seminole tribe florida florida argued october decided march indian gaming regulatory act passed congress pursuant indian commerce clause allows indian tribe conduct certain gaming activities conformance valid compact tribe state gaming activities located act duty negotiate good faith tribe toward formation compact tribe may sue state federal order compel performance duty suit respondents florida governor moved dismiss petitioner seminole tribe complaint ground suit violated florida sovereign immunity suit federal district denied motion appeals reversed finding indian commerce clause grant congress power abrogate eleventh amendment immunity ex parte young permit indian tribe force good faith negotiations suing state governor held eleventh amendment prevents congress authorizing suits indian tribes enforce legislation enacted pursuant indian commerce clause pp eleventh amendment presupposes state sovereign entity federal system inherent nature sovereignty amenable suit individual without state consent hans louisiana however congress may abrogate sovereign immunity unequivocally expresse intent abrogate immunity acted pursuant valid exercise power green mansour page ii numerous references state text congress provided unmistakably clear statement intent abrogate pp inquiry whether congress power abrogate unilaterally immunity suit narrowly focused single question act question passed pursuant constitutional provision granting congress power found authority abrogate two constitutional provisions fourteenth amendment see fitzpatrick bitzer plurality opinion interstate commerce clause pennsylvania union gas union gas plurality found congress power abrogate came session sovereignty gave congress plenary power regulate commerce rationale union gas indian commerce clause indistinguishable interstate commerce clause pp however five years since decided union gas proven solitary departure established law reconsidering decision none policies underlying stare decisis require continuing adherence holding decision questionable precedential value largely majority expressly disagreed plurality rationale moreover deeply fractured decision created confusion among lower courts sought understand apply plurality rationale also deviated sharply established federalism jurisprudence essentially eviscerated decision hans since plurality conclusion congress article expand scope federal courts article iii jurisdiction contradicted fundamental notion article iii sets forth exclusive catalog permissible jurisdiction thus union gas wrongly decided overruled eleventh amendment restricts judicial power article iii article used circumvent constitutional limitations placed upon federal jurisdiction pp doctrine ex parte young may used enforce state official doctrine allows suit state official go forward notwithstanding eleventh amendment jurisdictional bar suit seeks prospective injunctive relief order end continuing violation however congress prescribed detailed remedial scheme enforcement state statutorily created right hesitate casting aside page iii limitations permitting ex parte young action intricate procedures set forth show congress intended define also significantly limit duty imposed act mandates modest set sanctions state culminating secretary interior prescribing gaming regulations agreement reached negotiation mediation contrast ex parte young action expose state official federal full remedial powers including presumably contempt sanctions enforcement ex parte young suit also make superfluous difficult see tribe suffer intricate enforcement scheme ex parte young complete immediate relief available free rewrite statutory scheme order approximate thinks congress might wanted known beyond authority pp rehnquist delivered opinion scalia kennedy thomas joined stevens filed dissenting opinion souter filed dissenting opinion ginsburg breyer joined seminole tribe florida florida chief justice rehnquist delivered opinion indian gaming regulatory act provides indian tribe may conduct certain gaming activities conformance valid compact tribe state gaming activities located stat act passed congress indian commerce clause art cl imposes upon duty negotiate good faith indian tribe toward formation compact authorizes tribe bring suit federal state order compel performance duty hold notwithstanding congress clear intent abrogate sovereign immunity indian commerce clause grant congress power therefore grant jurisdiction state consent sued hold doctrine ex parte young may used enforce state official seminole tribe florida florida congress passed indian gaming regulatory act order provide statutory basis operation regulation gaming indian tribes see act divides gaming indian lands three classes ii iii provides different regulatory scheme class class iii gaming type concerned defined forms gaming class gaming class ii gaming includes things slot machines casino games banking card games dog racing lotteries heavily regulated three classes act provides class iii gaming lawful authorized ordinance resolution adopted governing body indian tribe satisfies certain statutorily prescribed requirements approved national indian gaming commission located state permits gaming purpose person organization entity conducted conformance seminole tribe florida florida compact entered indian tribe state paragraph effect paragraph last prerequisite refers describes permissible scope compact see provides compact effective notice approval secretary interior compact published secretary federal register significant purposes however describes process state indian tribe begin negotiations toward compact indian tribe jurisdiction indian lands upon class iii gaming activity conducted conducted shall request state lands located enter negotiations purpose entering compact governing conduct gaming activities upon receiving request state shall negotiate indian tribe good faith enter compact district courts shall jurisdiction cause action initiated indian tribe arising failure state enter negotiations indian tribe purpose entering compact paragraph conduct negotiations good faith indian tribe may initiate cause action described subparagraph close period beginning date indian tribe requested state seminole tribe florida florida enter negotiations paragraph seminole tribe florida florida september seminole tribe indians petitioner sued state florida governor lawton chiles respondents invoking jurisdiction well petitioner alleged respondents refused enter negotiation inclusion certain gaming activities compact thereby violating requirement good faith negotiation contained petitioner complaint see app respondents moved dismiss complaint arguing suit violated state sovereign immunity suit federal district denied respondents motion supp sd respondents took interlocutory appeal decision see puerto rico aqueduct sewer authority metcalf eddy collateral order doctrine allows immediate appellate review order denying claim eleventh amendment immunity appeals eleventh circuit reversed decision district holding eleventh amendment barred petitioner suit respondents agreed district congress intended abrogate sovereign immunity also agreed act passed pursuant seminole tribe florida florida congress power indian commerce clause art cl disagreed district however indian commerce clause grants congress power abrogate state eleventh amendment immunity suit concluded therefore jurisdiction petitioner suit florida held ex parte young permit indian tribe force good faith negotiations suing governor state finding lacked jurisdiction eleventh circuit remanded district directions dismiss petitioner suit seminole tribe florida florida eleventh amendment provides judicial power shall construed extend suit law equity commenced prosecuted one citizens another state citizens subjects foreign state seminole tribe florida florida petitioner sued state florida undisputed florida consented suit see blatchford supra entering constitution consent suit indian tribes petitioner nevertheless contends suit barred state sovereign immunity first argues congress act abrogated sovereign immunity alternatively petitioner maintains suit governor may go forward ex parte young supra consider arguments turn ii petitioner argues congress act abrogated immunity suit order determine whether congress abrogated sovereign immunity ask two questions first whether congress unequivocally expresse intent abrogate immunity green mansour second whether congress acted pursuant valid exercise power ibid seminole tribe florida florida congress intent abrogate immunity suit must obvious clear legislative statement blatchford rule arises recognition important role played eleventh amendment broader principles reflects see atascadero state hospital scanlon quern jordan atascadero held general authorization suit federal kind unequivocal statutory language sufficient abrogate eleventh amendment see also blatchford supra fact congress grants jurisdiction hear claim suffice show congress abrogated defenses claim emphases deleted rather said dellmuth muth temper congress acknowledged powers abrogation due concern eleventh amendment role essential component constitutional structure applied simple stringent test congress may abrogate constitutionally secured immunity suit federal making intention unmistakably clear language statute agree parties eleventh circuit decision virtually every confronted question congress provided seminole tribe florida florida unmistakably clear statement intent abrogate section vests jurisdiction district courts cause action arising failure state enter negotiations conduct negotiations good faith conceivable doubt identity defendant action dispelled one looks various provisions describe remedial scheme available tribe files suit section ii ii provides suing tribe meets burden proof burden proof shall upon state iii finds state failed negotiate good faith shall order state iv provides state shall submit mediator appointed subsection mediator shall submit state sections vi vii also refer state context makes clear state defendant suit brought indian tribe sum think numerous references state text make indubitable congress intended act abrogate sovereign immunity suit seminole tribe florida florida concluded congress clearly intended abrogate sovereign immunity turn consider whether act passed pursuant valid exercise power green mansour address question however think necessary first define scope inquiry petitioner suggests one consideration weighing favor finding power abrogate act authorizes prospective injunctive relief rather retroactive monetary relief often made clear relief sought plaintiff suing state irrelevant question whether suit barred eleventh amendment see cory white novel proposition indeed eleventh amendment bar suit enjoin state simply money judgment sought think follows fortiori proposition type relief sought irrelevant whether congress power abrogate immunity eleventh amendment exist solely order preven federal judgments must paid state treasury hess port authority corporation slip also serves avoid indignity subjecting state coercive seminole tribe florida florida process judicial tribunals instance private parties puerto rico aqueduct sewer authority internal quotation marks omitted similarly petitioner argues abrogation power validly exercised act grants power otherwise measure authority gaming indian lands true enough act extends power withheld constitution see california cabazon band mission indians nevertheless see consideration relevant question whether congress may abrogate state sovereign immunity eleventh amendment immunity may lifted congress unilaterally deciding replaced grant authority cf atascadero mere receipt federal funds establish state consented suit federal thus inquiry whether congress power abrogate unilaterally immunity suit narrowly focused one question act question passed pursuant constitutional provision granting congress power abrogate see fitzpatrick bitzer previously conducting inquiry found authority abrogate two provisions constitution fitzpatrick recognized fourteenth amendment expanding federal power expense state autonomy fundamentally altered balance state federal power struck constitution noted fourteenth amendment contained prohibitions expressly directed amendment expressly provided congress shall power enforce appropriate legislation provisions article see internal quotation seminole tribe florida florida marks omitted held fourteenth amendment federal power extended intrude upon province eleventh amendment therefore fourteenth amendment allowed congress abrogate immunity suit guaranteed amendment one case congressional abrogation eleventh amendment immunity upheld pennsylvania union gas plurality found interstate commerce clause art cl granted congress power abrogate state sovereign immunity stating power regulate interstate commerce incomplete without authority render liable damages union gas justice white added fifth vote necessary result case wrote separately order express agree much plurality reasoning white concurring judgment part dissenting part arguing congress act abrogated sovereign immunity petitioner challenge eleventh circuit conclusion act passed pursuant neither fourteenth amendment interstate commerce clause instead accepting lower conclusion act passed pursuant congress power indian commerce clause petitioner asks us consider whether clause grants congress power abrogate sovereign immunity petitioner begins plurality decision union gas contends principled basis finding congressional power indian commerce clause less conferred interstate commerce clause brief petitioner noting union gas plurality found power abrogate plenary character grant seminole tribe florida florida authority interstate commerce petitioner emphasizes interstate commerce clause leaves power regulate see west lynn creamery healy whereas indian commerce clause makes indian relations exclusive province federal law county oneida oneida indian nation contending indian commerce clause vests federal government duty protect ing tribes local ill feeling people kagama petitioner argues abrogation power necessary protect tribes state action denying federally guaranteed rights brief petitioner respondents dispute petitioner analogy indian commerce clause interstate commerce clause note recognized interstate commerce indian commerce clauses different applications cotton petroleum new mexico argue two provisions wholly dissimilar brief respondents respondents contend interstate commerce clause grants power abrogation congress authority regulate interstate commerce incomplete without necessary power citing union gas supra indian commerce clause distinguishable respondents contend gives congress complete authority indian tribes therefore abrogation power necessary congress exercise power indian commerce clause seminole tribe florida florida parties make arguments plurality decision union gas begin think clear justice brennan opinion finds congress power abrogate interstate commerce clause cession sovereignty gave congress plenary power regulate interstate commerce see union gas important point provision expands federal power contracts state power respondents focus elsewhere misplaced plurality decision congress power interstate commerce clause incomplete without power abrogate statement made solely order emphasize broad scope congress authority interstate commerce moreover respondents rationale mean congress less authority congress means exercising power must greater read plurality opinion provide opposite indeed circumstances congress exercised complete authority justice brennan thought power abrogate necessary since may legislate aforementioned situations conclusion congress may create cause action money damages mean one many situations money damages carry congress legitimate objectives commerce clause following rationale union gas plurality inquiry limited determining whether indian seminole tribe florida florida commerce clause like interstate commerce clause grant authority federal government expense answer question obvious anything indian commerce clause accomplishes greater transfer power federal government interstate commerce clause clear enough fact still exercise authority interstate trade divested virtually authority indian commerce indian tribes rationale union gas partial cession authority particular area includes cession immunity suit virtually total cession authority different area must also include cession immunity suit see union gas supra scalia joined rehnquist kennedy dissenting article commerce power enables abrogation state sovereign immunity article powers see ponca tribe oklahoma oklahoma indian commerce clause grants power abrogate cert pending cheyenne river sioux tribe south dakota cf chavez arte publico press union gas copyright clause art cl must grant congress power abrogate agree petitioner plurality opinion union gas allows principled distinction favor drawn indian commerce clause interstate commerce clause respondents argue however need conclude indian commerce clause grants power abrogate sovereign immunity instead contend find rationale union gas plurality extend indian commerce clause union gas reconsidered seminole tribe florida florida overruled brief respondents generally principle stare decisis interests serves evenhanded predictable consistent development legal principles reliance judicial decisions actual perceived integrity judicial process payne tennessee counsel strongly reconsideration precedent nevertheless always treated stare decisis principle policy helvering hallock inexorable command payne hen governing decisions unworkable badly reasoned never felt constrained follow precedent quoting smith allwright willingness reconsider earlier decisions particularly true constitutional cases cases correction legislative action practically impossible payne supra quoting burnet coronado oil gas brandeis dissenting union gas reached result without expressed rationale agreed upon majority already seen justice brennan opinion received support three justices see union gas marshall blackmun stevens joined justice brennan five justice white provided fifth vote result wrote separately order indicate disagreement majority rationale white concurring judgment dissenting part four justices joined together dissent rejected plurality rationale scalia dissenting joined rehnquist kennedy since issued union gas created confusion among lower courts sought understand apply deeply fractured seminole tribe florida florida decision see chavez arte publico press supra justice white concurrence must taken face disavow plurality theory justice white vague concurrence renders continuing validity union gas doubt plurality rationale also deviated sharply established federalism jurisprudence essentially eviscerated decision hans see union gas supra hans means suits money damages brought federal unless congress clearly says means nothing scalia dissenting well established union gas decided eleventh amendment stood constitutional principle state sovereign immunity limited federal courts jurisdiction article iii text amendment clear enough point judicial power shall construed extend suit decisions since hans equally clear eleventh amendment reflects fundamental principle sovereign immunity limits grant judicial authority article iii pennhurst state school hospital halderman see union gas supra entire judicial power granted constitution embrace authority entertain suit brought private parties state without consent given scalia dissenting quoting ex parte new york see also cases cited supra dissent union gas recognized plurality conclusion congress article expand scope federal courts jurisdiction article iii contradict ed unvarying approach article iii setting forth exclusive catalog permissible federal jurisdiction union gas never decision union gas seminole tribe florida florida suggested bounds article iii expanded congress operating pursuant constitutional provision fourteenth amendment indeed seemed fundamental congress expand jurisdiction federal courts beyond bounds article iii marbury madison cranch plurality citation prior decisions support based upon believe misreading precedent see union gas scalia dissenting plurality claimed support decision case holding unremarkable completely unrelated proposition may waive sovereign immunity see citing parden terminal railway docks cited precedent propositions merely assumed sake argument earlier cases see citing welch texas dept highways public county oneida oneida indian nation plurality extended reliance upon decision fitzpatrick bitzer congress fourteenth amendment abrogate sovereign immunity also believe misplaced fitzpatrick based upon rationale wholly inapplicable interstate commerce clause fourteenth amendment adopted well adoption eleventh amendment ratification constitution operated alter balance state federal power achieved article iii eleventh amendment dissent union gas made clear fitzpatrick read justify limitation principle embodied eleventh amendment appeal antecedent provisions constitution union gas scalia dissenting seminole tribe florida florida five years since decided union gas proven solitary departure established law see puerto rico aqueduct sewer authority metcalf eddy reconsidering decision union gas conclude none policies underlying stare decisis require continuing adherence holding decision since issuance questionable precedential value largely majority expressly disagreed rationale plurality see nichols slip degree confusion following splintered decision reason reexamining decision case involved interpretation constitution therefore may altered constitutional amendment revision finally result union gas plurality rationale depart established understanding eleventh amendment undermine accepted function article iii feel bound conclude union gas wrongly decided overruled dissent makes effort defend decision union gas see post nonetheless find congressional power abrogate case contending decision novel extension eleventh amendment dissent chides us attend ing dicta adhere case however mere obiter dicta rather rationale upon based results earlier decisions opinion issues result also portions opinion necessary result bound seminole tribe florida florida cf burnham superior county marin exclusive basis judgment dicta plurality allegheny county american civil liberties union greater pittsburgh chapter general rule principle stare decisis directs us adhere holdings prior cases also explications governing rules law kennedy concurring dissenting sheet metal workers eeoc although technically dicta important part rationale result reache entitled greater weight concurring century grounded decisions understanding state sovereign immunity essential part eleventh amendment principality monaco mississippi held eleventh amendment barred suit brought state foreign state chief justice hughes wrote unanimous either literal sweep words clause one article iii absence restriction letter eleventh amendment permits conclusion controversies sort described clause one omitted words eleventh amendment state may sued without consent thus clause one specifically provides judicial power shall extend cases law