Petitioner motor carrier filed suit in a Nebraska trial court,
claiming,
inter alia, that certain "retaliatory" taxes and
fees the State imposed on motor carriers and vehicles such as his,
which are registered in other States but operate in Nebraska,
constituted an unlawful burden on interstate commerce and that
respondents were liable under 42 U.S.C. § 1983. Among other things,
the court concluded that the taxes and fees violated the Commerce
Clause and permanently enjoined respondents from assessing,
levying, or collecting them; but it dismissed petitioner's § 1983
claim. The State Supreme Court affirmed the dismissal, holding that
there is no cause of action under § 1983 for Commerce Clause
violations because the Clause allocates power between the State and
Federal Governments, and does not establish individual rights
against the government.
Held: Suits for violations of the Commerce Clause may
be brought under § 1983. Pp.
495 U. S.
443-451.
(a) A broad construction of § 1983 is compelled by the statutory
language, which speaks of deprivations of "any rights, privileges,
or immunities secured by the Constitution and laws." It is also
supported by § 1983's legislative history and by this Court's
decisions, which have rejected attempts to limit the types of
constitutional rights that are encompassed within the phrase
"rights, privileges, or immunities,"
see, e.g., Lynch v.
Household Finance Corp., 405 U. S. 538. Pp.
495 U. S.
443-446.
(b) The Commerce Clause confers "rights, privileges, or
immunities" within the meaning of § 1983. In addition to conferring
power on the Federal Government, the Clause is a substantive
restriction on permissible state regulation of interstate commerce.
And individuals injured by state action violating this aspect of
the Clause may sue and obtain injunctive and declaratory relief.
The three considerations for determining whether a federal statute
confers a "right" within the meaning of § 1983 -- that the
provision creates obligations binding on the governmental unit,
that the plaintiff's interest is not too vague and amorphous to be
beyond the judiciary's competence to enforce, and that the
provision was intended to benefit the plaintiff -- also weigh in
favor of recognition of a right under the Clause. Respondents'
argument that the Clause was not designed to benefit the individual
has been implicitly rejected,
Page 498 U. S. 440
Boston Stock Exchange v. State Tax Comm'n, 429 U.
S. 318,
429 U. S. 321,
n. 3, and this Court's repeated references to "rights" under the
Clause constitute a recognition that it was intended to benefit
those who are engaged in interstate commerce,
see, e.g.,
Crutcher v. Kentucky, 141 U. S. 47,
141 U. S. 57.
Respondents' attempt to analogize the Commerce Clause to the
Supremacy Clause, which does not confer "rights, privileges, or
immunities" under § 1983, is also rejected. Unlike the Commerce
Clause, the Supremacy Clause is not a source of federal rights, but
merely secures federal rights by according them priority when they
come into conflict with state law. The fact that the protection
from interference with trade conferred by the Commerce Clause may
be qualified or eliminated by Congress does not mean that it cannot
be a "right," for, until Congress does so, such protection operates
as a guarantee of freedom for private conduct that the State may
not abridge. Pp.
495 U. S.
446-451.
234 Neb. 427,
451 N.W.2d 676,
reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which
MARSHALL, BLACKMUN, STEVENS, O'CONNOR, SCALIA, and SOUTER, JJ.,
joined. KENNEDY, J., filed a dissenting opinion, in which
REHNQUIST, C.J., joined,
post, p.
495 U. S.
451.
JUSTICE WHITE delivered the opinion of the Court.
This case presents the question whether suits for violations of
the Commerce Clause may be brought under 93 Stat. 1284, as amended,
42 U.S.C. § 1983. We hold that they may.
Page 498 U. S. 441
I
Petitioner does business as an unincorporated motor carrier with
his principal place of business in Ohio. He owns tractors and
trailers that are registered in Ohio and operated in several
States, including Nebraska. On December 17, 1984, he filed a class
action suit in a Nebraska trial court challenging the
constitutionality of certain "retaliatory" taxes and fees imposed
by the State of Nebraska on motor carriers with vehicles registered
in other States and operated in Nebraska. [
Footnote 1] In his complaint, petitioner claimed,
inter alia, that the taxes and fees constituted an
unlawful burden on interstate commerce and that respondents were
liable under 42 U.S.C. § 1983. Petitioner sought declaratory and
injunctive relief, refunds of all retaliatory taxes and fees paid,
and attorney's fees and costs.
After a bench trial based on stipulated facts, the court
concluded that the taxes and fees at issue violated the Commerce
Clause
"because they are imposed only on motor carriers whose vehicles
are registered outside the State of Nebraska, while no comparable
tax or fee is imposed on carriers whose vehicles are registered in
the State of Nebraska."
App. to Pet. for Cert. 29a. It therefore permanently enjoined
respondents from "assessing, levying, or collecting" the taxes and
fees.
Id. at 30a. The court also held that petitioner was
entitled to attorney's fees and expenses under the equitable
"common fund" doctrine. The court, however, entered judgment for
respondents on the remaining claims, including the § 1983 claim.
Petitioner appealed the dismissal
Page 498 U. S. 442
of his § 1983 claim, and respondents cross-appealed the trial
court's allowance of attorney's fees and expenses under the common
fund doctrine. Respondents did not however, appeal the trial
court's determination that the retaliatory taxes and fees violated
the Commerce Clause.
The Supreme Court of Nebraska affirmed the dismissal of
petitioner's § 1983 claim, but reversed the trial court's allowance
of fees and expenses under the common fund doctrine.
See Dennis
v. State, 234 Neb. 427,
451 N.W.2d 676
(1990). With respect to the § 1983 claim, the Nebraska Supreme
Court held that "[d]espite the broad language of § 1983 . . . there
is no cause of action under § 1983 for violations of the commerce
clause."
Id. at 430, 451 N.W.2d at 678. The court relied
largely on the reasoning in
Consolidated Freightways Corp. of
Delaware v. Kassel, 730 F.2d 1139 (CA8),
cert.
denied, 469 U.S. 834 (1984), which held that claims under the
Commerce Clause are not cognizable under § 1983 because, among
other things, "the Commerce Clause does not establish individual
rights against government, but instead allocates power between the
state and federal governments." 730 F.2d at 1144.
As the Supreme Court of Nebraska recognized,
see 234
Neb. at 430, 451 N.W.2d at 678, there is a division of authority on
the question whether claims for violations of the Commerce Clause
may be brought under § 1983. [
Footnote 2] We granted certiorari to resolve this issue,
495 U.S. 956 (1990), and we now reverse.
Page 498 U. S. 443
II
A broad construction of § 1983 [
Footnote 3] is compelled by the statutory language, which
speaks of deprivations of "
any rights, privileges, or
immunities secured by the Constitution and laws." (Emphasis added.)
