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Ninth amendment: the enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Date (DEC 15 1791)

- The Ninth Amendment of the United States Constitution states that the federal government doesn't own the rights that are not listed in the Constitution, but instead, they belong to citizens.

-Many state representatives and others refused to ratify the constitution without a more specific list of protection, so the ninth amendment was created as a compromise.

- rights not listed in the constitution are kept by the people

-examples could include the presumption of innocence in criminal cases or the right to travel within the country

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https://www.wcnc.com/article/news/verify/charlotte-schools-covid-vaccine-policy-teachers-constitutional-rights/275-9d3bbed5-8ebe-444c-82e6-7f6138a5e3cf
CMS is requiring teachers get the Covid-19 vaccine but parents are against it, they believe it’s against their rights of the Ninth amendment. This news article explains how requiring the vaccine is not against the amendment.

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https://www.lwv.org/blog/know-how-impeachment-25th-amendment-work

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In the Know: How Impeachment & the 25th Amendment Work | League of Women Voters

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An explanation of how the 25th Amendment and Impeachment process work to maintain checks and balances in the US government.

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The 25th Amendment is saying that if anything were to happen to the president or they did something they could have a temporary or permanent replacement. I they were to do something they could get impeached and be forced out of office. It took a while for all states to agree on this and almost 2 years for it to become a law. Now every president has a Vice President to step in for them

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https://constitutioncenter.org/blog/on-this-day-the-25th-amendment-gets-its-first-test
Supreme Court case

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On November 27, 1973, the United States Senate became the first legislative house to act under the 25 th Amendment, when it voted to approve Representative Gerald Ford as the new Vice President. A week later, the House also approved Ford, making his appointment official.

While it may seem obvious today that a new Vice President should be appointed to fill that office in case of a death, disability, resignation or impeachment, that wasn't the case until 1967.

The 25 th Amendment was ratified by the states on February 10, 1967 and it cleared up a lot of issues about presidential and vice-presidential succession that were unresolved (or unanticipated) by the Founding Fathers.

It was up to Vice President John Tyler, who found himself in an awkward position after President William Henry Harrison's death in 1841, to set the precedent for presidential succession that lasted until 1967. In Article II, Section 1, the Constitution said that, "In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President."

After Harrison's death, there was confusion about Tyler's status as Acting President or as the actual President, in title as well as function. Tyler boldly declared himself as President for the remainder of Harrison's term and Congress recognized his title. The precedent held after the deaths of six Presidents in office - Taylor, Lincoln, Garfield, McKinley, Harding and Franklin Roosevelt. But after President Dwight Eisenhower had health problems, a congressional effort started to clear up presidential succession questions. President John F. Kennedy's assassination in November 1963 made the process imperative.

In the case of a vice-presidential vacancy before 1967, the office remained empty until the next general election. In fact, before 1967, the office of Vice President was vacant 16 times due to deaths, resignations and assumptions of the President's office.

The 25 th Amendment's first use came in October 1973, when President Richard Nixon nominated Gerald Ford to replace Spiro Agnew just two days after Agnew's resignation as Vice President.

Part of the push to get Ford approved was related to an expanded constitutional role granted to the Vice President under the 25 th Amendment in cases where the President was unable to serve temporarily or permanently. The 25 th Amendment made it very clear that the Vice President becomes President in the case of death, resignation and removal from office. It also said that a President can nominate someone to become Vice President if that office is vacant, with the approval of Congress.

Section 3 and 4 established new roles for the Vice President if the President were unable to perform his or her official duties. Certainly, one potential constitutional crisis would be the lack of a Vice President in office to start a Section 4 disability review of a President. Another is the lack of a constitutional or legal precedent for someone to act as a temporary Vice President, to start the Section 4 review process.

In October 1973, at least some of those options seemed in play as the Watergate Scandal was in full play and President Nixon's future was in doubt.

Nixon considered four replacements for Agnew: Ford, Rockefeller, John Connolly and Ronald Reagan. Nixon preferred Connolly, but when his staff informally polled congressional Democrats, Ford was their choice.

In House and Senate hearings, the situation was tense as times since the Saturday Night Massacre happened during the Ford nomination process. But on November 27, the Democrat-controlled Senate voted 92 to 3 to confirm Ford, all but confirming his appointment. On December 6, the House agreed, in a 387 to 35 vote.

Ford then took his oath in the House chamber, leading Nixon aide Alexander Haig to comment on the seriousness of the occasion. "Ford was treated throughout the ceremony and afterwards as a President-in-waiting, especially by Republicans, and there can be little question that Richard Nixon's presidency was over, in their minds, from the moment his successor took the oath," Haig said.

As a historical footnote, if the 25 th Amendment had not been in place, House Speaker Carl Albert, a Democrat, would have replaced Nixon as acting President in August 1974.

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On this day, the 25th Amendment gets its first test

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On November 27, 1973, the United States Senate became the first legislative house to act under the 25th Amendment, when it voted to approve Representative Gerald Ford as the new Vice President. A week later, the House also approved Ford, making his appointment official.

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https://www.cnbc.com/2021/01/07/what-is-the-25th-amendment-how-it-works.html
History of Amendment.

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On Thursday officials including House Speaker Nancy Pelosi, Senate Democratic Leader Chuck Schumer and Republican Rep. Adam Kinzinger called for the invocation of the 25th Amendment, Section 4, to remove President Donald Trump from office before his term ends on Jan. 20. It comes in the wake of the deadly pro-Trump riot on Wednesday in Washington, D.C.

So what is the 25th Amendment and its Section 4 provision? Here is information about the amendment and whether Section 4 could be used against Trump in this situation.

The 25th Amendment was passed by Congress on July 6, 1965, and ratified on Feb. 10, 1967. The amendment has four sections that provide avenues by which a sitting U.S. president may be removed (temporarily or permanently) from the helm of the government, if the president is not able (physically or mentally) to perform the duties of the office.

The 25th Amendment has been used multiple times over the years, according to Richard Kay, an expert on constitutional law and a Wallace Stevens Professor of Law Emeritus at the University of Connecticut.

Most recently, it was used in 2007 when then-President George W. Bush appointed his Vice President Dick Cheney as acting president for the time period Bush was under general anesthesia during a colonoscopy. In that instance, Section 3 was used, which allows the president to willingly discharge his powers.

However, Section 4 has never been used.

For the 25th Amendment, what "the drafters had in mind was the president being in some way physically disabled," Kay tells CNBC Make It. "But they throw this one at the end (Section 4), which clearly contemplates some kind of situation where the powers that be think the president is incapable of going on and the president disagrees," he says.

It comes into play when the vice president and certain other officials declare that the president is "unable to discharge the powers and duties of his office," the section says, but does not require the president's cooperation.

"It's a way in which people who work with the president and are convinced that the president cannot effectively carry out his functions, are able to at least temporarily displace him and get the vice president to take over," Kay says.

The most important factor needed to use the 25th Amendment is having the vice president and a majority of the cabinet on board, says Kay.

"If the vice president and a majority of the cabinet send a letter to the speaker of the house and the president pro tempore of the Senate saying that, in their opinion, the president is incapable of carrying out of his functions and duties...instantly, the president ceases to have authority and the vice president takes over," Kay says.

However, should that happen, the president can immediately follow up with his own letter to congressional leaders saying that he is indeed capable of carrying out his responsibilities.

"At that point, the president is back in charge," Kay says.

The vice president and cabinet officers could then send a final letter to Congress disputing the president's claim and restating that the president is unable to do to job, Kay says.

After that, according to the Constitution, it's up to the houses of Congress to decide and vote on the matter, and they have up to 21 days to do so, Kay says. During the voting process in Congress, the vice president would be in charge.

While the process sounds complicated, "these communications can go lickity split in a situation like this," Kay says.

Displacing the president would require an affirmative vote of two-thirds of the members of each House.

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25th Amendment: What it is and how it works, according to a constitutional law expert

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On Thursday officials including House Speaker Nancy Pelosi, Senate Democratic Leader Chuck Schumer and Republican Rep. Adam Kinzinger called for the invocation of the 25th Amendment, Section 4, to remove President Donald Trump from office before his term ends on Jan. 20. It comes in the wake of the deadly pro-Trump riot on Wednesday in Washington, D.C.

