Alden v. Maine: Background

After the Revolution, the newly independent states incorporated English common law into their domestic law. Many also claimed the right of sovereign immunity that was enjoyed by the crown in England. This rule gave a state immunity from suits by private plaintiffs in state court. Article III of the Constitution extended federal court jurisdiction to cases “between a state and citizens of another state.” The text did not address the question of whether federal jurisdiction over states as defendants existed only if the state had waived its sovereign immunity and thereby consented to the suit.

In Chisholm v. Georgia (1793), the Court allowed a citizen of South Carolina to make a claim against the state of Georgia for restitution of Tory lands that had been confiscated during the Revolution. The 11th Amendment was quickly passed in a direct attempt to supersede Chisholm. The 11th Amendment provides that:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

In Hans v. Louisiana (1890), the Court held that, despite the literal language of the Amendment that limited federal jurisdiction only to suits brought by “citizens of another state,” citizens were also prohibited from suing their own state in federal court.

While the 11th Amendment operated to keep cases against states based on diversity jurisdiction out of federal court, it had not been a major impediment to the enforcement of federal rights against states. In large measure this had occurred due to a “fiction” that the Court adopted in Ex parte Young (1908). There, the Court made a distinction between a suit against the state itself and a suit against an official of a state. In Ex parte Young, the Court allowed a suit for declaratory and injunctive relief to be filed in federal court against a state attorney general who was attempting to enforce a statute that was alleged to be unconstitutional. It should be noted that the Court has subsequently permitted suits against state officials only for declaratory and injunctive relief and not for claims for money damages. But state officials sued in their individual capacity — as opposed to their official capacity — may be required to pay money damages for violation of federal rights. See, e.g., 42 U.S.C. § 1983.

Another limitation on the scope of the 11th Amendment is that it can be overridden by legislation Congress enacts pursuant to its enforcement powers under § 5 of the 14th Amendment if Congress clearly indicates its intent to do so. The Court has held that the 14th Amendment can override a state’s 11th Amendment immunity from suit because the drafters and ratifiers of the 14th Amendment intended it to dramatically curtail state privileges.

In 1989, the Court ruled in a 4-1-4 plurality opinion that Congress could also abrogate a state’s 11th Amendment immunity when exercising its power under the Commerce Clause. In Pennsylvania v. Union Gas Co. (1989), the Court held that Congress could use its commerce power to create a federal statutory cause of action for an individual against a state that could be tried in federal court. Justice Brennan made a structural argument that the power to regulate interstate commerce would be incomplete without the authority to render States liable in damages. Justice Brennan’s opinion was joined by Justices Marshall, Blackmun, and Stevens. Justice White concurred in the judgment only. Justice Scalia’s dissent was joined by Justices Rehnquist, O’Connor, and Kennedy.

By 1996, Justice Souter had replaced Justice Brennan, Justice Thomas had replaced Justice Marshall, Justice Ginsburg had replaced Justice White, and Justice Breyer had replaced Justice Blackmun. That year, the Court — in a 5–4 opinion — overruled Union Gas. In Seminole Tribe of Florida v. Florida (1996), the Court held that Congress, acting pursuant to its powers under the Commerce Clause, could not abrogate a state’s 11th Amendment immunity against suit in federal court. Justice Thomas — as he did in Lopez and Printz — joined the Union Gas dissenters to provide the decisive fifth vote. This controversial opinion greatly expanded the scope of the 11th Amendment.

The Court’s decision in Seminole Tribe did not disturb Congress’ power to provide a cause of action against a state in federal court pursuant to its power under § 5 of the 14th Amendment. But, as we will see in Chapter 13, infra, in recent years, the Court has narrowed Congress’s power to legislate pursuant to § 5 of the 14th Amendment, thereby expanding the protection to states from suit afforded by the 11th Amendment. In fact, on at least three occasions since 1999, the Court has struck down congressional legislation justified on § 5 grounds that allowed suits to proceed against state governments. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999); Kimel v. Florida Board of Regents (2000); and University of Alabama v. Garrett (2001). In each of these cases, the Court found that Congress had exceeded its § 5 power; the statutes in question were still constitutional, but only pursuant to Congress’s Commerce Clause power or, in the case of College Savings Bank, Congress’s Commerce Clause and Patent Clause powers. Consequently, those portions of the statutes in question that applied to the states were barred by the 11th Amendment.

