Welch v. Texas Department of Highways & Public Transportation

Justice Brennan,

with whom

Justice Marshall, Justice Blackmun, and Justice Stevens join, dissenting.

The Court overrules Parden v. Terminal Railway of Alabama Docks Dept., 377 U. S. 184 (1964), and thereby continues aggressively to expand its doctrine of Eleventh Amend *497 ment sovereign immunity. I adhere to my belief that the doctrine “rests on flawed premises, misguided history, and an untenable vision of the needs of the federal system it purports to protect.” Atascadero State Hospital v. Scanlon, 473 U. S. 234, 248 (1985) (Brennan, J., dissenting). In my view, the Eleventh Amendment does not bar the District Court’s jurisdiction over the Jones Act suit by Jean Welch against the State of Texas and the Texas Highway Department for four independent reasons. First, the Amendment does not limit federal jurisdiction over suits in admiralty. Second, the Amendment bars only actions against a State by citizens of another State or of a foreign nation. Third, the Amendment applies only to diversity suits. Fourth, even assuming the Eleventh Amendment were applicable to the present case, Congress abrogated state immunity from suit under the Jones Act, which incorporates the Federal Employers’ Liability Act (FELA). I therefore dissent.

I

Article III provides that the “judicial power” assigned to federal courts extends not only to “Cases in Law and Equity,” but also “to all Cases of admiralty and maritime Jurisdiction. ” 1 In the instant case, the District Court stated that the “plaintiff brought this suit in admiralty.” 533 F. Supp. 403, 404 (SD Tex. 1982). The Eleventh Amendment limits the *498 “Judicial power” in certain suits “in law or equity.” 2 Therefore, even if the Eleventh Amendment does bar federal jurisdiction over cases in which a State is sued by its own citizen, its express language reveals that it does so only in “Cases in Law and Equity,” and not in “Cases of admiralty and maritime Jurisdiction.”

The leading case on the relationship between admiralty jurisdiction and the Eleventh Amendment for over a century was United States v. Bright, 24 Fed. Cas. 1232 (No. 14,647) (CC Pa. 1809), which was written by Circuit Justice Bushrod Washington. It held that the Eleventh Amendment does not bar a suit in admiralty against a State. Justice Washington acknowledged that a suit against a State raised sensitive issues, but believed himself bound by the fact that the Amendment does not refer to suits in admiralty. Furthermore, he noted that a court usually possesses the subject matter of the suit (i. e., the ship) in an admiralty in rem proceeding, and thereby avoids the “delicate” issue of confronting a State with a decree commanding it to relinquish certain property. Id., at 1236 . This was not a controversial holding in its day. While the Court during Chief Justice Marshall’s tenure did not have an opportunity to reach this issue, its dictum in United States v. Peters, 5 Cranch 115 (1809), and Governor of Georgia v. Madraza, 1 Pet. 110 (1828), 3 supported the holding of Bright . See Atascadero *499 State Hospital v. Scanlon, supra, at 292-293 (Brennan, J., dissenting).

“Although the Supreme Court did not pass on the applicability of the Eleventh Amendment in admiralty until more than a century later, it was assumed by bench and bar in the meantime that Bright was correctly reasoned.” J. Orth, The Judicial Power of the United States 37 (1987). Justice Joseph Story wrote in 1833 that:

“[T]he language of the amendment is, that ‘the judicial power of the United States shall not be construed to extend to any suit in law or equity. ’ But a suit in the admiralty is not, correctly speaking, a suit in law or in equity; but is often spoken of in contradistinction to both.” 3 J. Story, Commentaries on the Constitution of the United States 560-561 (1833) (emphasis in original), citing United States v. Peters, supra; United States v. Bright, supra; Governor of Georgia v. Madrazo, supra.

Nineteenth-century commentators regarded Bright as having settled the matter. Peter du Ponceau, in his lectures to the Law Academy of Philadelphia in 1834 simply stated: “It has been held that this restriction [by the Eleventh Amendment] does not extend to cases of admiralty and maritime jurisdiction.” P. du Ponceau, A Brief View of the Constitution of the United States 37-38 (1834). See Fletcher, A Historical *500 Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033 , 1080-1081 (1983). 4

In 1921, Bright was disapproved of, at least in part, by Ex parte New York, No. 1, 256 U. S. 490 (1921). Ex parte New York, No. 1, involved libel actions against a state official in his official capacity in connection with vessels operated by the State of New York. The Court held that a State was immune under the Eleventh Amendment from an in personam suit in admiralty brought by a private individual without the State’s consent.

The Court did not attempt to justify its obliteration of Bright’s distinction between cases in admiralty and cases in law or equity, but simply referred in passing to Hans v. Louisiana, 134 U. S. 1 (1890). 256 U. S., at 497-498 . 5 Merely *501 citing to Hans is plainly an inadequate justification. Hans was a suit based on federal-question jurisdiction and, moreover, relied primarily on materials that justified the application of the Eleventh Amendment to cases in diversity jurisdiction. See infra, at 509-516. It did not address the effect of the Eleventh Amendment on the extension of judicial power in Article III to admiralty suits.