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The 25th Amendment: Succession to the Presidency in case of vacancy or disability. The date it was ratified was Jul 6th, 1967.

https://constitutioncenter.org/blog/on-this-day-the-25th-amendment-gets-its-first-t
-The last state to ratify this amendment was Florida.
-Presidents should have backup if they are not able to go through with the job.
-It took 584 days for this law to be ratified.
-It was ratified in Nevada.
-First to ratify was Nebraska.

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SOUTER, J., Dissenting Opinion

SUPREME COURT OF THE UNITED STATES

Seminole Tribe of Florida v. Florida

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 94-12 Argued: --- Decided:

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, 491 U.S. 1, 23 (1989) (STEVENS, J., concurring). 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 can 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 non-state 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; [n1] 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' 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' 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 systems, 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.

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). [n2] 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).

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 section 2 of Article III included questions arising under federal law and cases between States and individuals who are not citizens, [n3] it was only upon the latter citizen-state diversity provisions that pre-ratification questions about state immunity from suit or liability centered. [n4]

Later in my discussion I will canvass the details of the debate among the Framers and other leaders of the time, see infra at ___; 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' preexisting 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. [n5] 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 (Iredell, J., dissenting), 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 ___, 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 controls 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. 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. [n6] Finding no congressional action abrogating Georgia's common law immunity, Justice Iredell concluded that the State should not be liable to suit. [n7]

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. [n8] 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 (Marcus ed. 1994). [n9]

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. [n10] 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 8. [n11]

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. [n12] 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. [n13]

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' 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. [n14] It follows that the Court's further step today of constitutionalizing Hans' 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' 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.

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 noncitizen. See Hans, supra at 10-11. There was, however, no such anomaly at all. As already explained, federal question cases 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.

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 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.

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. [n16]

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. [n17] 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 ___. 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 ___. 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"). [n18] 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 nonconstitutional common law immunity. See supra at ___.

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 nonconsenting States.

Id. at 322. [n19] This statement certainly is true to Hans, which clearly recognized a preexisting 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 control[s]" 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. III"); 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. [n20] 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 unconsenting 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), [n21] 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 ___. [n22] More generally, the proponents of the Court's theory have repeatedly referred to state sovereign immunity as a "background principle," ante at ___, "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. [n23] 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. [n24] 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 at 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 ___. 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. ___ (1996); see also supra at ___.

If these examples were not enough to distinguish Hans' rationale of a preexisting 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 an 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). [n25] 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.

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 ___. 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, 74 U.S. 152, 153 (1869), "derived from the laws and practices of our English ancestors," United States v. Lee, 106 U.S. 196, 205 (1882). [n26] 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.

P. 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. [n27] 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' 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). [n28] 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. [n29]

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 Reinsch, supra at 7-8; Hall, The Common Law: An Account of Its Reception in the United States, 4 Vand. L.Rev. 791, 797 (1951). [n30] 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). [n31] 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)). [n32] 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. [n33] 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, "[l]egislatures 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 "suitab[ility] 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. 55, 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. VII, 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). [n34] 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").

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 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). [n36] 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, "Origins of Federal Common Law: Part I," 133 U.Pa.L.Rev. 1003, 1056 (1985) (Jay I); Stoebuck, 10 Wm. & Mary L.Rev. at 401 ("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. Madison, supra at 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. [n37] 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 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 ___. 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 ___, 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. [n38] 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"); [n39] id. at 556 (Marshall: "I see a difficulty in making a state defendant, which does not prevent its being plaintiff"). As Hamilton stated in Federalist 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 state-citizen diversity clause); Gibbons, 83 Colum.L.Rev. at 1902-1914. The majority sees in these statements, and chiefly in Hamilton's discussion of sovereign immunity in Federalist No. 81, an unequivocal mandate "which would preclude all federal jurisdiction over an unconsenting State." Ante at ___. 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.

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 Federalist No. 32. Ibid. 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.

The Federalist No. 81 at 549.

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 omitted). 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 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.

The Federalist No. 32 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 preexisting 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. 226, 234 (1985). [n40] 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"). [n41] 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: (a) congressional legislation on subjects committed expressly and exclusively to Congress, (b) on subjects over which state authority is expressly negated, (c) on subjects over which concurrent authority would be impossible (as "contradictory and repugnant"), and (d) on 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 (1851) (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 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. [n42] 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. ___, ___ (1995) (KENNEDY, J., concurring) ("Federalism was our Nation's own discovery. The Framers split the atom of sovereignty"). [n43] 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.

[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. [n46]

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). [n47] 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 Dall. at 434. 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. [n48] 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"). [n49] 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.

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). [n50] 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 preempt 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,

This sketch of the logic and objectives of the new federal order is confirmed by what we have previously seen of the pre-ratification 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. [n51] 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. [n52]

C

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). [n54]

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). [n55] 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. [n56]

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). [n57] 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. [n58] 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.

Report on the Virginia Resolutions Concerning the Alien and Sedition Acts, in 6 Writings of James Madison 380. "A discretion of this sort," he insisted, "has always been lamented as incongruous and dangerous. . . ." Id. at 381. [n59]

2

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 overrule 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.

IV

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

[r]emedies 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.

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

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 the 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 20-26.) 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.

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 play 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 E. Chemerinsky, Federal Jurisdiction 393 (2d ed. 1994).

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 "affec[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. 223, 230-231 (1989): 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 the petitioners are 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 ___. 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 ___.

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. ___, ___ (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 non-immune 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 preempts procedural rules devised by Congress for particular kinds of cases that may depend on Young for federal jurisdiction. [n61]

If, indeed, the Court were correct in assuming that Congress may not regulate the procedure of a suit jurisdictionally 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). [n62] 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. [n63]

This, of course, cannot be the law, and the plausible rationale 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

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.

(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. [n64] 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 ___, 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 (Kan. 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 & Construction 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' holding as a matter of stare decisis.

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, [n65] 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). [n66] 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.

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. III, § 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) (STEVENS, J., concurring). I have grouped the two as "Citizen-State Diversity Clauses" for ease in frequent repetition here.

[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.

show the world that we make the faith of the 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).

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 65-66 (1954); W. Manning, The Nootka Sound Controversy, in Annual Report of the American Historical Association, H.R.Doc. 429 (1905) at 415-423, 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).

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.

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." Ante at ___. 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. 111; 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 cases 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.

[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.

Orth, Judicial Power of the United States at 9; 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 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 case "did not involve Southern State bonds"). I am reluctant, to be sure, to ascribe these legal developments to a single, extra-legal 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 243 (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").

"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,"

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.

[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. . . . 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 (REHNQUIST, J., dissenting).

[are] those that are derived from what is properly termed "the common law," a law which I presume is the groundwork 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 omitted). See also Employees of Dept. of Public Health and Welfare of Missouri v. Department of Public Health and Welfare of Missouri, 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").

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.

[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.

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.

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 have been used and practiced in this Province. . . .

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 ___. The Seventh Amendment, after all, was adopted to respond to Antifederalist concerns regarding the right to jury trial. See supra at n. 34. 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 ___, 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. III, § 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).

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SOUTER, J., Dissenting Opinion

SUPREME COURT OF THE UNITED STATES

Seminole Tribe of Florida v. Florida

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 94-12 Argued: --- Decided:

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, 491 U.S. 1, 23 (1989) (STEVENS, J., concurring). 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 can 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 non-state 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; [n1] 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' 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' 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 systems, 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.

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). [n2] 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).

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 section 2 of Article III included questions arising under federal law and cases between States and individuals who are not citizens, [n3] it was only upon the latter citizen-state diversity provisions that pre-ratification questions about state immunity from suit or liability centered. [n4]

Later in my discussion I will canvass the details of the debate among the Framers and other leaders of the time, see infra at ___; 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' preexisting 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. [n5] 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 (Iredell, J., dissenting), 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 ___, 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 controls 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. 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. [n6] Finding no congressional action abrogating Georgia's common law immunity, Justice Iredell concluded that the State should not be liable to suit. [n7]

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. [n8] 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 (Marcus ed. 1994). [n9]

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. [n10] 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 8. [n11]

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. [n12] 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. [n13]

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' 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. [n14] It follows that the Court's further step today of constitutionalizing Hans' 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' 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.

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 noncitizen. See Hans, supra at 10-11. There was, however, no such anomaly at all. As already explained, federal question cases 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.

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 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.

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. [n16]

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. [n17] 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 ___. 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 ___. 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"). [n18] 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 nonconstitutional common law immunity. See supra at ___.

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 nonconsenting States.

