legislative alterations.” Ibid.58 Indeed, Madison anticipated, and rejected, the Court’s approach today when he wrote that if “the common law be admitted as ... of constitutional obligation, it would confer on the judicial department a discretion little short of a legislative power . .. [which] would be permanent and irremediable by the Legislature.” Alien and Sedition Laws 380. “A discretion of this sort,” he insisted, “has always been lamented as incongruous and dangerous . . . .” Id., at 381.59

2

History confirms the wisdom of Madison’s abhorrence of constitutionalizing common-law rules to place them beyond the reach of congressional amendment. The Framers feared judicial power over substantive policy and the ossification of law that would result from transforming common law into constitutional law, and their fears have been borne out every time the Court has ignored Madison’s counsel on subjects that we generally group under economic and social policy. It is, in fact, remarkable that as we near the end of this century the Court should choose to open a new constitutional chapter in confining legislative judgments on these matters by resort to textually unwarranted common-law rules, for it was just this practice in the century’s early decades that brought this Court to the nadir of competence that we identify with Lochner v. New York, 198 U. S. 45 (1905).60

It was the defining characteristic of the Lochner era, and its characteristic vice, that the Court treated the common-law background (in those days, common-law property rights and contractual autonomy) as paramount, while regarding congressional legislation to abrogate the common law on these economic matters as constitutionally suspect. See, e. g., Adkins v. Childrens Hospital of D. C., 261 U. S. 525, 557 (1923) (finding abrogation of common-law freedom to contract for any wage an unconstitutional “compulsory exaction”); see generally Sunstein, Lochner’s Legacy, 87 Colum. L. Rev. 873 (1987). And yet the superseding lesson that seemed clear after West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937), that action within the legislative power is not subject to greater scrutiny merely because it trenches upon the case law’s ordering of economic and social relationships, seems to have been lost on the Court.

The majority today, indeed, seems to be going Lochner one better. When the Court has previously constrained the express Article I powers by resort to common-law or background principles, it has done so at least in an ostensible effort to give content to some other written provision of the Constitution, like the Due Process Clause, the very object of which is to limit the exercise of governmental power. See, e. g., Adair v. United States, 208 U. S. 161 (1908). Some textual argument, at least, could be made that the Court was doing no more than defining one provision that happened to be at odds with another. Today, however, the Court is not struggling to fulfill a responsibility to reconcile two arguably conflicting and Delphic constitutional provisions, nor is it struggling with any Delphic text at all. For even the Court concedes that the Constitution’s grant to Congress of plenary power over relations with Indian tribes at the expense of any state claim to the contrary is unmistakably clear, and this case does not even arguably implicate a textual trump to the grant of federal-question jurisdiction.

I know of only one other occasion on which the Court has spoken of extending its reach so far as to declare that the plain text of the Constitution is subordinate to judicially discoverable principles untethered to any written provision. Justice Chase once took such a position almost 200 years ago:

“There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power. . . . An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.” Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

This position was no less in conflict with American constitutionalism in 1798 than it is today, being inconsistent with the Framers’ view of the Constitution as fundamental law. Justice Iredell understood this, and dissented (again) in an opinion that still answers the position that “vital” or “background” principles, without more, may be used to confine a clear constitutional provision:

“[S]ome speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I cannot think that, under such a government, any Court of Justice would possess a power to declare it so. . . .

“. . . [I]t has been the policy of the American states, . . . and of the people of the United States ... to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void. ... If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.” Id., at 398-399 (emphasis deleted) (opinion dissenting in part).

Later jurisprudence vindicated Justice Iredell’s view, and the idea that “first principles” or concepts of “natural justice” might take precedence over the Constitution or other positive law “all but disappeared in American discourse.” J. Ely, Democracy and Distrust 52 (1980). It should take more than references to “background principle^],” ante, at 72, and “implicit limitation^],” Welch, 483 U. S., at 496 (Scalia, J., concurring in part and concurring in judgment), to revive the judicial power to overcome clear text unopposed to any other provision, when that clear text is in harmony with an almost equally clear intent on the part of the Framers and the constitutionalists of their generation.

>

The Court s holding that the States Hans immunity may not be abrogated by Congress leads to the final question in this case, whether federal-question jurisdiction exists to order prospective relief enforcing IGRA against a state officer, respondent Chiles, who is said to be authorized to take the action required by the federal law. Just as with the issue about authority to order the State as such, this question is entirely jurisdictional, and we need not consider here whether petitioner Seminole Tribe would have a meritorious argument for relief, or how much practical relief the requested order (to bargain in good faith) would actually provide to the Tribe. Nor, of course, does the issue turn in any way on one’s views about the scope of the Eleventh Amendment or Hans and its doctrine, for we ask whether the state officer is subject to jurisdiction only on the assumption that action directly against the State is barred. The answer to this question is an easy yes, the officer is subject to suit under the rule in Ex parte Young, 209 U. S. 123 (1908), and the case could, and should, readily be decided on this point alone.

A

In Ex parte Young, this Court held that a federal court has jurisdiction in a suit against a state officer to enjoin official actions violating federal law, even though the State itself may be immune. Under Young, “a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law.” Quern v. Jordan, 440 U. S. 332, 337 (1979); see also Milliken v. Bradley, 433 U. S. 267, 289 (1977).

The fact, without more, that such suits may have a significant impact on state governments does not count under Young. Milliken, for example, was a suit, under the authority of Young, brought against Michigan’s Governor, Attorney General, Board of Education, Superintendent of Public Instruction, and Treasurer, which resulted in an order obligating the State of Michigan to pay money from its treasury to fund an education plan. The relief requested (and obtained) by the plaintiffs effectively ran against the State: state moneys were to be removed from the state treasury, and they were to be spent to fund a remedial education program that it would be the State’s obligation to implement. To take another example, Quern v. Jordan involved a court order requiring state officials to notify welfare beneficiaries of the availability of past benefits. Once again, the defendants were state officials, but it was the obligation of the State that was really at issue: the notices would be sent from the state welfare agency, to be returned to the state agency, and the state agency would pay for the notices and any ensuing awards of benefits. Indeed, in the years since Young was decided, the Court has recognized only one limitation on the scope of its doctrine: under Edelman v. Jordan, 415 U. S. 651 (1974), Young permits prospective relief only and may not be applied to authorize suits for retrospective monetary relief.

It should be no cause for surprise that Young itself appeared when it did in the national law. It followed as a matter of course after the Hans Court’s broad recognition of immunity in federal-question cases, simply because “[Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law.” Green v. Mansour, 474 U. S. 64, 68 (1985). Young provided, as it does today, a sensible way to reconcile the Court’s expansive view of immunity expressed in Hans with the principles embodied in the Supremacy Clause and Article III.

If Young may be seen as merely the natural consequence of Hans, it is equally unsurprising as an event in the longer history of sovereign immunity doctrine, for the rule we speak of under the name of Young is so far inherent in the jurisdictional limitation imposed by sovereign immunity as to have been recognized since the Middle Ages. For that long it has been settled doctrine that suit against an officer of the Crown permitted relief against the government despite the Crown’s immunity from suit in its own courts and the maxim that the King could do no wrong. See Jaffe, 77 Harv. L. Rev., at 3, 18-19; Ehrlich, No. XII: Proceedings Against the Crown (1216-1377), pp. 28-29, in 6 Oxford Studies in Social and Legal History (P. Vinogradoff ed. 1921). An early example, from “time immemorial” of a claim “affecting the Crown [that] could be pursued in the regular courts [without consent since it] did not take the form of a suit against the Crown,” Jaffe, supra, at 1, was recognized by the Statute of Westminster I, 1275, which established a writ of disseisin against a Bang’s officers. When a King’s officer disseised any person in the King’s name, the wrongfully deprived party could seek the draconian writ of attaint against the officer, by which he would recover his land. Jaffe, 77 Harv. L. Rev., at 9. Following this example forward, we may see how the writ of attaint was ultimately overtaken by the more moderate common-law writs of certiorari and mandamus, “operating] directly on the government; [and commanding] an officer not as an individual but as a functionary.” Id., at 16. Thus the Court of King’s Bench made it clear in 1701 that “wherever any new jurisdiction is erected, be it by private or public Act of Parliament, they are subject to the inspections of this Court by writ of error, or by certiorari and mandamus." The Case of Cardiffe Bridge, 1 Salk. 146, 91 Eng. Rep. 135 (K. B.).

B

This history teaches that it was only a matter of course that once the National Constitution had provided the opportunity for some recognition of state sovereign immunity, the necessity revealed through six centuries or more of history would show up in suits against state officers, just as Hans would later open the door to Ex parte Young itself. Once, then, the Eleventh Amendment was understood to forbid suit against a State eo nomine, the question arose “which suits against officers will be allowed and which will not be.” Jaffe, 77 Harv. L. Rev., at 20.

“It early became clear that a suit against an officer was not forbidden simply because it raised a question as to the legality of his action as an agent of government or because it required him, as in mandamus, to perform an official duty. These as we know had been well established before the eleventh amendment as not necessarily requiring consent. To be sure the renewed emphasis on immunity given by the eleventh amendment might conceivably have been taken so to extend the doctrine as to exclude suits against state officers even in cases where the English tradition would have allowed them. There was a running battle as to where the line would be drawn. The amendment was appealed to as an argument for generous immunity. But there was the vastly powerful counterpressure for the enforcement of constitutional limits on the states. The upshot . . . was to confine the amendment’s prohibition more or less to the occasion which gave it birth, to wit, the enforcement of contracts and to most (though not all) suits involving the title and disposition of a state’s real and personal property.” Id,., at 20-21.

