Federalist No. 81, assuring his audience that the Constitution would not remove the states' traditional immunity from lawsuits. The Court then examined similar language in statements made by James Madison and John Marshall in the Virginia convention held to ratify the Constitution. Both asserted that the federal power to hear claims brought by a state against a citizen of another state would not apply in the reverse, hence that one state could not be sued in federal court by citizens of another. The Court suggested that the framers of the Constitution had not addressed the possibility of a citizen suing his own state because such a thing would simply be inconceivable to them. At the time the Constitution was written, states had always been immune from such suits, unless the state itself consented to be sued. Furthermore, the Judiciary Acts of 1789 and 1802 had granted the federal courts jurisdiction "concurrent with the courts of the several states," indicating that the Congress had not contemplated the possibility that the federal courts would have any powers unknown to the state courts. Finally, the Court noted the argument made by Justice Marshall in another case, that the Supreme Court could hear appeals of a state's successful suit against a citizen precisely because this was not the same thing as a citizen's suit against the state. Instead, Marshall compared them to suits against the United States, which were clearly forbidden at the time. Harlan's concurrence Justice John Marshall Harlan wrote a brief concurring opinion, agreeing with the outcome in the case, but asserting that the Court's criticism of the Chisholm case was misplaced. Harlan thought that Chisholm had been decided correctly, based on the language of the Constitution at the time of the decision. Later developments Ex parte Young (1908) determined that a citizen could sue a state official to prevent that official from carrying out a state policy that was deemed unconstitutional. Fitzpatrick v. Bitzer found that the Fourteenth Amendment gave the Congress the power to abrogate state immunity from suit to the extent that this was necessary to protect Constitutional rights protected by the Amendment. In 1987, Welch v. Texas Department of Highways led to a 5–4 decision in the U.S. Supreme Court, with Justice Antonin Scalia "concurring in part and concurring in the judgment." Four justices upheld Hans, while Justice Antonin Scalia concluded that Congress had assumed Hans when enacting