In 1999, the Court expanded on the Seminole Tribe rule and held that Congress could not rely on its Article I, § 8 powers to provide a federal statutory cause of action against a state even in state court. In Alden v. Maine (1999), the Court — with the same 5–4 split that occurred in Seminole Tribe of Florida — held that state sovereign immunity prohibited any Article I federal legislation providing an individual with a cause of action against a state. Statutes passed pursuant to the 14th Amendment are not covered by this rule. In so holding, the majority ruled that the states were protected, not by the force of the 11th Amendment, but by a historical commitment of the Framers to state sovereignty. The dissent contends that this argument represents judicial activism at its worst.

As you read the opinion, consider both the majority’s and the dissent’s arguments from text, structure, and history. Which opinion represents better constitutional law, as opposed to which opinion represents better public policy?

Alden v. Maine

527 U.S. 706 (1999)

[Majority: Kennedy, Rehnquist (C.J.), O’Conner, Scalia, and Thomas. Dissenting: Souter, Stevens, Ginsburg, and Breyer.]

Justice Kennedy delivered the opinion of the Court.

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

We hold that the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts…we affirm the judgment sustaining dismissal of the suit.

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

I-A. Although the Constitution establishes a National Government with broad, often plenary authority over matters within its recognized competence, the founding document “specifically recognizes the States as sovereign entities.” Seminole Tribe of Fla. v. Florida. Various textual provisions of the Constitution assume the States’ continued existence and active participation in the fundamental processes of governance. See Printz v. United States (1997) (citing Art. III, § 2; Art. IV, §§ 2–4; Art. V). The limited and enumerated powers granted to the Legislative, Executive, and Judicial Branches of the National Government, moreover, underscore the vital role reserved to the States by the constitutional design, see, e.g., Art. I, § 8; Art. II, §§ 2–3; Art. III, § 2. Any doubt regarding the constitutional role of the States as sovereign entities is removed by the 10th Amendment, which, like the other provisions of the Bill of Rights, was enacted to allay lingering concerns about the extent of the national power. . . .

I-B. The generation that designed and adopted our federal system considered immunity from private suits central to sovereign dignity. When the Constitution was ratified, it was well established in English law that the Crown could not be sued without consent in its own courts. …

Although the American people had rejected other aspects of English political theory, the doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified. . . .

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

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

It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States. . . .

Despite the persuasive assurances of the Constitution’s leading advocates and the expressed understanding of the only state conventions to address the issue in explicit terms [that immunity could survive], this Court held, just five years after the Constitution was adopted, that Article III authorized a private citizen of another State to sue the State of Georgia without its consent. Chisholm v. Georgia (1793). . . .

The text and history of the 11th Amendment also suggest that Congress acted not to change but to restore the original constitutional design. Although earlier drafts of the Amendment had been phrased as express limits on the judicial power granted in Article III, see, e.g., 3 Annals of Congress 651–52 (1793) (“The Judicial Power of the United States shall not extend to any suits in law or equity, commenced or prosecuted against one of the United States. . . .”), the adopted text [of the 11th Amendment] addressed the proper interpretation of [Article III], see U.S. Const., Amdt. 11 (“The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States. . . .”). By its terms, then, the 11th Amendment did not redefine the federal judicial power but instead overruled [Chisholm]. . . .

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

Finally, the swiftness and near unanimity with which the 11th Amendment was adopted suggest “either that the Court had not captured the original understanding, or that the country had changed its collective mind most rapidly.” D. Currie, The Constitution in the Supreme Court: The First Century 18, n. 101 (1985). The more reasonable interpretation, of course, is that regardless of the views of four Justices in Chisholm, the country as a whole — which had adopted the Constitution just five years earlier — had not understood the document to strip the States’ of their immunity from private suits. Cf. Currie, The Constitution in Congress, at 196 (“It is plain that just about everybody in Congress agreed the Supreme Court had misread the Constitution”).

Although the dissent attempts to rewrite history to reflect a different original understanding, its evidence is unpersuasive. The handful of state statutory and constitutional provisions authorizing suits or petitions of right against States only confirms the prevalence of the traditional understanding that a State could not be sued in the absence of an express waiver, for if the understanding were otherwise, the provisions would have been unnecessary. . . .

The dissent’s remaining evidence cannot bear the weight the dissent seeks to place on it. The views voiced during the ratification debates by Edmund Randolph and James Wilson, when reiterated by the same individuals in their respective capacities as advocate and Justice in Chisholm, were decisively rejected by the 11th Amendment. . . .

