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EMPLOYEES DEPARTMENT PUBLIC HEALTH AND WELFARE MISSOURI ET AL. v. DEPARTMENT PUBLIC HEALTH AND WELFARE MISSOURI ET AL.

SUPREME COURT OF THE UNITED STATES


decided: April 18, 1973.

EMPLOYEES OF THE DEPARTMENT OF PUBLIC HEALTH AND WELFARE OF MISSOURI ET AL
v.
DEPARTMENT OF PUBLIC HEALTH AND WELFARE OF MISSOURI ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and Rehnquist, JJ., joined. Marshall, J., filed an opinion concurring in the result, in which Stewart, J., joined, post, p. 287. Brennan, J., filed a dissenting opinion, post, p. 298.

Author: Douglas

[ 411 U.S. Page 280]

 MR. JUSTICE DOUGLAS delivered the opinion of the Court.

The Eleventh Amendment, adopted in 1795, and formally ratified in 1798, 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."

The Eleventh Amendment is the basis of a motion by Missouri to dismiss a complaint filed by employees of state agencies of that State, the Department of Public Health and Welfare, and two of its divisions, the Division of Mental Disease and the Division of Health, and various officials of the Department and of the two Divisions.

Although the Eleventh Amendment is not literally applicable since petitioners who brought suit are citizens of Missouri, it is established that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State. See Hans v. Louisiana, 134 U.S. 1; Duhne v. New Jersey, 251 U.S. 311; Parden v. Terminal R. Co., 377 U.S. 184;*fn1 C. Jacobs, The Eleventh Amendment and Sovereign Immunity 109-110 (1972).

[ 411 U.S. Page 281]

     The employees seek overtime compensation due them under § 16 (b) of the Fair Labor Standards Act of 1938, 52 Stat. 1069, as amended, 29 U. S. C. § 216 (b), and an equal amount as liquidated damages and attorneys' fees. The District Court dismissed the complaint. The Court of Appeals, sitting in a panel of three, reversed, one judge dissenting. No. 20,204, Apr. 2, 1971 (not reported). On the filing of a petition for rehearing, the Court of Appeals sat en banc and by a closely divided vote set aside the panel decision and affirmed the judgment of the District Court. 452 F.2d 820. The case is here on a petition for a writ of certiorari which we granted. 405 U.S. 1016.

The panel of three thought the present case was governed by Parden v. Terminal R. Co., supra. The court sitting en banc thought Parden was distinguishable. That is the central issue argued in the present case.

[ 411 U.S. Page 282]

     (r) of this section . . . ." Section 3 (r) was amended at the same time to include: "the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, the mentally ill or defective who reside on the premises of such institution, a school for mentally or physically handicapped or gifted children, an elementary or secondary school, or an institution of higher education (regardless of whether or not such hospital, institution, or school is public or private or operated for profit or not for profit) . . . ." Identical language was also added in 1966 to subsection 3 (s), which defines "enterprise engaged in commerce or in the production of goods for commerce."

By reason of the literal language of the present Act, Missouri and the departments joined as defendants are constitutionally covered by the Act, as the Court held in Maryland v. Wirtz, 392 U.S. 183. The question is whether Congress has brought the States to heel, in the sense of lifting their immunity from suit in a federal court -- a question we reserved in Maryland v. Wirtz, supra, at 199-201.

There is no doubt that Congress desired to bring under the Act employees of hospitals and related institutions. S. Rep. No. 1487, 89th Cong., 2d Sess., 8, 22-23; H. R. Rep. No. 1366, 89th Cong., 2d Sess., 3, 11-12, 15, 16-17, 18. But § 16 (b) remained the same. Prior to 1966 and afterward, it read in relevant part:

"Any employer who violates the provisions of section 6 or section 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction . . . ."

[ 411 U.S. Page 284]

     The history and tradition of the Eleventh Amendment indicate that by reason of that barrier a federal court is not competent to render judgment against a non-consenting State. Parden involved the railroad business which Alabama operated "for profit." 377 U.S., at 185. Parden was in the area where private persons and corporations normally ran the enterprise.

State mental hospitals, state cancer hospitals, and training schools for delinquent girls which are not operated for profit are not proprietary. "Before 1810, only a few eastern-seaboard states had incorporated private institutions to care for the mentally ill, and Virginia alone had established a public asylum." D. Rothman, The Discovery of the Asylum 130 (1971). But, as Rothman relates, after that the public sector took over.*fn2

Where employees in state institutions not conducted for profit have such a relation to interstate commerce that national policy, of which Congress is the keeper, indicates that their status should be raised, Congress can act. And when Congress does act, it may place new or even enormous fiscal burdens on the States. Congress, acting responsibly, would not be presumed to take such

[ 411 U.S. Page 285]

     action silently. The dramatic circumstances of the Parden case, which involved a rather isolated state activity can be put to one side. We deal here with problems that may well implicate elevator operators, janitors, charwomen, security guards, secretaries, and the like in every office building in a State's governmental hierarchy. Those who follow the teachings of Kirschbaum v. Walling, supra, and see its manifold applications will appreciate how pervasive such a new federal scheme of regulation would be.

But we have found not a word in the history of the 1966 amendments to indicate a purpose of Congress to make it possible for a citizen of that State or another State to sue the State in the federal courts. The Parden opinion did state that it would be "surprising" to learn that Congress made state railroads liable to employees under the FELA, yet provided "no means by which that liability may be enforced." 377 U.S., at 197. It would also be surprising in the present case to infer that Congress deprived Missouri of her constitutional immunity without changing the old § 16 (b) under which she could not be sued or indicating in some way by clear language that the constitutional immunity was swept away. It is not easy to infer that Congress in legislating pursuant to the Commerce Clause, which has grown to vast proportions in its applications, desired silently to deprive the States of an immunity they have long enjoyed under another part of the Constitution. Thus, we cannot conclude that Congress conditioned the operation of these facilities on the forfeiture of immunity from suit in a federal forum.