Accordingly, we have "repeatedly held that the coverage of [§ 1983]
must be broadly construed."
Golden State Transit Corp. v. Los
Angeles, 493 U. S. 103,
493 U. S. 105
(1989). The legislative history of the section also stresses that,
as a remedial statute, it should be "
liberally and beneficently
construed.'" Monell v. New York City Dept. of Social
Services, 436 U. S. 658,
436 U. S. 684
(1978) (quoting Rep. Shellabarger, Cong.Globe, 42d Cong., 1st
Sess., App. 68 (1871)). [Footnote
4]
Page 498 U. S. 444
As respondents argue, the "prime focus" of § 1983 and related
provisions was to ensure "a right of action to enforce the
protections of the Fourteenth Amendment and the federal
Page 498 U. S. 445
laws enacted pursuant thereto,"
Chapman v. Houston Welfare
Rights Organization, 441 U. S. 600,
441 U. S. 611
(1979), but the Court has never restricted the section's scope to
the effectuation of that goal. Rather, we have given full effect to
its broad language, recognizing that § 1983 "provide[s] a remedy,
to be broadly construed, against all forms of official violation of
federally protected rights."
Monell, supra, at
436 U. S.
700-701. Thus, for example, we have refused to limit the
phrase "and laws" in § 1983 to civil rights or equal protection
laws.
See Maine v. Thiboutot, 448 U. S.
1,
448 U. S. 4,
448 U. S. 6-8
(1980).
Even more relevant to this case, we have rejected attempts to
limit the types of constitutional rights that are encompassed
within the phrase "rights, privileges, or immunities." For example,
in
Lynch v. Household Finance Corp., 405 U.
S. 538 (1972), we refused to limit the phrase to
"personal" rights, as opposed to "property" rights. [
Footnote 5] We first
Page 498 U. S. 446
noted that neither the words nor the legislative history of the
statute distinguished between personal and property rights.
Id. at
405 U. S. 543.
We also rejected that distinction because of the "virtual
impossibility" of applying it, particularly in "mixed" cases
involving both types of rights.
Id. at
405 U. S.
550-551. We further concluded that
"the dichotomy between personal liberties and property rights is
a false one. . . . The right to enjoy property without unlawful
deprivation, no less than the right to speak or the right to
travel, is, in truth, a 'personal' right, whether the 'property' in
question be a welfare check, a home, or a savings account."
Id. at
405 U. S. 552.
See also United States v. Price, 383 U.
S. 787,
383 U. S.
800-806 (1966).
Petitioner contends that the Commerce Clause confers "rights,
privileges, or immunities" within the meaning of § 1983. We agree.
The Commerce Clause provides that "Congress shall have Power . . .
[t]o regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes." U.S.Const., Art. I, § 8, cl.
3. Although the language of that Clause speaks only of Congress'
power over commerce, "the Court long has recognized that it also
limits the power of the States to erect barriers against interstate
trade."
Lewis v. BT Investment Managers, Inc.,
447 U. S. 27,
447 U. S. 35
(1980). [
Footnote 6]
Page 498 U. S. 447
Respondents argue, as the court below held, that the Commerce
Clause merely allocates power between the Federal and State
Governments, and does not confer "rights." Brief for Respondents
14-17. There is no doubt that the Commerce Clause is a
power-allocating provision, giving Congress preemptive authority
over the regulation of interstate commerce. It is also clear,
however, that the Commerce Clause does more than confer power on
the Federal Government; it is also a substantive "restriction on
permissible state regulation" of interstate commerce.
Hughes v.
Oklahoma, 441 U. S. 322,
441 U. S. 326
(1979). The Commerce Clause "has long been recognized as a
self-executing limitation on the power of the States to enact laws
imposing substantial burdens on such commerce."
South-Central
Timber Development, Inc. v. Wunnicke, 467 U. S.
82,
467 U. S. 87
(1984). In addition, individuals injured by state action that
violates this aspect of the Commerce Clause may sue and obtain
injunctive and declaratory relief.
See, e.g., McKesson Corp. v.
Division of Alcoholic Beverages and Tobacco, Dept. of Business
Regulation of Fla., 496 U. S. 18,
496 U. S. 31
(1990). Indeed, the trial court in the case before us awarded
petitioner such relief, and respondents do not contest that
decision. We have also recently held that taxpayers who are
required to pay taxes before challenging a state tax that is
subsequently determined to violate the Commerce Clause are entitled
to retrospective relief "that will cure any unconstitutional
discrimination against interstate commerce during the contested tax
period."
Id. at
496 U. S. 51.
This combined restriction on state power and entitlement to relief
under the Commerce Clause amounts to a "right, privilege, or
immunity" under the ordinary meaning of those terms. [
Footnote 7]
Page 498 U. S. 448
The Court has often described the Commerce Clause as conferring
a "right" to engage in interstate trade free from restrictive state
regulation. In
Crutcher v. Kentucky, 141 U. S.
47 (1891), in which the Court struck down a license
requirement imposed on certain out-of-state companies, the Court
stated:
"To carry on interstate commerce is not a franchise or a
privilege granted by the State; it is a right which every citizen
of the United States is entitled to exercise under the Constitution
and laws of the United States."
Id. at
141 U. S. 57.
Similarly,
Western Union Telegraph Co. v. Kansas ex rel.
Coleman, 216 U. S. 1,
216 U. S. 26
(1910), referred to "the substantial rights of those engaged in
interstate commerce." And
Garrity v. New Jersey,
385 U. S. 493,
385 U. S. 500
(1967), declared that engaging in interstate commerce is a "righ[t]
of constitutional stature." More recently,
Boston Stock
Exchange v. State Tax Comm'n, 429 U.
S. 318 (1977), held that regional stock exchanges had
standing to challenge a tax on securities transactions as violating
the Commerce Clause because, among other things, the exchanges
were
"asserting their right under the Commerce Clause to engage in
interstate commerce free of discriminatory taxes on their business
and they allege that the transfer tax indirectly infringes on that
right."
Id. at
429 U. S. 320,
n. 3.
Last Term, in
Golden State Transit Corp. v. Los
Angeles, 493 U. S. 103
(1989), we set forth three considerations for determining whether a
federal
statute confers a "right" within the meaning of §
1983:
"In deciding whether a federal right has been violated, we have
considered [1] whether the provision in question
Page 498 U. S. 449
creates obligations binding on the governmental unit, or rather
'does no more than express a congressional preference for certain
kinds of treatment.'
Pennhurst State School and Hospital v.
Halderman, 451 U. S. 1,
451 U. S.
19 (1981). [2] The interest the plaintiff asserts must
not be 'too vague and amorphous' to be 'beyond the competence of
the judiciary to enforce.'