In short, the scanty and equivocal evidence offered by the dissent establishes no more than what is evident from the decision in Chisholm — that some members of the founding generation disagreed with Hamilton, Madison, Marshall, Iredell, and the only state conventions formally to address the matter. The events leading to the adoption of the 11th Amendment, however, make clear that the individuals who believed the Constitution stripped the States of their immunity from suit were at most a small minority. . . .

I-C. The Court has been consistent in interpreting the adoption of the 11th Amendment as conclusive evidence “that the decision in Chisholm was contrary to the well-understood meaning of the Constitution,” Seminole Tribe, and that the views expressed by Hamilton, Madison, and Marshall during the ratification debates, and by Justice Iredell in his dissenting opinion in Chisholm, reflect the original understanding of the Constitution. . . .

Following this approach, the Court has upheld States’ assertions of sovereign immunity in various contexts falling outside the literal text of the 11th Amendment. In Hans v. Louisiana, the Court held that sovereign immunity barred a citizen from suing his own State under the federal-question head of jurisdiction. The Court was unmoved by the petitioner’s argument that the 11th Amendment, by its terms, applied only to suits brought by citizens of other States. . . . Later decisions rejected similar requests to limit the principle of sovereign immunity to the strict language of the 11th Amendment. These cases held that nonconsenting States are immune from suits brought by federal corporations, Smith v. Reeves (1900), foreign nations, Principality of Monaco (1934), or Indian tribes, Blatchford v. Native Village of Noatak (1991), and concluded that sovereign immunity is a defense to suits in admiralty, though the text of the 11th Amendment addresses only suits “in law or equity,” Ex parte New York (1921).

These holdings reflect a settled doctrinal understanding, consistent with the views of the leading advocates of the Constitution’s ratification, that sovereign immunity derives not from the 11th Amendment but from the structure of the original Constitution itself. . . .

1. In this case we must determine whether Congress has the power, under Article I, to subject non-consenting States to private suits in their own courts. As the foregoing discussion makes clear, the fact that the 11th Amendment by its terms limits only “[t]he Judicial power of the United States” does not resolve the question. To rest on the words of the Amendment alone would be to engage in the type of ahistorical literalism we have rejected in interpreting the scope of the States’ sovereign immunity since the discredited decision in Chisholm. …

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

II-A-1. Article I, § 8 grants Congress broad power to enact legislation in several enumerated areas of national concern. The Supremacy Clause, furthermore, provides:

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

As is evident from its text, however, the Supremacy Clause enshrines as “the supreme Law of the Land” only those federal Acts that accord with the constitutional design. See Printz. Appeal to the Supremacy Clause alone merely raises the question whether a law is a valid exercise of the national power. . . .

Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers. Although some of our decisions had endorsed this contention . . . they have since been overruled. . . .

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

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

Although the sovereign immunity of the States derives at least in part from the common-law tradition, the structure and history of the Constitution make clear that the immunity exists today by constitutional design. . . .

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

II-A-2. There are isolated statements in some of our cases suggesting that the 11th Amendment is inapplicable in state courts. [The Court contends all are distinguishable.] . . .

II-B. Whether Congress has authority under Article I to abrogate a State’s immunity from suit in its own courts is, then, a question of first impression. In determining whether there is “compelling evidence” that this derogation of the States’ sovereignty is “inherent in the constitutional compact,” Blatchford v. Native Village of Noatak (1991), we continue our discussion of history, practice, precedent, and the structure of the Constitution.

II-B-1. We look first to evidence of the original understanding of the Constitution. Petitioners contend that because the ratification debates and the events surrounding the adoption of the 11th Amendment focused on the States’ immunity from suit in federal courts, the historical record gives no instruction as to the founding generation’s intent to preserve the States’ immunity from suit in their own courts.

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

In light of the language of the Constitution and the historical context, it is quite apparent why neither the ratification debates nor the language of the 11th Amendment addressed the States’ immunity from suit in their own courts. The concerns voiced at the ratifying conventions, the furor raised by Chisholm, and the speed and unanimity with which the Amendment was adopted, moreover, underscore the jealous care with which the founding generation sought to preserve the sovereign immunity of the States. To read this history as permitting the inference that the Constitution stripped the States of immunity in their own courts and allowed Congress to subject them to suit there would turn on its head the concern of the founding generation — that Article III might be used to circumvent state-court immunity. In light of the historical record it is difficult to conceive that the Constitution would have been adopted if it had been understood to strip the States of immunity from suit in their own courts and cede to the Federal Government a power to subject nonconsenting States to private suits in these fora. . . .

