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WELCH v. TEXAS DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Argued March 4, 1987
Decided June 25, 1987
Petitioner, an employee of the Texas Highways Department, was injured while working on a ferry dock operated by the Department. She filed suit against the Department and the State under 33 of the Jones Act, which provides that any seaman injured in the course of his employment may maintain an action for damages at law in federal district court, and which, in effect, applies the remedial provisions of the Federal Employer's Liability Act (FELA) to such suits. The District Court dismissed the action as barred by the Eleventh Amendment, and the Court of Appeals affirmed. Although recognizing that Parden v. Terminal Railway of Alabama Docks Dept., 377 U.S. 184 , held that an employee of a state-operated railroad may bring an FELA action in federal court, the Court of Appeals held that the decision was inapplicable in light of Congress' failure to include in the Jones Act an unmistakably clear expression of its intention to abrogate the States' Eleventh Amendment immunity from suit in federal court. The court also held that Texas had not consented to being sued under the Jones Act.
The judgment is affirmed.
780 F.2d 1268, affirmed.
JUSTICE POWELL, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR, concluded that the Eleventh Amendment bars a state employee from suing the State in federal court under the Jones Act. Pp. 472-495.
Michael D. Cucullu argued the cause and filed a brief for petitioner.
F. Scott McCown, Special Assistant Attorney General of Texas, argued the cause for respondents. With him on the brief were Jim Mattox, Attorney General, Mary F. Keller, Executive Assistant Attorney General, and Dudley Fowler, Assistant Attorney General. *
[ Footnote * ] Robert M. Weinberg, Julia Penny Clark, David M. Silberman, Laurence Gold, and George Kaufmann filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal.
Benna Ruth Solomon, Beate Bloch, and Clifton S. Elgarten filed a brief for the Council of State Governments et al. as amici curiae urging affirmance.
JUSTICE POWELL announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR join.
The question in this case is whether the Eleventh Amendment bars a state employee from suing the State in federal court under the Jones Act, ch. 250, 41 Stat. 1007, 46 U.S.C. 688.
The Texas Department of Highways and Public Transportation operates a free automobile and passenger ferry between [483 U.S. 468, 471] Point Bolivar and Galveston, Texas. Petitioner Jean Welch, an employee of the State Highway Department, was injured while working on the ferry dock at Galveston. Relying on 33 of the Jones Act, 46 U.S.C. 688, she filed suit in the Federal District Court for the Southern District of Texas against the Highway Department and the State of Texas. 1
The District Court dismissed the action as barred by the Eleventh Amendment. 533 F. Supp. 403, 407 (1982). A divided panel of the Court of Appeals for the Fifth Circuit reversed, with each judge writing separately. 739 F.2d 1034 (1984). On rehearing en banc, the Court of Appeals affirmed the judgment of the District Court. 780 F.2d 1268 (1986). The court recognized that Parden v. Terminal Railway of Alabama Docks Dept., 377 U.S. 184 (1964), held that an employee of a state-operated railroad company may bring an action in federal court under the Federal Employers' Liability Act (FELA), 53 Stat. 1404, 45 U.S.C. 51-60. Parden is relevant to this case because the Jones Act applied the remedial provisions of the FELA to seamen. See 46 U.S.C. 688(a). The court nevertheless concluded that "the broad sweep of the Parden decision, although it has not been over-ruled, has overtly been limited by later decisions as its full implications have surfaced." 780 F.2d, at 1270. The court relied on our holding that "Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute." Atascadero State Hospital v. [483 U.S. 468, 472] Scanlon, 473 U.S. 234, 242 (1985). 2 The Court of Appeals found no unmistakable expression of such an intention in the Jones Act. The court also held that Texas has not consented to suit under the Jones Act. 780 F.2d, at 1273-1274 (citing Lyons v. Texas A & M University, 545 S. W. 2d 56 (Tex. Civ. App. 1976), writ refused, n.r.e. We granted certiorari, 479 U.S. 811 (1986), and now affirm.
The Eleventh Amendment provides:
The Court has recognized certain exceptions to the reach of the Eleventh Amendment. If a State waives its immunity and consents to suit in federal court, the suit is not barred by the Eleventh Amendment. Clark v. Barnard, 108 U.S. 436, 447 (1883). But, because "[c]onstructive consent is not a doctrine commonly associated with the surrender of constitutional rights," Edelman v. Jordan, 415 U.S., at 673 , the Court will find a waiver by the State "only where stated `by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.'" Ibid. (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909)). Moreover, "[a] State's constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued." Pennhurst II, 465 U.S., at 99 (emphasis in original). Thus, a State does not waive Eleventh Amendment immunity in federal [483 U.S. 468, 474] courts merely by waiving sovereign immunity in its own courts. Id., at 99, n. 9.
We also have recognized that the Eleventh Amendment "necessarily [is] limited by the enforcement provisions of 5 of the Fourteenth Amendment." Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). Consequently, Congress can abrogate the Eleventh Amendment without the States' consent when its acts pursuant to its power "`to enforce, by appropriate legislation' the substantive provisions of the Fourteenth Amendment." Ibid. (quoting U.S. Const., Amdt. 14, 5). As the Court of Appeals noted in this case, we have required that "Congress must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself." Atascadero State Hospital v. Scanlon, 473 U.S., at 243 . We have been unwilling to infer that Congress intended to negate the States' immunity from suit in federal court, given "the vital role of the doctrine of sovereign immunity in our federal system." Pennhurst II, supra, at 99. Moreover, the courts properly are reluctant to infer that Congress has expanded our jurisdiction. See American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17 (1951) ("The jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation").