The distinction between admiralty cases and ordinary cases in law or equity was not a casual or technical one from the viewpoint of the Framers of the Constitution. Admiralty was a highly significant, perhaps the most important, subject-matter area for federal jurisdiction at the end of the 18th century. “Maritime commerce was then the jugular vein of the Thirteen States. The need for a body of law applicable throughout the nation was recognized by every shade of opinion in the Constitutional Convention.” F. Frankfurter & J. Landis, The Business of the Supreme Court 7 (1927). Alexander Hamilton noted in the Federalist No. 80: “The most bigoted idolizers of state authority have not thus far shewn a disposition to deny the national judiciary the cognizance of maritime causes.” The Federalist No. 80, p. 538 (J. Cooke ed. 1961). Outside of Ex parte New York, No. 1, the Court has not ignored this legal distinction between admiralty and other cases in any other instance of constitutional and statutory interpretation. See, e. g., Romero v. Interna *502 tional Terminal Operating Co., 358 U. S. 354, 368 (1959); Atkins v. The Disintegrating Co., 18 Wall. 272, 302-303 (1874); Waring v. Clarke, 5 How. 441, 459-460 (1847); American Insurance Co. v. Canter, 1 Pet. 511, 545-546 (1828). Cf. Parsons v. Bedford, 3 Pet. 433, 446-447 (1830) (neither admiralty nor equity cases were suits in law within the Seventh Amendment jury provision).

Even if the Court is not prepared to overrule Ex parte New York, No. 1, that case can and should be distinguished here. It involved a suit based on the common law of admiralty and state law. In contrast, the present admiralty suit seeks to enforce a federal statute, the Jones Act. Although the Jones Act is deemed not to satisfy the Court’s requirement that Congress use “unmistakable language” to abrogate a State’s sovereign immunity, it does explicitly provide for federal jurisdiction for suits under the statute. Congress specifically indicated in the Jones Act that “any seaman” 6 may maintain an action for personal injury under the Act and that “[jjurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.” 46 U. S. C. §688 . Whatever the merits of the “unmistakable language” requirement in cases of law and equity, it is completely out of place in admiralty cases resting on federal statute, in light of the fact that admiralty is not mentioned in the Eleventh Amendment. 7 Ac *503 cordingly, in admiralty cases involving federal legislation, any bar implied by Ex parte New York, No. 1, against common-law suits in admiralty is inapplicable. 8

Thus, a narrow holding allowing federal jurisdiction over Welch’s suit in admiralty under the Jones Act against the State of Texas is consistent with precedent and the will of Congress, 9 and prevents further erosion of a legal distinc *504 tion which is difficult, if not impossible, to rationalize. It is patently improper to extend the Eleventh Amendment doctrine of sovereign immunity any further. 10

II

The Eleventh Amendment does not bar a suit under the Jones Act by a Texas citizen against the State of Texas. The part of Article III, § 2, that was affected by the Amendment provides: “The judicial Power shall extend ... to Controversies . . . between a State and Citizens of another State” and “between a State . . . and foreign . . . Citizens or Subjects” (emphasis added). The Amendment uses language identical to that in Article III to bar the extension of the judicial power to a suit “against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State” (emphasis added). The congruence of the language suggests that the Amendment specifically limits only the jurisdiction conferred by the above-referenced part of Article III. Thus, the Amendment bars only federal actions brought against a State by citizens of another State or by aliens.

Contrary to the Court’s view, ante, at 480-484, a proper assessment of the historical record of the Constitutional Convention and the debates surrounding the state ratification conventions confirms this interpretation. See Atascadero State Hospital v. Scanlon, 473 U. S., at 263-280 (Brennan, J., dissenting). The Court exclusively relies on the remarks of Madison, Hamilton, and Marshall at the Virginia Convention to support its contrary position. Ante, at 480-484. But these statements must be considered in context. *505 At the Virginia Convention, discussion focused on the question of Virginia’s liability for debts that arose under state law, and which could be brought into federal court only through diversity suits by citizens of another State. See 3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 533 (2d ed. 1861) (hereinafter Elliot’s Debates) (Madison) (“[Federal] jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason . . .”) (emphasis added); The Federalist No. 81, p. 548 (J. Cooke ed. 1961) (Hamilton) (“It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities . . .”) (emphasis added); 3 Elliot’s Debates 555 (Marshall) (“With respect to disputes between a state and the citizens of another state, its jurisdiction has been decried with unusual vehemence . . .”) (emphasis added).