II-B-2. Our historical analysis is supported by early congressional practice, which provides “contemporaneous and weighty evidence of the Constitution’s meaning.” Printz. Although early Congresses enacted various statutes authorizing federal suits in state court . . . we have discovered no instance in which they purported to authorize suits against nonconsenting States in these fora.

Even the recent statutes, moreover, do not provide evidence of an understanding that Congress has a greater power to subject States to suit in their own courts than in federal courts. On the contrary, the statutes purport to create causes of actions against the States which are enforceable in federal, as well as state, court. To the extent recent practice thus departs from longstanding tradition, it reflects not so much an understanding that the States have surrendered their immunity from suit in their own courts as the erroneous view, perhaps inspired by Parden v. Terminal R. of Ala. Docks Dept. (1964) and Pennsylvania v. Union Gas (1989), that Congress may subject non-consenting States to private suits in any forum.

II-B-3. The theory and reasoning of our earlier cases suggest the States do retain a constitutional immunity from suit in their own courts. . . .

We have also relied on the States’ immunity in their own courts as a premise in our 11th Amendment rulings. See Hans. . . .

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

It seems to be an obvious consequence that as a State can only perform its functions through its officers, a restraint upon them is a restraint upon its sovereignty from which it is exempt without its consent in the state tribunals, and exempt by the 11th Amendment of the Constitution of the United States, in the national tribunals. The error is in the universality of the conclusion, as we have seen. Necessarily to give adequate protection to constitutional rights a distinction must be made between valid and invalid state laws, as determining the character of the suit against state officers. And the suit at bar illustrates the necessity. If a suit against state officers is precluded in the national courts by the 11th Amendment to the Constitution, and may be forbidden by a State to its courts, as it is contended in the case at bar that it may be, without power of review by this court, it must be evident that an easy way is open to prevent the enforcement of many provisions of the Constitution. . . . See Ex parte Young, where this subject is fully discussed and the cases reviewed.

Had we not understood the States to retain a constitutional immunity from suit in their own courts, the need for the Ex parte Young rule would have been less pressing, and the rule would not have formed so essential a part of our sovereign immunity doctrine. . . .

II-B-4. Our final consideration is whether a congressional power to subject nonconsenting States to private suits in their own courts is consistent with the structure of the Constitution. We look both to the essential principles of federalism and to the special role of the state courts in the constitutional design.

Although the Constitution grants broad powers to Congress, our federalism requires that Congress treat the States in a manner consistent with their status as residuary sovereigns and joint participants in the governance of the Nation. . . .

Petitioners contend that immunity from suit in federal court suffices to preserve the dignity of the States. Private suits against nonconsenting States, however, present “the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties,” In re Ayers (1887), regardless of the forum. Not only must a State defend or default but also it must face the prospect of being thrust, by federal fiat and against its will, into the disfavored status of a debtor, subject to the power of private citizens to levy on its treasury or perhaps even government buildings or property which the State administers on the public’s behalf. . . .

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

Underlying constitutional form are considerations of great substance. Private suits against non-consenting States — especially suits for money damages — may threaten the financial integrity of the States. It is indisputable that, at the time of the founding, many of the States could have been forced into insolvency but for their immunity from private suits for money damages. . . .

A congressional power to strip the States of their immunity from private suits in their own courts would pose more subtle risks as well. “The principle of immunity from litigation assures the states and the nation from unanticipated intervention in the processes of government.” . . .

A general federal power to authorize private suits for money damages would place unwarranted strain on the States’ ability to govern in accordance with the will of their citizens. Today, as at the time of the founding, the allocation of scarce resources among competing needs and interests lies at the heart of the political process. While the judgment creditor of the State may have a legitimate claim for compensation, other important needs and worthwhile ends compete for access to the public fisc. Since all cannot be satisfied in full, it is inevitable that difficult decisions involving the most sensitive and political of judgments must be made . . . by the political process. . . .

The asserted authority would blur not only the distinct responsibilities of the State and National Governments but also the separate duties of the judicial and political branches of the state governments, . . . A State is entitled to . . . assign[ ] to the political branches, rather than the courts, the responsibility for directing the payment of debts. . . .

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

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

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

The first of these limits is that sovereign immunity bars suits only in the absence of consent. Many States, on their own initiative, have enacted statutes consenting to a wide variety of suits. The rigors of sovereign immunity are thus “mitigated by a sense of justice which has continually expanded by consent the suability of the sovereign.” Great Northern Life Ins. Co. v. Read (1944). Nor, subject to constitutional limitations, does the Federal Government lack the authority or means to seek the States’ voluntary consent to private suits. Cf. South Dakota v. Dole (1987).