By holding that Congress did not lift the sovereign immunity of the States under the FLSA, we do not make the extension of coverage to state employees meaningless. Cf. Parden v. Terminal R. Co., supra, at 190. Section 16 (c) gives the Secretary of Labor authority to

[ 411 U.S. Page 286]

     bring suit for unpaid minimum wages or unpaid overtime compensation under the FLSA. Once the Secretary acts under § 16 (c), the right of any employee or employees to sue under § 16 (b) terminates. Section 17 gives the Secretary power to seek to enjoin violations of the Act and to obtain restitution in behalf of employees. Sections 16 and 17 suggest that since private enforcement of the Act was not a paramount objective, disallowance of suits by state employees and remitting them to relief through the Secretary of Labor may explain why Congress was silent as to waiver of sovereign immunity of the States. For suits by the United States against a State are not barred by the Constitution. See United States v. Mississippi, 380 U.S. 128, 140-141. In this connection, it is not amiss to note that § 16 (b) allows recovery by employees, not only of the amount of unpaid wages, but of an equal amount as liquidated damages and attorneys' fees. It is one thing, as in Parden, to make a state employee whole; it is quite another to let him recover double against a State. Recalcitrant private employers may be whipped into line in that manner. But we are reluctant to believe that Congress in pursuit of a harmonious federalism desired to treat the States so harshly. The policy of the Act so far as the States are concerned is wholly served by allowing the delicate federal-state relationship to be managed through the Secretary of Labor.

The Solicitor General, as amicus curiae, argues that Hans v. Louisiana, 134 U.S. 1, should not be construed to apply to the present case, his theory being that in Hans the suit was one to collect on coupons attaching to state bonds, while in the instant case the suit is a cause of action created by Congress and contained in § 16 (b) of the Act. It is true that, as the Court said in Parden, "the States surrendered a portion of their sovereignty when they granted Congress the power to regulate commerce." 377 U.S., at 191. But we decline to extend

[ 411 U.S. Page 287]

     case in light of Art. III and the Eleventh Amendment? Portions of the Court's opinion convey the impression that these questions are but a single issue.*fn2 I do not agree.

Sovereign immunity is a common-law doctrine that long predates our Constitution and the Eleventh Amendment, although it has, of course, been carried forward in our jurisprudence.*fn3 While the present-day immunity of a State from suit by its own citizens or by citizens of another State in the absence of consent obviously cannot be justified on the common-law rationale that "the King can do no wrong," the principle has been said to be applicable to the States because of "the inherent nature of sovereignty," Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 51 (1944). See also Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907).

The common-law doctrine of sovereign immunity in its original form stood as an absolute bar to suit against a State by one of its citizens, absent consent. But that doctrine was modified pro tanto in 1788 to the extent that the States relinquished their sovereignty to the Federal Government. At the time our Union was formed, the States, for the good of the whole, gave certain powers to Congress, including power to regulate commerce, and by so doing, they simultaneously subjected to congressional control that portion of their pre-existing common-law sovereignty which conflicted with those supreme powers given over to Congress. This is one of the essential lessons of the decision in Parden v. Terminal R. Co., 377 U.S. 184, 192 (1964), where the Court recognized that "by empowering Congress to regulate commerce

[ 411 U.S. Page 289]

     . . . the States necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation." Congress having validly exercised its power under the Commerce Clause to extend the protection of the FLSA to state employees such as petitioners, see Maryland v. Wirtz, 392 U.S. 183 (1968), the State may not defeat this suit by retreating behind its common-law shield of sovereign immunity.

Insofar as the Court may now be suggesting that the Congress has not effectively lifted the State's immunity from private suit in the context of the FLSA, I cannot agree. In the 1966 amendments, § 3 (d), 29 U. S. C. § 203 (d), which defines "employer" for the purposes of the FLSA was altered to cover expressly "employees of a State, or a political subdivision thereof, employed . . . in a hospital, institution, or school . . . ."*fn4 In the face of such clear language, I find it impossible to believe that Congress did not intend to extend the full benefit of the provisions of the FLSA to these state employees.*fn5 It is true -- as the Court points out -- that in 1966 Congress did not amend § 16 (b) of the Act, 29 U. S. C. § 216 (b), which provides for private suit by the "employee" against the "employer" to recover unpaid compensation. But this is readily explained by the fact that no amendment to the language of § 16 (b) was necessary to make the desired extension to state employees; the

[ 411 U.S. Page 290]

     alteration of the definition of "employer" in § 3 (d) clearly sufficed to achieve Congress' purpose*fn6 and to express its will. Indeed, to suggest that § 16 (b) may not provide for suit by state employees, despite the alteration of § 3 (d) to include state employers, ignores the basic canon of statutory construction that different provisions of the same statute normally should be construed consistently with one another. See, e. g., Clark v. Uebersee Finanz-Korporation, A. G., 332 U.S. 480, 488 (1947); Markham v. Cabell, 326 U.S. 404, 410-411 (1945); Ex parte Public National Bank, 278 U.S. 101, 104 (1928).

There remains, though, the question, where may these petitioners enforce against the State their congressionally created rights under the FLSA? Section 16 (b) authorizes employee suits "in any court of competent jurisdiction." Has Congress thus successfully compelled the State in this case to submit to employee suits in federal court?

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."

On its face the Amendment, of course, makes no mention of a citizen's attempt to sue his own State in federal court, the situation with which we deal here. Nevertheless, I believe it clear that the judicial power of the

[ 411 U.S. Page 291]

     United States does not extend to suits such as this, absent consent by the State to the exercise of such power. This question was first considered in Hans v. Louisiana, 134 U.S. 1 (1890), where a federal court action was brought against a State by one of its citizens who claimed that it had unconstitutionally repudiated certain debt obligations in violation of the Contract Clause of Art. I, § 10. Mr. Justice Bradley, speaking for the Court, observed that the suit was "an attempt to strain the Constitution and the law to a construction never imagined or dreamed of," and he then asked:

"Can we suppose that, when the Eleventh Amendment was adopted, it was understood to be left open for citizens of a State to sue their own state in the federal courts, whilst the idea of suits by citizens of other states, or of foreign states, was indignantly repelled?" Id., at 15.