We now apply these principles to the Jones Act. We note that the question whether the State of Texas has waived its Eleventh Amendment immunity is not before us. Both the District Court and the Court of Appeals held that the State has not consented to Jones Act suits in federal court. The petition for certiorari does not address this issue, and we do not regard it as fairly included in the questions on which certiorari was granted. 4 Indeed, at oral argument counsel for [483 U.S. 468, 475] petitioner conceded that the question of express waiver by the State "is not before the Court . . . ." Tr. of Oral Arg. 18. We therefore have no occasion to consider petitioner's argument in her brief on the merits that the Texas Tort Claims Act, Tex. Rev. Civ. Stat. Ann., Art. 6252-19 (Vernon, 1970, as amended 1973 Tex. Gen. Laws, ch. 50) constitutes an express waiver of the State's Eleventh Amendment immunity. Brief for Petitioner 29-34. We accept the holdings of the Court of Appeals and the District Court that it does not.
Petitioner's remaining argument is that Congress has abrogated the States' Eleventh Amendment immunity from suit under the Jones Act. We assume, without deciding or intimating a view of the question, that the authority of Congress to subject unconsenting States to suit in federal court is not confined to 5 of the Fourteenth Amendment. See County of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226, 252 (1985). 5 Petitioner's argument fails in any event because Congress has not expressed in unmistakable statutory language its intention to allow States to be sued in federal court under the Jones Act. It is true that the Act extends to "[a]ny seaman who shall suffer personal injury in the course of his employment," 33 (emphasis added). But the Eleventh Amendment marks a constitutional distinction between the States and other employers of [483 U.S. 468, 476] seamen. Because of the role of the States in our federal system, "[a] general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment." Atascadero State Hospital v. Scanlon, supra, at 246. See Quern v. Jordan, 440 U.S. 332, 342 (1979). See also Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S., at 285 . In Scanlon the Court held that 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, which provides remedies for "any recipient of Federal assistance," does not contain the unmistakable language necessary to negate the States' Eleventh Amendment immunity. For the same reasons, we hold today that the general language of the Jones Act does not authorize suits against the States in federal court. 6
In Parden v. Terminal Railway of Alabama Docks Dept., 377 U.S. 184 (1964), the Court considered whether an employee of a state-owned railroad could sue the State in federal court under the FELA. The Court concluded that the State of Alabama had waived its Eleventh Amendment immunity. Id., at 186. It reasoned that Congress evidenced an intention to abrogate Eleventh Amendment immunity by making the 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 mistakenly relied on cases holding that general language in the Safety Appliance Act, 2, 6, and the Railway Labor Act, 151 et seq., made those statutes applicable to the [483 U.S. 468, 477] States. 7 It reasoned that it "should not presume to say, in the absence of express provision to the contrary, that [Congress] intended to exclude a particular group of [railroad] workers from the benefits conferred by the Act." Parden v. Terminal Railway of Alabama Docks Dept., supra, at 190. But, as discussed above, the constitutional role of the States sets them apart from other employers and defendants. Atascadero State Hospital v. Scanlon, 473 U.S., at 246 ; Pennhurst II, 465 U.S., at 99 ; Edelman v. Jordan, 415 U.S., at 673 ; Quern v. Jordan, supra, at 342-343; Employees v. Missouri Dept. of Public Health and Welfare, supra. As the dissenting opinion in Parden states:
Today, for the fourth time in little more than two years, see Papasan v. Allain, 478 U.S. 265, 293 (1986) (BRENNAN, J., concurring in part and dissenting in part); Green v. Mansour, 474 U.S. 64, 74 (1985) (BRENNAN, J., dissenting); Atascadero State Hospital v. Scanlon, supra, at 247 (BRENNAN, J., dissenting), four Members of the Court urge that we overrule Hans v. Louisiana, 134 U.S. 1 (1890), and the long line of cases that has followed it. The rule of law depends in [483 U.S. 468, 479] large part on adherence to the doctrine of stare decisis. Indeed, the doctrine is "a natural evolution from the very nature of our institutions." Lile, Some Views on the Rule of Stare Decisis, 4 Va. L. Rev. 95, 97 (1916). It follows that "any departure from the doctrine of stare decisis demands special justification." Arizona v. Rumsey, 467 U.S. 203, 212 (1984). Although the doctrine is not rigidly observed in constitutional cases, "[w]e should not be . . . unmindful, even when constitutional questions are involved, of the principle of stare decisis, by whose circumspect observance the wisdom of this Court as an institution transcending the moment can alone be brought to bear on the difficult problems that confront us." Green v. United States, 355 U.S. 184, 215 (1957) (Frankfurter, J., dissenting). Despite these time-honored principles, the dissenters - on the basis of ambiguous historical evidence - would flatly overrule a number of major decisions of the Court, and cast doubt on others. See n. 27, infra. Once again, the dissenters have placed in issue the fundamental nature of our federal system. 9
The constitutional foundation of state sovereign immunity has been well described by JUSTICE MARSHALL in his separate opinion in Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279 (1973):
JUSTICE BRENNAN has argued at length that "[a] close examination of the historical records" demonstrates that "[t]here simply is no constitutional principle of state sovereign immunity." Atascadero State Hospital v. Scanlon, 473 U.S., at 259 (dissenting opinion). In his dissent today, he repeats and expands this historical argument. Post, at 504-516. The dissent concedes, as it must, that three of the most prominent supporters of the Constitution - Madison, Hamilton, and Marshall - took the position that unconsenting States would not be subject to suit in federal court. 10 The [483 U.S. 468, 481] Court has relied on these statements in the past. See Edelman v. Jordan, 415 U.S., at 660 -662, n. 9; Monaco v. Mississippi, 292 U.S. 313, 323 -325 (1934); Hans v. Louisiana, 134 Page 482 U.S., at 12 -14. Although the dissenters would read these statements to apply only to cases in which no federal question is presented, see post, at 504-509; Atascadero State Hospital v. Scanlon, supra, at 268, 276-278, the statements themselves do not suggest such a limitation. 11 Moreover, the delicate problem of enforcing judgments against the States, that was raised by both Federalists and anti-Federalists, would have arisen in cases presenting a federal question as well as in other cases.