The earliest cases, United States v. Peters, 5 Cranch 115 (1809), and Osborn v. Bank of United States, 9 Wheat. 738 (1824), embrace the English practice of permitting suits against officers, see Orth, Judicial Power of the United States, at 34-35, 40-41, 122, by focusing almost exclusively on whether the State had been named as a defendant. Governor of Georgia v. Madrazo, 1 Pet. 110, 123-124 (1828), shifted this analysis somewhat, finding that a Governor could not be sued because he was sued “not by his name, but by his title,” which was thought the functional equivalent of suing the State itself. Madrazo did not, however, erase the fundamental principle of Osborn that sovereign immunity would not bar a suit against a state officer. See, e. g., Davis v. Gray, 16 Wall. 203 (1873) (applying Osborn by enjoining the Governor of Texas to interfere with the possession of land granted by the State); United States v. Lee, 106 U. S. 196 (1882) (applying Osborn in context of federal sovereign immunity).

This simple rule for recognizing sovereign immunity without gutting substantial rights was temporarily muddled in Louisiana v. Jumel, 107 U. S. 711 (1883), where the Court, although it “did not clearly say why,” refused to hear a suit that would have required a state treasurer to levy taxes to pay interest on a bond. Currie, Sovereign Immunity and Suits Against Government Officers, 1984 S. Ct. Rev. 149, 152. (One recalls the circumstances of Hans itself, see supra, at 117-121.) The Court, however, again applied Osborn in the Virginia Coupon Cases, 114 U. S. 269 (1885) (permitting injunctions, restitution, and damages against state officers who seized property to collect taxes already paid with interest coupons the State had agreed to accept). In re Ayers, 123 U. S. 443, 502 (1887), sought to rationalize the competing strands of doctrine on the ground that an action may be “sustained only in those instances where the act complained of, considered apart from the official authority alleged as its justification, and as the personal act of the individual defendant, constituted a violation of right for which the plaintiff was entitled to a remedy at law or in equity against the wrongdoer in his individual character.”

Ex parte Young restored the old simplicity by complementing In re Ayers with the principle that state officers never have authority to violate the Constitution or federal law, so that any illegal action is stripped of state character and rendered an illegal individual act. Suits against these officials are consequently barred by neither the Eleventh Amendment nor Hans immunity. The officer’s action “is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. . . . The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.” Ex parte Young, 209 U. S., at 159-160.

The decision in Ex parte Young, and the historic doctrine it embodies, thus plays a foundational role in American constitutionalism, and while the doctrine is sometimes called a “fiction,” the long history of its felt necessity shows it to be something much more estimable, as we may see by considering the facts of the case. “Young was really and truly about to damage the interest of plaintiffs. Whether what he was about to do amounted to a legal injury depended on the authority of his employer, the state. If the state could constitutionally authorize the act then the loss suffered by plaintiffs was not a wrong for which the law provided a remedy.... If the state could not constitutionally authorize the act then Young was not acting by its authority.” Orth, Judicial Power of the United States, at 133. The doctrine we call Ex parte Young is nothing short of “indispensable to the establishment of constitutional government and the rule of law.” C. Wright, Law of Federal Courts 292 (4th ed. 1983). See also Chemerinsky, Federal Jurisdiction, at 393.

A rule of such lineage, engendered by such necessity, should not be easily displaced, if indeed it is displaceable at all, for it marks the frontier of the enforceability of federal law against sometimes competing state policies. We have in fact never before inferred a congressional intent to eliminate this time-honored practice of enforcing federal law. That, of course, does not mean that the intent may never be inferred, and where, as here, the underlying right is one of statutory rather than constitutional dimension, I do not in theory reject the Court’s assumption that Congress may bar enforcement by suit even against a state official. But because in practice, in the real world of congressional legislation, such an intent would be exceedingly odd, it would be equally odd for this Court to recognize an intent to block the customary application of Ex parte Young without applying the rule recognized in our previous cases, which have insisted on a clear statement before assuming a congressional purpose to “af-fec[t] the federal balance,” United States v. Bass, 404 U. S. 336, 349 (1971). See also Will v. Michigan Dept. of State Police, 491 U. S. 58, 65 (1989) (“[I]f Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistakably clear in the language of the statute’ ”) (quoting Atascadero State Hospital v. Scanlon, 473 U. S., at 242); Gregory v. Ashcroft, 501 U. S. 452, 460-461 (1991). Our habitual caution makes sense for just the reason we mentioned in Dellmuth v. Muth, 491 U. S., at 230-231: it is “difficult to believe that . . . Congress, taking careful stock of the state of Eleventh Amendment law, decided it would drop coy hints but stop short of making its intention manifest.”

C

There is no question that by its own terms Young’s indispensable rule authorizes the exercise of federal jurisdiction over respondent Chiles. Since this case does not, of course, involve retrospective relief, Edelman’s limit is irrelevant, and there is no other jurisdictional limitation. Obviously, for jurisdictional purposes it makes no difference in principle whether the injunction orders an official not to act, as in Young, or requires the official to take some positive step, as in Milliken or Quern. Nothing, then, in this case renders Young unsuitable as a jurisdictional basis for determining on the merits whether petitioner is entitled to an order against a state official under general equitable doctrine. The Court does not say otherwise, and yet it refuses to apply Young. There is no adequate reason for its refusal.

No clear statement of intent to displace the doctrine of Ex parte Young occurs in IGRA, and the Court is instead constrained to rest its effort to skirt Young on a series of suggestions thought to be apparent in Congress’s provision of “intricate procedures” for enforcing a State’s obligation under the Act. The procedures are said to implicate a rule against judicial creativity in devising supplementary procedures; it is said that applying Young would nullify the statutory procedures; and finally the statutory provisions are said simply to reveal a congressional intent to preclude the application of Young.

1

The Court cites Schweiker v. Chilicky, 487 U. S. 412, 423 (1988), in support of refraining from what it seems to think would be judicial creativity in recognizing the applicability of Young. The Court quotes from Chilicky for the general proposition that when Congress has provided what it considers adequate remedial mechanisms for violations of federal law, this Court should not “creat[e]” additional remedies. Ante, at 74. The Court reasons that Congress’s provision in IGRA of “intricate procedures” shows that it considers its remedial provisions to be adequate, with the implication that courts as a matter of prudence should provide no “additional” remedy under Ex parte Young. Ante, at 73-76.

Chilicky’s remoteness from the point of this case is, however, apparent from its facts. In Chilicky, Congress had addressed the problem of erroneous denials of certain government benefits by creating a scheme of appeals and awards that would make a successful claimant whole for all benefits wrongly denied. The question was whether this Court should create a further remedy on the model of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), for such harms as emotional distress, when the erroneous denial of benefits had involved a violation of procedural due process. The issue, then, was whether to create a supplemental remedy, backward looking on the Bivens model, running against a federal official in his personal capacity, and requiring an affirmative justification (as Bivens does). See Bivens, supra; FDIC v. Meyer, 510 U. S. 471, 484-486 (1994).

The Bivens issue in Chilicky (and in Meyer) is different from the Young issue here in every significant respect. Young is not an example of a novel rule that a proponent has a burden to justify affirmatively on policy grounds in every context in which it might arguably be recognized; it is a general principle of federal equity jurisdiction that has been recognized throughout our history and for centuries before our own history began. Young does not provide retrospective monetary relief but allows prospective enforcement of federal law that is entitled to prevail under the Supremacy Clause. It requires not money payments from a government employee’s personal pocket, but lawful conduct by a public employee acting in his official capacity. Young would not function here to provide a merely supplementary regime of compensation to deter illegal action, but the sole jurisdictional basis for an Article III court’s enforcement of a clear federal statutory obligation, without which a congressional act would be rendered a nullity in a federal court. One cannot intelligibly generalize from Chilicky’s standards for imposing the burden to justify a supplementary scheme of tort law to the displacement of Young’s traditional and indispensable jurisdictional basis for ensuring official compliance with federal law when a State itself is immune from suit.

2

Next, the Court suggests that it may be justified in displacing Young because Young would allow litigants to ignore the “intricate procedures” of IGRA in favor of a menu of streamlined equity rules from which any litigant could order as he saw fit. But there is no basis in law for this suggestion, and the strongest authority to reject it. Young did not establish a new cause of action and it does not impose any particular procedural regime in the suits it permits. It stands, instead, for a jurisdictional rule by which paramount federal law may be enforced in a federal court by substituting a nonimmune party (the state officer) for an immune one (the State itself). Young does no more and furnishes no authority for the Court’s assumption that it somehow pre-empts procedural rules devised by Congress for particular kinds of cases that may depend on Young for federal jurisdiction.61

If, indeed, the Court were correct in assuming that Congress may not regulate the procedure of a suit jurisdiction-ally dependent on Young, the consequences would be revolutionary, for example, in habeas law. It is well established that when a habeas corpus petitioner sues a state official alleging detention in violation of federal law and seeking the prospective remedy of release from custody, it is the doctrine identified in Ex parte Young that allows the petitioner to evade the jurisdictional bar of the Eleventh Amendment (or, more properly, the Hans doctrine). See Young, 209 U. S., at 167-168; Larson v. Domestic and Foreign Commerce Corp., 337 U. S. 682, 689-690 (1949).62 And yet Congress has imposed a number of restrictions upon the habeas remedy, see, e. g., 28 U. S. C. § 2254(b) (requiring exhaustion of state remedies prior to bringing a federal habeas petition), and this Court has articulated several more, see, e. g., McCleskey v. Zant, 499 U. S. 467 (1991) (abuse of the writ); Teague v. Lane, 489 U. S. 288 (1989) (limiting applicability of "new rules” on habeas); Brecht v. Abrahamson, 507 U. S. 619 (1993) (applying a more deferential harmless-error standard on habeas review). By suggesting that Ex parte Young provides a free-standing remedy not subject to the restrictions otherwise imposed on federal remedial schemes (such as habeas corpus), the Court suggests that a state prisoner may circumvent these restrictions by ostensibly bringing his suit under Young rather than 28 U. S. C. § 2254. The Court’s view implies similar consequences under any number of similarly structured federal statutory schemes.63

This, of course, tionale for rejecting the Court’s contrary assumption is that Congress has just as much authority to regulate suits when jurisdiction depends on Young as it has to regulate when Young is out of the jurisdictional picture. If Young does not preclude Congress from requiring state exhaustion in habeas cases (and it clearly does not), then Young does not bar the application of IGRA’s procedures when effective relief is sought by suing a state officer.