The Court rejected such a suggestion in Hans, and it has continued to do so ever since. See Duhne v. New Jersey, 251 U.S. 311 (1920); Fitts v. McGhee, 172 U.S. 516, 524-525 (1899); North Carolina v. Temple, 134 U.S. 22 (1890).

The root of the constitutional impediment to the exercise of the federal judicial power in a case such as this is not the Eleventh Amendment but Art. III of our Constitution. Following the decision in Chisholm v. Georgia, 2 Dall. 419 (1793), in which this Court held that federal jurisdiction encompassed a suit brought against a non-consenting State by citizens of another State, the Eleventh Amendment was introduced to clarify the intent of the Framers concerning the reach of the federal judicial power. See, e. g., Hans v. Louisiana, 134 U.S., at 11-14. It had been widely understood prior to ratification of the Constitution that the provision in Art. III, § 2, concerning "Controversies . . . between a State and Citizens

[ 411 U.S. Page 292]

     of another State" would not provide a mechanism for making States unwilling defendants in federal court.*fn7 The Court in Chisholm, however, considered the plain meaning of the constitutional provision to be controlling. The Eleventh Amendment served effectively to reverse the particular holding in Chisholm, and, more generally, to restore the original understanding, see, e. g., Hans v. Louisiana, supra, at 11-15. Thus, despite the narrowness of the language of the Amendment, its spirit has consistently guided this Court in interpreting the reach of the federal judicial power generally, and "it has become established by repeated decisions of this court that 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: not one brought by citizens of another State, or by citizens or subjects of a foreign State, because of the Eleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the Amendment is but an exemplification," Ex parte New York, No. 1, 256 U.S. 490, 497 (1921); see Smith v. Reeves, 178 U.S. 436, 447-449 (1900).*fn8

[ 411 U.S. Page 293]

     This limitation upon the judicial power is, without question, a reflection of concern for the sovereignty of the States, but in a particularly limited context. The

[ 411 U.S. Page 294]

     issue is not the general immunity of the States from private suit -- a question of the common law -- but merely the susceptibility of the States to suit before federal tribunals. Because of the problems of federalism inherent in making one sovereign appear against its will in the courts of the other, a restriction upon the exercise of the federal judicial power has long been considered to be appropriate in a case such as this.*fn9

[ 411 U.S. Page 295]

     At the same time, it is well established that a State may consent to federal suit and submit to the exercise of federal jurisdiction over it.*fn10 See, e. g., Petty v. Tennessee-Missouri Page 295} Bridge Comm'n, 359 U.S. 275, 276 (1959); Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 284 (1906); Clark v. Barnard, 108 U.S. 436, 447 (1883). The issue, then, is whether the State has consented to this suit by its employees under the FLSA.

In Parden v. Terminal R. Co., supra, this Court found that Alabama which had undertaken the operation of an

[ 411 U.S. Page 296]

     interstate railroad had consented to suits brought in federal court by its railroad employees under the Federal Employers' Liability Act, 45 U. S. C. §§ 51-60. As to the State's suability in federal court, the Court reasoned that "Alabama, when it began operation of an interstate railroad approximately 20 years after enactment of the FELA, necessarily consented to such suit as was authorized by that Act." 377 U.S., at 192. For me at least, the concept of implied consent or waiver relied upon in Parden approaches, on the facts of that case, the outer limit of the sort of voluntary choice which we generally associate with the concept of constitutional waiver. Cf. D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185-186 (1972); Fay v. Noia, 372 U.S. 391, 439 (1963); Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Certainly, the concept cannot be stretched sufficiently further to encompass this case. Here the State was fully engaged in the operation of the affected hospitals and schools at the time of the 1966 amendments. To suggest that the State had the choice of either ceasing operation of these vital public services or "consenting" to federal suit suffices, I believe, to demonstrate that the State had no true choice at all and thereby that the State did not voluntarily consent to the exercise of federal jurisdiction in this case. Cf. Marchetti v. United States, 390 U.S. 39, 51-52 (1968). In Parden, Alabama entered the interstate railroad business with at least legal notice of an operator's responsibilities and liability under the FELA to suit in federal court, and it could have chosen not to enter at all if it considered that liability too onerous or offensive. It obviously is a far different thing to say that a State must give up established facilities, services, and programs or else consent to federal suit. Thus, I conclude that the State has not voluntarily consented to

[ 411 U.S. Page 297]

     the exercise of federal judicial power over it in the context of this case.*fn11

This is not to say, however, that petitioners are without a forum in which personally to seek redress against the State.*fn12 Section 16 (b)'s authorization for employee suits to be brought "in any court of competent jurisdiction" includes state as well as federal courts. See Iowa Beef Packers, Inc. v. Thompson, 405 U.S. 228 (1972). As I have already noted, Congress has the power to lift the State's common-law immunity from suit insofar as that immunity conflicts with the regulatory authority conferred upon it by the Commerce Clause. Congress has done so with respect to these state employees in its

[ 411 U.S. Page 2981966]

     amendments to the FLSA; by those amendments, Congress created in these employees a federal right to recover from the State compensation owing under the Act. While constitutional limitations upon the federal judicial power bar a federal court action by these employees to enforce their rights, the courts of the State nevertheless have an independent constitutional obligation to entertain employee actions to enforce those rights. See Testa v. Katt, 330 U.S. 386 (1947). See also General Oil Co. v. Crain, 209 U.S. 211 (1908). For Missouri has courts of general jurisdiction competent to hear suits of this character,*fn13 and the judges of those courts are co-equal partners with the members of the federal judiciary in the enforcement of federal law and the Federal Constitution, see Martin v. Hunter's Lessee, 1 Wheat. 304, 339-340 (1816). Thus, since federal law stands as the supreme law of the land, the State's courts are obliged to enforce it, even if it conflicts with state policy, see Testa v. Katt, supra, at 392-394; Second Employers' Liability Cases, 223 U.S. 1, 57-58 (1912).

I see our decision today, then, as nothing more than a regulation of the forum in which these petitioners may seek a remedy for asserted denial of their rights under the FLSA. At first blush, it may seem hypertechnical to say that these petitioners are entitled personally to enforce their federal rights against the State in a state forum rather than in a federal forum. If that be so, I think it is a hypertechnicality that has long been understood to be a part of the tension inherent in our system of federalism.