Id. at 322. [n19] This statement certainly is true to Hans, which clearly recognized a preexisting 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 control[s]" 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. III"); 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. [n20] 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 unconsenting 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), [n21] 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 ___. [n22] More generally, the proponents of the Court's theory have repeatedly referred to state sovereign immunity as a "background principle," ante at ___, "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. [n23] 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. [n24] 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 at 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 ___. 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. ___ (1996); see also supra at ___.

If these examples were not enough to distinguish Hans' rationale of a preexisting 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 an 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). [n25] 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.

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 ___. 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, 74 U.S. 152, 153 (1869), "derived from the laws and practices of our English ancestors," United States v. Lee, 106 U.S. 196, 205 (1882). [n26] 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.

P. 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. [n27] 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' 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). [n28] 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. [n29]

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 Reinsch, supra at 7-8; Hall, The Common Law: An Account of Its Reception in the United States, 4 Vand. L.Rev. 791, 797 (1951). [n30] 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). [n31] 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)). [n32] 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. [n33] 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, "[l]egislatures 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 "suitab[ility] 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. 55, 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. VII, 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). [n34] 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").

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 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). [n36] 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, "Origins of Federal Common Law: Part I," 133 U.Pa.L.Rev. 1003, 1056 (1985) (Jay I); Stoebuck, 10 Wm. & Mary L.Rev. at 401 ("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. Madison, supra at 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. [n37] 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 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 ___. 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 ___, 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. [n38] 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"); [n39] id. at 556 (Marshall: "I see a difficulty in making a state defendant, which does not prevent its being plaintiff"). As Hamilton stated in Federalist 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 state-citizen diversity clause); Gibbons, 83 Colum.L.Rev. at 1902-1914. The majority sees in these statements, and chiefly in Hamilton's discussion of sovereign immunity in Federalist No. 81, an unequivocal mandate "which would preclude all federal jurisdiction over an unconsenting State." Ante at ___. 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.

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 Federalist No. 32. Ibid. 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.

The Federalist No. 81 at 549.

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 omitted). 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 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.

The Federalist No. 32 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 preexisting 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. 226, 234 (1985). [n40] 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"). [n41] 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: (a) congressional legislation on subjects committed expressly and exclusively to Congress, (b) on subjects over which state authority is expressly negated, (c) on subjects over which concurrent authority would be impossible (as "contradictory and repugnant"), and (d) on 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 (1851) (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 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. [n42] 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. ___, ___ (1995) (KENNEDY, J., concurring) ("Federalism was our Nation's own discovery. The Framers split the atom of sovereignty"). [n43] 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.

[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. [n46]

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). [n47] 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 Dall. at 434. 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. [n48] 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"). [n49] 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.

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). [n50] 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 preempt 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,

This sketch of the logic and objectives of the new federal order is confirmed by what we have previously seen of the pre-ratification 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. [n51] 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. [n52]

C

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). [n54]

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). [n55] 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. [n56]

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). [n57] 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. [n58] 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.

Report on the Virginia Resolutions Concerning the Alien and Sedition Acts, in 6 Writings of James Madison 380. "A discretion of this sort," he insisted, "has always been lamented as incongruous and dangerous. . . ." Id. at 381. [n59]

2

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 overrule 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.

IV

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

[r]emedies 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.

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

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 the 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 20-26.) 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.

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 play 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 E. Chemerinsky, Federal Jurisdiction 393 (2d ed. 1994).

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 "affec[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. 223, 230-231 (1989): 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 the petitioners are 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 ___. 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 ___.

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. ___, ___ (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 non-immune 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 preempts procedural rules devised by Congress for particular kinds of cases that may depend on Young for federal jurisdiction. [n61]

If, indeed, the Court were correct in assuming that Congress may not regulate the procedure of a suit jurisdictionally 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). [n62] 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. [n63]

This, of course, cannot be the law, and the plausible rationale 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

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.

(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. [n64] 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 ___, 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 (Kan. 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 & Construction 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' holding as a matter of stare decisis.

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, [n65] 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). [n66] 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.

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. III, § 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) (STEVENS, J., concurring). I have grouped the two as "Citizen-State Diversity Clauses" for ease in frequent repetition here.

[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.

show the world that we make the faith of the 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).

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 65-66 (1954); W. Manning, The Nootka Sound Controversy, in Annual Report of the American Historical Association, H.R.Doc. 429 (1905) at 415-423, 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).

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.

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." Ante at ___. 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. 111; 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 cases 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.

[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.

Orth, Judicial Power of the United States at 9; 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 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 case "did not involve Southern State bonds"). I am reluctant, to be sure, to ascribe these legal developments to a single, extra-legal 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 243 (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").

"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,"

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.

[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. . . . 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 (REHNQUIST, J., dissenting).

[are] those that are derived from what is properly termed "the common law," a law which I presume is the groundwork 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 omitted). See also Employees of Dept. of Public Health and Welfare of Missouri v. Department of Public Health and Welfare of Missouri, 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").

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.

[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.

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.

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 have been used and practiced in this Province. . . .

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 ___. The Seventh Amendment, after all, was adopted to respond to Antifederalist concerns regarding the right to jury trial. See supra at n. 34. 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 ___, 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. III, § 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).

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11th aAmendment 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. Passed by Congress March 4, 1794. Ratified February 7, 1795. 

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11th aAmendment 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. Passed by Congress March 4, 1794. Ratified February 7, 1795. 

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*The Eleventh Amendment takes away the ability of people  to bring suit against states in federal court.
*the 11th amendment states that nobody can bring in outside suits from the states.
*this explains that people used to try to come from out of state and/or country’s and put suits on people.
This protects federal court and shields us from anyone out of state.
* no law or suit will go against the American government.

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Sixth Amendment: Right to speedy trial of accused by impartial jury, (Speedy 6) date December 15th, 1791.

Has public jurors to have a fair and speedy trial.

They have the right to meet their accusers.

The Assistance of Counsel for the persons defense

Without it any criminal defendants could be held indefinitely under a cloud of unproven criminal accusations.

It also guarantees a right to an attorney.

https://www.oyez.org/cases/2015/14-1457

The 6th amendment affects Americans by giving them rights in the courtroom especially without delaying time for their trial. Even if having evidence against you being able to speed up the process if needed or wanted. As it gives a fair trial to every American and protects your rights while doing it.

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Twelfth amendment: Changed the electoral college. Electors are to use separate ballots for President and Vice President. (Separate election for #1 and #2 guy) Passed by Congress December 9, 1803 and ratified June 15, 1804. By: Bailey Layne

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Twelfth amendment: Changed the electoral college. Electors are to use separate ballots for President and Vice President. (Separate election for #1 and #2 guy) Passed by Congress December 9, 1803 and ratified June 15, 1804. By: Bailey Layne

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-Stated that the electors will vote for President and Vice President separately

-Electors would cast a single vote for President and a single vote for the Vice President

-Before the amendment was passed the electors cast 2 votes for president and the candidate with the second most votes would automatically become Vice President

-This amendment was passed during the rising of separate political parties and Aaron Burr and Thomas Jefferson had to work together

-It first came into effect during the 1804 election

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This court case was argued October 19th, 1970 and decided on December 21st 1970. It covered in these various main concepts, these being the 18-year-old minimum-age requirement of the Voting Rights Act Amendments, The literacy test permissions, and lastly the the residency and absentee balloting provisions. This argument resulted in the supreme court revoking the permission granted to individual states to determine their respective voting age.

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Amendment 14 - Rights of Citizens (Equal) - passed on June 13, 1866 and ratified on July 9, 1868

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Amendment 14 - Rights of Citizens (Equal) - passed on June 13, 1866 and ratified on July 9, 1868

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This amendment was designed to prevent state governments from violating the rights of former slaves after the Civil War. It has been used to extend almost all of the rights granted in the Bill of Rights to citizen and prevent state government from denying those rights.

Citizenship Defined - all persons born or naturalized in United States are American citizens … cannot violate the rights of citizens

Representation in Congress- Representation … must be made on the basis of the whole state population

Penalty for Rebellion - excluded leaders of the Confederacy from holding state or federal offices unless

Public Debt - could not collect compensation for the the loss of slaves.

Enforcement - pass legislation to enforce the amendment … the basis upon which the Civil Rights Act of 1964 was passed.

Victoria Fatherly

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This cartoon show American rights and protection under law and the process of law in the US court house.