3

The Court’s third strand of reasoning for displacing Ex parte Young'is a supposed inference that Congress so intended. Since the Court rests this inference in large part on its erroneous assumption that the statute’s procedural limitations would not be applied in a suit against an officer for which Young provided the jurisdictional basis, the error of that assumption is enough to show the unsoundness of any inference that Congress meant to exclude Young’s application. But there are further reasons pointing to the utter implausibility of the Court’s reading of the congressional mind.

IGRA’s jurisdictional provision reads as though it had been drafted with the specific intent to apply to officer liability under Young. It provides that “[t]he United States district courts shall have jurisdiction over . . . any cause of action . . . arising from the failure of a State to enter into negotiations ... or to conduct such negotiations in good faith.” 25 U. S. C. § 2710(d)(7)(A)(i) (emphasis added). This language does not limit the possible defendants to States and is quite literally consistent with the possibility that a tribe could sue an appropriate state official for a State’s failure to negotiate.64 The door is so obviously just as open to jurisdiction over an officer under Young as to jurisdiction over a State directly that it is difficult to see why the statute would have been drafted as it was unless it was done in anticipation that Young might well be the jurisdictional basis for enforcement action.

But even if the jurisdictional provision had spoken narrowly of an action against the State itself (as it subsequently speaks in terms of the State’s obligation), that would be no indication that Congress had rejected the application of Young. An order requiring a “State” to comply with federal law can, of course, take the form of an order directed to the State in its sovereign capacity. But as Ex parte Young and innumerable other cases show, there is nothing incongruous ' about a duty imposed on a “State” that Congress intended to be effectuated by an order directed to an appropriate state official. The habeas corpus statute, again, comes to mind. It has long required “the State,” by “order directed to an appropriate State official,” to produce the state-court record where an indigent habeas petitioner argues that a state court’s factual findings are not fairly supported in the record. See 28 U. S. C. § 2254(e) (“the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official”). If, then, IGRA’s references to “a State’s” duty were not enforceable by order to a state official, it would have to be for some other reason than the placement of the statutory duty on “the State.”

It may be that even the Court agrees, for it falls back to the position, see ante, at 75, n. 17, that only a State, not a state officer, can enter into a compact. This is true but wholly beside the point. The issue is whether negotiation should take place as required by IGRA and an officer (indeed, only an officer) can negotiate. In fact, the only case cited by the Court, State ex rel. Stephan v. Finney, 251 Kan. 559, 836 P. 2d 1169 (1992), makes that distinction abundantly clear.

Finally, one must judge the Court’s purported inference by stepping back to ask why Congress could possibly have intended to jeopardize the enforcement of the statute by excluding application of Young’s traditional jurisdictional rule, when that rule would make the difference between success or failure in the federal court if state sovereign immunity was recognized. Why would Congress have wanted to go for broke on the issue of state immunity in the event the State pleaded immunity as a jurisdictional bar? Why would Congress not have wanted IGRA to be enforced by means of a traditional doctrine giving federal courts jurisdiction over state officers, in an effort to harmonize state sovereign immunity with federal law that is paramount under the Supremacy Clause? There are no plausible answers to these questions.

D

There is, finally, a response to the Court’s rejection of Young that ought to go without saying. Our longstanding practice is to read ambiguous statutes to avoid constitutional infirmity, Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988) (“‘every reasonable construction must be resorted to, in order to save a statute from unconstitutionality’ ”) (quoting Hooper v. California, 155 U, S. 648, 657 (1895)). This practice alone (without any need for a clear statement to displace Young) would be enough to require Young’s, application. So, too, would the application of another rule, requiring courts to choose any reasonable construction of a statute that would eliminate the need to confront a contested constitutional issue (in this case, the place of state sovereign immunity in federal-question cases and the status of Union Gas). NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 500-501 (1979). Construing the statute to harmonize with Young, as it readily does, would have saved an Act of Congress and rendered a discussion on constitutional grounds wholly unnecessary. This case should be decided on this basis alone.

V

Absent the application of Ex parte Young, I would, of course, follow Union Gas in recognizing congressional power under Article I to abrogate Hans immunity. Since the reasons for this position, as explained in Parts II — III, supra, tend to unsettle Hans as well as support Union Gas, I should add a word about my reasons for continuing to accept Hans’s holding as a matter of stare decisis.

The Hans doctrine was erroneous, but it has not previously proven to be unworkable or to conflict with later doctrine or to suffer from the effects of facts developed since its decision (apart from those indicating its original errors). I would therefore treat Hans as it has always been treated in fact until today, as a doctrine of federal common law. For, as so understood, it has formed one of the strands of the federal relationship for over a century now, and the stability of that relationship is itself a value that stare decisis aims to respect.

In being ready to hold that the relationship may still be altered, not by the Court but by Congress, I would tread the course laid out elsewhere in our cases. The Court has repeatedly stated its assumption that insofar as the relative positions of States and Nation may be affected consistently with the Tenth Amendment,65 they would not be modified without deliberately expressed intent. See Gregory v. Ashcroft, 501 U. S., at 460-461. The plain-statement rule, which “assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision,” United States v. Bass, 404 U. S., at 349, is particularly appropriate in light of our primary reliance on “[t]he effectiveness of the federal political process in preserving the States’ interests,” Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 552 (1985).66 Hence, we have required such a plain statement when Congress preempts the historic powers of the States, Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947), imposes a condition on the grant of federal moneys, South Dakota v. Dole, 483 U. S. 203, 207 (1987), or seeks to regulate a State’s ability to determine the qualifications of its own officials, Gregory, supra, at 464.

When judging legislation passed under unmistakable Article I powers, no further restriction could be required. Nor does the Court explain why more could be demanded. In the past, we have assumed that a plain-statement requirement is sufficient to protect the States from undue federal encroachments upon their traditional immunity from suit. See, e. g., Welch v. Texas Dept. of Highways & Public Transp., 483 U. S., at 475; Atascadero State Hospital v. Scanlon, 473 U. S., at 239-240. It is hard to contend that this rule has set the bar too low, for (except in Union Gas) we have never found the requirement to be met outside the context of laws passed under § 5 of the Fourteenth Amendment. The exception I would recognize today proves the rule, moreover, because the federal abrogation of state immunity comes as part of a regulatory scheme which is itself designed to invest the States with regulatory powers that Congress need not extend to them. This fact suggests to me that the political safeguards of federalism are working, that a plain-statement rule is an adequate check on congressional overreaching, and that today’s abandonment of that approach is wholly unwarranted.

There is an even more fundamental “clear statement” principle, however, that the Court abandons today. John Marshall recognized it over a century and a half ago in the very context of state sovereign immunity in federal-question cases:

“The jurisdiction of the court, then, being extended by the letter of the constitution to all cases arising under it, or under the laws of the United States, it follows that those who would withdraw any case of this description from that jurisdiction, must sustain the exemption they claim on the spirit and true meaning of the constitution, which spirit and true meaning must be so apparent as to overrule the words which its framers have employed.” Cohens v. Virginia, 6 Wheat., at 379-380.

Because neither text, precedent, nor history supports the majority’s abdication of our responsibility to exercise the jurisdiction entrusted to us in Article III, I would reverse the judgment of the Court of Appeals.

1

The two Citizen-State Diversity Clauses provide as follows: “The judicial Power shall extend ... to Controversies . . . between a State and Citizens of another State;... and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” U. S. Const., Art. Ill, §2. In his opinion in Union Gas, Justice Stevens referred to these Clauses as the “citizen-state” and “alien-state” Clauses, respectively, Pennsylvania v. Union Gas Co., 491 U. S. 1, 24 (1989) (concurring opinion). I have grouped the two as “Citizen-State Diversity Clauses” for ease in frequent repetition here.

2

The first of these notions rests on the ancient maxim that “the Eing can do no wrong.” See, e. g., 1W. Blackstone, Commentaries *244. Professor Jaffe has argued this expression “originally meant precisely the contrary to what it later came to mean,” that is, “ ‘it meant that the king must not, was not allowed, not entitled, to do wrong.’” Jaffe, 77 Harv. L. Rev., at 4 (quoting L. Ehrlich, Proceedings Against the Crown (1216-1377), p. 42, in 6 Oxford Studies in Social and Legal History (P. Vinogradoff ed. 1921), p. 42); see also 1 Blackstone, supra, at *246 (interpreting the maxim to mean that “the prerogative of the crown extends not to do any injury”). In any event, it is clear that the idea of the sovereign, or any part of it, being above the law in this sense has not survived in American law. See, e. g., Langford v. United States, 101 U. S. 341, 342-343 (1880); Nevada v. Hall, 440 U. S. 410, 415 (1979).

3

The text reads that “[t]he Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State; — between Citizens of different States, — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

4

The one statement I have found on the subject of States’ immunity in federal-question eases was an opinion that immunity would not be applicable in these cases: James Wilson, in the Pennsylvania ratification debate, stated that the federal-question clause would require States to make good on pre-Revolutionary debt owed to English merchants (the enforcement of which was promised in the Treaty of 1783) and thereby “show the world that we make the faith of treaties a constitutional part of the character of the United States; that we secure its performance no longer nominally, for the judges of the United States will be enabled to carry it into effect, let the legislatures of the different states do what they may.” 2 J. Elliot, Debates on the Federal Constitution 490 (2d ed. 1836) (Elliot’s Debates).

5

This lengthy discussion of the history of the Constitution’s ratification, the Court’s opinion in Chisholm v. Georgia, 2 Dall. 419 (1793), and the adoption of the Eleventh Amendment is necessary to explain why, in my view, the contentions in some of our earlier opinions that Chisholm ere-ated a great “shock of surprise” misread the history. See Principality of Monaco v. Mississippi, 292 U. S. 313 (1934). The Court’s response to this historical analysis is simply to recite yet again Monaco’s erroneous assertion that Chisholm created “such a shock of surprise that the Eleventh Amendment was at once proposed and adopted,” 292 U. S., at 325. See ante, at 69. This response is, with respect, no response at all.