It is true, as the Court observed in Hans, supra, at 14, that opinions on this question differed during the ratification debates. Among those who disagreed with Madison, Hamilton, and Marshall were Edmund Randolph and James Wilson, both of whom supported ratification. 12 Opponents of [483 U.S. 468, 483] ratification, including Patrick Henry, George Mason, and Richard Henry Lee, feared that the Constitution would make unconsenting States subject to suit in federal court. Despite the strong rhetoric in the dissent, these statements fall far short of demonstrating a consensus that ratification of the Constitution would abrogate the sovereign immunity of the States. Indeed, the representations of Madison, Hamilton, and Marshall that the Constitution did not abrogate the States' sovereign immunity may have been essential to ratification. 13 For example, the New York Convention appended to its ratification resolution a declaration of understanding that "the Judicial Power of the United States in cases in which a State may be a party, does not extend to criminal Prosecutions, or to authorize any Suit by any Person against a State." 2 Documentary History of the Constitution of the United States of America 194 (1894). 14 At most, [483 U.S. 468, 484] then, the historical materials show that - to the extent this question was debated - the intentions of the Framers and Ratifiers were ambiguous.
No one doubts that the Eleventh Amendment nullified the Court's decision in Chisholm v. Georgia, 2 Dall. 419 (1793). Chisholm was an original action in assumpsit, filed by the South Carolina executor of a South Carolina estate, to recover money owed to the estate by Georgia. The Court held, over a dissent by Justice Iredell, that it had jurisdiction. The reaction to Chisholm was swift and hostile. The Eleventh Amendment passed both Houses of Congress by large majorities in 1794. Within two years of the Chisholm decision, the Eleventh Amendment was ratified by the necessary 12 States. 15
The dissent, observing that jurisdiction in Chisholm itself was based solely on the fact that Chisholm was not a citizen of Georgia, argues that the Eleventh Amendment does not apply to cases presenting a federal question. 16 The text of the Amendment states that "[t]he Judicial power of the [483 U.S. 468, 485] 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.) Federal-question actions unquestionably are suits "in law or equity"; thus the plain language of the Amendment refutes this argument. 17 Nor does the dissenting opinion offer any satisfactory explanation for the rejection, by an overwhelming margin, of an amendment offered by Senator Gallatin that would have allowed citizens to sue the States for causes of action arising under treaties. 18 [483 U.S. 468, 486]
The Court's unanimous decision in Hans v. Louisiana, 134 U.S. 1 (1890), firmly established that the Eleventh Amendment embodies a broad constitutional principle of sovereign immunity. Hans, a citizen of Louisiana, brought an action against the State in federal court alleging that its failure to pay interest on certain bonds violated the Contract Clause. The Court considered substantially the same historical materials relied on by the dissent and unanimously held that the action was barred by the doctrine of sovereign immunity. Justice Bradley's opinion for the Court observed:
Contrary to the suggestion in the dissent, post, at 519, the fundamental principle enunciated in Hans has been among the most stable in our constitutional jurisprudence. Moreover, the dissent is simply wrong in asserting that the doctrine lacks a clear rationale, post, at 519. Because of the sensitive problems "inherent in making one sovereign appear against its will in the courts of the other," Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S., at 294 (MARSHALL, J., concurring in result), the doctrine of sovereign immunity [483 U.S. 468, 487] plays a vital role in our federal system. The contours of state sovereign immunity are determined by the structure and requirements of the federal system. The rationale has been set out most completely in the Court's unanimous opinion, per Chief Justice Hughes, in Monaco v. Mississippi, 292 U.S. 313 (1934). First, the United States may sue a State, because that is "inherent in the Constitutional plan." Id., at 329. Absent such a provision, "`the permanence of the Union might be endangered.'" Ibid. (quoting Oklahoma v. Texas, 258 U.S. 574, 581 (1922)). Second, States may sue other States, because a federal forum for suits between States is "essential to the peace of the Union." Monaco v. Mississippi, supra, at 328. Third, States may not be sued by foreign states, because "[c]ontroversies between a State and a foreign State may involve international questions in relation to which the United States has a sovereign prerogative." 292 U.S., at 331 . Fourth, the Eleventh Amendment established "an absolute bar" to suits by citizens of other States or foreign states. Id., at 329. Finally, "[p]rotected by the same fundamental principle [of sovereign immunity], the States, in the absence of consent, are immune from suits brought against them by their own citizens . . . ." Ibid. The Court has never questioned this basic framework set out in Monaco v. Mississippi.