Thus, the delegates to the Virginia Convention were not objecting to suits initiated by citizens of the same State; what concerned them were suits by citizens of other States. The majority of the delegates who spoke at the Virginia Convention, including Mason, Henry, Pendleton, and Randolph, did not believe that state sovereign immunity provided protection against suits initiated by citizens of other States. See Atascadero, supra, at 264-280 . Moreover, those attending the Virginia Convention evidently were not persuaded by the rhetoric of Madison, Hamilton, and Marshall cited by the Court. The Convention endorsed an amendment that would have explicitly denied the federal judiciary authority over controversies between a State and citizens of other States. 3 Elliot’s Debates 660-661. The felt need for this amendment shows that the delegates did not believe that state sovereign immunity barred all suits against States. 11

*506 There is little evidence that Madison 12 or Hamilton 13 believed that Article III failed to authorize diversity or federal-question suits brought by citizens against States. We know *507 Marshall’s understanding of Article III from his opinions written for the Court. The Chief Justice, in Cohens v. Vir]ginia, 6 Wheat. 264 (1821), interpreted the effect of Article III on the Court’s jurisdiction to review an appeal involving, as parties, a State and a citizen of the same State. The State of Virginia was sued for a writ of error in the United States Supreme Court. The writ challenged a criminal conviction obtained in a Virginia state court. The Court rejected the State’s contention that the Constitution denied federal jurisdiction over the appeal. It concluded that Article III provides federal jurisdiction “to all [federal-question cases] without making in its terms any exception whatever, and without any regard to the condition of party.” Id., at 378 . The Chief Justice then considered whether, in the face of Article Ill’s clear language, a general principle of state sovereign immunity could be implied. He concluded:

“From this general grant of jurisdiction [in federal-question cases], no exception is made of those cases in which a State may be a party. When we consider the situation of the government of the Union and of a State, in relation to each other; the nature of our constitution; the subordination of the state governments to that constitution; the great purpose for which jurisdiction over all cases arising under the constitution and laws of the United States, is confided to the judicial department; are we at liberty to insert in this general grant, an exception of those cases in which a State may be a party? Will the spirit of the constitution justify this attempt to control its words? We think it will not. We think a case arising under the constitution or laws of the United States, *508 is cognizable in the Courts of the Union, whoever may be the parties to that case” (emphasis added). Id,., at 382-383. 14

The Court in Cohens also clearly revealed its understanding that the Eleventh Amendment was inapplicable to a suit brought by a citizen against his or her own State. After concluding that the petition for a writ of error was not properly understood as a suit commenced or prosecuted against a State, the Chief Justice stated an alternative holding:

“But should we in this be mistaken, the error does not affect the case now before the Court. If this writ of error be a suit in the sense of the 11th amendment, it is not a suit commenced or prosecuted ‘by a citizen of another State, or by a citizen or subject of any foreign State.’ It is not then within the amendment, but is governed entirely by the constitution as originally framed, and we have already seen, that in its origin, the judicial *509 power was extended to all cases arising under the constitution or laws of the United States, without respect to parties.” Id., at 412 (emphasis added).

Chief Justice Marshall reaffirmed this view of the Eleventh Amendment when he wrote for the Court in Osborn v. Bank of the United States, 9 Wheat. 738, 857-858 (1824):

“The amendment has its full effect, if the constitution be construed as it would have been construed, had the jurisdiction of the court never been extended to suits brought against a State, by the citizens of another State, or by aliens.”

The Court, however, chooses to ignore the clear meaning of the Constitution text based on speculation that the intentions of a few of the Framers and Ratifiers might have been otherwise. The evidence available reveals that the views of Madison and Hamilton on the issue are at best ambiguous, see nn. 12 and 13, supra, and that Marshall’s understanding runs directly counter to the Court’s position. Thus, the Eleventh Amendment only bars a federal suit initiated by citizens of another State. Moreover, as Part III demonstrates, the Amendment only bars a particular type of federal suit— an action based on diversity jurisdiction.

Ill

In my view, the Eleventh Amendment applies only to diversity suits and not to federal-question or admiralty suits. The parallel between the language in Article Ill’s grant of diversity jurisdiction (“to Controversies . . . between a State and Citizens of another State . . . and between a State . . . and foreign States, Citizens or Subjects”) and the language in the Eleventh Amendment (“any suit in law or equity . . . by Citizens of another State or by Citizens or Subjects of any Foreign State”) supports this view. The Amendment prohibits federal jurisdiction over all such suits in law or *510 equity which are based on diversity jurisdiction. Since Congress had not granted federal-question jurisdiction to federal courts prior to the Amendment’s ratification, the Amendment was not intended to restrict that type of jurisdiction. Furthermore, the controversy among the Ratifiers cited by the Court today, ante, at 480-484, involved only diversity suits. Moreover, the Court recognizes that the immediate impetus for adoption of the Eleventh Amendment was Chisholm v. Georgia, 2 Dall. 419 (1793). Ante, at 484. Chisholm was a diversity case brought in federal court upon a state cause of action against the State of Georgia by a citizen of South Carolina. The Court relies on Hans v. Louisiana, 134 U. S. 1 (1890), to hold that the Eleventh Amendment bars Welch’s suit in admiralty.

Hans , however, was a federal-question suit brought by a Louisiana citizen against his own State. Ignoring this fact, the Court in Hans relied on materials that primarily addressed the question of state sovereign immunity in diversity cases, and not on federal-question or admiralty cases. 15 It is plain from the face of the Hans opinion that the Court misunderstood those materials. 16 In particular, the Court in *511 Hans heavily relied on two sources: a statement by Hamilton in The Federalist No. 81 and the views of Justice Iredell, who wrote the dissent in Chisholm. 134 U. S., at 12, 13-14, 18-19 . A close examination of both these sources indicates that they cannot serve as support for the holding of Hans or of the Court today.