MR. JUSTICE BRENNAN, dissenting.

I dissent. Parden v. Terminal R. Co., 377 U.S. 184 (1964), compels reversal of the judgment of the Court of Appeals in this case and neither the Court's opinion

[ 411 U.S. Page 299]

     nor my Brother MARSHALL's opinion concurring in the result is persuasive that it does not.

I

Essentially, the Court purports only to distinguish Parden. There is, of course, the distinction that the lawsuits were brought under different statutes. The lawsuit in Parden was brought under the Federal Employers' Liability Act (FELA), 45 U. S. C. §§ 51-60, against the State of Alabama, owner and operator of a railroad engaged in interstate commerce, by citizens of Alabama in the employ of the railroad. The suit in the present case was brought under § 16 (b) of the Fair Labor Standards Act (FLSA), 29 U. S. C. §§ 201-219, as amended in 1966, Pub. L. 89-601, 80 Stat. 830, against the State of Missouri, operator of hospitals and other institutions covered by that Act, by citizens of Missouri employed in such institutions. But the lawsuits have in common that each is an action for damages in federal court brought against a State by citizens of the State in its employ under the authority of a regulatory statute founded on the Commerce Clause. Parden held that a federal court determination of such suits cannot be precluded by the doctrine of sovereign immunity because the States surrendered their sovereignty to that extent when they granted Congress the power to regulate commerce. 377 U.S., at 191. That holding fits precisely this FLSA lawsuit and compels reversal of the judgment of the Court of Appeals. I turn, then, to the reasons for my disagreement with the arguments upon which the Court rests its contrary conclusion.

Parden presented a question of first impression, namely, whether a State's operation of a congressionally regulated enterprise in interstate commerce has the consequence, without more, that the State becomes subject to a congressionally imposed condition of amenability

[ 411 U.S. Page 300]

     to suit, or whether that consequence should follow only when Congress has expressly declared that any State which undertakes regulable conduct will be deemed thereby to have waived its immunity. Parden held that by operating the railroad, Alabama became amendable to suits under the FELA. Parden is distinguished on the ground that, whatever may have been the case of a suit under the FELA, in this suit under the FLSA the State may assert the defense of sovereign immunity unless Congress has foreclosed its assertion by clear language in the statute. But that very argument was rejected in Parden when advanced by the dissenters there as the principle that should control in all these cases. For the Parden dissent also argued that the immunity had not been surrendered when the States formed the Constitution and should be disallowed "only when Congress has clearly considered the problem and expressly declared that any State which undertakes given regulable conduct will be deemed thereby to have waived its immunity . . . ." 377 U.S., at 198-199. In rejecting that argument, Parden held that the States had surrendered the protection of sovereign immunity in federal court suits authorized by Congress pursuant to the States' grant to Congress of the commerce power. Thus, under Parden, there can exist no basis for today's inquiry "whether Congress has brought the States to heel, in the sense of lifting their immunity from suit in a federal court," ante, at 283, since Parden held that, because of its surrender, no immunity exists that can be the subject of a congressional declaration or a voluntary waiver. There can be room for such inquiry only upon acceptance of the rejected premise underlying the Parden dissent, namely, that the States in forming the Union did not surrender their immunity as such to that extent, but only subjected their immunity to congressional control.

[ 411 U.S. Page 301]

     The Court's rejection of that premise is explicit in Parden 's holding that:

"By adopting and ratifying the Commerce Clause, the States empowered Congress to create such a right of action against interstate railroads; by enacting the FELA in the exercise of this power, Congress conditioned the right to operate a railroad in interstate commerce upon amenability to suit in federal court as provided by the Act; by thereafter operating a railroad in interstate commerce, Alabama must be taken to have accepted that condition and thus to have consented to suit." 377 U.S., at 192.

In other words, the Parden holding, although perhaps not unambiguously phrased, was that when Congress conditions engagement in a regulated interstate enterprise upon amenability to suit, States that engage in such enterprise do not have the protection of sovereign immunity in suits in federal court arising from their engagement, because by surrendering their immunity to that extent when they granted Congress the commerce power, the States in effect agreed that Congress might subject them to suits in federal court arising out of their engagement in enterprises regulated by Congress in statutes such as the FELA and the FLSA.

However, even on the Court's premise that the grant to Congress of the Commerce power did no more than empower Congress expressly to disallow the immunity, Congress must be taken to have disallowed it in § 16 (b) suits since Congress plainly stated its intention in enacting the 1966 amendments to put the States "on the same footing as other employers" in such suits. Since Parden had been decided two years before the amendments were adopted, Congress understandably had no reason expressly to declare the disallowance

[ 411 U.S. Page 302]

     since no immunity existed to be disallowed. But Congress' intention to make the States amenable to § 16 (b) suits clearly appears in the legislative history of the amendments.*fn1 Indeed, this case is even more compelling than Parden on that score for the FELA contains no provision expressly including employees of public railroads under the Act but only a general provision making the FELA applicable to "every" common carrier by railroad in interstate commerce. 377 U.S., at 187-188. In contrast, Congress directly addressed the question whether fully to extend the FLSA, including the provision of § 16 (b), to the public employees of the defined public institutions: the 1966 amendments thus enacted a considered congressional decision to extend the benefits of the FLSA enjoyed by employees of private employers to employees of the States,

[ 411 U.S. Page 303]

     or political subdivisions thereof, employed in the institutions covered by the amendments. I find no support whatever in either the text of the amendments or their legislative history for the arguments made by the Court for its contrary conclusion.

First, the Court observes that § 16 (b) was left undisturbed when the amendments were adopted. But § 16 (b) in terms applies to " any employer" covered by the Act. The extension of coverage to employers of public institutions made by the amendments was only the latest of several extensions made since § 16 (b) first appeared in the FLSA as initially adopted. Obviously, the words " any employer" blanket all FLSA employers and it is only the sheerest sort of ritualism to suggest that Congress excluded the States from § 16 (b) suits by not expressly referring to the States in § 16 (b).