Monaco’s ipse dixit that Chisholm created a “shock of surprise” does not make it so. This Court’s opinions frequently make assertions of historical fact, but those assertions are not authoritative as to history in the same way that our interpretations of laws are authoritative as to them. In Tucker v. Alexandroff, 183 U. S. 424, 434 (1902), which was, like Monaco, decided a century after the event it purported to recount, the Court baldly stated that “in September 1790, General Washington, on the advice of Mr. Adams, did refuse to permit British troops to march through the territory of the United States from Detroit to the Mississippi, apparently for the reason that the object of such movement was an attack on New Orleans and the Spanish possessions on the Mississippi.” Modern historians agree, however, that there was no such request, see J. Daly, The Use of History in the Decisions of the Supreme Court: 1900-1930, pp. 65-66 (1954); W. Manning, The Nootka Sound Controversy, in Annual Report of the American Historical Association, H. R. Doc. No. 429, 58th Cong., 3d Sess., pp. 415-423 (1905), and it would of course be absurd for this Court to treat the fact that Tucker asserted the existence of the request as proof that it actually occurred. Cf. Erie R. Co. v. Tompkins, 304 U. S. 64, 72-73 (1938) (“But it was the more recent research of a competent scholar, who examined the original document, which established that the construction given to [the Judiciary Act of 1789] by the Court was erroneous; and that the purpose of the section was merely to make certain that, in all matters except those in which some federal law is controlling, the federal courts exercising jurisdiction in diversity of citizenship cases would apply as their rules of decision the law of the State, unwritten as well as written”).

Moreover, in this case, there is ample evidence contradicting the “shock of surprise” thesis. Contrary to Monaco’s suggestion, the Eleventh Amendment was not “at once proposed and adopted.” Congress was in session when Chisholm was decided, and a constitutional amendment in response was proposed two days later, but Congress never acted on it, and in fact it was not until two years after Chisholm was handed down that an Amendment was ratified. See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1926-1927 (1983).

6

See also 2 Dall., at 435 (“[I]t is certain that in regard to any common law principle which can influence the question before us no alteration has been made by any statute”); id., at 437 (if “no new remedy be provided ... we have no other rule to govern us but the principles of the pre-existent laws, which must remain in force till superseded by others”); Atascadero State Hospital v. Scanlon, 473 U. S. 234, 283 (1985) (Brennan, J., dissenting). But see Justice Iredell’s dicta suggesting that the Constitution would not permit suits against a State. Chisholm, supra, at 449 (dissenting opinion); Atascadero, supra, at 283, n. 34 (Brennan, J., dissenting).

7

Of course, even if Justice Iredell had concluded that state sovereign immunity was not subject to abrogation, it would be inappropriate to assume (as it appears the Court does today, and Hans v. Louisiana, 134 U. S. 1 (1890), did as well) that the Eleventh Amendment (regardless of what it says) “constitutionalized” Justice Iredell’s dissent, or that it simply adopted the opposite of the holding in Chisholm. It is as odd to read the Eleventh Amendment’s rejection of Chisholm (which held that States may be sued in diversity) to say that States may not be sued on a federal question as it would be to read the Twenty-Sixth Amendment’s rejection of Oregon v. Mitchell, 400 U. S. 112 (1970) (which held that Congress could not require States to extend the suffrage to 18-year-olds) to permit Congress to require States to extend the suffrage to 12-year-olds.

8

The great weight of scholarly commentary agrees. See, e. g., Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L. J. 1 (1988); Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425 (1987); Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033 (1983); Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889 (1983); Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Congressional Imposition of Suit Upon the States, 126 U. Pa. L. Rev. 1203 (1978). While a minority has adopted the second view set out above, see, e. g., Marshall, Fighting the Words of the Eleventh Amendment, 102 Harv. L. Rev. 1342 (1989); Massey, State Sovereignty and the Tenth and Eleventh Amendments, 56 U. Chi. L. Rev. 61 (1989), and others have criticized the diversity theory, see, e. g., Marshall, The Diversity Theory of the Eleventh Amendment: A Critical Evaluation, 102 Harv. L. Rev. 1372 (1989), I have discovered no commentator affirmatively advocating the position taken by the Court today. As one scholar has observed, the literature is “remarkably consistent in its evaluation of the historical evidence and text of the amendment as not supporting a broad rule of constitutional immunity for states.” Jackson, supra, at 44, n. 179.

9

Vassall initiated a suit against Massachusetts, invoking the original jurisdiction of the Supreme Court. Although the marshal for the district of Massachusetts served a subpoena on Governor John Hancock and Attorney General James Sullivan, the Commonwealth of Massachusetts did not appear by the original return date of August 1793, and the case was continued to the February 1794 Term. Massachusetts never did appear, and the case was “simply continued from term to term through 1796.” 5 Documentary History of the Supreme Court of the United States, at 369. In February 1797 the suit was “dismissed with Costs, for reasons unknown,” ibid, (internal quotation marks omitted), perhaps because “Vassall failed to prosecute it properly,” ibid.

10

We have generally rejected Eleventh Amendment challenges to our appellate jurisdiction on the specious ground that an appeal is not a “suit” for purposes of the Amendment. See, e. g., McKesson Corf. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18, 27 (1990). Although Cohens v. Virginia, 6 Wheat. 264, 412 (1821), is cited for this proposition, that case involved a State as plaintiff. See generally Jackson, 98 Yale L. J., at 32-35 (rejecting the appeal/suit distinction). The appeal/suit distinction, in any ease, makes no sense. Whether or not an appeal is a “suit” in its own right, it is certainly a means by which an appellate court exercises jurisdiction over a “suit” that began in the courts below. Cf. Griggs v. Provident Consumer Discount Co., 459 U. S. 56, 58 (1982) (per curiam) (“The filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal”).

11

See also Pennsylvania v. Union Gas Co., 491 U. S., at 31 (Scalia, J., concurring in part and dissenting in part) (“If this text [of the Eleventh Amendment] were intended as a comprehensive description of state sovereign immunity in federal courts ... then it would unquestionably be most reasonable to interpret it as providing immunity only when the sole basis of federal jurisdiction is the diversity of citizenship that it describes (which of course tracks some of the diversity jurisdictional grants in U. S. Const., Art. Ill, §2). For there is no plausible reason why one would wish to protect a State from being sued in federal court for violation of federal law . . . when the plaintiff is a citizen of another State or country, but to permit a State to be sued there when the plaintiff is citizen of the State itself”).

12

The Court does suggest that the drafters of the Eleventh Amendment may not have had federal-question jurisdiction in mind, in the apparent belief that this somehow supports its reading. Ante, at 69-70. The possibility, however, that those who drafted the Eleventh Amendment intended to deal “only with the problem presented by the decision in Chisholm” would demonstrate, if any demonstration beyond the clear language of the Eleventh Amendment were necessary, that the Eleventh Amendment was not intended to address the broader issue of federal-question suits brought by citizens.

Moreover, the Court’s point is built on a faulty foundation. The Court is simply incorrect in asserting that “the federal courts did not have federal-question jurisdiction at the time the Amendment was passed.” Ibid. Article III, of course, provided for such jurisdiction, and early Congresses exercised their authority pursuant to Article III to confer jurisdiction on the federal courts to resolve various matters of federal law. E. g., Act of Apr. 10,1790, §5,1 Stat. Ill; Act of Feb. 21,1793, §6,1 Stat. 322; Act of Mar. 23, 1792, §§ 2, 3, 1 Stat. 244; see also Osborn v. Bank of United States, 9 Wheat. 738 (1824) (holding that federal statute conferred federal-question jurisdiction in cases involving the Bank of the United States); see generally P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System 960-982 (3d ed. 1988). In fact, only six years after the passage of the Eleventh Amendment, Congress enacted a statute providing for general federal-question jurisdiction. Act of Feb. 13, 1801, § 11, 2 Stat. 92 (“[T]he said circuit courts respectively shall have cognizance of... all eases in law or equity, arising under the constitution and laws of the United States, and treaties made, or which shall be made, under their authority”). It is, of course, true that this statute proved short lived (it was repealed by the Act of Mar. 8, 1802, 2 Stat. 132), and that Congress did not pass another statute conferring general federal jurisdiction until 1875, but the drafters of the Eleventh Amendment obviously could not have predicted such things. The real significance of the 1801 Act is that it demonstrates the awareness among the Members of the early Congresses of the potential scope of Article III. This, in combination with the pre-Eleventh Amendment statutes that conferred federal-question jurisdiction on the federal courts, cast considerable doubt on the Court’s suggestion that the issue of federal-question jurisdiction never occurred to the drafters of the Eleventh Amendment; on the contrary, just because these early statutes underscore the early Congresses’ recognition of the availability of federal-question jurisdiction, the silence of the Eleventh Amendment is all the more deafening.

13

The majority chides me that the “lengthy analysis of the text of the Eleventh Amendment is directed at a straw man,” ante, at 69. But plain text is the Man of Steel in a confrontation with “background principle[s]” and “ ‘postulates which limit and control,’ ” ante, at 68, 72. An argument rooted in the text of a constitutional provision may not be guaranteed of carrying the day, but insubstantiality is not its failing. See, e. g., Monaghan, Our Perfect Constitution, 56 N. Y. U. L. Rev. 353, 383-384 (1981) (“For the purposes of legal reasoning, the binding quality of the constitutional text is itself incapable of and not in need of further demonstration”); cf. Bourjaily v. United States, 483 U. S. 171, 178 (1987) (Rehnquist, C. J.) (“It would be extraordinary to require legislative history to confirm the plain meaning of [Federal Rule of Evidence] 104”); Garcia v. United States, 469 U. S. 70, 75 (1984) (Rehnquist, J.) (“[0]nly the most extraordinary showing of contrary intentions from [the legislative history] would justify a limitation on the ‘plain meaning’ of the statutory language”). This is particularly true in construing the jurisdictional provisions of Article III, which speak with a clarity not to be found in some of the more open-textured provisions of the Constitution. See National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U. S. 582, 646-647 (1949) (Frankfurter, J., dissenting); Schauer, Easy Cases, 58 S. Cal. L. Rev. 399, 424 (1985) (noting the “seemingly plain linguistic mandate” of the Eleventh Amendment). That the Court thinks otherwise is an indication of just how far it has strayed beyond the boundaries of traditional constitutional analysis.