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Third Amendment: No Soldier shall, in time of peace be quartered in any house (Is a crowd) date Dec 15th, 1971

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Third Amendment: No Soldier shall, in time of peace be quartered in any house (Is a crowd) date Dec 15th, 1971

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-The third amendment gives the right to deny soldiers from coming into their house and having to feed them and take care of them.

-This amendment is applied in times of peace, but in times of crises in war it is subject to change
- James Madison came up with this amendment right and passed it.
- The third amendment is apart of the Bill of Rights
- This amendment was first passed to counter-act the Quartering Act of 1765.
Adrian Acuna

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In 5/17/1954 the Court discovered the 14th Amendment was violated by state-sanctioned segregation of public schools.

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The online tool for teaching with documents, from the National Archives

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Limitation of President to two terms of officeLimit terms two twice February 27,1951

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Limitation of President to two terms of officeLimit terms two twice February 27,1951

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This political cartoon uses the phrase that represents this amendment "Old enough to fight, old enough to vote". It describes the main concept and purpose of this amendment, to allow young deployed Americans to have the right to vote.

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Amendment was ratified on December 6th, 1865. A clue to remember this amendment is “FREE-13 14-EQUAL 15-VOTE”.

Slavery nor forced service should exist in the U.S.,  or any territory where a government may rightfully enforce its power.

The only exception should be as a punishment of wrong-doing, where the convicted person should be properly convicted of the crime.

The Congress has the power to apply this law in fair legislation.

The 13th amendment was passed because the Emancipation Proclamation, provided in 1863 by former President Abraham Lincoln, did not end slavery entirely at the time.

The 13th amendment was passed at the end of the Civil War and it passed Congress on January 31 of 1865. It was ratified in almost a year on December 6, 1865.

Camila Suarez

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This cartoon shows the comparison on how much power the states should have compared to the federal government. It also shows how the federal government has tried limiting powers of the states.

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Twentieth Amendment: Abolition of “lame duck” session in Congresses change in date of assembly. (1933).

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Twentieth Amendment: Abolition of “lame duck” session in Congresses change in date of assembly. (1933).

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The twentieth Amendment is Inauguration day.

1. History and how the Twentieth Amendment works.

The 20th Amendment is also known as the Inauguration Day.

The Inauguration Day is when the president of the United States has a ceremony to mark the commencement of a new four year term of the president of the United States.

Inauguration Day is on January 20th

The terms of the President and Vice President end at noon on the 20th day of January

This amendment used to be on March 4th, but was moved to January 20th in 1937.

2.  Court Case - (Explanation)

The 20th Amendment is not ancient. It was added to the U.S. Constitution in 1933. It shortened the length of time between outgoing and incoming administrations, moving up the original Inauguration Day set in The Constitution, from March 4th to January 20th, shortening the lame duck period by roughly five weeks.

3. Newspaper article link on 20th amendment

https://www.britannica.com/topic/Twentieth-Amendment

4. Summary on how it affects Americans.

The 20th amendment may affect some Americans that are not happy with the rule. Some people might have wanted the same president for longer. This amendment cancels whichever president there was before and replaces a new one.

Drew Johnson

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This case is about how New Jersey’s eagerness to legalize single-game sports betting within the state will likely end, one way or another. The decision of this case is focusing on a constitutional issue.

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New Jersey's long struggle to legalize single-game sports betting within the state will likely end, one way or another, with a Supreme Court decision focusing on a broad constitutional issue.

On Tuesday, the Justices took the cases of Christie v. NCAA and New Jersey Thoroughbred Horsemen's Association, Inc. v. NCAA, which will be considered as one case by the Justices later this year. The cases' acceptance by the Court marks a big victory, by itself, for those who see legalized betting, a la Nevada, as a potential windfall for the state.

In the Christie case, New Jersey's attorney general's office and veteran litigator Ted Olson finally got the issue at the finish line after a series of appeals that go back to 2014. The Thoroughbred Horsemen's Association's case made much of the same arguments.

Both lawsuits asked the Justices to consider if a federal law that limits sports betting in New Jersey violates the 10 th Amendment's anti-commandeering clause.

The anti-commandeering clause has received a lot of attention recently in an unrelated matter - as the primary defense made in several lawsuits against the Trump administration's sanctuary cities polices.

The 10 th Amendment simply reads that, "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." Since 1976, several Supreme Court decisions have found that it was the amendment's intent to limit the ability of the federal government to "commandeer" state officials or a state legislative process.

In New York v. United States (1992), Justice Sandra Day O'Connor found that a federal waste-management law "would 'commandeer' state governments into the service of federal regulatory purposes, and would for this reason be inconsistent with the Constitution's division of authority between federal and state governments." And in Printz v. United States (1997), Justice Antonin Scalia said that a federal gun control law that forced local law enforcement to perform handgun background checks went against the 10 th Amendment's principles. "The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program," Scalia said. "Such commands are fundamentally incompatible with our constitutional system of dual sovereignty."

In the New Jersey sports betting cases, the Third Circuit federal appeals court in 2013 ruled against a state challenge to the federal Professional and Amateur Sports Protection Act. The statute had allowed Nevada and several other states to have sports betting, but New Jersey decided not to apply for permission to do so. Instead, decades later it enacted its own law to control sports betting. The Supreme Court didn't take an appeal from the state in 2014.

New Jersey then repealed existing state oversight regulations on gambling in another attempt to enact sports betting and make it "a purely private matter." Again, the NCAA and the major professional sports organizations sued New Jersey. And again, New Jersey lost in court. But the case was heard by a full en banc appeals court, with nine judges voting against the state and three judges dissenting.

In its second plea to the Supreme Court, New Jersey argued that the en banc appeals court went too far. "The majority thus reached the remarkable and unprecedented conclusion that the Constitution's federal structure affords to Congress the power to prohibit States from repealing their own laws," it said. "This Court's review is essential to ensure that the anti-commandeering doctrine continues to serve its function of preserving our federalist system."

The Trump Justice Department, in addition to the sports organizations, asked the Supreme Court to deny the case for a second time, citing numerous conflicts between the federal law and the state laws, and the lack of legal challenges from other states.

But at least four Supreme Court Justices saw enough in New Jersey's appeal to ask for full arguments at the Court, most likely later this year.
Scott Bomboy is the editor in chief of the National Constitution Center.

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New Jersey bets on 10th Amendment in Supreme Court case

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New Jersey's long struggle to legalize single-game sports betting within the state will likely end, one way or another, with a Supreme Court decision focusing on a broad constitutional issue. On Tuesday, the Justices took the cases of Christie v. NCAA and New Jersey Thoroughbred Horsemen's Association, Inc. v.

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This image represents the Tenth Amendment being used.

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Amendment 15-Right to vote no matter race or color-both proposed and ratified in 1870

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Amendment 15-Right to vote no matter race or color-both proposed and ratified in 1870

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The 15 Amendment is the amendment which allowed people of ay color to vote. it was made in response do the lack of black voters in the South. This was due to many black men being discriminated against.

-lets different races have a voice
-many Republicans supported it
-it helped lead to the 19 amendment, which allows women to vote

sources:
Fifteenth Amendment to the United States Constitution - Wikipedia
The Constitution: Amendments 11-27 | National Archives
Guinn v. United States (1915) | The Encyclopedia of Oklahoma History and Culture (okhistory.org)

cases:
There has been one case about the 15 amendment. The name was Guinn vs United States. It stated that Oklahoma had violated the 15 amendment.

By, Laurence

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17 amendment - election of senators by the people, senatorial vacancies. (1912 and was ratified by the States in 1913)  17th Amendment to the United States Constitution, which changed the way United States senators are elected. Seventeen senators! 

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17 amendment - election of senators by the people, senatorial vacancies. (1912 and was ratified by the States in 1913)  17th Amendment to the United States Constitution, which changed the way United States senators are elected. Seventeen senators! 

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power to appoint Senators from the state legislatures

Vacancies in the Senate lasted for months and even years, as several state legislatures disagreed on who must fill each vacancy

By the time that the amendment had been adopted, states had already implemented methods that gave voters the right to choose Senators. Even so, the amendment was deemed necessary to diminish the influence of other special interests on the election of senators.

gave people the right to vote for their senators instead of the state legislature

The Seventeenth Amendment was a response to people becoming frustrated with the corruption and inconsistency of Senate elections.

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The 17th amendment is that U.S. senators will be elected by the voters of the state they will represent. 