Second, the Court argues that Alabama's operation of the railroad in Parden was "proprietary" in nature and Missouri's operation of hospitals and schools is "governmental" in character. That distinction does not, however, support the conclusion that Congress failed with sufficient clarity to subject States to § 16 (b) suits. Maryland v. Wirtz, 392 U.S. 183 (1968), which sustained the constitutionality of the 1966 amendments, construed the reach of the amendments as covering public enterprises having both characteristics, and expressly held "that the Federal Government, when acting within a delegated power, may override countervailing state interests whether these be described as 'governmental' or 'proprietary' in character." Id., at 195. Indeed, the 1966 amendments themselves provide that the public enterprises, whether for profit or not for profit, "shall be deemed to be activities performed for a business purpose." 29 U. S. C. § 203 (r).*fn2

[ 411 U.S. Page 304]

     Third, the Court argues that the amendments may saddle the States with "enormous fiscal burdens," and that "Congress, acting responsibly, would not be presumed to take such action silently." Ante, at 284, 285. Not only is the ancestry of the supposed presumption not divulged, but the Court offers no explanation how it overbears the clearly declared congressional purpose to subject States to § 16 (b) suits. Moreover, this argument tracks the rejected argument of the dissent in Maryland v. Wirtz that the 1966 amendments "overwhelm state fiscal policy" and therefore offend "constitutional principles of federalism" in that they allow "the National Government [to] devour the essentials of state sovereignty, though that sovereignty is attested by the Tenth Amendment." 392 U.S., at 203-205.

Fourth, the Court argues that the authority of the Secretary of Labor under § 16 (c) to sue for unpaid minimum wages or unpaid overtime, and the Secretary's authority under § 17 to enjoin violations of the Act, "suggest that since private enforcement of the Act was not a paramount objective [of Congress], disallowance of suits by state employees and remitting them to relief through the Secretary of Labor may explain why Congress was silent as to waiver of sovereign immunity of the States." Ante, at 286. Again the Court ignores the evidence in the text and legislative history of the 1966 amendments that Congress not only was not "silent" but spoke loudly its purpose to deny the States the protection of sovereign immunity. In any event, the premise that "private enforcement of the Act was not a paramount objective" is wholly unfounded. For the Act's legislative

[ 411 U.S. Page 305]

     history establishes conclusively that Congress placed great reliance upon the private lawsuit as an important tool for achieving the Act's objectives.*fn3 To buttress this, the Solicitor General has emphasized in his amicus curiae brief that without the private lawsuit, the purpose of the 1966 amendments cannot be achieved, since the Secretary of Labor has neither staff nor resources to take on the enormous number of claims counted upon to be vindicated in private actions. In addition, if state law may preclude actions in state courts,*fn4 the Solicitor General observes:

"The unavoidable result is that state employees of schools and hospitals may find themselves in precisely the same situation as the employees in Parden : if they are unable to sue their state employer under Section 16 (b) they may be, for all practical purposes, left in the position of having a right without a remedy . . . ." Brief for United States as Amicus Curiae 23.*fn5

[ 411 U.S. Page 306]

     The Court also argues:

"In this connection, it is not amiss to note that § 16 (b) allows recovery by employees, not only of the amount of unpaid wages, but of an equal amount as liquidated damages and attorneys' fees. It is one thing, as in Parden, to make a state employee whole; it is quite another to let him recover double against a State. Recalcitrant private employers may be whipped into line in that manner. But we are reluctant to believe that Congress in pursuit of a harmonious federalism desired to treat the States so harshly. The policy of the Act so far as the States are concerned is wholly served by allowing the delicate federal-state relationship to be managed through the Secretary of Labor." Ante, at 286.

Here, again, the Court relies upon the rejected argument of the dissent in Maryland v. Wirtz that the amendments unconstitutionally "overwhelm state fiscal policy." In any event, the purpose of double recovery has not the remotest connection with any design of Congress "in pursuit of a harmonious federalism." Actually its purpose is, in the Court's own words: "as in Parden, to make a state employee whole." That was made clear in

[ 411 U.S. Page 307]

     standard of living necessary for health, efficiency, and general well-being of workers . . . with all deliberate speed consistent with the policy of the act and the welfare of the American people.' [S. Rep. No. 1487, 89th Cong., 2d Sess., 3 (1966).] This demonstrates to our satisfaction that Congress contemplated the financial burden that the Amendments could cause for the states. But the overall purpose of the FLSA tacitly suggests that the imposition of such strain is outweighed by the underlying policy of the Act." (Emphasis added.)

Finally, the Court suggests that to deny the employees a federal forum will not leave them without a right of action for damages since § 16 (b) authorizes suits in "any court of competent jurisdiction," and "arguably, that permits suit in the Missouri courts." Ante, at 287. I am puzzled how the Court reconciles the implication that petitioners might maintain their § 16 (b) action in state court with its basic holding that only "clear" expression by Congress can be taken as "lifting the sovereignty of the States and putting the States on the same footing as other employers." Ibid. But, in any event, plaintiffs in Parden might also have sued in state courts since FELA jurisdiction is "concurrent with that of the courts of the several States," 45 U. S. C. § 56. Yet, we held that this was irrelevant to the issue of amenability of States to FELA suits in federal court since "Congress did not intend this language to limit the jurisdiction of the federal courts, but merely to provide an alternative forum in the state courts." 377 U.S., at 190 n. 8.

II

Congress can, of course, readily repair the deficiency the Court finds today in the FLSA simply by amending the Act expressly to declare that a State that engages in an

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     enterprise covered by the 1966 amendments shall be amenable to suit under § 16 (b) in federal court. A greater reason for concern, therefore, is with the Court's and my Brother MARSHALL's treatment of the Eleventh Amendment and the doctrine of sovereign immunity as constitutional limitations upon the power of a federal court to entertain a suit brought against a State by one of its citizens. Since the Court's treatment differs from my Brother MARSHALL's in substantial respects, I shall discuss the two separately.

