Page:Franchise Tax Board of California v. Hyatt.pdf/9

6 After independence, the States considered themselves fully sovereign nations. As the Colonies proclaimed in 1776, they were “Free and Independent States” with “full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.” Declaration of Independence ¶4. Under international law, then, independence “entitled” the Colonies “to all the rights and powers of sovereign states.” McIlvaine v. Coxe’s Lessee, 4 Cranch 209, 212 (1808).

“An integral component” of the States’ sovereignty was “their immunity from private suits.” Federal Maritime Comm’n v. South Carolina Ports Authority, 535 U. S. 743, 751–752 (2002); see Alden v. Maine, 527 U. S. 706, 713 (1999) (“[A]s the Constitution’s structure, its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today…”). This fundamental aspect of the States’ “inviolable sovereignty” was well established and widely accepted at the founding. The Federalist No. 39, p. 245 (C. Rossiter ed. 1961) (J. Madison); see Alden, supra, at 715–716 (“[T]he doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified”). As Alexander Hamilton explained:

"“It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union.” The Federalist No. 81, at 487 (emphasis deleted)."