Rehnquist Court: Welch v. Texas Highways & Public Transportation Department
Interstate Commerce
U.S. Supreme Court
WELCH v. TEXAS HIGHWAYS & PUBLIC TRANSP. DEPT., 483 U.S. 468 (1987)
483 U.S. 468
WELCH v. TEXAS DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 85-1716.
Argued March 4, 1987
Decided June 25, 1987
Petitioner, an employee of the Texas Highways Department, was injured while working
on a ferry dock operated by the Department. She filed suit against the Department
and the State under 33 of the Jones Act, which provides that any seaman injured in
the course of his employment may maintain an action for damages at law in federal
district court, and which, in effect, applies the remedial provisions of the Federal
Employer's Liability Act (FELA) to such suits. The District Court dismissed the action
as barred by the Eleventh Amendment, and the Court of Appeals affirmed. Although recognizing
that Parden v. Terminal Railway of Alabama Docks Dept., 377 U.S. 184 , held that an
employee of a state-operated railroad may bring an FELA action in federal court, the
Court of Appeals held that the decision was inapplicable in light of Congress' failure
to include in the Jones Act an unmistakably clear expression of its intention to abrogate
the States' Eleventh Amendment immunity from suit in federal court. The court also
held that Texas had not consented to being sued under the Jones Act.
Held:
The judgment is affirmed.
780 F.2d 1268, affirmed.
JUSTICE POWELL, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR,
concluded that the Eleventh Amendment bars a state employee from suing the State in
federal court under the Jones Act. Pp. 472-495.
(a) Even though the express terms of the Eleventh Amendment's prohibition are limited
to federal-court suits "in law or equity" against a State by citizens of another State
or a foreign country, the Amendment bars a citizen from suing his own State, Hans
v. Louisiana, 134 U.S. 1 , and prohibits admiralty suits against a State, Ex parte
New York, No. 1, 256 U.S. 490 , unless the State expressly waives its immunity and
consents to suit in federal court. Moreover, assuming that Congress can abrogate the
Eleventh Amendment when it acts pursuant to the Commerce Clause, it must express its
intent to do so in unmistakable language in the statute itself. Atascadero State Hospital
v. Scanlon, 473 U.S. 234 . Pp. 472-474. [483 U.S. 468, 469]
(b) Congress has not expressed in unmistakable statutory language its intention to
allow States to be sued in federal court under the Jones Act. Although the Act extends
to "[a]ny" injured seaman, this general authorization for federal-court suits is not
the kind of unequivocal statutory language that is sufficient to abrogate the Eleventh
Amendment, which marks a constitutional distinction between the States and other employers
of seamen. Moreover, since both lower courts rejected petitioner's contention that
Texas waived its Eleventh Amendment immunity, and since the petition for certiorari
does not address this issue, it need not be considered here. Pp. 474-476.
(c) To the extent that Parden is inconsistent with the requirement that an abrogation
of Eleventh Amendment immunity by Congress must be expressed in unmistakably clear
language, it is overruled. Pp. 476-478.
(d) Hans, which firmly established that the Eleventh Amendment embodies a broad constitutional
principle of sovereign immunity, and the long line of subsequent cases that reaffirmed
that principle, will not be overruled in the absence of "special justification" for
such a departure from the doctrine of stare decisis. The argument that the Amendment
does not bar citizens' federal-question actions against the States in federal court
is not persuasive for several reasons. The historical records show that, at most,
the intentions of the Constitution's Framers and Ratifiers were ambiguous on the subject.
Moreover, since federal-question actions unquestionably are "suits in law or equity,"
the plain language of the Amendment refutes the argument. Nor does the argument offer
any satisfactory explanation for the overwhelming rejection of another amendment that
would have allowed citizen suits against States for causes of action arising under
treaties. The principle of sovereign immunity has been deeply embedded in our federal
system since its inception, and is required because of the sensitive problems inherent
in making one sovereign appear against its will in the courts of another. That States
may not be sued absent waiver or congressional enactment is a necessary consequence
of their role in a system of dual sovereignties. Pp. 478-488.
(e) The argument that the sovereign immunity doctrine has no application to citizens'
admiralty suits against unconsenting States in federal courts is directly contrary
to long-settled authority, including Ex parte New York, No. 1. The suggestion that
the latter case overruled settled law allowing such suits is not supported by the
earlier cases cited, which, on balance, indicate that unconsenting States were immune
from admiralty suits, and, at the very least, demonstrate that the question was not
"settled." Pp. 488-493. [483 U.S. 468, 470]
JUSTICE SCALIA concluded that, regardless of the correctness of Hans as an original
matter, Congress enacted the Jones Act and the FELA provisions which it incorporates
on the assumption that, as Hans appears to have held, Article III of the Constitution
contains an implicit limitation on suits brought by individuals against States. The
statutes cannot now be read to apply to States as though that assumption never existed.
Thus, Parden is properly overruled. Pp. 495-496.
POWELL, J., announced the judgment of the Court and delivered an opinion in which
REHNQUIST, C. J., and WHITE and O'CONNOR, JJ., joined. WHITE, J., filed a concurring
opinion, post, p. 495. SCALIA, J., filed an opinion concurring in part and concurring
in the judgment, post, p. 495. BRENNAN, J., filed a dissenting opinion, in which MARSHALL,
BLACKMUN, and STEVENS, JJ., joined, post, p. 496.
Michael D. Cucullu argued the cause and filed a brief for petitioner.
F. Scott McCown, Special Assistant Attorney General of Texas, argued the cause for
respondents. With him on the brief were Jim Mattox, Attorney General, Mary F. Keller,
Executive Assistant Attorney General, and Dudley Fowler, Assistant Attorney General.
*
[ Footnote * ] Robert M. Weinberg, Julia Penny Clark, David M. Silberman, Laurence
Gold, and George Kaufmann filed a brief for the American Federation of Labor and Congress
of Industrial Organizations as amicus curiae urging reversal.
Benna Ruth Solomon, Beate Bloch, and Clifton S. Elgarten filed a brief for the Council
of State Governments et al. as amici curiae urging affirmance.
JUSTICE POWELL announced the judgment of the Court and delivered an opinion in which
THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR join.
The question in this case is whether the Eleventh Amendment bars a state employee
from suing the State in federal court under the Jones Act, ch. 250, 41 Stat. 1007,
46 U.S.C. 688.
I
The Texas Department of Highways and Public Transportation operates a free automobile
and passenger ferry between [483 U.S. 468, 471] Point Bolivar and Galveston, Texas.
Petitioner Jean Welch, an employee of the State Highway Department, was injured while
working on the ferry dock at Galveston. Relying on 33 of the Jones Act, 46 U.S.C.
688, she filed suit in the Federal District Court for the Southern District of Texas
against the Highway Department and the State of Texas. 1
The District Court dismissed the action as barred by the Eleventh Amendment. 533
F. Supp. 403, 407 (1982). A divided panel of the Court of Appeals for the Fifth Circuit
reversed, with each judge writing separately. 739 F.2d 1034 (1984). On rehearing en
banc, the Court of Appeals affirmed the judgment of the District Court. 780 F.2d 1268
(1986). The court recognized that Parden v. Terminal Railway of Alabama Docks Dept.,
377 U.S. 184 (1964), held that an employee of a state-operated railroad company may
bring an action in federal court under the Federal Employers' Liability Act (FELA),
53 Stat. 1404, 45 U.S.C. 51-60. Parden is relevant to this case because the Jones
Act applied the remedial provisions of the FELA to seamen. See 46 U.S.C. 688(a). The
court nevertheless concluded that "the broad sweep of the Parden decision, although
it has not been over-ruled, has overtly been limited by later decisions as its full
implications have surfaced." 780 F.2d, at 1270. The court relied on our holding that
"Congress may abrogate the States' constitutionally secured immunity from suit in
federal court only by making its intention unmistakably clear in the language of the
statute." Atascadero State Hospital v. [483 U.S. 468, 472] Scanlon, 473 U.S. 234,
242 (1985). 2 The Court of Appeals found no unmistakable expression of such an intention
in the Jones Act. The court also held that Texas has not consented to suit under the
Jones Act. 780 F.2d, at 1273-1274 (citing Lyons v. Texas A & M University, 545 S.
W. 2d 56 (Tex. Civ. App. 1976), writ refused, n.r.e. We granted certiorari, 479 U.S.
811 (1986), and now affirm.
II
The Eleventh Amendment provides:
"The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State."
The Court has recognized that the significance of the Amendment "lies in its affirmation
that the fundamental principle of sovereign immunity limits the grant of judicial
authority in Art. III" of the Constitution. Pennhurst State School and Hospital v.
Halderman, 465 U.S. 89, 98 (1984) (Pennhurst II). Accordingly, as discussed more fully
in Part V of this opinion, the Court long ago held that the Eleventh Amendment bars
a citizen from bringing suit against the citizen's own State in federal court, even
though the express terms of the Amendment refer only to suits by citizens of another
State. Hans v. Louisiana, 134 U.S. 1, 10 (1890). See Edelman v. Jordan, 415 U.S. 651,
662 -663 (1974); Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S.
279, 280 (1973). For the same reason, the Court has [483 U.S. 468, 473] held that
the Amendment bars suits in admiralty against the States, even though such suits are
not, strictly speaking, "suits in law or equity." Ex parte New York, No. 1, 256 U.S.
490, 497 (1921) (Eleventh Amendment bars in personam actions against a State by its
citizens); Ex parte New York, No. 2, 256 U.S. 503 (1921) (Eleventh Amendment bars
actions in rem against vessel owned by the State and employed exclusively for governmental
purposes). See Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 683
, n. 17 (1982) (plurality opinion of STEVENS, J.); id., at 706-710 (WHITE, J., concurring
in judgment in part and dissenting in part). See infra, at 488-490. 3
The Court has recognized certain exceptions to the reach of the Eleventh Amendment.
If a State waives its immunity and consents to suit in federal court, the suit is
not barred by the Eleventh Amendment. Clark v. Barnard, 108 U.S. 436, 447 (1883).
But, because "[c]onstructive consent is not a doctrine commonly associated with the
surrender of constitutional rights," Edelman v. Jordan, 415 U.S., at 673 , the Court
will find a waiver by the State "only where stated `by the most express language or
by such overwhelming implications from the text as [will] leave no room for any other
reasonable construction.'" Ibid. (quoting Murray v. Wilson Distilling Co., 213 U.S.
151, 171 (1909)). Moreover, "[a] State's constitutional interest in immunity encompasses
not merely whether it may be sued, but where it may be sued." Pennhurst II, 465 U.S.,
at 99 (emphasis in original). Thus, a State does not waive Eleventh Amendment immunity
in federal [483 U.S. 468, 474] courts merely by waiving sovereign immunity in its
own courts. Id., at 99, n. 9.
We also have recognized that the Eleventh Amendment "necessarily [is] limited by
the enforcement provisions of 5 of the Fourteenth Amendment." Fitzpatrick v. Bitzer,
427 U.S. 445, 456 (1976). Consequently, Congress can abrogate the Eleventh Amendment
without the States' consent when its acts pursuant to its power "`to enforce, by appropriate
legislation' the substantive provisions of the Fourteenth Amendment." Ibid. (quoting
U.S. Const., Amdt. 14, 5). As the Court of Appeals noted in this case, we have required
that "Congress must express its intention to abrogate the Eleventh Amendment in unmistakable
language in the statute itself." Atascadero State Hospital v. Scanlon, 473 U.S., at
243 . We have been unwilling to infer that Congress intended to negate the States'
immunity from suit in federal court, given "the vital role of the doctrine of sovereign
immunity in our federal system." Pennhurst II, supra, at 99. Moreover, the courts
properly are reluctant to infer that Congress has expanded our jurisdiction. See American
Fire & Casualty Co. v. Finn, 341 U.S. 6, 17 (1951) ("The jurisdiction of the federal
courts is carefully guarded against expansion by judicial interpretation").
III
We now apply these principles to the Jones Act. We note that the question whether
the State of Texas has waived its Eleventh Amendment immunity is not before us. Both
the District Court and the Court of Appeals held that the State has not consented
to Jones Act suits in federal court. The petition for certiorari does not address
this issue, and we do not regard it as fairly included in the questions on which certiorari
was granted. 4 Indeed, at oral argument counsel for [483 U.S. 468, 475] petitioner
conceded that the question of express waiver by the State "is not before the Court
. . . ." Tr. of Oral Arg. 18. We therefore have no occasion to consider petitioner's
argument in her brief on the merits that the Texas Tort Claims Act, Tex. Rev. Civ.
Stat. Ann., Art. 6252-19 (Vernon, 1970, as amended 1973 Tex. Gen. Laws, ch. 50) constitutes
an express waiver of the State's Eleventh Amendment immunity. Brief for Petitioner
29-34. We accept the holdings of the Court of Appeals and the District Court that
it does not.