III

Parden regarded the Eleventh Amendment to be inapplicable to suits against a State brought by its own citizens in federal court and held that whether the FELA suit was maintainable turned on the availability to Alabama of the protection of the ancient doctrine of sovereign immunity. Yet the Court says, ante, at 284, that "the history and tradition of the Eleventh Amendment indicate that by reason of that barrier a federal court is not competent to render judgment against a non-consenting State." Any intimation in that statement that we may infer from the Eleventh Amendment a "constitutional immunity," ante , at 285, protecting States from § 16 (b) suits brought in federal court by its own citizens, must be rejected. I emphatically question, as I develop later, that sovereign immunity is a constitutional limitation upon the federal judicial power to entertain suits against States. Indeed, despite some assumptions in opinions of this Court, I know of no concrete evidence that the framers of the Amendment thought, let alone intended, that even the Amendment would ensconce the doctrine of sovereign immunity. On its face, the Amendment says nothing about sovereign immunity but enacts an express limitation upon federal judicial power. It is familiar history that it was adopted

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     as the response to the Court's decision in Chisholm v. Georgia, 2 Dall. 419 (1793), that construed Art. III, § 2, of the Constitution -- that "the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution . . . between a State and Citizens of another State" -- to extend to a suit in federal court brought by individual citizens of South Carolina against the State of Georgia. An outraged outcry of financially embarrassed debtor States fearful of suits in federal court greeted that decision and resulted in the immediate proposal, and fairly prompt adoption, of the Eleventh Amendment. But all that the Amendment provides in terms is that "the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State" (emphasis added). The literal wording is thus a flat prohibition against the federal judiciary's entertainment of suits against even a consenting State brought by citizens of another State or by aliens. In the very year the Amendment was formally ratified, 1798, this Court gave it that sweep in holding that "the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a state was sued by the citizens of another state . . . ." Hollingsworth v. Virginia, 3 Dall. 378, 382 (1798) (emphasis added). It is true that cases since decided have said that federal courts do have power to entertain suits against consenting States. None has yet offered, however, a persuasively principled explanation for that conclusion in the face of the wording of the Amendment. Since the question whether the Eleventh Amendment constitutionalized sovereign immunity as to noncitizen suits should, therefore, be regarded as open, or at least ripe for further consideration, it is unfortunate that the

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     Court, by referring to the Amendment in this case after Parden held it to be inapplicable, should lend support to the argument that the Amendment reflects the existence of a constitutional bar to suits against a State brought by its own citizens.

In a nation whose ultimate sovereign is the people and not government, a doctrine premised upon kingship -- or, as has been suggested, "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," Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907) -- is indefensible "if it represents, as the Court has more than once intimated, an unfortunate excrescence of a political and legal order which no longer enlists support . . . ." C. Jacobs, The Eleventh Amendment and Sovereign Immunity 160 (1972). Mr. Justice Frankfurter reminded us:

"The course of decisions concerning sovereign immunity is a good illustration of the conflicting considerations that often struggle for mastery in the judicial process, at least implicitly. In varying degrees, at different times, the momentum of the historic doctrine is arrested or deflected by an unexpressed feeling that governmental immunity runs counter to prevailing notions of reason and justice. Legal concepts are then found available to give effect to this feeling . . . ." Larson v. Domestic & Foreign Corp., 337 U.S. 682, 709 (1949) (dissenting opinion).

Ex parte Young, 209 U.S. 123 (1908), as well as its numerous progeny, holding that a federal court may enjoin state officers from enforcing an unconstitutional statute, was a notable example of a "legal concept . . . found available to give effect to this feeling" that "governmental immunity runs counter to prevailing notions of

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     reason and justice." Parden was another example. The Court's discussion today of the inapplicable Eleventh Amendment regrettably tends to exalt governmental immunity over "prevailing notions of reason and justice." It also casts a shadow upon the validity of the view expressed by Mr. Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264 (1821), that the Amendments did not apply to bar federal-question suits brought against a State by its own citizens. It had been argued in that case that:

"The original clause [Art. III] giving jurisdiction on account of the character of the parties, as aliens, citizens of different States, etc. does not limit, but extends the judicial power of the Union. The [Eleventh] amendment applies to that alone. It leaves a suit between a State and a citizen, arising under the constitution, laws, etc. where it found it; and the States are still liable to be sued by a citizen, where the jurisdiction arises in this manner, and not merely out of the character of the parties." Id., at 348-349 (emphasis added).

Mr. Chief Justice Marshall adopted this interpretation. In determining whether a writ of error was a "suit" within the meaning of the Eleventh Amendment, he said:

"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 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).

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     In other words, the view of the great Chief Justice was that the Eleventh Amendment expressly withdrew the federal judicial power originally granted in federal-question cases only as to suits against States by citizens of other States or by aliens. I do not read Hans v. Louisiana, 134 U.S. 1 (1890), as has been suggested, Jacobs, supra, at 109, to reject Mr. Chief Justice Marshall's view that a State may be sued in federal court by its own citizens under the federal-question clause. Hans was also a suit against a State by its own citizens. The Court in Hans held that the Eleventh Amendment was inapplicable in such case (and Parden followed this holding), but that the State nevertheless enjoyed the protection of the ancient doctrine, inherent in the nature of sovereignty, that a State is not amenable to the suit of an individual without its consent. 134 U.S., at 10-15. Thus, even if the Eleventh Amendment is a constitutional restraint upon suits against States by citizens of another State, Hans accords to non-consenting States only a non-constitutional immunity from suit by its own citizens. True, Mr. Chief Justice Marshall's statement of the principle in Cohens v. Virginia, created a paradox: "a citizen with a claim under the Constitution or federal law against his own state might sue in the federal courts, while a citizen of another state or an alien, parties exercising much less, if any, influence upon the government of the state for its beneficence, would be denied a federal remedy." Jacobs, supra, at 91. Hans recognized that Mr. Chief Justice Marshall in Cohens v. Virginia, had said that, nevertheless, the federal-question clause of the Constitution should be read as making a State amenable to suit by one of its own citizens. 134 U.S., at 19-20. This Court gives particular weight to pronouncements of Mr. Chief Justice Marshall upon the meaning of his contemporaries