equity arising constitution laws treaties made shall made authority although case may arise constitution laws judicial power extend suit sought prosecuted state without consent one citizens manifestly rest mere literal application seminole tribe florida florida words article iii assume letter eleventh amendment exhausts restrictions upon suits behind words constitutional provisions postulates limit control essential postulate controversies contemplated shall found justiciable character also postulate union still possessing attributes sovereignty shall immune suits without consent save surrender immunity plan convention dissent contrary disregards case law favor theory cobbled together law review articles version historical events dissent cites single decision since hans union gas supports view state sovereign immunity instead relying upon decision chisholm georgia dall see post undocumented highly speculative extralegal explanation decision hans disservice traditional method seminole tribe florida florida adjudication see post dissent mischaracterizes hans opinion decision found roots solely common law england much fundamental jurisprudence civilized nations hans quoting beers arkansas see also federalist rossiter ed hamilton sovereign immunity general sense general practice mankind dissent proposition common law england adopted open change legislature wholly unexceptionable largely beside point common law provided substantive rules law rather jurisdiction cf monaco supra state sovereign immunity like requirement justiciable controversy constitutionally grounded limit federal jurisdiction also noteworthy principle state sovereign immunity stands distinct principles common law former prompted specific constitutional amendment hans much closer vantage point dissent recognized decision chisholm contrary meaning constitution dissent conclusion decision chisholm reasonable post certainly struck framers eleventh amendment quite odd decision created shock surprise eleventh amendment proposed adopted monaco supra dissent lengthy analysis text eleventh amendment directed straw man long recognized blind reliance upon text eleventh amendment strain constitution law construction never imagined dreamed monaco quoting hans text dealt terms problem presented seminole tribe florida florida decision chisholm light fact federal courts federal question jurisdiction time amendment passed seems unlikely much thought given prospect federal question jurisdiction consideration causes dissent criticism views marshall madison hamilton ring hollow dissent cites statements made three influential framers natural reading preclude federal jurisdiction unconsenting state struggling reading however dissent finds significant absence contention sovereign immunity affect new jurisdiction post lack statute vesting general federal question jurisdiction federal courts much later makes dissent demand greater specificity jurisdiction overly exacting seminole tribe florida florida putting forward new theory state sovereign immunity dissent develops vision political system created framers concluding statement framer principal objectives rejecting english theories unitary sovereignty impeded new concept sovereign immunity taken place federal question cases substantially thwarted new immunity held untouchable congressional effort abrogate post sweeping statement ignores fact nation survived nearly two centuries without question existence power ever presented congress waited nearly century even conferring federal question jurisdiction lower federal courts seminole tribe florida florida overruling union gas today reconfirm background principle state sovereign immunity embodied eleventh amendment ephemeral dissipate subject suit area like regulation indian commerce exclusive control federal government even constitution vests congress complete authority particular area eleventh amendment prevents congressional authorization suits private parties unconsenting seminole tribe florida florida eleventh amendment restricts judicial power article iii article used circumvent constitutional limitations placed upon federal jurisdiction petitioner suit state florida must dismissed lack jurisdiction iii continuing violation federal law seminole tribe florida florida alleged petitioner governor failure bring state compliance duty negotiate imposed upon state statutory provision stand alone rather seen supra congress passed conjunction carefully crafted intricate remedial scheme set forth congress created remedial scheme enforcement particular federal right suits federal officers refused supplement scheme one created judiciary schweiker chilicky design government program suggests congress provided considers adequate remedial mechanisms constitutional violations may occur course administration created additional remedies course question whether remedy created instead whether eleventh amendment bar lifted ex parte young order allow suit state officer nevertheless think general principle applies therefore congress prescribed detailed remedial scheme enforcement state statutorily created right hesitate casting aside limitations permitting action state officer based upon ex parte young congress intended enforced state action brought intricate procedures set forth provision show congress intended therein define also significantly limit duty imposed example finds state failed negotiate good faith remedy prescribed order directing state indian tribe conclude compact within days parties disregard order fail seminole tribe florida florida conclude compact within period sanction party must submit proposed compact mediator selects one best embodies terms act finally state fails accept compact selected mediator sanction mediator shall notify secretary interior must prescribe regulations governing class iii gaming tribal lands issue contrast quite modest set sanctions action brought state official ex parte young expose official full remedial powers federal including presumably contempt sanctions enforced suit ex parte young superfluous difficult see indian tribe suffer intricate scheme complete immediate relief available ex parte young seminole tribe florida florida course found congress authority constitution make state suable federal nevertheless fact congress chose impose upon state liability significantly limited liability imposed upon state officer ex parte young strongly indicates congress wish create latter free rewrite statutory scheme order approximate think congress might wanted known beyond authority effort made made congress federal courts hold ex parte young inapplicable petitioner suit governor florida therefore suit barred eleventh amendment must dismissed lack jurisdiction iv eleventh amendment prohibits congress making state florida capable sued federal narrow exception eleventh amendment provided ex parte young doctrine used enforce congress enacted remedial scheme specifically designed enforcement right eleventh circuit dismissal petitioner suit hereby affirmed ordered seminole tribe florida florida footnotes class ii gaming extensively defined include bingo games similar bingo nonbanking card games illegal laws state card games actually operated particular prior passage act see banking card games electronic games chance slot machines expressly excluded scope class ii gaming act allows class ii gaming state permits gaming purpose person organization entity governing body indian tribe adopts ordinance resolution approved chairman national indian gaming commission regulation class ii gaming contemplates federal role places primary emphasis tribal see sections ii vii provide full seminole tribe florida florida ii action described subparagraph upon introduction evidence indian tribe compact entered paragraph ii state respond request indian tribe negotiate compact respond request good faith burden proof shall upon state prove state negotiated indian tribe good faith conclude compact governing conduct gaming activities iii action described subparagraph finds state failed negotiate good faith indian tribe conclude compact governing conduct gaming activities shall order state indian tribe conclude compact within period determining action whether state negotiated good seminole tribe florida florida faith may take account public interest public safety criminality financial integrity adverse economic impacts existing gaming activities ii shall consider demand state direct taxation indian tribe indian lands evidence state negotiated good faith iv state indian tribe fail conclude compact within period provided order issued clause iii indian tribe state shall submit mediator appointed proposed compact represents last best offer compact mediator shall select two proposed compacts one best comports terms chapter applicable federal law findings order mediator appointed clause iv shall submit state indian tribe compact selected mediator clause iv vi state consents proposed compact period beginning date proposed compact submitted mediator state clause proposed compact shall treated compact entered paragraph vii state consent period described clause vi proposed compact submitted mediator clause mediator shall notify secretary secretary shall prescribe consultation indian tribe procedures consistent proposed compact selected mediator clause iv provisions chapter relevant provisions laws state seminole tribe florida florida ii class iii gaming may conducted indian lands indian tribe jurisdiction eleventh circuit consolidated petitioner appeal appeal another suit brought different indian tribe although district case granted defendants motions dismiss legal issues presented two appeals virtually identical see poarch band creek indians alabama supp sd eleventh amendment bars suit state supp sd eleventh amendment bars suit governor following conclusion petitioner suit dismissed appeals went consider operate wake decision decided provisions problematic severed rest section read surviving provisions provide indian tribe immediate recourse secretary interior dismissal suit state respondents filed challenging eleventh circuit modification see supra petition still pending appeal pending eleventh circuit district seminole tribe florida florida granted respondents summary judgment motion finding florida fulfilled obligation act negotiate good faith eleventh circuit stayed review decision pending disposition case north carolina temple fitts mcghee bell mississippi smith reeves palmer ohio duhne new jersey ex seminole tribe florida florida parte new york missouri fiske great northern life ins read ford motor department treasury georgia railroad banking redwine parden terminal railway docks mississippi employees department public health welfare edelman jordan fitzpatrick bitzer cory white pennhurst state school hospital halderman atascadero state hospital scanlon welch texas dept highways public plurality opinion dellmuth muth port authority feeney blatchford native village noatak puerto rico aqueduct sewer authority metcalf eddy see ponca tribe oklahoma oklahoma cert pending spokane tribe washington seminole tribe florida florida cheyenne river sioux tribe south dakota ponca tribe oklahoma oklahoma supp wd maxam lower sioux indian community minnesota supp kickapoo tribe indians kansas supp supp sd case sault ste marie tribe chippewa indians michigan supp wd poarch band creek indians alabama dissent argues order avoid constitutional question interpret act provide suit state officials seminole tribe florida florida rather suit state post light plain text disagree dissent assertion act reasonably read way press statutory construction point disingenuous evasion even avoid constitutional question see locke quoting george moore ice cream rose cardozo already found clear statement rule satisfied finding renders preference avoiding constitutional question inapplicable respondents also contend act mandates state regulation indian gaming therefore violates tenth amendment allowing federal officials avoid political accountability actions seminole tribe florida florida fact responsible see new york argument considered either eleventh circuit district fairly within question presented therefore consider see rule yee escondido unless otherwise indicated references dissent dissenting opinion authored justice souter note also dissent quotes selectively framers statements references dissent cites following instance statement made madison constitution give citizen right heard federal courts state condescend party may take cognizance see post statement perhaps ambiguous read isolation preceded following urisdiction controversies state citizens another state much objected perhaps without reason power individuals call state operation state wish bring suit citizen must brought federal courts appears operation see elliot debates federal constitution although absence discussion dealing federal question jurisdiction therefore unremarkable notably lacking framers statements mention congress power abrogate immunity absence discussion power particularly striking light fact framers virtually always specific exception state sovereign seminole tribe florida florida immunity arising state consent suit see federalist pp rossiter ed hamilton inherent nature sovereignty amenable suit individual without consent unless therefore surrender immunity plan convention remain danger intimated must merely ideal emphasis original madison elliot supra power individuals call state constitution operation state condescend party may take cognizance argument wholly disregards methods ensuring compliance federal law federal government bring suit federal state see texas finding power necessary permanence union individual bring suit state officer order ensure officer conduct compliance federal law see ex parte young empowered review question federal law arising state decision state consented suit see cohens virginia wheat justice stevens dissenting opinion makes two points merit separate response first contends distinction may drawn state sovereign immunity immunity enjoyed seminole tribe florida florida state federal officials even assuming latter constitutional foundation distinction clear constitution specifically recognizes sovereign entities government officials enjoy constitutional recognition second justice stevens criticizes prior decisions applying clear statement rule suggesting based upon understanding article allowed congress abrogate state sovereign immunity criticism however ignores fact many cases arose context statute passed fourteenth amendment congress authority abrogate undisputed see quern jordan fundamental flaw criticism failure recognize doctrine requiring avoidance constitutional questions principles federalism require us always apply clear statement rule consider constitutional question whether congress power abrogate justice stevens understands opinion prohibit federal jurisdiction suits enforce bankruptcy copyright antitrust laws notes federal jurisdiction statutory schemes exclusive therefore concludes remedy state violations federal statutes post conclusion exaggerated substance significance first justice stevens statement misleadingly overbroad already seen several avenues remain open ensuring state compliance federal law see supra notably individual may obtain injunctive relief ex parte young order remedy state officer ongoing violation federal law see supra second contrary implication justice stevens conclusion widely federal antitrust bankruptcy copyright statutes abrogated sovereign immunity never awarded relief state seminole tribe florida florida statutory schemes decision justice stevens cites somehow labels incompatible decision specifically reserved question whether eleventh amendment allow suit enforce antitrust laws state see goldfarb virginia state bar although copyright bankruptcy laws existed practically since nation inception antitrust laws force century established tradition lower federal courts allowing enforcement federal statutes notably appeals decisions cited justice stevens issued last year based upon union gas see chavez arte publico press matter merchants grain mahern indeed appeals chavez allowed suit state go forward expressly recognized holding unprecedented see chavez aware case specifically holds laws passed pursuant copyright clause abrogate state immunity contrary claims dissent hold congress authorize federal jurisdiction ex parte young cause action limited remedial scheme find congress intend result indian gaming regulatory act although one might argue text taken alone broad enough encompass suit state abrogation theory suit state official ex parte young theory subsection read isolation subsections ii vii repeatedly refers exclusively state see supra regard stands contrast statutes cited dissent examples lower courts found congress implicitly authorized suit ex parte young compare federal authorized issue order directed appropriate state official ed requiring governor state perform certain actions holding governor responsible nonperformance authorizing suit person alleged violation relevant water pollution laws similarly duty imposed act negotiate good faith enter compact another sovereign stands distinct sort likely performed individual state executive officer even group officers cf state ex rel stephan finney governor kansas may negotiate may enter compact without grant power legislature consider express opinion upon portion decision provides substitute remedy tribe bringing suit see case seminole tribe florida florida justice stevens dissenting case power power congress create private federal cause action state governor violation federal right chisholm georgia dall entire including justice iredell whose dissent provided blueprint eleventh amendment assumed congress power hans louisiana case purports follow today assumed congress power fitzpatrick bitzer pennsylvania union gas stevens concurring squarely held congress power series cases beginning atascadero state hospital scanlon formulated special clear statement rule determine whether specific acts congress contained effective exercise power nevertheless sharp break past today holds narrow illogical exception statutes enacted pursuant enforcement clause fourteenth amendment congress power importance majority decision overrule holding pennsylvania union gas seminole tribe florida florida overstated majority opinion simply preclude congress establishing rather curious statutory scheme indian tribes may seek aid federal secure state good faith negotiations gaming regulations rather prevents congress providing federal forum broad range actions sounding copyright patent law concerning bankruptcy environmental law regulation vast national economy may room debate whether light eleventh amendment congress power ensure cause action may enforced federal citizen another state foreign citizen serious debate however whether congress power ensure seminole tribe florida florida cause action may brought citizen state sued congress authority regard clear justice souter convincingly demonstrated contrary conclusion profoundly misguided despite thoroughness analysis supported sound reason history precedent strikingly uniform scholarly commentary shocking character majority affront coequal branch government merits additional comment purpose deciding case readily assume justice iredell dissent chisholm georgia opinion hans louisiana correctly stated law govern decision today shall explain opinions relied interpretation act congress rather want congressional power authorize suit state concluding federal courts entertain chisholm action state georgia justice iredell relied text judiciary act state assertion article iii extend judicial power suits unconsenting justice iredell argued article iii federal courts possessed jurisdiction congress provided judiciary act expressly limited jurisdiction exercised accordance principles usages law chisholm georgia quoting judiciary act reasoned inclusion phrase constituted command federal courts construe jurisdiction light prevailing common law background legal regime believed incorporated doctrine seminole tribe florida florida sovereign immunity chisholm georgia iredell dissenting justice iredell believed expansive text article iii prevent congress imposing limitation jurisdiction concluded judges authority entertain suit unconsenting state time although acknowledged constitution might allow congress extend jurisdiction action concluded terms judiciary act plainly done congress direction apprehend supersede may appear us sufficiently extensive must wait till remedies provided authority plain legislature chuse leave discretion path justice prescribed one think wisely referred us principles usages law already well known precision calculated guard innovating spirit courts justice another case reprobated much seminole tribe florida florida warmth whose sentiments particular cordially join emphasis added precise holding chisholm difficult state justices majority wrote opinion seem held however judiciary act precluded defense sovereign immunity article iii constitution required entertain original actions unconsenting agree seminole tribe florida florida justice iredell construction article iii incorrect article construed construed prevent congress granting sovereign immunity defense cases reading article iii however explains majority holding chisholm reversed simple statutory amendment adopting justice iredell interpretation judiciary act special irony fact error committed chisholm majority decision rather congress define scope sovereign immunity defense course precisely error commits today light nature disagreement justice iredell colleagues chisholm holding overturned simply amending constitution restore congress authority recognize doctrine plain text eleventh amendment seem go limit judicial power certain class cases seminole tribe florida florida however amendment quite explicit text establishes partial bar federal power entertain suit state justice brennan persuasively explained eleventh amendment jurisdictional restriction best understood apply suits premised diversity jurisdiction see atascadero state hospital scanlon dissenting opinion justice scalia agreed plain text amendment read apply cases see pennsylvania union gas dissenting opinion whatever precise dimensions amendment express terms plainly apply suits brought unconsenting seminole tribe florida florida question thus becomes whether relatively modest jurisdictional bar eleventh amendment imposes understood reveal general jurisdictional bar implicitly inheres article iii language article iii certainly gives indication implicit bar exists provision text specifically provides jurisdiction cases arising federal law moreover explained justice iredell dissent argued judiciary act article iii prevented federal courts entertaining chisholm diversity action georgia therefore justice iredell analysis least suggests means fixed view time founding article iii prevented congress rendering suable federal citizens sum little speculation justifies conclusion eleventh amendment express partial limitation seminole tribe florida florida scope article iii reveals implicit general one already place ii majority appears acknowledge