14

Professor Jackson has noted the “remarkabl[e] consisten[cy]” of the scholarship on this point, Jackson, 98 Yale L. J., at 44, n. 179. See also n. 8, supra.

15

Indeed, as Justice Stevens suggests, there is language in Hans suggesting that the Court was really construing the Judiciary Act of 1875 rather than the Constitution. See ante, at 84-87.

16

See Gibbons, 83 Colum. L. Rev., at 2000 (“Without weakening the contract clause, which over the next two decades the Fuller Court might need both in its fight against government regulation of business and as a weapon against defaulting local governments, the justices needed a way to let the South win the repudiation war. The means Bradley chose was to rewrite the eleventh amendment and the history of its adoption”). The commentators’ contention that this Court’s inability to enforce the obligation of Southern States to pay their debts influenced the result in Hans v. Louisiana, 134 U. S. 1 (1890), is substantiated by three anomalies of this Court’s sovereign immunity jurisprudence during that period. First, this Court held in 1885 that Virginia’s sovereign immunity did not allow it to abrogate its bonds. Virginia Coupon Cases, 114 U. S. 269. The difference from the situation in other States, however, was that Virginia had made its bond coupons receivable in payment of state taxes; “[u]nder these circumstances federal courts did not need to rely on the political branches of government to enforce their orders but could protect creditors by a judgment that their taxes had in fact been paid. In these cases the Eleventh Amendment faded into the background.” J. Orth, Judicial Power of the United States: The Eleventh Amendment in American History 9 (1987); see generally id., at 90-109. Second, at the same time that this Court was articulating broad principles of immunity for States, we refused to recognize similar immunity for municipalities and similar state political subdivisions. See, e. g., Lincoln County v. Luning, 133 U. S. 529 (1890). Professor Orth suggests that this seeming inconsistency is traceable to the enforcement difficulties arising from the withdrawal of federal troops from the South. “It just so happened,” he points out, “that counties had tended to issue bonds in the West, while in the South, states had usually done the job. Property in the form of bonds could be defended in the mid-West and West, but similar property in the South had to be sacrificed to the higher politics of the Compromise of 1877.” Orth, supra, at 111. Finally, Professor Orth attributes this Court’s recognition (or revival) of the Ex parte Young, 209 U. S. 123 (1908), action as a way around state sovereign immunity to the fact that, by 1908, “the problem of repudiated Southern bonds was clearly a specter from an increasingly distant past.” Orth, supra, at 128. See also Gibbons, supra, at 2002 (arguing that the Court’s unanimous revival of its power to grant equitable relief against state officers in Pennoyer v. McConnaughy, 140 U. S. 1 (1891), was made possible by the fact that'the ease “did not involve Southern State bonds”). I am reluctant, to be sure, to ascribe these legal developments to a single, extralegal cause, and at least one commentator has suggested that the Southern debt crisis may not have been the only factor driving the Court’s Eleventh Amendment jurisprudence during this period. See generally Collins, The Conspiracy Theory of the Eleventh Amendment, 88 Colum. L. Rev. 212 (1988) (reviewing Orth). But neither would I ignore the pattern of the cases, which tends to show that the presence or absence of enforcement difficulties significantly influenced the path of the law in this area. See id., at 248 (acknowledging that “[i]t is perfectly conceivable that Compromise-related politics exerted their influence at the margin— in doubtful cases in which the Court might have gone either way”).

17

Today’s majority condemns my attention to Hans’s historical circumstances as “a disservice to the Court’s traditional method of adjudication.” Ante, at 69. The point, however, is not that historical circumstance may undermine an otherwise defensible decision; on the contrary, it is just because Hans is so utterly indefensible on the merits of its legal analysis that one is forced to look elsewhere in order to understand how the Court could have gone so far wrong. Nor is there anything new or remarkable in taking such a look, for we have sought similar explanations in other cases. In Puerto Rico v. Branstad, 483 U. S. 219 (1987), for example, we suggested that the Court’s holding in Kentucky v. Dennison, 24 How. 66 (1861), that “the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it,” id., at 107, was influenced by “the looming shadow of a Civil War,” Branstad, supra, at 227, and we ultimately determined that Dennison should be overruled, 483 U. S., at 230. The author of the Court’s opinion today joined that analysis, as did the other Members of today’s majority who were then on the Court. See ibid. (O’Connor, J., concurring in part and concurring in judgment) (joining the relevant portion of the majority opinion); id., at 231 (Scalia, J., concurring in part and concurring in judgment) (same).

18

See also Georgia Railroad & Banking Co. v. Redwine, 342 U. S. 299, 304 (1952) (same); Fitts v. McGhee, 172 U. S. 516, 524 (1899) (same). Even Justice Scalia’s dissent in Union Gas, the reasoning of which the majority adopts today, acknowledged that its view of sovereign immunity depended upon “some other constitutional principle beyond the immediate text of the Eleventh Amendment.” 491 U. S., at 31 (opinion concurring in part and dissenting in part). To the extent that our prior eases do refer to Hans immunity as part of the Eleventh Amendment, they can only be referring to Justice Stevens’s “other” Eleventh Amendment. Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 53 (1994) (Stevens, J., concurring); see also Pennsylvania v. Union Gas Co., supra, at 23-29 (Stevens, J., concurring) (same).

19

See also Union Gas, 491 U. S., at 31-32 (Scalia, J., concurring in part and dissenting in part) (“What we said in Hans was, essentially, that the Eleventh Amendment was important not merely for what it said but for what it reflected: a consensus that the doctrine of sovereign immunity, for States as well as for the Federal Government, was part of the understood background against which the Constitution was adopted, and which its jurisdictional provisions did not mean to sweep away”); Nevada v. Hall, 440 U. S., at 440 (Rehnquist, J., dissenting) (interpreting Monaco as “rel[ying] on precepts underlying but not explicit in Art. Ill and the Eleventh Amendment”).

20

There are good reasons not to take many of these statements too seriously. Some are plainly exaggerated; for example, the suggestion in Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 51 (1944), that “[a] state’s freedom from litigation was established as a constitutional right through the Eleventh Amendment” obviously ignores a State’s liability to suit by other States, see, e. g., South Dakota v. North Carolina, 192 U. S. 286 (1904), and by the National Government, see, e. g., United States v. Texas, 143 U. S. 621 (1892). See also Nevada v. Hall, supra, at 420, n. 19 (noting that “the Eleventh Amendment has not accorded the States absolute sovereign immunity in federal-court actions”). Similarly, statements such as in Ex parte New York, 256 U. S., at 497, that “the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given” should not necessarily be taken as affirming that Article III itself incorporated a constitutional immunity doctrine. How else to explain Justice Harlan’s concurring opinion in Hans, which stated, practically in the same breath, that “a suit directly against a State by one of its own citizens is not one to which the judicial power of the United States extends,” and that Chisholm “was based upon a sound interpretation of. the Constitution as that instrument then was”? 134 U. S., at 21.

21

See also Georgia Railroad & Banking Co. v. Redwine, supra, at 304; Fitts v. McGhee, supra, at 524-525.

22

See also Warth v. Seldin, 422 U. S. 490, 501 (1975) (“Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules”); E. Chemerinsky, Federal Jurisdiction §2.1, pp. 42-43 (2d ed. 1994).

23

Indeed, The Chief Justice could hardly have been clearer in Fry v. United States, 421 U. S. 542 (1975), where he explained that “[t]he Court’s decision in Hans v. Louisiana, 134 U. S. 1 (1890), offers impressive authority for the principle that the States as such were regarded by the Framers of the Constitution as partaking of many attributes of sovereignty quite apart from the provisions of the Tenth Amendment....

24

Indeed, in Nevada v. Hall, supra, at 439, The Chief Justice complained in dissent that the same statements upon which he relies today had been “dismiss[ed]... as dicta.”

25

In Hoffman, one Member of the four Justice plurality expressly disavowed the plurality’s assumption that Congress could abrogate the States’ immunity by making its intent to do so clear. See 492 U. S., at 105 (O’Connor, J., concurring). The four dissenters, however, not only assumed that Congress had the power to abrogate but found that it had done so. See id,., at 106 (Marshall, J., dissenting). Likewise, in Welch, the four-Justice plurality was joined by four dissenters who insisted upon a congressional power of abrogation. See 483 U. S., at 519 (Brennan, J., dissenting).

26

The Court seeks to disparage the common-law roots of the doctrine, and the consequences of those roots which I outline infra, at 132-142 and 159-164, by asserting that Hans “found its roots not solely in the common law of England, but in the much more fundamental ‘ “jurisprudence in all civilized nations.’”” Ante, at 69 (quoting Hans, 134 U. S., at 17). The Hans Court, however, relied explicitly on the ground that a suit against the State by its own citizen was “not known ... at the common law” and was not among the departures from the common law recognized by the Constitution. Id., at 15. Moreover, Hans explicitly adopted the reasoning of Justice Iredell’s dissent in Chisholm, see 134 U. S., at 18-19, and that opinion could hardly have been clearer in relying exclusively on the common law. “The only principles of law . .. which can affect this case,” Justice Iredell wrote, “[are] those that are derived from what is properly termed ‘the common law,’ a law which I presume is the ground-work of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of Legislation controuls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the country.” 2 Dall., at 435 (emphasis deleted). See also Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279, 288 (1973) (Marshall, J., concurring in result) (“Sovereign immunity is a common-law doctrine that long predates our Constitution and the Eleventh Amendment, although it has, of course, been carried forward in our jurisprudence”); R. Watkins, The State as a Party Litigant 51-52 (1927) (“It thus seems probable that the doctrine of state immunity was accepted rather as an existing fact by the people of the states, than adopted as a theory. It was a matter of universal practice, and was accepted from the mother country along with the rest of the common law of England applicable to our changed state and condition”).