A

The Court today relies on the same quotation of Hamilton in The Federalist No. 81 cited by the Court in Hans. Compare 134 U. S., at 12-13 , with ante, at 480-481, n. 10. The Court in Hans used this quotation as proof that all suits brought by individuals against States were barred, absent their consent. 134 U. S., at 14-15 . But, in that passage, Hamilton was discussing cases of diversity jurisdiction, not of federal-question jurisdiction:

“It has been suggested that an assignment of the public securities of one state to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities. A suggestion which the following considerations prove to be without foundation.” The Federalist No. 81, p. 548 (J. Cooke ed. 1961) (emphasis added).

In the ensuing discussion, Hamilton described the circumstances in which States can claim sovereign immunity. He began with the general principle of sovereign immunity.

“It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. *512 This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the union.” Id., at 548-549.

Hamilton believed that the States surrendered at least part of their sovereign immunity when they agreed to the Constitution. The States, however, retained their sovereign authority over state-created causes of action. “Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states and the danger intimated must be merely ideal.” Id., at 549. Thus, the States retained their sovereign authority over diversity suits involving the state assignment of public securities to citizens of other States.

“A recurrence to the principles there established will satisfy us that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, that it could not be done without waging war against the contracting state; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the state governments, a power which would involve such a consequence, would be altogether forced and unwarrantable.” Ibid.

Hamilton therefore believed that States could not be sued in federal court by citizens to collect debts in diversity ac *513 tions. A careful reading of this passage demonstrates that it does not support the general principle of sovereign immunity against all suits brought by individuals against States, contrary to the Court’s views in Hans and in the present case.

B

The Court in Hans also heavily relied on the rationale stated by Justice Iredell in Chisholm . The Court in Chisholm held that the case was within the jurisdiction of the Federal District Court. The Eleventh Amendment was thereafter enacted with “vehement speed,” displacing the Chisholm ruling. Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, 708 (1949). The dissent of Justice Iredell is generally regarded as embodying the rationale of the Eleventh Amendment by those who broadly construe it. See Hans v. Louisiana, supra, at 12, 14, 18-19 ; see also Fletcher, 35 Stan. L. Rev., at 1077; Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 Pa. L. Rev. 515, 541 (1978). Nevertheless, I think it plain that Justice Iredell’s conception of state sovereign immunity supports the notion that States should not be immune from suit in federal court in federal-question or admiralty cases.

Justice Iredell’s dissent focused on whether the States delegated part of their sovereignty to the Federal Government upon entering into the Union and agreeing to the Constitution.

“Every State in the Union in every instance where its sovereignty has not been delegated to the United States, I consider to be as completely sovereign, as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of Government actually surrendered. Each State in the Union is sovereign as to all the powers reserved.” 2 Dall., at 435 .

*514 Justice Iredell defined the powers surrendered by the States in terms of the authority that resides in the Congress and the Executive Branch.

“The powers of the general Government, either of a Legislative or executive nature, or which particularly concern Treaties with Foreign Powers, do for the most part (if not wholly) affect individuals, and not States. They require no aid from any State authority. This is the great leading distinction between the old articles of confederation, and the present constitution.” Ibid.

He then defined the “judicial power” of Article III. Justice Iredell found that the federal judicial power “is of a peculiar kind” because of its hybrid nature. Ibid. His conception of state sovereign immunity centered on the dual sources of federal judicial authority. First, he delineated the portion of federal jurisdiction that “is indeed commensurate with the ordinary Legislature and Executive powers of the general government, and the Power which concerns treaties.” Ibid. This category encompasses matters wholly within the federal sovereignty. Justice Iredell plainly was describing the federal-question and admiralty jurisdiction where federal courts have jurisdiction based on the federal subject matter of the cases. 17

*515 Justice Iredell then stated: “But [the judicial power] also goes further.” Ibid. It was in the further extension of judicial power that the sovereign immunity of the States was implicated. In diversity cases, the federal judiciary was not dealing with subject matter within the realm of federal sovereignty, but was instead providing a neutral forum for the resolution of state-law issues over which the States had not given up their sovereignty.

“Where certain parties are concerned, although the subject in controversy does not relate to any of the special objects of authority of the general Government, wherein the separate sovereignties of the States are blended in one common mass of supremacy, yet the general Government has a Judicial Authority in regard to such subjects of controversy, and the Legislature of the United States may pass all laws necessary to give such Judicial Authority its proper effect. So far as States under the Constitution can be made legally liable to this authority, so far to be sure they are subordinate to the authority of the United States, and their individual sovereignty is in this respect limited. But it is limited no farther than the necessary execution of such authority requires.” Id., at 435-436 .

Justice Iredell was concerned with “the limit of our authority” in the diversity case before the Court, since “we can exercise no authority in the present instance consistently with the clear intention of the [Judiciary Act], but such as a proper State Court would have been at least competent to exercise at the time the act was passed.” Id., at 436-437 .

*516 “If therefore, no new remedy be provided (as plainly is the case), and consequently we have no other rule to govern us but the principles of the pre-existent [state] laws, which must remain in force till superceded by others, then it is incumbent upon us to enquire, whether previous to the adoption of the Constitution ... an action of the nature like this before the Court could have been maintained against one of the States in the. Union upon the principles of the common law, which I have shown to be alone applicable. If it could, I think it is now maintainable here: If it could not, I think, as the law stands at present, it is not maintainable . . . .” Id., at 437 .