one deduce either text article iii plain terms eleventh amendment judicial power extend congressionally created cause action state brought one state citizens nevertheless majority asserts precedent compels conclusion disagree majority relies first decision hans louisiana involved suit citizen louisiana state claimed violation contracts clause majority suggests dismissing suit hans effectively held federal courts power hear federal question suits brought plaintiffs hans hold however eleventh amendment constitutional provision precludes federal courts entertaining actions brought citizens face contrary congressional direction explained see pennsylvania union gas stevens concurring justice souter effectively demonstrates hans instead reflects conclusion matter federal common law federal courts decline entertain suits unconsenting hans announce constitutionally mandated jurisdictional bar one need overrule hans even question reasoning order conclude congress may direct federal courts reject sovereign immunity suits mentioned eleventh amendment instead one need follow justice bradley somewhat cryptic opinion hans relied expressly reasoning seminole tribe florida florida justice iredell dissent chisholm course premised view doctrine state sovereign immunity rule congress directed federal courts respect constitutional immunity congress powerless displace reason justice bradley explained state immunity suit one citizens based constitutional rule rather fact congress legislation attempted overcome presumption sovereign immunity analysis clearly supports position rejected majority today worth quoting length besides presumption anomalous unheard proceedings suits intended raised constitution anomalous unheard constitution adopted additional reason jurisdiction claimed circuit exist language act congress jurisdiction conferred words circuit courts shall original cognizance concurrent courts several suits civil nature common law equity arising constitution laws treaties etc concurrent courts several qualification show congress legislating carry constitution effect intend invest courts new strange jurisdictions state courts power entertain suits individuals state without consent circuit concurrent jurisdiction acquire power true qualification existed judiciary act chisholm georgia seminole tribe florida florida majority think sufficient limit jurisdiction circuit justice iredell thought differently view manner decision received country adoption eleventh amendment light history reason thing think liberty prefer justice iredell view regard hans louisiana indeed fact characterized doctrine sovereign immunity presumption confirms assumption displaced hans inquiry congressional intent wholly inappropriate believed doctrine sovereign immunity inviolable jurisdictional limitation thus hans provides basis majority conclusion congress powerless make suable cases mentioned text eleventh amendment instead hans provides affirmative support view congress may create jurisdiction private causes action unconsenting brought citizens true underlying jurisdictional statute involved case seminole tribe florida florida purport direct federal courts ignore state sovereign immunity underlying jurisdictional statute discussed hans judiciary act however unlike hans case congress virtue indian gaming regulation act affirmatively manifested intention invest courts jurisdiction beyond limits set forth general jurisdictional statute contrast hans involved implied cause action based directly constitution act constituted sole indication whether congress intended jurisdiction extend suit unconsenting state given nature cause action involved hans well terms underlying jurisdictional statute decision apply seminole tribe florida florida doctrine sovereign immunity case clearly control outcome reasons may support federal hesitancy construe judicially crafted constitutional remedy narrowly respect state sovereignty bear whether congress may preclude state invocation defense expressly establishes federal remedy violation federal right one ever suggested congress powerless displace immunity doctrines recognized appropriate defenses certain federal claims judicially fashioned bivens remedy see mitchell forsyth harlow fitzgerald similarly cases recognizing qualified officer immunity actions rest conclusion passing statute congress intend displace immunity officers retained suits premised solely general jurisdictional statute see tower glover reason federal common law officer immunity congress meant incorporate contrary state immunity applies cases see martinez california reason congress undoubted power displace immunities either greater lesser power displace sovereign immunity defense precedents state sovereign immunity doctrine rests fundamental constitutional postulates partakes jurisdictional aspects rooted article iii see ante notably reasoning underlies holding principality monaco mississippi monaco inapt precedent majority holding today case barred foreign sovereign suing state equitable state law action seminole tribe florida florida recover payments due state bonds however involve claim based federal law instead case concerned purely state law question state interposed federal defense principality monaco mississippi thus monaco reveals little power congress create private federal cause action remedy state violation federal law moreover although monaco attributes status sovereign immunity even cases covered eleventh amendment plain text characterization constitute precedent proposition congress powerless displace state immunity abstention doctrines roots tenth amendment article iii thus may said rest constitutional postulates partake jurisdictional aspects yet thought constitution prohibit congress barring federal courts abstaining majority offers reason making federal rule sovereign immunity less susceptible congressional displacement rule regard note monaco analogized sovereign immunity prudential doctrine controversies identified article iii must justiciable order heard federal courts justiciability doctrine prudential rather jurisdictional one thus congress clearly expressed intention create federal jurisdiction particular article iii controversy necessarily strips federal courts authority decline jurisdiction justiciability grounds see allen wright stevens dissenting flast cohen seminole tribe florida florida reason monaco terms fails resolve question us generally quite startling learn reasoning hans monaco even assuming undermine majority view stare decisis effect question whether congress possesses authority provide federal forum vindication federal right citizen state light development line jurisprudence see atascadero state hospital scanlon hoffman connecticut dept income maintenance thought hans monaco least left open question whether congress permit suit consider cases unintelligible hans monaco already established congress lacked constitutional power make suable federal individuals matter clear intention seminole tribe florida florida finally particular nature federal question involved hans renders majority reliance upon rule even less defensible hans deduced rebuttable presumption favor sovereign immunity largely basis extensive analysis cases holding sovereign forced make good debts via private suit see louisiana jumel hagood southern ayers hans like cases involved suit attempted make state honor debt holding need read stand even relatively limited proposition presumption favor sovereign immunity cases hans plaintiff asserted contracts clause claim state thus asserted federal right show louisiana impaired federal obligation however hans first demonstrate state entered enforceable contract matter state law hans chose bring claim federal contract clause action change fact bottom seeking enforce contract state see burnham taming eleventh amendment without overruling hans louisiana case res rev hans claimed federal right arise independently state law sovereign immunity relevant threshold question whether valid contract existed hans expressly pointed seminole tribe florida florida however individual show enforceable contract state law barred bringing suit federal prevent state impairing avoid misapprehension may proper add although obligations state rest performance upon honor good faith made subject judicial cognizance unless state consents sued comes yet property rights enjoyed grant contract made state wantonly invaded whilst state compelled suit perform contracts attempt part violate property rights acquired contracts may judicially resisted law impairing obligation contracts property rights held void powerless effect enjoyment hans louisiana seminole tribe florida florida view rule hans substantive jurisdictional comports hamilton famous discussion sovereign immunity federalist papers hamilton offered view federal judicial power extend suits unconsenting context contention contract state enforceable state desire argue state immunity suit federal absolute color pretend state governments adoption plan convention divested privilege paying debts way free every constraint flows obligations good faith contracts nation individuals binding conscience sovereign pretensions compulsive force confer right action independent sovereign federalist rossiter ed iii reaching conclusion constitution prevent congress making state florida suable federal violating one statutes emphasize agree majority cases judicial power extend either within category defined article iii within category withdrawn article iii eleventh seminole tribe florida florida amendment congress lacks power confer jurisdiction federal courts previously insisted statute amend constitution pennsylvania union gas therefore misleading fitzpatrick bitzer imply fourteenth amendment authorized congress confer jurisdiction cases withdrawn article iii eleventh amendment action brought connecticut citizens officials state connecticut jurisdiction precluded eleventh amendment justice brennan pointed concurrence congressional authority enact provisions issue case found commerce clause provided sufficient basis refusing allow state avail nonconstitutional ancient doctrine sovereign immunity opinion concurring judgment confronting question whether federal grant jurisdiction within scope article iii limited eleventh amendment see reason distinguish among statutes enacted pursuant power granted congress regulate commerce among several indian tribes art cl power establish uniform laws subject bankruptcy art cl power promote progress science arts granting exclusive rights authors inventors art cl power enforce provisions fourteenth amendment indeed provision constitution language anywhere constitutional text authorizes congress expand borders article iii jurisdiction limit coverage eleventh amendment holdings fitzpatrick bitzer pennsylvania union gas seminole tribe florida florida unquestionably establish however congress power deny officials right rely nonconstitutional defense sovereign immunity action brought one citizens opinions latter case demonstrate legitimate disagreement whether congress intended particular statute authorize litigation state nevertheless squarely held commerce clause adequate source authority private remedy rather novel rejection doctrine stare decisis today demeans holding repeatedly describing plurality decision justice white deem necessary set forth reasons vote justice souter opinion today demonstrates arguments support justice white position patent powerful actual vote accorded full respect indeed far significant plurality character three opinions supporting holding union gas fact issue confronted today squarely addressed total justices cast votes plurality fundamental error continues lead astray failure acknowledge modern embodiment ancient doctrine sovereign immunity absolutely nothing limit judicial power contained eleventh amendment stevens concurring rests seminole tribe florida florida rather concerns federalism comity merit respect nevertheless cases one us subordinate plenary power congress iv noted purpose deciding case necessary question wisdom decision hans louisiana given absence precedent dramatic application sovereign immunity doctrine today nevertheless appropriate identify questionable heritage doctrine suggest valid reasons limiting even rejecting doctrine altogether rather expanding except insofar incorporated text eleventh amendment doctrine entirely product law three features english ancestry make particularly unsuitable incorporation law democratic nation first assumption supported belief king wrong always absurd bloody path trod english monarchs reached throne demonstrated fictional character assumption even fiction acceptable britain recitation declaration independence wrongs committed george iii made proposition unacceptable side atlantic second centuries ago belief monarch served divine right made appropriate assume redress wrongs committed sovereign exclusive province still higher authority justification rule immunized sovereign suit secular tribunal seminole tribe florida florida might acceptable jurisdiction particular faith endorsed government give rise skepticism concerning legitimacy comparable rules society constitutional wall separates state church third society noble birth justify preferential treatment might unseemly allow commoner hale monarch justice wilson explained foreign justification nation principles see chisholm georgia moreover chief justice marshall early laid rest view purpose eleventh amendment protect state dignity cohens virginia wheat purpose explained far practical motive maintain sovereignty state degradation supposed attend compulsory appearance tribunal nation may inferred terms amendment must ascribe amendment cause dignity state difficulty finding cause inhibited commencing suit state prosecuting one might commenced adoption amendment persons might probably creditors much reason fear foreign sister creditors considerable amount reason retain jurisdiction cases might essential preservation peace ibid seminole tribe florida florida moreover find unsatisfying justice holmes explanation sovereign exempt suit formal conception obsolete theory logical practical ground legal right authority makes law right depends kawananakoa polyblank explained justice holmes justification fails least two respects first nothing restatement obvious proposition citizen may sue sovereign unless sovereign violated citizen legal rights explain application immunity defense cases like chisholm assumed plaintiff rights fact violated cases course ones immunity defense needed second holmes statement purport explain general grant jurisdiction federal courts treated adequate expression sovereign consent suits well suits ordinary litigants stevens justice irrelevant nw rev seminole tribe florida florida country sovereignty individual subordinate citizenry state law federal sovereign reason justice holmes explanation rule allows state avoid suit courts even speak question whether congress able authorize federal provide private remedy state violation federal law view neither majority opinion today earlier opinion member identified acceptable reason concluding absence state consent sued federal affect power congress authorize federal courts remedy violations federal law officials actions covered eleventh amendment explicit text persuaded justification permanently enshrining law sovereign immunity recognize federalism concerns even interest protecting solvency work chisholm hans may seminole tribe florida florida well justify grant immunity federal litigation certain classes cases grant however product reasoned decision policymaking branch government conclude shibboleths iterated reiterated judges take precedence deliberations congress simply irresponsible fortunately somewhat fortuitously jurisdictional problem unmentioned may deprive opinion precedential significance indian gaming regulatory act establishes unique set procedures resolving dispute tribe state adversary adamantly adheres understanding law district determines state inflexibility constitutes failure negotiate good faith state thereafter continues insist acting within rights maximum sanction impose order refers controversy member executive branch government resolution appeals interpreted act final disposition available even though action state governor may maintained tell us whether agrees disagrees disposition judgment extremely doubtful obviously dispensable involvement judiciary intermediate stages procedure begins ends executive branch proper exercise judicial power see gordon appx opinion taney ferreira may well follow misguided opinion today majority nothing seminole tribe florida florida advisory character whether better reasoning justice souter far wiser far scholarly opinion surely law one day reasons well set forth justice souter opinion respectfully dissent see pennsylvania union gas holding federal may order state pay costs pursuant comprehensive environmental response compensation liability act merchants grain holding eleventh amendment bar bankruptcy issuing money judgment state bankruptcy code chavez arte publico press holding state university sued federal infringing author copyright conclusion suits may brought federal also incompatible cases concluding state entities may sued antitrust violations see goldfarb virginia state bar federal courts exclusive jurisdiction cases arising federal laws majority conclusion eleventh amendment shields sued federal suggests persons harmed state violations federal copyright bankruptcy antitrust laws remedy see harris kenny eleventh amendment jurisprudence atascadero coming clash antitrust copyright causes action federal courts exclusive jurisdiction emory justice iredell read judiciary act incorporated common law even conclude congress make order override common law recognition sovereign immunity actually limited conclusion narrower question whether action assumpsit lie state distinguished general question whether state ever sued chisholm georgia recognized england certain judicial proceedings inconsistent sovereignty may take place crown action assumpsit lie often found great deal confusion arise taking large view ibid two sentences end lengthy opinion justice iredell stated view constitution permit compulsive suit state recovery money light justice iredell express statement question propriety individual action assumpsit state action course results money judgment see supra dicta understood state general view constitution bars suits unconsenting moreover even limited question whether constitution permits actions money judgments justice iredell took pains reserve ultimate judgment chisholm georgia thus nothing justice iredell two sentences dicta provides basis concluding congress lacks power authorize suit nonmonetary relief issue respect chisholm georgia seminole tribe florida florida understood piece debate judicial power famously joined martin hunter lessee wheat argument centered whether congress power limit seemingly expansive jurisdictional grant article iii conferred whether article iii provided relevant limitation contention article iii withdrew georgia sovereign immunity special force precisely chisholm involved action premised original jurisdiction article iii leaves congress establish lower federal courts make exceptions appellate jurisdiction specifically mandates shall vested original jurisdiction actions state shall party article iii light language chisholm majority conclusion constitutional obligation take jurisdiction suits implausible remembered time chisholm general fear justice iredell termed innovating spirit federal judiciary see beveridge life john marshall discussing consternation federal courts creation felonies engendered thus good reason believe reaction chisholm reflected popular hostility federal judiciary desire restrain national legislature course even eleventh amendment applies cases brought citizen another state express terms pose bar federal assuming jurisdiction case brought plaintiff pursuant congress express authorization precisely posture suit us also precisely posture suit issue pennsylvania union gas need decide whether congress barred authorizing plaintiffs enforce federal rights federal fact justice brennan left open question dissent atascadero state hospital scanlon brennan dissenting prepared embark defensible interpretation eleventh amendment consistent history purposes question whether amendment bars admiralty suits noncitizen alien state open ibid plain text eleventh amendment note seminole tribe florida florida appear basis conclusion may consent jurisdiction actions brought foreign citizens view permitted consent jurisdiction federal case poses federal question see owen equipment erection kroger sosna iowa california larue american fire casualty finn mitchell maurer jackson ashton pet however construed amendment despite text apply unconsenting see clark barnard course left congress determine whether federal courts entertain claim state federal departure text expand class plaintiffs eleventh amendment bar applies however limit congress authority exercise considered judgment propriety jurisdiction absence textual warrant imposing broad limitation legislative branch counsels extratextually imposing one dissent pennsylvania union gas justice scalia contended existence judiciary act time hans requires one accept gossamer distinction cases congress assertedly sought eliminate state sovereign immunity pursuant powers create organize courts cases assertedly sought pursuant powers order conclude spite hans congress may authorize federal courts hear suit unconsenting state rely gossamer distinction congress authority withdraw sovereign immunity cases covered eleventh amendment various powers nothing hans contrary passage quoted demonstrates hans merely concluded congress enacting judiciary act manifest desire withdraw state sovereign immunity sufficient clarity overcome countervailing presumption therefore rely distinction statute clearly directs federal courts entertain suits one us statute judiciary act light repeated application rule eleventh amendment cases hans onward surprised learn distinction thin acceptable indeed extent reasoning monaco premised ground contrary ruling might permit foreign governments indirectly frustrate congress treaty power principality monaco mississippi opinion suggests outcome quite different congress expressly authorized suits foreign governments individual part administration foreign policy moreover unnecessarily burdened congress example deciding congress made sufficiently explicit intention withdraw state sovereign immunity defense certain bankruptcy actions see hoffman connecticut dept income maintenance congress understandably concluded correct confusion amending relevant statute make intentions override defense unmistakably clear see merchants grain congress doubt surprised learn exercise legislative clarification undertook benefit naught constitution makes significantly chief justice marshall understood eleventh amendment bar designed primarily protect sued debts see cohens virginia wheat significantly many cases decided hans recognized state sovereign immunity involved claims seminole tribe florida florida premised breach