DECISION: Federal court held to lack jurisdiction over Indian tribe's suit against Florida and its governor to enforce Indian Gaming Regulatory Act.

JUDGES: REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 76. SOUTER, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ., joined, post, p. 100.

OPINION:  [*47]   [**1119]   [***261]  CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

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

 [*48]  I

Congress passed the Indian Gaming Regulatory Act in 1988 in order to provide a statutory basis for the operation and regulation of gaming by Indian tribes. See 25 U.S.C. § 2702. The Act divides gaming on Indian lands into three classes -- I, II, and III -- and provides a different regulatory scheme for each class. Class III gaming -- the type with which we are here concerned -- is defined as "all forms of gaming that are not class I gaming or class II gaming," § 2703(8), and includes such things as slot machines, casino games, banking card games, dog racing, and lotteries. n1 It is the most  [**1120]  heavily regulated of the three classes. The Act provides that class III gaming is lawful only where it is: (1) authorized by an ordinance or resolution that (a) is adopted by  [***262]  the governing body of the Indian tribe, (b) satisfies certain statutorily prescribed requirements, and (c) is approved by the National Indian Gaming Commission; (2) located in a State that permits such gaming for any purpose by any person, organization, or entity; and (3) "conducted in conformance with a Tribal-State compact entered into by the  [*49]  Indian tribe and the State under paragraph (3) that is in effect."

. . . Section 2710(d)(3) describes the process by which a State and an Indian tribe begin negotiations toward a Tribal-State compact:

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

"(A) The United States district courts shall have jurisdiction over --

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

"(B)(i) An Indian tribe may initiate a cause of action described in subparagraph (A)(i) only after the close of the 180-day period beginning on the date on which the  [*50]  Indian tribe requested the State to enter into negotiations under paragraph (3)(A)."

. . . [W]e granted certiorari in order to consider two questions: (1) Does the Eleventh Amendment prevent Congress from authorizing suits by Indian tribes against States for prospective injunctive relief to enforce legislation enacted pursuant to the Indian Commerce Clause?; and (2) Does the doctrine of Ex parte Young permit suits against a State's Governor for prospective injunctive relief to enforce the good-faith bargaining requirement of the Act? We answer the first question in the affirmative, the second in the negative . . .

 [*54]  The Eleventh Amendment provides:

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

 [*55]   [**1123]  Here, petitioner has sued the State of Florida and it is undisputed that Florida has not consented to the suit. Petitioner nevertheless contends that its suit is not barred by state sovereign immunity. First, it argues that Congress through the Act abrogated the States' sovereign immunity. Alternatively, petitioner maintains that its suit against the Governor may go forward under Ex parte Young, supra. We consider each of those arguments in turn.

II

Petitioner argues that Congress through the Act abrogated the States' immunity from suit. In order to determine whether Congress has abrogated the States' sovereign immunity, we ask two questions: first, whether Congress has "unequivocally expressed its intent to abrogate the immunity,"; and second, whether Congress has acted "pursuant to a valid exercise of power," ibid.

A

. . . Here, we agree . . . that Congress has . . . provided an "unmistakably clear" statement of its intent to abrogate. . . .

B

Having concluded that Congress clearly intended to abrogate the States' sovereign immunity through § 2710(d)(7), we  [*58]  turn now to consider whether the Act was passed "pursuant to a valid exercise of power." . . .

. . . [O]ur inquiry into whether Congress has the power to abrogate unilaterally the States' immunity from suit is narrowly focused on one question: Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate? Previously, in conducting that inquiry, we have found authority to abrogate under only two provisions of the Constitution. In Fitzpatrick, we recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had fundamentally altered the balance of state and federal power struck by the Constitution. We noted that § 1 of the Fourteenth Amendment contained prohibitions expressly directed at the States and that § 5 of the Amendment expressly provided that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." We held that through the Fourteenth Amendment, federal power extended to intrude upon the province of the Eleventh Amendment and therefore that § 5 of the Fourteenth Amendment allowed Congress to abrogate the immunity from suit guaranteed by that Amendment.

In only one other case has congressional abrogation of the States' Eleventh Amendment immunity been upheld. In Pennsylvania v. Union Gas Co. (1989), a plurality of the Court found that the Interstate Commerce Clause, Art. I, § 8, cl. 3, granted Congress the power to abrogate state sovereign immunity, stating that the power to regulate interstate commerce would be "incomplete without the authority to render States liable in damages."  [***269]  491 U.S. at 19-20. Justice White added the fifth vote necessary to the result in that case, but wrote separately in order to express  [*60]  that he "[did] not agree with much of [the plurality's] reasoning."

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

Petitioner begins with the plurality decision in Union Gas and contends that "there is no principled basis for finding that congressional power under the Indian Commerce Clause is less than that conferred by the Interstate Commerce Clause." Brief for Petitioner 17. Noting that the Union Gas plurality found the power to abrogate from the "plenary" character of the grant of authority over interstate commerce, petitioner emphasizes that the Interstate Commerce Clause leaves the States with some power to regulate, whereas the Indian Commerce Clause makes "Indian relations . . . the exclusive province of federal law." Contending that the Indian Commerce Clause vests the Federal Government with "the duty of protecting" the tribes from "local ill feeling" and "the people of the States," petitioner argues that the abrogation power is  [**1126]  necessary "to protect the tribes from state action denying federally guaranteed rights."

 [***HR6A]  [6A]
Respondents dispute petitioner's analogy between the Indian Commerce Clause and the Interstate Commerce Clause. They note that we have recognized that "the Interstate Commerce and Indian Commerce Clauses have very different  [*61]  applications," and from that they argue that the two provisions are "wholly dissimilar." Brief for Respondents 21. Respondents contend that the Interstate Commerce Clause grants the power of abrogation only because Congress' authority to regulate interstate commerce would be "incomplete" without that "necessary" power. The Indian Commerce Clause is distinguishable, respondents contend, because it gives Congress complete authority over the Indian tribes. Therefore, the abrogation power is not "necessary" to Congress' exercise of its power under the Indian Commerce Clause.

 [***270]  Both parties make their arguments from the plurality decision in Union Gas, and we, too, begin there. We think it clear that Justice Brennan's opinion finds Congress' power to abrogate under the Interstate Commerce Clause from the States' cession of their sovereignty when they gave Congress plenary power to regulate interstate commerce.  Respondents' focus elsewhere is misplaced. While the plurality decision states that Congress' power under the Interstate Commerce Clause would be incomplete without the power to abrogate, that statement is made solely in order to emphasize the broad scope of Congress' authority over interstate commerce. Moreover, respondents' rationale would mean that where Congress has  [*62]  less authority, and the States have more, Congress' means for exercising that power must be greater. We read the plurality opinion to provide just the opposite. Indeed, it was in those circumstances where Congress exercised complete authority that Justice Brennan thought the power to abrogate most necessary. Id., at 20 ("Since the States may not legislate at all in [the aforementioned] situations, a conclusion that Congress may not create a cause of action for money damages against the States would mean that no one could do so. And in many situations, it is only money damages that will carry out Congress' legitimate objectives under the Commerce Clause").

Following the rationale of the Union Gas plurality, our inquiry is limited to determining whether the Indian Commerce Clause, like the Interstate Commerce Clause, is a grant of authority to the Federal Government at the expense of the States. The answer to that question is obvious. If anything, the Indian Commerce Clause accomplishes a greater transfer of power from the States to the Federal Government than does the Interstate Commerce Clause. This is clear enough from the fact that the States still exercise some authority over interstate trade but have been divested of virtually all authority over Indian commerce and Indian tribes. Under the rationale of Union Gas, if the States' partial cession of authority over a particular area includes cession of the immunity from suit, then their virtually total cession of authority over a different area must also include cession of the immunity from suit. We agree with petitioner that the plurality opinion in Union Gas allows no principled distinction in favor of the States to be drawn between the Indian Commerce Clause and the Interstate Commerce Clause.

Respondents argue, however, that we need not conclude that the Indian Commerce Clause grants the power to abrogate the States' sovereign immunity. Instead, they contend that if we find the rationale of the Union Gas plurality to extend to the Indian Commerce Clause, then "Union Gas should be reconsidered and overruled." Brief for Respondents 25. Generally, the principle of stare decisis, and the interests that it serves, viz., "the evenhanded, predictable, and consistent development of legal principles, . . . reliance on judicial decisions, and . . . the actual and perceived integrity of the judicial process," counsel strongly against reconsideration of our precedent. Nevertheless, we always have treated stare decisis as a "principle of policy," and not as an "inexorable command,". "When governing decisions are unworkable or are badly reasoned, 'this Court has never felt constrained to follow precedent.'" Our willingness to reconsider our earlier decisions has been "particularly true in constitutional cases, because in such cases 'correction through legislative action is practically impossible.'"

The Court in Union Gas reached a result without an expressed rationale agreed upon by a majority of the Court. We have already seen that Justice Brennan's opinion received the support of only three other Justices.  Of the other five, Justice White, who provided the fifth vote for the result, wrote separately in order to indicate his disagreement with the plurality's rationale, id., at 57 (opinion concurring in judgment and dissenting in part), and four Justices joined together in a dissent that rejected the plurality's rationale. Since it was issued, Union Gas has created confusion among the lower courts that have sought to understand and apply the deeply fractured decision.

The plurality's rationale also deviated sharply from our established federalism jurisprudence and essentially eviscerated our decision in  [***272]  Hans. See Union Gas, supra, at 36 ("If Hans means only that federal-question suits for money damages against the States cannot be brought in federal court unless Congress clearly says so, it means nothing at all") (SCALIA, J., dissenting). It was well established in 1989 when Union Gas was decided that the Eleventh Amendment stood for the constitutional principle that state sovereign immunity limited the federal courts' jurisdiction under Article III. The text of the Amendment itself is clear enough on this point: "The Judicial power of the United States shall not be construed to extend to any suit . . . ." And our decisions since Hans had been equally clear that the Eleventh Amendment reflects "the fundamental principle of sovereign immunity [that] limits the  [**1128]  grant of judicial authority in Art. III," Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 97-98, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984); see Union Gas, supra, at 38, ("'The entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given . . .'") (SCALIA,  [*65]  J., dissenting) (quoting Ex parte New York, 256 U.S. 490, 497, 65 L. Ed. 1057, 41 S. Ct. 588 (1921)); see also cases cited at n. 7, supra. As the dissent in Union Gas recognized, the plurality's conclusion -- that Congress could under Article I expand the scope of the federal courts' jurisdiction under Article III -- "contradicted our unvarying approach to Article III as setting forth the exclusive catalog of permissible federal-court jurisdiction." Union Gas, supra, at 39.

Never before the decision in Union Gas had we suggested that the bounds of Article III could be expanded by Congress operating pursuant to any constitutional provision other than the Fourteenth Amendment. Indeed, it had seemed fundamental that Congress could not expand the jurisdiction of the federal courts beyond the bounds of Article III. Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803). The plurality's citation of prior decisions for support was based upon what we believe to be a misreading of precedent. The plurality claimed support for its decision from a case holding the unremarkable, and completely unrelated, proposition that the States may waive their sovereign immunity, and cited as precedent propositions that had been merely assumed for the sake of argument in earlier cases.

