fact that, unlike the present case, nothing had occurred to lift the State's common-law immunity.
Justice Ruth Bader Ginsburg asked Mr. Kneedler what the State Department's position was on whether Mr. Samantar deserved the common-law immunity he had been describing.
For if the only relevant issue in Hans was the State's common-law immunity, such a view would seem to compel the conclusion that the State had also pro tanto surrendered their common-law immunity with respect to any claim under the Contract Clause.
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.
However, if the issue of the limits of the judicial power, as well as of common-law immunity, is considered to be relevant in cases such as Hans and this case, the decision in Hans is sensibly understood as resting on the former basis alone.
Yet my Brother BRENNAN, given his theory of waiver of common-law immunity plus his theory that no constitutional limitation upon the exercise of the federal judicial power exists in the context of a suit brought against a State by one of its citizens, is forced either to this anomalous position or else to the admission that Hans was incorrectly decided.
For, although the State's common-law immunity may have been no defense to a Contract Clause claim, the State had not consented to suit in federal court and therefore it was not susceptible to the exercise of the federal judicial powerregardless of the source of the federal claim.
The Founders did not silently constitutionalize a common-law immunity, but neither did they leave each State wholly free to hale other States before its courts.
Recognizing that the application of the Eleventh Amendment, which limits only the federal courts, was a "misnomer 39 as applied to state courts, the Court nonetheless concluded that the principles of common law sovereign immunity applied absent "compelling evidence" that the states had surrendered such by the ratification of the Constitution.
"Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall.
The Court concluded that "(f ew doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine in Bradley v. Fisher, 13 Wall.