Thus, Justice Iredell’s dissenting opinion rested on a conception of state sovereignty that justified the incorporation of the sovereign-immunity doctrine through the state common law, but only in diversity suits. His opinion traditionally has been cited as key to the underlying meaning of the Eleventh Amendment. See Hans v. Louisiana, 134 U. S., at 12 . Yet it provides no more support for the result in Hans than does the plain language of the Eleventh Amendment. 18

I will not repeat the exhaustive evidence presented in my dissent in Atascadero that further buttresses my view of the Eleventh Amendment sovereign immunity. See Atascadero, 473 U. S., at 247-304 . I adhere to the view that a suit brought under a federal law against a State is not barred.

*517 IV

The Court today overrules, in part, Parden v. Terminal Railway of Alabama Docks Dept., 377 U. S. 184 (1964). It rejects the holding in Parden that Congress evidenced an intention to abrogate Eleventh Amendment immunity by making FELA applicable to “every common carrier by railroad while engaging in commerce between any of the several States____” § 1, 35 Stat. 65 , 45 U. S. C. § 51 . The Court instead concludes that Congress did not abrogate the sovereign immunity of States, because it did not express this intent in unmistakably clear language.

The Court’s departure from normal rules of statutory construction frustrates the will of Congress. The Court’s holding in Parden that Congress intended to abrogate the sovereign immunity of States in FELA has not been disturbed by Congress for the past two decades. In FELA, Congress not only indicated that “every common carrier . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce,” but also expressed in unequivocal language that the “action may be brought in a district court of the United States.” 45 U. S. C. §§ 51 ,56. The Court in Parden noted that the legislative history of FELA revealed that Congress meant to extend the scope to apply to “all commerce,” without exception for state-owned carriers. 377 U. S., at 187, n. 5 .

In Parden , the Court also comprehensively reviewed other federal statutes regulating railroads in interstate commerce, which used similar terminology. It found that we had consistently interpreted those statutes to apply to state-owned railroads. Id., at 188-189 , quoting United States v. California, 297 U. S. 175, 185 (1936) (“‘No convincing reason is advanced why interstate commerce and persons and property concerned in it should not receive the protection of the act whenever a state, as well as a privately-owned carrier, brings itself within the sweep of the statute’ ”); California v. Taylor, 353 U. S. 553, 564 (1957) (“The fact that Congress *518 chose to phrase the coverage of the Act in all-embracing terms indicates that state railroads were included within it”). This conclusion confirmed the Court’s determination in Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275 (1959): “In [Taylor] we reviewed at length federal legislation governing employer-employee relationships and said, ‘When Congress wished to exclude state employees, it expressly so provided.’” Id., at 282 (citation omitted).

The Court today repeatedly relies on a bare assertion that “the constitutional role of the States sets them apart from other employers and defendants.” Ante, at 477. This may be true in many contexts, but it is not applicable in the sphere of interstate commerce. Congress has plenary authority in regulating this area. In Gibbons v. Ogden, 9 Wheat. 1, 196-197 (1824), the Court stated:

“If, as has always been understood, the sovereignty of congress, though limited to specified objects is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States.”

Thus, the Court in Parden concluded that the decision to regulate employers of interstate workers, be they private individuals or States, was for Congress to make:

“While a State’s immunity from suit by a citizen without its consent has been said to be rooted in ‘the inherent nature of sovereignty,’. . . the States surrendered a portion of their sovereignty when they granted Congress the power to regulate commerce.

“If Congress made the judgment that, in view of the dangers of railroad work and the difficulty of recovering for personal injuries under existing rules, railroad workers in interstate commerce should be provided with the *519 right of action created by the FELA, we should not presume to say, in the absence of express provision to the contrary, that it intended to exclude a particular group of such workers from the benefits conferred by the Act.” 377 U. S., at 189-190 .

Until today, Parden has been repeatedly cited by the Court as an established approach “to the test of waiver of the Eleventh Amendment.” County of Oneida v. Oneida Indian Nation of New York, 470 U. S. 226, 252, n. 26 (1985) (Powell, J.); see, e. g., Fitzpatrick v. Bitzer, 427 U. S. 445, 452 (1976). I believe that Parden was correctly decided. “[B]y engaging in the railroad business a State cannot withdraw the railroad from the power of the federal government to regulate commerce.” New York v. United States, 326 U. S. 572, 582 (1946). In my view, Congress abrogated state immunity to suits under FELA, a statute incorporated by the Jones Act.