Petitioner's remaining argument is that Congress has abrogated the States' Eleventh
Amendment immunity from suit under the Jones Act. We assume, without deciding or intimating
a view of the question, that the authority of Congress to subject unconsenting States
to suit in federal court is not confined to 5 of the Fourteenth Amendment. See County
of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226, 252 (1985). 5 Petitioner's
argument fails in any event because Congress has not expressed in unmistakable statutory
language its intention to allow States to be sued in federal court under the Jones
Act. It is true that the Act extends to "[a]ny seaman who shall suffer personal injury
in the course of his employment," 33 (emphasis added). But the Eleventh Amendment
marks a constitutional distinction between the States and other employers of [483
U.S. 468, 476] seamen. Because of the role of the States in our federal system, "[a]
general authorization for suit in federal court is not the kind of unequivocal statutory
language sufficient to abrogate the Eleventh Amendment." Atascadero State Hospital
v. Scanlon, supra, at 246. See Quern v. Jordan, 440 U.S. 332, 342 (1979). See also
Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S., at 285 . In Scanlon
the Court held that 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, which provides
remedies for "any recipient of Federal assistance," does not contain the unmistakable
language necessary to negate the States' Eleventh Amendment immunity. For the same
reasons, we hold today that the general language of the Jones Act does not authorize
suits against the States in federal court. 6
IV
In Parden v. Terminal Railway of Alabama Docks Dept., 377 U.S. 184 (1964), the Court
considered whether an employee of a state-owned railroad could sue the State in federal
court under the FELA. The Court concluded that the State of Alabama had waived its
Eleventh Amendment immunity. Id., at 186. It reasoned that Congress evidenced an intention
to abrogate Eleventh Amendment immunity by making the FELA applicable to "every common
carrier by railroad while engaging in commerce between any of the several States .
. . ." 1, 35 Stat. 65, 45 U.S.C. 51. The Court mistakenly relied on cases holding
that general language in the Safety Appliance Act, 2, 6, and the Railway Labor Act,
151 et seq., made those statutes applicable to the [483 U.S. 468, 477] States. 7 It
reasoned that it "should not presume to say, in the absence of express provision to
the contrary, that [Congress] intended to exclude a particular group of [railroad]
workers from the benefits conferred by the Act." Parden v. Terminal Railway of Alabama
Docks Dept., supra, at 190. But, as discussed above, the constitutional role of the
States sets them apart from other employers and defendants. Atascadero State Hospital
v. Scanlon, 473 U.S., at 246 ; Pennhurst II, 465 U.S., at 99 ; Edelman v. Jordan,
415 U.S., at 673 ; Quern v. Jordan, supra, at 342-343; Employees v. Missouri Dept.
of Public Health and Welfare, supra. As the dissenting opinion in Parden states:
"It should not be easily inferred that Congress, in legislating pursuant to one article
of the Constitution, intended to effect an automatic and compulsory waiver of rights
arising under another. Only when Congress has clearly considered the problem and expressly
declared that any State which undertakes given regulable conduct will be deemed thereby
to have waived its immunity should courts disallow the invocation of this defense."
377 U.S., at 198 -199 (WHITE, J., dissenting). [483 U.S. 468, 478]
Although our later decisions do not expressly overrule Parden, they leave no doubt
that Parden's discussion of congressional intent to negate Eleventh Amendment immunity
is no longer good law. In Employees v. Missouri Dept. of Public Health and Welfare
the Court emphasized that "Parden was premised on the conclusion that [the State]
. . . had consented to suit in the federal courts . . . ." 411 U.S., at 281 , n. 1.
The Court refused to extend the reasoning of Parden to "infer that Congress in legislating
pursuant to the Commerce Clause, which has grown to vast proportions in its applications,
desired silently to deprive the States of an immunity they have long enjoyed under
another part of the Constitution." Id., at 285. In subsequent cases the Court consistently
has required an unequivocal expression that Congress intended to override Eleventh
Amendment immunity. Atascadero State Hospital v. Scanlon, supra, at 242; Pennhurst
II, supra, at 99; Quern v. Jordan, supra, at 342-345. Accordingly, to the extent that
Parden v. Terminal Railway, supra, is inconsistent with the requirement that an abrogation
of Eleventh Amendment immunity by Congress must be expressed in unmistakably clear
language, it is overruled. 8
V
Today, for the fourth time in little more than two years, see Papasan v. Allain,
478 U.S. 265, 293 (1986) (BRENNAN, J., concurring in part and dissenting in part);
Green v. Mansour, 474 U.S. 64, 74 (1985) (BRENNAN, J., dissenting); Atascadero State
Hospital v. Scanlon, supra, at 247 (BRENNAN, J., dissenting), four Members of the
Court urge that we overrule Hans v. Louisiana, 134 U.S. 1 (1890), and the long line
of cases that has followed it. The rule of law depends in [483 U.S. 468, 479] large
part on adherence to the doctrine of stare decisis. Indeed, the doctrine is "a natural
evolution from the very nature of our institutions." Lile, Some Views on the Rule
of Stare Decisis, 4 Va. L. Rev. 95, 97 (1916). It follows that "any departure from
the doctrine of stare decisis demands special justification." Arizona v. Rumsey, 467
U.S. 203, 212 (1984). Although the doctrine is not rigidly observed in constitutional
cases, "[w]e should not be . . . unmindful, even when constitutional questions are
involved, of the principle of stare decisis, by whose circumspect observance the wisdom
of this Court as an institution transcending the moment can alone be brought to bear
on the difficult problems that confront us." Green v. United States, 355 U.S. 184,
215 (1957) (Frankfurter, J., dissenting). Despite these time-honored principles, the
dissenters - on the basis of ambiguous historical evidence - would flatly overrule
a number of major decisions of the Court, and cast doubt on others. See n. 27, infra.
Once again, the dissenters have placed in issue the fundamental nature of our federal
system. 9
A
The constitutional foundation of state sovereign immunity has been well described
by JUSTICE MARSHALL in his separate opinion in Employees v. Missouri Dept. of Public
Health and Welfare, 411 U.S. 279 (1973):
"It had been widely understood prior to ratification of the Constitution that the
provision in Art. III, 2, concerning `Controversies . . . between a State and Citizens
of another State' would not provide a mechanism for making States unwilling defendants
in federal court. The Court in Chisholm, however, considered the plain meaning of
the constitutional provision to be controlling. [483 U.S. 468, 480] The Eleventh Amendment
served effectively to reverse the particular holding in Chisholm, and, more generally,
to restore the original understanding, see, e. g., Hans v. Louisiana . . . . Thus,
despite the narrowness of the language of the Amendment, its spirit has consistently
guided this Court in interpreting the reach of the federal judicial power generally,
and `it has become established by repeated decisions of this court that the entire
judicial power granted by the Constitution does not embrace authority to entertain
a suit brought by private parties against a State without consent given: not one brought
by citizens of another State, or by citizens or subjects of a foreign State, because
of the Eleventh Amendment; and not even one brought by its own citizens, because of
the fundamental rule of which the Amendment is but an exemplification.'" Id., at 291-292
(MARSHALL, J., concurring in result) (citations omitted).
Although the dissent rejects the Court's reading of the historical record, there
is ample support for the Court's rationale, which has provided the basis for many
important decisions.
1
JUSTICE BRENNAN has argued at length that "[a] close examination of the historical
records" demonstrates that "[t]here simply is no constitutional principle of state
sovereign immunity." Atascadero State Hospital v. Scanlon, 473 U.S., at 259 (dissenting
opinion). In his dissent today, he repeats and expands this historical argument. Post,
at 504-516. The dissent concedes, as it must, that three of the most prominent supporters
of the Constitution - Madison, Hamilton, and Marshall - took the position that unconsenting
States would not be subject to suit in federal court. 10 The [483 U.S. 468, 481] Court
has relied on these statements in the past. See Edelman v. Jordan, 415 U.S., at 660
-662, n. 9; Monaco v. Mississippi, 292 U.S. 313, 323 -325 (1934); Hans v. Louisiana,
134 Page 482 U.S., at 12 -14. Although the dissenters would read these statements
to apply only to cases in which no federal question is presented, see post, at 504-509;
Atascadero State Hospital v. Scanlon, supra, at 268, 276-278, the statements themselves
do not suggest such a limitation. 11 Moreover, the delicate problem of enforcing judgments
against the States, that was raised by both Federalists and anti-Federalists, would
have arisen in cases presenting a federal question as well as in other cases.
It is true, as the Court observed in Hans, supra, at 14, that opinions on this question
differed during the ratification debates. Among those who disagreed with Madison,
Hamilton, and Marshall were Edmund Randolph and James Wilson, both of whom supported
ratification. 12 Opponents of [483 U.S. 468, 483] ratification, including Patrick
Henry, George Mason, and Richard Henry Lee, feared that the Constitution would make
unconsenting States subject to suit in federal court. Despite the strong rhetoric
in the dissent, these statements fall far short of demonstrating a consensus that
ratification of the Constitution would abrogate the sovereign immunity of the States.
Indeed, the representations of Madison, Hamilton, and Marshall that the Constitution
did not abrogate the States' sovereign immunity may have been essential to ratification.
13 For example, the New York Convention appended to its ratification resolution a
declaration of understanding that "the Judicial Power of the United States in cases
in which a State may be a party, does not extend to criminal Prosecutions, or to authorize
any Suit by any Person against a State." 2 Documentary History of the Constitution
of the United States of America 194 (1894). 14 At most, [483 U.S. 468, 484] then,
the historical materials show that - to the extent this question was debated - the
intentions of the Framers and Ratifiers were ambiguous.
2
No one doubts that the Eleventh Amendment nullified the Court's decision in Chisholm
v. Georgia, 2 Dall. 419 (1793). Chisholm was an original action in assumpsit, filed
by the South Carolina executor of a South Carolina estate, to recover money owed to
the estate by Georgia. The Court held, over a dissent by Justice Iredell, that it
had jurisdiction. The reaction to Chisholm was swift and hostile. The Eleventh Amendment
passed both Houses of Congress by large majorities in 1794. Within two years of the
Chisholm decision, the Eleventh Amendment was ratified by the necessary 12 States.
15
The dissent, observing that jurisdiction in Chisholm itself was based solely on the
fact that Chisholm was not a citizen of Georgia, argues that the Eleventh Amendment
does not apply to cases presenting a federal question. 16 The text of the Amendment
states that "[t]he Judicial power of the [483 U.S. 468, 485] 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." (Emphasis added.) Federal-question actions unquestionably are
suits "in law or equity"; thus the plain language of the Amendment refutes this argument.
17 Nor does the dissenting opinion offer any satisfactory explanation for the rejection,
by an overwhelming margin, of an amendment offered by Senator Gallatin that would
have allowed citizens to sue the States for causes of action arising under treaties.
18 [483 U.S. 468, 486]
3
The Court's unanimous decision in Hans v. Louisiana, 134 U.S. 1 (1890), firmly established
that the Eleventh Amendment embodies a broad constitutional principle of sovereign
immunity. Hans, a citizen of Louisiana, brought an action against the State in federal
court alleging that its failure to pay interest on certain bonds violated the Contract
Clause. The Court considered substantially the same historical materials relied on
by the dissent and unanimously held that the action was barred by the doctrine of
sovereign immunity. Justice Bradley's opinion for the Court observed:
"Suppose that Congress, when proposing the Eleventh Amendment, had appended to it
a proviso that nothing therein contained should prevent a State from being sued by
its own citizens in cases arising under the Constitution or laws of the United States:
can we imagine that it would have been adopted by the States? The supposition that
it would is almost an absurdity on its face." Id., at 15.
In a short concurring opinion, Justice Harlan agreed with the other eight Members
of the Court that "a suit directly against a State by one of its own citizens is not
one to which the judicial power of the United States extends, unless the State itself
consents to be sued." Id., at 21.
Contrary to the suggestion in the dissent, post, at 519, the fundamental principle
enunciated in Hans has been among the most stable in our constitutional jurisprudence.
Moreover, the dissent is simply wrong in asserting that the doctrine lacks a clear
rationale, post, at 519. Because of the sensitive problems "inherent in making one
sovereign appear against its will in the courts of the other," Employees v. Missouri
Dept. of Public Health and Welfare, 411 U.S., at 294 (MARSHALL, J., concurring in
result), the doctrine of sovereign immunity [483 U.S. 468, 487] plays a vital role
in our federal system. The contours of state sovereign immunity are determined by
the structure and requirements of the federal system. The rationale has been set out
most completely in the Court's unanimous opinion, per Chief Justice Hughes, in Monaco
v. Mississippi, 292 U.S. 313 (1934). First, the United States may sue a State, because
that is "inherent in the Constitutional plan." Id., at 329. Absent such a provision,
"`the permanence of the Union might be endangered.'" Ibid. (quoting Oklahoma v. Texas,
258 U.S. 574, 581 (1922)). Second, States may sue other States, because a federal
forum for suits between States is "essential to the peace of the Union." Monaco v.