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The 17th amendment is that U.S. senators will be elected by the voters of the state they will represent. 

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Grayson Goins:  Tenth Amendment-Reserves all the powers not held by federal government to the people or the states.(Ben 10 fights for state’s rights) date Dec 15, 1791

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Grayson Goins:  Tenth Amendment-Reserves all the powers not held by federal government to the people or the states.(Ben 10 fights for state’s rights) date Dec 15, 1791

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* The federal government can’t make states enforce federal programs

*  This amendment deals with the rights of the states

*  The tenth Amendment protects the powers of the states, not the rights of individuals.

*  All the states that proposed amendments recommended the tenth amendment at their conventions.

* The Supreme Court thought that the federal government had implied powers over the states in some areas.

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https://www.theatlantic.com/national/archive/2010/06/a-court-looks-at-the-real-problem-with-the-17th-amendment/58343/

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https://youtu.be/N4nPZu-fjxI

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Poll Tax Banned in Federal Elections

August 27 1962

It outlawed the poll tax as a voting requirement in federal elections

At the time five states maintained poll taxes

The 24th amendment prohibited the federal and state governments from imposing poll taxes before a citizen could participate in a federal election.

The poll tax exemplified “Jim Crow” laws

Jim Crow laws aimed to take away black voters rights and to add separation.

This amendment says you cant charge money so someone can register to vote. So its saying that its illegal to charge anyone to vote.

https://en.m.wikipedia.org/wiki/Breedlove_v._Suttles link to court case

This case is about someone in Georgia who refused to pay the taxes.

He filed a report because he was no longer allowed to vote.

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Political cartoon showing why some people disagree with the second amendment.

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Amendment 16- Income Tax Authorized (You can work at 16 and the government can tax your income), ratified February 3, 1913

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Amendment 16- Income Tax Authorized (You can work at 16 and the government can tax your income), ratified February 3, 1913

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The 16th Amendment gives the government the power to collect tax on income without apportioning it among the states.

Made so taxes were spread fairly on income

Became the government’s biggest source of revenue

Reversed a previous decision that income tax was impossible.

Created after the Pollock vs. Farmer’s Loan & Trust Co. case.

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Supreme Court case, this took place October 27, 2021.

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Amendment being used.

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Second Amendment: Right to keep and bear arms (bare arms), ratified on December 15, 1791.

Necessary to the security of a free state

The right of people to keep and bear arms (guns)

Intended for us to defend and protect ourselves from our own government

The second amendment shall not be infringed

The second amendment has been amended 17 times since it was ratified.

The second amendment was originally created so we can defend ourselves from tyrannical government happening. It was also made to protect us. Since it was created it has been changed 17 times as our society changes. It is now a huge debate whether the second amendments should be protected or if there should be more secure gun laws. There are many protests that happen because of this. This amendment strongly affects America because people are able to keep guns to protect themselves from things like intruders but it makes it too easy to get guns which is the reason a lot of shootings happen.

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https://hobnobblog.com/2010/02/the-constitution-of-the-united-states-amendment-22-22nd-amendment/
Passed by Congress in 1947, and ratified by the states on February 27, 1951, the Twenty-Second Amendment limits an elected president to two terms in office, a total of eight years. ... If more than two years remain of the term when the successor assumes office, the new president may serve only one additional term.

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Limitation of President to two terms of office

Limit terms two twice

February 27,1951
1.It was formally proposed by the U.S. Congress on March 24, 1947, and was ratified on Feb. 27, 1951.

2.There is no clear indication that the decision to pursue the amendment was triggered by any single event or abuse of power.

3.On November 5, 1940, President Franklin D. Roosevelt won a third term in office

4.Eventually U.S. lawmakers pushed back, arguing that term limits were necessary to keep abuse of power in check.

5.In 1944, according to the National Constitution Center, term-limit talk again came into focus.

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Amendment 21: Repeal of National Prohibition (you can drink at 21!) Proposed February 20, 1933, added December 5, 1933 (Joshua Gandy)

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Amendment 21: Repeal of National Prohibition (you can drink at 21!) Proposed February 20, 1933, added December 5, 1933 (Joshua Gandy)

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- The 21st Amendment is the only one to repeal another amendment, cancelling the 18th Amendment.
- The United States needed the amendment after the 18th Amendment failed to enforce sobriety.
- The United States before the amendment was suffering heavily after they lost one of their largest industries (alcohol) losing billions of dollars due to tax revenue.
- The new amendment stimulated the United States economy and helped the country get out of the Great Depression.
-The 21st Amendment is an example of the adaptability of the Constitution to meet the changing needs of citizens.

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The Granholm v. Heald was a case debating the states of Michigan and New York’s laws on the importation of wine. The laws allowed in-state but not out-of-state wineries to make direct sales to customers. The two states argued that their laws were not in violation of the Constitution due to article two of the 21st Amendment. The trials ruled in favor of New York allowing them to keep the law, but Michigan was forced to revoke it due to being in violation of the Commerce Clause.

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Limitation of President to two terms of officeLimit terms two twice February 27,1951https://hobnobblog.com/2010/02/the-constitution-of-the-united-states-amendment-22-22nd-amendment/Passed by Congress in 1947, and ratified by the states on February 27, 1951, the Twenty-Second Amendment limits an elected president to two terms in office, a total of eight years. ... If more than two years remain of the term when the successor assumes office, the new president may serve only one additional term.1.It was formally proposed by the U.S. Congress on March 24, 1947, and was ratified on Feb. 27, 1951. 2.There is no clear indication that the decision to pursue the amendment was triggered by any single event or abuse of power.3.On November 5, 1940, President Franklin D. Roosevelt won a third term in office4.Eventually U.S. lawmakers pushed back, arguing that term limits were necessary to keep abuse of power in check.5.In 1944, according to the National Constitution Center, term-limit talk again came into focus.Mira Noubani

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Limitation of President to two terms of officeLimit terms two twice February 27,1951https://hobnobblog.com/2010/02/the-constitution-of-the-united-states-amendment-22-22nd-amendment/Passed by Congress in 1947, and ratified by the states on February 27, 1951, the Twenty-Second Amendment limits an elected president to two terms in office, a total of eight years. ... If more than two years remain of the term when the successor assumes office, the new president may serve only one additional term.1.It was formally proposed by the U.S. Congress on March 24, 1947, and was ratified on Feb. 27, 1951. 2.There is no clear indication that the decision to pursue the amendment was triggered by any single event or abuse of power.3.On November 5, 1940, President Franklin D. Roosevelt won a third term in office4.Eventually U.S. lawmakers pushed back, arguing that term limits were necessary to keep abuse of power in check.5.In 1944, according to the National Constitution Center, term-limit talk again came into focus.Mira Noubani

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Did the Alabama law violate the Thirteenth Amendment?

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Eighteenth Amendment: Prohibition of intoxicating liquors (1919 and later repealed in 1933). A clue to remember this amendment is don't drink at 18 it's illegal.

The History of the 18th Amendment:
- Most of the people who voted for prohibition thought that drinking was a crime and if you drunk alcohol then you were a criminal.
- This amendment is also known as the amendment to prohibit drinking
- People still kept drinking, even after the amendment was put into use.
- On December 5th 1933, this amendment was repealed because of the Twenty First amendment, which was the repeal of prohibition.
- The 18th amendment is the only amendment to have been ratified then later repealed.

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https://www.businessinsider.com/third-amendment-new-relevant-thanks-to-trump-military-us-cities-2020-6

Trump and the threat of the military in US cities has made the Third Amendment suddenly relevant. The huge presence of the National Guard in Washington, DC, created protests over police brutality has lead to discussions of the Third Amendment to the US Constitution.

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https://www.accessible-archives.com/collections/womens-suffrage/19th-amendment-victory-newspapers/?amp
Archives are celebrating the 100th anniversary of the 19th amendment, women’s legal right to vote. The permission of this amendment on August 18, 1920, was a long undertaking when American colonists were fighting against lack of representation in government.

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https://www.oyez.org/cases/1850-1900/157us429

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The 16th Amendment basically let the government collect tax on income from the states. Income tax was considered a “direct tax”, which means it should be spread among the states based on population.

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https://law.justia.co m/cases/federal/appellate-courts/F2/738/1017/135732/

In this case US citizens residing in Guam wanted the right to vote and cited the 23rd amendment because Washington D.C. is also not a state but can vote.