Wright v. Roanoke Redevelopment and
Housing Authority, 479 U. S. 418,
479 U. S.
431-432 (1987). [3] We have also asked whether the
provision in question was 'intend[ed] to benefit' the putative
plaintiff.
Id. at
479 U. S.
430;
see also id. at
479 U. S.
433 (O'CONNOR, J., dissenting) (citing
Cort v.
Ash, 422 U. S. 66,
422 U. S.
78 (1975))."
Id. at
493 U. S. 106.
See also Wilder v. Virginia Hospital Assn., 496 U.
S. 498,
496 U. S. 509
(1990). Respondents do not dispute that the first two
considerations weigh in favor of recognition of a right here, but
seize upon the third consideration -- intent to benefit the
plaintiff -- arguing that the Commerce Clause does not confer
rights within the meaning of § 1983 because it was not designed to
benefit individuals, but rather was designed to promote national
economic and political union. Brief for Respondents 19-24.
This argument, however, was implicitly rejected in
Boston
Stock Exchange, supra, at
429 U. S. 321,
n. 3, where we found that the plaintiffs were arguably within the
"zone of interests" protected by the Commerce Clause. Moreover, the
Court's repeated references to "rights" under the Commerce Clause
constitute a recognition that the Clause was intended to benefit
those who, like petitioner, are engaged in interstate commerce. The
"[c]onstitutional protection against burdens on commerce is for
[their] benefit. . . ."
Morgan v. Virginia, 328 U.
S. 373,
328 U. S.
376-377 (1946). As Justice Jackson, writing for the
Court, eloquently explained:
"Our system, fostered by the Commerce Clause, is that every
farmer and every craftsman shall be encouraged to produce by the
certainty that he will have free
Page 498 U. S. 450
access to every market in the Nation, that no home embargoes
will withhold his exports, and no foreign state will, by customs
duties or regulations, exclude them. Likewise, every consumer may
look to the free competition from every producing area in the
Nation to protect him from exploitation by any. Such was the vision
of the Founders; such has been the doctrine of this Court which has
given it reality."
H. P. Hood & Sons, Inc. v. Du Mond, 336 U.
S. 525,
336 U. S. 539
(1949).
Respondents attempt to analogize the Commerce Clause to the
Supremacy Clause, Brief for Respondents 17-18, which we have held
does not, by itself, confer any "rights, privileges, or immunities"
within the meaning of § 1983.
See Golden State, supra, at
493 U. S. 106;
Chapman, 441 U.S. at
441 U. S. 613.
The Supremacy Clause, however, is "not a source of any federal
rights"; rather, it "
secure[s]' federal rights by according
them priority whenever they come in conflict with state law."
Ibid. By contrast, the Commerce Clause, of its own force,
imposes limitations on state regulation of commerce, and is the
source of a right of action in those injured by regulations that
exceed such limitations. [Footnote
8]
Respondents also argue that the protection from interference
with trade conferred by the Commerce Clause cannot be a "right,"
because it is subject to qualification or elimination by Congress.
Brief for Respondents 21. That argument proves too much, however,
because federal statutory rights may also be altered or eliminated
by Congress. Until Congress does so, such rights operate as "a
guarantee of freedom for private conduct that the State may not
abridge."
Page 498 U. S. 451
Golden State, supra, at
493 U. S. 112.
The same is true of the Commerce Clause. [
Footnote 9]
III
We conclude that the Supreme Court of Nebraska erred in holding
that petitioner's Commerce Clause claim could not be brought under
42 U.S.C. § 1983. The judgment of the Supreme Court of Nebraska is
therefore reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.
[
Footnote 1]
The taxes and fees at issue were imposed pursuant to
Neb.Rev.Stat. § 60-305.02 (1984), which has since been amended. The
taxes and fees were considered "retaliatory" because they were
imposed on vehicles registered in certain other States (Arizona,
Arkansas, Idaho, Nevada, New York, Ohio, Oregon, Pennsylvania, and
Wyoming) in an amount equal to the "third structure taxes" imposed
by those States on Nebraska-registered vehicles. "Third structure
taxes" are taxes and fees imposed in addition to registration fees
and fuel taxes (so-called "first structure" and "second structure"
taxes).
[
Footnote 2]
Compare Kraft v. Jacka, 872 F.2d 862, 869 (CA9 1989);
J & J Anderson, Inc. v. Erie, 767 F.2d 1469, 1476-1477
(CA10 1985);
and Consolidated Freightways Corp. of Delaware v.
Kassel, 730 F.2d 1139 (CA8),
cert. denied, 469 U.S.
834 (1984),
with Continental Illinois Corp. v. Lewis, 838
F.2d 457, 458 (CA11 1988),
vacated on other grounds,
494 U. S. 472
(1990);
Martin-Marietta Corp. v. Bendix Corp., 690 F.2d
558, 562 (CA6 1982);
and Kennecott Corp. v. Smith, 637
F.2d 181, 186, n. 5 (CA3 1980).
See also Private Truck Council
of America, Inc. v. Quinn, 476 U. S. 1129
(1986) (WHITE, J., joined by Brennan and O'CONNOR, JJ., dissenting
from denial of certiorari) (noting conflict of authority).
[
Footnote 3]
Section 1983 provides:
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress."
42 U.S.C. § 1983.
[
Footnote 4]
The dissent contends that the legislative history of § 1983
supports the proposition that § 1983 does not apply to
constitutional provisions that allocate power.
See post at
498 U. S.
454-457. That argument is untenable. The dissent chiefly
relies upon a partial quotation of a statement made by
Representative Shellabarger, one of the principal sponsors of the
statute. In context, the statement reads:
"
My next proposition is historical, and one simply in aid
and support of the truth of the first [
i.e., that
'Congress is bound to execute, by legislation, every provision of
the Constitution, even those provisions not specially named as to
be so enforced'].
It is that the United States always has
assumed to enforce, as against the States, and also persons, every
one of the provisions of the Constitution. Most of the
provisions of the Constitution which restrain and directly relate
to the States, such as those in tenth section of first article,
that 'no State shall make a treaty,' 'grant letters of marque,'
'coin money,' 'emit bills of credit,' &c., relate to the
divisions of the political powers of the State and General
Governments. They do not relate directly to the rights of persons
within the States and as between the States and such persons
therein. These prohibitions upon the political powers of the States
are all of such nature that they can be, and even have been, when
the occasion arose, enforced by the courts of the United States
declaring void all State acts of encroachment on Federal powers.
Thus, and thus sufficiently, has the United States 'enforced' these
provisions of the Constitution. But there are some that are not of
this class. These are where the court secures the rights or the
liabilities of persons within the States, as between such persons
and the States."
"These three are: first, that as to fugitives from justice;
second, that as to fugitives from service, (or slaves;) third, that
declaring that the 'citizens of each State shall be entitled to all
the privileges and immunities of citizens in the several
States.'"