V

Sound precedent should produce progeny whose subsequent application of principle in light of experience confirms the original wisdom. Tested by this standard, Hans has proved to be unsound. The doctrine has been unstable, because it lacks a textual anchor, an established historical foundation, or a clear rationale. 19 We should not forget that the *520 irrationality of the doctrine has its costs. It has led to the development of a complex set of rules to avoid unfair results. 20 See, e. g., Ex parte Young, 209 U. S. 123 (1908) (Amendment does not bar suit if plaintiff names state official, rather than State itself, as defendant); Edelman v. Jordan, 415 U. S. 651 (1974) (Amendment does not bar prospective, but only retrospective, relief). The doctrine, based on a notion of kingship, intrudes impermissibly on Congress’ lawmaking power. I adhere to my belief that:

“[T]he doctrine that has thus been created is pernicious. In an era when sovereign immunity has been generally recognized by courts and legislatures as an anachronistic and unnecessary remnant of a feudal legal system, . . . the Court has aggressively expanded its scope. If this doctrine were required to enhance the liberty of our people in accordance with the Constitution’s protections, I could accept it. If the doctrine were required by the structure of the federal system created by the Framers, I could accept it. Yet the current doctrine intrudes on the ideal of liberty under law by protecting the States from the consequences of their illegal conduct. And the *521 decision obstructs the sound operation of our federal system by limiting the ability of Congress to take steps it deems necessary and proper to achieve national goals within its constitutional authority.” Atascadero State Hospital v. Scanlon, 473 U. S., at 302 (dissenting opinion) (citations omitted).

By clinging to Hans , the Court today erases yet another traditional legal distinction and overrules yet another principle that defined the limits of that decision. In my view, we should at minimum confine Hans to its current domain. More fundamentally, however, it is time to begin a fresh examination of Eleventh Amendment jurisprudence without the weight of that mistaken precedent. I therefore dissent.

Article III, § 2, provides:

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

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.”

None of these Marshall Court cases casts any doubt on the correctness of United States v. Bright, 24 Fed. Cas. 1232 (No. 14,647) (CC Pa. 1809). The Court, however, asserts that language in United States v. Peters, 5 Cranch, at 139-141 , supports its viewpoint. The language it cites, ante, at 491, is taken out of context. In Peters , the Court found that the suit was not instituted against the State, but against a state official, as an individual party. 5 Cranch, at 139 . Thus, the suit was not barred be *499 cause “[t]he amendment simply provides, that no suit shall be commenced or prosecuted against a state.” Ibid. The Court was focusing only on the identity of the defendant and not on the identity of the plaintiff. Indeed, the suit was brought by the United States Government, and States are not immune from actions brought by the United States. Ante, at 487. Read in context, the quotation from Peters cited by the Court provides no support for the Court’s position.

The Court in Peters heavily relied on the Amendment’s plain language to justify its view that the Amendment applied only to States and not to state officials. 5 Cranch, at 139 . The Bright case resulted from an attempt to enforce the judgment rendered in Peters . As indicated, supra, at 498, the court in Bright also heavily relied on the plain language of the Amendment in holding that the Amendment did not affect admiralty suits.

The universal acceptance of Bright’s holding suggests that States were not accorded status equal to foreign sovereigns in the early 19th century. See, e. g., The Schooner Exchange v. McFaddon, 7 Cranch 116, 136 (1812) (“The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself”). The early admiralty cases cited today by the Court, ante, at 493, n. 25, indicate that foreign countries were accorded sovereign immunity based on the international consequences of a federal court’s intervention. See, e. g., The Santissima Trinidad, 7 Wheat. 283, 337 (1822) (Story, J.) (“The government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed a determination to remain neutral between the parties, and to allow to each the same rights of asylum and hospitality and intercourse”).

The Court also cites two other cases that do not support its holding on the Eleventh Amendment issue. In Ex parte New York, No. 2, 256 U. S. 503 (1921), the Court held that an in rem action against a State was barred by the common-law principle that “property and revenue necessary for the exercise of powers [by government] are to be considered as part of the machinery of government exempt from seizure and sale under process against the city . . . .” Id., at 511 .

In Florida Dept. of State v. Treasure Salvors, Inc., 458 U. S. 670 (1982) (opinion of Stevens, J.), a four-Justice plurality held that the Eleventh Amendment did not bar the process issued by the District Court to secure *501 possession of artifacts held by state officials. The plurality distinguished the Ex parte New York cases because the “action [was] not an in personam action brought to recover damages from the State.” 458 U. S., at 699 . The Court carefully emphasized the narrowness of its holding: “In ruling that the Eleventh Amendment does not bar execution of the warrant, we need not decide the extent to which a federal district court exercising admiralty in rem jurisdiction over property before the court may adjudicate the rights of claimants to that property against sovereigns that did not appear and voluntarily assert any claim that they had to the res.” Id,., at 697. Four Justices dissented in part from the judgment on the ground that the action was a suit against the State and therefore barred by the Eleventh Amendment. Id., at 705, 706 (opinion of White, J., joined by Powell, Rehnquist, and O’Connor, JJ.).

Welch’s “status as a ‘seaman’ under the Jones Act is assumed and is not at issue.” 780 F. 2d 1268, 1269 (CA5 1986).

In my view, there is no reason to depart from normal rules of statutory construction to determine Congress’ intent regarding admiralty suits against States in federal court. The Court has applied normal rules of statutory construction when Congress exercises its authority under an Amendment that expressly contemplates limitations on States’ authority, see Fitzpatrick v. Bitzer, 427 U. S. 445, 452-453 (1976), despite the Eleventh Amendment’s express jurisdictional bar against certain suits in law or equity. A fortiori, we should apply normal statutory construction when Congress exercises its express authority to extend federal jurisdiction over *503 admiralty cases and the Eleventh Amendment does not expressly bar the exercise of that authority.