The plurality's extended reliance upon our decision in Fitzpatrick v. Bitzer (1976), that Congress could under the Fourteenth Amendment abrogate the States' sovereign immunity was also, we believe, misplaced. Fitzpatrick was based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption of the Eleventh Amendment and the ratification of the Constitution, operated  [***273]   [*66]  to alter the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment. Id., at 454. As the dissent in Union Gas made clear, Fitzpatrick cannot be read to justify "limitation of the principle embodied in the Eleventh Amendment through appeal to antecedent provisions of the Constitution." Union Gas, supra, at 42 (SCALIA, J., dissenting).

In the five years since it was decided, Union Gas has proved to be a solitary departure from established law.  Reconsidering the decision in Union Gas, we conclude that none of the policies underlying stare decisis require our continuing adherence to its holding. The decision has, since its issuance, been of questionable precedential value, largely because a majority of the Court expressly disagreed with the rationale of the plurality. The case involved the interpretation of the Constitution and therefore may be altered only by constitutional amendment or revision by this Court. Finally, both the result in Union Gas and the plurality's rationale depart from our established understanding of the Eleventh Amendment and undermine the accepted function of Article III. We feel bound to conclude that Union Gas was wrongly decided and that it should be, and now is, overruled.

The dissent makes no effort to defend the decision in Union Gas, see post,  [**1129]  at 100, but nonetheless would find congressional power to abrogate in this case. n11 Contending that our decision is a novel extension of the Eleventh Amendment, the dissent chides us for "attending" to dicta. We adhere in this case, however, not to mere obiter dicta, but rather to the well-established rationale upon which the  [*67]  Court based the results of its earlier decisions. When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound. For over a century, we have grounded our decisions in the oft-repeated  [***274]  understanding of state sovereign immunity as an essential part of the Eleventh Amendment. In Principality of Monaco v. Mississippi, 292 U.S. 313, 78 L. Ed. 1282, 54 S. Ct. 745 (1934), the Court held that the Eleventh Amendment barred a suit brought against a State by a foreign state. Chief Justice Hughes wrote for a unanimous Court:

"Neither the literal sweep of the words of Clause one of § 2 of Article III, nor the absence of restriction in the letter of the Eleventh Amendment, permits the conclusion that in all controversies of the sort described in Clause one, and omitted from the words of the Eleventh Amendment, a State may be sued without her consent. Thus Clause one specifically provides that the judicial Power shall extend 'to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.' But, although a case may arise under the Constitution and laws of the United States, the judicial power does not extend to it if the suit is  [*68]  sought to be prosecuted against a State, without her consent, by one of her own citizens. . . .

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

The dissent, to the contrary, disregards our case law in favor of a theory cobbled  [**1130]  together from law review articles and its own version of historical events. The dissent cites not a single decision since Hans (other than Union Gas) that supports its view of state sovereign immunity, instead relying upon the now-discredited decision in Chisholm v. Georgia (1793).  Its undocumented and highly speculative extralegal explanation of  [*69]  the decision in Hans is a disservice to the Court's  [***275]  traditional method of adjudication.

The dissent mischaracterizes the Hans opinion. That decision found its roots not solely in the common law of England, but in the much more fundamental "'jurisprudence in all civilized nations.'" The dissent's proposition that the common law of England, where adopted by the States, was open to change by the Legislature is wholly unexceptionable and largely beside the point: that common law provided the substantive rules of law rather than jurisdiction. It also is noteworthy that the principle of state sovereign immunity stands distinct from other principles of the common law in that only the former prompted a specific constitutional amendment.

Hans -- with a much closer vantage point than the dissent -- recognized that the decision in Chisholm was contrary to the well-understood meaning of the Constitution. The dissent's conclusion that the decision in Chisholm was "reasonable," post, at 106, certainly would have struck the Framers of the Eleventh Amendment as quite odd: That decision created "such a shock of surprise that the Eleventh Amendment was at once proposed and adopted." Monaco, supra, at 325. The dissent's lengthy analysis of the text of the Eleventh Amendment is directed at a straw man -- we long have recognized that blind reliance upon the text of the Eleventh Amendment is "'to strain the Constitution and the law to a construction never imagined or dreamed of.'" Monaco, supra, at 326, quoting Hans, supra, at 15. The text dealt in terms only with the problem presented by the decision in Chisholm; in light of the fact that the federal courts did not  [*70]  have federal-question jurisdiction at the time the Amendment was passed (and would not have it until 1875), it seems unlikely that much thought was given to the prospect of federal-question jurisdiction over the States.

That same consideration causes the dissent's criticism of the views of Marshall, Madison, and Hamilton to ring hollow. The dissent cites statements made by those three influential Framers, the most natural reading of which would preclude all federal jurisdiction over an unconsenting State. n12 Struggling against this reading, however, the dissent finds significant the absence of any  [***276]  contention that sovereign immunity would affect the new federal-question jurisdiction. Post, at 142-150. But the lack of any statute vesting general federal-question jurisdiction in the federal courts until much later makes the dissent's demand for greater specificity about a then-dormant jurisdiction overly exacting. n13

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n12 We note here also that the dissent quotes selectively from the Framers' statements that it references. The dissent cites the following, for instance, as a statement made by Madison: "The Constitution 'give[s] a citizen a right to be heard in the federal courts; and if a state should condescend to be a party, this court may take cognizance of it.'" Post, at 143 (opinion of SOUTER, J.). But that statement, perhaps ambiguous when read in isolation, was preceded by the following: "Jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal courts. It appears to me that this can have no operation but this:" See 3 J. Elliot, Debates on the Federal Constitution 533 (2d ed. 1836).

n13 Although the absence of any discussion dealing with federal-question jurisdiction is therefore unremarkable, what is notably lacking in the Framers' statements is any mention of Congress' power to abrogate the States' immunity. The absence of any discussion of that power is particularly striking in light of the fact that the Framers virtually always were very specific about the exception to state sovereign immunity arising from a State's consent to suit. See, e. g., The Federalist No. 81, pp. 487-488 (C. Rossiter ed. 1961) (A. Hamilton) ("It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. . . . Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States and the danger intimated must be merely ideal") (emphasis in the original); 3 Elliot, supra, at 533 (J. Madison) ("It is not in the power of individuals to call any state into court. . . . [The Constitution] can have no operation but this: . . . if a state should condescend to be a party, this court may take cognizance of it").

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 [*71]

In putting forward a new theory of state sovereign immunity, the dissent develops its own vision of the political system created by the Framers, concluding with the statement that "the Framer's principal objectives in rejecting English theories of unitary sovereignty . . . would have been impeded if a new concept of sovereign immunity had taken its place in federal-question cases, and would have been substantially thwarted if that new immunity had been held untouchable by any congressional effort to abrogate it." n14 Post, at 157. This sweeping statement ignores the fact that the Nation survived for nearly two centuries without the question of the existence of such power ever being presented to this Court. And Congress itself waited nearly a century before even conferring federal-question jurisdiction on the lower federal courts. n15
 

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n14 This argument wholly disregards other methods of ensuring the States' compliance with federal law: The Federal Government can bring suit in federal court against a State, see, e. g., United States v. Texas, 143 U.S. 621, 644-645, 36 L. Ed. 285, 12 S. Ct. 488 (1892) (finding such power necessary to the "permanence of the Union"); an individual can bring suit against a state officer in order to ensure that the officer's conduct is in compliance with federal law, see, e. g., Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908); and this Court is empowered to review a question of federal law arising from a state-court decision where a State has consented to suit, see, e. g., Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 264, 5 L. Ed. 257 (1821).

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 [*72]

In overruling Union Gas today, we reconfirm that the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area, like the regulation of Indian commerce, that is under the exclusive control of the Federal Government. Even when the Constitution vests in Congress complete law-making authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States. n16 The Eleventh  [**1132]  Amendment restricts the  [***277]   [*73]  judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction. Petitioner's suit against the State of Florida must be dismissed for a lack of jurisdiction.

III

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

. . . We hold that Ex parte Young is inapplicable to petitioner's suit against the Governor of Florida, and therefore that suit is barred by the Eleventh Amendment and must be dismissed for a lack of jurisdiction.

IV

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

It is so ordered.

DISSENT: JUSTICE STEVENS, dissenting.

This case is about power -- the power of the Congress of the United States to create a private federal cause of action against a State, or its Governor, for the violation of a federal right. In Chisholm v. Georgia (1793), the entire Court -- including Justice Iredell whose dissent provided the blueprint for the Eleventh Amendment -- assumed that Congress had such power. In Hans v. Louisiana (1890) -- a case  [**1134]  the Court purports to follow today -- the Court  [*77]  again assumed that Congress had such power. In Fitzpatrick v. Bitzer (1976), and Pennsylvania v. Union Gas Co. (1989) (STEVENS, J., concurring), the Court squarely held that Congress has such power. In a series of cases beginning with Atascadero State Hospital v. Scanlon (1985), the Court formulated a special "clear statement rule" to determine whether specific Acts of Congress contained an effective exercise of that power. Nevertheless, in a sharp break with the past, today the Court holds that with the narrow and illogical exception of statutes enacted pursuant to the Enforcement Clause of the Fourteenth Amendment, Congress has no such power.

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

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

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

I

For the purpose of deciding this case, I can readily assume that Justice Iredell's dissent in Chisholm v. Georgia, 2 Dall. at 429-450, and the Court's opinion in Hans v. Louisiana (1890), correctly stated the law that should govern our decision today. As I shall explain, both of those opinions relied on an interpretation of an Act of Congress  [***281]  rather than a want of congressional power to authorize a suit against the State.

In concluding that the federal courts could not entertain Chisholm's action against the State of Georgia, Justice Iredell relied on the text of the Judiciary Act of 1789, not the State's assertion that Article III did not extend the judicial power to suits against unconsenting States. Justice Iredell argued  [**1135]  that, under Article III, federal courts possessed only  [*79]  such jurisdiction as Congress had provided, and that the Judiciary Act expressly limited federal-court jurisdiction to that which could be exercised in accordance with "'the principles and usages of law.'" Chisholm v. Georgia. He reasoned that the inclusion of this phrase constituted a command to the federal courts to construe their jurisdiction in light of the prevailing common law, a background legal regime that he believed incorporated the doctrine of sovereign immunity.

Because Justice Iredell believed that the expansive text of Article III did not prevent Congress from imposing this common-law limitation on federal-court jurisdiction, he concluded that judges had no authority to entertain a suit against an unconsenting State. n3 At the same time, although he acknowledged that the Constitution might allow Congress to extend federal-court jurisdiction to such an action, he concluded that the terms of the Judiciary Act of 1789 plainly had not done so.

"[Congress'] direction, I apprehend, we cannot supersede, because it may appear to us not sufficiently extensive. If it be not, we must

wait till other remedies are provided by the same authority. From this it is plain that the Legislature did not chuse to leave to our own  [*80]  discretion the path to justice, but has prescribed one of its own. In doing so, it has, I think, wisely, referred us to principles and usages of law already well known, and by their precision calculated to guard against that innovating spirit of Courts of Justice, which the Attorney-General in another case reprobated with so much warmth, and with whose sentiments in that particular, I most cordially join."