27

See, e. g., Hall, The Common Law: An Account of its Reception in the United States, 4 Vand. L. Rev. 791, 796 (1951) (“Whether we emphasize the imitation by the colonists of the practices of English local courts or whether we say the early colonial judges were really applying their own common-sense ideas of justice, the fact remains that there was an incomplete acceptance in America of English legal principles, and this indigenous law which developed in America remained as a significant source of law after the Revolution”).

28

See also Jones, The Common Law in the United States: English Themes and American Variations, in Political Separation and Legal Continuity 95-98 (H. Jones ed. 1976) (Jones) (acknowledging that a true common-law system had not yet developed in the early colonial period); Stoebuck, Reception of English Common Law in the American Colonies, 10 Wm. & Mary L. Rev. 393, 406-407 (1968) (same).

29

See, e. g., Reinsch, English Common Law in the Early American Colonies, at 7 (finding that the colonists developed their own “rude, popular, summary” system of justice despite professed adhesion to the common law); C. Hilkey, Legal Development in Colonial Massachusetts, 1630-1686, p. 69 (1967) (emphasizing Biblical and indigenous sources); Radin, The Rivalry of Common-Law and Civil Law Ideas in the American Colonies, in 2 Law: A Century of Progress 404, 407-411 (1937) (emphasizing natural law and Roman law); Goebel, King’s Law and Local Custom in Seventeenth Century New England, 31 Colum. L. Rev. 416 (1931) (finding that the early settlers imported the law and procedure of the borough and manor courts with which they had been familiar in England).

30

See also Stoebuck, supra, at 411-412 (indicating that the Colonies became significantly more receptive to the common law after 1700, in part because of a British desire to regularize colonial legal systems).

31

See also Jones 98 (“The selective nature of the reception is evident in any examination of the state of law in the colonies in the years immediately preceding the Revolution”). An example is Trott’s law, adopted by South Carolina in 1712, which declared which English statutes were in force in the Colony. Many laws of England, Trott conceded, were “altogether useless” in South Carolina “by reason of the different way of agriculture and the differing productions of the earth of this Province from that of England”; others were “impracticable” because of differences in institutions. L. Friedman, A History of American Law 90-93 (2d ed. 1985); see also C. Warren, History of the American Bar 122-123 (1911) (quoting North Carolina statute, passed in 1715, providing that the common law would be in force “ ‘so far as shall be compatible with our way of living and trade’ ”).

32

American hostility to things English was so pronounced for a time that Pennsylvania, New Jersey, and Kentucky proscribed by statute the citation of English decisions in their courts, and the New Hampshire courts promulgated a rule of court to the same effect. See Hall, 4 Vand. L. Rev., at 806; Warren, supra, at 227. This hostility may appear somewhat paradoxical in view of the colonists’ frequent insistence during the revolutionary crisis that they were entitled to common-law rights. See, e. g., First Continental Congress Declaration and Resolves (1774), in Documents Illustrative of the Formation of the Union of the American States, H. R. Doe. No. 398, 69th Cong., 1st Sess., 1, 3 (C. Tansill ed. 1927) (“That the respective colonies are entitled to the common law of England”). In this context, however, the colonists were referring “not to the corpus of English case-law doctrine but to such profoundly valued common law procedures as trial by jury and the subjection of governmental power to what John Locke had called the ‘standing laws,”’ such as Magna Carta, the Petition of Right, the Bill of Rights of 1689, and the Act of Settlement of 1701. Jones 110; see also Jay, Origins of Federal Common Law: Part Two, 133 U. Pa. L. Rev. 1231, 1256 (1985) (Jay II) (noting that “Antifederalists used the term common law to mean the great rights associated with due process”). The cardinal principles of this common-law vision were parliamentary supremacy and the rule of law, conceived as the axiom that “all members of society, government officials as well as private persons, are equally responsible to the law and ... ‘equally amenable to the jurisdiction of ordinary tribunals.’” Jones 128-129 (quoting A. Dicey, Introduction to Study of the Law of Constitution 192 (9th ed. 1939)). It is hard to imagine that the doctrine of sovereign immunity, so profoundly at odds with both these cardinal principles, could have been imported to America as part of this more generalized common-law vision.

33

See, e. g., Conner v. Shepherd, 15 Mass. 164 (1818) (rejecting English common-law rule regarding assignment of dower rights as inapplicable to the state and condition of land in Massachusetts); Parker & Edgarton v. Foote, 19 Wend. 309, 318 (N. Y. 1838) (rejecting English rule entitling a landowner to damages for the stopping of his lights; the court noted that “[i]t cannot be necessary to cite cases to prove that those portions of the common law of England which are hostile to the spirit of our institutions, or which are not adapted to the existing state of things in this country, form no part of our law”); Fitch v. Brainerd, 2 Conn. 163, 189 (1805) (accepting English common-law rule barring married woman from disposing of her real estate by will, and observing that “it long since became necessary ... to make [the English common law] our own, by practical adoption — with such exceptions as a diversity of circumstances, and the incipient customs of our own country, required”) (emphasis in original); Martin v. Bigelow, 2 Aiken 184 (Vt. 1827) (declaring English common law as to stream rights inappropriate for conditions of Vermont waterways); Hall v. Smith, 1 Bay 330, 331 (S. C. Sup. Ct. 1793) (refusing to apply strict English rules regarding promissory notes as unsuited to the “local situation of Carolina”). See also Hall, supra, at 805 (“[A] review of the cases shows that no matter what the wording of the reception statute or constitutional provision of the particular state, the rule developed, which was sooner or later to be repeated in practically every American jurisdiction, that only those principles of the common law were received which were applicable to the local situation”).

34

See also Jones 123-124 (noting that the common-law institutions of habeas corpus and jury trial were “not merely received as ordinary law,” but rather “received by [specific textual provisions] of the Constitution itself, as part of the supreme law of the land”). Sovereign immunity, of course, was not elevated to constitutional status in this way; such immunity thus stands on the same footing as any other common-law principle which the Framers refused to place beyond the reach of legislative change. That such principles were and are subject to legislative alteration is confirmed by our treatment of other forms of common-law immunities, such as the immunity enjoyed under certain circumstances by public officials. Butz v. Economou, 438 U. S. 478, 508 (1978) (officer immunity is derived from the common law); Imbler v. Pachtman, 424 U. S. 409, 421 (1976) (same). In this context, “our immunity decisions have been informed by the common law” only “in the absence of explicit . . . congressional guidance.” Nixon v. Fitzgerald, 457 U. S. 731, 747 (1982). See generally ante, at 87-88 (Stevens, J., dissenting); Jackson, 98 Yale L. J., at 75-104. Surely no one would deny Congress the power to abrogate those immunities if it should so choose.

35

See, e. g., 2 Elliot’s Debates 400 (Thomas Tredwell, New York Convention) (“[W]e are ignorant whether [federal proceedings] shall be according to the common, civil, the Jewish, or Turkish law ...”).

36

See also Justice Jay’s Charge to the Grand Jury for the District of New York (Apr. 4, 1790) (observing that at the time the Nation was formed, “[o]ur jurisprudence varied in almost every State, and was accommodated to local, not general convenience — to partial, not national policy”) (quoted in Jay, Origins of Federal Common Law: Part One, 133 U. Pa. L. Rev. 1003, 1056, n. 261 (1985) (Jay I)); United States v. Worrall, 28 F. Cas. 774, 779 (No. 16,766) (CC Pa. 1798) (Chase, J.) (noting that “[t]he common law... of one state, is not the common law of another”); 8 Annals of Cong. 2137 (1798) (statement of Rep. Albert Gallatin) (asserting that there could be no national common law because “[t]he common law of Great Britain received in each colony, had in every one received modifications arising from their situation . . . and now each State had a common law, in its general principles the same, but in many particulars differing from each other”).

37

See also Jay II, at 1241-1250 (arguing that Jeffersonian Republicans resisted the idea of a general federal reception of the common law as an incursion on States’ rights); Jay I, at 1111 (same). Given the roots of the Framers’ resistance, the Court’s reception of the English common law into the Constitution itself in the very name of state sovereignty goes beyond the limits of irony.

38

See 3 Elliot’s Debates 573 (the Constitution would “render valid and effective existing claims” against the States). See also 2 id., at 491 (James Wilson, in the Pennsylvania ratification debate: “When a citizen has a controversy with another state, there ought to be a tribunal where both parties may stand on a just and equal footing”). Wilson, as I noted above, took a similar position in addressing the federal question, or arising under, clause, remarking that the effect of the clause would be to require States to honor pre-Revolutionary debt owed to English merchants, as had been promised in the Treaty of 1783. See n. 4, supra.

39

The Court accuses me of quoting this statement out of context, ante, at 70, n. 12, but the additional material included by the Court makes no difference. I am conceding that Madison, Hamilton, and Marshall all agreed that Article III did not of its own force abrogate the States’ preexisting common-law immunity, at least with respect to diversity suits. None of the statements offered by the Court, however, purports to deal with federal-question jurisdiction or with the question whether Congress, acting pursuant to its Article I powers, could create a cause of action against a State. As I explain further below, the views of Madison and his allies on this more difficult question can be divined, if at all, only by reference to the more extended discussions by Hamilton in The Federalist No. 32, and by Justice Iredell in his Chisholm dissent. Both those discussions, I submit, tend to support a congressional power of abrogation.

