Breyer, J., dissenting
exemption. Did one sovereign have an absolute right to an exemption from the jurisdiction of the courts of another, or was that exemption a customary matter, a matter of consent that a sovereign might withdraw? As to that question, nothing in the majority’s opinion casts doubt on Hall’s conclusion that States—like foreign nations—were accorded immunity as a matter of consent rather than absolute right.
The majority refers to “the founding era’s foremost expert on the law of nations,” Emer de Vattel, who stated that a “sovereign is ‘exempt from all foreign jurisdiction.’” Ante, at 7 (quoting 4 E. de Vattel, The Law of Nations 486 (J. Chitty ed. 1883) (Vattel); alterations omitted). But Vattel made clear that the source of a sovereign’s immunity in a foreign sovereign’s courts is the “‘consen[t]’” of the foreign sovereign, which, he added, reflects a “‘tacit convention’” among nations. Schooner Exchange, 7 Cranch, at 143 (quoting 4 Vattel 472). And Schooner Exchange and Santissima Trinidad underscore that such a tacit convention can be rejected, and that consent can be “withdrawn upon notice at any time.” Santissima Trinidad, 7 Wheat., at 353.
The majority also draws on statements of the Founders concerning the importance of sovereign immunity generally. But, as Hall noted, those statements concerned matters entirely distinct from the question of state immunity at issue here. Those statements instead “concerned questions of federal-court jurisdiction and the extent to which the States, by ratifying the Constitution and creating federal courts, had authorized suits against themselves in those courts.” 440 U. S., at 420–421 (emphasis added). That issue was “a matter of importance in the early days of independence,” for it concerned the ability of holders of Revolutionary War debt owed by States to collect that debt in a federal forum. Id., at 418. There is no evidence that the Founders who made those statements intended to
