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The dissenting opinion seeks to reopen these precedents, contending that state sovereign immunity must derive either from the common law (in which case the dissent contends it is defeasible by statute) or from natural law (in which case the dissent believes it cannot bar a federal claim). See post, at 797-798. As should be obvious to all, this is a false dichotomy. The text and the structure of the Constitution protect various rights and principles. Many of these, such as the right to trial by jury and the prohibition on unreasonable searches and seizures, derive from the common law. The common-law lineage of these rights does not mean they are defeasible by statute or remain mere common-law rights, however. They are, rather, constitutional rights, and form the fundamental law of the land.
Despite the dissent's assertion to the contrary, the fact that a right is not defeasible by statute means only that it is protected by the Constitution, not that it derives from naturallaw. Whether the dissent's attribution of our reasoning and conclusions to natural law results from analytical confusion or rhetorical device, it is simply inaccurate. We do not contend the Founders could not have stripped the States of sovereign immunity and granted Congress power to subject them to private suit but only that they did not do so. By the same token, the contours of sovereign immunity are determined by the Founders' understanding, not by the principles or limitations derived from natural law.
N ext Blackstone quoted Locke's explanation for immunity, according to which the risks of overreaching by "'a heady prince'" are "'well recompensed by the peace of the public and security of the government, in the person of the chief magistrate being thus set out of the reach of danger.'" Ibid. (quoting J. Locke, Second Treatise of Civil Government 205 (1690 J. Gough ed. 1947)). By quoting Pufendorf and Locke, Blackstone revealed to his readers a legal-philosophical tradition that derived sovereign immunity not from the immemorial practice of England but from general theoretical principles. But although Blackstone thus juxtaposed the common law and natural law 6 conceptions of sovereign im-
The only arguable support for the Court's absolutist view that I have found among the leading participants in the debate surrounding ratification was the one already mentioned, that of Alexander Hamilton in The Federalist No. 81, where he described the sovereign immunity of the States in language suggesting principles associated with natural law:
roots not solely in the common law of England, but in the much more fundamental "jurisprudence in all civilized nations."'" 517 U. S., at 69 (quoting Hans, supra, at 17, in turn quoting Beers v. Arkansas, supra, at 529). The Court's occasional seduction by the natural law view should not, however, obscure its basic adherence to the common law approach. In United States v. Lee, 106 U. S. 196 (1882), the Court explained that "the doctrine is derived from the laws and practices of our English ancestors," id., at 205, and added approvingly that the petition of right "has been as efficient in securing the rights of suitors against the crown in all cases appropriate to judicial proceedings, as that which the law affords to the subjects of the King in legal controversies among themselves," ibid. The Court went on to notice that at common law one reason given for sovereign immunity was the "absurdity" of the King's writ running against the King, id., at 206, but, recognizing the distinct situation in the United States, the Court admitted candidly that "it is difficult to see on what solid foundation of principle the exemption from liability to suit rests," ibid. Even the dissent there discussed in great detail the common law heritage of the doctrine. See id., at 227-234 (opinion of Gray, J.).
Court says, "inheres in the system of federalism established by the Constitution," ante, at 730, its "contours [being] determined by the Founders' understanding, not by the principles or limitations derived from natural law," ante, at 734. Again, "[w]e look both to the essential principles of federalism and to the special role of the state courts in the constitutional design." Ante, at 748. That is, the Court believes that the federal constitutional structure itself necessitates recognition of some degree of state autonomy broad enough to include sovereign immunity from suit in a State's own courts, regardless of the federal source of the claim asserted against the State. If one were to read the Court's federal structure rationale in isolation from the preceding portions of the opinion, it would appear that the Court's position on state sovereign immunity might have been rested entirely on federalism alone. If it had been, however, I would still be in dissent, for the Court's argument that state-court sovereign immunity on federal questions is inherent in the very concept of federal structure is demonstrably mistaken. 2ff7e9595c
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