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A Supreme Court case used with the 19th amendment was the Minor v. Happersett case. In 1872, members of the National Woman Suffrage Association all over the US decided to try and vote. Susan B. Anthony registered and voted in New York. She was later arrested, went on trial, and was fined $100. In court, Anthony responded, “the only chance women have for justice in this country is to violate the law, as I have done, and as I shall continue to do.” After that she never paid the fine. Others mocked Anthony in the press, and printed pictures that depicted her as a masculine-looking woman.

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23rd Amendment- Right of people in District of Columbia to vote for electors of president and Vice President. (1961) 23 DC!

- This law makes the people living in Washington D.C. which is technically not a state to be able to vote.

- Nothing in the 23rd amendment gives Washington D.C. Congress representations.

- Before the 23rd amendment people had to travel to vote for President.

- The people of DC started protesting with license plates.

- The phrase taxation without representation was on the license plates.

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Amendment 26: Suffrage extended to 18,19,20 year olds in all states (Old enough to fight, old enough to vote). Clue: 18+8, proposed on March 23, 1971 and ratified July 1, 1971.

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Amendment 26: Suffrage extended to 18,19,20 year olds in all states (Old enough to fight, old enough to vote). Clue: 18+8, proposed on March 23, 1971 and ratified July 1, 1971.

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History of the Amendment:
- The voting age was changed from 21 to 18, as people had to go to war and fight for our country at 18, but couldn’t even cast a vote.
- This amendment was the last in a series to expand the voting rights of different Americans.
- The reason this law was passed was because of the Vietnam War and the various deaths caused by it, as over half the Americans who died in this war were 18-20 years old.
-This Amendment was the fastest Amendment to be ratified in constitutional history.
- Georgia became the first state to drop its minimum voting age in state and local elections to from 21 to 18.
Neil Banahatti

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COURT CASE: In Boehner v. Anderson, Rep. John Boehner and 27 other members of Congress, 108 defeated congressional candidates, and 14 other individuals and organizations challenge provisions of the Ethics Reform Act. The Act gave an immediate, onetime salary increase to members of Congress and, in subsequent years, an annual cost-of-living increase to their salaries and pensions. They argue that the automatic cost-of-living increases and the automatic raise every four years violates the 27th Amendment because both plans effectively grant a pay increase for legislators before a new congressional session begins. The Court of Appeals for the District of Columbia holds that Boehner has the legal right to challenge the law, but then rules against him. Because the cost-of-living increase takes effect after the election of new representatives, it does not violate the 27th Amendment. Since the four-year raise system had not yet taken effect, the court dismisses Boehner’s challenge.

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Passed by Congress June 4, 1919 the right of citizens of the United States to vote shall not be denied by the United States or by any State on account of sex.

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Passed by Congress June 4, 1919 the right of citizens of the United States to vote shall not be denied by the United States or by any State on account of sex.

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-Women weren’t even people, legally speaking

-Sir William Blackstone, wrote that after marriage, the 'very being or legal existence of the woman is… incorporated and consolidated into that of her husband'. In other words, a married woman did not, legally speaking, exist separately from her husband

-Women still didn’t have access to education

-Women, still, struggle for equality on a work place

-Women need legal protection from violence, including in the home

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27- No pay increase for Senators and Representatives during current term of office. Limits ‘em. Passed in 1992.

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27- No pay increase for Senators and Representatives during current term of office. Limits ‘em. Passed in 1992.

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Senators/Reps can’t raise their own pay in the current term, must wait until next term to go into action.

Introduced in 1789 by James Madison

Wasn’t passed until 1992 after the public displeasure with congressional pay increases.

Contained no time limit for ratification (other amendments had a 7 year time limit).

No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.

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https://www.washingtonpost.com/history/2019/01/16/drinkers-rushed-buy-booze-after-th-amendments-ratification-century-ago/
Drinkers are rushing to buy alcohol after the 18th amendments ratification was a century ago.

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Before Prohibition, much of America's drinking was done in saloons, fueling social problems not normally discussed in public. (AP) (AP)

The stockpiling began as soon as the 36th of the 48 states - Nebraska - approved the 18th Amendment on Jan. 16, 1919, ratifying it and making Prohibition part of the Constitution. In a year's time, no one in the country would be able to legally buy or make alcohol.

"GIVEN ONE YEAR OF GRACE," The Washington Post's front page declared the next day. The upper classes, with excess income to invest in stocking their cellars, had already started buying because of the Wartime Prohibition Act, which was passed Nov. 18, 1918, and went into effect July 1, 1919. It had already banned the sale of most alcoholic beverages until demobilization from World War I was finished. (The day after June 30, 1919, was nicknamed June "thirsty-first.")

The new law was a harbinger of the 18th Amendment, using patriotism as a hook. There would be no grain for hungry soldiers, after all, if it was all going to making booze. The Wartime Prohibition Act made opposition to Prohibition downright un-American. (Compare that with a few years earlier, when many saw liquor tax revenue as necessary for the federal government to function - until the 16th Amendment approving a national income tax alleviated budgetary fears.)

But now that it was part of the Constitution, Prohibition would be (seemingly) forever, not just while there were concerns for the military, and cover all alcoholic beverages. The manufacturing and sale of liquor didn't stop, of course. It was driven underground and eventually led to the creation of a nationwide crime syndicate.

Before Prohibition, much of America's drinking was done in saloons, fueling social problems not normally discussed in public: domestic violence, child neglect and the "syphilis of the innocent" (venereal disease transferred from philandering husbands to unsuspecting wives).

Attacking saloons with a hatchet, Carry Nation helped get America into rehab 100 years ago

Drinking at home was viewed as less of a problem. At least imbibers were with their families. Consumption in the home would remain legal under Prohibition so, according to The Post, "the great stocks now held in bonded warehouses will have to be disposed of." And "wets," the drinkers who opposed Prohibition, were eager to buy up the remaining supplies of legally produced booze.

Assistant Secretary of the Navy Franklin Delano Roosevelt - who later would be president when Prohibition was repealed in 1933 - had cases of liquor delivered to his home.

Once Prohibition was in effect, following the law required home drinking. Home entertaining and the dinner party rose in popularity.

British newspaper editor Sir Charles Igglesden saw "men swallow four or five cocktails" before dinner on a visit to America, "drinking against time, as it were." One socialite wrote, "I find that people expect more [liquor] at a dinner party than before Prohibition," according to Daniel Okrent's book, "Last Call: The Rise and Fall of Prohibition."

For the first time men and women were even drinking together at house parties without food served. Jay Gatsby's parties would have been legal if he hadn't procured his liquor by being a bootlegger.

Prohibition transformed America's drinking culture in ways that remain significant 100 years after the 18th Amendment's ratification.

'Oh my god! Run!': The day a deadly wave of molasses tore through Boston

Robert Frost wrote this masterpiece in about 20 minutes. It belongs to all of us now.

The epic bender to celebrate George Washington and the newly finished U.S. Constitution

Poland once sent the U.S. a birthday card. With 5 million signatures.

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Drinkers rushed to buy booze after the 18th Amendment's ratification a century ago

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The stockpiling began as soon as the 36th of the 48 states - Nebraska - approved the 18th Amendment on Jan. 16, 1919, ratifying it and making Prohibition part of the Constitution. In a year's time, no one in the country would be able to legally buy or make alcohol.

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Seventh amendment: Trail by jury in civil suits (7-7:20) date Dec 15 1791
*You are able to have a fair trail as long as it is over 20 dollars
* it was wrote by James Maddison  that it protected the persons personal belongings over 20 dollars
*the right of trail by jury shall be preserved, and no fact tried by a jury
*if it is over 20 dollars you can go to court for it it is common law

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This amendment protects the right to a trial by jury in civil court cases.

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https://www.cantonrep.com/article/20130512/News/305129922

This articulate talks about how A $200 mistake cost Dr. Morris Kinast his right to a jury trial. So later this month, the process of defending the doctor will continue in a civil bench trial, before a solitary judge.

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A $200 mistake cost Dr. Morris Kinast his right to a jury trial. So later this month, the process of defending the doctor will continue in a civil bench trial, before a solitary judge. The ongoing legal saga illustrates the breadth, depth and limitations provided by the Seventh Amendment of the Bill of Rights.

A $200 mistake cost Dr. Morris Kinast his right to a jury trial.