It seems odd for the Court to impose an “unmistakable language” requirement on the Jones Act, especially based on an interpretation of the Eleventh Amendment that incorporates words that are not there. Departing from normal rules of statutory construction inevitably will frustrate the will of Congress. When the Jones Act was enacted, Bright was the prevailing precedent. Moreover, in my view, Congress expressed its intent in unmistakable language when it extended liability to employers of “any seaman” and explicitly provided for federal jurisdiction over such actions.

In addition, as Part IV discusses, infra, at 517-519, we should be especially hesitant to incorporate the concept of state sovereign immunity with respect to those subjects over which the Constitution expressly grants authority to the National Government. Foreign and interstate commerce, which necessarily encompasses matters of admiralty, is obviously such a subject area. As we said in United States v. California, 297 U. S. 175 (1936), in rejecting an argument that a State was not subject in its sovereign capacity to a federal statute regulating interstate commerce:

“We can perceive no reason for extending [the canon of construction that a sovereign is presumptively not intended to be bound by a statute unless named in it] as to exempt a business carried on by a state from the otherwise applicable provisions of an act of Congress, all-embracing in scope and national in its purpose, which is capable of being obstructed by state as by individual action. Language and objectives so plain are not to be thwarted by resort to a rule of construction whose purpose is but to resolve doubts, and whose application in the circumstances would be highly artificial.” Id., at 186-187 .

In Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275, 282 (1959), the Court considered the substantive applicability of the Jones Act to state employees: “ ‘When Congress wished to exclude state employees, it expressly so provided.’ . . . The Jones Act . . . has no exceptions from the broad sweep of the words ‘Any seaman who shall suffer personal *504 injury in the course of his employment may’ etc.” (citations omitted). The Court today does not disturb this holding. See ante, at 495 (White, J., concurring).

Cf. United States v. Johnson, 481 U. S. 681, 692 (1987) (Scalia, J., dissenting) (arguing against extension of the Feres doctrine (Feres v. United States, 340 U. S. 135 (1950)) in order to “limit our clearly wrong decision in Feres and confine the unfairness and irrationality that decision has bred”).

Similar proposals submitted in New York, North Carolina, and Rhode Island urged amendments depriving federal courts of jurisdiction over *506 cases instituted against a State by a citizen of another State or by an alien. See C. Jacobs, The Eleventh Amendment and Sovereign Immunity 64 (1972).

Madison’s view of this issue is not clear. As legal historian Clyde Jacobs concluded, “[w]hether Madison thought that federal courts should possess any jurisdiction over suits instituted against a state by citizens of another state or by foreigners must remain a matter of some conjecture; indeed there is no direct evidence that he considered the question at all. ...” Id., at 12. Professor Jacobs also noted:

“Madison and other nationalists believed that the federal judiciary should be armed with powers not only to maintain the supremacy of national law but also to review state judicial decisions that might have interstate or foreign ramifications. Thus one of the principal reasons nationalists advanced for extending the federal judicial power — the maintenance of international peace and domestic harmony — would appear to necessitate national jurisdiction in cases where the good faith of the states vis-a-vis foreigners and citizens of other states had been engaged. If, however, this proposed federal judicial jurisdiction were qualified by the doctrine of state immunity, a broad avenue would have been left open to defeat every claim made upon them by citizens of other states and by aliens. The exception to the jurisdiction would have made the proposed jurisdiction futile or, at least, negligible.” Id., at 13-14.

Hamilton’s writings in The Federalist, No. 80, suggest that he did not believe that Article III barred all suits against States:

“It may be esteemed the basis of the union, that ‘the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states.’ And if it be a just principle that every government ought to possess the means of executing its own provisions by its own authority, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the union will be entitled, the national judiciary ought to preside in all cases in which one state or its citizens are opposed to another state or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal, which, having no local attachments, will be likely to be impartial between the different states and their citizens, and which, owing its official existence to the union, will never be likely to feel any bias inauspi *507 cious to the principles on which it is founded.” The Federalist No. 80, pp. 537-538 (J. Cooke ed. 1961) (first emphasis in original; second emphasis added).

In Cohens , Chief Justice Marshall explained in detail the effect of the general principle of sovereign immunity on the scope of Article III:

“The Counsel for the [State] . . . have laid down the general proposition, that a sovereign independent state is not suable except by its own consent.

“This general proposition will not be controverted. But its consent is not requisite in each particular case. It may be given in a general law. And if a state has surrendered any portion of its sovereignty, the question whether a liability to suit be a part of this portion, depends on the instrument by which the surrender is made. If, upon a just construction of that instrument, it shall appear that the state has submitted to be sued, then it has parted with this sovereign right of judging in every case on the justice of its own pretensions, and has entrusted that power to a tribunal in whose impartiality it confides.” Cohens v. Virginia, 6 Wheat., at 380 .