40

See also Worcester v. Georgia, 6 Pet. 515, 560-561 (1832) (“The Cherokee nation ... is a distinct community ... in which the laws of Georgia can have no force. . . . The whole intercourse between the United States and this nation, is, by our Constitution and laws, vested in the government of the United States”). This Court has repeatedly rejected state attempts to assert sovereignty over Indian lands. See, e. g., The New York Indians, 5 Wall. 761, 769 (1867) (rejecting state attempt to tax reservation lands); Worcester, supra, at 561-563 (nullifying an attempted prosecution by the State of Georgia of a person who resided on Indian lands in violation of state law).

41

Although we have rejected a per se bar to state jurisdiction, it is clear that such jurisdiction remains the exception and not the rule. See New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 331-332 (1983) (footnotes omitted) (“[U]nder certain circumstances a State may validly assert authority over the activities of nonmembers on a reservation, and . . . in exceptional circumstances a State may assert jurisdiction over the on-reservation activities of tribal members”).

42

See The Federalist No. 82, p. 553 (J. Cooke ed. 1961) (A. Hamilton) (disclaiming any intent to answer all the “questions of intricacy and nicety” arising in a judicial system that must accommodate “the total or partial incorporation of a number of distinct sovereignties”); S. Elkins & E. McKitriek, The Age of Federalism 64 (1993) (suggesting that “[t]he amount of attention and discussion given to the judiciary in the Constitutional Convention was only a fraction of that devoted to the executive and legislative branches,” and that the Framers deliberately left many questions open for later resolution).

43

Regardless of its other faults, Chief Justice Taney’s opinion in Dred Scott v. Sandford, 19 How. 393 (1857), recognized as a structural matter that “[t]he new Government was not a mere change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and bound by all the obligations of the preceding one.” Id., at 441. See also F. McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 276 (1985) (“The constitutional reallocation of powers created a new form of government, unprecedented under the sun...”); S. Beer, To Make a Nation: The Rediscovery of American Federalism 150-151 (1993) (American view of sovereignty was “radically different” from that of British tradition).

44

Cf., e. g., 1W. Blackstone, Commentaries 49,160-162 (Cooper ed. 1808). This modern notion of sovereignty is traceable to the writings of Jean Bodin in the late 16th century. See J. Bodin, Six Books of the Commonwealth, bk. 2, ch. I, pp. 52-53 (M. Tooley, abr. & transí. 1967) (1576); see also T. Hobbes, Leviathan, Part II, ch. 29, pp. 150-151 (N. Fuller ed. 1952) (1651).

45

See Wood 530 (noting that James Wilson “[m]ore boldly and fully than anyone else ... developed the argument that would eventually become the basis of all Federalist thinking” about sovereignty); see also The Federalist No. 22, at 146 (A. Hamilton) (acknowledging the People as “that pure original fountain of all legitimate authority”); id., No. 49, at 339 (J. Madison) (“[T]he people are the only legitimate fountain of power”).

46

See also U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring) (the Constitution “created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it”).

47

See Amar, 96 Yale L. J., at 1434-1435 (“The ultimate American answer [to the British notion that the sovereign was by definition above the law], in part, lay in a radical redefinition of governmental ‘sovereignty.’ Just as a corporation could be delegated limited sovereign privileges by the King-in-Parliament, so governments could be delegated limited powers to govern. Within the limitations of their charters, governments could be sovereign, but that sovereignty could be bounded by the terms of the delegation itself” (footnote omitted)).

48

See, e. g., Amar, supra, at 1436 (“By thus relocating true sovereignty in the People themselves .. . Americans domesticated government power and decisively repudiated British notions of ‘sovereign’ governmental omnipotence” (footnote omitted)). That this repudiation extended to traditional principles of sovereign immunity is clear from Justice Wilson’s opinion in Chisholm, in which he blasted “the haughty notions of state independence, state sovereignty and state supremacy” as allowing “the state [to] assum[e] a supercilious pre-eminence above the people who have formed it.” 2 Dall., at 461.

49

See also Hobbes, supra, at 130 (“The sovereign of a Commonwealth, be it an assembly or one man, is not subject to the civil laws. . . . For he is free that can be free when he will: nor is it possible for any person to be bound to himself, because he that can bind can release; and therefore he that is bound to himself only is not bound”); Bodin, supra, at 28-29 (“One may be subject to laws made by another, but it is impossible to bind oneself in any matter which is the subject of one’s own free exercise of will. ... It follows of necessity that the king cannot be subject to his own laws”).

50

See also Wood 466 (“[O]nce men grasped, as they increasingly did in the middle [1780’s], that reform of the national government was the best means of remedying the evils caused by the state governments, then the revision of the Articles of Confederation assumed an impetus and an importance that it had not had a few years earlier”).

51

Cf. Jay I, at 1033-1034 (“English common law might afford clues to the meaning of some terms in the Constitution, but' the absence of any close federal model was recognized even at the Convention”); F. Coker, Commentary, in R. Pound, C. Mcllwain, & R. Nichols, Federalism as a Democratic Process 81-82 (1942).

52

See, e. g., Prout v. Starr, 188 U. S. 537, 543 (1903) (acknowledging the immunity recognized in Hans and other cases, but observing that “[i]t would, indeed, be most unfortunate if the immunity of the individual States from suits by citizens of other States, provided for in the Eleventh Amendment, were to be interpreted as nullifying those other provisions which confer power on Congress ... all of which provisions existed before the adoption of the Eleventh Amendment, which still exist, and which would be nullified and made of no effect, if the judicial power of the United States could not be invoked to protect citizens affected by the passage of state laws disregarding these constitutional limitations”). The majority contends that state compliance with federal law may be enforced by other means, ante, at 71, n. 14, but its suggestions are all pretty cold comfort: the enforcement resources of the Federal Government itself are limited; appellate review of state court decisions is contingent upon state consent to suit in state court, and is also called into,question by the majority’s rationale, see supra, at 114; and the Court’s decision today illustrates the uncertainty that the Court will always permit enforcement of federal law by suits for prospective relief against state officers. Moreover, the majority’s position ignores the importance of citizen suits to enforcement of federal law. See, e. g., Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240,263 (1975) (acknowledging that, in many instances, “Congress has opted to rely heavily on private enforcement to implement public policy”); see also S. Rep. No. 94-1011, p. 2 (Civil Rights Attorney’s Fees Awards Act of 1976,42 U. S. C. § 1988) (recognizing that “[a]ll of these civil rights laws depend heavily upon private enforcement”); Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U. S. 711, 737 (1987) (Blackmun, J., dissenting) (noting importance of citizens’ suits under federal environmental laws).

53

The Court’s further assertion, that “Congress itself waited nearly a century before even conferring federal-question jurisdiction on the lower federal courts,” ante, at 71, is simply incorrect. As I have noted, numerous early statutes conferred federal-question jurisdiction on the federal courts operating under the original Judiciary Act in particular kinds of eases, and the Judiciary Act of 1800 provided for general federal-question jurisdiction in the brief period before its repeal in 1801. See n. 12, supra.

54

Considering the example of Massachusetts, Professor Nelson observes that “the clearest illustration that legislation was coming to rest on the arbitrary power of a majoritarian legislature rather than on its conformity with past law and principle was the ease with which statutes altering common law rights were enacted and repealed in the 1780s in response to changing election results.” Nelson, Americanization of the Common Law, at 91-92.

55

See also Del. Const., Art. 25 (1776), in 2 Swindler, Sources and Documents of United States Constitutions, at 203 (“The common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution . . .”); Act of Feb. 25, 1784, in 1 First Laws of the State of Georgia 290 (1981) (declaring “the common laws of England” to be “in full force” “so far as they are not contrary to the constitution, laws and form of government now established in this State”); Mass. Const., Ch. VI, Art. VI (1780), in 5 Swindler, supra, at 108 (“All the laws which have heretofore been adopted, used, and approved in the province, colony, or State of Massachusetts Bay ... shall still remain and be in full force, until altered or repealed by the legislature ...”); Commonwealth v. Churchill, 2 Met. 118, 123-124 (Mass. 1840) (Shaw, C. J.) (construing “laws” in this provision to include common law); N. H. Const., Part II (1784), in 6 Swindler, supra, at 356 (“All the laws which have heretofore been adopted, used and approved, in the province, colony, or state of New-Hampshire . . . shall remain and be in full force, until altered and repealed by the legislature ...”); N. C. Laws 1778, Ch. V, in 1 First Laws of the State of North Carolina 353 (1984) (“[A]ll... such Parts of the Common Law, as were heretofore in Force and Use within this Territory ... as are not destructive of, repugnant to, or inconsistent with the Freedom and Independence of this State, and the Form of Government therein established, and which have not been otherwise provided for,... not abrogated, repealed, expired, or become obsolete, are hereby declared to be in full Force within this State”); N. Y. Const., Art. XXXV (1777), in 7 Swindler, supra, at 177-178 (“[S]uch parts of the common law of England ... as together did form the law of the said colony [of New York] on [April 19,1775], shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same”); R. I. Digest of 1766, quoted in 1 R. Powell & P. Rohan, Powell On Real Property ¶ 62, p. 212 (1995) (“‘[I]n all actions, causes, matters and things whatsoever, where there is no particular law of this colony, or act of parliament... then and in such cases the laws of England shall be in force for the decision and determination of the same’”); 2 T. Cooper, Statutes at Large of South Carolina 413 (1837) (Act of Dec. 12, 1712, § V) (receiving “the Common Law of England, where the same is not... inconsistent with the particular constitutions, customs and laws of this Province”); S. C. Const., Art. VII (1790), in 8 Swindler, supra, at 480 (“All laws of force in this State at the passing of this constitution shall so continue, until altered or repealed by the legislature . . .”); W. Slade, Vermont State Papers 450 (1823) (Act of June 1782) (adopting “so much of the common law of England, as is not repugnant to the constitution or to any act of the legislature of this State”); Act of May 6, 1776, Ch. V, § VI, in First Laws of the State of Virginia 37 (1982) (“the common law of England . . . shall be the rule of decision, and shall be considered as in full force, until the same shall be altered by the Legislative power of this colony”).