The dissenters offer their unsupported view that the principle of sovereign immunity is "`pernicious'" because it assertedly protects States from the consequences of their illegal conduct and prevents Congress from "`tak[ing] steps it deems necessary and proper to achieve national goals within its constitutional authority.'" Post, at 521 (quoting Atascadero State Hospital v. Scanlon, 473 U.S., at 302 (BRENNAN, J., dissenting)). Of course, the dissent's assertion that our cases construing the Eleventh Amendment deprive Congress of some of its constitutional power is simply question-begging. Moreover, as noted supra, at 475, Congress clearly has authority to limit the Eleventh Amendment when [483 U.S. 468, 488] it acts to enforce the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S., at 456 . The dissent's statement that sovereign immunity "protect[s] the States from the consequences of their illegal conduct" erroneously suggests that aggrieved individuals are left with no remedy for harmful state actions. Relief often may be obtained through suits against state officials rather than the State itself, or through injunctive or other prospective remedies. Edelman v. Jordan, 415 U.S. 651 (1974). Municipalities and other local government agencies may be sued under 42 U.S.C. 1983. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). In addition, the States may provide relief by waiving their immunity from suit in state court on state-law claims. 19 That States are not liable in other circumstances is a necessary consequence of their role in a system of dual sovereignties. Although the dissent denies that sovereign immunity is "`required by the structure of the federal system,'" post, at 520 (quoting Atascadero, supra, at 302), the principle has been deeply embedded in our federal system from its inception.
As a fallback position, the dissent argues that the doctrine of sovereign immunity has no application to suits in admiralty against unconsenting States. Post, at 497-504. This argument also is directly contrary to long-settled authority, as well as the Court's recognition that the Eleventh Amendment affirms "the fundamental principle of sovereign immunity," Pennhurst II, 465 U.S., at 98 ; Monaco v. Mississippi, supra, at 329.
In Ex parte New York, No. 1, 256 U.S. 490 (1921), a unanimous Court held that unconsenting States are immune from [483 U.S. 468, 489] in personam suits in admiralty brought by private citizens. 20 Today the dissent asserts that the Court's opinion in Ex parte New York, No. 1, "did not attempt to justify its obliteration" of the traditional distinction between admiralty cases and cases in law or equity. Post, at 500. On the contrary, the Court expressly recognized the distinction, see 256 U.S., at 497 , and provided a reasoned basis for its holding:
The dissent suggests that In re New York, No. 1, decided in 1921, overruled settled law to the effect that the Constitution does not bar private citizens from bringing admiralty [483 U.S. 468, 491] suits against the States. Post, at 500. The dissent concedes that the Court "`did not pass on the applicability of the Eleventh Amendment in admiralty'" prior to 1921. Post, at 499 (citation omitted). It nevertheless asserts that dicta in United States v. Peters, 5 Cranch 115 (1809), and Governor of Georgia v. Madrazo, 1 Pet. 110 (1828), support the "holding" of United States v. Bright, 24 Fed. Cas. 1232 (No. 14,647) (CC Pa. 1809), that the Eleventh Amendment does not apply to suits in admiralty. In fact these early cases cast considerable doubt on the dissent's position.
United States v. Peters was a suit against the heirs of David Rittenhouse, who had served as treasurer of the State of Pennsylvania during the Revolutionary War. While Rittenhouse was treasurer, the State had seized a British vessel and sold it as a prize of war. Rittenhouse had deposited most of the proceeds in his own account, and had not turned them over to the State at the time of his death. Chief Justice Marshall's opinion for the Court turned on the facts that "the suit was not instituted against the state, or its treasurer, but against the executrixes of David Rittenhouse," and that the State "had neither possession of, nor right to, the property." 5 Cranch, at 139-141. Indeed, language in the Court's opinion suggests that an action against the State would have been barred by the Eleventh Amendment:
The dissent's reliance on Governor of Georgia v. Madrazo, supra, also is misplaced. Madrazo, a Spanish subject, sued the Governor of Georgia in admiralty to obtain possession of a cargo of slaves or the proceeds from their sale. Chief Justice Marshall's opinion for the Court held that the Eleventh Amendment applies "where the chief magistrate of a state is sued, not by his name, but by his style of office, and the claim made upon him is entirely in his official character." Id., at 123-124. Although Madrazo argued that the Eleventh Amendment does not apply to suits in admiralty, the Court carefully avoided the question. Instead, it held that the District Court where the action was filed had no jurisdiction regardless of whether the Eleventh Amendment applied. 24
Madrazo then filed an original admiralty proceeding directly against Georgia in this Court. Once again the Court avoided the question whether the Eleventh Amendment applies [483 U.S. 468, 493] to suits in admiralty. Instead, the Court concluded that the case was not an admiralty action, but was "a mere personal suit against a state, to recover proceeds in its possession." Ex parte Madrazzo, 7 Pet. 627, 632 (1833). This rather strained conclusion was contrary to "the assumption of all concerned" that the action was maritime in nature. D. Currie, The Constitution and the Supreme Court, 1789-1888, p. 105, n. 98 (1985).
