Page:Franchise Tax Board of California v. Hyatt.pdf/28

Rh express views on the question before us. And it seems particularly unlikely that John Marshall, one of those to whom the Court refers, see ante, at 10–11, would have held views of the law in respect to States that he later repudiated in respect to sovereign nations.

The majority cites Nathan v. Virginia, 1 Dall. 77, n. (C. P. Phila. Cty. 1781). As the majority points out, that case involved a Pennsylvania citizen who filed a suit in Pennsylvania’s courts seeking to attach property belonging to Virginia. The Pennsylvania Court of Common Pleas accepted Virginia’s claim of sovereign immunity and dismissed the suit. But it did so only after “delegates in Congress from Virginia… applied to the supreme executive council of Pennsylvania” for immunity, and Pennsylvania’s Attorney General, representing its Executive, asked the court to dismiss the case. Id., at 78, n. The Pennsylvania court thus granted immunity only after Virginia “followed the usual diplomatic course.” Pfander, Rethinking the Supreme Court’s Original Jurisdiction in State-Party Cases, 82 Cal. L. Rev. 555, 585 (1994). Given the participation of Pennsylvania’s Executive in this diplomatic matter, the case likely involved Pennsylvania’s consent to a claim of sovereign immunity, rather than a view that Virginia had an absolute right to immunity.

The majority next argues that “the Constitution affirmatively altered the relationships between the States” by giving them immunity that they did not possess when they were fully independent. Ante, at 13. The majority thus maintains that, whatever the nature of state immunity before ratification, the Constitution accorded States an absolute immunity that they did not previously possess.

The most obvious problem with this argument is that no provision of the Constitution gives States absolute immunity in each other’s courts. The majority does not attempt