Mississippi, supra, at 328. Third, States may not be sued by foreign states, because
"[c]ontroversies between a State and a foreign State may involve international questions
in relation to which the United States has a sovereign prerogative." 292 U.S., at
331 . Fourth, the Eleventh Amendment established "an absolute bar" to suits by citizens
of other States or foreign states. Id., at 329. Finally, "[p]rotected by the same
fundamental principle [of sovereign immunity], the States, in the absence of consent,
are immune from suits brought against them by their own citizens . . . ." Ibid. The
Court has never questioned this basic framework set out in Monaco v. Mississippi.
The dissenters offer their unsupported view that the principle of sovereign immunity
is "`pernicious'" because it assertedly protects States from the consequences of their
illegal conduct and prevents Congress from "`tak[ing] steps it deems necessary and
proper to achieve national goals within its constitutional authority.'" Post, at 521
(quoting Atascadero State Hospital v. Scanlon, 473 U.S., at 302 (BRENNAN, J., dissenting)).
Of course, the dissent's assertion that our cases construing the Eleventh Amendment
deprive Congress of some of its constitutional power is simply question-begging. Moreover,
as noted supra, at 475, Congress clearly has authority to limit the Eleventh Amendment
when [483 U.S. 468, 488] it acts to enforce the Fourteenth Amendment. Fitzpatrick
v. Bitzer, 427 U.S., at 456 . The dissent's statement that sovereign immunity "protect[s]
the States from the consequences of their illegal conduct" erroneously suggests that
aggrieved individuals are left with no remedy for harmful state actions. Relief often
may be obtained through suits against state officials rather than the State itself,
or through injunctive or other prospective remedies. Edelman v. Jordan, 415 U.S. 651
(1974). Municipalities and other local government agencies may be sued under 42 U.S.C.
1983. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). In addition,
the States may provide relief by waiving their immunity from suit in state court on
state-law claims. 19 That States are not liable in other circumstances is a necessary
consequence of their role in a system of dual sovereignties. Although the dissent
denies that sovereign immunity is "`required by the structure of the federal system,'"
post, at 520 (quoting Atascadero, supra, at 302), the principle has been deeply embedded
in our federal system from its inception.
B
As a fallback position, the dissent argues that the doctrine of sovereign immunity
has no application to suits in admiralty against unconsenting States. Post, at 497-504.
This argument also is directly contrary to long-settled authority, as well as the
Court's recognition that the Eleventh Amendment affirms "the fundamental principle
of sovereign immunity," Pennhurst II, 465 U.S., at 98 ; Monaco v. Mississippi, supra,
at 329.
1
In Ex parte New York, No. 1, 256 U.S. 490 (1921), a unanimous Court held that unconsenting
States are immune from [483 U.S. 468, 489] in personam suits in admiralty brought
by private citizens. 20 Today the dissent asserts that the Court's opinion in Ex parte
New York, No. 1, "did not attempt to justify its obliteration" of the traditional
distinction between admiralty cases and cases in law or equity. Post, at 500. On the
contrary, the Court expressly recognized the distinction, see 256 U.S., at 497 , and
provided a reasoned basis for its holding:
"That a State may not be sued without its consent is a fundamental rule of jurisprudence
having so important a bearing upon the construction of the Constitution of the United
States that it has become established by repeated decisions of this court that the
entire judicial power granted by the Constitution does not embrace authority to entertain
a suit brought by private parties against a State without consent given: not one brought
by citizens of another State, or by citizens or subjects of a foreign State, because
of the Eleventh Amendment; and not even one brought by its own citizens, because of
the fundamental rule of which the Amendment is but an exemplification." Ibid. (citations
omitted).
The Court has adhered to this rule in subsequent cases. In re New York, No. 2, 256
U.S. 503 (1921), held that a private citizen may not bring an admiralty action in
rem against a vessel owned by a State. The Court concluded that "`[t]o permit a creditor
to seize and sell [a government-owned vessel] to collect his debt would be to permit
him in some degree to destroy the government itself.'" Id., at 511 (quoting Klein
v. New Orleans, 99 U.S. 149, 150 (1879)). 21 More recently, [483 U.S. 468, 490] in
Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982), eight Members
of the Court reaffirmed the settled rule that the Eleventh Amendment bars admiralty
actions against the State or its officials seeking damages to be paid from the state
treasury. Id., at 698-699 (opinion of STEVENS, J.); id., at 706-710 (WHITE, J., concurring
in judgment in part and dissenting in part). To be sure, JUSTICE STEVENS' opinion
states that "we need not decide the extent to which a federal district court exercising
admiralty in rem jurisdiction over property before the court may adjudicate the rights
of claimants to that property as against sovereigns that did not appear and voluntarily
assert any claim that they had to the res." Id., at 697. Of course, that statement
has no application to an action in personam, such as Welch's suit under the Jones
Act. 22
2
The dissent suggests that In re New York, No. 1, decided in 1921, overruled settled
law to the effect that the Constitution does not bar private citizens from bringing
admiralty [483 U.S. 468, 491] suits against the States. Post, at 500. The dissent
concedes that the Court "`did not pass on the applicability of the Eleventh Amendment
in admiralty'" prior to 1921. Post, at 499 (citation omitted). It nevertheless asserts
that dicta in United States v. Peters, 5 Cranch 115 (1809), and Governor of Georgia
v. Madrazo, 1 Pet. 110 (1828), support the "holding" of United States v. Bright, 24
Fed. Cas. 1232 (No. 14,647) (CC Pa. 1809), that the Eleventh Amendment does not apply
to suits in admiralty. In fact these early cases cast considerable doubt on the dissent's
position.
United States v. Peters was a suit against the heirs of David Rittenhouse, who had
served as treasurer of the State of Pennsylvania during the Revolutionary War. While
Rittenhouse was treasurer, the State had seized a British vessel and sold it as a
prize of war. Rittenhouse had deposited most of the proceeds in his own account, and
had not turned them over to the State at the time of his death. Chief Justice Marshall's
opinion for the Court turned on the facts that "the suit was not instituted against
the state, or its treasurer, but against the executrixes of David Rittenhouse," and
that the State "had neither possession of, nor right to, the property." 5 Cranch,
at 139-141. Indeed, language in the Court's opinion suggests that an action against
the State would have been barred by the Eleventh Amendment:
"The [eleventh] amendment simply provides, that no suit shall be commenced or prosecuted
against a state. The state cannot be made a defendant to a suit brought by an individual;
but it remains the duty of the courts of the United States to decide all cases brought
before them by citizens of one state against citizens of a different state, where
a state is not necessarily a defendant." Id., at 139.
Thus, Peters does not support the dissenters' position. 23 [483 U.S. 468, 492]
The dissent's reliance on Governor of Georgia v. Madrazo, supra, also is misplaced.
Madrazo, a Spanish subject, sued the Governor of Georgia in admiralty to obtain possession
of a cargo of slaves or the proceeds from their sale. Chief Justice Marshall's opinion
for the Court held that the Eleventh Amendment applies "where the chief magistrate
of a state is sued, not by his name, but by his style of office, and the claim made
upon him is entirely in his official character." Id., at 123-124. Although Madrazo
argued that the Eleventh Amendment does not apply to suits in admiralty, the Court
carefully avoided the question. Instead, it held that the District Court where the
action was filed had no jurisdiction regardless of whether the Eleventh Amendment
applied. 24
Madrazo then filed an original admiralty proceeding directly against Georgia in this
Court. Once again the Court avoided the question whether the Eleventh Amendment applies
[483 U.S. 468, 493] to suits in admiralty. Instead, the Court concluded that the case
was not an admiralty action, but was "a mere personal suit against a state, to recover
proceeds in its possession." Ex parte Madrazzo, 7 Pet. 627, 632 (1833). This rather
strained conclusion was contrary to "the assumption of all concerned" that the action
was maritime in nature. D. Currie, The Constitution and the Supreme Court, 1789-1888,
p. 105, n. 98 (1985).
On balance, the early cases in fact indicate that unconsenting States were immune
from suits in admiralty. 25 At the very least, they demonstrate that the dissent errs
in suggesting that the amenability of States to suits in admiralty was "settled,"
post, at 499. 26 We therefore decline to overrule precedents that squarely reject
the dissenters' position.
C
In deciding yet another Eleventh Amendment case, we do not write on a clean slate.
The general principle of state sovereign immunity has been adhered to without exception
by [483 U.S. 468, 494] this Court for almost a century. The dissent nevertheless urges
the Court to ignore stare decisis and overrule the long and unbroken series of precedents
reaffirming this principle. If the Court were to overrule these precedents, a number
of other major decisions also would have to reconsidered. 27 As we have stated, supra,
at 478-479, the doctrine of stare decisis is of fundamental importance to the rule
of law. For this [483 U.S. 468, 495] reason, "any departure from the doctrine . .
. demands special justification." Arizona v. Rumsey, 467 U.S., at 212 . The arguments
made in the dissent fall far short of justifying such a drastic repudiation of this
Court's prior decisions. 28
VI
For the reasons we have stated, the judgment of the Court of Appeals for the Fifth
Circuit is affirmed.
It is so ordered.
Footnotes
[ Footnote 1 ] Section 33 of the Jones Act provides in part:
"Any seaman who shall suffer personal injury in the course of his employment may,
at his election, maintain an action for damages at law, with the right of trial by
jury, and in such action all statutes of the United States modifying or extending
the common-law right or remedy in cases of personal injury to railway employees shall
apply . . . . Jurisdiction in such actions shall be under the court of the district
in which the defendant employer resides or in which his principal office is located."
46 U.S.C. 688(a).
[ Footnote 2 ] The question in Scanlon was whether 504 of the Rehabilitation Act
of 1973, 29 U.S.C. 794, makes state agencies subject to suits for retroactive monetary
relief in federal court. The Rehabilitation Act was passed pursuant to 5 of the Fourteenth
Amendment. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 244 -245, n. 4 (1985).
Congress therefore had the power to subject unconsenting States to suit in federal
court. See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
[ Footnote 3 ] In Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670
(1982), eight Members of the Court agreed that the Eleventh Amendment bars suits in
admiralty brought to recover damages from the State or its officials. Id., at 698-699
(plurality opinion of STEVENS, J.); id., at 706-710 (WHITE, J., concurring in judgment
in part and dissenting in part). An action under the Jones Act unquestionably is an
action to recover damages from the State.
[ Footnote 4 ] The questions presented in the petition for certiorari are:
"1. Whether the State Department of Highways and the State of Texas are immune from
a Jones Act suit in U.S. District Court by a state [483 U.S. 468, 475] employee/seaman
by operation of the Eleventh Amendment of the U.S. Constitution.
"2. Whether the doctrine of implied waiver of sovereign immunity as set forth in
Parden v. Terminal R. R. Co., 377 U.S. 184 (1964) is still viable." Pet. for Cert.
i (parallel citations omitted).
[ Footnote 5 ] The argument for such an authority starts from the proposition that
the Constitution authorizes Congress to regulate matters within the admiralty and
maritime jurisdiction, either under the Commerce Clause or the Necessary and Proper
Clause. See D. Robertson, Admiralty and Federalism 142-145 (1970). By ratifying the
Constitution, the argument runs, the States necessarily consented to suit in federal
court with respect to enactments under either Clause.
[ Footnote 6 ] Because Eleventh Amendment immunity "partakes of the nature of a jurisdictional
bar," Edelman v. Jordan, 415 U.S. 651, 678 (1974), we have no occasion to consider
the State's additional argument that Congress did not intend to afford seamen employed
by the States a remedy under the Jones Act.
[ Footnote 7 ] As the dissenting opinion in Parden observed, these cases do not support
the Court's holding on the Eleventh Amendment issue. 377 U.S., at 200 , n. 2 (WHITE,
J., dissenting, joined by Douglas, Harlan, and Stewart, JJ.). California v. Taylor,
353 U.S. 553 (1957), was a suit against the National Railroad Adjustment Board that
expressly reserved the Eleventh Amendment question. Id., at 568, n. 16 ("The contention
of the State that the Eleventh Amendment . . . would bar an employee . . . from enforcing
an award . . . in a suit against the State in a United States District Court . . .
is not before us under the facts of this case"). United States v. California, 297
U.S. 175 (1936), was a suit brought by the United States, against which the States
are not entitled to assert sovereign immunity. See United States v. Mississippi, 380
U.S. 128, 140 -141 (1965). Finally, Petty v. Tennessee-Missouri Bridge Comm'n, 359
U.S. 275, 280 -282 (1959), involved an interstate compact that expressly permitted
the bistate corporation to sue and be sued.