rights rooted state law see ford motor department treasury great northern life ins read smith reeves cases application immunity appears simply foreshadow follow rule erie railroad tompkins demark limits article iii significant justice souter opinion makes perfectly clear justice ginsburg justice breyer consider necessary rely holding union gas support conclusion find today decision particularly unfortunate failure advance acceptable reason refusing adhere precedent upon congress well courts entitled rely see stevens justice irrelevant nw law rev interestingly passage demonstrates application common law sovereign immunity defense principality monaco mississippi quite probably justified foreign state sued state substantial creditor thus implicated purpose eleventh amendment hans louisiana first case held state sued federal one citizens comment interest necessary enter upon examination reason expediency rule exempts sovereign state prosecution justice suit individuals fully discussed writers public law enough us declare existence seminole tribe florida florida justice souter justice ginsburg justice breyer join dissenting holding state florida immune suit indian gaming regulatory act today holds first time since founding republic congress authority subject state jurisdiction federal behest individual asserting federal right although invokes eleventh amendment authority proposition sense amendment might claimed pertinent tolerantly phrased justice stevens concurring opinion pennsylvania union gas stevens concurring explained come two eleventh amendments one ratified invented nearly century later hans louisiana justice stevens saw second eleventh amendment bar exercise congressional authority commerce clause providing suits federal question individuals state say canvass matter believe entirely correct view reasons given position course also holding union gas seminole tribe florida florida overrules repudiates fault find majority today decision reexamine union gas case produced majority single rationale supporting congressional authority instead part company convinced decision fundamentally mistaken reason respectfully dissent useful separate three questions whether enjoyed sovereign immunity sued courts period prior ratification national constitution whether ratification entitled claim immunity sued federal exercising jurisdiction either suit state litigant citizen issue case raised federal question whether state sovereign immunity recognized federal may abrogated congress answer first question clear although framers assumed enjoy immunity courts second question debated time ratification except diversity jurisdiction unanimity due course chisholm georgia seminole tribe florida florida dall answered state defendant enjoyed immunity federal question jurisdiction state sovereign immunity seems debated prior ratification silence probably showing general understanding time immunity cases adoption eleventh amendment soon changed result chisholm mentioning sovereign immunity eliminating diversity jurisdiction cases state defendants explain eleventh amendment affect federal question jurisdiction notion needs understood light casts soundness hans holding enjoy sovereign immunity federal question suits hans erroneously assumed state plead sovereign immunity noncitizen suing federal question jurisdiction reason held state must enjoy protection suit one citizens error hans reasoning underscored clear inconsistency founders hostility implicit reception doctrine federal law founders conception sovereign power divided national government sake practical objectives answer today third question likewise odds founders view common law received new american legal systems always subject legislative amendment ignoring reasons pervasive understanding time ratification holding nontextual rule limits clear grant congressional power article follows course brought grief history promises beyond third question elicits today holding seminole tribe florida florida one issue reach result must hold hans doctrine outside reach congress must also displace doctrine ex parte young officer government may ordered prospectively follow federal law cases government may sued directly none reasons displacing young jurisdictional doctrine withstand scrutiny doctrine sovereign immunity comprises two distinct rules always separately recognized one rule holds king crown font law bound law provisions provides king crown font justice subject suit courts see jaffe suits governments officers sovereign immunity harv rev one rule limits reach substantive law jurisdiction courts concerned latter rule took form high middle ages least early thirteenth century reign henry iii seminole tribe florida florida recognized king sued courts jacobs eleventh amendment sovereign immunity see also blackstone commentaries jaffe supra time bracton settled doctrine king sued eo nomine courts significance doctrine nascent american law less clear however early development steady endurance england might suggest colonial governments may enjoyed immunity jacobs supra scope even existence governmental immunity america remains disputed see gibbons eleventh amendment state sovereign immunity reinterpretation colum rev whatever scope sovereign immunity might colonies however period confederation proposal establish national government constitution drafted presented prospect unknown common law prior american experience become parts system sovereignty even domestic matters divided parcelled nation latter invested judicial power right prevail whenever respective substantive laws might conflict prospect mind constitution might addressed state sovereign immunity eliminating whatever sovereign immunity previously matter subject federal law jurisdiction recognizing analogue old immunity new context federal jurisdiction subject abrogation matter within jurisdiction enshrining doctrine inviolable state sovereign immunity seminole tribe florida florida text thereby giving constitutional protection new federal jurisdiction see field eleventh amendment sovereign immunity doctrines part one rev draft fact said nothing subject silence occasioned though apparently widespread dispute among framers others whether ratification constitution preclude state sued federal asserting sovereign immunity done matter nonfederal law litigated courts come us discussion gave attention congressional power proposed article focused entirely limits judicial power provided article iii although jurisdictional bases together constituting judicial power national courts section article iii included questions arising federal law cases individuals citizens upon latter diversity provisions preratification questions state immunity suit liability centered seminole tribe florida florida later discussion canvass details debate among framers leaders time see infra enough say consensus issue see atascadero state hospital scanlon brennan dissenting nevada hall jacobs supra legislative history constitution hardly warrants conclusion drawn general understanding time ratification retain sovereign immunity contrary clear disagreement left fester ratification period resolved thereafter one point however also clear debate addressed question whether ratification constitution diversity cases without abrogate state sovereign immunity allow application record anyone argued third option mentioned constitution affirmatively guarantee state sovereign immunity congressional action contrary apparent justification argument since clause proposed ratified constitution even much suggested position may reasonable contend see madison marshall hamilton article iii alter immunity despite unqualified grant jurisdiction seminole tribe florida florida diversity suits textual support contending article iii provision constitutionalize state sovereign immunity one uttered contention argument among framers friends sovereign immunity federal diversity cases event short lived ended chisholm georgia dall chose constitutional alternatives abrogation recognition immunity enjoyed common law majority adopted reasonable although compelled interpretation first two diversity clauses abrogated purposes federal jurisdiction immunity might enjoyed courts georgia accordingly held subject judicial power assumpsit action south carolina citizen suing collect debt case also seminole tribe florida florida settled implication question possibly recognizing state sovereign immunity actions depending federal question arising head jurisdiction well constitutional text federal question jurisdiction devoid immunity language diversity time chisholm influence general immunity might interpretive force construing constitutional seminole tribe florida florida language presumably greater addressing federal question language article iii diversity clauses see sherry eleventh amendment stare decisis overruling hans louisiana chi rev although justice iredell dissent chisholm seems times reserve judgment called third question whether congress authorize suits chisholm supra iredell dissenting argument largely devoted stating position taken several federalists state sovereign immunity cognizable diversity clauses state immunity somehow invisibly codified independent constitutional defense justice stevens persuasively explains greater detail ante justice iredell dissent focused construction judiciary act article iii see also orth truth justice iredell dissent chisholm georgia rev odd focus believed congress lacked constitutional authority impose liability instead justice iredell view sued diversity retained sovereignty special act legislation controls force state existed england unaltered statute time first settlement country least circumstances might held liable authority liability depend upon laws passed constitution conformity ibid finding congressional action abrogating seminole tribe florida florida georgia immunity justice iredell concluded state liable suit eleventh amendment course repudiated chisholm clearly divested federal courts jurisdiction cases state parties judicial power shall construed extend suit law equity commenced prosecuted one citizens another state citizens subjects foreign state seminole tribe florida florida history structure eleventh amendment convincingly show reaches suits subject federal jurisdiction exclusively diversity clauses precisely tracking language article iii providing diversity jurisdiction text amendment suggest common sense diversity clauses addressed framers meant amendment bar federal question suits well seminole tribe florida florida made intentions clearer easily simply adopted first proposal introduced house representatives theodore sedgwick massachusetts instructions legislature commonwealth provisions exactly expansive effect state shall liable made party defendant judicial courts established shall established authority suit person persons whether citizen citizens foreigner foreigners body politic corporate whether within without gazette seminole tribe florida florida congress took action sedgwick proposal however amendment ultimately adopted two years later hardly meant limit federal question jurisdiction never left open federal question suits citizens sure majority state creditors citizens nothing treaty prevented foreign creditors selling debt instruments thereby assigning claims citizens debtor state framers eleventh amendment meant immunize federal question suits like might brought enforce treaty paris surely drafted amendment differently see fletcher diversity explanation eleventh amendment reply critics chi rev accordingly come surprise weightiest commentary following amendment adoption described simply constricting scope diversity clauses cohens virginia wheat instance chief justice marshall writing emphasized amendment effect federal courts jurisdiction grounded arising provision article iii concluded case arising constitution laws cognizable courts union whoever may parties case point eleventh amendment seminole tribe florida florida according cohens bar jurisdiction suits common law revolutionary war debt creditors strip government means protecting instrumentality courts constitution laws active violation treatment amendment osborn bank wheat effect amendment held bar action state seeking return unconstitutional tax eleventh amendment constitution exempted state suits citizens aliens marshall stated omitting reference cases arise constitution federal law good sense early construction amendment affecting diversity jurisdiction virtue making sense repeated exercise appellate jurisdiction federal question suits brought courts exercising appellate jurisdiction cases patent error eleventh amendment limited federal question jurisdiction amendment unconditional language shall construed makes distinction trial appellate jurisdiction yet seminole tribe florida florida entertained appellate cases even brought state name private plaintiff money damages see commonwealth edison montana minneapolis star tribune minnesota revenue best explanation practice belongs chief justice marshall eleventh amendment bars suits sole basis federal jurisdiction diversity citizenship see atascadero state hospital scanlon brennan dissenting jackson eleventh amendment state sovereign immunity yale sum reading eleventh amendment solely limit diversity jurisdiction virtue coherence practice views john marshall history amendment drafting allusive language today majority appear disagree least insofar constitutional text concerned concedes text amendment appear restrict article iii diversity jurisdiction federal courts ante seminole tribe florida florida thus regardless two plausible readings one adopts point note possible argument eleventh amendment terms deprives federal courts jurisdiction citizen lawsuits even advances proposition textual basis plaintiffs seminole tribe florida florida today case citizens state suing eleventh amendment simply apply must therefore look elsewhere source immunity says suit barred federal seminole tribe florida florida ii obvious place look elsewhere course hans louisiana hans indeed leap direction today holding even though take way parties hans raised case answered called second question whether constitution without permits state plead sovereign immunity bar exercise federal question jurisdiction see although invoked principle sovereign immunity cure took eleventh amendment anomaly barring state suits brought noncitizen plaintiffs hans occasion consider whether congress abrogate background immunity statute indeed except special circumstance congress power enforce civil war amendments question never came union gas intimations answer prior cases mere dicta union gas held immunity recognized hans constitutional status subject congressional abrogation today overrules union gas holds opposite deciding choose two positions place begin hans holding principle sovereign immunity derived common law insulates state federal question jurisdiction suit citizen critical examination case show wrongly decided virtually every recent seminole tribe florida florida commentator concluded follows step today constitutionalizing hans rule abrogation congress compounds immensely magnifies mistake hans takes place historic examples textually untethered elevations judicially derived rules status inviolable constitutional law louisiana plaintiff hans held bonds issued state like virtually southern issued substantial amounts reconstruction era finance public improvements aimed stimulatinl industrial development foner reconstruction america unfinished revolution pp gibbons colum reconstruction governments collapsed however regimes sought repudiate debts hans litigation arose louisiana attempt renege bond obligations hans sued state federal asserting state default amounted impairment obligation contracts violation contract clause affirmed dismissal suit despite fact case fell within federal arising federal question jurisdiction justice bradley opinion purport hold terms either article iii eleventh amendment barred suit ancient doctrine sovereign immunity inspired adoption eleventh amendment applied cases beyond amendment scope otherwise within seminole tribe florida florida federal question jurisdiction indeed bradley explicitly admitted true amendment read permit hans suit reason ground abating suit might maintainable hans elected nonetheless recognize broader immunity doctrine despite want textual manifestation described anomaly resulted otherwise eleventh amendment according barred federal question suit noncitizen state subject federal jurisdiction citizen behest state accordingly held free resist suit without consent might grant withhold pleased hans thus addressed issue implicated though directly raised preratification debate diversity clauses implicitly settled chisholm whether state sovereign immunity cognizable federal courts exercise federal question jurisdiction according hans contrary chisholm hans held federal legislation purporting pierce state immunity issue fairly said hans held state sovereign immunity attained constitutional status immunizing abrogation taking hans far holding vulnerability apparent rested opinion avoiding supposed anomaly recognizing jurisdiction entertain citizen federal question suit one brought noncitizen see hans supra however anomaly already explained federal question cases touched eleventh amendment question cases touched seminole tribe florida florida eleventh amendment leaves state open federal question suits citizens noncitizens alike hans massachusetts eleventh amendment barred action louisiana although thus anomaly cured hans case certainly created anomaly leaving federal courts entirely without jurisdiction enforce paramount federal law behest citizen state broke destroyed congruence judicial power article iii substantive guarantees constitution provisions statutes passed congress exercise power article state injured individual violation federal law federal forum provide direct relief absent alternative process vindicate federal law see part iv infra john marshall saw consequences anomaly early republic took consequence good evidence framers never intended scheme different may entertain different opinions true construction constitutional powers congress know one time assumption debts contracted several war revolution deemed unconstitutional may legislate conformity opinions may enforce opinions penalties hazarding much assert judicatures exempt prejudices legislatures people influenced constitute perfectly impartial tribunals many judges dependent office salary legislature constitution furnishes security universal adoption principle seminole tribe florida florida observe importance constitution attaches independence judges less inclined suppose intended leave constitutional questions tribunals independence may exist cohens virginia result threatened basis principle much mentioned constitution difficult understand history provides explanation already said hans one episode long story debt repudiation former confederacy end reconstruction turning point favor came compromise republican party agreed effectively end reconstruction withdraw federal troops south return southern acquiescence decision electoral commission awarded disputed presidential election rutherford hayes see orth judicial power eleventh amendment american history gibbons colum see generally foner reconstruction describing events aftermath troop withdrawal course left federal judiciary effectively without power resist rapidly coalescing repudiation movement gibbons colum contract clause suits like one brought hans thus presented draconian choice repudiation inviolable constitutional doctrines humiliation seeing political authority compromised judgments met resistance hostile state governments indeed louisiana brief hans unmistakably bore witness inability enforce judgment recalcitrant state solemn obligation government arising acknowledged seminole tribe florida florida bond enhanced judgment rendered bond either make provision paying bond probable make provision satisfying judgment brief respondent given likelihood judgment state enforced wholly surprising hans found way avoid certainty state contempt seminole tribe florida florida history explains honor hans ultimate demerit case centers however politics legal errors rested considering errors necessary seminole tribe florida florida address contention subsequent cases read hans begin background principl sovereign immunity constitutional stature therefore unalterable congress majority dispute point hans louisiana occasion decide whether congress abrogate state immunity federal question suits insists however negative answer question finds hans subsequent opinions mere obiter dicta rather rationale upon based results earlier decisions ante exact rationale majority refers unfortunately easy discern opinion says immediately discussion stare decisis century grounded decisions understanding state sovereign immunity essential part eleventh amendment ante rationale though repeatedly acknowledged eleventh amendment standing alone bar federal question suit state brought state citizen see edelman jordan acknowledging amendment terms bar suits state citizens indeed noted seminole tribe florida florida justice bradley opinion hans conceded hans might successfully pursued claim reason ground amendment abating suit hans rather held suit barred nonconstitutional immunity see supra rationale majority seeks invoke think nearly stated quotation principality monaco mississippi said rest mere literal application words article iii assume letter eleventh amendment exhausts restrictions upon suits statemen certainly true hans clearly recognized principle sovereign immunity broader seminole tribe florida florida eleventh amendment ordinarily bar federal question suits nonconsenting state rationale sufficient decide hans progeny prior union gas leaving aside indefensibility rationale address far went majority however read rationale hans line subsequent cases answering question whether postulate sovereign immunity limit control exercise article iii jurisdiction monaco supra constitutional stature therefore unalterable congress true statements cases point toward conclusion see pennhurst state school hospital halderman short principle sovereign immunity constitutional limitation federal judicial power established art iii ex parte new york entire judicial power granted constitution embrace authority entertain suit brought private parties state without consent given statements however dicta classic sense sheer speculation happen cases weakness seminole tribe florida florida statements counterbalanced many opinions either stated immunity principle without see dellmuth muth noting unconsenting state immune liability damages suit brought federal one citizens without suggesting immunity unalterable congress suggested hans immunity constitutional stature language quoted majority monaco example likens state sovereign immunity essential postulates rules justiciability many rules justice stevens points prudential nature therefore unalterable congress see ante generally proponents theory repeatedly referred state sovereign immunity background principle ante postulate nevada hall rehnquist dissenting implicit