On balance, the early cases in fact indicate that unconsenting States were immune from suits in admiralty. 25 At the very least, they demonstrate that the dissent errs in suggesting that the amenability of States to suits in admiralty was "settled," post, at 499. 26 We therefore decline to overrule precedents that squarely reject the dissenters' position.
In deciding yet another Eleventh Amendment case, we do not write on a clean slate. The general principle of state sovereign immunity has been adhered to without exception by [483 U.S. 468, 494] this Court for almost a century. The dissent nevertheless urges the Court to ignore stare decisis and overrule the long and unbroken series of precedents reaffirming this principle. If the Court were to overrule these precedents, a number of other major decisions also would have to reconsidered. 27 As we have stated, supra, at 478-479, the doctrine of stare decisis is of fundamental importance to the rule of law. For this [483 U.S. 468, 495] reason, "any departure from the doctrine . . . demands special justification." Arizona v. Rumsey, 467 U.S., at 212 . The arguments made in the dissent fall far short of justifying such a drastic repudiation of this Court's prior decisions. 28
For the reasons we have stated, the judgment of the Court of Appeals for the Fifth Circuit is affirmed.
[ Footnote 2 ] The question in Scanlon was whether 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, makes state agencies subject to suits for retroactive monetary relief in federal court. The Rehabilitation Act was passed pursuant to 5 of the Fourteenth Amendment. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 244 -245, n. 4 (1985). Congress therefore had the power to subject unconsenting States to suit in federal court. See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
[ Footnote 3 ] In Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982), eight Members of the Court agreed that the Eleventh Amendment bars suits in admiralty brought to recover damages from the State or its officials. Id., at 698-699 (plurality opinion of STEVENS, J.); id., at 706-710 (WHITE, J., concurring in judgment in part and dissenting in part). An action under the Jones Act unquestionably is an action to recover damages from the State.
[ Footnote 4 ] The questions presented in the petition for certiorari are:
[ Footnote 5 ] The argument for such an authority starts from the proposition that the Constitution authorizes Congress to regulate matters within the admiralty and maritime jurisdiction, either under the Commerce Clause or the Necessary and Proper Clause. See D. Robertson, Admiralty and Federalism 142-145 (1970). By ratifying the Constitution, the argument runs, the States necessarily consented to suit in federal court with respect to enactments under either Clause.
[ Footnote 6 ] Because Eleventh Amendment immunity "partakes of the nature of a jurisdictional bar," Edelman v. Jordan, 415 U.S. 651, 678 (1974), we have no occasion to consider the State's additional argument that Congress did not intend to afford seamen employed by the States a remedy under the Jones Act.
[ Footnote 7 ] As the dissenting opinion in Parden observed, these cases do not support the Court's holding on the Eleventh Amendment issue. 377 U.S., at 200 , n. 2 (WHITE, J., dissenting, joined by Douglas, Harlan, and Stewart, JJ.). California v. Taylor, 353 U.S. 553 (1957), was a suit against the National Railroad Adjustment Board that expressly reserved the Eleventh Amendment question. Id., at 568, n. 16 ("The contention of the State that the Eleventh Amendment . . . would bar an employee . . . from enforcing an award . . . in a suit against the State in a United States District Court . . . is not before us under the facts of this case"). United States v. California, 297 U.S. 175 (1936), was a suit brought by the United States, against which the States are not entitled to assert sovereign immunity. See United States v. Mississippi, 380 U.S. 128, 140 -141 (1965). Finally, Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 280 -282 (1959), involved an interstate compact that expressly permitted the bistate corporation to sue and be sued.
[ Footnote 8 ] As discussed, supra, at 475 and n. 5, we have no occasion in this case to consider the validity of the additional holding in Parden, that Congress has the power to abrogate the States' Eleventh Amendment immunity under the Commerce Clause to the extent that the States are engaged in interstate commerce.
[ Footnote 9 ] We address today only two principal arguments raised by the dissent: that citizens may bring federal-question actions against the States in federal court, see infra, at 480-488, and that citizens may bring admiralty suits against the States, see infra, at 488-493.
[ Footnote 10 ] Madison, Hamilton, and Marshall took this position in response to suggestions that the Clause in Article III, 2, extended the federal judicial power to controversies "between a State and Citizens of another [483 U.S. 468, 481] State." James Madison, often described as the "father of the Constitution," addressed the effect of the first Clause during the Virginia Convention:
[ Footnote 11 ] The dissent relies heavily on later statements in Chief Justice Marshall's opinions for the Court in Cohens v. Virginia, 6 Wheat. 264, 382-383, 412 (1821), and Osborn v. Bank of the United States, 9 Wheat. 738, 857-858 (1824). Of course the possibility that Marshall changed his views on sovereign immunity after the Constitution was ratified, or espoused a broader view of sovereign immunity only to secure ratification, does not imply that the views he expressed at the Virginia Convention should be disregarded. In any event, the dissent places too much weight on Cohens and Osborn. In Cohens, it was the State that began criminal proceedings against the Cohenses. It had long been understood that sovereign immunity did not prevent persons convicted of crimes from appealing. See D. Currie, The Constitution and the Supreme Court, 1789-1888, p. 99 (1985). Accordingly, Chief Justice Marshall's opinion in Cohens distinguished a writ of error, which is but "a continuation of the same suit," from an independent suit against the State. 6 Wheat., at 409. Thus, as the Court properly noted in both Hans v. Louisiana, 134 U.S. 1, 19 (1890), and Monaco v. Mississippi, 292 U.S. 313, 327 (1934), the statements quoted in today's dissent were unnecessary to the decision in Cohens. In Osborn, the Court held that the Eleventh Amendment did not apply to a suit against a state official, a holding that is not at issue today. Thus, the statement quoted by the dissent, post, at 509, is dictum.