[ Footnote 8 ] As discussed, supra, at 475 and n. 5, we have no occasion in this
case to consider the validity of the additional holding in Parden, that Congress has
the power to abrogate the States' Eleventh Amendment immunity under the Commerce Clause
to the extent that the States are engaged in interstate commerce.
[ Footnote 9 ] We address today only two principal arguments raised by the dissent:
that citizens may bring federal-question actions against the States in federal court,
see infra, at 480-488, and that citizens may bring admiralty suits against the States,
see infra, at 488-493.
[ Footnote 10 ] Madison, Hamilton, and Marshall took this position in response to
suggestions that the Clause in Article III, 2, extended the federal judicial power
to controversies "between a State and Citizens of another [483 U.S. 468, 481] State."
James Madison, often described as the "father of the Constitution," addressed the
effect of the first Clause during the Virginia Convention:
"[The Supreme Court's] jurisdiction in controversies between a state and citizens
of another state is much objected to, and perhaps without reason. It is not in the
power of individuals to call any state into court. The only operation [the Clause]
can have, is that, if a state should wish to bring a suit against a citizen, it must
be brought before the federal court.
. . . . .
"It appears to me that this [Clause] can have no operation but this - to give a citizen
a right to be heard in the federal courts; and if a state should condescend to be
a party, this court may take cognizance of it." 3 J. Elliot, The Debates in the Several
State Conventions on the Adoption of the Federal Constitution 533 (2d ed. 1861).
The same day, John Marshall said to the Virginia Convention:
"I hope that no gentleman will think that a state will be called to the bar of the
federal court. Is there no such case at present? Are there not many cases in which
the legislature of Virginia is a party, and yet the state is not sued? It is not rational
to suppose that the sovereign power should be dragged before a court. The intent is,
to enable states to recover claims of individuals residing in other states. I contend
this construction is warranted by the words. . . . I see a difficulty in making a
state defendant, which does not prevent its being plaintiff." Id., at 555-556.
Later that year, Alexander Hamilton wrote in The Federalist:
"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. . . . [T]here is no color to pretend
that the State governments would, by the adoption of that plan, be divested of the
privilege of paying their own debts in their own way, free from every constraint but
that which flows from the obligations of good faith. . . . To what purpose would it
be to authorize suits against States for the debts they owe? How could recoveries
be enforced? It is evident, it could not be done without waging war against the contracting
State; and to ascribe to the federal courts, by mere implication, and in destruction
of a pre-existing right of the State governments, a power which would involve such
a consequence, would be altogether forced and unwarrantable." The Federalist No. 81.
pp. 548-549 (J. Cooke ed. 1961) (emphasis in original).
[ Footnote 11 ] The dissent relies heavily on later statements in Chief Justice Marshall's
opinions for the Court in Cohens v. Virginia, 6 Wheat. 264, 382-383, 412 (1821), and
Osborn v. Bank of the United States, 9 Wheat. 738, 857-858 (1824). Of course the possibility
that Marshall changed his views on sovereign immunity after the Constitution was ratified,
or espoused a broader view of sovereign immunity only to secure ratification, does
not imply that the views he expressed at the Virginia Convention should be disregarded.
In any event, the dissent places too much weight on Cohens and Osborn. In Cohens,
it was the State that began criminal proceedings against the Cohenses. It had long
been understood that sovereign immunity did not prevent persons convicted of crimes
from appealing. See D. Currie, The Constitution and the Supreme Court, 1789-1888,
p. 99 (1985). Accordingly, Chief Justice Marshall's opinion in Cohens distinguished
a writ of error, which is but "a continuation of the same suit," from an independent
suit against the State. 6 Wheat., at 409. Thus, as the Court properly noted in both
Hans v. Louisiana, 134 U.S. 1, 19 (1890), and Monaco v. Mississippi, 292 U.S. 313,
327 (1934), the statements quoted in today's dissent were unnecessary to the decision
in Cohens. In Osborn, the Court held that the Eleventh Amendment did not apply to
a suit against a state official, a holding that is not at issue today. Thus, the statement
quoted by the dissent, post, at 509, is dictum.
[ Footnote 12 ] Both Wilson and Randolph had served on the Committee of Detail that
added the Clause in Article III, 2, extending the judicial power to controversies
between a State and citizens of another State. As a Member of the Court, Wilson sided
with the majority in Chisholm v. Georgia, 2 Dall. 419 [483 U.S. 468, 483] (1793).
Randolph, while Attorney General of the United States, argued the case for Chisholm.
[ Footnote 13 ] A leading historian has concluded:
"The right of the Federal Judiciary to summon a State as defendant and to adjudicate
its rights and liabilities had been the subject of deep apprehension and of active
debate at the time of the adoption of the Constitution; but the existence of any such
right had been disclaimed by many of the most eminent advocates of the new Federal
Government, and it was largely owing to their successful dissispation of the fear
of the existence of such Federal power that the Constitution was finally adopted."
1 C. Warren, The Supreme Court in United States History 91 (1923).
[ Footnote 14 ] The New York Convention also stated its understanding that "every
Power, Jurisdiction and right, which is not by the said Constitution clearly delegated
to the Congress of the United States, or the departments of the Government thereof,
remains to the People of the several States, or to their respective State Governments
to whom they may have granted the same." 2 Documentary History of the Constitution
of the United States of America 191 (1894). This view later was embodied in the Tenth
Amendment, which reserves to the States, or to the people, powers not delegated to
the United States by the Constitution. Of course, the Constitution does not expressly
abrogate the sovereign immunity of the States. Thus the principle that States cannot
be sued without their consent is broadly consistent with the Tenth Amendment.
[ Footnote 15 ] President Adams did not notify Congress that the Amendment had been
ratified by the necessary three-fourths of the States until January 1798. 1 J. Richardson,
Messages and Papers of the Presidents 260 (1899).
[ Footnote 16 ] The dissent states that Justice Iredell's dissenting opinion in Chisholm
v. Georgia is "generally regarded as embodying the rationale of the Eleventh Amendment."
Post, at 513. As the dissent itself observes, post, at 515-516, Justice Iredell's
opinion rests primarily on the absence of a statutory provision conferring jurisdiction
on the Court in cases such as Chisholm's. To the extent that Justice Iredell discussed
the constitutional question, his opinion is consistent with the more recent decisions
of this Court:
"So much, however, has been said on the Constitution, that it may not be improper
to intimate that my present opinion is strongly against any construction of it, which
will admit, under any circumstances, a compulsive suit against the State for the recovery
of money." 2 Dall., at 449 (emphasis added).
The dissent does not attempt to explain these remarks, except to observe that they
were unnecessary to Justice Iredell's decision.
[ Footnote 17 ] The dissent's principal textual argument rests on the similarity
between the language of the Amendment and the language of the State-Citizen Diversity
Clauses in Article III. See Atascadero State Hospital v. Scanlon, 473 U.S., at 286
-287 (BRENNAN, J., dissenting). This argument cannot explain why Congress chose to
apply the Amendment to "any suit in law or equity" rather than any suit where jurisdiction
is predicated solely on diversity of citizenship. Instead, the dissent reads the Amendment
to accomplish even less than its plain language suggests. As the Court long has recognized,
the speed and vigor of the Nation's response to Chisholm suggests that the Eleventh
Amendment should be construed broadly so as to further the federal interests that
the Court misapprehended in Chisholm. The dissent also has some difficulty explaining
the Clause in Article III, 2, that extends the federal judicial power "to Controversies
to which the United States shall be a Party." Although arguments analogous to those
in the dissent would suggest that this Clause abrogated the sovereign immunity of
the United States, the dissent stops short of such an extreme conclusion.
[ Footnote 18 ] In an effort to explain the overwhelming rejection of Gallatin's
amendment, the dissent suggests that Congress would have enumerated all the Article
III heads of jurisdiction if it had intended to bar federal-question actions against
the States. Atascadero State Hospital v. Scanlon, 473 U.S., at 287 , n. 40. The dissent
also speculates, without citing a shred of historical evidence, that the Senate may
have rejected the proposed amendment to avoid giving the impression that it was barring
federal-question actions not based on a treaty. Finally, the dissent observes that
federal courts had no general original federal-question jurisdiction under the Judiciary
Act of 1789. The dissent thus implies that the question was regarded as unimportant
at the time. But the dissent also concedes that Senator Gallatin's proposed amendment
was so unpopular that its adoption [483 U.S. 468, 486] might have resulted in a constitutional
convention. Ibid. This concession hardly is consistent with the dissent's assertion
that adoption of the Gallatin amendment would have had no practical significance.
[ Footnote 19 ] In this case, for example, Welch is not without a remedy: She may
file a workers' compensation claim against the State under the Texas Tort Claims Act,
ch. 292, 1969 Tex. Gen. Laws 874, amended by ch. 50, 1973 Tex. Gen. Laws 77. See Brief
for Respondents 34-35.
[ Footnote 20 ] The opinion was written by Justice Pitney for a strong Court that
included Justices Holmes and Brandeis. Chief Justice White, who died 13 days before
the decision was announced, presumably concurred in the result and the reasoning.
[ Footnote 21 ] The dissent insists that In re New York, No. 2, does not support
our holding. Post, at 500-501, n. 5. As noted supra, at 473, n. 3, eight Members of
the Court recently have thought otherwise. In Florida Dept. of State v. Treasure Salvors,
Inc., 458 U.S. 670 (1982), JUSTICE STEVENS' [483 U.S. 468, 490] opinion, joined by
Chief Justice Burger and JUSTICES MARSHALL and BLACKMUN, explains that In re New York,
No. 2, holds:
"[A]n action - otherwise barred as an in personam action against the State - cannot
be maintained through seizure of property owned by the State. Otherwise, the Eleventh
Amendment could easily be circumvented; an action for damages could be brought simply
by first attaching property that belonged to the State and then proceeding in rem."
458 U.S., at 699 .
JUSTICE WHITE's opinion in Treasure Salvors, joined by JUSTICES POWELL, REHNQUIST,
and O'CONNOR, reads In re New York, No. 2, even more broadly, as holding that "sovereign
immunity bars process against a res in the hands of state officers." 458 U.S., at
709 .
[ Footnote 22 ] The dissent suggests that a distinction may exist between admiralty
suits based on a statute and other admiralty suits against the States. The only argument
the dissent advances in favor of this distinction is that "admiralty is not mentioned
in the Eleventh Amendment." Post, at 502. But that observation - as well as the arguments
that the Eleventh Amendment embodies a principle of sovereign immunity - applies to
all admiralty suits. The perceived distinction is simply unsound.
[ Footnote 23 ] The trial in United States v. Bright, 24 Fed. Cas. 1232 (No. 14,647)
(CC Pa. 1809), occurred after the Court's decision in Peters. Peters therefore [483
U.S. 468, 492] cannot possibly have "supported" the holding of Bright in the sense
of approval or endorsement. Bright was an officer of the Pennsylvania state militia
who defended the Rittenhouse home against federal soldiers attempting to enforce the
judgment in Peters. Circuit Justice Washington's remarks, that the dissent characterizes
as the "holding" of the case, post, at 498, actually were part of his charge to the
jury. The Court had no opportunity to consider Justice Washington's statements, because
it lacked jurisdiction to hear an appeal from Bright's conviction.
[ Footnote 24 ] The Court noted that the action was between a State and a foreign
subject, an action within the Court's original jurisdiction under Article III, 2,
of the Constitution and 13 of the Judiciary Act of 1789, 1 Stat. 73, 80. Thus, the
Court concluded that, "if the 11th amendment . . . does not extend to proceedings
in admiralty, it was a case for the original jurisdiction of the Supreme Court," Governor
of Georgia v. Madrazo, 1 Pet., at 124, because it was a suit between a State and a
foreign subject. This conclusion is surprising in view of the fact that the Judiciary
Act of 1789, ch. 20, 13, 1 Stat. 73, 80, conferred original, but not exclusive, jurisdiction
of such actions on the Court. Congress had conferred admiralty jurisdiction on the
district courts in 9 of the Judiciary Act, 1 Stat. 76-77. Moreover, Chief Justice
Marshall's opinion for the Court in Cohens v. Virginia, 6 Wheat., at 394-402, already
had indicated that the Court's original jurisdiction under Article III is not exclusive.
See D. Currie, The Constitution and the Supreme Court, 1789-1888, p. 105, n. 98 (1985).