So later this month, his legal team will continue the process of defending the doctor in a civil bench trial, before a solitary judge. It's not what his lawyers wanted. They preferred a jury decide if Kinast is to blame for the 2009 suicide of Christian Berry, an 11-year-old boy from Alliance. (Information has been corrected to fix an error. See correction at end of story. 5 p.m. May 14)

The ongoing legal saga illustrates the breadth, depth and limitations provided by the Seventh Amendment of the Bill of Rights.

In 50 words, the amendment makes clear the importance of a jury in civil cases. Experts agree that framers wanted to protect citizens against possible judicial corruption by allowing common people to also issue verdicts.

But keep this in mind: The amendment does not "guarantee" a right to a jury trial. Instead, it says "the right ... shall be preserved." Kinast, a pediatric neurologist at Neurocare Center in Jackson Township, now knows that all too well.

Nationally, scholars and experts have debated the topic of the vanishing trial, as more and more cases reach a conclusion without seeing a courtroom. They blame increased use of summary judgment, which enables a judge to dismiss a case based on apparent lack of merit or facts, and on judges' encouraging settlements to clear their dockets.

In the 2011 annual report of the Ohio Supreme Court, justices noted that only 2 percent of civil cases in the U.S. ever reach a jury. It reported the rate in Ohio was even less, about 1.3 percent, and it has declined every year for the past decade.

Lawyers for Kinast did not return phone calls seeking comment for this story. Canton lawyer Brian Zimmerman, who represents the family and estate of Berry, would not directly comment on facts of the case.

However, hundreds of pages of documents filed in Stark County Common Pleas Court and the Ohio Supreme Court, provide an outline of how this case has unfolded. And in the end, it was a simple $200 filing fee. which a local judge ruled wasn't paid on time, that cost the 65-year-old Kinast his right to a jury trial.

THE CASE

It's one of the saddest cases I've ever been involved with," Zimmerman said. "It breaks my heart every time I think of it."

The lawsuit alleges that Christian Berry began to see Kinast in 2007. Along the way, the doctor prescribed Paxil (paroxetine hydrochloride) for the boy.

For a decade prior, the antidepressant drug had been linked to suicidal thoughts and hostile behavior in adolescents and young adults. The studies had prompted the U.S. Food and Drug Administration to place a warning on the drug. It reads: "Anyone considering the use of Paxil or any other antidepressant in a child or adolescent must balance this risk with the clinical need. Patients who are started on therapy should be observed closely for clinical worsening, suicidality, or unusual changes in behavior. Families and caregivers should be advised of the need for close observation and communication with the prescriber. Paxil is not approved for use in pediatric patients."

It was Oct. 1, 2009, when 11-year-old Christian Berry took his life.

Two years later, his family filed a civil suit in Stark County Common Pleas Court. They claimed the doctor and Neurocare Center were negligent "by failing to properly evaluate, diagnose and treat (Berry's) neurological condition." Along with the complaint, they included affidavits from two medical experts backing up their claim.

The case was assigned to Judge Frank Forchione.

The doctor's lawyers denied liability by Kinast and requested a jury hear the case, if it got that far in the legal process. At the end of November, the court issued an order, stating: "All required court cost deposits for jury demands must be paid within five (5) days of the demand. Should costs for a jury demand not be paid, the Court will strike the jury demand. The fact that one party has made a jury demand does not act as a valid jury demand unless the court costs have been paid as required by this order."

For the next 13 months, both sides continued filing motions and gathering facts, proceeding toward an trial date of Jan. 29 this year. All the while, though, Kinast's lawyers had not paid $200 in court costs for a jury.

So, on Jan. 14, Berry's lawyers asked the judge to strike the jury demand, because the costs were not paid. The next day, Kinast's lawyers paid the money to the court. However, Forchione ruled that it was too late.

No jury trial, he said.

SUPREME COURT

Kinast's lawyers appealed to the Ohio Supreme Court. They said the judge denied the doctor's Seventh Amendment right to a jury trial, a right they pointed out also is guaranteed by the Constitution of Ohio.

In their pleas, two lawyers representing the doctor also asked the state Supreme Court to disqualify Forchione from presiding over the case. They accused him of being prejudiced against them, based not only on his decision but his "tone" and "mannerisms" toward them during a courtroom session in discussing the late fees. They contended it's impossible for their client to get a fair trial before the judge.

"In my experience, the only possible way in which inherently sympathetic/tragic death and injury cases can be fairly resolved is by jury trial," wrote lawyer Steven Hupp, who added that the Berry family offered to settle the case for $2 million.

The Supreme Court rejected the claims.

A pretrial before Forchione, back in Stark County, is set for May 20.

When contacted about the case, Forchione pointed out that Kinast's law firm had missed a similar filing deadline in a case before Judge Lee Sinclair several years ago. Forchione said he made the same ruling as Sinclair.

"All I did was follow the law," he said.

Besides, technically, the Seventh Amendment doesn't apply to state and local courts, said one legal expert. "There are very few parts of the Bill of Rights that haven't been incorporated, but the Seventh Amendment is one of them," explained Michael Green, a civil-procedure law professor at William & Mary College in Virginia.

That means the U.S. Supreme Court has never made a decision that expanded the Seventh Amendment to the state or local courts, as it has done with so many of the others, including the right to bear arms.

"The Seventh Amendment is a federal-court argument ... not state," Green said.

Zimmerman said he'd have no problem trying the case before a jury, but added the other side didn't follow the rules.

"There are requirements," he said. "You have to pay the court costs ... then you're entitled to (jury trial) by the Constitution. Even the Second Amendment ... I mean, I don't have the right to get a free gun. I have to pay for it. I have to register it."

Correction: Roetzel & Andress law firm in Cleveland will not represent Dr. Morris Kinast in an upcoming malpractice bench trial in Stark County Common Pleas Court. The firm's only involvement was to represent him in an Ohio Supreme Court complaint, seeking a jury trial, which was denied. A story on A-1 Sunday did not accurately describe the firm's role. Another legal firm failed to meet a filing fee deadline, which cost Kinast a jury trial. The information was incorrect when first published at 10 a.m. May 12

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Seventh Amendment: Doctor fought for jury trial and lost

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A $200 mistake cost Dr. Morris Kinast his right to a jury trial. So later this month, the process of defending the doctor will continue in a civil bench trial, before a solitary judge. The ongoing legal saga illustrates the breadth, depth and limitations provided by the Seventh Amendment of the Bill of Rights.

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The Fourth Amendment: Limitation on searches and seizures

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The Fourth Amendment: Limitation on searches and seizures

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The fourth amendment was founded in 1792.  A clue to remembering this amendment is 'B4 warrant'.

1) was part of the Bill of Rights
2) James Madison proposed the fourth amendment
3) protects citizens from unreasonable searches
4) protects citizens from seizers by the government
5) provides privacy to each citizens home

Nathalia Acosta

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https://en.m.wikipedia.org/wiki/Hawke_v._Smith

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Hawke v. Smith, 253 U.S. 221 (1920), was a United States Supreme Court case coming out of the state of Ohio. It challenged the validity of the way in which the 18th Amendment had been passed.

The state of Ohio's legislature reserved to the people the right to review the state legislature's ratification of any federal amendment. This meant that within ninety days of the ratification of an amendment by the state legislature, that ratification could be challenged by a petition signed by six percent of Ohio voters. This would then bring the issue to referendum.

In the case of Ohio and the 18th Amendment, the legislature ratified the amendment and, before the ninety-day waiting period had passed, the Secretary of State, Robert Lansing, declared the 18th Amendment to be in effect. Meanwhile, a petition was signed by at least six percent of the voters and, in the ensuing referendum, a majority of Ohio voters voted against prohibition, seemingly invalidating the passage of the 18th Amendment. The controversy regarding this situation eventually led to a court case which made it to the U.S. Supreme Court.

The issue before the court was whether or not a state had a right to reserve to its people the right to review its legislature's ratification of federal amendments. The prohibitionists argued that the Constitution provided for the ratifying of federal amendments by state legislatures-it said nothing about the people's right to review such amendments. Opponents of this view argued that the Constitution did not say anything about what constituted a state legislature and it was up to each of the states to decide what constituted its legislature. Thus in the case of Ohio, the idea of "state legislature" came with the limit of not being able to ratify a federal amendment without review by the people of the state, and, thus, the amendment had not been ratified.

On June 1, 1920, the Court ruled that Ohio voters could not overturn the state legislature's approval of the Eighteenth Amendment.