limitation welch texas dept highways public scalia concurring part concurring judgment resting seminole tribe florida florida inherent nature sovereignty great northern life ins read rather explicit constitutional provision whatever set quotations one may prefer taking heed jurisprudential creations assessing contents federal common law different thing reading founding document damning evidence theory hans rests broad rationale immunity unalterable congress however proven tendency disregard dicta cases dicta mattered indeed true private suits permitted article iii virtue understanding represented eleventh amendment union gas scalia concurring part dissenting part hard see state sovereign seminole tribe florida florida immunity may waived may abrogated congress see atascadero state hospital scanlon recognizing immunity may waived consent party instances wholly insufficient create jurisdiction otherwise exist see sosna iowa see also chemerinsky federal jurisdiction ed noting allowing waivers seems inconsistent viewing eleventh amendment restriction federal courts subject matter jurisdiction likewise broad theory immunity runs doubly afoul appellate jurisdiction problem noted earlier rejecting interpretation eleventh amendment text bar federal question suits see supra whole sum judicial power granted constitution embrace authority entertain suit brought citizen state without consent duhne new jersey consent suit state sufficient show consent federal see atascadero supra article iii hardly permit exercise appellate jurisdiction issues federal law arising lawsuits brought courts however quite rightly ignored dicta sort case exercised jurisdiction plain text article iii provides see fulton faulkner see also supra examples enough distinguish hans rationale doctrine sovereign immunity dicta indicating immunity constitutional one need consider final set cases assumed without deciding congressional power seminole tribe florida florida abrogate state sovereign immunity exists even fourteenth amendment application majority willing make assumption hoffman connecticut dept income maintenance plurality opinion welch texas dept highways public supra plurality opinion county oneida oneida indian nation although cases failed find abrogation lack clear statement congressional intent assumption power available hardly permissible time today majority view law firmly established one thing avoid open constitutional question assuming answer rejecting claim another ground quite another avoid settled rationale emphatically settled one majority taken seriously reach issue statutory construction otherwise decide even worse unaware decision cases like hoffman welch ground statutes issue lacked plain statement intent abrogate invite congress attempt abrogation statutes like indian gaming regulatory act et seq igra course wholly irresponsible majority claims constitutionally unalterable nature hans seminole tribe florida florida immunity well established hundred years hans recognized observation prior case unnecessary decision sense extra judicial outweigh present reasoning points different conclusion good advice members today majority willing heed occasions see kokkonen guardian life ins slip holdings cases rather dicta must attend bennis michigan slip disregards norm today must consider soundness hans original recognition background principle sovereign immunity applies even federal question suits reasons counsel extension hans holding point rendering immunity unalterable congress iii three critical errors hans weigh constitutionalizing holding majority today first already seen hans misread eleventh amendment see supra also misunderstood conditions doctrines received rejected time founding fundamentally mistook nature sovereignty young republic supposed entail state immunity federal question jurisdiction federal matter stare decisis overrule hans today understanding failings points show today simply compounds already serious error taking hans step investing rule constitutional inviolability considered judgment congress abrogate seminole tribe florida florida dispute doctrine sovereign immunity hans purported apply origins familiar doctrine common law siren derived laws practices english ancestors lee although seminole tribe florida florida statutes came affect importance succeeding centuries doctrine never reduced codification americans took understanding immunity doctrine blackstone see blackstone commentaries laws england ch mother country remained rule see generally jaffe harv borchard governmental responsibility tort vi yale fact doctrine status period covering founding later adoption eleventh amendment raised warning flag hans today although persistently assumed common law presence minds early framers must functioned limitation understanding new nation constitutional powers turns one characteristics founding generation contrary joinder appreciation immediate powerful heritage caution settling inheritance political systems new republic framers failed see children common law one contemporaries put live midst common law inhale every breath imbibe every pore learn another system laws without learning time another language du ponceau dissertation nature extent jurisdiction courts still clear adoption english common law america taken granted exact manner extent common law reception subject careful consideration courts legislatures seminole tribe florida florida new examination experience reception shed light subsequent theory practice national level demonstrate history entirely odds hans resort principle limit constitution contrary text american reluctance import english common law wholesale new world traceable early colonial period one scholar time written process may call reception english common law colonies simple legal theory lead us assume general legal conceptions conditioned terminology derived common law early colonists far applying technical system often ignored denied subsidiary force consciously departed many essential principles reinsch english common law early american colonies variety reasons including absence trained lawyers judges dearth law seminole tribe florida florida books religious ideological commitments early settlers novel conditions new world colonists turned variety sources addition principles common law true development colonial society increasing sophistication colonial bar english common law gained increasing acceptance colonial practice see reinsch supra hall common law account reception vand rev even late colonial period americans insisted whole body common law transplanted much applicable colonists new relations conditions much common law related matters purely local existed english political organization based upon triple relation king lords commons peculiar social conditions habits customs counterpart new world portions common law applicable new seminole tribe florida florida conditions colonists never recognised part jurisprudence dale adoption common law american colonies reg understandably even trend toward acceptance common law developed late colonial period imperiled revolution ultimate break colonies old country dean pound observed generation revolution political conditions gave rise general distrust english law books full illustrations hostility toward english law simply english prevailed end eighteenth earlier years nineteenth century pound formative era american law see also warren history american bar noting prejudice system english common law seminole tribe florida florida years following revolution james monroe went far write application principles english common law constitution considered good cause impeachment letter james monroe john breckenridge quoted beveridge life john marshall conflict construction sentiment difficulty according dean pound ocial geographical seminole tribe florida florida conditions contributed also make work receiving reshaping common law exceptionally difficult pound supra consequence hostility awareness changed circumstances independent continued colonists practice adopting much common law thought applicable local conditions justice story explained common law england taken respects america ancestors brought general principles claimed birthright brought adopted portion applicable seminole tribe florida florida situation van ness pacard pet john marshall expressed similar view ancestors brought laws england statute common law existing settlement colony far applicable situation letter john marshall george tucker reprinted jay ii app accordingly period following independence egislatures courts doctrinal writers test common law every point respect applicability america pound supra see also jones observing suitab ility local institutions conditions incomparably important principle reception new limited reception english common law principles appropriate american conditions draft constitution contained provision adopting common law omission stood sharp contrast state constitutions extant virtually contained explicit provisions dealing reception see infra since experience set stage thinking national level see generally wood creation american republic wood failure address notion reception inadvertent instead framers chose recognize particular concepts writ habeas corpus art cl distinction law equity amdt vii specific reference constitutional text see goebel oliver wendell holmes devise history antecedents seminole tribe florida florida beginnings pp approach reflected widespread agreement ratification entail general reception common law england see letter john marshall george tucker reprinted jay ii app believe one man found maintains common law england adopted common law america constitution jay ii noting use term laws article iii meant accomplish general reception british common law records ratification debates support marshall understanding everyone know new constitution draw common law train antifederalists like george mason went far object proposed constitution people secured even enjoyment benefit common law mason objections seminole tribe florida florida constitution government records federal convention farrand ed farrand see also elliot debates patrick henry virginia convention particular antifederalists worried failure proposed constitution provide reception great rights associated due process right jury trial jay ii argued congress powers regulate proceedings federal courts made fate procedural protections uncertain federalists met objection arguing nothing constitution necessarily excluded fundamental protections associated due process see elliot debates george nicholas virginia convention defended decision general constitutional reception common law ground constitutionalizing render immutable see edmund randolph virginia convention subject revision congress edmund pendleton virginia convention see also infra framers also recognized diverse development common law several made general federal reception impossible common law two colonies madison observed modifications materially extensively different report resolutions house delegates session concerning alien sedition laws writings james madison hunt ed alien sedition laws particular seminole tribe florida florida although little evidence regarding immunity enjoyed various colonial governments prior revolution profound differences source colonial authority chartered colonies royal colonies seems unlikely wholly apart differences circumstance given rise uniform body immunity law unified common law america federal constitution adopt jay origins federal common law part rev jay stoebuck wm mary assumption colonial law essentially colonies wholly without foundation particular probably common principle sovereign immunity cf madison supra framers may madison hamilton marshall argued contemplated federal courts respect state immunity law diversity cases generalized principle immunity today majority graft onto constitution may well never developed common clarity event shown existed finally framers aversion general federal seminole tribe florida florida reception common law evident federalists response antifederalist claim article iii granted unduly broad jurisdiction federal courts response emphasize limited powers national government see elliot debates john marshall virginia convention government power make laws every subject make laws affecting mode transferring property contracts claims citizens state go beyond delegated powers jay ii answer assumes course generalized reception english common law federal law otherwise arising jurisdiction extended subject comprehended general common law madison made assumption absolutely clear subsequent debates alien sedition acts raised issue whether framers intended recognize general federal jurisdiction try crimes rejecting idea federal reception madison insisted consequence admitting common law law authority individual obvious fatal law relates every subject legislation paramount constitutions laws admission overwhelm residuary sovereignty one constructive operation new model whole political fabric country alien sedition seminole tribe florida florida laws distressing reflect ever made question whether constitution whole face seen much labor enumerate define several objects federal power intend introduce lump indirect manner forced construction phrases vast multifarious jurisdiction involved common law law filling many ample volumes law overspreading entire field legislation law sap foundation constitution system limited specified powers alien sedition laws given refusal entertain wholesale reception common law given failure new constitution make provision adoption common law given protests already quoted general reception occurred hans today reasonably argue something like old immunity doctrine somehow slipped tacit enforceable background principle see ante evidence even specific however pervasive understanding sovereign immunity limited federal question jurisdiction seminole tribe florida florida already noted briefly see supra framers contemporaries agree place state sovereign immunity even federal jurisdiction resting diversity clauses edmund randolph argued favor ratification ground immunity recognized leaving subject jurisdiction patrick henry opposed ratification basis exactly reading see elliot debates hand james madison john marshall alexander hamilton appear believed immunity suit survive ratification article iii state disposal jurisdiction depend diversity left free enjoy traditional immunity defendants without barring exercise judicial power chose enter federal courts diversity plaintiffs waive immunity diversity defendants see madison constitution give citizen right heard federal courts state condescend party may take cognizance marshall see difficulty making seminole tribe florida florida state defendant prevent plaintiff hamilton stated federalist inherent nature sovereignty amenable suit individual without consent general sense general practice mankind exemption one attributes sovereignty enjoyed government every state union unless therefore surrender immunity plan convention remain danger intimated must merely ideal federalist pp cooke ed seminole tribe florida florida already said immediate context hamilton discussion federalist nothing federal question cases addresses suggestion assignment public securities one state citizens another enable prosecute state federal courts amount securities federalist hamilton plainly talking suit subject federal jurisdiction diversity clauses article iii general statement sovereign immunity emphasized majority follows along reference back federalist ibid hamilton draws prior paper however general conclusion state sovereignty particular point state contracts recurrence principles established satisfy us colour pretend state governments adoption plan divested privilege paying debts way free every constraint flows obligations good faith contracts nation individuals binding conscience sovereign pretensions compulsive force confer right action independent sovereign federalist seminole tribe florida florida hamilton says state amenable suit individual without consent nless surrender immunity plan convention federalist emphasis omitted immediately adds however circumstances necessary produce alienation state sovereignty discussed considering article taxation need repeated reference federalist also hamilton say alienation state sovereignty plan convention aims partial union consolidation state governments clearly retain rights sovereignty act exclusively delegated exclusive delegation rather alienation state sovereignty exist three cases constitution express terms granted exclusive authority union granted one instance authority union another prohibited exercising like authority granted authority union similar authority absolutely totally contradictory repugnant use terms distinguish last case another might appear resemble fact essentially different mean exercise concurrent jurisdiction might productive occasional interferences policy branch administration imply direct contradiction repugnancy point constitutional authority seminole tribe florida florida federalist emphasis original indeed possible tax might laid particular article state might render inexpedient thus tax laid article union imply constitutional inability impose tax quantity imposition expediency inexpediency increase either side mutually questions prudence involved direct contradiction power particular policy national state systems finance might exactly coincide might require reciprocal forbearances however mere possibility inconvenience exercise powers immediate constitutional repugnancy implication alienate extinguish right sovereignty emphasis original seminole tribe florida florida quite apart however application particular act congress exercising indian commerce power hamilton sovereignty discussion quoted places embarrassing dilemma hamilton posited four categories congressional legislation subjects committed expressly exclusively congress subjects seminole tribe florida florida state authority expressly negated subjects concurrent authority impossible contradictory repugnant subjects concurrent authority possible exercise limited considerations policy one taxing authority politically deterred adding much exaction authority already making situations involving concurrent powers like power interstate commerce see cooley board wardens port philadelphia ex rel soc relief distressed pilots recognizing power engage regulation interstate commerce congressional statute binds even creates affirmative obligation state case hamilton discussion seem cover quite possibly good political polemicist wish raise fact fair say hamilton cover situation claim authority preservation state sovereignty consequent immunity however think implausible reading one try shoehorn situation hamilton category theory concurrent authority impossible passage congressional legislation claim sovereignty consequent immunity gone entirely sum either majority reads hamilton say nothing sovereignty immunity case read say something bars state immunity claim dilemma majority reliance hamilton federalist reference either way authority position thus attempt convert isolated statements framers answers questions seminole tribe florida florida fundamentally misguided difficulty far fundamental however inconsistency particular quotation position runs afoul general theory sovereignty gave shape framers enterprise enquiry development concept demonstrates american political thought revolutionized concept sovereignty calling immunity state jurisdiction national courts sheer illogic said blatchford native village noatak entered federal system sovereignty intact surely mean entered system sovereignty claimed state assumed independent existence community nations even articles confederation allowed less see articles confederation art vi state without consent congress assembled shall send embassy receive embassy enter conference agreement alliance treaty king prince state need calculate exactly close american came sovereignty classic sense prior ratification constitution clear act ratification seminole tribe florida florida affected sovereignty way different previous political event america anywhere else adoption constitution made members novel federal system sought balance exercise sovereign prerogatives delegated people principle limited centralizing federal supremacy matter political theory federal arrangement dual delegated sovereign powers truly revolutionary turn late war see term limits thornton slip kennedy concurring federalism nation discovery framers split atom sovereignty new federal scheme appeared political theorists assumed must reside somewhere every political unit single undivided final power higher legal authority power subject law law unto bailyn ideological origins american revolution see also wood american development seminole tribe florida florida divided sovereign powers shatter ed categories government dominated western thinking centuries made possible recognition ultimate sovereignty rests people see noting none arguments joint jurisdictions coequal sovereignties convincingly refuted antifederalist doctrine indivisible sovereignty federalists succeed emphasizing power resides people fountain government citing pennsylvania federal constitution mcmaster stone eds quoting james wilson people possessing plenary bundle specific powers free parcel different governments different branches government saw fit see mcdonald novus ordo seclorum james wilson emphasized location ultimate sovereignty people meant hey distribute one portion power contracted circle called state governments also furnish another proportion government pennsylvania federal constitution supra seminole tribe florida florida scheme alexander hamilton explained follow portions powers delegated national state government sovereign regard proper objects hamilton opinion constitutionality act establish bank papers alexander hamilton syrett ed emphasis original necessary consequence view government sovereign power declared purposes trusts ibid justice iredell make observation chisholm dissent commenting sovereign powers government actually surrendered state union sovereign powers reserved point chief justice marshall description national state governments sovereign respect objects committed neither sovereign respect objects committed mcculloch maryland wheat given metamorphosis idea sovereignty years leading question whether old immunity doctrine might received something suitable new world federal question jurisdiction crucial one answer sovereign seminole tribe florida florida immunity known framers ratification thereafter became inapplicable matter logic federal suit raising federal question old doctrine barred involuntary subjection sovereign system justice law font since otherwise struck mind middle ages onward impractical absurd see kawananakoa polyblank holmes sovereign exempt suit logical practical ground legal right authority makes law right depends ratification demonstrated state governments subject superior regime law judicial system established state people specific delegation sovereign power national government paramount within delegated sphere individuals sued enforce federal rights government