The doctrine of sovereign immunity is an amalgam of two quite different concepts, one applicable to suits in the sovereign's own courts and the other to suits in the courts of another sovereign.
The immunity of a truly independent sovereign from suit in its own courts has been enjoyed as a matter of absolute right for centuries. Only the sovereign's own consent could qualify the absolute character of that immunity.
The doctrine, as it developed at common law, had its origins in the feudal system. Describing those origins, Pollock and Maitland noted that no lord could be sued by a vassal in his [440 U.S. 410, 415] own court, but each petty lord was subject to suit in the courts of a higher lord. Since the King was at the apex of the feudal pyramid, there was no higher court in which he could be sued. 6 The King's immunity rested primarily on the structure of the feudal system and secondarily on a fiction that the King could do no wrong. 7
We must, of course, reject the fiction. It was rejected by the colonists when they declared their independence from the Crown, 8 and the record in this case discloses an actual wrong committed by Nevada. But the notion that immunity from suit is an attribute of sovereignty is reflected in our cases.
Mr. Chief Justice Jay described sovereignty as the "right to govern"; 9 that kind of right would necessarily encompass the right to determine what suits may be brought in the sovereign's own courts. Thus, Mr. Justice Holmes explained sovereign [440 U.S. 410, 416] immunity as based "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." 10
This explanation adequately supports the conclusion that no sovereign may be sued in its own courts without its consent, but it affords no support for a claim of immunity in another sovereign's courts. Such a claim necessarily implicates the power and authority of a second sovereign; its source must be found either in an agreement, express or implied, between the two sovereigns, or in the voluntary decision of the second to respect the dignity of the first as a matter of comity.
This point was plainly stated by Mr. Chief Justice Marshall in The Schooner Exchange v. McFaddon, 7 Cranch 116, which held that an American court could not assert jurisdiction over a vessel in which Napoleon, the reigning Emperor of France, claimed a sovereign right. In that case, the Chief Justice observed:
"The jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereign power.
"The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction.
"All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source." Id., at 136. [440 U.S. 410, 417]
After noting that the source of any immunity for the French vessel must be found in American law, the Chief Justice interpreted that law as recognizing the common usage among nations in which every sovereign was understood to have waived its exclusive territorial jurisdiction over visiting sovereigns, or their representatives, in certain classes of cases. 11
The opinion in The Schooner Exchange makes clear that if California and Nevada were independent and completely sovereign nations, Nevada's claim of immunity from suit in California's courts would be answered by reference to the law of California. 12 It is fair to infer that if the immunity defense Nevada asserts today had been raised in 1812 when The Schooner Exchange was decided, or earlier when the Constitution was being framed, the defense would have been sustained by the California courts. 13 By rejecting the defense in [440 U.S. 410, 418] this very case, however, the California courts have told us that whatever California law may have been in the past, it no longer extends immunity to Nevada as a matter of comity.
Nevada quite rightly does not ask us to review the California courts' interpretation of California law. Rather, it argues that California is not free, as a sovereign, to apply its own law, but is bound instead by a federal rule of law implicit in the Constitution that requires all of the States to adhere to the sovereign-immunity doctrine as it prevailed when the Constitution was adopted. Unless such a federal rule exists, we of course have no power to disturb the judgment of the California courts.
Unquestionably the doctrine of sovereign immunity was a matter of importance in the early days of independence. 14 Many of the States were heavily indebted as a result of the Revolutionary War. They were vitally interested in the question whether the creation of a new federal sovereign, with courts of its own, would automatically subject them, like lower English lords, to suits in the courts of the "higher" sovereign.
But the question whether one State might be subject to suit in the courts of another State was apparently not a matter of concern when the new Constitution was being drafted [440 U.S. 410, 419] and ratified. Regardless of whether the Framers were correct in assuming, as presumably they did, that prevailing notions of comity would provide adequate protection against the unlikely prospect of an attempt by the courts of one State to assert jurisdiction over another, the need for constitutional protection against that contingency was not discussed.
The debate about the suability of the States focused on the scope of the judicial power of the United States authorized by Art. III. 15 In The Federalist, Hamilton took the position that this authorization did not extend to suits brought by an individual against a nonconsenting State. 16 The contrary position was also advocated 17 and actually prevailed in this Court's decision in Chisholm v. Georgia, 2 Dall. 419. [440 U.S. 410, 420]
The Chisholm decision led to the prompt adoption of the Eleventh Amendment. 18 That Amendment places explicit limits on the powers of federal courts to entertain suits against a State. 19
The language used by the Court in cases construing these limits, like the language used during the debates on ratification of the Constitution, emphasized the widespread acceptance of the view that a sovereign State is never amenable to suit without its consent. 20 But all of these cases, and all of the relevant debate, concerned questions of federal-court jurisdiction and the extent to which the States, by ratifying the Constitution and creating federal courts, had authorized suits [440 U.S. 410, 421] against themselves in those courts. These decisions do not answer the question whether the Constitution places any limit on the exercise of one's State's power to authorize its courts to assert jurisdiction over another State. Nor does anything in Art. III authorizing the judicial power of the United States, or in the Eleventh Amendment limitation on that power, provide any basis, explicit or implicit, for this Court to impose limits on the powers of California exercised in this case. A mandate for federal-court enforcement of interstate comity must find its basis elsewhere in the Constitution.