The precise holding in Chisholm is difficult to state because each of the Justices in the majority wrote his own opinion. They seem to have held, however, not that the Judiciary Act of 1789 precluded the defense of sovereign immunity, but that Article III of the Constitution itself required the Supreme Court to entertain original actions  [*81]  against unconsenting States. n5 I agree with Justice  [**1136]  Iredell that such a construction of Article III is incorrect; that Article should not then have been construed, and should not now be construed, to prevent Congress from granting States a sovereign immunity defense in such cases. n6 That reading of Article III, however, explains why the majority's holding in Chisholm could not have been reversed by a simple statutory amendment adopting Justice Iredell's interpretation of the Judiciary Act of 1789. There is a special irony in the fact that the error committed by the Chisholm majority was its decision that this Court, rather than Congress, should define the scope of the sovereign immunity defense. That, of course, is precisely the same error the Court commits today.

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n5 In this respect, Chisholm v. Georgia should be understood to be of a piece with the debate over judicial power famously joined in Martin v. Hunter's Lessee (1816). There, too, the argument centered on whether Congress had the power to limit the seemingly expansive jurisdictional grant that Article III had conferred, not on whether Article III itself provided the relevant limitation.

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In light of the nature of the disagreement between Justice Iredell and his colleagues, Chisholm's holding could have been overturned by simply amending the Constitution to restore to Congress the authority to recognize the doctrine. As it was, the plain text of the Eleventh Amendment would seem to go further and to limit the judicial power itself in a certain class of cases. In doing so, however, the Amendment's  [*82]  quite explicit text establishes only a partial  [***283]  bar to a federal court's power to entertain a suit against a State. n7

Justice Brennan has persuasively explained that the Eleventh Amendment's jurisdictional restriction is best understood to apply only to suits premised on diversity jurisdiction, and JUSTICE SCALIA has agreed that the plain text of the Amendment cannot be read to apply to federal-question cases.  n8 Whatever the precise dimensions of the Amendment, its express terms plainly do not apply to all suits brought against unconsenting States. n9  [*83]  The question thus becomes whether the relatively  [**1137]  modest jurisdictional bar that the Eleventh Amendment imposes should be understood to reveal that a more general jurisdictional bar implicitly inheres in Article III.

The language of Article III certainly gives no indication that such an implicit bar exists. That provision's text specifically provides for federal-court jurisdiction over all cases arising under federal law. Moreover, as I have explained, Justice Iredell's dissent argued that it was the Judiciary Act of 1789, not  [***284]  Article III, that prevented the federal courts from entertaining Chisholm's diversity action against Georgia. Therefore, Justice Iredell's analysis at least suggests that it was by no means a fixed view at the time of the founding that Article III prevented Congress from rendering States suable in federal court by their own citizens. In sum, little more than speculation justifies the conclusion that the Eleventh Amendment's express but partial limitation on the scope of Article III reveals that an implicit but more general one was already in place.

II

The majority appears to acknowledge that one cannot deduce from either the text of Article III or the plain terms of  [*84]  the Eleventh Amendment that the judicial power does not extend to a congressionally created cause of action against a State brought by one of that State's citizens. Nevertheless, the majority asserts that precedent compels that same conclusion. I disagree. The majority relies first on our decision in Hans v. Louisiana, 134 U.S. 1, 33 L. Ed. 842, 10 S. Ct. 504 (1890), which involved a suit by a citizen of Louisiana against that State for a claimed violation of the Contracts Clause. The majority suggests that by dismissing the suit, Hans effectively held that federal courts have no power to hear federal-question suits brought by same-state plaintiffs.

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

Justice Bradley's somewhat cryptic opinion for the Court in Hans relied expressly on the reasoning of Justice Iredell's dissent in Chisholm, which, of course, was premised on the view that the doctrine of state sovereign immunity was a common-law rule that Congress had directed federal courts to respect, not a constitutional immunity that Congress was powerless to displace. For that reason, Justice Bradley explained that the State's immunity from suit by one of its own  [*85]  citizens was based not on a constitutional rule but rather on the fact that Congress had not, by legislation, attempted to overcome the common-law presumption of sovereign immunity. His analysis so clearly supports the position rejected by the majority today that it is worth quoting at length.

  [**1138]  "But besides the presumption that no anomalous and unheard of proceedings or suits were intended to be raised up by the Constitution -- anomalous and unheard of when the Constitution was adopted -- an additional reason why  [***285]  the jurisdiction claimed for the Circuit Court does not exist, is the language of the act of Congress by which its jurisdiction is conferred. The words are these: 'The circuit courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, . . . arising under the Constitution or laws of the United States, or treaties,' etc. -- 'Concurrent with the courts of the several States.' Does not this qualification show that Congress, in legislating to carry the Constitution into effect, did not intend to invest its courts with any new and strange jurisdictions? The state courts have no power to entertain suits by individuals against a State without its consent. Then how does the Circuit Court, having only concurrent jurisdiction, acquire any such power? It is true that the same qualification existed in the judiciary act of 1789, which was before the court in Chisholm v. Georgia, and the majority of the court did not think that it was sufficient to limit the jurisdiction of the Circuit Court. Justice Iredell thought differently. In view of the manner in which that decision was received by the country, the adoption of the Eleventh Amendment, the light of history and the reason of the thing, we think we are at liberty to prefer Justice Iredell's views in this regard." Hans v. Louisiana, 134 U.S. at 18-19.  [*86]

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

It is true that the underlying jurisdictional statute involved in this case, 28 U.S.C. § 1331, does not itself purport to direct federal courts to ignore a State's sovereign immunity any more than did the underlying jurisdictional statute discussed in Hans, the Judiciary Act of 1875. However, unlike in Hans, in this case Congress has, by virtue of the Indian Gaming Regulatory Act, affirmatively manifested its intention to "invest its  [***286]  courts with" jurisdiction beyond the limits set forth in the general jurisdictional statute. 134 U.S. at 18. By contrast, because Hans involved only an implied cause of action based directly on the Constitution, the Judiciary Act of 1875 constituted the sole indication as  [*87]  to whether Congress intended federal-court jurisdiction to extend to a suit against an unconsenting State.

 [**1139]  Given the nature of the cause of action involved in Hans, as well as the terms of the underlying jurisdictional statute, the Court's decision to apply the common-law doctrine of sovereign immunity in that case clearly should not control the outcome here. The reasons that may support a federal court's hesitancy to construe a judicially crafted constitutional remedy narrowly out of respect for a State's sovereignty do not bear on whether Congress may preclude a State's invocation of such a defense when it expressly establishes a federal remedy for the violation of a federal right.

No one has ever suggested that Congress would be powerless to displace the other common-law immunity doctrines that this Court has recognized as appropriate defenses to certain federal claims such as the judicially fashioned remedy in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999  [*88]  (1971). See Mitchell v. Forsyth, 472 U.S. 511, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). Similarly, our cases recognizing qualified officer immunity in § 1983 actions rest on the conclusion that, in passing that statute, Congress did not intend to displace the common-law immunity that officers would have retained under suits premised solely on the general jurisdictional statute. See Tower v. Glover, 467 U.S. 914, 920, 81 L. Ed. 2d 758, 104 S. Ct. 2820 (1984). For that reason, the federal common law of officer immunity that Congress meant to incorporate, not a contrary state immunity, applies in § 1983 cases. See Martinez v. California, 444 U.S. 277, 284, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980). There is no reason why Congress' undoubted power to displace those common-law immunities should be either greater or lesser than its power to displace the common-law sovereign immunity defense.

Some of our precedents do state that the sovereign immunity doctrine rests on fundamental constitutional "postulates" and partakes of  [***287]  jurisdictional aspects rooted in Article III. See ante, at 67-70. Most notably, that reasoning underlies this Court's holding in Principality of Monaco v. Mississippi, 292 U.S. 313, 78 L. Ed. 1282, 54 S. Ct. 745 (1934).

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

. . . Finally, the particular nature of the federal question involved in Hans renders the majority's reliance upon its rule even less defensible. Hans deduced its rebuttable presumption in favor of sovereign immunity largely on the basis of its extensive analysis of cases holding that the sovereign could not be forced to make good on its debts via a private suit. Because Hans, like these other cases, involved a suit that attempted to make a State honor its debt, its holding need not be read to stand even for the relatively limited proposition that there is a presumption in favor of sovereign immunity in all federal-question cases.

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

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

III

In reaching my conclusion that the Constitution does not prevent Congress from making the State of Florida suable in federal court for violating one of its statutes, I emphasize that I agree with the majority that in all cases to which the judicial power does not extend -- either because they are not within any category  [***290]  defined in Article III or because they are within the category withdrawn from Article III by the Eleventh Amendment -- Congress lacks the power to confer jurisdiction on the federal courts. As I have previously insisted: "A statute cannot amend the Constitution."

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

In confronting the question whether a federal grant of jurisdiction is within the scope of Article III, as limited by the Eleventh Amendment, I see no reason to distinguish among statutes enacted pursuant to the power granted to Congress to regulate commerce among the several States, and with the Indian tribes, Art. I, § 8, cl. 3, the power to establish  [*94]  uniform laws on the subject of bankruptcy, Art. I, § 8, cl. 4, the power to promote the progress of science and the arts by granting exclusive rights to authors and inventors, Art. I, § 8, cl. 8, the power to enforce the provisions of the Fourteenth Amendment, § 5, or indeed any other provision of the Constitution. There is no language anywhere in the constitutional text that authorizes Congress to expand the borders of Article III jurisdiction or to limit the coverage of the Eleventh Amendment.

The Court's holdings in Fitzpatrick v. Bitzer (1976), and Pennsylvania v. Union Gas Co. (1989), do unquestionably establish, however, that Congress has the power to deny the States and their officials the right to rely on the nonconstitutional defense of sovereign immunity in an action brought by one of their own citizens. As the opinions in the latter case demonstrate, there can be legitimate disagreement about whether Congress intended a particular statute to authorize litigation against a State. Nevertheless, the Court there squarely held that the Commerce Clause was an adequate source of authority for such a private remedy. . . .

 [*95]  The fundamental error that continues to lead the Court astray is its failure to acknowledge that its modern embodiment of the ancient doctrine of sovereign immunity "has absolutely nothing to do with the limit on judicial power contained in the Eleventh Amendment." It rests rather on concerns of federalism and comity that merit respect but are nevertheless, in cases such as the one before us, subordinate to the plenary power of Congress.

IV

As I noted above, for the purpose of deciding this case, it is not necessary to question the wisdom of the Court's decision in Hans v. Louisiana. Given the absence of precedent for the Court's dramatic application of the sovereign immunity doctrine today, it is nevertheless  [**1143]  appropriate to identify the questionable heritage of the doctrine and to suggest that there are valid reasons for limiting, or even rejecting that doctrine altogether, rather than expanding it.