corresponded sovereign traditional sense state national government state seminole tribe florida florida immunity jurisdiction nation courts required grant true sovereign people constitution congress constitution empowered made similar point nevada hall considered suit state another state courts traditional explanation sovereign immunity adequately supports conclusion sovereign may sued courts without consent affords support claim immunity another sovereign courts claim necessarily implicates power authority second sovereign source must found either agreement express implied two sovereigns voluntary decision second respect dignity first matter comity state immunity federal question jurisdiction moreover run common understanding practical necessity new federal relationship according madison multiplicity mutability injustice state laws prime factors requiring formation new seminole tribe florida florida government farrand remarks madison factors madison wrote jefferson contributed uneasiness produced convention prepared public mind general reform accrued national character interest inadequacy confederation immediate objects writings james madison hunt ed concerns ultimately found concrete expression number specific limitations state power including provisions barring enacting bills attainder ex post facto laws coining money emitting bills credit denying privileges immunities impairing obligation contracts proposed constitution also dealt old problems affirmatively granting powers congress enumerated article providing supremacy clause congress preempt state action areas concurrent state federal authority given framers general concern curbing abuses state governments amazing scheme delegated powers embodied constitution left national government powerless render judicially accountable violations federal rights course framers understand scheme leave government powerless federalist hamilton observed man sense believe prohibitions running scrupulously regarded seminole tribe florida florida without effectual power government restrain correct infractions authority federal courts might manifest contravention articles union convention preferred remedy speaking plural authority federal courts hamilton made clear envisioned exercise appellate jurisdiction review federal questions decided state courts plausible thinking merely suits brought national government federalist authors describe paternalistic terms pass without eyebrow raised today hamilton power government restrain violations citizens rights power exercised federal courts citizens behest see also marshall harv discussing framers concern preserving much state accountability possible even course enacting eleventh amendment sketch logic objectives new federal order confirmed previously seen preratification debate state sovereign immunity turn becomes entirely intelligible addressed ignored understandable reasonable minds differed applicability immunity doctrine suits made federal original diversity clauses features wholly novel course courts new purposes paramount national government law implicated largely old common law case federal law foolish therefore ask whether old law brought old defenses equally understandable questions seem raised state sovereign immunity federal question cases seminole tribe florida florida idea federal question depended rejection simple concept sovereignty immunity doctrine developed english common law question immunity system layered sovereignty simply arisen jay ii du ponceau dissertation nature extent jurisdiction courts framers principal objectives rejecting english theories unitary sovereignty moreover impeded new concept sovereign immunity taken place federal question cases substantially thwarted new immunity held untouchable congressional effort abrogate seminole tribe florida florida today majority discounts concern without citing single source contrary dismisses historical evidence regarding framers vision relationship national state sovereignty reassures us nation survived nearly two centuries without question existence abrogation power ever presented ante concerned survival nation opportunity citizens enforce federal rights way congress provides absence general federal question statute nearly century following ratification article iii brief exception hardly counts importance jurisdiction either framers conception current reality likewise fact congress often seen fit use power abrogation outside fourteenth amendment context least compel conclusion power important federal scheme end plausible contend plan convention seminole tribe florida florida meant leave national government without way render individuals capable enforcing federal rights directly intransigent state considerations expressed far based text chisholm caution reception sovereignty theory pointed mistakes inherent hans even strongly error today holding although reasons stare decisis today disturb precedent surely extend error placing immunity mistakenly recognized beyond power congress abrogate however today decision declaring state sovereign immunity immune abrogation federal question cases open set objections peculiar today decision stands condemned alike framers abhorrence notion rules might received new legal systems beyond legislative power alter repeal resonance previous essays constitutionalizing rules expense legislative authority already pointed views framers reflected caution state constitutionalists legislators reception rules caution framers exalted point vigorous resistance idea english rules might imported wholesale new constitution state politicians also took pains guarantee rule received always subject legislative alteration state experience reflected framers thought indeed framers insistence doctrine received virtue ratification seminole tribe florida florida focused fear elements common law might thereby placed beyond power congress alter legislation imperative legislative control grew directly framers revolutionary idea popular sovereignty according one historian hared ideas sovereignty people accountability government people resulted early date new understanding role legislation legal system whereas constitution seen colonial period body vague unidentifiable precedents principles common law origin imposed ambiguous restrictions power men make change law independence came seen written charter people delegated powers various institutions government imposed limitations exercise powers power modify even entirely repeal common law fell explicitly within jurisdiction legislature nelson americanization common law virtually every state reception provision constitutional statutory explicitly provided common law subject alteration statute see wood jones new jersey constitution instance provided common law england well much statute law heretofore practised colony shall still remain force shall altered future seminole tribe florida florida law art xxii swindler sources documents constitutions early state seminole tribe florida florida governments leave reception common law seminole tribe florida florida implication neither receive law immune legislative alteration already indicated framers forget state law examples antifederalists objected draft failed make explicit adoption certain protections individual part federalists answer general seminole tribe florida florida constitutional reception common law bar congressional revision madison particularly concerned necessity legislative control noting letter george washington every state made great inroads great propriety monarchical code letter james madison george washington reprinted farrand app emphasis original madison went insist common law nothing unwritten law left constitutions equally liable legislative alterations ibid indeed madison anticipated rejected seminole tribe florida florida approach today wrote common law admitted constitutional obligation confer judicial department discretion little short legislative power permanent irremediable legislature report virginia resolutions concerning alien sedition acts writings james madison discretion sort insisted always lamented incongruous dangerous seminole tribe florida florida history confirms wisdom madison abhorrence constitutionalizing rules place beyond reach congressional amendment framers feared judicial power substantive policy ossification law result transforming common law constitutional law fears borne every time ignored madison counsel subjects generally group economic social policy fact remarkable near end century choose open new constitutional chapter confining legislative judgments matters resort textually unwarranted rules practice century early decades brought nadir competence identify lochner new york defining characteristic lochner era seminole tribe florida florida characteristic vice treated background days property rights contractual autonomy paramount regarding congressional legislation abrogate common law economic matters constitutionally suspect see adkins childrens hospital finding abrogation freedom contract wage unconstitutional compulsory exaction see generally sunstein lochner legacy colum rev yet superseding lesson seemed clear west coast hotel parrish action within legislative power subject greater scrutiny merely trenches upon case law ordering economic social relationships seems lost majority today indeed seems going lochner one better previously constrained express article powers resort background principles done least ostensible effort give content written provision constitution like due process clause object limit exercise governmental power see adair textual argument least made defining one provision happened odds another today however struggling fulfill responsibility reconcile two arguably conflicting delphic constitutional provisions struggling delphic text even concedes constitution grant congress plenary power relations indian tribes expense state claim contrary unmistakably clear case even arguably implicate textual trump grant federal question jurisdiction seminole tribe florida florida know one occasion spoken extending reach far declare plain text constitution subordinate judicially discoverable principles untethered written provision justice chase took position almost years ago certain vital principles free republican governments determine overrule apparent flagrant abuse legislative power act legislature call law contrary great first principles social compact considered rightful exercise legislative authority calder bull dall emphasis deleted ome speculative jurists held legislative act natural justice must void think government justice possess power declare policy american people define precision objects legislative power restrain exercise within marked settled boundaries act congress legislature state violates constitutional provisions unquestionably void hand legislature union legislature member union seminole tribe florida florida shall pass law within general scope constitutional power pronounce void merely judgment contrary principles natural justice ideas natural justice regulated fixed standard ablest purest men differed upon subject properly say event legislature possessed equal right opinion passed act opinion judges inconsistent abstract principles natural justice emphasis deleted opinion dissenting part iv holding hans immunity may abrogated congress leads final question case whether federal question jurisdiction exists order prospective relief enforcing igra state officer respondent chiles said authorized take action required federal law issue authority order state question entirely jurisdictional need consider whether petitioner seminole seminole tribe florida florida tribe meritorious argument relief much practical relief requested order bargain good faith actually provide tribe course issue turn way one views scope eleventh amendment hans doctrine ask whether state officer subject jurisdiction assumption action directly state barred answer question easy yes officer subject suit rule ex parte young case readily decided point alone ex parte young held federal jurisdiction suit state officer enjoin official actions violating federal law even though state may immune young federal consistent eleventh amendment may enjoin state officials conform future conduct requirements federal law quern jordan see also milliken bradley fact without suits may significant impact state governments count young milliken example suit authority young brought michigan governor attorney general board education superintendent public instruction treasurer resulted order obligating state michigan pay money treasury fund education plan relief requested obtained plaintiffs effectively ran state state moneys removed state treasury spent fund remedial education program state obligation implement take another example quern jordan involved order seminole tribe florida florida requiring state officials notify welfare beneficiaries availability past benefits defendants state officials obligation state really issue notices sent state welfare agency returned state agency state agency pay notices ensuing awards benefits indeed years since young decided recognized one limitation scope doctrine edelman jordan young permits prospective relief may applied authorize suits retrospective monetary relief cause surprise young appeared national law followed matter course hans broad recognition immunity federal question cases simply emedies designed end continuing violation federal law necessary vindicate federal interest assuring supremacy law green mansour young provided today sensible way reconcile expansive view immunity expressed hans principles embodied supremacy clause article iii young may seen merely natural consequence hans equally unsurprising event longer history sovereign immunity doctrine rule speak name young far inherent jurisdictional limitation imposed sovereign immunity recognized since middle ages long settled doctrine suit officer crown permitted relief government despite crown immunity suit courts maxim king wrong see jaffe harv ehrlich xii proceedings crown seminole tribe florida florida pp oxford studies social legal history vinogradoff ed early example time immemorial claim affecting crown pursued regular courts without consent since take form suit crown jaffe supra recognized statute westminster established writ disseisin king officers king officer disseised person king name wrongfully deprived party seek draconian writ attaint officer recover land harv following example forward may see writ attaint ultimately overtaken moderate writs certiorari mandamus operat ing directly government commanding officer individual functionary thus king bench made clear wherever new jurisdiction erected private public act parliament subject inspections writ error certiorari mandamus case cardiffe bridge salk eng history teaches matter course national constitution provided opportunity recognition state sovereign immunity necessity revealed six centuries history show suits state officers hans later open door ex parte young eleventh amendment understood forbid suit state eo nomine question arose suits officers allowed jaffe harv early became clear suit officer seminole tribe florida florida forbidden simply raised question legality action agent government required mandamus perform official duty know well established eleventh amendment necessarily requiring consent sure renewed emphasis immunity given eleventh amendment might conceivably taken extend doctrine exclude suits state officers even cases english tradition allowed running battle line drawn amendment appealed argument generous immunity vastly powerful counterpressure enforcement constitutional limits upshot confine amendment prohibition less occasion gave birth wit enforcement contracts though suits involving title disposition state real personal property seminole tribe florida florida simple rule recognizing sovereign immunity without gutting substantial rights temporarily muddled louisiana jumel although clearly say refused hear suit required state treasurer levy taxes pay interest bond currie sovereign immunity suits government officers rev one recalls circumstances hans see supra however applied osborn virginia coupon cases permitting injunctions restitution damages state officers seized property collect taxes already paid interest coupons state agreed accept ayers sought rationalize competing strands doctrine ground action may sustained instances act complained considered apart official authority alleged justification personal act individual defendant constituted violation right plaintiff entitled remedy law equity wrongdoer individual character ex parte young restored old simplicity complementing ayers principle state officers never authority violate constitution federal law illegal action stripped state character rendered illegal individual act suits officials consequently barred neither eleventh amendment hans immunity officer action simply illegal act upon part state official attempting use name state enforce legislative enactment seminole tribe florida florida void unconstitutional state power impart immunity responsibility authority ex parte young decision ex parte young historic doctrine embodies thus plays foundational role american constitutionalism doctrine sometimes called fiction long history felt necessity shows something much estimable may see considering facts case young really truly damage interest plaintiffs whether amounted legal injury depended authority employer state state constitutionally authorize act loss suffered plaintiffs wrong law provided remedy state constitutionally authorize act young acting authority orth judicial power doctrine call ex parte young nothing short indispensable establishment constitutional government rule law wright law federal courts ed see also chemerinsky federal jurisdiction ed rule lineage engendered necessity easily displaced indeed displaceable marks frontier enforceability federal law sometimes competing state policies fact never inferred congressional intent eliminate practice enforcing federal law course mean intent may never inferred underlying right one statutory rather constitutional dimension theory reject assumption congress may bar enforcement suit even state official practice real world congressional legislation seminole tribe florida florida intent exceedingly odd equally odd recognize intent block customary application ex parte young without applying rule recognized previous cases insisted clear statement assuming congressional purpose affec federal balance bass see also michigan dept state police congress intends alter usual constitutional balance federal government must make intention unmistakably clear language statute quoting atascadero state hospital scanlon gregory ashcroft habitual caution makes sense reason mentioned dellmuth muth difficult believe congress taking careful stock state eleventh amendment law decided drop coy hints stop short making intention manifest question terms young indispensable rule authorizes exercise federal jurisdiction respondent chiles since case course involve retrospective relief edelman limit irrelevant jurisdictional limitation obviously jurisdictional purposes makes difference principle whether injunction orders official act young requires official take positive step milliken quern nothing case renders young unsuitable jurisdictional basis determining merits whether petitioners entitled order state official general equitable doctrine say otherwise yet refuses apply young adequate reason seminole tribe florida florida refusal clear statement intent displace doctrine ex parte young occurs igra instead constrained rest effort skirt young series suggestions thought apparent congress provision intricate procedures enforcing state obligation act procedures said implicate rule judicial creativity devising supplementary procedures said applying young nullify statutory procedures finally statutory provisions said simply reveal congressional intent preclude application young cites schweiker chilicky support refraining seems think judicial creativity recognizing applicability young quotes chilicky general proposition congress provided considers adequate remedial mechanisms violations federal law creat additional remedies ante reasons congress provision igra intricate procedures shows considers remedial provisions adequate implication courts matter prudence provide additional remedy ex parte young ante chilicky remoteness point case however apparent facts chilicky congress addressed problem erroneous denials certain government benefits creating scheme appeals awards make successful claimant whole benefits wrongly denied question whether create remedy model bivens six unknown fed narcotics agents harms emotional seminole tribe florida florida distress erroneous denial benefits involved violation procedural due process issue whether create supplemental remedy bivens model running federal official personal capacity requiring affirmative justification bivens see bivens supra fdic meyer slip bivens issue chilicky meyer different young issue every significant respect young example novel rule proponent burden justify affirmatively policy grounds every context might arguably recognized general principle federal equity jurisdiction recognized throughout history centuries history began young provide retrospective monetary relief allows prospective enforcement federal law entitled prevail supremacy clause requires money payments government employee personal pocket lawful conduct public employee acting official capacity young function provide merely supplementary regime compensation deter illegal action sole jurisdictional basis article iii enforcement clear federal statutory obligation without congressional act rendered nullity federal one intelligibly generalize chilicky standards imposing burden justify supplementary scheme tort law displacement young traditional indispensable jurisdictional basis ensuring official compliance federal law state immune suit next suggests may justified displacing young young allow litigants seminole tribe florida florida ignore intricate procedures igra favor menu streamlined equity rules litigant order saw fit basis law suggestion strongest authority reject young establish new cause action impose particular procedural regime suits permits stands instead jurisdictional rule paramount federal law may enforced federal substituting party state officer immune one state young furnishes authority assumption somehow procedural rules devised congress particular kinds cases may depend young federal jurisdiction indeed correct assuming congress may regulate procedure suit jurisdictionally dependent young consequences revolutionary example habeas law well established habeas corpus petitioner sues state official alleging detention violation federal law seeking prospective remedy release custody doctrine identified ex parte young allows petitioner evade jurisdictional bar eleventh amendment properly hans doctrine see young larson domestic foreign commerce seminole tribe florida florida yet congress imposed number restrictions upon habeas remedy see requiring exhaustion state remedies prior bringing federal habeas petition