The States have consented, moreover, to some suits pursuant to the plan of the Convention or to subsequent constitutional amendments. In ratifying the Constitution, the States consented to suits brought by other States or by the Federal Government. Principality of Monaco (1934) (collecting cases). A suit which is commenced and prosecuted against a State in the name of the United States by those who are entrusted with the constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const., Art. II, § 3, differs in kind from the suit of an individual: While the Constitution contemplates suits among the members of the federal system as an alternative to extralegal measures, the fear of private suits against non-consenting States was the central reason given by the founders who chose to preserve the States’ sovereign immunity. Suits brought by the United States itself require the exercise of political responsibility for each suit prosecuted against a State, a control which is absent from a broad delegation to private persons to sue non-consenting States.

We have held also that in adopting the 14th Amendment, the people required the States to surrender a portion of the sovereignty that had been preserved to them by the original Constitution, so that Congress may authorize private suits against nonconsenting States pursuant to its § 5 enforcement power. Fitzpatrick v. Bitzer (1976). . . .

The second important limit to the principle of sovereign immunity is that it bars suits against States but not lesser entities. The immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the State. . . . Nor does sovereign immunity bar all suits against state officers. . . . [Ex parte Young (1908) allows suits which seek only] injunctive or declaratory relief. . . . Even a suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally. . . .

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

1. The sole remaining question is whether Maine has waived its immunity. . . . The State, we conclude, has not consented to suit.
2. . . . The judgment of the Supreme Judicial Court of Maine is Affirmed.

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

In Seminole Tribe of Fla. v. Florida (1996), a majority of this Court invoked the 11th Amendment to declare that the federal judicial power under Article III of the Constitution does not reach a private action against a State, even on a federal question. In the Court’s conception, however, the 11th Amendment was understood as having been enhanced by a “background principle” of state sovereign immunity (understood as immunity to suit) that operated beyond its limited codification in the Amendment, dealing solely with federal citizen-state diversity jurisdiction. To the Seminole Tribe dissenters, of whom I was one, the Court’s enhancement of the Amendment was at odds with constitutional history and at war with the conception of divided sovereignty that is the essence of American federalism.

Today’s issue arises naturally in the aftermath of the decision in Seminole Tribe. The Court holds that the Constitution bars an individual suit against a State to enforce a federal statutory right under the Fair Labor Standards Act of 1938 (FLSA) when brought in the State’s courts over its objection. In thus complementing its earlier decision, the Court of course confronts the fact that the state forum renders the 11th Amendment beside the point, and it has responded by discerning a simpler and more straightforward theory of state sovereign immunity than it found in Seminole Tribe: a State’s sovereign immunity from all individual suits is a “fundamental aspect” of state sovereignty “confirm[ed]” by the 10th Amendment. As a consequence, Seminole Tribe‘s contorted reliance on the 11th Amendment and its background was presumably unnecessary; the 10th would have done the work with an economy that the majority in Seminole Tribe would have welcomed. Indeed, if the Court’s current reasoning is correct, the 11th Amendment itself was unnecessary. Whatever Article III may originally have said about the federal judicial power, the embarrassment to the State of Georgia occasioned by attempts in federal court to enforce the State’s war debt could easily have been avoided if only the Court that decided Chisholm v. Georgia (1793) had understood a State’s inherent, 10th Amendment right to be free of any judicial power, whether the court be state or federal, and whether the cause of action arise under state or federal law.

The sequence of the Court’s positions prompts a suspicion of error, and skepticism is confirmed by scrutiny of the Court’s efforts to justify its holding. There is no evidence that the 10th Amendment constitutionalized a concept of sovereign immunity as inherent in the notion of statehood, and no evidence that any concept of inherent sovereign immunity was understood historically to apply when the sovereign sued was not the font of the law. Nor does the Court fare any better with its subsidiary lines of reasoning, that the state-court action is barred by the scheme of American federalism, a result supposedly confirmed by a history largely devoid of precursors to the action considered here. The Court’s federalism ignores the accepted authority of Congress to bind States under the FLSA and to provide for enforcement of federal rights in state court. The Court’s history simply disparages the capacity of the Constitution to order relationships in a Republic that has changed since the founding.

