Page:Franchise Tax Board of California v. Hyatt.pdf/29

8 to situate its newfound constitutional immunity in any provision of the Constitution itself. Instead, the majority maintains that a State’s immunity in other States’ courts is “implicit” in the Constitution, ante, at 16, “embed[ded]… within the constitutional design,” ante, at 13, and reflected in “‘the plan of the Convention,’” ante, at 9. See also Hall, 440 U. S., at 430 (Blackmun, J., dissenting) (arguing that immunity in this context is found “not in an express provision of the Constitution but in a guarantee that is implied as an essential component of federalism”).

I agree with today’s majority and the dissenters in Hall that the Constitution contains implicit guarantees as well as explicit ones. But, as I have previously noted, concepts like the “constitutional design” and “plan of the Convention” are “highly abstract, making them difficult to apply”—at least absent support in “considerations of history, of constitutional purpose, or of related consequence.” Federal Maritime Comm’n v. South Carolina Ports Authority, 535 U. S. 743, 778 (2002) (, dissenting). Such concepts “invite differing interpretations at least as much as do the Constitution’s own broad liberty-protecting phrases” such as “‘due process’” and “‘liberty,’” and “they suffer the additional disadvantage that they do not actually appear anywhere in the Constitution.” Ibid.

At any rate, I can find nothing in the “plan of the Convention” or elsewhere to suggest that the Constitution converted what had been the customary practice of extending immunity by consent into an absolute federal requirement that no State could withdraw. None of the majority’s arguments indicates that the Constitution accomplished any such transformation.

The majority argues that the Constitution sought to preserve States’ “equal dignity and sovereignty.” Ante, at 13. That is true, but tells us nothing useful here. When a citizen brings suit against one State in the courts of another, both States have strong sovereignty-based interests.