Hawke v. Smith was important for two reasons. First, several other states had been considering referendums on Prohibition. This case made it clear that the 18th Amendment was valid. Second, the fact that the amendment passed in Ohio despite a majority of voters voting against it fostered the idea that Prohibition was the work of powerful groups and not the people themselves.

Kyvig, David E. Repealing National Prohibition. 2nd ed. Kent, Ohio: The Kent State UP, 2000. Pages 14-16.

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Hawke v. Smith , 253 U.S. 221 (1920), was a United States Supreme Court case coming out of the state of Ohio. It challenged the validity of the way in which the 18th Amendment had been passed. The state of Ohio's legislature reserved to the people the right to review the state legislature's ratification of any federal amendment.

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https://www.forbes.com/sites/nicksibilla/2021/10/08/nonstop-hidden-camera-spying-violated-fourth-amendment-colorado-supreme-court-rules/?sh=3443e8d7604f

Using a hidden pole camera without a warrant to spy on and record a man’s home for more than three months violated the Fourth Amendment, the Colorado Supreme Court unanimously declared last month.

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Using a hidden pole camera without a warrant to spy on and record a man's home for more than three months violated the Fourth Amendment, the Colorado Supreme Court unanimously declared last month. "A camera monitoring all of a person's backyard activities," Chief Justice Brian Boatright wrote for the court, "provokes an immediate negative visceral reaction: indiscriminate video surveillance raises the spectre of the Orwellian state."

With its decision, the Colorado Supreme Court widens a growing split on the constitutionality of long-term pole camera surveillance. The Fifth Circuit U.S. Court of Appeals, as well as the South Dakota Supreme Court, have both ruled against warrantless surveillance, while the Sixth and Seventh have ruled the opposite.

(Photo by Rob Kerr / AFP) (Photo by ROB KERR/AFP via Getty Images)
AFP via Getty Images

During summer 2015, officers in Colorado Springs received a tip from a confidential informant about a "stash house," which they ultimately traced to the home of Rafael Tafoya. Based on that tip, police mounted a camera on top of a nearby utility pole to monitor Tafoya's front yard, driveway, backyard, and detached garage.

As the Colorado Supreme Court recounted, every day for more than three months, "the camera continuously recorded when Tafoya left his house and when he came home," as well as "who came to Tafoya's home and how long they stayed." Thanks to that camera, police could "zoom in and out while viewing the footage live," while the recordings were "stored indefinitely for later review."

Based on the footage they had collected, police obtained a warrant to search Tafoya's home, where they found plastic bags filled with cocaine and meth. Tafoya was then charged with, and ultimately convicted of, two counts of possession with intent to distribute controlled substances and two additional counts of conspiracy to commit those offenses.

In response, Tafoya filed a motion to suppress the evidence, arguing that the months of warrantless surveillance infringed on his Fourth Amendment rights. At first, Tafoya lost at the trial court, but won in the appellate court. In turn, police appealed that ruling to the Colorado Supreme Court, which sided with Tafoya.

Under U.S. Supreme Court precedent, unless officers physically enter a person's property, a "search" only occurs "when the government violates a subjective expectation of privacy that society recognizes as reasonable." But if a court decides there is no reasonable expectation of privacy, government agents are free to monitor and intrude, unbound by the Fourth Amendment.

For Tafoya's case, the Colorado Supreme Court noted that his yard was surrounded by a six-foot-high privacy fence and was "significantly set back from the street, so a person standing on the street could not see into the backyard." So while police didn't surveil into his home directly, they still spied on his "curtilage," which the U.S. Supreme Court has long considered "part of the home itself for Fourth Amendment purposes."

The Colorado Supreme Court further found the "extended duration and continuity" of the pole-camera surveillance to be "constitutionally significant," since it "involved a degree of intrusion that a reasonable person would not have anticipated." "Society would not expect law enforcement to undertake this kind of 'pervasive tracking' of the activities occurring in one's curtilage," Boatright added.

The state, however, argued that surveilling Tafoya's yard wasn't a search. Since that area was "visible through gaps in Tafoya's fence, from a particular spot on the stairway of an adjacent building, and from the utility pole itself," this "public exposure" made it "unreasonable for Tafoya to expect privacy" in his own yard.

But as the Colorado Supreme Court countered, "any typical public exposure of the area would be fleeting": "This argument ignores the improbability that a neighbor would peer through a gap in a privacy fence or stand on his or her outdoor stairway for three months at a time."

Moreover, the very fact that the pole camera went undetected further bolstered Tafoya's argument that his expectation of privacy was reasonable. "If a police officer had manned the utility pole for three continuous months, obviously Tafoya would have noticed," Chief Justice Boatright quipped.

"It's a good day for folks in Colorado who value their privacy," Robert Borquez, who represents Tafoya, told KRDO after the decision came down. "I think it sends a message to law enforcement agencies...there are limits to what can be done as far as surveilling people."

The Colorado Attorney General's Office has declined to publicly comment.

... Read More

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Nonstop Hidden Camera Spying Violated Fourth Amendment, Colorado Supreme Court Rules

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Using a hidden pole camera without a warrant to spy on and record a man's home for more than three months violated the Fourth Amendment, the Colorado Supreme Court unanimously declared last month. "A camera monitoring all of a person's backyard activities," Chief Justice Brian Boatright wrote for the court, "provokes an immediate negative visceral reaction: indiscriminate video surveillance raises the spectre of the Orwellian state."

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First Amendment: Freedom of Religion, Speech, Press, Assembly, and Petition (free SPARP) date Dec 15th, 1791

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First Amendment: Freedom of Religion, Speech, Press, Assembly, and Petition (free SPARP) date Dec 15th, 1791

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*The government cannot stop people from saying (Speech) or printing (Press) what they think or believe.
*The government cannot stop criticism of it.
*A group can gather (Assemble) peacefully to debate what the government does.
*The government cannot tell someone how or how not to worship. (Religion)
*The people can (Petition) the government to address their grievances (problems)

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History of the First Amendment

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News: Does First Amendment freedom of speech apply to social media?
Many constitutional lawyers have argued that the first amendment does not protect freedom of speech when it is published on a company owned site. In that case the private company like (Facebook, Twitter) have the right to set parameters or guidelines on what cannot be published, hate speech etc. The first amendment mostly protects the people from government attack against of their constitutionally guaranteed freedom of speech.

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RICHMOND, Va. (WWBT) - Twitter has defined the voice of the Trump Administration for the past four years, but after Wednesday's deadly insurgence at the US Capitol, Twitter, Facebook, and Instagram have permanently banned the president.

Virginia Senator Amanda Chase is facing similar suspensions from Facebook after the social media giant says she spread false claims about the riots. The move is drawing criticism from Trump, Chase, and others who are calling the decision a violation of free speech. But VCU constitutional law expert, Dr. John Aughenbaugh, says that isn't the case.

"What Twitter did does not violate the First Amendment of the constitution," Aughenbaugh said. "The First Amendment applies to the government, and Twitter or Facebook, or any other social media platform, by and large, is a private sector actor and therefore the First Amendment does not apply."

Aughenbaugh says even without social media, the government isn't stopping anyone from expressing free speech elsewhere.

The president can go the streets, issue a press release, call up his friends talk to supporters, sure. The government is not stopping the president or anyone else for that matter," Aughenbaugh said.

In addition, by using platforms like Twitter or Facebook, Augenbaugh says you are also agreeing to their terms of the agreement.

"In joining or using the platform, you agree to certain conditions. And if you don't, the platform can ban you," Aughenbaugh said.

Because so many people specifically use social media to express their voice, Aughenbaugh says Twitter and Facebook's actions raise important questions.

"What's the purpose of social media?" Aughenbaugh said. "Is it supposed to be an echo-chamber where you get to hear your voice and your platform? Or is the purpose of any social media platform to be exposed to ideas that are different from yours that you may possibly not like? So, what are you willing to trade-off?"
Copyright 2021 WWBT. All rights reserved.

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'First Amendment does not apply': Law expert says Trump's social media ban is constitutional

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RICHMOND, Va. (WWBT) - Twitter has defined the voice of the Trump Administration for the past four years, but after Wednesday's deadly insurgence at the US Capitol, Twitter, Facebook, and Instagram have permanently banned the president. Virginia Senator Amanda Chase is facing similar suspensions from Facebook after the social media giant says she spread false claims about the riots.