"
And, sir, every one of these -- the only provisions where
it was deemed that legislation was required to enforce the
constitutional provisions -- the only three where the rights or
liabilities of persons in the States, as between these persons and
the States, are directly provided for, Congress has by legislation
affirmatively interfered to protect or to subject such
persons."
Cong.Globe at App. 69-70 (emphasis added to reflect omissions in
dissent).
It should first be noted that Shellabarger was not, in the above
quotation, addressing the part of the 1871 statute that became §
1983,
i.e., § 1. Rather, he was discussing
§ 2 of
the bill, which made it a federal crime to engage in a
conspiracy
"to do any act in violation of the rights, privileges, or
immunities of another person . . . committed within a place under
the sole and exclusive jurisdiction of the United States."
Id. at 68. A principal objection to that section was
that Congress lacked the authority to enact it, because it
infringed upon the powers reserved to the States by overriding
their authority to define and punish crimes.
See id. at
69. In answering that argument, Shellabarger contended that
Congress had the power to enforce by legislation "every one of the
provisions of the Constitution." He observed that most of the
provisions of the Constitution "which restrain and directly relate
to the States" had been enforced by the courts without federal
legislation, but noted that three provisions limiting state
authority -- the Extradition Clause, the Privileges and Immunities
Clause, and the Fugitive Slave Clause -- had been enforced pursuant
to federal legislation.
It becomes clear that, fully quoted and properly read,
Shellabarger's remarks do not in any way aid the dissent. The
dissent's attempt to characterize Shellabarger's argument for
expansive federal power to enact criminal legislation as
support for a narrow construction of § 1983 is strained, to say the
least. Shellabarger simply did not address the issues of which
constitutional provisions establish "rights, privileges, or
immunities," whether the Commerce Clause falls into that category,
or whether provisions that allocate power cannot also confer
rights. Nor would it be likely that he would have made any of the
statements on these points argued by the dissent, given this
Court's then-recent holding that the affirmative grant of power to
Congress in the Credit Clause established a "right, privilege, or
immunity."
See The Banks v. The
Mayor, 7 Wall. 16,
74 U. S. 22
(1869). The other snippets of legislative history relied upon by
the dissent,
see post at
498 U. S.
456-457, are similarly inapposite and inconclusive.
In any event, even if the dissent's cut-and-paste history could
be read to provide some support for its formalistic distinction
between power-allocating and rights-conferring provisions of the
Constitution, it plainly does not constitute a "a clearly expressed
legislative intent contrary to the plain language of [§ 1983]."
American Tobacco Co. v. Patterson, 456 U. S.
63,
456 U. S. 75
(1982). Rather, if Congress had intended to limit the "broad and
unqualified" language of § 1983, "it is not unreasonable to assume
that it would have made this explicit."
St. Paul Fire &
Marine Ins. Co. v. Barry, 438 U. S. 531,
438 U. S. 550
(1978).
[
Footnote 5]
The statute at issue in
Lynch was the jurisdictional
counterpart to § 1983, 28 U.S.C. § 1343(3), which contains the same
"rights, privileges, or immunities" phrase. Even the dissent in
Lynch agreed "without reservation" that the phrase was not
limited to violations of "personal" rights, but disagreed with the
majority on a different issue.
See 405 U.S. at
405 U. S.
556.
[
Footnote 6]
See, e.g., CTS Corp. v. Dynamics Corp. of America,
481 U. S. 69,
481 U. S. 87
(1987);
Hughes v. Oklahoma, 441 U.
S. 322,
441 U. S. 326
(1979);
Great Atlantic & Pacific Tea Co. v. Cottrell,
424 U. S. 366,
424 U. S.
370-371 (1976);
Cooley v. Board of Wardens of
Port of Philadelphia, 12 How. 299,
53 U. S. 318
(1852). These cases are distinguishable from cases involving
assertions that state regulations of commerce directly conflict
with federal regulations enacted under the authority of the
Commerce Clause. An example of the latter is
Gibbons v.
Ogden, 9 Wheat. 1 (1824), in which the Court struck
down a New York statute to the extent that it excluded federally
licensed boats from operating in New York waters.
[
Footnote 7]
See, e.g., Black's Law Dictionary 1324 (6th ed.1990)
(defining "right" as "[a] legally enforceable claim of one person
against another, that the other shall do a given act, or shall not
do a given act") (citing Restatement of Property § 1 (1936)). That
the right at issue here is an implied right under the Commerce
Clause does not diminish its status as a "right, privilege, or
immunity" under § 1983. Indeed, we have already rejected a
distinction between express and implied rights under § 1983 in the
statutory context.
"The violation of a federal right that has been found to be
implicit in a statute's language and structure is as much a 'direct
violation' of a right as is the violation of a right that is
clearly set forth in the text of the statute."
Golden State Transit Corp. v. Los Angeles, 493 U.
S. 103,
493 U. S. 112
(1989).
[
Footnote 8]
An additional reason why claims under the Supremacy Clause,
unlike those under the Commerce Clause, should be excluded from the
coverage of § 1983 is that, if they were included, the "and laws"
provision in § 1983 would be superfluous.
See Golden
State, 493 U.S. at
493 U. S. 107,
n. 4.
[
Footnote 9]
In arguing that the Commerce Clause does not secure any rights,
privileges, or immunities within the meaning of § 1983, the dissent
relies upon
Carter v. Greenhow, 114 U.
S. 317 (1885).
See post at
498 U. S.
457-458. This Court, however, has already given that
decision a narrow reading, stating that the case
"held as a matter of pleading that the particular cause of
action set up in the plaintiff's pleading was in contract, and was
not to redress deprivation of the 'right secured to him by that
clause of the Constitution' [the contract clause] to which he had
'chosen not to resort.'"
Chapman v. Houston Welfare Rights Organization,
441 U. S. 600,
441 U. S. 613,
n. 29 (1979);
see also Hague v. Committee for Industrial
Organization, 307 U. S. 496,
307 U. S. 527
(1939) (opinion of Stone, J.).
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE joins,
dissenting.
In
Golden State Transit Corp. v. Los Angeles,
493 U. S. 103,
493 U. S. 114
(1990), I dissented from the Court's determination that 42 U.S.C. §
1983 creates a cause of action for damages when the only wrong
committed by the State or local entity is its misapprehension of
the boundary between state and federal power. Today's decision
compounds the error of
Golden State. The majority drifts
far from the purposes and history of § 1983, and again holds § 1983
applicable to a State's quite innocent but mistaken judgment
respecting the shifting boundary between two sovereign powers. The
majority removes one of the statute's few remaining limits, and
increases the burden that a state or local government will face in
defending
Page 498 U. S. 452
its economic regulation and taxation. With respect, I
dissent.