articulated several see mccleskey zant abuse writ teague lane limiting applicability new rules habeas brecht abrahamson applying deferential harmless error standard habeas review suggesting ex parte young provides remedy subject restrictions otherwise imposed federal remedial schemes habeas corpus suggests state prisoner may circumvent restrictions ostensibly bringing suit young rather view implies similar consequences number similarly structured federal statutory schemes seminole tribe florida florida course law plausible rationale rejecting contrary assumption congress much authority regulate suits jurisdiction depends young regulate young jurisdictional picture young preclude congress requiring state exhaustion habeas cases clearly young bar application igra procedures effective relief sought suing state officer third strand reasoning displacing ex parte young supposed inference congress intended since rests inference large part erroneous assumption statute procedural limitations applied suit officer young provided jurisdictional basis error assumption enough show unsoundness inference congress meant exclude young application reasons pointing utter implausibility reading congressional mind igra jurisdictional provision reads though drafted specific intent apply officer liability young provides district courts shall jurisdiction cause action arising failure state enter negotiations conduct negotiations good faith emphasis added language limit possible defendants quite literally consistent possibility tribe sue appropriate state official state failure negotiate door obviously seminole tribe florida florida open jurisdiction officer young jurisdiction state directly difficult see statute drafted unless done anticipation young might well jurisdictional basis enforcement action even jurisdictional provision spoken narrowly action state subsequently speaks terms state obligation indication congress rejected application young order requiring state comply federal law course take form order directed state sovereign capacity ex parte young innumerable cases show nothing incongruous duty imposed state congress intended effectuated order directed appropriate state official habeas corpus statute comes mind long required state order directed appropriate state official produce state record indigent habeas petitioner argues state factual findings fairly supported record see state shall produce part record federal shall direct state order directed appropriate state official igra references state duty enforceable order state official reason placement statutory duty state may even agrees falls back position see ante state seminole tribe florida florida state officer enter compact true wholly beside point issue whether negotiation take place required igra officer indeed officer negotiate fact case cited state ex rel stephan finney makes distinction abundantly clear finally one must judge purported inference stepping back ask congress possibly intended jeopardize enforcement statute excluding application young traditional jurisdictional rule rule make difference success failure federal state sovereign immunity recognized congress wanted go broke issue state immunity event state pleaded immunity jurisdictional bar congress wanted igra enforced means traditional doctrine giving federal courts jurisdiction state officers effort harmonize state sovereign immunity federal law paramount supremacy clause plausible answers questions finally response rejection young go without saying practice read ambiguous statutes avoid constitutional infirmity edward debartolo florida gulf coast building construction trades council every reasonable construction must resorted order save statute unconstitutionality quoting hooper california practice alone without need clear statement displace young enough require young application seminole tribe florida florida application another rule requiring courts choose reasonable construction statute eliminate need confront contested constitutional issue case place state sovereign immunity federal question cases status union gas nlrb catholic bishop chicago construing statute harmonize young readily saved act congress rendered discussion constitutional grounds wholly unnecessary case decided basis alone absent application ex parte young course follow union gas recognizing congressional power article abrogate hans immunity since reasons position explained parts supra tend unsettle hans well support union gas add word reasons continuing accept hans holding matter stare decisis hans doctrine erroneous previously proven unworkable conflict later doctrine suffer effects facts developed since decision apart indicating original errors therefore treat hans always treated fact today doctrine federal common law understood formed one strands federal relationship century stability relationship value stare decisis aims respect ready hold relationship may still altered congress tread course laid elsewhere cases repeatedly stated assumption insofar relative positions nation may seminole tribe florida florida affected consistently tenth amendment modified without deliberately expressed intent see gregory ashcroft plain statement rule assures legislature fact faced intended bring issue critical matters involved judicial decision bass particularly appropriate light primary reliance effectiveness federal political process preserving interests garcia san antonio metropolitan transit authority hence required plain statement congress historic powers rice santa fe elevator imposes condition grant federal moneys south dakota dole seeks regulate state ability determine qualifications officials gregory supra judging legislation passed unmistakable article powers restriction required seminole tribe florida florida explain demanded past assumed plain statement requirement sufficient protect undue federal encroachments upon traditional immunity suit see welch texas dept highways public atascadero state hospital scanlon hard contend rule set bar low except union gas never found requirement met outside context laws passed fourteenth amendment exception recognize today proves rule moreover federal abrogation state immunity comes part regulatory scheme designed invest regulatory powers congress need extend fact suggests political safeguards federalism working plain statement rule adequate check congressional overreaching today abandonment approach wholly unwarranted even fundamental clear statement principle however abandons today john marshall recognized century half ago context state sovereign immunity federal question cases jurisdiction extended letter constitution cases arising laws follows withdraw case description jurisdiction must sustain exemption claim spirit true meaning constitution spirit true meaning must apparent overrule words framers employed cohens virginia seminole tribe florida florida two diversity clauses provide follows judicial power shall extend controversies state citizens another state state citizens thereof foreign citizens subjects art iii opinion union gas justice stevens referred clauses clauses respectively pennsylvania union gas stevens concurring grouped two diversity clauses ease frequent repetition seminole tribe florida florida first notions rests ancient maxim king wrong see blackstone commentaries professor jaffe argued expression originally meant precisely contrary later came mean meant king must allowed entitled wrong jaffe harv quoting ehrlich proceedings crown oxford studies social legal history vinogradoff ed see also blackstone supra interpreting maxim mean prerogative crown extends injury event clear idea sovereign part law sense survived american law see langford nevada hall text reads judicial power shall extend cases law equity arising constitution laws treaties made shall made authority cases affecting ambassadors public ministers consuls cases admiralty maritime jurisdiction controversies shall party controversies two state citizens another state citizens different citizens state claiming lands grants different state citizens thereof foreign citizens subjects one statement found subject immunity federal question cases opinion immunity applicable cases james wilson pennsylvania ratification debate stated federal question clause require make good debt owed english merchants seminole tribe florida florida enforcement promised treaty thereby show world make faith treaties constitutional part character secure performance longer nominally judges enabled carry effect let legislatures different may elliot debates federal constitution ed elliot debates lengthy discussion history constitution ratification opinion chisholm georgia dall adoption eleventh amendment necessary explain view contentions earlier opinions chisholm created great shock surprise misread history see principality monaco mississippi response historical analysis simply recite yet monaco erroneous assertion chisholm created shock surprise eleventh amendment proposed adopted see ante response respect response monaco ipse dixit chisholm created shock surprise make opinions frequently make assertions historical fact assertions authoritative history way interpretations laws authoritative tucker alexandroff like monaco decided century seminole tribe florida florida event purported recount baldly stated september general washington advice adams refuse permit british troops march territory detroit mississippi apparently reason object movement attack new orleans spanish possessions mississippi modern historians agree however request see daly use history decisions manning nootka sound controversy annual report american historical association doc course absurd treat fact tucker asserted existence request proof actually occurred cf erie tompkins recent research competent scholar examined original document established construction given judiciary act erroneous purpose section merely make certain matters except federal law controlling federal courts exercising jurisdiction diversity citizenship cases apply rules decision law state unwritten well written moreover case ample evidence contradicting shock surprise thesis contrary monaco suggestion eleventh amendment proposed adopted congress session chisholm decided constitutional amendment response proposed two days later congress never acted fact two years chisholm handed amendment ratified see gibbons eleventh amendment state sovereign immunity reinterpretation colum rev see also certain regard principle influence question us alteration made statute new remedy provided rule govern us seminole tribe florida florida principles laws must remain force till superseded others atascadero state hospital scanlon brennan dissenting see justice iredell dicta suggesting constitution permit suits state chisholm supra iredell dissenting atascadero supra brennan dissenting course even justice iredell concluded state sovereign immunity subject abrogation inappropriate assume appears today hans well eleventh amendment regardless says constitutionalized justice iredell dissent simply adopted opposite holding chisholm odd read eleventh amendment rejection chisholm held may sued diversity say may sued federal question read amendment rejection oregon mitchell held congress require extend suffrage permit congress require extend suffrage great weight scholarly commentary agrees see jackson eleventh amendment state sovereign immunity yale amar sovereignty federalism yale fletcher historical interpretation eleventh amendment narrow construction affirmative grant jurisdiction rather prohibition jurisdiction stan rev gibbons eleventh amendment state sovereign immunity reinterpretation colum rev field eleventh amendment sovereign immunity doctrines congressional imposition suit upon rev minority adopted second view set see marshall fighting words eleventh amendment harv rev massey state sovereignty tenth eleventh amendments chi rev others criticized diversity theory see marshall diversity theory eleventh amendment critical evaluation harv rev discovered commentator affirmatively advocating position taken today one scholar observed literature remarkably consistent evaluation historical evidence text amendment supporting broad rule constitutional immunity jackson supra vassall initiated suit massachusetts invoking original jurisdiction although marshal district massachusetts served subpoena governor john hancock seminole tribe florida florida attorney general james sullivan commonwealth massachusetts appear original return date august case continued february term massachusetts never appear case simply continued term term documentary history february suit dismissed costs reasons unknown ibid internal quotation marks omitted perhaps vassall failed prosecute properly ibid generally rejected eleventh amendment challenges appellate jurisdiction specious ground appeal suit purposes amendment see mckesson division alcoholic beverages tobacco dept business regulation although cohens virginia wheat cited proposition case involved state plaintiff see generally jackson eleventh amendment state sovereign immunity yale rejecting distinction distinction case makes sense whether appeal suit right certainly means appellate exercises jurisdiction seminole tribe florida florida suit began courts cf griggs provident consumer discount per curiam filing notice appeal event jurisdictional significance confers jurisdiction appeals divests district control aspects case involved appeal see also pennsylvania union gas supra scalia concurring part dissenting part text eleventh amendment intended comprehensive description state sovereign immunity federal courts unquestionably reasonable interpret providing immunity sole basis federal jurisdiction diversity citizenship describes course tracks diversity jurisdictional grants art iii seminole tribe florida florida plausible reason one wish protect state sued federal violation federal law plaintiff citizen another state country permit state sued plaintiff citizen state suggest drafters eleventh amendment may federal question jurisdiction mind apparent belief somehow supports reading ante possibility however drafted eleventh amendment intended deal problem presented decision chisholm demonstrate demonstration beyond clear language eleventh amendment necessary eleventh amendment intended address broader issue federal question suits brought citizens moreover point built faulty foundation simply incorrect asserting federal courts federal question jurisdiction time amendment passed ante article iii course provided jurisdiction early congresses exercised authority pursuant article iii confer jurisdiction federal courts resolve various matters federal law act apr stat act stat act mar stat see also osborn bank wheat holding federal statute conferred federal question jurisdiction cases involving bank see generally bator meltzer mishkin shapiro hart wechsler federal courts federal system ed fact six years passage eleventh amendment congress enacted statute providing general federal question jurisdiction act stat said circuit courts respectively shall cognizance cases law equity arising constitution laws treaties made shall seminole tribe florida florida made authority course true statute proved repealed act mar stat congress pass another statute conferring general federal jurisdiction drafters eleventh amendment obviously predicted things real significance act demonstrates awareness among members early congresses potential scope article iii combination amendment statutes conferred federal question jurisdiction federal courts cast considerable doubt suggestion issue federal question jurisdiction never occurred drafters eleventh amendment contrary early statutes underscore early congresses recognition availability federal question jurisdiction silence eleventh amendment deafening majority chides lengthy analysis text eleventh amendment directed straw man ante plain text man steel confrontation background principle postulates limit control ante argument rooted text constitutional provision may guaranteed carrying day insubstantiality failing see monaghan perfect constitution rev purposes legal reasoning binding quality constitutional text incapable need demonstration cf bourjaily rehnquist extraordinary require legislative history confirm plain meaning fed evid garcia rehnquist nly extraordinary showing contrary intentions legislative history justify limitation plain meaning statutory language particularly true construing jurisdictional provisions art iii speak clarity found provisions constitution see national mutual ins tidewater transfer seminole tribe florida florida frankfurter dissenting schauer easy cases cal rev noting seemingly plain linguistic mandate eleventh amendment thinks otherwise indication far strayed beyond boundaries traditional constitutional analysis professor jackson noted remarkabl consisten cy scholarship point jackson yale see also supra indeed justice stevens suggests language hans suggesting really construing judiciary act rather constitution see ante see gibbons colum without weakening contract clause next two decades fuller might need fight government regulation business weapon defaulting local governments justices needed way let south win repudiation war means bradley chose rewrite eleventh amendment history adoption commentators contention inability enforce obligation southern pay debts influenced result hans louisiana substantiated three anomalies sovereign immunity jurisprudence period first held virginia sovereign immunity allow abrogate bonds virginia coupon cases difference situation however virginia made bond coupons receivable payment state taxes nder circumstances federal courts need rely political branches government enforce orders protect creditors judgment taxes fact paid cases eleventh amendment faded background orth judicial power see generally second time articulating broad principles immunity refused recognize similar immunity municipalities similar state political subdivisions see lincoln county luning professor orth suggests seeming inconsistency traceable enforcement difficulties arising withdrawal federal troops south happened points counties tended issue bonds west south usually done job property form bonds defended west similar property south sacrificed seminole tribe florida florida higher politics compromise orth supra finally professor orth attributes recognition revival ex parte young action way around state sovereign immunity fact problem repudiated southern bonds clearly specter increasingly distant past orth supra see also gibbons supra arguing unanimous revival power grant equitable relief state officers pennoyer mcconnaughy made possible fact case involve southern state bonds reluctant sure ascribe legal developments single cause least one commentator suggested southern debt crisis may factor driving eleventh amendment jurisprudence period see generally collins conspiracy theory eleventh amendment colum rev reviewing orth neither ignore pattern cases tends show presence absence enforcement difficulties significantly influenced path law area see acknowledging perfectly conceivable politics exerted influence margin doubtful cases might gone either way today majority condemns attention hans historical circumstances disservice traditional method adjudication ante point however historical circumstance may undermine otherwise defensible decision contrary hans utterly indefensible merits legal analysis one forced look elsewhere order understand gone far wrong anything new remarkable taking look sought similar explanations cases puerto rico branstad example suggested holding kentucky dennison federal government constitution power impose state officer duty whatever compel perform influenced looming shadow civil war branstad seminole tribe florida florida ultimately determined dennison overruled author opinion today joined analysis members today majority see concurring part concurring judgment joining relevant portion majority opinion scalia concurring part concurring judgment see also georgia railroad banking redwine seminole tribe florida florida fitts mcghee even justice scalia dissent union gas reasoning majority adopts today acknowledged view sovereign immunity depended upon constitutional principle beyond immediate text eleventh amendment opinion concurring part dissenting part extent prior cases refer hans immunity part eleventh amendment referring justice stevens eleventh amendment hess port authority slip stevens concurring see also pennsylvania union gas supra stevens concurring see also union gas scalia concurring part dissenting part said hans essentially eleventh amendment important merely said reflected consensus doctrine sovereign immunity well federal government part understood background constitution adopted jurisdictional provisions mean sweep away nevada hall rehnquist dissenting interpreting monaco rel ying precepts underlying explicit art iii eleventh amendment good reasons take many statements seriously plainly exaggerated example suggestion great northern ins read state freedom litigation established right eleventh amendment obviously ignores state liability suit see south dakota north carolina national government see texas see also nevada hall supra noting eleventh amendment accorded absolute sovereign immunity actions similarly statements ex parte new york entire judicial power granted seminole tribe florida florida constitution embrace authority entertain suit brought private parties state without consent given necessarily taken affirming article iii incorporated constitutional immunity doctrine else explain justice harlan concurring opinion hans stated practically breath suit directly state one citizens one judicial power extends chisholm based upon sound interpretation constitution instrument see also georgia railroad banking redwine fitts mcghee see also warth seldin congress may grant express right action persons otherwise barred prudential standing rules chemerinsky federal jurisdiction ed indeed chief justice hardly clearer fry explained decision hans louisiana offers impressive authority principle regarded framers constitution partaking many attributes sovereignty quite apart provisions tenth amendment eleventh amendment terms justified result hans tenth amendment terms prohibits congressional action sets mandatory ceiling wages state employees amendments simply examples understanding drafted ratified constitution sovereign many respects although legislative authority superseded congress many areas congress competent act congress nonetheless free deal state another individual business enterprise subject regulation rehnquist dissenting indeed nevada hall chief justice complained dissent statements upon relies today dismiss ed dicta hoffman one member plurality expressly disavowed plurality assumption congress abrogate immunity making intent clear see concurring four dissenters however assumed congress power abrogate found done see marshall dissenting likewise welch plurality joined four dissenters insisted upon congressional power abrogation see brennan dissenting seeks disparage common law roots doctrine consequences roots outline infra asserting hans found roots solely common law england