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     in framing the Constitution. The Hans treatment of Cohens does not constitute an exception. The statement, id., at 20 that the "observation was unnecessary to the decision . . . and . . . ought not to outweigh the important considerations referred to which lead to a different conclusion" implies at most a reservation. Whatever significance may be attached to the statement, however, the Hans opinion as an entirety can sensibly be read as resting the judgment squarely upon the ancient non-constitutional doctrine of sovereign immunity. Hans ' resolution of the paradox, in other words, was that, independently of any constitutional provision, such suits against a non-consenting State by its own citizens are barred by sovereign immunity. It must, therefore, be reason for regret if the Court today, by its discussion of the Eleventh Amendment, suggests a constitutional limitation on the federal judicial power -- a limitation that could have far-reaching and untoward consequences. As one commentator has observed:

"If, as has been suggested, the American doctrine of sovereign immunity is indefensible upon both theoretical and pragmatic grounds -- if it represents, as the Court has more than once intimated, an unfortunate excrescence of a political and legal order which no longer enlists support -- its continued observance should depend upon whether it is incorporated into the Constitution and hence made obligatory upon the judiciary unless waived by the government. It is clear enough, of course, that if the doctrine is to have constitutional status, it must be judicially inferred. There is absolutely nothing in the original Constitution nor in any of the amendments expressly sanctioning the doctrine. And to this generalization the Eleventh Amendment,

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     despite the outcry about sovereign immunity and the sovereignty of the states which preceded its adoption, does not constitute an exception. That amendment, to be sure, did impose a limitation upon the federal judicial power with respect to suits brought against the states by certain classes of individuals, but its language does not support the Court's far-reaching statement that 'as to the states, legal irresponsibility was written into the Eleventh Amendment.' [ Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 388 (1939).] " Jacobs, supra, at 160.

IV

My Brother MARSHALL takes a much different approach. He agrees, contrary to the Court, that Parden forecloses a State sued under § 16 (b) in federal court (and, he concludes, also in state court) from relying on the protection of the ancient doctrine of sovereign immunity, since the States surrendered their sovereignty to congressional control to that extent when Congress was given the Commerce power. Nevertheless, my Brother MARSHALL would affirm the judgment of the Court of Appeals on the basis of a construction that Art. III, even before the adoption of the Eleventh Amendment and independently of the ancient doctrine of sovereign immunity, implicitly barred federal courts from entertaining suits brought by individuals against non-consenting States. The Eleventh Amendment, he argues, is simply a reaffirmation of that implicit constitutional limitation on the federal judicial power after this Court held otherwise in Chisholm v. Georgia, 2 Dall. 419 (1793). Then, while admitting that the Eleventh Amendment is not literally applicable to suits brought against a State by its own citizens, he reads Hans v. Louisiana, supra, as applying the so-called jurisdictional bar of Art. III to such

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     suits. Thus, he concludes that the present suit is beyond the judicial power of the federal courts, unless the State of Missouri is found to have consented. Moreover, his theory compels him to the paradoxical conclusion that Missouri can frustrate petitioners' vindication of their federally created rights in federal court, but is powerless to deny them vindication of those rights in its own courts.*fn6

Jurisdiction of the suit before us is general federal-question jurisdiction under Art. III, § 2, cl. 1. That provision, of course, contains no exemption of States, and on its face obviously grants no form of immunity to the States. Rather, the more plausible reading of the plain words of the Article is that they extend federal judicial power to federal-question controversies between a State and individuals, whether citizens or noncitizens of the State. That certainly was the construction of the Article "as originally framed" expressed by Mr. Chief Justice Marshall in Cohens v. Virginia, supra. The Amendment overruled Chisholm v. Georgia to except suits by citizens of other States and by aliens, and thus was the ultimate resolution of the vehement protests of debtor States voiced during the ratification period. Those States feared that Art. III might expose them to suits in federal courts by out-of-state and alien creditors. Chisholm proved that the fears were justified. See Jacobs, supra, at 27-40; Hans v. Louisiana, supra, at 10-15. Madison and

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     Hamilton, along with John Marshall, had replied to these critics during the ratification period that suits against a State could only be maintained where the State has consented (as, for example, where the State is the plaintiff or an intervenor). This was not because of anything in Art. III, implicit or otherwise; rather, it was because "it is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent." The Federalist No. 81 (Hamilton). Hans v. Louisiana, conceded, arguendo, that there was federal-question jurisdiction to maintain the suit, but nevertheless concluded that the State was immune from suit. However, as was the case in the responses of Madison, Hamilton, and John Marshall to the critics of the ratification period, the Court, in my view, based its decision, not on some alleged jurisdictional prohibition drawn from Art. III, but rather on the principle that, independently of any constitutional provision, such suits are barred by sovereign immunity where the State has not voluntarily surrendered its immunity. Otherwise, there would have been no reason for the Court's lengthy quotation from Hamilton's definition of the ancient doctrine:

"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 . . . . " 134 U.S., at 13, quoting from The Federalist No. 81 (Hamilton) (second emphasis added).

And the Court in Hans referred several times to the opinion of Mr. Justice Iredell in Chisholm v. Georgia,

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     eventually concluding that Mr. Justice Iredell's views "were clearly right." Id., at 14. Yet Mr. Justice Iredell did not suggest that Art. III contained an implicit, absolute jurisdictional bar against federal court suits brought by an individual against a State. On the contrary, his position, similar to that of Hamilton, was that unless a State consents, as it must be taken to have done where, for example, the suit involves an activity as to which the States surrendered their sovereignty in forming the Constitution, the States are protected by the ancient doctrine of sovereign immunity from being subjected to suit in federal court at the instance of individuals. Thus, Mr. Justice Iredell stated:

"So far as States under the Constitution can be made legally liable to [federal judicial] 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. The authority extends only to the decision of controversies in which a State is a party, and providing laws necessary for that purpose. That surely can refer only to such controversies in which a State can be a party; in respect to which, if any question arises, it can be determined, according to the principles I have supported, in no other manner than by a reference either to preexistent laws [common law], or laws passed under the Constitution and in conformity to it.

"If therefore, no new remedy be provided [by Congress under authority granted in the Constitution] . . . 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

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     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 . . . ." 2 Dall., at 436-437 (emphasis in original).