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

1791. The Court rests its decision principally on the claim that immunity from suit was “a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution,” an aspect which the Court understands to have survived the ratification of the Constitution in 1788 and to have been “confirm[ed]” and given constitutional status, by the adoption of the 10th Amendment in 1791. If the Court truly means by “sovereign immunity” what that term meant at common law, its argument would be insupportable. While sovereign immunity entered many new state legal systems as a part of the common law selectively received from England, it was not understood to be indefeasible or to have been given any such status by the new National Constitution, which did not mention it. . . . Had the question been posed, state sovereign immunity could not have been thought to shield a State from suit under federal law on a subject committed to national jurisdiction by Article I of the Constitution. Congress exercising its conceded Article I power may unquestionably abrogate such immunity. I set out this position at length in my dissent in Seminole Tribe and will not repeat it here.

The Court does not, however, offer today’s holding as a mere corollary to its reasoning in Seminole Tribe, substituting the 10th Amendment for the 11th as the occasion demands, and it is fair to read its references to a “fundamental aspect” of state sovereignty as referring not to a prerogative inherited from the Crown, but to a conception necessarily implied by statehood itself. The conception is thus not one of common law so much as of natural law, a universally applicable proposition discoverable by reason. This, I take it, is the sense in which the Court so emphatically relies on Alexander Hamilton’s reference in The Federalist No. 81 to the States’ sovereign immunity from suit as an “inherent” right, a characterization that does not require, but is at least open to, a natural law reading.

I understand the Court to rely on the Hamiltonian formulation with the object of suggesting that its conception of sovereign immunity as a “fundamental aspect” of sovereignty was a substantially popular, if not the dominant, view in the periods of Revolution and Confederation. There is, after all, nothing else in the Court’s opinion that would suggest a basis for saying that the ratification of the 10th Amendment gave this “fundamental aspect” its constitutional status and protection against any legislative tampering by Congress. The Court’s principal rationale for today’s result, then, turns on history: was the natural law conception of sovereign immunity as inherent in any notion of an independent State widely held in the United States in the period preceding the ratification of 1788 (or the adoption of the 10th Amendment in 1791)?

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

I-A. The American Colonies did not enjoy sovereign immunity, that being a privilege understood in English law to be reserved for the Crown alone; “antecedent to the Declaration of Independence, none of the colonies were, or pretended to be, sovereign states,” 1 J. Story, Commentaries on the Constitution § 207, p. 149 (5th ed. 1891). Several colonial charters, including those of Massachusetts, Connecticut, Rhode Island, and Georgia, expressly specified that the corporate body established thereunder could sue and be sued. . . .

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

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

I-D. At the close of the ratification debates, the issue of the sovereign immunity of the States under Article III had not been definitively resolved, and in some instances the indeterminacy led the ratification conventions to respond in ways that point to the range of thinking about the doctrine. Several state ratifying conventions proposed amendments and issued declarations that would have exempted States from subjection to suit in federal court. . . .

Unlike the Rhode Island proposal, which hinted at a clarification of Article III, the Virginia and North Carolina ratifying conventions proposed amendments that by their terms would have fundamentally altered the content of Article III. The Virginia Convention’s proposal for a new Article III omitted entirely the language conferring federal jurisdiction over a controversy between a State and citizens of another State, and the North Carolina Convention proposed an identical amendment. . . . These proposals for omission suggest that the conventions of Virginia and North Carolina thought they had subjected themselves to citizen suits under Article III as enacted, and that they wished not to have done so.[1] There is, thus, no suggestion in their resolutions that Article III as drafted was fundamentally at odds with an indefeasible natural law sovereignty, or with a conception that went to the essence of what it meant to be a State. At all events, the state ratifying conventions’ felt need for clarification on the question of state suability demonstrates that uncertainty surrounded the matter even at the moment of ratification. This uncertainty set the stage for the divergent views expressed in Chisholm.

I-E. If the natural law conception of sovereign immunity as an inherent characteristic of sovereignty enjoyed by the States had been broadly accepted at the time of the founding, one would expect to find it reflected somewhere in the five opinions delivered by the Court in Chisholm v. Georgia (1793). Yet that view did not appear in any of them. And since a bare two years before Chisholm, the Bill of Rights had been added to the original Constitution, if the 10th Amendment had been understood to give federal constitutional status to state sovereign immunity so as to endue it with the equivalent of the natural law conception, one would be certain to find such a development mentioned somewhere in the Chisholm writings. In fact, however, not one of the opinions espoused the natural law view, and not one of them so much as mentioned the 10th Amendment. Not even Justice Iredell, who alone among the Justices thought that a State could not be sued in federal court, echoed Hamilton or hinted at a constitutionally immutable immunity doctrine.