I
The majority must acknowledge, under even
Golden State,
that not all violations of federal law give rise to a § 1983
action. The plaintiff must assert "rights, privileges, or
immunities secured by the Constitution and laws." 42 U.S.C. § 1983.
The majority appears to base its decision upon three grounds.
First, the "ordinary meaning" of the term "right" as confirmed by
Black's Law Dictionary indicates that the Commerce Clause provides
petitioner a right.
Ante at
498 U. S. 447,
and n. 7. Second, our cases contain scattered references to a
"right" to engage in interstate commerce.
Ante at
498 U. S. 448.
And third, the Commerce Clause purportedly meets
Golden
State's test to determine whether a statutory violation gives
rise to a § 1983 cause of action, because the Commerce Clause was
intended to benefit those who engage in interstate commerce.
Ante at
498 U. S.
448-450. The majority errs, I must submit, when it
ignores what the sponsors of § 1983 told us about the scope of the
phrase "rights, privileges or immunities secured by the
Constitution," and errs further when it applies the
Golden
State test in this context. Even were I to apply the
majority's various tests, moreover, I would reach the opposite
conclusion.
A
The
Golden State test, arguably necessary in assessing
whether any of the hundreds of statutory provisions that confer
express obligations upon the States secure rights within the
meaning of § 1983, is not appropriate in this case, where the
question is whether a right is secured by a provision of the
Constitution. Constitutional provisions are not so numerous, nor
enacted with such frequency, that we are compelled to apply an
ahistorical test. There is a ready alternative. We can distinguish
between those constitutional provisions which secure the rights of
persons
vis-a-vis the States, and those provisions which
allocate power between
Page 498 U. S. 453
the Federal and State Governments. The former secure rights
within the meaning of § 1983, but the latter do not.
The Commerce Clause, found at Art. I, § 8, cl. 3, of the
Constitution, is a grant of power to Congress. It states simply
that "[t]he Congress shall have Power . . . To regulate commerce .
. . among the several States." By its own terms as well as its
design, as interpreted by this Court, the Commerce Clause is a
structural provision allocating authority between federal and state
sovereignties. It does not purport to secure rights. The history
leading to the drafting and ratification of the Constitution
confirms these premises.
The lack of a national power over commerce during the Articles
of Confederation led to ongoing disputes among the States, and the
prospect of a descent toward even more intense commercial animosity
was one of the principal arguments in favor of the Constitution.
See, e.g., The Federalist No. 7, pp. 62-63 (C. Rossiter
ed.1961) (A. Hamilton);
id. No. 11, pp. 89-90 (A.
Hamilton);
id. No. 22, pp. 143-145 (A. Hamilton);
id. No. 42, pp. 267-269 (J. Madison);
id. No. 53,
p. 333 (J. Madison).
"The sole purpose for which Virginia initiated the movement
which ultimately produced the Constitution was 'to take into
consideration the trade of the United States; to examine the
relative situations and trade of the said States; to consider how
far a uniform system in their commercial regulations may be
necessary to their common interest and their permanent
harmony.'"
H. P. Hood & Sons, Inc. v. Du Mond, 336 U.
S. 525,
336 U. S. 533
(1949) (citation omitted). The Framers intended the Commerce Clause
as a way to preserve economic union and to suppress interstate
rivalry. The Clause assigned prerogatives to the general
government, not personal rights to those who engaged in commerce.
See, e.g., id. at 336 U. S.
533-535; Baldwin v. G. A. F.
Seelig, Inc.,
294 U. S. 511,
294 U. S. 523
(1935); Collins, Economic Union as a Constitutional Value, 63 N.Y.
U.L.Rev. 43, 51-56 (1988).
Page 498 U. S. 454
"The necessity of centralized regulation of commerce among the
states was so obvious and so fully recognized that the few words of
the Commerce Clause were little illuminated by debate."
H. P. Hood & Sons, Inc., supra, at
336 U. S. 534.
An exhaustive examination of the debates reports only nine
references to interstate commerce in the records of the Convention,
all directed at the dangers of interstate rivalry and retaliation.
See Abel, The Commerce Clause in the Constitutional
Convention and in Contemporary Comment, 25 Minn.L.Rev. 432,
470-471, and nn. 169-175 (1941). It is not for serious dispute that
the Framers of the Commerce Clause had economic union as their
goal, nor that their deliberations are devoid of any evidence of
intent to secure personal rights under this Clause.
Section 1983 has its origins in § 2 of the Civil Rights Act of
1866, 14 Stat. 27, and § 1 of the Civil Rights Act of 1871, 17
Stat. 13.
See Lynch v. Household Finance Corp.,
405 U. S. 538,
405 U. S. 543,
n. 7 (1972). Until recent cases, we have placed great reliance upon
the sponsors of the 1871 Act in interpreting the scope of § 1983.
See, e.g., Monell v. New York City Dept. of Social
Services, 436 U. S. 658,
436 U. S. 690
(1978) ("[A]nalysis of the legislative history of the Civil Rights
Act of 1871 compels the conclusion that Congress
did
intend municipalities . . . to be included among those persons to
whom § 1983 applies" (emphasis in original));
Lynch,
supra, at
405 U. S.
545-546 (sponsors intended § 1983 to protect property
rights as well as personal rights);
Monroe v. Pape,
365 U. S. 167,
365 U. S.
172-185 (1961) (legislative history of § 1983 supports
the conclusion that § 1983 plaintiff need not exhaust state
remedies).
Those same sponsors of § 1983 understood and announced a
distinction between power-allocating and rights-securing provisions
of the Constitution. In discussing the meaning of the phrase
"rights, privileges or immunities" in the original House version of
§ 2 of the 1871 Act, Representative Shellabarger, Chairman of the
House Select Committee which drafted the Act, and floor manager for
the bill, explained:
Page 498 U. S. 455
"Most of the provisions of the Constitution which restrain and
directly relate to the States, such as those in tenth section of
first article, that 'no State shall make a treaty,' 'grant letters
of marque,' 'coin money,' 'emit bills of credit,' &c., relate
to the divisions of the political powers of the State and General
Governments. They do not relate directly to the rights of persons
within the States and as between the States and such persons
therein. These prohibitions upon the political powers of the States
are all of such nature that they can be, and even have been, when
the occasion arose, enforced by the courts of the United States
declaring void all State acts of encroachment on Federal powers.
Thus, and thus sufficiently, has the United States 'enforced' these
provisions of the Constitution. But there are some that are not of
this class. These are where the court secures the rights or the
liabilities of persons within the States, as between such persons
and the States."
"These three are: first, that as to fugitives from Justice;
second, that as to fugitives from service, (or slaves;) third, that
declaring that the 'citizens of each State shall be entitled to all
the privileges and immunities of citizens in the several
States.'"