[ Footnote 25 ] It is of course true, as the dissent observes, that Justice Story's
treatise on the Constitution observed that a suit in admiralty is not, strictly speaking,
a suit in law or equity. Post, at 499 (quoting 3 J. Story, Commentaries on the Constitution
of the United States 560-561 (1833)). Justice Story, however, merely observed that
"[i]t has been doubted whether [the eleventh] amendment extends to cases of admiralty
and maritime jurisdiction," id., at 560, and cited only the cases discussed above.
Moreover, Justice Story was noted for his expansive view of the admiralty jurisdiction
of federal courts. See, e. g., De Lovio v. Boit, 7 Fed. Cas. 418 (No. 3,776) (CC Mass.
1815); Note, 37 Am. L. Rev. 911, 916 (1903) ("It was said of the late Justice Story,
that if a bucket of water were brought into his court with a corn cob floating in
it, he would at once extend the admiralty jurisdiction of the United States over it").
[ Footnote 26 ] In addition, the dissent accords little weight to early cases applying
the general admiralty principle that maritime property belonging to a sovereign cannot
be seized. E. g., The Schooner Exchange v. McFaddon, 7 Cranch 116 (1812); L'Invincible,
1 Wheat. 238 (1816); The Santissima Trinidad, 7 Wheat. 283 (1822). See Florida Dept.
of State v. Treasure Salvors, Inc., 458 U.S., at 709 -710, and n. 6 (opinion of WHITE,
J.).
[ Footnote 27 ] The dissent is written as if the slate had been clean since Hans
was decided 97 years ago. As noted above, Hans has been reaffirmed in case after case,
often unanimously and by exceptionally strong Courts. The two principal holdings of
Hans that the dissent challenges are that the federal judicial power does not extend
either to suits against States that arise under federal law, or to suits brought against
a State by its own citizens. If these holdings were rejected, the Court would overrule
at least 17 cases, in addition to Hans itself. Twelve of these cases relied on both
of these principles. See Papasan v. Allain, 478 U.S. 265 (1986); Green v. Mansour,
474 U.S. 64 (1985); Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985); Edelman
v. Jordan, 415 U.S. 651 (1974); Quern v. Jordan, 440 U.S. 332, 342 (1979); Employees
v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279 (1973); Ford Motor Co.
v. Department of Treasury of Indiana, 323 U.S. 459 (1945); Missouri v. Fiske, 290
U.S. 18 (1933); Ex parte New York, No. 1, 256 U.S. 490 (1921); Ex parte New York,
No. 2, 256 U.S. 503 (1921); Duhne v. New Jersey, 251 U.S. 311 (1920); Fitts v. McGhee,
172 U.S. 516 (1899). Four of them rested on the principles Hans established for determining
when Congress has extended the federal judicial power to include actions against States
under federal law. County of Oneida v. Oneida Indian Nation of New York, 470 U.S.
226 (1985); Great Northern Life Insurance Co. v. Read, 322 U.S. 47 (1944); Murray
v. Wilson Distilling Co., 213 U.S. 151 (1909); Smith v. Reeves, 178 U.S. 436 (1900).
Finally, one would be overruled only to the extent the Court rejected the principle
that the federal judicial power does not extend to suits against States by their own
citizens. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984).
Repudiation of these principles also might justify reconsideration of a variety of
other cases that were concerned with this Court's traditional treatment of sovereign
immunity. E. g., Florida Dept. of Health and Rehabilitative Services v. Florida Nursing
Home Assn., 450 U.S. 147 (1981); Monell v. New York City Dept. of Social Services,
436 U.S. 658 (1978); Monaco v. Mississippi, 292 U.S. 313 (1934); Hopkins v. Clemson
Agricultural College, 221 U.S. 636 (1911).
[ Footnote 28 ] Apart from rhetoric, the dissent relies on two arguments: (i) the
"historical record," and (ii) the perceived "pernicious[ness]" of the principle of
sovereign immunity. As we have noted, the fragments of historical evidence at the
time of the adoption of the Constitution are as supportive of Hans v. Louisiana as
they are of the dissent. In attaching weight to this ambiguous history, it is not
immaterial that we are a century further removed from the events at issue than were
the Justices who unanimously agreed in Hans. Not one of the 17 cases the dissent would
overrule concludes that the historical evidence calls into question the principle
of state sovereign immunity or justifies the ignoring of stare decisis. As for the
view that it would be "pernicious" to protect States from liability for their "unlawful
conduct," we have noted above that an aggrieved citizen such as petitioner in fact
has a bundle of possible remedies. See supra, at 488, and n. 19.
JUSTICE WHITE, concurring.
The Court expressly stops short of addressing the issue whether the Jones Act affords
a remedy to seamen employed by the States. See ante, at 476, n. 6. The Court, however,
has already construed the Jones Act to extend remedies to such seamen. Petty v. Tennessee-Missouri
Bridge Comm'n, 359 U.S. 275, 282 -283 (1959). Congress has not disturbed this construction,
and the Court, as I understand it, does not now purport to do so.
JUSTICE SCALIA, concurring in part and concurring in the judgment.
Petitioner in this case did not assert as a basis for reversing the judgment that
Hans v. Louisiana, 134 U.S. 1 (1890), [483 U.S. 468, 496] had been wrongly decided.
That argument was introduced by an amicus, addressed only briefly in respondents'
brief, and touched upon only lightly at oral argument. I find both the correctness
of Hans as an original matter, and the feasibility, if it was wrong, of correcting
it without distorting what we have done in tacit reliance upon it, complex enough
questions that I am unwilling to address them in a case whose presentation focused
on other matters.
I find it unnecessary to do so in any event. Regardless of what one may think of
Hans, it has been assumed to be the law for nearly a century. During that time, Congress
has enacted many statutes - including the Jones Act and the provisions of the Federal
Employers' Liability Act (FELA) which it incorporates - on the assumption that States
were immune from suits by individuals. Even if we were now to find that assumption
to have been wrong, we could not, in reason, interpret the statutes as though the
assumption never existed. Thus, although the terms of the Jones Act (through its incorporation
of the FELA) apply to all common carriers by water, I do not read them to apply to
States. For the same reason, I do not read the FELA to apply to States, and therefore
agree with the Court that Parden v. Terminal Railway of Alabama Docks Dept., 377 U.S.
184 (1964), should be overruled. Whether or not, as Hans appears to have held, Article
III of the Constitution contains an implicit limitation on suits brought by individuals
against States by virtue of a nearly universal "understanding" that the federal judicial
power could not extend to such suits, such an understanding clearly underlay the Jones
Act and the FELA.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS
join, dissenting.
The Court overrules Parden v. Terminal Railway of Alabama Docks Dept., 377 U.S. 184
(1964), and thereby continues aggressively to expand its doctrine of Eleventh Amendment
[483 U.S. 468, 497] sovereign immunity. I adhere to my belief that the doctrine "rests
on flawed premises, misguided history, and an untenable vision of the needs of the
federal system it purports to protect." Atascadero State Hospital v. Scanlon, 473
U.S. 234, 248 (1985) (BRENNAN, J., dissenting). In my view, the Eleventh Amendment
does not bar the District Court's jurisdiction over the Jones Act suit by Jean Welch
against the State of Texas and the Texas Highway Department for four independent reasons.
First, the Amendment does not limit federal jurisdiction over suits in admiralty.
Second, the Amendment bars only actions against a State by citizens of another State
or of a foreign nation. Third, the Amendment applies only to diversity suits. Fourth,
even assuming the Eleventh Amendment were applicable to the present case, Congress
abrogated state immunity from suit under the Jones Act, which incorporates the Federal
Employers' Liability Act (FELA). I therefore dissent.
I
Article III provides that the "judicial Power" assigned to federal courts extends
not only to "Cases in Law and Equity," but also "to all Cases of admiralty and maritime
Jurisdiction." 1 In the instant case, the District Court stated that the "plaintiff
brought this suit in admiralty." 533 F. Supp. 403, 404 (SD Tex. 1982). The Eleventh
Amendment limits the [483 U.S. 468, 498] "Judicial power" in certain suits "in law
or equity." 2 Therefore, even if the Eleventh Amendment does bar federal jurisdiction
over cases in which a State is sued by its own citizen, its express language reveals
that it does so only in "Cases in Law and Equity," and not in "Cases of admiralty
and maritime Jurisdiction."
The leading case on the relationship between admiralty jurisdiction and the Eleventh
Amendment for over a century was United States v. Bright, 24 Fed. Cas. 1232 (No. 14,647)
(CC Pa. 1809), which was written by Circuit Justice Bushrod Washington. It held that
the Eleventh Amendment does not bar a suit in admiralty against a State. Justice Washington
acknowledged that a suit against a State raised sensitive issues, but believed himself
bound by the fact that the Amendment does not refer to suits in admiralty. Furthermore,
he noted that a court usually possesses the subject matter of the suit (i. e., the
ship) in an admiralty in rem proceeding, and thereby avoids the "delicate" issue of
confronting a State with a decree commanding it to relinquish certain property. Id.,
at 1236. This was not a controversial holding in its day. While the Court during Chief
Justice Marshall's tenure did not have an opportunity to reach this issue, its dictum
in United States v. Peters, 5 Cranch 115 (1809), and Governor of Georgia v. Madrazo,
1 Pet. 110 (1828), 3 supported the holding of Bright. See Atascadero [483 U.S. 468,
499] State Hospital v. Scanlon, supra, at 292-293 (BRENNAN, J., dissenting).
"Although the Supreme Court did not pass on the applicability of the Eleventh Amendment
in admiralty until more than a century later, it was assumed by bench and bar in the
meantime that Bright was correctly reasoned." J. Orth, The Judicial Power of the United
States 37 (1987). Justice Joseph Story wrote in 1833 that:
"[T]he language of the amendment is, that `the judicial power of the United States
shall not be construed to extend to any suit in law or equity.' But a suit in the
admiralty is not, correctly speaking, a suit in law or in equity; but is often spoken
of in contradistinction to both." 3 J. Story, Commentaries on the Constitution of
the United States 560-561 (1833) (emphasis in original), citing United States v. Peters,
supra; United States v. Bright, supra; Governor of Georgia v. Madrazo, supra.
Nineteenth-century commentators regarded Bright as having settled the matter. Peter
du Ponceau, in his lectures to the Law Academy of Philadelphia in 1834 simply stated:
"It has been held that this restriction [by the Eleventh Amendment] does not extend
to cases of admiralty and maritime jurisdiction." P. du Ponceau, A Brief View of the
Constitution of the United States 37-38 (1834). See Fletcher, A Historical [483 U.S.
468, 500] 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, 1080-1081 (1983). 4
In 1921, Bright was disapproved of, at least in part, by Ex parte New York, No. 1,
256 U.S. 490 (1921). Ex parte New York, No. 1, involved libel actions against a state
official in his official capacity in connection with vessels operated by the State
of New York. The Court held that a State was immune under the Eleventh Amendment from
an in personam suit in admiralty brought by a private individual without the State's
consent.
The Court did not attempt to justify its obliteration of Bright's distinction between
cases in admiralty and cases in law or equity, but simply referred in passing to Hans
v. Louisiana, 134 U.S. 1 (1890). 256 U.S., at 497 -498. 5 Merely [483 U.S. 468, 501]
citing to Hans is plainly an inadequate justification. Hans was a suit based on federal-question
jurisdiction and, moreover, relied primarily on materials that justified the application
of the Eleventh Amendment to cases in diversity jurisdiction. See infra, at 509-516.
It did not address the effect of the Eleventh Amendment on the extension of judicial
power in Article III to admiralty suits.
The distinction between admiralty cases and ordinary cases in law or equity was not
a casual or technical one from the viewpoint of the Framers of the Constitution. Admiralty
was a highly significant, perhaps the most important, subject-matter area for federal
jurisdiction at the end of the 18th century. "Maritime commerce was then the jugular
vein of the Thirteen States. The need for a body of law applicable throughout the
nation was recognized by every shade of opinion in the Constitutional Convention."
F. Frankfurter & J. Landis, The Business of the Supreme Court 7 (1927). Alexander
Hamilton noted in the Federalist No. 80: "The most bigoted idolizers of state authority
have not thus far shewn a disposition to deny the national judiciary the cognizance
of maritime causes." The Federalist No. 80, p. 538 (J. Cooke ed. 1961). Outside of
Ex parte New York, No. 1, the Court has not ignored this legal distinction between
admiralty and other cases in any other instance of constitutional and statutory interpretation.
See, e. g., Romero v. International [483 U.S. 468, 502] Terminal Operating Co., 358
U.S. 354, 368 (1959); Atkins v. The Disintegrating Co., 18 Wall. 272, 302-303 (1874);
Waring v. Clarke, 5 How. 441, 459-460 (1847); American Insurance Co. v. Canter, 1
Pet. 511, 545-546 (1828). Cf. Parsons v. Bedford, 3 Pet. 433, 446-447 (1830) (neither
admiralty nor equity cases were suits in law within the Seventh Amendment jury provision).