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

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

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

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

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

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

This last position [that the King is sovereign and no court can have jurisdiction over him] is only a branch of a much more extensive principle, on which a plan of systematic despotism has been lately formed in England, and prosecuted with unwearied assiduity and care. . . . The principle is, that all human law must be prescribed by a superior. This principle I mean not now to examine. Suffice it, at present to say, that another principle, very different in its nature and operations, forms, in my judgment, the basis of sound and genuine jurisprudence; laws derived from the pure source of equality and justice must be founded on the CONSENT of those, whose obedience they require. The sovereign, when traced to his source, must be found in the man.

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

Chief Justice Jay took a less vehement tone in his opinion, but he, too, denied the applicability of the doctrine of sovereign immunity to the States. He explained the doctrine as an incident of European feudalism and said that by contrast, “[n]o such ideas obtain here. . . .”

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

In sum, then, in Chisholm two Justices (Jay and Wilson), both of whom had been present at the Constitutional Convention, took a position suggesting that States should not enjoy sovereign immunity (however conceived) even in their own courts; one (Cushing) was essentially silent on the issue of sovereign immunity in state court; one (Blair) took a cautious position affirming the pragmatic view that sovereign immunity was a continuing common law doctrine and that States would permit suit against themselves as of right; and one (Iredell) expressly thought that state sovereign immunity at common-law rightly belonged to the sovereign States. Not a single Justice suggested that sovereign immunity was an inherent and indefeasible right of statehood, and neither counsel for Georgia before the Circuit Court, nor Justice Iredell seems even to have conceived the possibility that the new 10th Amendment produced the equivalent of such a doctrine. This dearth of support makes it very implausible for today’s Court to argue that a substantial (let alone a dominant) body of thought at the time of the framing understood sovereign immunity to be an inherent right of statehood, adopted or confirmed by the 10th Amendment. . . .

The Court, citing Hans v. Louisiana (1890), says that the 11th Amendment “overruled” Chisholm, but the animadversion is beside the point. The significance of Chisholm is its indication that in 1788 and 1791 it was not generally assumed (indeed, hardly assumed at all) that a State’s sovereign immunity from suit in its own courts was an inherent, and not merely a common-law, advantage. On the contrary, the testimony of five eminent legal minds of the day confirmed that virtually everyone who understood immunity to be legitimate saw it as a common-law prerogative (from which it follows that it was subject to abrogation by Congress as to a matter within Congress’s Article I authority). . . .

Nor can the Court make good on its claim that the enactment of the 11th Amendment retrospectively reestablished the view that had already been established at the time of the framing (though eluding the perception of all but one Member of the Supreme Court), and hence “acted . . . to restore the original constitutional design.” There was nothing “established” about the position espoused by Georgia in the effort to repudiate its debts, and the Court’s implausible suggestion to the contrary merely echoes the brio of its remark in Seminole Tribe that Chisholm was “contrary to the well-understood meaning of the Constitution.” [Citing Principality of Monaco v. Mississippi (1934).] The fact that Chisholm was no conceptual aberration is apparent from the ratification debates and the several state requests to rewrite Article III. There was no received view either of the role this sovereign immunity would play in the circumstances of the case or of a conceptual foundation for immunity doctrine at odds with Chisholm’s reading of Article III. As an author on whom the Court relies, has it, “there was no unanimity among the Framers that immunity would exist,” D. Currie, The Constitution in the Supreme Court: The First Century 19 (1985).

It should not be surprising, then, to realize that although much post-Chisholm discussion was disapproving (as the States saw their escape from debt cut off), the decision had champions “every bit as vigorous in defending their interpretation of the Constitution as were those partisans on the other side of the issue.” Marcus & Wexler, Suits Against States: Diversity of Opinion In The 1790s, 1993 J. Sup.Ct. Hist. 73, 83; see, e.g., 5 Documentary History of the Supreme Court, at 251–52, 252–53, 262–64, 268–69 (newspaper articles supporting holding in Chisholm); 5 Documentary History, at 616 (statement of a Committee of Delaware Senate in support of holding in Chisholm). The federal citizen-state diversity jurisdiction was settled by the 11th Amendment; Article III was not “restored.” . . .

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

II-A. . . . “In America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other.” McCulloch v. Maryland (1819).

Hence the flaw in the Court’s appeal to federalism. The State of Maine is not sovereign with respect to the national objective of the FLSA.[2] It is not the authority that promulgated the FLSA, on which the right of action in this case depends. That authority is the United States acting through the Congress, whose legislative power under Article I of the Constitution to extend FLSA coverage to state employees has already been decided, see Garcia v. San Antonio Metropolitan Transit Authority (1985), and is not contested here. . . .

III. If neither theory nor structure can supply the basis for the Court’s conceptions of sovereign immunity and federalism, then perhaps history might. The Court apparently believes that because state courts have not historically entertained Commerce Clause-based federal-law claims against the States, such an innovation carries a presumption of unconstitutionality. At the outset, it has to be noted that this approach assumes a more cohesive record than history affords. . . .

It was at one time, though perhaps not from the framing, believed that “Congress’ authority to regulate the States under the Commerce Clause” was limited by “certain underlying elements of political sovereignty . . . deemed essential to the States’ ‘separate and independent existence.'” See Garcia [quoting Lane County v. Oregon (1868)]. On this belief, the preordained balance between state and federal sovereignty was understood to trump the terms of Article I and preclude Congress from subjecting States to federal law on certain subjects. (From time to time, wage and hour regulation has been counted among those subjects.) As a consequence it was rare, if not unknown, for state courts to confront the situation in which federal law enacted under the Commerce Clause provided the authority for a private right of action against a State in state court. The question of state immunity from a Commerce Clause-based federal-law suit in state court thus tended not to arise for the simple reason that acts of Congress authorizing such suits did not exist.

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

Least of all is it to the point for the Court to suggest that because the Framers would be surprised to find States subjected to a federal-law suit in their own courts under the commerce power, the suit must be prohibited by the Constitution. The Framers’ intentions and expectations count so far as they point to the meaning of the Constitution’s text or the fair implications of its structure, but they do not hover over the instrument to veto any application of its principles to a world that the Framers could not have anticipated.

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

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

IV-A. If today’s decision occasions regret at its anomalous versions of history and federal theory, it is the more regrettable in being the second time the Court has suddenly changed the course of prior decision in order to limit the exercise of authority over a subject now concededly within the Article I jurisdiction of the Congress. The FLSA, which requires employers to pay a minimum wage, was first enacted in 1938, with an exemption for States acting as employers. See Maryland v. Wirtz (1968). In 1966, it was amended to remove the state employer exemption so far as it concerned workers in hospitals, institutions, and schools. In Wirtz, the Court upheld the amendment over the dissent’s argument that extending the FLSA to these state employees was “such a serious invasion of state sovereignty protected by the 10th Amendment that it is . . . not consistent with our constitutional federalism” (opinion of Douglas, J.).

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

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

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

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

So there is much irony in the Court’s profession that it grounds its opinion on a deeply rooted historical tradition of sovereign immunity, when the Court abandons a principle nearly as inveterate, and much closer to the hearts of the Framers: that where there is a right, there must be a remedy. . . .

Yet today the Court has no qualms about saying frankly that the federal right to damages afforded by Congress under the FLSA cannot create a concomitant private remedy. The right was “made for the benefit of” petitioners; they have been “hindered by another of that benefit”; but despite what has long been understood as the “necessary consequence of law,” they have no action, cf. Ashby v. White, (Eng. QB 1702) 1702. It will not do for the Court to respond that a remedy was never available where the right in question was against the sovereign. A State is not the sovereign when a federal claim is pressed against it, and even the English sovereign opened itself to recovery and, unlike Maine, provided the remedy to complement the right. To the Americans of the founding generation it would have been clear (as it was to Chief Justice Marshall) that if the King would do right, the democratically chosen Government of the United States could do no less. . . .

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

 

^[1]. The Court says “there is no evidence that [the proposed amendments] were directed toward the question of sovereign immunity or that they reflect an understanding that the States would be subject to private suits without consent under Article III as drafted.” No evidence, that is, except the proposed amendments themselves, which would have omitted the Citizen-State Diversity Clause. If the proposed omission is not evidence going to sovereign immunity to private suits, one wonders what would satisfy the Court.

 

^[2]. It is therefore sheer circularity for the Court to talk of the “anomaly,” that would arise if a State could be sued on federal law in its own courts, when it may not be sued under federal law in federal court, Seminole Tribe. The short and sufficient answer is that the anomaly is the Court’s own creation: the 11th Amendment was never intended to bar federal-question suits against the States in federal court. The anomaly is that Seminole Tribe, an opinion purportedly grounded in the 11th Amendment, should now be used as a lever to argue for state sovereign immunity in state courts, to which the 11th Amendment by its terms does not apply.