[ Footnote 12 ] Both Wilson and Randolph had served on the Committee of Detail that added the Clause in Article III, 2, extending the judicial power to controversies between a State and citizens of another State. As a Member of the Court, Wilson sided with the majority in Chisholm v. Georgia, 2 Dall. 419 [483 U.S. 468, 483] (1793). Randolph, while Attorney General of the United States, argued the case for Chisholm.
[ Footnote 13 ] A leading historian has concluded:
[ Footnote 14 ] The New York Convention also stated its understanding that "every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same." 2 Documentary History of the Constitution of the United States of America 191 (1894). This view later was embodied in the Tenth Amendment, which reserves to the States, or to the people, powers not delegated to the United States by the Constitution. Of course, the Constitution does not expressly abrogate the sovereign immunity of the States. Thus the principle that States cannot be sued without their consent is broadly consistent with the Tenth Amendment.
[ Footnote 15 ] President Adams did not notify Congress that the Amendment had been ratified by the necessary three-fourths of the States until January 1798. 1 J. Richardson, Messages and Papers of the Presidents 260 (1899).
[ Footnote 16 ] The dissent states that Justice Iredell's dissenting opinion in Chisholm v. Georgia is "generally regarded as embodying the rationale of the Eleventh Amendment." Post, at 513. As the dissent itself observes, post, at 515-516, Justice Iredell's opinion rests primarily on the absence of a statutory provision conferring jurisdiction on the Court in cases such as Chisholm's. To the extent that Justice Iredell discussed the constitutional question, his opinion is consistent with the more recent decisions of this Court:
[ Footnote 17 ] The dissent's principal textual argument rests on the similarity between the language of the Amendment and the language of the State-Citizen Diversity Clauses in Article III. See Atascadero State Hospital v. Scanlon, 473 U.S., at 286 -287 (BRENNAN, J., dissenting). This argument cannot explain why Congress chose to apply the Amendment to "any suit in law or equity" rather than any suit where jurisdiction is predicated solely on diversity of citizenship. Instead, the dissent reads the Amendment to accomplish even less than its plain language suggests. As the Court long has recognized, the speed and vigor of the Nation's response to Chisholm suggests that the Eleventh Amendment should be construed broadly so as to further the federal interests that the Court misapprehended in Chisholm. The dissent also has some difficulty explaining the Clause in Article III, 2, that extends the federal judicial power "to Controversies to which the United States shall be a Party." Although arguments analogous to those in the dissent would suggest that this Clause abrogated the sovereign immunity of the United States, the dissent stops short of such an extreme conclusion.
[ Footnote 18 ] In an effort to explain the overwhelming rejection of Gallatin's amendment, the dissent suggests that Congress would have enumerated all the Article III heads of jurisdiction if it had intended to bar federal-question actions against the States. Atascadero State Hospital v. Scanlon, 473 U.S., at 287 , n. 40. The dissent also speculates, without citing a shred of historical evidence, that the Senate may have rejected the proposed amendment to avoid giving the impression that it was barring federal-question actions not based on a treaty. Finally, the dissent observes that federal courts had no general original federal-question jurisdiction under the Judiciary Act of 1789. The dissent thus implies that the question was regarded as unimportant at the time. But the dissent also concedes that Senator Gallatin's proposed amendment was so unpopular that its adoption [483 U.S. 468, 486] might have resulted in a constitutional convention. Ibid. This concession hardly is consistent with the dissent's assertion that adoption of the Gallatin amendment would have had no practical significance.
[ Footnote 19 ] In this case, for example, Welch is not without a remedy: She may file a workers' compensation claim against the State under the Texas Tort Claims Act, ch. 292, 1969 Tex. Gen. Laws 874, amended by ch. 50, 1973 Tex. Gen. Laws 77. See Brief for Respondents 34-35.
[ Footnote 20 ] The opinion was written by Justice Pitney for a strong Court that included Justices Holmes and Brandeis. Chief Justice White, who died 13 days before the decision was announced, presumably concurred in the result and the reasoning.
[ Footnote 21 ] The dissent insists that In re New York, No. 2, does not support our holding. Post, at 500-501, n. 5. As noted supra, at 473, n. 3, eight Members of the Court recently have thought otherwise. In Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982), JUSTICE STEVENS' [483 U.S. 468, 490] opinion, joined by Chief Justice Burger and JUSTICES MARSHALL and BLACKMUN, explains that In re New York, No. 2, holds:
[ Footnote 22 ] The dissent suggests that a distinction may exist between admiralty suits based on a statute and other admiralty suits against the States. The only argument the dissent advances in favor of this distinction is that "admiralty is not mentioned in the Eleventh Amendment." Post, at 502. But that observation - as well as the arguments that the Eleventh Amendment embodies a principle of sovereign immunity - applies to all admiralty suits. The perceived distinction is simply unsound.