Cong.Globe, 42d Cong., 1st Sess., App. 69-70 (1871) (hereinafter
Cong.Globe) (referring to Art. IV, § 2, of the Constitution as
securing rights of persons). This passage confirms Representative
Shellabarger's view that all but three provisions of the
Constitution as first enacted allocate power, rather than secure
the rights of persons "as between such persons and the States," and
that the power-allocating provisions had not been "enforced" by
legislation, but instead could be asserted as grounds for
invalidating state action.
Ibid. [
Footnote 2/1] To those original provisions which
Page 498 U. S. 456
secure rights of persons with respect to States, and within the
meaning of § 1983, the sponsors of § 1983 added the constitutional
guarantees contained in the Civil War Amendments, including the
provisions of the Bill of Rights incorporated into the Fourteenth
Amendment. Every specific mention of rights secured by the 1871 Act
refers to these constitutional provisions.
See, e.g.,
Cong.Globe 475-476 (Rep. Dawes; privileges and immunities, Bill of
Rights);
id. at App. 84-85 (Rep. Bingham; equal
protection, first eight Amendments);
id. at App. 153 (Rep.
Garfield; right to vote, privileges and immunities, equal
protection).
Statements of other supporters of the 1871 Act provide further
evidence that Congress did not consider the Commerce Clause to
secure the rights of persons within the meaning of § 1983.
Representative Hoar distinguished between two objectives of the
Constitution: to "provide . . . for the protection and regulation
of commercial intercourse, domestic and foreign"; and to
"promote the general welfare by prohibiting the States from
doing what is inconsistent with civil liberty, and compelling them
to do what is essential to its maintenance."
Cong.Globe 333. The 1871 Act was designed to enforce only those
provisions of the Constitution providing for "the protection of
personal liberty and civil rights," not "the protection of
commerce."
Ibid. Representative
Page 498 U. S. 457
Trumbull made the same distinction between these categories of
constitutional provisions.
Id. at 575. The sponsors of §
1983 thus gave us a straightforward answer to the question of which
constitutional violations give rise to a § 1983 action, and told us
that violations of power-allocating provisions such as the Commerce
Clause do not.
Not only did the 42d Congress understand the difference between
rights-securing and power-allocating provisions of the
Constitution, but this Court's decisions of more than 100 years
support the distinction. All previous cases in which this Court has
determined (or assumed) that a constitutional violation gives rise
to a § 1983 cause of action alleged violations of rights-securing
provisions of the Constitution, not power-allocating provisions.
See, e.g., Monroe v. Pape, 365 U.S. at
365 U. S. 171
("Allegation of facts constituting a deprivation under color of
state authority of a right guaranteed by the Fourteenth Amendment
satisfies to that extent the requirement of R.S. § 1979 [§ 1983]");
Lane v. Wilson, 307 U. S. 268
(1939) (Fifteenth Amendment violation supports § 1983 cause of
action).
In our only previous case discussing a § 1983 claim brought for
the violation of a supposed right secured by Article I of the
Constitution, we held that violation of the Contracts Clause does
not give rise to a § 1983 cause of action.
Carter v.
Greenhow, 114 U. S. 317
(1885). As is true of the Commerce Clause, the Court held that the
Contracts Clause can be said to secure individual rights "only
indirectly and incidentally."
Id. at
114 U. S. 322.
The Court further explained that the only right secured by the
Contracts Clause is the "right to have a judicial determination,
declaring the nullity of the attempt to impair [a State's]
obligation."
Ibid.
The Contracts Clause of Art. I, § 10, provides that "[n]o State
shall . . . pass any . . . Law impairing the Obligation of
Contracts." At least such language would provide some support for
an argument that the Contracts Clause prohibits States from "doing
what is inconsistent with civil liberty."
Page 498 U. S. 458
(Cong.Globe 333 Rep. Hoar). If the Contracts Clause, an express
limitation upon States' ability to impair the contractual rights of
citizens, does not secure rights within the meaning of § 1983, it
assuredly demands a great leap for the majority to conclude that
the Commerce Clause secures the rights of persons. The Commerce
Clause is, if anything, a less obvious source of rights for
purposes of § 1983, as its text only implies a limitation upon
state power.
At best, all that can be said is that the Commerce Clause grants
Congress the power to regulate interstate commerce; from this grant
of power, the Court has implied a limitation upon the power of a
State to regulate interstate commerce; and in turn, courts provide
a person injured by taxation that exceeds the limits of the
Commerce Clause the "right to have a judicial determination,
declaring the nullity of the attempt to" levy a discriminatory tax.
Carter, supra, at
114 U. S. 322. I find it ironic that
Carter
draws a distinction of nearly the same character as
Golden
State, between provisions which directly secure rights and
those which do so "only as an incident" of their purpose.
Golden State, 493 U.S. at
493 U. S. 109.
Yet the majority finds that the Commerce Clause was "intended to
benefit the putative plaintiff,"
Golden State, supra, at
493 U. S. 108,
while
Carter held that the Contracts Clause only provides
incidental benefits.
In
Lynch v. Household Finance Corp., 405 U.
S. 538 (1972), we rejected an attempt to limit § 1983 to
personal rights, as opposed to property rights, in that case a
deprivation of property in violation of the Due Process Clause of
the Fourteenth Amendment. The legislative history of § 1983 did not
support such a distinction, and we recognized both its false nature
and the impossibility of its application. Today, on the other hand,
the Court rejects a distinction which finds strong support in the
legislative history of § 1983 and would bring no difficulties of
application. I see no good reason for this rejection, and suggest
that the Court's decision only can do mischief.
Page 498 U. S. 459
B
The majority rejects the weight of historical evidence in favor
of scattered statements in our cases that refer to a "right" to
engage in interstate commerce.
Ante at
498 U. S. 448.
None of these cases, however, hold that the Commerce Clause secures
a personal right. Instead, they interpret the Commerce Clause as
allocating power among sovereigns.
See Crutcher v.
Kentucky, 141 U. S. 47,
141 U. S. 57
(1891) (regulation of interstate commerce "not within the province
of state legislation, but within that of national legislation");
Western Union Telegraph Co. v. Kansas, 216 U. S.
1,
216 U. S. 21
(1910) (same). If the majority chooses to rely upon such
statements, far removed from the issue at hand, I would remind it
that this Court, in a much closer context, has established that a
case in which the plaintiff relies upon the dormant Commerce
Clause
"may be one arising under the Constitution, within the meaning
of that term, as used in other statutes, but it is not one brought
on account of the deprivation of a right, privilege or immunity
secured by the Constitution."
Bowman v. Chicago & Northwestern R. Co.,
115 U. S. 611,
115 U. S.
615-616 (1885). [
Footnote
2/2] The statements upon which the majority relies are weak
support for its conclusion.
