Page:Franchise Tax Board of California v. Hyatt.pdf/19

16 of state immunity, and the swift enactment of the Eleventh Amendment after the Court departed from this understanding in Chisholm, “[i]t is not rational to suppose that the sovereign power should be dragged before a court.” Elliot’s Debates 555 (Marshall). Indeed, the spirited historical debate over Article III courts and the immediate reaction to Chisholm make little sense if the Eleventh Amendment were the only source of sovereign immunity and private suits against the States could already be brought in “partial, local tribunals.” Elliot’s Debates 532 (Madison). Nor would the Founders have objected so strenuously to a neutral federal forum for private suits against States if they were open to a State being sued in a different State’s courts. Hyatt’s view thus inverts the Founders’ concerns about state-court parochialism. Hall, supra, at 439 (Rehnquist, J., dissenting).

Moreover, Hyatt’s ahistorical literalism proves too much. There are many other constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice—including, for example, judicial review, Marbury v. Madison, 1 Cranch 137, 176–180 (1803); intergovernmental tax immunity, McCulloch, 4 Wheat., at 435–436; executive privilege, United States v. Nixon, 418 U. S. 683, 705–706 (1974); executive immunity, Nixon v. Fitzgerald, 457 U. S. 731, 755–758 (1982); and the President’s removal power, Myers v. United States, 272 U. S. 52, 163–164 (1926). Like these doctrines, the States’ sovereign immunity is a historically rooted principle embedded in the text and structure of the Constitution.

With the historical record and precedent against him, Hyatt defends Hall on the basis of stare decisis. But stare decisis is “‘not an inexorable command,’” Pearson v. Callahan, 555 U. S. 223, 233 (2009), and we have held that it