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

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

 [*96]  Second, centuries ago the belief that the monarch served by divine right made it appropriate to assume that redress for wrongs committed by the sovereign should be the exclusive province of still higher authority. n16 While such a justification for a rule that immunized the sovereign from suit in a secular tribunal might have been acceptable in a jurisdiction where a particular faith is endorsed by the government, it should give rise to skepticism concerning the legitimacy of comparable rules in a society where a constitutional wall separates the State from the Church.

Third, in a society where noble birth can justify preferential treatment, it might have been unseemly to allow a commoner to hale the monarch into court. Justice Wilson explained how foreign such a justification is to this Nation's principles. Moreover, Chief Justice Marshall early on laid to rest the view that the purpose of the Eleventh Amendment was to protect  [***292]  a State's dignity. Cohens v. Virginia (1821). Its purpose, he explained, was far more practical.

"That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. . . . We must ascribe the amendment, then, to some other cause than the dignity of a State. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a State, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister States would be creditors to any considerable amount, and there was reason to retain the jurisdiction  [*97]  of the Court in those cases, because it might be essential to the preservation of peace."

. . . In sum, as far as its common-law ancestry is concerned, there is no better reason for the rule of sovereign immunity "than that so it was laid down in the time of Henry IV." That "reason" for the perpetuation of this  [***293]  ancient doctrine certainly cannot justify the majority's expansion of it.

In this country the sovereignty of the individual States is subordinate both to the citizenry of each State and to the supreme law of the federal sovereign. For that reason, Justice Holmes' explanation for a rule that allows a State to avoid suit in its own courts does not even speak to the question whether Congress should be able to authorize a federal court to provide a private remedy for a State's violation of federal law. In my view, neither the majority's opinion today, nor any earlier opinion by any Member of the Court, has identified any acceptable reason for concluding that the absence of a State's consent to be sued in federal court should affect the power of Congress to authorize federal courts to remedy violations of federal law by States or their officials in actions not covered by the Eleventh Amendment's explicit text. n18

While I am persuaded that there is no justification for permanently enshrining the judge-made law of sovereign immunity, I recognize that federalism concerns -- and even the interest  [*99]  in protecting the solvency of the States that was at work in Chisholm and Hans -- may well justify a grant of immunity from federal litigation in certain classes of cases. Such a grant, however, should be the product of a reasoned decision by the policymaking branch of our Government. For this Court to conclude that timeworn shibboleths iterated and reiterated by judges should take precedence over the deliberations of the Congress of the United States is simply irresponsible.

V

. . . For these reasons, as well as those set forth in JUSTICE SOUTER's opinion, I respectfully dissent.

JUSTICE SOUTER, with whom JUSTICE GINSBURG and JUSTICE BREYER join, dissenting.

In holding the State of Florida immune to suit under the Indian Gaming Regulatory Act, the Court today holds for the first time since the founding of the Republic that Congress has no authority to subject a State to the jurisdiction of a federal court at the behest of an individual asserting a federal right. Although the Court invokes the Eleventh Amendment as authority for this proposition, the only sense in which that amendment might be claimed as pertinent here was tolerantly phrased by JUSTICE STEVENS in his concurring opinion in Pennsylvania v. Union Gas Co., 491 U.S. 1, 23, 105 L. Ed. 2d 1, 109 S. Ct. 2273 (1989). There, he explained how it has come about that we have two Eleventh Amendments, the one ratified in 1795, the other (so-called) invented by the Court nearly a century later in Hans v. Louisiana, 134 U.S. 1, 33 L. Ed. 842, 10 S. Ct. 504 (1890). JUSTICE STEVENS saw in that second Eleventh Amendment no bar to the exercise of congressional authority under the Commerce Clause in providing for suits on a federal question by individuals against a State, and I can only say that after my own canvass of the matter I believe he was entirely correct in that view, for reasons given below. His position, of course, was also the holding in Union Gas, which the Court now overrules and repudiates.

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

 [*101]  I

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

The answer to the first question is not clear, although some of the Framers assumed that States did enjoy immunity in their own courts.  [***295]  The second question was not debated at the time of ratification, except as to citizen-state diversity jurisdiction; n1 there was no unanimity, but in due course the Court in Chisholm v. Georgia , 2 U.S. 419, 2 Dall. 419, 1 L. Ed. 440 (1793), answered that a state defendant enjoyed no such immunity. As to federal-question jurisdiction, state sovereign immunity seems not to have been debated prior to ratification, the silence probably showing a general understanding at the time that the States would have no immunity in such cases.

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n1 The two Citizen-State Diversity Clauses provide as follows: "The judicial Power shall extend . . . to Controversies . . . between a State and Citizens of another State; . . . and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." U.S. Const., Art. III, § 2. . . .

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 [**1146]  The adoption of the Eleventh Amendment soon changed the result in Chisholm, not by mentioning sovereign immunity, but by eliminating citizen-state diversity jurisdiction over cases with state defendants. I will explain why the  [*102]  Eleventh Amendment did not affect federal-question jurisdiction, a notion that needs to be understood for the light it casts on the soundness of Hans's holding that States did enjoy sovereign immunity in federal-question suits. The Hans Court erroneously assumed that a State could plead sovereign immunity against a noncitizen suing under federal-question jurisdiction, and for that reason held that a State must enjoy the same protection in a suit by one of its citizens. The error of Hans's reasoning is underscored by its clear inconsistency with the Founders' hostility to the implicit reception of common-law doctrine as federal law, and with the Founders' conception of sovereign power as divided between the States and the National Government for the sake of very practical objectives.

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

Beyond this third question that elicits today's holding, there is one further issue. To reach the Court's result, it must not only hold the Hans doctrine to be outside the reach of Congress, but must also displace the doctrine of Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), that an officer of the Government may be ordered prospectively to follow federal law, in cases in which the Government may not itself be sued directly. None of its reasons for displacing Young's jurisdictional doctrine withstand scrutiny.

A

The doctrine of sovereign immunity comprises two distinct rules, which are not always separately recognized. The one rule holds that the King or the Crown, as the font of law, is  [*103]  not bound by the law's provisions;  [***296]  the other provides that the King or Crown, as the font of justice, is not subject to suit in its own courts. See, e. g., Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 3-4 (1963). n2 The one rule limits the reach of substantive law; the other, the jurisdiction of the courts. We are concerned here only with the latter rule, which took its common-law form in the high Middle Ages. "At least as early as the thirteenth century, during the reign of Henry III (1216-1272), it was recognized that the king could not be sued in his own courts."

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n2 The first of these notions rests on the ancient maxim that "the King can do no wrong." See, e. g., 1 W. Blackstone, Commentaries *244. . . . In any event, it is clear that the idea of the sovereign, or any part of it, being above the law in this sense has not survived in American law.

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The significance of this doctrine in the nascent American law is less clear, however, than its early development and steady endurance in England might suggest. While some colonial governments may have enjoyed some such immunity, Jacobs, supra, at 6-7, the scope (and even the existence) of this governmental immunity in pre-Revolutionary America remains disputed.

 [*104]  Whatever the scope of sovereign immunity might have been in the Colonies, however, or during the period of Confederation, the proposal to establish a National Government under the Constitution drafted in 1787 presented a prospect unknown to the common law prior to the American experience: the States would become parts of a system in which sovereignty over even domestic matters would be divided or parcelled out between the States and the Nation, the latter to be invested with its own judicial power and the right to prevail against the States whenever their respective substantive laws might be in conflict. With this prospect in mind, the 1787 Constitution might have addressed state sovereign immunity by eliminating whatever sovereign immunity the States previously had, as to any matter subject to federal law or jurisdiction; by recognizing an analogue to the old immunity in the new context of federal jurisdiction, but subject to abrogation as to any matter within that jurisdiction; or by enshrining a doctrine of inviolable state sovereign immunity in the text, thereby giving it constitutional protection in the new federal jurisdiction.

The 1787 draft in fact said nothing on the subject, and it was this very silence that occasioned some, though apparently not widespread, dispute among the Framers and others over whether ratification of the Constitution would preclude a State sued in federal court from asserting sovereign immunity as it could have done on any matter of nonfederal law litigated in its own courts. As it has come down to us, the discussion gave no attention to congressional power under the proposed Article I but focused entirely on the limits of the judicial power provided in Article III. And although the jurisdictional bases together constituting the judicial power of the national courts under § 2 of Article III included questions arising under federal law and cases between States  [*105]  and individuals who are not citizens, n3 it was only upon the latter citizen-state diversity provisions that preratification questions about state immunity from suit or liability centered. n4

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n3 The text reads that "the Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; -- to all Cases affecting Ambassadors, other public Ministers and Consuls; -- to all Cases of admiralty and maritime Jurisdiction; -- to Controversies to which the United States shall be a Party; -- to Controversies between two or more States; -- between a State and Citizens of another State; -- between Citizens of different States, -- between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

n4 The one statement I have found on the subject of States' immunity in federal-question cases was an opinion that immunity would not be applicable in these cases: James Wilson, in the Pennsylvania ratification debate, stated that the federal-question clause would require States to make good on pre-Revolutionary debt owed to English merchants (the enforcement of which was promised in the Treaty of 1783) and thereby "show the world that we make the faith of treaties a constitutional part of the character of the United States; that we secure its performance no longer nominally, for the judges of the United States will be enabled to carry it into effect, let the legislatures of the different states do what they may."

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Later in my discussion I will canvass the details of the debate among the Framers and other leaders of the time; for now it is enough to say that there was no consensus on the issue. There was, on the contrary, a clear disagreement, which was left to fester during the ratification period, to be resolved only thereafter. One other point, however, was also clear: the  [*106]  debate addressed only  [**1148]  the question whether ratification of the Constitution would, in diversity cases and without more, abrogate the state sovereign immunity or allow it to have some application. We have no record that anyone argued for the third option mentioned above, that the Constitution would affirmatively guarantee state sovereign immunity against any congressional action to the contrary. Nor would there have  [***298]  been any apparent justification for any such argument, since no clause in the proposed (and ratified) Constitution even so much as suggested such a position. It may have been reasonable to contend (as we will see that Madison, Marshall, and Hamilton did) that Article III would not alter States' pre-existing common-law immunity despite its unqualified grant of jurisdiction over diversity suits against States. But then, as now, there was no textual support for contending that Article III or any other provision would "constitutionalize" state sovereign immunity, and no one uttered any such contention.

B

The argument among the Framers and their friends about sovereign immunity in federal citizen-state diversity cases, in any event, was short lived and ended when this Court, in Chisholm v. Georgia (1793), chose between the constitutional alternatives of abrogation and recognition of the immunity enjoyed at common law. The 4-to-1 majority adopted the reasonable (although not compelled) interpretation that the first of the two Citizen-State Diversity Clauses abrogated for purposes of federal jurisdiction any immunity the States might have enjoyed in their own courts, and Georgia was accordingly held subject to the judicial power in a common-law assumpsit action by a South Carolina citizen suing to collect a debt. n5 The case also settled, by implication,  [*107]  any question there could possibly have been about recognizing state sovereign immunity in actions depending  [***299]  on the federal question (or "arising under") head of jurisdiction  [*108]   [**1149]  as well. The constitutional text on federal-question jurisdiction, after all, was just as devoid of immunity language as it was on citizen-state diversity, and at the time of Chisholm any influence that general common-law immunity might have had as an interpretive force in construing constitutional language would presumably have been no greater when addressing the federal-question language of Article III than its Diversity Clauses.

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n5 This lengthy discussion of the history of the Constitution's ratification, the Court's opinion in Chisholm v. Georgia, 2 U.S. 419, 2 Dall. 419, 1 L. Ed. 440 (1793), and the adoption of the Eleventh Amendment is necessary to explain why, in my view, the contentions in some of our earlier opinions that Chisholm created a great "shock of surprise" misread the history. The Court's response to this historical analysis is simply to recite yet again Monaco's erroneous assertion that Chisholm created "such a shock of surprise that the Eleventh Amendment was at once proposed and adopted". This response is, with respect, no response at all.

Monaco's ipse dixit that Chisholm created a "shock of surprise" does not make it so. This Court's opinions frequently make assertions of historical fact, but those assertions are not authoritative as to history in the same way that our interpretations of laws are authoritative as to them. . . .

Moreover, in this case, there is ample evidence contradicting the "shock of surprise" thesis. Contrary to Monaco's suggestion, the Eleventh Amendment was not "at once proposed and adopted." Congress was in session when Chisholm was decided, and a constitutional amendment in response was proposed two days later, but Congress never acted on it, and in fact it was not until two years after Chisholm was handed down that an Amendment was ratified.

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Although Justice Iredell's dissent in Chisholm seems at times to reserve judgment on what I have called the third question, whether Congress could authorize suits against the States, his argument is largely devoted to stating the position taken by several federalists that state sovereign immunity was cognizable under the Citizen-State Diversity Clauses, not that state immunity was somehow invisibly codified as an independent constitutional defense. . . . Instead, on Justice Iredell's view, States sued in diversity retained the common-law sovereignty "where no special act of Legislation controuls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the country." While in at least some circumstances States might be held liable to "the authority of the United States," any such liability  [*109]  would depend upon "laws passed under the Constitution and in conformity to it." Finding no congressional action abrogating Georgia's common-law immunity, Justice Iredell concluded that the State should not be liable to suit.

 [***300]  C

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

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

There are two plausible readings of this provision's text. Under the first, it simply repeals the Citizen-State Diversity  [*110]  Clauses of Article III for all cases in which the State appears as a defendant. Under the second, it strips the federal courts of jurisdiction in any case in which a state defendant is sued by a citizen not its own, even if jurisdiction might otherwise rest on the existence of a federal question in the suit. Neither reading of the Amendment, of course, furnishes authority for the Court's view in today's case,  [**1150]  but we need to choose between the competing readings for the light that will be shed on the Hans doctrine and the legitimacy of inflating that doctrine to the point of constitutional immutability as the Court has chosen to do.

The history and structure of the Eleventh Amendment convincingly show that it reaches only to suits subject to federal jurisdiction exclusively under the Citizen-State Diversity Clauses. n8 In precisely tracking the language in Article III providing for citizen-state diversity jurisdiction, the text of the Amendment does, after all, suggest to common  [*111]  sense that only the Diversity Clauses are being addressed. If the Framers had meant the Amendment to bar federal-question suits as well, they could not only have made their intentions clearer very easily, but could simply have adopted the first post-Chisholm proposal, introduced in the House of Representatives by Theodore Sedgwick of Massachusetts on instructions from the Legislature of that Commonwealth. Its provisions would have had exactly that expansive effect:

 
 [***301]  "No state shall be liable to be made a party defendant, in any of the judicial courts, established, or which shall be established under the authority of the United States, at the suit of any person or persons, whether a citizen or citizens, or a foreigner or foreigners, or of any body politic or corporate, whether within or without the United States." Gazette of the United States 303 (Feb. 20, 1793).

. . . The good sense of this early construction of the Amendment as affecting the diversity jurisdiction and no more has the further virtue of making sense of this Court's repeated exercise of appellate jurisdiction in federal-question suits brought against States in their own courts by out-of-staters. Exercising appellate jurisdiction in these cases would have been patent error if the Eleventh Amendment limited federal-question jurisdiction, for the Amendment's unconditional language ("shall not be construed") makes no distinction between trial and appellate jurisdiction. n10 And yet, again and again we have entertained such appellate cases, even when brought against the State in its own name by a  [*114]  private plaintiff for money damages.

In sum, reading the Eleventh Amendment solely as a limit on citizen-state diversity jurisdiction has the virtue of coherence with  [**1152]  this Court's practice, with the views of John Marshall, with the history of the Amendment's drafting, and with  [***303]  its allusive language. Today's majority does not appear to disagree, at least insofar as the constitutional text is concerned; the Court concedes, after all, that "the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts."

Thus, regardless of which of the two plausible readings one adopts, the further point to note here is that there is no possible argument that the Eleventh Amendment, by its terms, deprives federal courts of jurisdiction over all citizen law-suits  [*115]  against the States. Not even the Court advances that proposition, and there would be no textual basis for doing so. n12 Because the plaintiffs in today's case are citizens of the  [*116]  State that they are suing, the Eleventh Amendment simply does not apply to them. We must therefore look elsewhere for the source of that immunity by which the Court says  [***304]  their suit is barred from a federal court. n13

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n12 The Court does suggest that the drafters of the Eleventh Amendment may not have had federal-question jurisdiction in mind, in the apparent belief that this somehow supports its reading. The possibility, however, that those who drafted the Eleventh Amendment intended to deal "only with the problem presented by the decision in Chisholm" would demonstrate, if any demonstration beyond the clear language of the Eleventh Amendment were necessary, that the Eleventh Amendment was not intended to address the broader issue of federal-question suits brought by citizens.

Moreover, the Court's point is built on a faulty foundation. The Court is simply incorrect in asserting that "the federal courts did not have federal-question jurisdiction at the time the Amendment was passed." Ibid. Article III, of course, provided for such jurisdiction, and early Congresses exercised their authority pursuant to Article III to confer jurisdiction on the federal courts to resolve various matters of federal law. In fact, only six years after the passage of the Eleventh Amendment, Congress enacted a statute providing for general federal-question jurisdiction. Act of Feb. 13, 1801, § 11, 2 Stat. 92 ("The said circuit courts respectively shall have cognizance of . . . all cases in law or equity, arising under the constitution and laws of the United States, and treaties made, or which shall be made, under their authority"). It is, of course, true that this statute proved short lived (it was repealed by the Act of Mar. 8, 1802, 2 Stat. 132), and that Congress did not pass another statute conferring general federal jurisdiction until 1875, but the drafters of the Eleventh Amendment obviously could not have predicted such things. The real significance of the 1801 Act is that it demonstrates the awareness among the Members of the early Congresses of the potential scope of Article III. This, in combination with the pre-Eleventh Amendment statutes that conferred federal-question jurisdiction on the federal courts, cast considerable doubt on the Court's suggestion that the issue of federal-question jurisdiction never occurred to the drafters of the Eleventh Amendment; on the contrary, just because these early statutes underscore the early Congresses' recognition of the availability of federal-question jurisdiction, the silence of the Eleventh Amendment is all the more deafening.

n13 The majority chides me that the "lengthy analysis of the text of the Eleventh Amendment is directed at a straw man," ante, at 69. But plain text is the Man of Steel in a confrontation with "background principle[s]" and "'postulates which limit and control'". An argument rooted in the text of a constitutional provision may not be guaranteed of carrying the day, but insubstantiality is not its failing. This is particularly true in construing the jurisdictional provisions of Art. III, which speak with a clarity not to be found in some of the more opentextured provisions of the Constitution. That the Court thinks otherwise is an indication of just how far it has strayed beyond the boundaries of traditional constitutional analysis.

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 [**1153]  II

The obvious place to look elsewhere, of course, is Hans v. Louisiana (1890), and Hans was indeed a leap in the direction of today's holding, even though it does not take the Court all the way. The parties in Hans raised, and the Court in that case answered, only what I have called the second question, that is, whether the Constitution, without  [*117]  more, permits a State to plead sovereign immunity to bar the exercise of federal-question jurisdiction. Although the Court invoked a principle of sovereign immunity to cure what it took to be the Eleventh Amendment's anomaly of barring only those state suits brought by noncitizen plaintiffs, the Hans Court had no occasion to consider whether Congress could abrogate that background immunity by statute. Indeed (except in the special circumstance of Congress's power to enforce the Civil War Amendments), this question never came before our Court until Union Gas, and any intimations of an answer in prior cases were mere dicta. In Union Gas the Court held that the immunity recognized in Hans had no constitutional status and was subject to congressional abrogation. Today the Court overrules Union Gas and holds just the opposite. In deciding how to choose between these two positions, the place to begin is with Hans's holding that a principle of sovereign immunity derived from the common law insulates a State from federal-question jurisdiction at the suit of its own citizen. A critical examination of that case will show that it was wrongly decided, as virtually every recent commentator has concluded. n14 It follows that the Court's further step today of constitutionalizing Hans's rule against abrogation by Congress compounds and immensely magnifies the century-old mistake of Hans itself and takes its place with other historic examples of textually untethered elevations of judicially  [***305]  derived rules to the status of inviolable constitutional law.

A

The Louisiana plaintiff in Hans held bonds issued by that State, which, like virtually all of the Southern States, had issued them in substantial amounts during the Reconstruction era to finance public improvements aimed at stimulating  [*118]  industrial development. E. Foner, Reconstruction: America's Unfinished Revolution 1863-1877, pp. 383-384 (1988); Gibbons, 83 Colum. L. Rev., at 1976-1977. As Reconstruction governments collapsed, however, the post-Reconstruction regimes sought to repudiate these debts, and the Hans litigation arose out of Louisiana's attempt to renege on its bond obligations.

Hans sued the State in federal court, asserting that the State's default amounted to an impairment of the obligation of its contracts in violation of the Contract Clause. This Court affirmed the dismissal of the suit, despite the fact that the case fell within the federal court's "arising under," or federal-question, jurisdiction. Justice Bradley's opinion did not purport to hold that the terms either of Article III or of the Eleventh Amendment barred the suit, but that the ancient doctrine of sovereign immunity that had inspired adoption of the Eleventh Amendment applied to cases beyond the Amendment's scope and otherwise within the federal-question jurisdiction. Indeed, Bradley explicitly admitted that "it is true, the amendment does so read [as to permit Hans's suit], and if there were no other  [**1154]  reason or ground for abating his suit, it might be maintainable." Hans, 134 U.S. at 10. The Court elected, nonetheless, to recognize a broader immunity doctrine, despite the want of any textual manifestation, because of what the Court described as the anomaly that would have resulted otherwise: the Eleventh Amendment (according to the Court) would have barred a federal-question suit by a noncitizen, but the State would have been subject to federal jurisdiction at its own citizen's behest. Id., at 10-11. The State was accordingly held to be free to resist suit without its consent, which it might grant or withhold as it pleased.

. . . Taking Hans only as far as its holding, its vulnerability is apparent. The Court rested its opinion on avoiding the supposed anomaly of recognizing jurisdiction to entertain a citizen's federal question suit, but not one brought by a noncitizen. See  [***306] Hans, supra, at 10-11. There was, however, no such anomaly at all. As already explained, federal-question cases are not touched by the Eleventh Amendment, which leaves a State open to federal-question suits by citizens and noncitizens alike. If Hans had been from Massachusetts the Eleventh Amendment would not have barred his action against Louisiana.

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

How such a result could have been threatened on the basis of a principle not so much as mentioned in the Constitution is difficult to understand. But history provides the explanation. As I have already said, Hans was  [**1155]  one episode in a long story of debt repudiation by the States of the former Confederacy after the end of Reconstruction. The turning point in the States' favor came with the Compromise of 1877, when the Republican Party agreed effectively to end Reconstruction and to withdraw federal troops from the South in return for Southern acquiescence in the decision of the Electoral Commission that awarded the disputed 1876 presidential election to Rutherford B. Hayes. The troop withdrawal, of course, left the federal judiciary "effectively without power to resist the rapidly coalescing repudiation movement." Contract Clause suits like the one brought by Hans thus presented this Court with "a draconian choice between repudiation of some of its most inviolable constitutional doctrines and the humiliation of seeing its political authority compromised as its judgments met the resistance of hostile state governments." Indeed, Louisiana's brief in Hans unmistakably bore witness to this Court's inability to enforce a judgment against a recalcitrant State: "The solemn obligation of a government arising on its own acknowledged bond would not be enhanced by a judgment rendered on such bond. If it either could not or would not make provision for paying the bond, it is probable that it could not or would not make provision for satisfying the judgment." Given the likelihood that a judgment against the State could not be enforced, it is not wholly surprising that the Hans Court found a way to avoid the certainty of the State's contempt.

[*122]   [**1156]  So it is that history explains, but does not honor, Hans. The ultimate demerit of the case centers, however,  [***308]  not on its politics but on the legal errors on which it rested. Before considering  [*123]  those errors, it is necessary to address the Court's contention that subsequent cases have read into Hans what was not there to begin with, that is, a background principle of sovereign immunity that is constitutional in stature and therefore unalterable by Congress.

B

The majority does not dispute the point that Hans v. Louisiana, 134 U.S. 1, 33 L. Ed. 842, 10 S. Ct. 504 (1890), had no occasion to decide whether Congress could abrogate a State's immunity from federal-question suits. The Court insists, however, that the negative answer to that question that it finds in Hans and subsequent opinions is not "mere obiter dicta, but rather . . . the well-established rationale upon which the Court based the results of its earlier decisions." Ante, at 66-67. The exact rationale to which the majority refers, unfortunately, is not easy to discern. . . .

The "rationale" which the majority seeks to invoke is, I think, more nearly stated in its quotation from Principality of Monaco v. Mississippi, 292 U.S. 313, 321-323, 78 L. Ed. 1282, 54 S. Ct. 745 (1934). There, the Court said that "we cannot rest with a mere literal application of the words of § 2 of Article III, or assume that the letter of the  [**1157]  Eleventh Amendment exhausts the restrictions upon suits against non-consenting States." Id., at 322. n19 This statement certainly is true to Hans, which  [*125]  clearly recognized a pre-existing principle of sovereign immunity, broader than the Eleventh Amendment itself, that will ordinarily bar federal-question suits against a nonconsenting State. That was the "rationale" which was sufficient to decide Hans and all of its progeny prior to Union Gas. But leaving aside the indefensibility of that rationale, which I will address further below, that was as far as it went.

The majority, however, would read the "rationale" of Hans and its line of subsequent cases as answering the further question whether the "postulate" of sovereign immunity that "limit[s] and control[s]" the exercise of Article III jurisdiction, Monaco, supra, at 322, is constitutional in stature and therefore unalterable by Congress. It is true that there are statements in the cases that point toward just this conclusion. These statements, however, are dicta in the classic sense, that is, sheer speculation about what would happen in cases not before the court. n20 But this  [*126]   [***310]  is not the only weakness of these statements, which are counterbalanced by many other opinions that have either stated the immunity principle without more, or have suggested that the Hans immunity is not of constitutional stature. . . .

The most damning evidence for the Court's theory that Hans rests on a broad rationale of immunity unalterable by Congress, however, is the Court's proven tendency to disregard the post-Hans dicta in cases where that dicta would have mattered. n24 If it is indeed true that "private suits against States [are] not permitted under Article III (by virtue of the understanding represented by the Eleventh Amendment)," Union Gas, 491 U.S., at 40 (SCALIA, J., concurring in part and dissenting in part), then it is hard to see how a State's sovereign immunity may be waived any more than it may be abrogated by Congress. After all, consent of a party is in all other instances wholly insufficient to create subject-matter  [*128]  jurisdiction where it would not otherwise exist. . . .

If these examples were not enough to distinguish Hans's rationale of a pre-existing doctrine of sovereign immunity from the post-Hans dicta indicating that this immunity is constitutional, one would need only to consider a final set of cases: those  [***312]  in which we have assumed, without deciding, that congressional power to abrogate state sovereign immunity exists even when § 5 of the Fourteenth Amendment has no application. . . .

III

Three critical errors in Hans weigh against constitutionalizing its  [***313]  holding as the majority does today. The first we have already seen: the Hans Court misread the Eleventh Amendment, see supra, at 118-123. It also misunderstood the conditions under which common-law doctrines were received or rejected at the time of the founding, and it fundamentally mistook the very nature of sovereignty in the young Republic that was supposed to entail a State's immunity to federal-question jurisdiction in a federal court. While I would not, as a matter of stare decisis, overrule Hans today, an understanding of its failings on these points will show how the Court today simply compounds  [**1160]  already serious error in taking Hans the further step of investing its rule with constitutional inviolability against the considered judgment of Congress to abrogate it.

A

There is and could be no dispute that the doctrine of sovereign immunity that Hans purported to apply had its origins in the "familiar doctrine of the common law," "derived from the laws and practices of our English ancestors". n26 Although statutes came to affect its importance  [*131]  in the succeeding centuries, the doctrine was never reduced to codification, and Americans took their understanding of immunity doctrine from Blackstone, see 3 W. Blackstone, Commentaries on the Laws of England, ch. 17 (1768). Here, as in the mother country, it remained a common-law rule. . . .

1

. . . The consequence of this anti-English hostility and awareness of changed circumstances was that the independent States continued the colonists' practice of adopting only so much of the common law as they thought applicable to their local conditions. n33 As Justice  [**1163]  Story explained, "the common  [*137]  law of England is not to be taken in all respects  [***317]  to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation." . . .

2

While the States had limited their reception of English common law to principles appropriate to American conditions, the 1787 draft Constitution contained no provision for adopting the common law at all. This omission stood in sharp contrast to the state constitutions then extant, virtually all of which contained explicit provisions dealing with common-law reception. See n. 55, infra. Since the experience in the States set the stage for thinking at the national level, see generally G. Wood, Creation of the American Republic, 1776-1787, p. 467 (1969) (Wood), this failure to address the notion of common-law reception could not have been inadvertent. Instead, the Framers chose to recognize only particular common-law concepts, such as the writ of habeas  [*138]  corpus, U.S. Const., Art. I, § 9, cl. 2, and the distinction between law and equity, U.S. Const., Amdt. VII, by specific reference in the constitutional text. This approach reflected widespread agreement that ratification would not  [***318]  itself entail a general reception of the common law of England.

Records of the ratification debates support Marshall's understanding that everyone had to know that the new Constitution would not draw the common law in its train. . . .

The Framers also recognized that the diverse development of the common law in the several States made a general federal reception impossible. "The common law was not the same in any two of the Colonies," Madison observed; "in some the modifications were materially and extensively different." . . .

Finally, the Framers' aversion to a general federal reception of the common law is evident from the Federalists' response  [*141]  to the Antifederalist claim that Article III granted an unduly broad jurisdiction to the federal courts. That response was to emphasize the limited powers of the National Government. That answer assumes, of course, no generalized reception of English common law as federal law; otherwise, "arising under" jurisdiction would have extended to any subject comprehended by the general common law.

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

"the consequence of admitting the common law as the law of the United States, on the authority of the individual States, is as obvious as it would be fatal. As this law relates to every subject of legislation, and would be paramount to the Constitutions and laws of the States, the admission of it would overwhelm the residuary sovereignty of the States, and by one constructive operation new model the whole political fabric of the  [***320]  country." Alien and Sedition Laws 381.

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

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

1

As I have already noted briefly, see supra, at 105-106, the Framers and their contemporaries did not agree about the  [*143]  place of common-law state sovereign immunity even as to federal jurisdiction resting on the Citizen-State Diversity Clauses. Edmund Randolph argued in favor of ratification on the ground that the immunity would not be recognized, leaving the States subject to jurisdiction. n38 Patrick Henry opposed ratification on the basis of exactly the same reading.  [**1166]  See 3 Elliot's Debates 543. On the other hand, James Madison, John Marshall, and Alexander Hamilton all appear to have believed that the common-law immunity from suit would survive the ratification of Article III, so as to be at a State's disposal when jurisdiction would depend on diversity. This would have left the States free to enjoy a traditional immunity as defendants without barring the exercise of judicial power over them if  [***321]  they chose to enter the federal courts as diversity plaintiffs or to waive their immunity as diversity defendants. As Hamilton stated in The Federalist No. 81,

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

. . . The first embarrassment Hamilton's discussion creates for the majority turns on the fact that the power to regulate commerce with Indian tribes has been interpreted as making "Indian relations . . . the exclusive province of federal law." We have accordingly recognized that "state laws generally  [**1168]  are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply." We have specifically held, moreover, that the States have no power to regulate gambling on Indian lands. In sum, since the States have no sovereignty in the regulation of commerce with the tribes, on Hamilton's view there is no source of sovereign immunity to assert in a suit based on congressional regulation of that commerce. If Hamilton is good authority, the majority of the Court today is wrong.

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n40 See also Worcester v. Georgia, 6 Pet. 515, 560-561 (1832) ("The Cherokee nation . . . is a distinct community . . . in which the laws of Georgia can have no force. . . . The whole intercourse between the United States and this nation, is, by our Constitution and laws, vested in the government of the United States"). This Court has repeatedly rejected state attempts to assert sovereignty over Indian lands.

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. . . Thus, the Court's attempt to convert isolated statements by the Framers into answers to questions not before them is fundamentally misguided. n42 The Court's difficulty is far more fundamental, however, than inconsistency with a particular quotation, for the Court's position runs afoul of the general  [**1169]  theory of sovereignty that gave shape to the Framers' enterprise. An enquiry into the development of that concept demonstrates that American political thought had so revolutionized the concept of sovereignty itself that calling  [*150]  for the immunity of a State as against the jurisdiction of the national courts would have been sheer illogic.

2

We said in Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 115 L. Ed. 2d 686, 111 S. Ct. 2578 (1991), that "the States entered the federal system with their sovereignty intact," but we surely did not mean that they entered that system with the sovereignty they would have claimed if each State had assumed independent existence in the community of nations, for even the Articles of Confederation allowed for less than that. . . .

As a matter of political theory, this federal arrangement of dual delegated sovereign powers truly was a more revolutionary turn than the late war had been. Before the new federal scheme appeared, 18th-century  [*151]  political theorists had assumed that "there must reside somewhere in every political unit a single, undivided, final power, higher in legal authority than any other power, subject to no law, a law unto itself." The American development of divided sovereign powers, which "shattered . . . the categories of government that had dominated Western thinking for centuries," id., at 385, was made possible only by a recognition that the ultimate sovereignty rests in the people themselves. . . . The people possessing this plenary bundle of specific  [**1170]  powers  [*152]  were free  [***326]  to parcel them out to different governments and different branches of the same government as they saw fit. As James Wilson emphasized, the location of ultimate sovereignty in the People meant that "they can distribute one portion of power to the more contracted circle called State governments; they can also furnish another proportion to the government of the United States."

Under such a scheme, Alexander Hamilton explained, "it does not follow . . . that each of the portions of powers delegated to [the national or state government] is not sovereign with regard to its proper objects." Hamilton, Opinion on the Constitutionality of an Act to Establish a Bank, in 8 Papers of Alexander Hamilton 98 (Syrett ed. 1965) (emphasis in original). n47 A necessary consequence of this view was that "the Government of the United States has sovereign power as to its declared purposes & trusts." Ibid. Justice Iredell was to make the same observation in his Chisholm dissent, commenting that "the United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved." 2 Dall. at 435. And to the same point was Chief Justice Marshall's  [*153]  description of the National and State Governments as "each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other." McCulloch v. Maryland (1819).

Given this metamorphosis of the idea of sovereignty in the years leading up to 1789, the question whether the old immunity doctrine might have been received as something suitable for the new world of federal-question jurisdiction is a crucial one. n48 The answer is that sovereign immunity as it would have been known to the Framers before ratification thereafter became inapplicable as a matter of logic in a federal suit raising a federal question. The  [***327]  old doctrine, after all, barred the involuntary subjection of a sovereign to the system of justice and law of which it was itself the font, since to do otherwise would have struck the common-law mind from the Middle Ages onward as both impractical and absurd. See, e. g., Kawananakoa v. Polyblank, 205 U.S. 349, 353, 51 L. Ed. 834, 27 S. Ct. 526 (1907) (Holmes, J.) ("A sovereign is exempt from suit . . . on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends"). n49 But the  [**1171]  ratification demonstrated that state governments were subject to a superior regime of law in a judicial system established, not by the State, but by the people through a specific delegation of their sovereign power to a National Government that was paramount within its delegated sphere. When individuals sued States to enforce federal rights, the Government that corresponded to the "sovereign" in the traditional common-law sense was not the State but the National Government, and any state immunity from the jurisdiction of the Nation's courts would have required a grant from the true sovereign, the people, in their Constitution, or from the Congress that the Constitution had empowered. We made a similar point in Nevada v. Hall, 440 U.S. at 416, where we considered a suit against a State in another State's courts:

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

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n48 See, e. g., Amar, supra, at 1436 ("By thus relocating true sovereignty in the People themselves . . . Americans domesticated government power and decisively repudiated British notions of 'sovereign' governmental omnipotence" (footnote omitted)). That this repudiation extended to traditional principles of sovereign immunity is clear from Justice Wilson's opinion in Chisholm, in which he blasted "the haughty notions of state independence, state sovereignty and state supremacy" as allowing "the state [to] assum[e] a supercilious pre-eminence above the people who have formed it." 2 Dall. at 461.

n49 See also Hobbes, supra, at 130 ("The sovereign of a Commonwealth, be it an assembly or one man, is not subject to the civil laws. . . . For he is free that can be free when he will: nor is it possible for any person to be bound to himself, because he that can bind can release; and therefore he that is bound to himself only is not bound"); Bodin, supra, at 28-29 ("One may be subject to laws made by another, but it is impossible to bind oneself in any matter which is the subject of one's own free exercise of will. . . . It follows of necessity that the king cannot be subject to his own laws").

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State immunity to federal-question jurisdiction would, moreover, have run up against the common understanding of the practical necessity for the new federal relationship. According to Madison, the "multiplicity," "mutability," and "injustice" of then-extant state laws were prime factors requiring the formation of a new government. 1 Farrand 318-319  [***328]  (remarks of J. Madison). n50 These factors, Madison wrote to Jefferson, "contributed more to that uneasiness which produced the Convention, and prepared the Public mind for a general reform, than those which accrued to our national character and interest from the inadequacy of the Confederation to its immediate objects." 5 Writings of James Madison 27 (G. Hunt ed. 1904). These concerns ultimately found concrete expression in a number of specific limitations on state power, including provisions barring the States from enacting bills of attainder or ex post facto laws, coining money or emitting bills of credit, denying the privileges and immunities of out-of-staters, or impairing the obligation of contracts. But the proposed Constitution also dealt with the old problems affirmatively by granting the powers to Congress enumerated in Article I, § 8, and by providing through the Supremacy Clause that Congress could pre-empt state action in areas of concurrent state and federal authority.

Given the Framers' general concern with curbing abuses by state governments, it would be amazing if the scheme of delegated powers embodied in the Constitution had left the National Government powerless to render the States judicially accountable for violations of federal rights. And of course the Framers did not understand the scheme to leave  [*156]  the Government powerless. In The Federalist No. 80, at 535, Hamilton observed that "no man of sense will believe that such prohibitions [running against the States] would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them," and that "an authority in the federal courts, to over-rule such as might be in manifest contravention of the articles of union" was  [**1172]  the Convention's preferred remedy. By speaking in the plural of an authority in the federal "courts," Hamilton made it clear that he envisioned more than this Court's exercise of appellate jurisdiction to review federal questions decided by state courts. Nor is it plausible that he was thinking merely of suits brought against States by the National Government itself, which The Federalist's authors did not describe in the paternalistic terms that would pass without an eyebrow raised today. Hamilton's power of the Government to restrain violations of citizens' rights was a power to be exercised by the federal courts at the citizens' behest. See also Marshall, Fighting the Words of the Eleventh Amendment, 102 Harv. L. Rev. 1342, 1367-1371 (1989) (discussing the Framers' concern with preserving as much state accountability as possible even in the course of enacting the Eleventh Amendment).

This sketch of the logic and objectives of the new federal order is confirmed by what we have previously seen of the preratification debate on state sovereign immunity, which in turn becomes entirely intelligible both in what it addressed and what it ignored. It is understandable that reasonable minds differed on the applicability of the immunity doctrine in suits that made it to  [***329]  federal court only under the original Diversity Clauses, for their features were not wholly novel. While they were, of course, in the courts of the new and, for some purposes, paramount National Government, the law that they implicated was largely the old common law (and in any case was not federal law). It was not foolish, therefore,  [*157]  to ask whether the old law brought the old defenses with it. But it is equally understandable that questions seem not to have been raised about state sovereign immunity in federal-question cases. The very idea of a federal question depended on the rejection of the simple concept of sovereignty from which the immunity doctrine had developed; under the English common law, the question of immunity in a system of layered sovereignty simply could not have arisen. Cf., e. g., Jay II, at 1282-1284; Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States, at 6-7. n51 The Framers' principal objectives in rejecting English theories of unitary sovereignty, moreover, would have been impeded if a new concept of sovereign immunity had taken its place in federal-question cases, and would have been substantially thwarted if that new immunity had been held to be untouchable by any congressional effort to abrogate it.

 [*158]   [**1173]  Today's majority discounts this concern. Without citing a single source to the contrary, the Court dismisses the historical evidence regarding the Framers' vision of the relationship between national and state sovereignty, and reassures us that "the Nation survived for nearly two centuries without the question of the existence of [the abrogation] power ever being presented to this Court." Ante, at 71. n53  [***330]  But we are concerned here not with the survival of the Nation but the opportunity of its citizens to enforce federal rights in a way that Congress provides. The absence of any general federal-question statute for nearly a century following ratification of Article III (with a brief exception in 1800) hardly counts against the importance of that jurisdiction either in the Framers' conception or in current reality; likewise, the fact that Congress has not often seen fit to use its power of abrogation (outside the Fourteenth Amendment context, at least) does not compel a conclusion that the power is not important to the federal scheme. In the end, is it plausible  [*159]  to contend that the plan of the convention was meant to leave the National Government without any way to render individuals capable of enforcing their federal rights directly against an intransigent State?

C

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

1

I have already pointed out how the views of the Framers reflected the caution of state constitutionalists and legislators over reception of common-law rules, a caution that the Framers exalted to the point of vigorous resistance to any idea that English common-law rules might be imported wholesale through the new Constitution. The state politicians also took pains to guarantee that once a common-law rule had been received, it would always be subject to legislative alteration, and again the state experience was reflected in the Framers' thought. Indeed, the Framers' very insistence  [*160]  that no common-law doctrine would be received by virtue of ratification was focused in their fear that elements of the common law might thereby have been placed beyond the power of Congress to alter by legislation.

The imperative of legislative control grew directly out of the Framers' revolutionary idea of popular sovereignty. According to one historian,  [***331]  "shared ideas about the sovereignty of the people and the accountability of government to the people resulted at an early date in a new understanding of the role of legislation in the legal system. . . . Whereas a constitution had been seen in the colonial period as a body of vague and unidentifiable precedents and principles of common law origin that imposed ambiguous restrictions on the power of men to make or change law, after independence it came to be seen as a written charter by which the people delegated powers to various institutions of government and imposed limitations on the exercise of those powers. . . . The power to  [**1174]  modify or even entirely to repeal the common law . . . now fell explicitly within the jurisdiction of the legislature."

Virtually every state reception provision, be it constitutional or statutory, explicitly provided that the common law was subject to alteration by statute. See Wood 299-300; Jones 99. The New Jersey Constitution of 1776, for instance, provided that "the common law of England, as well as so much of the statute law, as have been heretofore practised in this Colony, shall still remain in force, until they shall  [*161]  be altered by a future law . . . ." N. J. Const., Art. XXII (1776), in 6 W. Swindler, Sources and Documents of United States Constitutions 452 (1976). n55 Just as the early state  [*162]   [**1175]  governments did not leave reception of the common  [***332]  law to implication, then, neither did they receive it as law immune to legislative alteration. n56

 [*163]  I have already indicated that the Framers did not forget the state-law examples. When Antifederalists objected that the 1787 draft failed to make an explicit adoption of certain common-law protections of the individual, part of the Federalists' answer  [***333]  was that a general constitutional reception of the common law would bar congressional revision. Madison was particularly concerned with the necessity for legislative control, noting in a letter to George Washington that "every State has made great inroads & with great propriety on this monarchical code." Letter from James Madison to George Washington (Oct. 18, 1787), reprinted in 3 Farrand 130, App. A (emphasis in original). n57 Madison went on to insist that  [*164]  "the Common law is nothing more than the unwritten law, and is left by all the Constitutions equally liable to legislative alterations." Ibid. n58 Indeed, Madison anticipated, and rejected, the Court's approach today when he wrote that if "the common law be admitted as . . . of  [**1176]  constitutional obligation, it would confer on the judicial department a discretion little short of a legislative power . . . [which] would be permanent and irremediable by the Legislature." Alien and Sedition Laws 380. "A discretion of this sort," he insisted, "has always been lamented as incongruous and dangerous . . . ." Id., at 381. n59

 [*165]   [***334]  2

History confirms the wisdom of Madison's abhorrence of constitutionalizing common-law rules to place them beyond the reach of congressional amendment. The Framers feared judicial power over substantive policy and the ossification of law that would result from transforming common law into constitutional law, and their fears have been borne out every time the Court has ignored Madison's counsel on subjects that we generally group under economic and social policy. It is, in fact, remarkable that as we near the end of this  [*166]  century the Court should choose to open a new constitutional chapter in confining legislative judgments on these matters by resort to textually unwarranted common-law rules, for it was just this practice in the century's early decades that brought this Court to the nadir of competence that we identify with Lochner v. New York (1905).

It was the defining characteristic of the Lochner era, and its characteristic vice, that the Court treated the common-law background (in those days, common-law property rights and contractual autonomy) as paramount, while regarding congressional legislation to abrogate the common law on these economic matters as constitutionally suspect. And yet the superseding lesson that seemed clear after West Coast Hotel Co. v. Parrish, 300 U.S. 379, 81 L. Ed. 703, 57 S. Ct. 578 (1937), that action within the legislative power is not subject to greater scrutiny merely because it trenches upon the case law's ordering of economic and social relationships, seems to have been lost on the Court.

The majority today, indeed, seems to be going Lochner one better. When the Court has previously constrained the express Article I powers by resort to common-law or background principles,  [***335]  it has done so at least in an ostensible effort to give content to some other written provision of the Constitution, like the Due Process Clause, the very object of  [*167]  which is to limit the exercise of governmental power. See, e. g., Adair v. United States, 208 U.S. 161, 52 L. Ed. 436, 28 S. Ct. 277 (1908). Some textual argument, at least, could be made that the Court was doing no more than defining one provision that happened to be at odds with another. Today, however, the Court is not struggling to fulfill a responsibility to reconcile two arguably conflicting and Delphic constitutional provisions, nor is it struggling with any Delphic text at all. For even the Court concedes that the Constitution's grant to Congress of plenary power over relations with Indian tribes at the expense of any state claim to the contrary is unmistakably clear, and this case does not even arguably implicate a textual trump to the grant of federal-question jurisdiction.

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

 
"There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power. . . . An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority." Calder v. Bull, 3 U.S. 386, 3 Dall. 386, 388, 1 L. Ed. 648 (1798) (emphasis deleted).

 
"Some speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I  [*168]  cannot think that, under such a government, any Court of Justice would possess a power to declare it so. . . .

". . . It has been the policy of the American states, . . . and of the people of the United States . . . to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void. . . . If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of  [***336]  opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice." Id., at 398-399 (emphasis deleted) (opinion dissenting in part).

Later jurisprudence vindicated Justice Iredell's view, and the idea that "first principles" or concepts of "natural justice" might take precedence over the Constitution or other positive law "all but disappeared in American discourse." J. Ely, Democracy and Distrust 52 (1980). It should take more than references to "background principle[s]," ante,  [**1178]  at 72, and "implicit limitation[s]," Welch, 483 U.S. at 496 (SCALIA, J., concurring in part and concurring in judgment), to revive the judicial power to overcome clear text unopposed to any other provision, when that clear text is in harmony with an almost equally clear intent on the part of the Framers and the constitutionalists of their generation.

 [*169]  IV

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

A

In Ex parte Young, this Court held that a federal court has jurisdiction in a suit against a state officer to enjoin official actions violating federal law, even though the State itself may be immune. Under Young, "a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law."

. . . Indeed, in the years since Young was decided, the Court has recognized only one limitation on the scope of its doctrine: under Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974), Young permits prospective relief only and may not be applied to authorize suits for retrospective monetary relief.

It should be no cause for surprise that Young itself appeared when it did in the national law. It followed as a matter of course after the Hans Court's broad recognition of immunity in federal-question cases, simply because "remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law." Young provided, as it does today, a sensible way to reconcile the Court's expansive view of immunity expressed in Hans with the principles embodied in the Supremacy Clause and Article III.

 [**1179]  If Young may be seen as merely the natural consequence of Hans, it is equally unsurprising as an event in the longer history of sovereign immunity doctrine, for the rule we speak of under the name of Young is so far inherent in the jurisdictional limitation imposed by sovereign immunity as to have been recognized since the Middle Ages. For that  [*171]  long it has been settled doctrine that suit against an officer of the Crown permitted relief against the government despite the Crown's immunity from suit in its own courts and the maxim that the King could do no wrong. An early example, from "time immemorial" of a claim "affecting the Crown [that] could be pursued in the regular courts [without consent since it] did not take the form of a suit against the Crown," was recognized by the Statute of Westminster I, 1275, which established a writ of disseisin against a King's officers. When a King's officer disseised any person in the King's name, the wrongfully deprived party could seek the draconian writ of attaint against the officer, by which he would recover his land. Following this example forward, we may see how the writ of attaint was ultimately overtaken by the more moderate common-law writs of certiorari and mandamus, "operating directly on the government; [and commanding] an officer not as an individual but as a functionary." hus the Court of King's Bench made it clear in 1701 that "wherever any new jurisdiction is erected, be it by private or public Act of Parliament, they are subject to the inspections of this Court by writ of error, or by certiorari and mandamus."

B

This history teaches that it was only a matter of course that once the National Constitution had provided the opportunity for some recognition of state sovereign immunity, the necessity revealed through six centuries or more of history would show up in suits against state officers, just as Hans would later open the door to Ex parte Young itself. Once, then, the Eleventh Amendment was understood to forbid suit  [*172]  against a State eo nomine, the question arose "which suits against officers will be allowed and which will not be." . . .

Ex parte Young restored the old simplicity by complementing In re Ayers with the principle that state officers never have authority to violate the Constitution or federal law, so that any illegal action is stripped of state character and rendered an illegal individual act. Suits against these officials are consequently barred by neither the Eleventh Amendment nor Hans immunity. The officer's action "is simply an illegal act upon the part of a state official in attempting  [*174]  by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. . . . The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States."

The decision in Ex parte Young, and the historic doctrine it embodies, thus plays a foundational role in American constitutionalism, and while the doctrine is sometimes called a "fiction," the long history of its felt necessity shows it to be something much more estimable, as we may see by considering the facts of the case. "Young was really and truly about to damage the interest of plaintiffs. Whether what he was about to do amounted to a legal injury depended on the authority of his employer, the state. If the state could constitutionally authorize the act then the loss suffered by plaintiffs was not a wrong for which the law provided a remedy. . . . If the state could not constitutionally authorize the act then Young was not acting by its authority." The doctrine we call Ex parte Young is nothing short of "indispensable to the establishment of constitutional government and the rule of law."

A rule of such lineage, engendered by such necessity, should not be easily displaced, if indeed it is displaceable at all, for it marks the frontier of the enforceability of federal law against sometimes competing state policies. We have in fact never before inferred a congressional intent to eliminate this time-honored practice of enforcing federal law. That, of course, does not mean that the intent may never be inferred, and where, as here, the underlying right is one of statutory rather than constitutional dimension, I do not in theory  [***340]  reject the Court's assumption that Congress may bar enforcement by suit even against a state official. But because in practice, in the real world of congressional legislation, such  [*175]  an intent would be exceedingly odd, it would be equally odd for this Court to recognize an intent to block the customary application of Ex parte Young without applying the rule recognized in our previous cases, which have insisted on a clear statement before assuming a congressional purpose to  [**1181]  "affec[t] the federal balance," . . .

C

There is no question that by its own terms Young's indispensable rule authorizes the exercise of federal jurisdiction over respondent Chiles. . . .

D

There is, finally, a response to the Court's rejection of Young that ought to go without saying. Our longstanding practice is to read ambiguous statutes to avoid constitutional infirmity. This practice alone (without any need for a clear statement to displace Young) would be enough to require Young's application. So, too, would the application of another rule, requiring courts to choose any reasonable construction of a statute that would eliminate the need to confront a contested constitutional issue (in this case, the place of state sovereign immunity in federal-question cases and the status of Union Gas). Construing the statute to harmonize with Young, as it readily does, would have saved an Act of Congress and rendered a discussion on constitutional grounds wholly unnecessary. This case should be decided on this basis alone.

V

Absent the application of Ex parte Young, I would, of course, follow Union Gas in recognizing congressional power under Article I to abrogate  [***345]  Hans immunity. Since the reasons for this position, as explained in Parts II-III, supra, tend to unsettle Hans as well as support Union Gas, I should add a word about my reasons for continuing to accept Hans's holding as a matter of stare decisis.

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

In being ready to hold that the relationship may still be altered, not by the Court but by Congress, I would tread the course laid out elsewhere in our cases. The Court has repeatedly stated its assumption that insofar as  [**1185]  the relative positions of States and Nation may be affected consistently with the Tenth Amendment, n65 they would not be modified without deliberately expressed intent. See Gregory v. Ashcroft, 501 U.S. at 460-461. The plain statement rule, which "assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision," United States v. Bass, 404 U.S. at 349, is particularly appropriate in light of our primary reliance on "the effectiveness of the federal political process in preserving the States' interests". n66 Hence, we  [*184]  have required such a plain statement when Congress pre-empts the historic powers of the States, imposes a condition on the grant of federal moneys, or seeks to regulate a State's ability to determine the qualifications of its own officials.

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n65 The scope of the Tenth Amendment's limitations of congressional power remains a subject of debate. New York v. United States (1992), holds that principles of federalism are "violated by a formal command from the National Government directing the State to enact a certain policy." United States v. Lopez, 514 U.S. at 583 (KENNEDY, J., concurring). Some suggest that the prohibition extends further than barring the Federal Government from directing the creation of state law. The views I express today should not be understood to take a position on that disputed question.

n66 See also The Federalist No. 46, at 319 (J. Madison) (explaining that the Federal Government "will partake sufficiently of the spirit [of the States], to be disinclined to invade the rights of the individual States, or the prerogatives of their governments"); Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543 (1954).

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When judging legislation passed under unmistakable Article I powers, no further restriction could be required. Nor does the Court explain why more could be demanded. In the past, we have assumed that a plain statement requirement is sufficient to protect the States from undue  [***346]  federal encroachments upon their traditional immunity from suit. It is hard to contend that this rule has set the bar too low, for (except in Union Gas) we have never found the requirement to be met outside the context of laws passed under § 5 of the Fourteenth Amendment. The exception I would recognize today proves the rule, moreover, because the federal abrogation of state immunity comes as part of a regulatory scheme which is itself designed to invest the States with regulatory powers that Congress need not extend to them. This fact suggests to me that the political safeguards of federalism are working, that a plain-statement rule is an adequate check on congressional over-reaching, and that today's abandonment of that approach is wholly unwarranted.

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

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