And in the end, Hans stated: "It seems to us that these views of those great advocates and defenders of the Constitution were most sensible and just; and they apply equally to the present case as to that then under discussion." 134 U.S., at 14-15. Thus, one cannot find support for interpreting Art. III as a jurisdictional bar in the "views of those great advocates and defenders of the Constitution."*fn7

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     In sum, except as the Eleventh Amendment may be read to create a jurisdictional bar against suits by citizens of another State or by aliens, the restriction on the exercise of the federal judicial power in suits against a State brought by individuals derives, not from anything in the Constitution, including Art. III, but from traditional non-constitutional principles of sovereign immunity. Except, as Hamilton put it, where "there is a surrender of this immunity in the plan of the convention," in which case in my view consent is irrelevant, Art. III extends rather than bars exercise of federal judicial power to entertain such suits against consenting States, leaving open only the question whether the State in fact consented or may be deemed to have consented. Hans was a "sovereign immunity" case pure and simple; no alleged bar in either Art. III or the Eleventh Amendment played

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     any role whatever in that decision. Therefore, even if the Eleventh Amendment be read literally to prohibit the exercise of federal judicial power to entertain suits against a State brought by citizens of another State or foreign country (a question we need not decide in this case), my Brother MARSHALL has no support in Hans for bringing this suit by a State's own citizens within that prohibition. Stated simply, the holding of Hans is that the ancient principles of sovereign immunity limit exercise of the federal power to suits against consenting States. And the fundamental lesson of Parden, as my Brother MARSHALL concedes, is that by adopting and ratifying the Commerce Clause, the States surrendered a portion of their sovereignty as to those cases in which state activity touches on the federal regulatory power under the Commerce Clause. "The States by the adoption of the Constitution, acting 'in their highest sovereign capacity, in the convention of the people,' waived their exemption from judicial power. . . . Jurisdiction . . . was thus established 'by their own consent and delegated authority' as a necessary feature of the formation of a more perfect Union." Principality of Monaco v. Mississippi, 292 U.S. 313, 328-329 (1934).

Indeed, if Art. III is an absolute jurisdictional bar, my Brother MARSHALL is inconsistent in conceding that federal courts have power to entertain suits by or against consenting States. For I had always supposed that jurisdictional power to entertain a suit was not capable of waiver and could not be conferred by consent. It is true that, contrary to the different holding of Hollingsworth v. Virginia, 3 Dall. 378 (1798), some opinions have assumed that a State may consent to suit in federal court. Jacobs, supra, at 107-108. But the opinions making that assumption did not confront my Brother MARSHALL's theory that Art. III contains an implicit jurisdictional

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     bar and, accordingly, do not address the highly provocative ancillary question whether such a bar would prohibit federal courts from entertaining suits even against consenting States. Doubtless because my Brother MARSHALL's theory did not occur to the judges, those cases (which did not arise under statutes like the FELA and FLSA) were treated as requiring decision, not in terms of my Brother MARSHALL's theory of a jurisdictional bar that may be removed only by actions tantamount to voluntary consent, but rather within the bounds of traditional notions of sovereign immunity -- an immunity, I repeat, that my Brother MARSHALL agrees the States surrendered, as Hamilton said, "in the plan of the convention," at least insofar as Congress conditions a State's engagement in a regulated interstate enterprise upon amenability to suit. Yet, he argues that, while the surrendered immunity cannot arise to defeat a suit in state court under § 16 (b), it may be resurrected from the grave solely that it may be waived to lift the purported jurisdictional bar of Art. III to state employees' suits in federal court under § 16 (b). That reasoning, I say with all respect, simply defies logic. Indeed, even if Hans is a constitutional decision, and I do not think it is, at most it holds that Art. III is to be read to incorporate the ancient doctrine of sovereign immunity. But my Brother MARSHALL's reliance on Hans would fare no better in such case, for then the surrender of the immunity "in the plan of the convention" would obviously foreclose assertion of the immunity in suits in both state and federal courts brought under federal statutes founded on the commerce power.

V

"We the People" formed the governments of the several States. Under our constitutional system, therefore, a State is not the sovereign of its people. Rather, its

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     people are sovereign. Our discomfort with sovereign immunity, born of systems of divine right that the Framers abhorred, is thus entirely natural. The discomfort has markedly increased since subsidence of the controversy over judicial review of state decisions that was fought out in terms of the amenability of States to suit in federal court. Jacobs, supra, at 41-74. Ex parte Young, 209 U.S. 123 (1908), substantially eviscerated governmental immunity in holding that individuals might sue in federal court to enjoin state officers from enforcing unconstitutional statutes. Congress, reflecting agreement with the soundness of the view that "the doctrine of Ex parte Young seems indispensable to the establishment of constitutional government and the rule of law," C. Wright, Handbook of the Law of Federal Courts 186 (2d ed. 1970), accepted that decision. Perez v. Ledesma, 401 U.S. 82, 104-110 (opinion of BRENNAN, J.). In short, the trend since Hans was decided in 1890 has been against enforcement of governmental immunity except when clearly required by explicit textual prohibitions, as in the Eleventh Amendment. Moreover, as Parden illustrates, the trend also is to interpret those prohibitions narrowly and literally. For none can gainsay that a State may grievously hurt one of its citizens. Our expanding concepts of public morality are thus offended when a State may escape legal redress for its wrongs. I need not address in this case, however, the question whether today's decision constitutes a denial of the Fifth Amendment's counterpart guarantee of due process. See, however, Jacobs, supra, at 163-164. Our constitutional commitment, recited in the Preamble, is to "establish Justice." That keystone objective is furthered by the trend toward limitation of the defense of governmental immunity represented by Ex parte Young and Parden. Today, however, the Court and my Brother MARSHALL arrest the trend -- the Court by watering down Parden in reliance

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     on the Parden dissent and in its discussion of the inapplicable Eleventh Amendment, and my Brother MARSHALL by rejecting Mr. Chief Justice Marshall's view that no jurisdictional bar may be implied in Art. III.

I would reverse the Court of Appeals and remand the case to the District Court with direction to proceed to trial on the complaint.


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