In similar fashion,
McKesson Corp. v. Division of Alcoholic
Beverages and Tobacco, Dept. of Business Regulation of Fla.,
496 U. S. 18
(1990), in which the majority finds recent
Page 498 U. S. 460
support for its view of the Commerce Clause, merely applies our
traditional due process analysis for deprivation of property to the
context of exaction of an unlawful tax.
McKesson Corp.
holds that, if a State insists that taxpayers pay first and obtain
review of a tax's validity in a later refund action, then due
process requires meaningful postpayment relief for taxes paid
pursuant to an unconstitutional scheme.
Id. at
496 U. S. 31. In
discussing the nature of the constitutional violation,
McKesson
Corp. acknowledges that States are accorded great flexibility
in structuring the remedy for a discriminatory tax that violates
the Commerce Clause. Rather than refunding the tax,
"to the extent consistent with other constitutional
restrictions, the State may assess and collect back taxes from
petitioner's competitors who benefited from the [discriminatory]
rate reductions during the contested tax period."
Id. at
496 U. S. 40. If
the State refused to provide any remedy, then the taxpayer would
arguably have a § 1983 claim, but that claim would be for a
deprivation of property without due process of law, a violation of
the Fourteenth Amendment, not of the Commerce Clause.
McKesson
Corp. in no way supports the existence of a § 1983 cause of
action for Commerce Clause violations.
Finally, following
Golden State, the majority asks
whether the provision in question was intended to benefit the
putative plaintiff.
Ante at
498 U. S. 449.
The majority fails to locate in the text or history of the Commerce
Clause any such intent, but nevertheless concludes that any
argument to the contrary was
"implicitly rejected in
Boston Stock Exchange[ v. State Tax
Comm'n, 429 U.S.] at
429 U. S. 321, n. 3, where
we found that the plaintiffs were arguably within the 'zone of
interests' protected by the Commerce Clause."
Ante at
498 U. S. 449.
I fail to see how a determination that a particular plaintiff is
within the "zone of interests" protected by a provision requires a
finding that the provision was intended to benefit that plaintiff,
or secures a right for purposes of § 1983. To the contrary, our
zone of interest cases have rejected any requirement that
Page 498 U. S. 461
there be a "congressional purpose to benefit the would-be
plaintiff."
Clarke v. Securities Industry Assn.,
479 U. S. 388,
479 U. S.
399-400 (1987). The plaintiff need only demonstrate a
"plausible relationship" between his interest and the policies to
be advanced by the relevant provision.
Id. at
479 U. S. 403.
[
Footnote 2/3]
The majority's treatment of the question confuses the concept of
standing with that of a cause of action. We have considered these
as distinct categories, and should continue to do so.
See Davis
v. Passman, 442 U. S. 228,
442 U. S.
239-240, n. 18 (1979). A taxpayer such as petitioner may
be arguably within the zone of interests protected by the Commerce
Clause. This is not, however, sufficient to demonstrate that the
Commerce Clause secures a right of petitioner within the meaning of
§ 1983. Thus, in
INS v. Chadha, 462 U.
S. 919,
462 U. S.
935-936 (1983), we held that an individual had standing
to raise a separation of powers challenge alleging a violation of
the Presentment Clauses, Art. I, § 7, cls. 2 and 3. In a very
Page 498 U. S. 462
fundamental sense, separation of powers is designed to secure
individual liberty. Yet we would not say that the Presentment
Clauses secure personal rights. Rather, Chadha was able to assert
the interests of the other branches of Government because he met
our traditional test of standing.
I cannot doubt the truth of the statement,
ante at
498 U. S.
449-450 (quoting
H. P. Hood & Sons, Inc. v. Du
Mond, 336 U.S. at
336 U. S.
539), that the Commerce Clause benefits individuals and
entities engaged in interstate commerce. Nor do I question the
importance of our dormant Commerce Clause jurisprudence in
guaranteeing a single, national market. Benefits to those engaged
in commerce, however, are incidental to the purpose of the Commerce
Clause; they are but evidence of its sound application. That the
Commerce Clause benefits individual traders or consumers does not
satisfy the majority's test that a provision must have been
intended for the benefit of a particular plaintiff; nor do such
benefits prove that the provision secures a plaintiff's
constitutional right to engage in any one activity, to receive any
direct benefit, or to avoid any specific detriment. Rather, the
Commerce Clause "benefits particular parties only as an incident
of" its allocation of power between Federal and State
sovereignties.
Golden State, 493 U.S. at
493 U. S.
109.
I continue to draw the distinction made in my
Golden
State dissent,
id. at
493 U. S. 113,
and would hold that, while the dormant Commerce Clause does not
secure a right, it gives rise to a legal interest in petitioner
against taxation which violates the dormant Commerce Clause. Thus,
petitioner can rely upon the unconstitutionality of the tax in
defending a collection action brought by the State, or in pursuing
state remedies. This ability to invoke the Commerce Clause against
a State, however, is not equivalent to finding a secured right
under § 1983. If that were so, all violations of federal law would
give rise to a § 1983 cause of action, and there would be little
reason to search for statements supporting the existence of a right
to engage in interstate commerce or to apply the
Page 498 U. S. 463
Golden State test. The majority does not purport to
rest its decision upon such an all-inclusive view of § 1983, but
that is the necessary consequence of its reasoning.
The Court's analysis demonstrates the poverty of the "intended
to benefit" test in the constitutional context, for it shows that
even structural provisions that benefit individuals incidentally
come within its purview. The Court's logic extends far beyond the
Commerce Clause, and creates a whole new class of § 1983 suits
derived from Article I. For example, the Court's rationale creates
a § 1983 cause of action when a State violates the constitutional
doctrine of intergovernmental tax immunity,
Davis v. Michigan
Dept. of Treasury, 489 U. S. 803,
489 U. S. 813
(1989) (violation of statute "coextensive with the prohibition
against discriminatory taxes embodied in the modern constitutional
doctrine of intergovernmental tax immunity"), interferes with the
federal power over foreign relations,
see Zschernig v.
Miller, 389 U. S. 429
(1968), applies a duty upon imports in violation of Art. I, § 10,
cl. 2,
see Hooven & Allison Co. v. Evatt, 324 U.
S. 652 (1945), invades the federal power over regulation
of the entrance and residence of aliens in violation of Art. I., §
8, cl. 4,
see Hines v. Davidowitz, 312 U. S.
52,
312 U. S. 66-67
(1941), or attempts to tax income upon a federal obligation in
derogation of Congress' Art. I, § 8, cl. 2, power to "borrow Money
on the credit of the United States,"
see Missouri ex rel.
Missouri Ins. Co. v. Gehner, 281 U. S. 313
(1930). There is no textual or other support for holding that §
1983 imposes such far-reaching liabilities upon the States.