Connecticut, which did not enact any reception statute or constitutional provision, adopted the common law by judicial decision insofar as it was appropriate for local conditions. See 1 Powell & Rohan, supra, ¶ 52, at 140-141, and n. 77; Hall, 4 Vand. L. Rev., at 800; Fitch v. Brainerd, 2 Day 163 (Conn. 1805). Maryland’s position appears to have been articulated in an oath prescribed by the Assembly in 1728 for justices of the Provincial Court. The oath required that the justices act “according to the Laws, Customs, and Directions of the Acts of Assembly of this Province; and where they are silent, according to the Laws, Statutes, and reasonable Customs of England, as shave been used and practiced in this Province . . . .” M. Andrews, History of Maryland 227 (1929). Finally, although Pennsylvania’s reception statute did not state that the common law could be altered by legislative enactment in so many words, it may be read as assuming the primacy of legislative enactments, see 9 Statutes at Large of Pennsylvania 29-30 (Mitchell & Flanders eds. 1903) (Act of Jan. 28, 1777) (declaring prior Acts of the general assembly to still be in force, as well as “the common law and such of the statute laws of England as have heretofore been in force in the said province ...”), and the state assembly seems to have believed it had the power to depart from common law even prior to independence. See Warren, History of the American Bar, at 103; cf. Kirk v. Dean, 2 Binn. 341, 345 (Pa. 1810) (interpreting the state constitution as permitting departures from common-law rules where local circumstances required it).

56

Ift bears emphasis that, in providing for statutory alteration of the common law, the new States were in no way departing from traditional understandings. It is true that the colonial charters had generally rendered colonial legislation void to the extent that it conflicted with English common law, but this principle was simply indicative of the Colonies’ legal subjugation to the mother country and, in any event, seldom enforced in practice. See Stoebuck, 10 Wm. & Mary L. Rev., at 396-398, 419-420. The traditional conception of the common law as it developed in England had always been that it was freely alterable by statute. T. Plucknett, A Concise History of the Common Law 336-337 (5th ed. 1956); see also T. Plucknett, Statutes and Their Interpretation in the First Half of the Fourteenth Century 26-31 (1922) (finding no historical support for the claim that common law was “fundamental” or otherwise superior to statutes). Coke appears to have attempted at one time to establish a paramount common law, see, e. g., Dr. Bonham’s Case, 8 Co. Rep. 107a, 118a, 77 Eng. Rep. 638, 652 (C. P. 1610), but that attempt never took root in England. See Plucknett, Concise History of the Common Law, at 337; Jones 130; J. Gough, Fundamental Law in English Constitutional History 202 (1955) (observing that “[b]y the nineteenth century the overriding authority of statute-law had become the accepted principle in the courts”). And although Coke’s dictum was to have a somewhat greater influence in America, that influence took the form of providing an early foundation for the idea that courts might invalidate legislation that they found inconsistent with a written constitution. See Jones 130-132; Gough, supra, at 206-207 (noting that Coke’s view of fundamental law came to be transformed and subsumed in American practice by treatment of the written constitution as fundamental law in the exercise of judicial review). As I demonstrate infra, the idea that legislation may be struck down based on principles of common law or natural justice not located within the constitutional text has been squarely rejected in this country. See infra, at 165-168.

57

See also 3 Elliot’s Debates 469-470 (Edmund Randolph, Virginia Convention) (arguing that constitutional incorporation of the common law would be “destructive to republican principles”). Indeed, one reason for Madison’s suspicion of the common law was that it included “a thousand heterogeneous & antirepublican doctrines.” Letter from Madison to Washington (Oct. 18, 1787), reprinted in 3 Farrand 130, App. A. “[I]t will merit the most profound consideration,” Madison was later to warn in his Report on the Virginia Resolutions Concerning the Alien and Sedition Laws, “how far an indefinite admission of the common law ... might draw after it the various prerogatives making part of the unwritten law of England.” Alien and Sedition Laws 380. Such an admission, Madison feared, would mean that “the whole code, with all its incongruities, barbarisms, and bloody maxims, would be inviolably saddled on the good people of the United States.” Ibid. See also Amar, 96 Yale L. J., at 1490 (“[The] sole basis [of absolute government immunity from all suits] is the British idea that the sovereign government, as the source of all law, cannot itself be bound by any law absent its consent. . . . [Laterally every article of the Federalist Constitution and every amendment in the Bill of Rights rests on the repudiation of the British view” (footnote omitted)).

58

See Wood 304, n. 75 (“To Jefferson in 1785 judicial discretion in the administration of justice was still the great evil and codification the great remedy”); G. White, The Marshall Court and Cultural Change, 1815-1835, p. 130 (1991) (“[A]n assumption of the constitutional design was that if Congress exercised [its enumerated] powers through legislation, its laws would supersede any competing ones”).

59

The Court attempts to sidestep this history by distinguishing sovereign immunity as somehow different from other common-law principles. Ante, at 69. But see Chisholm v. Georgia, 2 Dall., at 435 (Iredell, J., dissenting) (arguing that the common law of England should control the case “so far as it is applicable to the peculiar circumstances of the country, and where no special act of Legislation controls it”). The Court cannot find solace in any distinction between “substantive rules of law” and “jurisdiction,” ante, at 69, however; it is abundantly clear that we have drawn both sorts of principles from the common law. See, e. g., Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604, 609 (1990) (plurality opinion of Scalia, J.) (noting that American notion of personal jurisdiction is a “common-law principle” that predates the Fourteenth Amendment). Nothing in the history, moreover, suggests that common-law rules were more immutable when they were jurisdictional rather than substantive in nature. Nor is it true that “the principle of state sovereign immunity stands distinct from other principles of the common law in that only the former prompted a specific constitutional amendment.” Ante, at 69. The Seventh Amendment, after all, was adopted to respond to Antifederalist concerns regarding the right to jury trial. See n. 34, supra. Indeed, that Amendment vividly illustrates the distinction between provisions intended to adopt the common law (the Amendment specifically mentions the “common law” and states that the common-law right “shall be preserved”) and those provisions, like the Eleventh Amendment, that may have been inspired by a common-law right but include no language of adoption or specific reference. Finally, the Court’s recourse to a vague “jurisprudence in all civilized nations,” ante, at 69, rather than the common law of England is unavailing. When the Constitution has received such general principles into our law, for example, in the Admiralty Clause’s adoption of the general “law of nations” or “law of the sea,” those principles have always been subject to change by congressional enactment. See, e. g., Panama R. Co. v. Johnson, 264 U. S. 375, 386 (1924) (noting that although “the principles of the general maritime law, sometimes called the law of the sea,” were “embodied” in Art. Ill, § 2, of the Constitution, they remained “subject to power in Congress to alter, qualify or supplement”); The Nereide, 9 Cranch 388, 423 (1815) (Marshall, C. J.) (stating that the Court would be “bound by the law of nations” until Congress passed a contrary enactment).

60

Cf. United States v. Lopez, 514 U. S. 549, 606 (1995) (Sóuter, J., dissenting) (“The fulcrums of judicial review in [the Lochner cases] were the notions of liberty and property characteristic of laissez-faire economics, whereas the Commerce Clause cases turned on what was ostensibly a structural limit of federal power, but under each conception of judicial review the Court’s character for the first third of the century showed itself in exacting judicial scrutiny of a legislature’s choice of economic ends and of the legislative means selected to reach them”).

61

The Court accuses me of misrepresenting its argument. Ante, at 75, n. 17. The Court’s claim, as I read it, is not that Congress cannot authorize federal jurisdiction under Ex parte Young over a cause of action with a limited remedial scheme, but rather that remedial limitations on the underlying cause of action do not apply to a claim based on Ex parte Young. Otherwise, the existence of those remedial limitations would provide no reason for the Court to assume that Congress did not intend to permit an action under Young; rather, the limitations would apply regardless of whether the suit was brought against the State or a state officer.

62

See also Brennan v. Stewart, 834 F. 2d 1248, 1252, n. 6 (CA5 1988) (“[A]lthough not usually conceptualized as Ex parte Young eases, most of the huge number of habeas claims in the federal courts under 28 U. S. C. §2254 are effectively suits against the states. These suits pass muster under the Eleventh Amendment because the habeas theory of a civil suit against the bad jailer fits perfectly with the Ex parte Young fiction”); United States ex rel. Elliott v. Hendricks, 213 F. 2d 922, 926-928 (CA3) (exercising jurisdiction over a habeas suit despite an Eleventh Amendment challenge on the theory that the suit was against a state officer), cert. denied, 348 U. S. 851 (1954).

63

Many other federal statutes impose obligations on state officials, the enforcement of which is subject to “intricate provisions” also statutorily provided. See, e. g., Federal Water Pollution Control Act, 33 U. S. C. § 1365(a) (citizen-suit provision to enforce States’ obligations under federal environmental law); Emergency Planning and Community Right-To-Know Act, 42 U. S. C. § 11001 (privately enforceable requirement that States form commissions, appointed by the Governor, to generate plans for addressing hazardous material emergencies).

64

In order for any person (whether individual or entity) to be a proper defendant under § 2710(d)(7) (and in order for standing to exist, since one of its requirements is redressability), that person, of course, would need to have some connection to the State’s negotiations. See Young, 209 U. S., at 157; Franklin v. Massachusetts, 505 U. S. 788, 808 (1992). The obvious candidates are the responsible state officials.

65

The scope of the Tenth Amendment’s limitations of congressional power remains a subject of debate. New York v. United States, 505 U. S. 144 (1992), holds that principles of federalism are “violated by a formal command from the National Government directing the State to enact a certain policy.” United States v. Lopez, 514 U. S., at 583 (Kennedy, J., concurring). Some suggest that the prohibition extends further than barring the Federal Government from directing the creation of state law. The views I express today should not be understood to take a position on that disputed question.

66

See also The Federalist No. 46, at 319 (J. Madison) (explaining that the Federal Government “will partake sufficiently of the spirit [of the States], to be disinclined to invade the rights of the individual States, or the prerogatives of their governments”); Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543 (1954).