[ Footnote 23 ] The trial in United States v. Bright, 24 Fed. Cas. 1232 (No. 14,647) (CC Pa. 1809), occurred after the Court's decision in Peters. Peters therefore [483 U.S. 468, 492] cannot possibly have "supported" the holding of Bright in the sense of approval or endorsement. Bright was an officer of the Pennsylvania state militia who defended the Rittenhouse home against federal soldiers attempting to enforce the judgment in Peters. Circuit Justice Washington's remarks, that the dissent characterizes as the "holding" of the case, post, at 498, actually were part of his charge to the jury. The Court had no opportunity to consider Justice Washington's statements, because it lacked jurisdiction to hear an appeal from Bright's conviction.
[ Footnote 24 ] The Court noted that the action was between a State and a foreign subject, an action within the Court's original jurisdiction under Article III, 2, of the Constitution and 13 of the Judiciary Act of 1789, 1 Stat. 73, 80. Thus, the Court concluded that, "if the 11th amendment . . . does not extend to proceedings in admiralty, it was a case for the original jurisdiction of the Supreme Court," Governor of Georgia v. Madrazo, 1 Pet., at 124, because it was a suit between a State and a foreign subject. This conclusion is surprising in view of the fact that the Judiciary Act of 1789, ch. 20, 13, 1 Stat. 73, 80, conferred original, but not exclusive, jurisdiction of such actions on the Court. Congress had conferred admiralty jurisdiction on the district courts in 9 of the Judiciary Act, 1 Stat. 76-77. Moreover, Chief Justice Marshall's opinion for the Court in Cohens v. Virginia, 6 Wheat., at 394-402, already had indicated that the Court's original jurisdiction under Article III is not exclusive. See D. Currie, The Constitution and the Supreme Court, 1789-1888, p. 105, n. 98 (1985).
[ Footnote 25 ] It is of course true, as the dissent observes, that Justice Story's treatise on the Constitution observed that a suit in admiralty is not, strictly speaking, a suit in law or equity. Post, at 499 (quoting 3 J. Story, Commentaries on the Constitution of the United States 560-561 (1833)). Justice Story, however, merely observed that "[i]t has been doubted whether [the eleventh] amendment extends to cases of admiralty and maritime jurisdiction," id., at 560, and cited only the cases discussed above. Moreover, Justice Story was noted for his expansive view of the admiralty jurisdiction of federal courts. See, e. g., De Lovio v. Boit, 7 Fed. Cas. 418 (No. 3,776) (CC Mass. 1815); Note, 37 Am. L. Rev. 911, 916 (1903) ("It was said of the late Justice Story, that if a bucket of water were brought into his court with a corn cob floating in it, he would at once extend the admiralty jurisdiction of the United States over it").
[ Footnote 26 ] In addition, the dissent accords little weight to early cases applying the general admiralty principle that maritime property belonging to a sovereign cannot be seized. E. g., The Schooner Exchange v. McFaddon, 7 Cranch 116 (1812); L'Invincible, 1 Wheat. 238 (1816); The Santissima Trinidad, 7 Wheat. 283 (1822). See Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S., at 709 -710, and n. 6 (opinion of WHITE, J.).
[ Footnote 27 ] The dissent is written as if the slate had been clean since Hans was decided 97 years ago. As noted above, Hans has been reaffirmed in case after case, often unanimously and by exceptionally strong Courts. The two principal holdings of Hans that the dissent challenges are that the federal judicial power does not extend either to suits against States that arise under federal law, or to suits brought against a State by its own citizens. If these holdings were rejected, the Court would overrule at least 17 cases, in addition to Hans itself. Twelve of these cases relied on both of these principles. See Papasan v. Allain, 478 U.S. 265 (1986); Green v. Mansour, 474 U.S. 64 (1985); Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985); Edelman v. Jordan, 415 U.S. 651 (1974); Quern v. Jordan, 440 U.S. 332, 342 (1979); Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279 (1973); Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459 (1945); Missouri v. Fiske, 290 U.S. 18 (1933); Ex parte New York, No. 1, 256 U.S. 490 (1921); Ex parte New York, No. 2, 256 U.S. 503 (1921); Duhne v. New Jersey, 251 U.S. 311 (1920); Fitts v. McGhee, 172 U.S. 516 (1899). Four of them rested on the principles Hans established for determining when Congress has extended the federal judicial power to include actions against States under federal law. County of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226 (1985); Great Northern Life Insurance Co. v. Read, 322 U.S. 47 (1944); Murray v. Wilson Distilling Co., 213 U.S. 151 (1909); Smith v. Reeves, 178 U.S. 436 (1900). Finally, one would be overruled only to the extent the Court rejected the principle that the federal judicial power does not extend to suits against States by their own citizens. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984).
Repudiation of these principles also might justify reconsideration of a variety of other cases that were concerned with this Court's traditional treatment of sovereign immunity. E. g., Florida Dept. of Health and Rehabilitative Services v. Florida Nursing Home Assn., 450 U.S. 147 (1981); Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978); Monaco v. Mississippi, 292 U.S. 313 (1934); Hopkins v. Clemson Agricultural College, 221 U.S. 636 (1911).