II
Petitioner here does not complain that the State of Nebraska has
failed to provide him an adequate forum in which to contest the
validity of Nebraska's tax. Nebraska has done so. The Nebraska
courts acknowledged the invalidity of the State's tax, enjoined its
collection, and directed petitioner to file a refund claim for the
taxes he had paid to the
Page 498 U. S. 464
State. Rather, the significance of the Court's decision, in this
and future Commerce Clause litigation, is that a § 1983 claim may
permit dormant Commerce Clause plaintiffs to recover attorney's
fees and expenses under 42 U.S.C. § 1988.
In the Civil Rights Attorney's Fees Awards Act of 1976, Pub.L.
94-559, 90 Stat. 2641, codified at 42 U.S.C. § 1988, Congress
authorized the award of attorney's fees to prevailing parties in,
inter alia, § 1983 litigation. The award of attorney's
fees encourages vindication of federal rights which, Congress
recognized, might otherwise go unenforced because of the
plaintiffs' lack of resources and the small size of any expected
monetary recovery.
See S.Rep. No. 94-1011, p. 6 (1976).
Congress was reassured that § 1988 would be "limited to cases
arising under our civil rights laws, a category of cases in which
attorneys fees have been traditionally regarded as appropriate."
Id. at 4.
The significant economic interests at stake in dormant Commerce
Clause cases, as well as the resources available to the typical
dormant Commerce Clause plaintiff, make such concerns far removed
from the realities of dormant Commerce Clause litigation. The pages
of the United States Reports testify to the ability of major
corporations and industry associations to commence and maintain
dormant Commerce Clause litigation without receiving attorney's fee
awards under § 1988. By making such fee awards available, the Court
does not vindicate the purposes of § 1983 or § 1988, but merely
shifts the balance of power away from the States and toward
interstate businesses.
Today's decision raises far more questions about the proper
conduct of challenges to the validity of state taxation than it
answers. The Tax Injunction Act, 28 U.S.C. § 1341, prevents any
attempt in federal court to "enjoin, suspend or restrain"
assessment or collection of a state tax, so long as "a plain,
speedy and efficient remedy may be had in the courts of such
State." The principle of comity likewise prevents a federal court
from entertaining any action for damages under
Page 498 U. S. 465
§ 1983 to redress allegedly unconstitutional state taxation.
Fair Assessment in Real Estate Assn., Inc. v. McNary,
454 U. S. 100
(1981). Relying upon the "overriding interests of the state in an
efficient, expeditious and nondisruptive resolution of . . . tax
disputes,"
Backus v. Chilivis, 236 Ga. 500, 505,
224 S.E.2d
370, 374 (1976), state courts have refused to permit plaintiffs
to proceed under § 1983 where there exists a complete remedy under
state law.
Ibid.; Spencer v. South Carolina Tax Comm'n,
281 S.C. 492, 497,
316 S.E.2d
386, 388-389 (1984),
aff'd by an equally divided
Court, 471 U. S. 82 (1985)
(per curiam). These questions now become of paramount importance,
as we risk destruction of state fiscal integrity in a manner which
may require congressional correction.
Today's opinion gives no hint of § 1983's character as an
extraordinary remedy passed during Reconstruction to protect basic
civil rights against oppressive state action. Section 1983 now
becomes simply one more weapon in the litigant's arsenal, to be
considered whenever the defendant is a state actor and its use is
advantageous to the plaintiff. I dissent from the opinion and
judgment of the Court.
[
Footnote 2/1]
Shellabarger was discussing the power of Congress to enact § 2
of the 1871 Act, and not the scope of § 1, which we know as 42
U.S.C. § 1983. Reliance upon Shellabarger's statement is
nevertheless appropriate. The proposed § 2 used the phrase "rights,
privileges or immunities of another person," Cong.Globe App. 69,
and Shellabarger was discussing his understanding of the rights,
privileges, and immunities secured by the Constitution and laws,
not of any language which would differ in meaning as between § 1
and § 2 of the 1871 Act. It matters not whether one repeats
Shellabarger's speech of many pages, or only the relevant portion
thereof, for I do not rely upon Shellabarger's views of
congressional power to legislate, but rather the distinction he
articulated between power-allocating provisions and
rights-conferring provisions, between those provisions which
"
do not relate directly to the rights of persons within
the States and as between the States and such persons therein," and
those which do "secure" "rights" of persons.
Ibid.
(emphasis added). Shellabarger's distinction is borne out by the
remainder of the legislative history.
[
Footnote 2/2]
The defendant in
Bowman had refused to ship the
plaintiff's product, relying upon an Iowa statute that prohibited
shipment of intoxicating liquors. The plaintiff apparently argued
that Iowa's statute violated the Commerce Clause, and therefore
could not excuse the defendant's failure to perform. The Court's
opinion was construing the jurisdictional analogue to § 1983, which
permitted appeal without regard to the amount in controversy
"in any case brought on account of the deprivation of any right,
privilege, or immunity secured by the Constitution of the United
States, or of any right or privilege of a citizen of the United
States."
Rev.Stat. § 699 (1874).
See Collins, "Economic Rights,"
Implied Constitutional Actions, and the Scope of Section 1983, 77
Geo. L.J. 1493, 1519-1520, 1549-1551 (1989).
[
Footnote 2/3]
In a search for evidence that the Commerce Clause was intended
to benefit persons who engage in interstate commerce, the majority
quotes
Morgan v. Virginia, 328 U.
S. 373,
328 U. S.
376-377 (1946), as stating that "
[c]onstitutional
protection against burdens on commerce is for [their] benefit. . .
. '" Ante at 498 U. S. 449.
The majority's snippet is part of a sentence which, if read in its
entirety, does not state, as the quotation would make it
seem, that the Commerce Clause was intended to benefit those who
engage in interstate commerce. Rather, the entire passage is as
follows:
"We think, as the Court of Appeals apparently did, that the
appellant is a proper person to challenge the validity of this
statute as a burden on commerce. If it is an invalid burden, the
conviction under it would fail. The statute affects appellant as
well as the transportation company.
Constitutional protection
against burdens on commerce is for her benefit on a criminal trial
for violation of the challenged statute. Hatch v. Reardon,
204 U. S.
152,
204 U. S. 160 [(1970)];
Federation of Labor v. McAdory, 325 U. S.
450,
325 U. S. 463 [(1945)]."
Morgan, supra, at
328 U. S.
376-377 (emphasis added; footnote omitted).
Morgan merely held that a criminal defendant had standing
to assert the Commerce Clause as a defense to a prosecution under a
Virginia law that required segregation by race of passengers on
interstate buses, rejecting the State of Virginia's argument that
only the transportation company had standing to challenge the
segregation law. 328 U.S. at
328 U. S.
376-377.