The Court then found that in agreeing to the Constitution, the States had surrendered a significant measure of their sovereignty. It stated that the Supremacy Clause is evidence of this surrender. Id,., at 380-381. The Court therefore found that Article III extended jurisdiction to all federal-question suits and that “no exception is made of those cases in which a state may be party.” Id., at 382-383 .

See generally Brief of the American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae 11-23.

A legal historian, Professor John Orth, recently described the historical approach taken by the Court in Hans :

“In Hans v. Louisiana , . . . Justice Bradley rewrote the history of the Eleventh Amendment. . . . Only half a dozen years before, in [New Hampshire v. Louisiana, 108 U. S. 76 (1883),] written by Chief Justice Waite and joined by Justice Bradley, the Court had accepted Chisholm as a correct interpretation of the Constitution as it then stood. . . .

“How did Justice Bradley suddenly attain such unhedged certitude about the original understanding and the Eleventh Amendment? No surprising discoveries about the historical record had been made in the decade of the 1880s. The Justice himself merely rehashed the familiar quotations from Madison, Marshall, and Hamilton. With regard to Chisholm Bradley declaimed: ‘In view of the manner in which that decision was received by the country, the adoption of the Eleventh Amendment, the light of history and the reason of the thing, we think we are at liberty to prefer Justice *511 Iredell’s views . . . .’ Yet Iredell’s dissent was manhandled. . . . Attributing sovereign immunity to the states, Bradley began the confusion that still prevails between federal and state sovereignty.

“Nothing had arisen since the decision of the New Hampshire case to change Bradley’s view of the past — except the pressing need for a new rationale to justify a new result. If sovereign immunity had not existed, the Justice would have had to invent it. As it was, all that was required was to rewrite a little history.” J. Orth, The Judicial Power of the United States 74-75 (1987) (Orth).

Justice Story later drew the same distinction between federal subject-matter jurisdiction and federal diversity jurisdiction as did Justice Iredell: “The vital importance of all the cases enumerated in the first class to the national sovereignty, might warrant such a distinction. In the first place, as to cases arriving under the constitution, laws, and treaties of the United States. Here the state courts could not ordinarily possess a direct jurisdiction. The jurisdiction over such cases could not exist in the state courts previous to the adoption of the constitution, and it could not afterwards be directly conferred on them; for the constitution expressly requires the judicial powers to be vested in courts ordained and established by the United States. . . . The same remarks may be urged as to cases affecting ambassadors, other public ministers, and consuls . . . and as to cases of admiralty and maritime jurisdiction .... All these eases, then, enter into the na *515 tional policy, affect the national rights, and may compromise the national sovereignty. . . .

“A different policy might well be adopted in reference .to the second class of eases . . . .” Martin v. Hunter’s Lessee, 1 Wheat. 304, 334-335 (1816). See generally Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B. U. L. Rev. 205 (1985).

Justice Iredell avoided committing himself on the broader constitutional question concerning whether suits, other than those in diversity, were barred by the Eleventh Amendment. He noted: “So much, however, has been said on the Constitution, that it may not be improper to intimate that my present opinion is strongly against any construction of it, which will admit, under any circumstances, a compulsive suit against a State for the recovery of money.” Chisholm v. Georgia, 2 Dall. 419, 449 (1793). Nonetheless, he conceded, “[t]his opinion I hold, however, with all the reserve proper for one, which, according to my sentiments in this case, may be deemed in some measure extra-judicial.” Id., at 450 .

Today only four Members of the Court advocate adherence to Hans . Three factors counsel against continued reliance upon Hans . First, Hans misinterpreted the intent of the Framers and those who ratified the Eleventh Amendment. Cf. Michelin Tire Corp. v. Wages, 423 U. S. 276, 297-298 (1976) (overruling Loto v. Austin, 13 Wall. 29 (1872), because it ignored the language and objectives of the Import-Export Clause and misread earlier Court precedent). Second, the progeny of Hans has produced erratic and irrational results. If a general principle of state sovereign immunity is based on the sensitive problems inherent in making one sovereign appear against its will in the courts of other sovereigns, ante, at 486-487, then it is inexplicable why States can be sued in some cases (by other States, by the Federal Government, or when prospective relief is sought) and not in other instances (by foreign countries, by citizens of the same State, or when *520 retrospective relief is sought). The Court’s recital of the rules of sovereign immunity in Monaco v. Mississippi, 292 U. S. 313 (1934), indicates the crazy-quilt pattern of the Hans doctrine. Ante, at 487. Third, the Eleventh Amendment doctrine creates inconsistencies in constitutional interpretation. For example, under the Seventh Amendment, the Court has stated that a right to a jury trial does not extend to admiralty cases because these suits in admiralty are distinguishable from suits in law. See Parsons v. Bedford, 3 Pet. 433, 446-447 (1830). Yet today the Court ignores the distinction between suits in admiralty and in law in arriving at its decision.

As Professor Orth concludes:

“By the late twentieth century the law of the Eleventh Amendment exhibited a baffling complexity. . . . ‘The case law of the eleventh amendment is replete with historical anomalies, internal inconsistencies, and senseless distinctions.’ Marked by its history as were few other branches of constitutional law, interpretation of the Amendment has become an arcane specialty of lawyers and federal judges.” Orth 11 (citation omitted).