Even if the Court is not prepared to overrule Ex parte New York, No. 1, that case
can and should be distinguished here. It involved a suit based on the common law of
admiralty and state law. In contrast, the present admiralty suit seeks to enforce
a federal statute, the Jones Act. Although the Jones Act is deemed not to satisfy
the Court's requirement that Congress use "unmistakable language" to abrogate a State's
sovereign immunity, it does explicitly provide for federal jurisdiction for suits
under the statute. Congress specifically indicated in the Jones Act that "any seaman"
6 may maintain an action for personal injury under the Act and that "[j]urisdiction
in such actions shall be under the court of the district in which the defendant employer
resides or in which his principal office is located." 46 U.S.C. 688. Whatever the
merits of the "unmistakable language" requirement in cases of law and equity, it is
completely out of place in admiralty cases resting on federal statute, in light of
the fact that admiralty is not mentioned in the Eleventh Amendment. 7 Accordingly,
[483 U.S. 468, 503] in admiralty cases involving federal legislation, any bar implied
by Ex parte New York, No. 1, against common-law suits in admiralty is inapplicable.
8
Thus, a narrow holding allowing federal jurisdiction over Welch's suit in admiralty
under the Jones Act against the State of Texas is consistent with precedent and the
will of Congress, 9 and prevents further erosion of a legal distinction [483 U.S.
468, 504] which is difficult, if not impossible, to rationalize. It is patently improper
to extend the Eleventh Amendment doctrine of sovereign immunity any further. 10
II
The Eleventh Amendment does not bar a suit under the Jones Act by a Texas citizen
against the State of Texas. The part of Article III, 2, that was affected by the Amendment
provides: "The judicial Power shall extend . . . to Controversies . . . between a
State and Citizens of another State" and "between a State . . . and foreign . . .
Citizens or Subjects" (emphasis added). The Amendment uses language identical to that
in Article III to bar the extension of the judicial power to a suit "against one of
the United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State" (emphasis added). The congruence of the language suggests that the
Amendment specifically limits only the jurisdiction conferred by the above-referenced
part of Article III. Thus, the Amendment bars only federal actions brought against
a State by citizens of another State or by aliens.
Contrary to the Court's view, ante, at 480-484, a proper assessment of the historical
record of the Constitutional Convention and the debates surrounding the state ratification
conventions confirms this interpretation. See Atascadero State Hospital v. Scanlon,
473 U.S., at 263 -280 (BRENNAN, J., dissenting). The Court exclusively relies on the
remarks of Madison, Hamilton, and Marshall at the Virginia Convention to support its
contrary position. Ante, at 480-484. But these statements must be considered in context.
[483 U.S. 468, 505] At the Virginia Convention, discussion focused on the question
of Virginia's liability for debts that arose under state law, and which could be brought
into federal court only through diversity suits by citizens of another State. See
3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal
Constitution 533 (2d ed. 1861) (hereinafter Elliot's Debates) (Madison) ("[Federal]
jurisdiction in controversies between a state and citizens of another state is much
objected to, and perhaps without reason . . .") (emphasis added); The Federalist No.
81, p. 548 (J. Cooke ed. 1961) (Hamilton) ("It has been suggested that an assignment
of the public securities of one State to the citizens of another, would enable them
to prosecute that state in the federal courts for the amount of those securities .
. .") (emphasis added); 3 Elliot's Debates 555 (Marshall) ("With respect to disputes
between a state and the citizens of another state, its jurisdiction has been decried
with unusual vehemence . . .") (emphasis added).
Thus, the delegates to the Virginia Convention were not objecting to suits initiated
by citizens of the same State; what concerned them were suits by citizens of other
States. The majority of the delegates who spoke at the Virginia Convention, including
Mason, Henry, Pendleton, and Randolph, did not believe that state sovereign immunity
provided protection against suits initiated by citizens of other States. See Atascadero,
supra, at 264-280. Moreover, those attending the Virginia Convention evidently were
not persuaded by the rhetoric of Madison, Hamilton, and Marshall cited by the Court.
The Convention endorsed an amendment that would have explicitly denied the federal
judiciary authority over controversies between a State and citizens of other States.
3 Elliot's Debates 660-661. The felt need for this amendment shows that the delegates
did not believe that state sovereign immunity barred all suits against States. 11
[483 U.S. 468, 506]
There is little evidence that Madison 12 or Hamilton 13 believed that Article III
failed to authorize diversity or federal-question suits brought by citizens against
States. We know [483 U.S. 468, 507] Marshall's understanding of Article III from his
opinions written for the Court. The Chief Justice, in Cohens v. Virginia, 6 Wheat.
264 (1821), interpreted the effect of Article III on the Court's jurisdiction to review
an appeal involving, as parties, a State and a citizen of the same State. The State
of Virginia was sued for a writ of error in the United States Supreme Court. The writ
challenged a criminal conviction obtained in a Virginia state court. The Court rejected
the State's contention that the Constitution denied federal jurisdiction over the
appeal. It concluded that Article III provides federal jurisdiction "to all [federal-question
cases] without making in its terms any exception whatever, and without any regard
to the condition of party." Id., at 378. The Chief Justice then considered whether,
in the face of Article III's clear language, a general principle of state sovereign
immunity could be implied. He concluded:
"From this general grant of jurisdiction [in federal-question cases], no exception
is made of those cases in which a State may be a party. When we consider the situation
of the government of the Union and of a State, in relation to each other; the nature
of our constitution; the subordination of the state governments to that constitution;
the great purpose for which jurisdiction over all cases arising under the constitution
and laws of the United States, is confided to the judicial department; are we at liberty
to insert in this general grant, an exception of those cases in which a State may
be a party? Will the spirit of the constitution justify this attempt to control its
words? We think it will not. We think a case arising under the constitution or laws
of the United States, [483 U.S. 468, 508] is cognizable in the Courts of the Union,
whoever may be the parties to that case" (emphasis added). Id., at 382-383. 14
The Court in Cohens also clearly revealed its understanding that the Eleventh Amendment
was inapplicable to a suit brought by a citizen against his or her own State. After
concluding that the petition for a writ of error was not properly understood as a
suit commenced or prosecuted against a State, the Chief Justice stated an alternative
holding:
"But should we in this be mistaken, the error does not affect the case now before
the Court. If this writ of error be a suit in the sense of the 11th amendment, it
is not a suit commenced or prosecuted `by a citizen of another State, or by a citizen
or subject of any foreign State.' It is not then within the amendment, but is governed
entirely by the constitution as originally framed, and we have already seen, that
in its origin, the judicial [483 U.S. 468, 509] power was extended to all cases arising
under the constitution or laws of the United States, without respect to parties."
Id., at 412 (emphasis added).
Chief Justice Marshall reaffirmed this view of the Eleventh Amendment when he wrote
for the Court in Osborn v. Bank of the United States, 9 Wheat. 738, 857-858 (1824):
"The amendment has its full effect, if the constitution be construed as it would
have been construed, had the jurisdiction of the court never been extended to suits
brought against a State, by the citizens of another State, or by aliens."
The Court, however, chooses to ignore the clear meaning of the Constitution text
based on speculation that the intentions of a few of the Framers and Ratifiers might
have been otherwise. The evidence available reveals that the views of Madison and
Hamilton on the issue are at best ambiguous, see nn. 12 and 13, supra, and that Marshall's
understanding runs directly counter to the Court's position. Thus, the Eleventh Amendment
only bars a federal suit initiated by citizens of another State. Moreover, as Part
III demonstrates, the amendment only bars a particular type of federal suit - an action
based on diversity jurisdiction.
III
In my view, the Eleventh Amendment applies only to diversity suits and not to federal-question
or admiralty suits. The parallel between the language in Article III's grant of diversity
jurisdiction ("to Controversies . . . between a State and Citizens of another State
. . . and between a State . . . and foreign States, Citizens or Subjects") and the
language in the Eleventh Amendment ("any suit in law or equity . . . by Citizens of
another State or by Citizens or Subjects of any Foreign State") supports this view.
The Amendment prohibits federal jurisdiction over all such suits in law or [483 U.S.
468, 510] equity which are based on diversity jurisdiction. Since Congress had not
granted federal-question jurisdiction to federal courts prior to the Amendment's ratification,
the Amendment was not intended to restrict that type of jurisdiction. Furthermore,
the controversy among the Ratifiers cited by the Court today, ante, at 480-484, involved
only diversity suits. Moreover, the Court recognizes that the immediate impetus for
adoption of the Eleventh Amendment was Chisholm v. Georgia, 2 Dall. 419 (1793). Ante,
at 484. Chisholm was a diversity case brought in federal court upon a state cause
of action against the State of Georgia by a citizen of South Carolina. The Court relies
on Hans v. Louisiana, 134 U.S. 1 (1890), to hold that the Eleventh Amendment bars
Welch's suit in admiralty.
Hans, however, was a federal-question suit brought by a Louisiana citizen against
his own State. Ignoring this fact, the Court in Hans relied on materials that primarily
addressed the question of state sovereign immunity in diversity cases, and not on
federal-question or admiralty cases. 15 It is plain from the face of the Hans opinion
that the Court misunderstood those materials. 16 In particular, the Court in [483
U.S. 468, 511] Hans heavily relied on two sources: a statement by Hamilton in The
Federalist No. 81 and the views of Justice Iredell, who wrote the dissent in Chisholm.
134 U.S., at 12 , 13-14, 18-19. A close examination of both these sources indicates
that they cannot serve as support for the holding of Hans or of the Court today.
A
The Court today relies on the same quotation of Hamilton in The Federalist No. 81
cited by the Court in Hans. Compare 134 U.S., at 12 -13, with ante, at 480-481, n.
10. The Court in Hans used this quotation as proof that all suits brought by individuals
against States were barred, absent their consent. 134 U.S., at 14 -15. But, in that
passage, Hamilton was discussing cases of diversity jurisdiction, not of federal-question
jurisdiction:
"It has been suggested that an assignment of the public securities of one state to
the citizens of another, would enable them to prosecute that state in the federal
courts for the amount of those securities. A suggestion which the following considerations
prove to be without foundation." The Federalist No. 81, p. 548 (J. Cooke ed. 1961)
(emphasis added).
In the ensuing discussion, Hamilton described the circumstances in which States can
claim sovereign immunity. He began with the general principle of sovereign immunity.
"It is inherent in the nature of sovereignty not to be amenable to the suit of an
individual without its consent. [483 U.S. 468, 512] 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." Id., at 548-549.
Hamilton believed that the States surrendered at least part of their sovereign immunity
when they agreed to the Constitution. The States, however, retained their sovereign
authority over state-created causes of action. "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." Id., at 549. Thus, the States retained
their sovereign authority over diversity suits involving the state assignment of public
securities to citizens of other States.
"A recurrence to the principles there established will satisfy us that there is no
color to pretend that the State governments would, by the adoption of that plan, be
divested of the privilege of paying their own debts in their own way, free from every
constraint but that which flows from the obligations of good faith. The contracts
between a nation and individuals are only binding on the conscience of the sovereign,
and have no pretensions to a compulsive force. They confer no right of action independent
of the sovereign will. To what purpose would it be to authorize suits against States
for the debts they owe? How could recoveries be enforced? It is evident, that it could
not be done without waging war against the contracting state; and to ascribe to the
federal courts, by mere implication, and in destruction of a pre-existing right of
the state governments, a power which would involve such a consequence, would be altogether
forced and unwarrantable." Ibid.
Hamilton therefore believed that States could not be sued in federal court by citizens
to collect debts in diversity actions. [483 U.S. 468, 513] A careful reading of this
passage demonstrates that it does not support the general principle of sovereign immunity
against all suits brought by individuals against States, contrary to the Court's views
in Hans and in the present case.
B
The Court in Hans also heavily relied on the rationale stated by Justice Iredell
in Chisholm. The Court in Chisholm held that the case was within the jurisdiction
of the Federal District Court. The Eleventh Amendment was thereafter enacted with
"vehement speed," displacing the Chisholm ruling. Larson v. Domestic & Foreign Commerce
Corp., 337 U.S. 682, 708 (1949). The dissent of Justice Iredell is generally regarded
as embodying the rationale of the Eleventh Amendment by those who broadly construe
it. See Hans v. Louisiana, supra, at 12, 14, 18-19; see also Fletcher, 35 Stan. L.
Rev., at 1077; Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines:
Part One, 126 Pa. L. Rev. 515, 541 (1978). Nevertheless, I think it plain that Justice
Iredell's conception of state sovereign immunity supports the notion that States should
not be immune from suit in federal court in federal-question or admiralty cases.
Justice Iredell's dissent focused on whether the States delegated part of their sovereignty
to the Federal Government upon entering into the Union and agreeing to the Constitution.
"Every State in the Union in every instance where its sovereignty has not been delegated
to the United States, I consider to be as completely sovereign, as the United States
are in respect to the powers surrendered. The United States are sovereign as to all
the powers of Government actually surrendered. Each State in the Union is sovereign
as to all the powers reserved." 2 Dall., at 435. [483 U.S. 468, 514]
Justice Iredell defined the powers surrendered by the States in terms of the authority
that resides in the Congress and the Executive Branch.
"The powers of the general Government, either of a Legislative or executive nature,
or which particularly concern Treaties with Foreign Powers, do for the most part (if
not wholly) affect individuals, and not States. They require no aid from any State
authority. This is the great leading distinction between the old articles of confederation,
and the present constitution." Ibid.
He then defined the "judicial power" of Article III. Justice Iredell found that the
federal judicial power "is of a peculiar kind" because of its hybrid nature. Ibid.
His conception of state sovereign immunity centered on the dual sources of federal
judicial authority. First, he delineated the portion of federal jurisdiction that
"is indeed commensurate with the ordinary Legislature and Executive powers of the
general government, and the Power which concerns treaties." Ibid. This category encompasses
matters wholly within the federal sovereignty. Justice Iredell plainly was describing
the federal-question and admiralty jurisdiction where federal courts have jurisdiction
based on the federal subject matter of the cases. 17 [483 U.S. 468, 515]
Justice Iredell then stated: "But [the judicial power] also goes further." Ibid.
It was in the further extension of judicial power that the sovereign immunity of the
States was implicated. In diversity cases, the federal judiciary was not dealing with
subject matter within the realm of federal sovereignty, but was instead providing
a neutral forum for the resolution of state-law issues over which the States had not
given up their sovereignty.
"Where certain parties are concerned, although the subject in controversy does not
relate to any of the special objects of authority of the general Government, wherein
the separate sovereignties of the States are blended in one common mass of supremacy,
yet the general Government has a Judicial Authority in regard to such subjects of
controversy, and the Legislature of the United States may pass all laws necessary
to give such Judicial Authority its proper effect. So far as States under the Constitution
can be made legally liable to this authority, so far to be sure they are subordinate
to the authority of the United States, and their individual sovereignty is in this
respect limited. But it is limited no farther than the necessary execution of such
authority requires." Id., at 435-436.
Justice Iredell was concerned with "the limit of our authority" in the diversity
case before the Court, since "we can exercise no authority in the present instance
consistently with the clear intention of the [Judiciary Act], but such as a proper
State Court would have been at least competent to exercise at the time the act was
passed." Id., at 436-437. [483 U.S. 468, 516]
"If therefore, no new remedy be provided (as plainly is the case), and consequently
we have no other rule to govern us but the principles of the pre-existent [state]
laws, which must remain in force till superceded by others, then it is incumbent upon
us to enquire, whether previous to the adoption of the Constitution . . . an action
of the nature like this before the Court could have been maintained against one of
the States in the Union upon the principles of the common law, which I have shown
to be alone applicable. If it could, I think it is now maintainable here: If it could
not, I think, as the law stands at present, it is not maintainable . . . ." Id., at
437.
Thus, Justice Iredell's dissenting opinion rested on a conception of state sovereignty
that justified the incorporation of the sovereign-immunity doctrine through the state
common law, but only in diversity suits. His opinion traditionally has been cited
as key to the underlying meaning of the Eleventh Amendment. See Hans v. Louisiana,
134 U.S., at 12 . Yet it provides no more support for the result in Hans than does
the plain language of the Eleventh Amendment. 18
I will not repeat the exhaustive evidence presented in my dissent in Atascadero that
further buttresses my view of the Eleventh Amendment sovereign immunity. See Atascadero,
473 U.S., at 247 -304. I adhere to the view that a suit brought under a federal law
against a State is not barred. [483 U.S. 468, 517]
IV
The Court today overrules, in part, Parden v. Terminal Railway of Alabama Docks Dept.,
377 U.S. 184 (1964). It rejects the holding in Parden that Congress evidenced an intention
to abrogate Eleventh Amendment immunity by making FELA applicable to "every common
carrier by railroad while engaging in commerce between any of the several States.
. . ." 1, 35 Stat. 65, 45 U.S.C. 51. The Court instead concludes that Congress did
not abrogate the sovereign immunity of States, because it did not express this intent
in unmistakably clear language.
The Court's departure from normal rules of statutory construction frustrates the
will of Congress. The Court's holding in Parden that Congress intended to abrogate
the sovereign immunity of States in FELA has not been disturbed by Congress for the
past two decades. In FELA, Congress not only indicated that "every common carrier
. . . shall be liable in damages to any person suffering injury while he is employed
by such carrier in such commerce," but also expressed in unequivocal language that
the "action may be brought in a district court of the United States." 45 U.S.C. 51,
56. The Court in Parden noted that the legislative history of FELA revealed that Congress
meant to extend the scope to apply to "all commerce," without exception for state-owned
carriers. 377 U.S., at 187 , n. 5.
In Parden, the Court also comprehensively reviewed other federal statutes regulating
railroads in interstate commerce, which used similar terminology. It found that we
had consistently interpreted those statutes to apply to state-owned railroads. Id.,
at 188-189, quoting United States v. California, 297 U.S. 175, 185 (1936) ("`No convincing
reason is advanced why interstate commerce and persons and property concerned in it
should not receive the protection of the act whenever a state, as well as a privately-owned
carrier, brings itself within the sweep of the statute'"); California v. Taylor, 353
U.S. 553, 564 (1957) ("The fact that Congress [483 U.S. 468, 518] chose to phrase
the coverage of the Act in all-embracing terms indicates that state railroads were
included within it"). This conclusion confirmed the Court's determination in Petty
v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275 (1959): "In [Taylor] we reviewed
at length federal legislation governing employer-employee relationships and said,
`When Congress wished to exclude state employees, it expressly so provided.'" Id.,
at 282 (citation omitted).
The Court today repeatedly relies on a bare assertion that "the constitutional role
of the States sets them apart from other employers and defendants." Ante, at 477.
This may be true in many contexts, but it is not applicable in the sphere of interstate
commerce. Congress has plenary authority in regulating this area. In Gibbons v. Ogden,
9 Wheat. 1, 196-197 (1824), the Court stated:
"If, as has always been understood, the sovereignty of congress, though limited to
specified objects is plenary as to those objects, the power over commerce with foreign
nations, and among the several States, is vested in congress as absolutely as it would
be in a single government, having in its constitution the same restrictions on the
exercise of the power as are found in the constitution of the United States."
Thus, the Court in Parden concluded that the decision to regulate employers of interstate
workers, be they private individuals or States, was for Congress to make:
"While a State's immunity from suit by a citizen without its consent has been said
to be rooted in `the inherent nature of sovereignty,' . . . the States surrendered
a portion of their sovereignty when they granted Congress the power to regulate commerce.
"If Congress made the judgment that, in view of the dangers of railroad work and
the difficulty of recovering for personal injuries under existing rules, railroad
workers in interstate commerce should be provided with the [483 U.S. 468, 519] right
of action created by the FELA, we should not presume to say, in the absence of express
provision to the contrary, that it intended to exclude a particular group of such
workers from the benefits conferred by the Act." 377 U.S., at 189 -190.
Until today, Parden has been repeatedly cited by the Court as an established approach
"to the test of waiver of the Eleventh Amendment." County of Oneida v. Oneida Indian
Nation of New York, 470 U.S. 226, 252 , n. 26 (1985) (POWELL, J.); see, e. g., Fitzpatrick
v. Bitzer, 427 U.S. 445, 452 (1976). I believe that Parden was correctly decided.
"[B]y engaging in the railroad business a State cannot withdraw the railroad from
the power of the federal government to regulate commerce." New York v. United States,
326 U.S. 572, 582 (1946). In my view, Congress abrogated state immunity to suits under
FELA, a statute incorporated by the Jones Act.
V
Sound precedent should produce progeny whose subsequent application of principle
in light of experience confirms the original wisdom. Tested by this standard, Hans
has proved to be unsound. The doctrine has been unstable, because it lacks a textual
anchor, an established historical foundation, or a clear rationale. 19 We should not
forget that the [483 U.S. 468, 520] irrationality of the doctrine has its costs. It
has led to the development of a complex set of rules to avoid unfair results. 20 See,
e. g., Ex parte Young, 209 U.S. 123 (1908) (Amendment does not bar suit if plaintiff
names state official, rather than State itself, as defendant); Edelman v. Jordan,
415 U.S. 651 (1974) (Amendment does not bar prospective, but only retrospective, relief).
The doctrine, based on a notion of kingship, intrudes impermissibly on Congress' lawmaking
power. I adhere to my belief that:
"[T]he doctrine that has thus been created is pernicious. In an era when sovereign
immunity has been generally recognized by courts and legislatures as an anachronistic
and unnecessary remnant of a feudal legal system, . . . the Court has aggressively
expanded its scope. If this doctrine were required to enhance the liberty of our people
in accordance with the Constitution's protections, I could accept it. If the doctrine
were required by the structure of the federal system created by the Framers, I could
accept it. Yet the current doctrine intrudes on the ideal of liberty under law by
protecting the States from the consequences of their illegal conduct. And the [483
U.S. 468, 521] decision obstructs the sound operation of our federal system by limiting
the ability of Congress to take steps it deems necessary and proper to achieve national
goals within its constitutional authority." Atascadero State Hospital v. Scanlon,
473 U.S., at 302 (dissenting opinion) (citations omitted).
By clinging to Hans, the Court today erases yet another traditional legal distinction
and overrules yet another principle that defined the limits of that decision. In my
view, we should at minimum confine Hans to its current domain. More fundamentally,
however, it is time to begin a fresh examination of Eleventh Amendment jurisprudence
without the weight of that mistaken precedent. I therefore dissent.
[ Footnote 1 ] Article III, 2, provides:
"The judicial power shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be
made, under their Authority; - 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."
[ Footnote 2 ] The Eleventh Amendment provides:
"The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State."
[ Footnote 3 ] None of these Marshall Court cases casts any doubt on the correctness
of United States v. Bright, 24 Fed. Cas. 1232 (No. 14,647) (CC Pa. 1809). The Court,
however, asserts that language in United States v. Peters, 5 Cranch, at 139-141, supports
its viewpoint. The language it cites, ante, at 491, is taken out of context. In Peters,
the Court found that the suit was not instituted against the State, but against a
state official, as an individual party. 5 Cranch, at 139. Thus, the suit was not barred
because "[t]he amendment simply provides, that no suit shall be commenced or prosecuted
against a state." Ibid. The Court was focusing only on the identity of the defendant
and not on the identity of the plaintiff. Indeed, the suit was brought by the United
States Government, and States are not immune from actions brought by the United States.
Ante, at 487. Read in context, the quotation from Peters cited by the Court provides
no support for the Court's position.
The Court in Peters heavily relied on the Amendment's plain language to justify its
view that the Amendment applied only to States and not to state officials. 5 Cranch,
at 139. The Bright case resulted from an attempt to enforce the judgment rendered
in Peters. As indicated, supra, at 498, the court in Bright also heavily relied on
the plain language of the Amendment in holding that the Amendment did not affect admiralty
suits.
[ Footnote 4 ] The universal acceptance of Bright's holding suggests that States
were not accorded status equal to foreign sovereigns in the early 19th century. See,
e. g., The Schooner Exchange v. McFaddon, 7 Cranch 116, 136 (1812) ("The jurisdiction
of the nation within its own territory is necessarily exclusive and absolute. It is
susceptible of no limitation not imposed by itself"). The early admiralty cases cited
today by the Court, ante, at 493, n. 25, indicate that foreign countries were accorded
sovereign immunity based on the international consequences of a federal court's intervention.
See, e. g., The Santissima Trinidad, 7 Wheat. 283, 337 (1822) (Story, J.) ("The government
of the United States has recognized the existence of a civil war between Spain and
her colonies, and has avowed a determination to remain neutral between the parties,
and to allow to each the same rights of asylum and hospitality and intercourse").
[ Footnote 5 ] The Court also cites two other cases that do not support its holding
on the Eleventh Amendment issue. In Ex parte New York, No. 2, 256 U.S. 503 (1921),
the Court held that an in rem action against a State was barred by the common-law
principle that "property and revenue necessary for the exercise of powers [by government]
are to be considered as part of the machinery of government exempt from seizure and
sale under process against the city . . . ." Id., at 511.
In Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982) (opinion
of STEVENS, J.), a four-Justice plurality held that the Eleventh Amendment did not
bar the process issued by the District Court to secure [483 U.S. 468, 501] possession
of artifacts held by state officials. The plurality distinguished the Ex parte New
York cases because the "action [was] not an in personam action brought to recover
damages from the State." 458 U.S., at 699 . The Court carefully emphasized the narrowness
of its holding: "In ruling that the Eleventh Amendment does not bar execution of the
warrant, we need not decide the extent to which a federal district court exercising
admiralty in rem jurisdiction over property before the court may adjudicate the rights
of claimants to that property against sovereigns that did not appear and voluntarily
assert any claim that they had to the res." Id., at 697. Four Justice dissented in
part from the judgment on the ground that the action was a suit against the State
and therefore barred by the Eleventh Amendment. Id., at 705, 706 (opinion of WHITE,
J., joined by POWELL, REHNQUIST, and O'CONNOR, JJ.).
[ Footnote 6 ] Welch's "status as a `seaman' under the Jones Act is assumed and is
not at issue." 780 F.2d 1268, 1269 (CA5 1986).
[ Footnote 7 ] In my view, there is no reason to depart from normal rules of statutory
construction to determine Congress' intent regarding admiralty suits against States
in federal court. The Court has applied normal rules of statutory construction when
Congress exercises its authority under an Amendment that expressly contemplates limitations
on States' authority, see Fitzpatrick v. Bitzer, 427 U.S. 445, 452 -453 (1976), despite
the Eleventh Amendment's express jurisdictional bar against certain suits in law or
equity. A fortiori, we should apply normal statutory construction when Congress exercises
its express authority to extend federal jurisdiction over [483 U.S. 468, 503] admiralty
cases and the Eleventh Amendment does not expressly bar the exercise of that authority.
It seems odd for the Court to impose an "unmistakable language" requirement on the
Jones Act, especially based on an interpretation of the Eleventh Amendment that incorporates
words that are not there. Departing from normal rules of statutory construction inevitably
will frustrate the will of Congress. When the Jones Act was enacted, Bright was the
prevailing precedent. Moreover, in my view, Congress expressed its intent in unmistakable
language when it extended liability to employers of "any seaman" and explicitly provided
for federal jurisdiction over such actions.
[ Footnote 8 ] In addition, as Part IV discusses, infra, at 517-519, we should be
especially hesitant to incorporate the concept of state sovereign immunity with respect
to those subjects over which the Constitution expressly grants authority to the National
Government. Foreign and interstate commerce, which necessarily encompasses matters
of admiralty, is obviously such a subject area. As we said in United States v. California,
297 U.S. 175 (1936), in rejecting an argument that a State was not subject in its
sovereign capacity to a federal statute regulating interstate commerce:
"We can perceive no reason for extending [the canon of construction that a sovereign
is presumptively not intended to be bound by a statute unless named in it] as to exempt
a business carried on by a state from the otherwise applicable provisions of an act
of Congress, all-embracing in scope and national in its purpose, which is capable
of being obstructed by state as by individual action. Language and objectives so plain
are not to be thwarted by resort to a rule of construction whose purpose is but to
resolve doubts, and whose application in the circumstances would be highly artificial."
Id., at 186-187.
[ Footnote 9 ] In Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 282 (1959),
the Court considered the substantive applicability of the Jones Act to state employees:
"`When Congress wished to exclude state employees, it expressly so provided.' . .
. The Jones Act . . . has no exceptions from the broad sweep of the words `Any seaman
who shall suffer personal [483 U.S. 468, 504] injury in the course of his employment
may' etc." (citations omitted). The Court today does not disturb this holding. See
ante, at 495 (WHITE, J., concurring).
[ Footnote 10 ] Cf. United States v. Johnson, 481 U.S. 681, 692 (1987) (SCALIA, J.,
dissenting) (arguing against extension of the Feres doctrine (Feres v. United States,
340 U.S. 135 (1950)) in order to "limit our clearly wrong decision in Feres and confine
the unfairness and irrationality that decision has bred").
[ Footnote 11 ] Similar proposals submitted in New York, North Carolina, and Rhode
Island urged amendments depriving federal courts of jurisdiction over [483 U.S. 468,
506] cases instituted against a State by a citizen of another State or by an alien.
See C. Jacobs, The Eleventh Amendment and Sovereign Immunity 64 (1972).
[ Footnote 12 ] Madison's view of this issue is not clear. As legal historian Clyde
Jacobs concluded, "[w]hether Madison though that federal courts should possess any
jurisdiction over suits instituted against a state by citizens of another state or
by foreigners must remain a matter of some conjecture; indeed there is no direct evidence
that he considered the question at all. . . ." Id., at 12. Professor Jacobs also noted:
"Madison and other nationalists believed that the federal judiciary should be armed
with powers not only to maintain the supremacy of national law but also to review
state judicial decisions that might have interstate or foreign ramifications. Thus
one of the principle reasons nationalists advanced for extending the federal judicial
power - the maintenance of international peace and domestic harmony - would appear
to necessitate national jurisdiction in cases where the good faith of the states vis-a-vis
foreigners and citizens of other states had been engaged. If, however, this proposed
federal judicial jurisdiction were qualified by the doctrine of state immunity, a
broad avenue would have been left open to defeat every claim made upon them by citizens
of other states and by aliens. The exception to the jurisdiction would have made the
proposed jurisdiction futile or, at least, negligible." Id., at 13-14.
[ Footnote 13 ] Hamilton's writings in The Federalist, No. 80, suggest that he did
not believe that Article III barred all suits against States:
"It may be esteemed the basis of the union, that `the citizens of each state shall
be entitled to all the privileges and immunities of citizens of the several states.'
And if it be a just principle that every government ought to possess the means of
executing its own provisions by its own authority, it will follow, that in order to
the inviolable maintenance of that equality of privileges and immunities to which
the citizens of the union will be entitled, the national judiciary ought to preside
in all cases in which one state or its citizens are opposed to another state or its
citizens. To secure the full effect of so fundamental a provision against all evasion
and subterfuge, it is necessary that its construction should be committed to that
tribunal, which, having no local attachments, will be likely to be impartial between
the different states and their citizens, and which, owing its official existence to
the union, will never be likely to feel any bias inauspicious [483 U.S. 468, 507]
to the principles on which it is founded." The Federalist No. 80, pp. 537-538 (J.
Cooke ed. 1961) (first emphasis in original; second emphasis added).
[ Footnote 14 ] In Cohens, Chief Justice Marshall explained in detail the effect
of the general principle of sovereign immunity on the scope of Article III:
"The Counsel for the [State] . . . have laid down the general proposition, that a
sovereign independent state is not suable except by its own consent.
"This general proposition will not be controverted. But its consent is not requisite
in each particular case. It may be given in a general law. And if a state has surrendered
any portion of its sovereignty, the question whether a liability to suit be a part
of this portion, depends on the instrument by which the surrender is made. If, upon
a just construction of that instrument, it shall appear that the state has submitted
to be sued, then it has parted with this sovereign right of judging in every case
on the justice of its own pretensions, and has entrusted that power to a tribunal
in whose impartiality it confides." Cohens v. Virginia, 6 Wheat., at 380.
The Court then found that in agreeing to the Constitution, the States had surrendered
a significant measure of their sovereignty. It stated that the Supremacy Clause is
evidence of this surrender. Id., at 380-381. The Court therefore found that Article
III extended jurisdiction to all federal-question suits and that "no exception is
made of those cases in which a state may be party." Id., at 382-383.
[ Footnote 15 ] See generally Brief of the American Federation of Labor and Congress
of Industrial Organizations as Amicus Curiae 11-23.
[ Footnote 16 ] A legal historian, Professor John Orth, recently described the historical
approach taken by the Court in Hans:
"In Hans v. Louisiana, . . . Justice Bradley rewrote the history of the Eleventh
Amendment. . . . Only half a dozen years before, in [New Hampshire v. Louisiana, 108
U.S. 76 (1883),] written by Chief Justice Waite and joined by Justice Bradley, the
Court had accepted Chisholm as a correct interpretation of the Constitution as it
then stood. . . .
"How did Justice Bradley suddenly attain such unhedged certitude about the original
understanding and the Eleventh Amendment? No surprising discoveries about the historical
record had been made in the decade of the 1880s. The Justice himself merely rehashed
the familiar quotations from Madison, Marshall, and Hamilton. With regard to Chisholm
Bradley declaimed: `In view of the manner in which that decision was received by the
country, the adoption of the Eleventh Amendment, the light of history and the reason
of the thing, we think we are at liberty to prefer Justice [483 U.S. 468, 511] Iredell's
views . . . .' Yet Iredell's dissent was manhandled. . . . Attributing sovereign immunity
to the states, Bradley began the confusion that still prevails between federal and
state sovereignty.
"Nothing had arisen since the decision of the New Hampshire case to change Bradley's
view of the past - except the pressing need for a new rationale to justify a new result.
If sovereign immunity had not existed, the Justice would have had to invent it. As
it was, all that was required was to rewrite a little history." J. Orth, The Judicial
Power of the United States 74-75 (1987) (Orth).
[ Footnote 17 ] Justice Story later drew the same distinction between federal subject-matter
jurisdiction and federal diversity jurisdiction as did Justice Iredell:
"The vital importance of all the cases enumerated in the first class to the national
sovereignty, might warrant such a distinction. In the first place, as to cases arriving
under the constitution, laws, and treaties of the United States. Here the state courts
could not ordinarily possess a direct jurisdiction. The jurisdiction over such cases
could not exist in the state courts previous to the adoption of the constitution,
and it could not afterwards be directly conferred on them; for the constitution expressly
requires the judicial powers to be vested in courts ordained and established by the
United States. . . . The same remarks may be urged as to cases affecting ambassadors,
other public ministers, and consuls . . . and as to cases of admiralty and maritime
jurisdiction . . . . All these cases, then, enter into the national [483 U.S. 468,
515] policy, affect the national rights, and may compromise the national sovereignty.
. . .
"A different policy might well be adopted in reference to the second class of cases
. . . ." Martin v. Hunter's Lessee, 1 Wheat. 304, 334-335 (1816).
See generally Amar, A Neo-Federalist View of Article III: Separating the Two Tiers
of Federal Jurisdiction, 65 B. U. L. Rev. 205 (1985).
[ Footnote 18 ] Justice Iredell avoided committing himself on the broader constitutional
question concerning whether suits, other than those in diversity, were barred by the
Eleventh Amendment. He noted: "So much, however, has been said on the Constitution,
that it may not be improper to intimate that my present opinion is strongly against
any construction of it, which will admit, under any circumstances, a compulsive suit
against a State for the recovery of money." Chisholm v. Georgia, 2 Dall. 419, 449
(1793). Nonetheless, he conceded, "[t]his opinion I hold, however, with all the reserve
proper for one, which, according to my sentiments in this case, may be deemed in some
measure extra-judicial." Id., at 450.
[ Footnote 19 ] Today only four Members of the Court advocate adherence to Hans.
Three factors counsel against continued reliance upon Hans. First, Hans misinterpreted
the intent of the Framers and those who ratified the Eleventh Amendment. Cf. Michelin
Tire Corp. v. Wages, 423 U.S. 276, 297 -298 (1976) (overruling Low v. Austin, 13 Wall.
29 (1872), because it ignored the language and objectives of the Import-Export Clause
and misread earlier Court precedent). Second, the progeny of Hans has produced erratic
and irrational results. If a general principle of state sovereign immunity is based
on the sensitive problems inherent in making one sovereign appear against its will
in the courts of other sovereigns, ante, at 486-487, then it is inexplicable why States
can be sued in some cases (by other States, by the Federal Government, or when prospective
relief is sought) and not in other instances (by foreign countries, by citizens of
the same State, or when [483 U.S. 468, 520] retrospective relief is sought). The Court's
recital of the rules of sovereign immunity in Monaco v. Mississippi, 292 U.S. 313
(1934), indicates the crazy-quilt pattern of the Hans doctrine. Ante, at 487. Third,
the Eleventh Amendment doctrine creates inconsistencies in constitutional interpretation.
For example, under the Seventh Amendment, the Court has stated that a right to a jury
trial does not extend to admiralty cases because these suits in admiralty are distinguishable
from suits in law. See Parsons v. Bedford, 3 Pet. 433, 446-447 (1830). Yet today the
Court ignores the distinction between suits in admiralty and in law in arriving at
its decision.
[ Footnote 20 ] As Professor Orth concludes:
"By the late twentieth century the law of the Eleventh Amendment exhibited a baffling
complexity. . . . `The case law of the eleventh amendment is replete with historical
anomalies, internal inconsistencies, and senseless distinctions.' Marked by its history
as were few other branches of constitutional law, interpretation of the Amendment
has become an arcane specialty of lawyers and federal judges." Orth 11 (citation omitted).
[483 U.S. 468, 522]