much fundamental jurisprudence civilized nations ante quoting hans hans however relied explicitly ground suit state citizen known common law among departures common law recognized constitution hans moreover hans explicitly adopted reasoning justice iredell dissent chisholm see opinion hardly clearer relying exclusively common law principles law affect case justice iredell wrote derived properly termed common law law presume laws every state union consider far applicable peculiar circumstances country special act legislation controuls force state existed england unaltered statute time first settlement country emphasis omitted see also employees dept public health welfare missouri department public health welfare missouri marshall concurring result sovereign immunity doctrine long predates constitution eleventh amendment although course carried forward jurisprudence watkins state party litigant thus seems probable doctrine state immunity accepted rather existing fact people adopted theory matter universal practice accepted mother country along rest common law england applicable changed state condition see hall common law account reception vand rev whether emphasize imitation colonists practices english local courts whether say early colonial judges really applying ideas justice fact remains incomplete acceptance america english legal principles indigenous law developed america remained significant source law revolution see also jones common law english themes american variations political separation legal continuity jones ed jones acknowledging true system yet developed early colonial period stoebuck reception english common law american colonies wm mary rev see reinsch english common law early american colonies finding colonists developed rude popular summary system justice despite professed adhesion common law hilkey legal development colonial massachusetts emphasizing biblical indigenous sources radin rivalry ideas american colonies law century progress emphasizing natural law roman law goebel king law local custom seventeenth century new england colum rev finding early settlers imported law procedure borough manor courts familiar england see also stoebuck supra indicating colonies became significantly receptive common law part british desire regularize colonial legal systems see also jones selective nature reception evident examination state law colonies years immediately preceding revolution example trott law adopted south carolina declared english statutes force colony many laws england trott conceded altogether useless south carolina reason different way agriculture differing productions earth province england others impracticable differences institutions friedman history american law ed see also warren history american bar quoting north carolina statute passed providing common law force far shall compatible way living trade american hostility things english pronounced time pennsylvania new jersey kentucky proscribed statute citation english decisions courts new hampshire courts promulgated rule effect see hall vand warren supra hostility may appear somewhat paradoxical view colonists frequent insistence revolutionary crisis entitled rights see first continental congress declaration resolves documents illustrative formation union american doc tansill ed respective colonies entitled common law england context however colonists referring corpus english doctrine profoundly valued common law procedures trial jury subjection governmental power john locke called standing laws magna carta petition right bill rights act settlement jones see also jay origins federal common law part two rev jay ii noting antifederalists used term common law mean great rights associated due process cardinal principles vision parliamentary supremacy rule law conceived axiom members society government officials well private persons equally responsible law equally amenable jurisdiction ordinary tribunals jones quoting dicey introduction study law constitution ed hard imagine doctrine sovereign immunity profoundly odds cardinal principles imported america part generalized vision see conner shepherd mass rejecting english rule regarding assignment dower rights inapplicable state condition land massachusetts parker edgarton foote wend rejecting english rule entitling landowner damages stopping lights noted necessary cite cases prove portions common law england hostile spirit institutions adapted existing state things country form part law fitch brainerd accepting english rule barring married woman disposing real estate observing long since became necessary make english common law practical adoption exceptions diversity circumstances incipient customs country required emphasis original martin bigelow aiken declaring english common law stream rights inappropriate conditions vermont waterways hall smith bay sup refusing apply strict english rules regarding promissory notes unsuited local situation carolina see also hall supra review cases shows matter wording reception statute constitutional provision particular state rule developed sooner later repeated practically every american jurisdiction principles common law received applicable local situation see also jones noting institutions habeas corpus jury trial merely received ordinary law rather received specific textual provisions constitution part law land sovereign immunity course elevated constitutional status way immunity thus stands footing principle framers refused place beyond reach legislative change principles subject legislative alteration confirmed treatment forms immunities immunity enjoyed certain circumstances public officials butz economou officer immunity derived common law imbler pachtman context immunity decisions informed common law absence explicit congressional guidance nixon fitzgerald see generally ante stevens dissenting jackson supra surely one deny congress power abrogate immunities choose see elliot debates thomas tredwell new york convention ignorant whether federal proceedings shall according common civil jewish turkish law see also justice jay charge grand jury district seminole tribe florida florida new york april observing time nation formed ur jurisprudence varied almost every state accommodated local general convenience partial national policy quoted jay origins federal common law part rev worrall cas chase noting common law one state common law another annals cong statement albert gallatin asserting national common law common law great britain received colony every one received modifications arising situation state common law general principles many particulars differing see also jay ii arguing jeffersonian republicans resisted idea general federal reception common law incursion rights jay given roots framers resistance reception english common law constitution name state sovereignty goes beyond limits irony see elliot debates constitution render valid effective existing claims see also james wilson pennsylvania ratification debate citizen controversy another state tribunal parties may stand equal footing wilson noted took similar position addressing federal question arising clause remarking effect clause require honor debt owed english merchants promised treaty see supra accuses quoting statement context ante additional material included makes difference conceding madison hamilton seminole tribe florida florida marshall agreed article iii force abrogate immunity least respect diversity suits none statements offered however purports deal federal question jurisdiction question whether congress acting pursuant article powers create cause action state explain views madison allies difficult question divined reference extended discussions hamilton federalist iredell chisholm dissent discussions submit tend support congressional power abrogation see also worcester georgia pet cherokee nation distinct community laws georgia force whole intercourse nation constitution laws vested government repeatedly rejected state attempts assert sovereignty indian lands see new york indians wall seminole tribe florida florida rejecting state attempt tax reservation lands worcester supra nullifying attempted prosecution state georgia person resided indian lands violation state law although rejected per se bar state jurisdiction clear jurisdiction remains exception rule see new mexico mescalero apache tribe footnotes omitted nder certain circumstances state may validly assert authority activities nonmembers reservation exceptional circumstances state may assert jurisdiction activities tribal members see federalist hamilton disclaiming intent answer questions intricacy nicety arising judicial system must accommodate total partial incorporation number distinct sovereignties elkins mckitrick age federalism suggesting amount attention discussion given judiciary constitutional convention fraction devoted executive legislative branches framers deliberately left many questions open later resolution regardless faults chief justice taney opinion dred scott sandford recognized structural matter new government mere change dynasty form government leaving nation sovereignty clothed rights bound obligations preceding one see also mcdonald novus ordo seclorum intellectual origins constitution constitutional reallocation powers created new form government unprecedented sun beer make nation rediscovery american federalism american view sovereignty radically different british tradition blackstone commentaries cooper modern notion sovereignty traceable writings jean bodin late century see bodin six books commonwealth bk ch tooley abr trans see also hobbes leviathan part ii ch seminole tribe florida florida fuller ed see wood noting james wilson ore boldly fully anyone else developed argument eventually become basis federalist thinking sovereignty see also federalist hamilton acknowledging people pure original fountain legitimate authority madison people legitimate fountain power see also term limits thornton slip kennedy concurring constitution created legal system unprecedented form design establishing two orders government direct relationship privity set mutual rights obligations people sustain governed see amar yale ultimate american answer british notion sovereign definition law part lay radical redefinition governmental sovereignty corporation delegated limited sovereign privileges governments delegated limited powers govern within limitations charters governments sovereign sovereignty bounded terms delegation see amar supra thus relocating true sovereignty people americans domesticated government power decisively repudiated british notions sovereign seminole tribe florida florida governmental omnipotence repudiation extended traditional principles sovereign immunity clear justice wilson opinion chisholm blasted haughty notions state independence state sovereignty state supremacy allowing state assum supercilious people formed see also hobbes supra sovereign commonwealth assembly one man subject civil laws free free possible person bound bind release therefore bound bound bodin supra one may subject laws made another impossible bind oneself matter subject one free exercise follows necessity king subject laws see also wood nce men grasped increasingly middle reform national government best means remedying evils caused state governments revision articles confederation assumed impetus importance years earlier cf jay english common law might afford clues meaning terms constitution absence close federal model recognized even convention coker commentary pound mcilwain nichols federalism democratic process see prout starr acknowledging immunity recognized hans cases observing indeed unfortunate immunity individual suits citizens provided amendment interpreted nullifying provisions confer power congress provisions existed adoption eleventh amendment still exist nullified made effect judicial power invoked protect citizens affected passage state laws disregarding constitutional limitations majority contends state compliance federal law may enforced means ante suggestions pretty cold comfort enforcement resources federal government limited appellate review state decisions contingent upon state consent suit state also called question majority rationale see supra decision today illustrates uncertainty always permit enforcement federal law suits prospective relief state officers moreover majority position seminole tribe florida florida ignores importance enforcement federal law see alyeska pipeline wilderness society acknowledging many instances congress opted rely heavily private enforcement implement public policy see also civil rights attorney fees awards act recognizing civil rights laws depend heavily upon private enforcement pennsylvania delaware valley citizens council clean air blackmun dissenting noting importance citizens suits federal environmental laws assertion congress waited nearly century even conferring federal question jurisdiction lower federal courts ante simply incorrect noted numerous early statutes conferred federal question jurisdiction federal courts operating original judiciary act particular kinds cases judiciary act provided general federal question jurisdiction brief period repeal see supra considering example massachusetts professor nelson observes clearest illustration legislation coming rest arbitrary power majoritarian legislature rather conformity past law principle ease statutes altering common law rights enacted repealed response changing election results nelson americanization common law see also del const art swindler sources documents constitutions common law england well much statute law heretofore adopted practice state shall remain force unless shall altered future law legislature parts excepted repugnant rights privileges contained constitution act first laws state georgia declaring common laws england full force far contrary constitution laws form government established state mass ch vi art vi swindler supra laws heretofore adopted used approved province colony state massachusetts bay shall still remain full force altered repealed legislature commonwealth churchill met mass shaw construing laws provision include common law part ii swindler supra laws heretofore adopted used approved province colony state shall remain full force altered repealed legislature laws ch first laws state north carolina parts common law heretofore force use within territory destructive repugnant inconsistent freedom independence state form government therein established otherwise provided abrogated repealed expired become obsolete hereby declared full force within state art xxxv swindler supra uch parts common law england together form law said colony new york april shall continue law state subject alterations provisions legislature state shall time time make concerning digest quoted powell rohan powell real property actions causes matters things whatsoever particular law colony act parliament cases laws england seminole tribe florida florida shall force decision determination cooper statutes large south carolina act receiving common law england inconsistent particular constitutions customs laws province art vii swindler supra laws force state passing constitution shall continue altered repealed legislature slade vermont state papers act june adopting much common law england repugnant constitution act legislature state act may ch vi first laws state virginia common law england shall rule decision shall considered full force shall altered legislative power colony connecticut enact reception statute constitutional provision adopted common law judicial decision insofar appropriate local conditions see powell rohan supra hall vand fitch brainerd day maryland position appears articulated oath prescribed assembly justices provincial oath required justices act according laws customs directions acts assembly province silent according laws statutes reasonable customs england used practiced province andrews history maryland finally although pennsylvania reception statute state common law altered legislative enactment many words may read assuming primacy legislative enactments see statutes large pennsylvania mitchell flanders eds act declaring prior acts general assembly still force well common law statute laws england heretofore force said province state assembly seems believed power depart common law even prior independence see warren history american bar cf kirk dean binn interpreting state constitution permitting departures rules local circumstances required bears emphasis providing statutory alteration common law new way departing traditional understandings true colonial charters generally rendered colonial legislation void extent conflicted english common law principle simply indicative colonies legal subjugation mother country event seldom enforced practice see stoebuck wm mary traditional conception common law developed england always freely alterable statute plucknett concise history common law ed see also plucknett statutes interpretation first half fourteenth century finding historical support claim common law fundamental otherwise superior statues coke appears attempted one time establish paramount common law see bonham case eng attempt never took root england see plucknett concise history common law supra jones gough fundamental law english constitutional history observing nineteenth century overriding authority become accepted principle courts although coke dictum somewhat greater influence america influence took form providing early foundation idea courts might invalidate legislation found inconsistent written constitution see jones gough supra noting coke view fundamental law came transformed subsumed american practice treatment written constitution fundamental law exercise judicial review demonstrate infra idea legislation may struck based principles common law natural justice located within constitutional text squarely rejected country see infra see also elliot debates edmund randolph virginia convention arguing constitutional incorporation common law destructive republican principles indeed one reason madison suspicion common law included thousand heterogeneous antirepublican doctrines letter madison washington reprinted farrand app merit profound consideration madison later warn report virginia resolutions concerning alien sedition laws far indefinite admission common law might draw various prerogatives making part unwritten law england alien sedition laws admission madison feared mean whole code incongruities barbarisms bloody maxims inviolably saddled good people ibid see also amar yale sole basis absolute government immunity suits british idea sovereign government source law bound law absent consent iterally every article federalist constitution every amendment bill rights rests repudiation british view see wood jefferson judicial discretion administration justice still great evil codification great remedy white marshall cultural change assumption constitutional design congress exercised enumerated powers legislation laws supersede competing ones attempts sidestep history distinguishing sovereign immunity somehow different common law principles ante see chisholm georgia iredell dissenting arguing common law england control case far applicable peculiar circumstances country special act legislation controls find solace distinction substantive rules law jurisdiction ante however abundantly clear drawn sorts principles common law see burnham superior county marin plurality opinion scalia noting american notion personal jurisdiction principle predates fourteenth amendment nothing history moreover suggests common law rules immutable jurisdictional rather substantive nature true principle state sovereign immunity stands distinct principles common law former prompted specific constitutional amendment ante seventh amendment adopted respond antifederalist concerns regarding right jury trial see supra indeed amendment vividly illustrates distinction provisions intended adopt common law amendment specifically mentions common law common law right shall preserved provisions like eleventh amendment may inspired common law right include language adoption specific reference finally recourse vague jurisprudence civilized nations ante rather common law england unavailing constitution received general principles law example admiralty seminole tribe florida florida clause adoption general law nations law sea principles always subject change congressional enactment see panama johnson noting although principles general maritime law sometimes called law sea embodied art iii constitution remained subject power congress alter qualify supplement nereide cranch marshall stating bound law nations congress passed contrary enactment cf lopez slip souter dissenting fulcrums judicial review lochner cases notions liberty property characteristic economics whereas commerce clause cases turned ostensibly structural limit federal power conception judicial review character first third century showed exacting judicial scrutiny legislature choice economic ends legislative means selected reach accuses misrepresenting argument ante claim read congress authorize federal jurisdiction ex parte young cause action limited remedial scheme rather remedial limitations underlying cause action apply claim based ex parte young otherwise existence remedial limitations provide reason assume congress intend permit action young rather limitations apply regardless whether suit brought state state officer see also brennan stewart lthough usually conceptualized ex parte young cases huge number habeas claims federal courts effectively suits suits pass muster eleventh amendment habeas theory civil suit bad jailer fits perfectly ex parte young fiction ex rel elliott hendricks exercising jurisdiction habeas suit despite eleventh amendment challenge theory suit state officer cert denied many federal statutes impose obligations state officials enforcement subject intricate provisions also statutorily provided see federal water pollution control act citizen suit provision enforce obligations federal environmental law emergency planning community act privately enforceable requirement form commissions appointed governor generate plans addressing hazardous material seminole tribe florida florida emergencies order person whether individual entity seminole tribe florida florida proper defendant order standing exist since one requirements redressability person course need connection state negotiations see young franklin massachusetts obvious candidates responsible state officials scope tenth amendment limitations congressional power remains subject debate new york holds principles federalism violated formal command national government directing state enact certain policy lopez slip kennedy concurring suggest prohibition extends barring federal government directing creation state law views express today understood take position disputed question see also federalist supra madison explaining federal government partake sufficiently spirit disinclined invade rights individual prerogatives governments wechsler political safeguards federalism role composition selection national government colum rev page