[ Footnote 28 ] Apart from rhetoric, the dissent relies on two arguments: (i) the "historical record," and (ii) the perceived "pernicious[ness]" of the principle of sovereign immunity. As we have noted, the fragments of historical evidence at the time of the adoption of the Constitution are as supportive of Hans v. Louisiana as they are of the dissent. In attaching weight to this ambiguous history, it is not immaterial that we are a century further removed from the events at issue than were the Justices who unanimously agreed in Hans. Not one of the 17 cases the dissent would overrule concludes that the historical evidence calls into question the principle of state sovereign immunity or justifies the ignoring of stare decisis. As for the view that it would be "pernicious" to protect States from liability for their "unlawful conduct," we have noted above that an aggrieved citizen such as petitioner in fact has a bundle of possible remedies. See supra, at 488, and n. 19.
JUSTICE WHITE, concurring.
The Court expressly stops short of addressing the issue whether the Jones Act affords a remedy to seamen employed by the States. See ante, at 476, n. 6. The Court, however, has already construed the Jones Act to extend remedies to such seamen. Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 282 -283 (1959). Congress has not disturbed this construction, and the Court, as I understand it, does not now purport to do so.
JUSTICE SCALIA, concurring in part and concurring in the judgment.
Petitioner in this case did not assert as a basis for reversing the judgment that Hans v. Louisiana, 134 U.S. 1 (1890), [483 U.S. 468, 496] had been wrongly decided. That argument was introduced by an amicus, addressed only briefly in respondents' brief, and touched upon only lightly at oral argument. I find both the correctness of Hans as an original matter, and the feasibility, if it was wrong, of correcting it without distorting what we have done in tacit reliance upon it, complex enough questions that I am unwilling to address them in a case whose presentation focused on other matters.
I find it unnecessary to do so in any event. Regardless of what one may think of Hans, it has been assumed to be the law for nearly a century. During that time, Congress has enacted many statutes - including the Jones Act and the provisions of the Federal Employers' Liability Act (FELA) which it incorporates - on the assumption that States were immune from suits by individuals. Even if we were now to find that assumption to have been wrong, we could not, in reason, interpret the statutes as though the assumption never existed. Thus, although the terms of the Jones Act (through its incorporation of the FELA) apply to all common carriers by water, I do not read them to apply to States. For the same reason, I do not read the FELA to apply to States, and therefore agree with the Court that Parden v. Terminal Railway of Alabama Docks Dept., 377 U.S. 184 (1964), should be overruled. Whether or not, as Hans appears to have held, Article III of the Constitution contains an implicit limitation on suits brought by individuals against States by virtue of a nearly universal "understanding" that the federal judicial power could not extend to such suits, such an understanding clearly underlay the Jones Act and the FELA.
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 Amendment [483 U.S. 468, 497] 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.
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 [483 U.S. 468, 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. Madrazo, 1 Pet. 110 (1828), 3 supported the holding of Bright. See Atascadero [483 U.S. 468, 499] State Hospital v. Scanlon, supra, at 292-293 (BRENNAN, J., dissenting).
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 [483 U.S. 468, 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. International [483 U.S. 468, 502] 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 "[j]urisdiction 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 Accordingly, [483 U.S. 468, 503] 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 distinction [483 U.S. 468, 504] which is difficult, if not impossible, to rationalize. It is patently improper to extend the Eleventh Amendment doctrine of sovereign immunity any further. 10
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. [483 U.S. 468, 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 [483 U.S. 468, 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 [483 U.S. 468, 507] Marshall's understanding of Article III from his opinions written for the Court. The Chief Justice, in Cohens v. Virginia, 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 III's clear language, a general principle of state sovereign immunity could be implied. He concluded:
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 III'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 [483 U.S. 468, 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 [483 U.S. 468, 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.
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:
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.
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.
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. [483 U.S. 468, 517]
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 [483 U.S. 468, 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:
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 [483 U.S. 468, 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:
[ Footnote 1 ] Article III, 2, provides:
[ Footnote 2 ] The Eleventh Amendment provides:
[ Footnote 3 ] 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 because "[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.
[ Footnote 4 ] 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").
[ Footnote 5 ] 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 [483 U.S. 468, 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 Justice 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.).
[ Footnote 6 ] Welch's "status as a `seaman' under the Jones Act is assumed and is not at issue." 780 F.2d 1268, 1269 (CA5 1986).
[ Footnote 7 ] 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 [483 U.S. 468, 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.
[ Footnote 8 ] 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:
[ Footnote 9 ] 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 [483 U.S. 468, 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).
[ Footnote 10 ] 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").
[ Footnote 11 ] Similar proposals submitted in New York, North Carolina, and Rhode Island urged amendments depriving federal courts of jurisdiction over [483 U.S. 468, 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).
[ Footnote 12 ] Madison's view of this issue is not clear. As legal historian Clyde Jacobs concluded, "[w]hether Madison though 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:
[ Footnote 13 ] Hamilton's writings in The Federalist, No. 80, suggest that he did not believe that Article III barred all suits against States:
[ Footnote 14 ] In Cohens, Chief Justice Marshall explained in detail the effect of the general principle of sovereign immunity on the scope of Article III:
[ Footnote 15 ] See generally Brief of the American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae 11-23.
[ Footnote 16 ] A legal historian, Professor John Orth, recently described the historical approach taken by the Court in Hans:
[ Footnote 17 ] Justice Story later drew the same distinction between federal subject-matter jurisdiction and federal diversity jurisdiction as did Justice Iredell:
[ Footnote 18 ] 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.
[ Footnote 19 ] 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 Low 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 [483 U.S. 468, 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.
[ Footnote 20 ] As Professor Orth concludes: