Subject:  DENNIS v. HIGGINS, Syllabus



    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
    is being done in connection with this case, at the time the opinion is
    issued.  The syllabus constitutes no part of the opinion of the Court
    but has been prepared by the Reporter of Decisions for the convenience
    of the reader.  See United States v. Detroit Lumber Co., 200 U.9S. 321,
    337.
SUPREME COURT OF THE UNITED STATES


Syllabus


ADENNIS v. HIGGINS, DIRECTOR, NEBRASKA DEPARTMENT OF MOTOR VEHICLES, et al.


Bcertiorari to the supreme court of nebraska

CNo.989-1555.  Argued October 31, 1990--Decided February 20, 1991

DPetitioner 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.9S.9C.
91983.  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 91983
claim.  The State Supreme Court affirmed the dismissal, holding that there
is no cause of action under 91983 for Commerce Clause violations because
the Clause allocates power between the State and Federal Governments and
does not establish individual rights against the government.

EHeld: Suits for violations of the Commerce Clause may be brought under
91983.  Pp.93-11.

    F(a) A broad construction of 91983 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 91983'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.9g., Lynch v. Household Finance Corp., 405 U.9S. 538.  Pp.93-6.

    (b) The Commerce Clause confers "rights, privileges, or immunities"
    within the meaning of 91983.  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 91983--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, Boston Stock Exchange v. State Tax Comm'n,
    429 U.9S. 318, 321, n.93, 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.9g.,
    Crutcher v. Kentucky, 141 U.9S. 47, 57.  Respondents' attempt to
    analogize the Commerce Clause to the Supremacy Clause, which does not
    confer "rights, privileges, or immunities" under 91983, 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.96-11.

G234 Neb. 427, 451 N. W. 2d 676, reversed and remanded.

HWhite, 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.9J., joined.

------------------------------------------------------------------------------




Subject: X, 89-1555--OPINION



DENNIS v. HIGGINS
 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.

SUPREME COURT OF THE UNITED STATES


No. 89-1555



AMARK E. DENNIS, PETITIONER v. MARGARET L. HIGGINS, DIRECTOR, NEBRASKA
DEPARTMENT OF MOTOR VEHICLES, et al.

Bon writ of certiorari to the supreme court of nebraska

C[February 20, 1991]



A Justice White delivered the opinion of the Court.

B This case presents the question whether suits for violations of the
Commerce Clause may be brought under 93 Stat. 1284, as amended, 42 U.9S.9C.
91983.  We hold that they may.

CI
D 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. {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.9S.9C. 91983.  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 car riers 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 91983 claim.  Petitioner
appealed the dismissal of his 91983 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
91983 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.9W. 2d 676 (1990).  With respect to the 91983 claim, the Nebraska Supreme
Court held that "[d]espite the broad language of 91983 .9.9. there is no
cause of action under 91983 for violations of the commerce clause."  Id.,
at Z, 451 N.9W. 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.9S. 834 (1984), which held that claims under the
Commerce Clause are not cognizable under 91983 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 Z, 451
N.9W. 2d, at 678, there is a division of authority on the question whether
claims for violations of the Commerce Clause may be brought under 91983.
{2}  We granted certiorari to resolve this issue, 495 U.9S. Z (1990), and
we now reverse.

NII
D A broad construction of 919839 {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 [91983] must be
broadly construed."  Golden State Transit Corp. v. Los Angeles, 493 U.9S.
Z, Z (1989) (slip op., at 2).  The legislative history of the section also
stresses that as a remedial statute, it should be "9`liberally and
beneficently construed.'9"  Monell v. New York City Dept. of Social
Services, 436 U.9S. 658, 684 (1978) (quoting Rep. Shellabarger, Cong.
Globe, 42d Cong., 1st Sess., App. 68 (1871)). {4}
    As respondents argue, the "prime focus" of 91983 and related provisions
was to ensure "a right of action to enforce the protections of the
Fourteenth Amendment and the federal laws enacted pursuant thereto,"
Chapman v. Houston Welfare Rights Organization, 441 U.9S. 600, 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 91983 "provide[s] a remedy, to be broadly construed,
against all forms of official violation of federally protected rights."
Monell, supra, at 700-701.  Thus, for example, we have refused to limit the
phrase "and laws" in 91983 to civil rights or equal protection laws.  See
Maine v. Thiboutot, 448 U.9S. 1, 4, 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.9S. 538 (1972), we refused to limit the phrase to
"personal" rights, as opposed to "property" rights. {5}  We first noted
that neither the words nor the legislative history of the statute
distinguished between personal and property rights.  Id., at 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 550-551.  We further concluded that "the dichotomy between personal
liberties and property rights is a false one. .9.9. 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
552.  See also United States v. Price, 383 U.9S. 787, 800-806 (1966).
    Petitioner contends that the Commerce Clause confers "rights,
privileges, or immunities" within the meaning of 91983.  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.9S. Const., Art.9I, 98, cl.93.  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.9S. 27, 35 (1980). {6}
    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
pre-emptive 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.9S. 322, 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.9S. 82, 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.9g., McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, 496
U.9S. Z, Z (1990) (slip op., at 10).  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 Z (slip op., at 31).  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. {7}
    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.9S. 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 57.  Similarly, Western Union
Telegraph Co. v. Kansas ex rel. Coleman, 216 U.9S. 1, 26 (1910), referred
to "the substantial rights of those engaged in interstate commerce."  And
Garrity v. New Jersey, 385 U.9S. 493, 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.9S. 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 320, n.93.
    Last Term, in Golden State Transit Corp. v. Los Angeles, 493 U.9S. Z
(1989), we set forth three considerations for determining whether a federal
statute confers a "right" within the meaning of 91983:

E"In deciding whether a federal right has been violated, we have considered
[1] whether the provision in question 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.9S. 1, 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.9S. 418, 431-432 (1987).  [3] We have also
asked whether the provision in question was `intend[ed] to benefit' the
putative plaintiff.  Id., at 430; see also id., at 433 (O'Connor, J.,
dissenting) (citing Cort v. Ash, 422 U.9S. 66, 78 (1975)."  Id., at Z.
F

See also Wilder v. Virginia Hospital Association, 496 U.9S. Z, Z (1990)
(slip op., at Z).  Respondents do not dispute that the first two
considerations weigh in favor of recognition of a right here, but seize
upon the third con sideration--intent to benefit the plaintiff--arguing
that the Commerce Clause does not confer rights within the meaning of 91983
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 321, n.93, 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
"Constitutional protection against burdens on commerce is for [their]
benefit .9.9.9."  Morgan v. Virginia, 328 U.9S. 373, 376-377 (1946).  As
Justice Jackson, writing for the Court, eloquently explained:

E
    "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 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.9P. Hood & Sons,
Inc. v. Du Mond, 336 U.9S. 525, 539 (1949).
F

    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 91983.
See Golden State, supra, at Z (slip op., at Z); Chapman, 441 U.9S., at 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 into 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. {8}
    Respondents also argue that the protection from inter ference 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."  Golden State, supra, at Z (slip op., at 9).
The same is true of the Commerce Clause. {9}
CIII
D We conclude that the Supreme Court of Nebraska erred in holding that
petitioner's Commerce Clause claim could not be brought under 42 U.9S.9C.
91983.  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.


T
 
 
 
 
 


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1
    9The taxes and fees at issue were imposed pursuant to Neb. Rev. Stat.
960-305 (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).

2
    9Compare Kraft v. Jacka, 872 F. 2d 862, 869 (CA9 1989); J9&9J Anderson,
Inc. v. Town of 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.9S. 834 (1984) with Continental Illinois Corp. v.
Lewis, 838 F. 2d 457, 458 (CA11 1988), vacated on other grounds, 494 U.9S.
Z (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.95 (CA3 1980).
See also Private Truck Council of America, Inc. v. Quinn, 476 U.9S. 1129
(1986) (White, J., joined by Brennan and O'Connor, JJ., dissenting from
denial of certiorari) (noting conflict of authority).

3
    9Section 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.9S.9C. 91983.

4
    9The dissent contends that the legislative history of 91983 supports
the proposition that 91983 does not apply to constitutional provisions that
allocate power.  See post, at 4-6.  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.9e., 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 91983, i.9e.,
91.  Rather, he was discussing 92 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 .9.9. 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 91983 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,
22 (1869).  The other snippets of legislative history relied upon by the
dissent, see post, at 6, 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
powerallocating and rights-conferring provisions of the Constitution, it
plainly does not constitute a "a clearly expressed legislative intent
contrary to the plain language of [91983]."  American Tobacco Co. v.
Patterson, 456 U.9S. 63, 75 (1982).  Rather, if Congress had intended to
limit the "broad and unqualified" language of 91983, "it is not
unreasonable to assume that it would have made this explicit."  St. Paul
Fire & Marine Ins. Co. v. Barry, 438 U.9S. 531, 550 (1978).

5
    9The statute at issue in Lynch was the jurisdictional counterpart to
91983, 28 U.9S.9C. 91343(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.9S., at 556.

6
    9See, e.9g., CTS Corp. v. Dynamics Corp. of America, 481 U.9S. 69, 87
(1987); Hughes v. Oklahoma, 441 U.9S. 322, 326 (1979); Great Atlantic &
Pacific Tea Co. v. Cottrell, 424 U.9S. 366, 370-371 (1976); Cooley v. Board
of Wardens of Port of Philadelphia, 12 How. 299, 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.

7
    9See, e.9g., 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 91 (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 91983.  Indeed, we have already
rejected a distinction between express and implied rights under 91983 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.9S. Z, Z9-9Z (1989) (slip op., at 8-9).

8
    9An additional reason why claims under the Supremacy Clause, unlike
those under the Commerce Clause, should be excluded from the coverage of
91983 is that if they were included, the "and laws" provision in 91983
would be superfluous.  See Golden State, 493 U.9S., at Z, n.94 (slip op.,
at 4, n.94).

9
    9In arguing that the Commerce Clause does not secure any rights,
privileges, or immunities within the meaning of 91983, the dissent relies
upon Carter v. Greenhow, 114 U.9S. 317 (1885).  See post, at 7-8.  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.'9"  Chapman v. Houston Welfare Rights Organization, 441 U.9S. 600,
613, n.929 (1979); see also Hague v. Committee for Industrial Organization,
307 U.9S. 496, 527 (1939) (opinion of Stone, J.).





Subject: X, 89-1555--DISSENT



DENNIS v. HIGGINS
 


        SUPREME COURT OF THE UNITED STATES


No. 89-1555



AMARK E. DENNIS, PETITIONER v. MARGARET L. HIGGINS, DIRECTOR, NEBRASKA
DEPARTMENT OF MOTOR VEHICLES, et al.

Bon writ of certiorari to the supreme court of nebraska

C[February 20, 1991]



A Justice Kennedy, with whom The Chief Justice joins, dissenting.
B In Golden State Transit Corp. v. Los Angeles, 493 U.9S. Z, Z (1990), I
dissented from the Court's determination that 42 U.9S.9C. 91983 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 91983 and again holds
91983 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 its
economic regulation and taxation.  With respect, I dissent.

NI
D The majority must acknowledge, under even Golden State, that not all
violations of Federal law give rise to a 91983 action.  The plaintiff must
assert "rights, privileges, or immunities secured by the Constitution and
laws."  42 U.9S.9C. 91983.  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 8, and n.97.  Second, our cases
contain scattered references to a "right" to engage in interstate commerce.
Ante, at 8-9.  And third, the Commerce Clause purportedly meets Golden
State's test to determine whether a statutory violation gives rise to a
91983 cause of action, because the Commerce Clause was intended to benefit
those who engage in interstate commerce.  Ante, at 9-10.  The majority
errs, I must submit, when it ignores what the sponsors of 91983 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.
NA
D 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 91983, 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 the Federal and
State Governments.  The former secure rights within the meaning of 91983,
but the latter do not.
    The Commerce Clause, found at Art. I, 98, cl. 3 of the Constitution, is
a grant of power to Congress.  It states simply that "[t]he Congress shall
have Power .9.9. To regulate commerce .9.9. 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.9g., The
Federalist No.97, pp.962-63 (C. Rossiter ed. 1961) (A. Hamilton); id.,
No.911, pp.989-90 (A. Hamilton); id., No.922, pp.9143-145 (A. Hamilton);
id., No.942, pp.9267-269 (J. Madison); id., No.953, p.9333 (J. Madison).

E
"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.'9"  H.9P. Hood & Sons, Inc. v. Du Mond, 336 U.9S. 525, 533 (1949)
(citation omitted).
F

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.9g., id., at 533-535; Baldwin v. G.A.F. Seelig, Inc., 294
U.9S. 511, 523 (1935); Collins, Economic Union as a Constitutional Value,
63 N.9Y.9U.9L. Rev. 43, 51-56 (1988).  "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."  Hood & Sons, Inc., supra, at 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.9169-175 (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 92 of the Civil Rights Act of 1866, 14
Stat. 27, and 91 of the Civil Rights Act of 1871, 17 Stat. 13.  See Lynch
v. Household Finance Corp., 405 U.9S. 538, 543, n.97 (1972).  Until recent
cases, we have placed great reliance upon the sponsors of the 1871 Act in
interpreting the scope of 91983.  See, e.9g., Monell v. New York City Dept.
of Social Services, 436 U.9S. 658, 690 (1978) ("analysis of the legislative
history of the Civil Rights Act of 1871 compels the conclusion that
Congress did intend municipalities .9.9. to be included among those persons
to whom 91983 applies" (emphasis in original)); Lynch, supra, at 545-546
(sponsors intended 91983 to protect property rights as well as personal
rights); Monroe v. Pape, 365 U.9S. 167, 172-185 (1961) (legislative history
of 91983 supports the conclusion that 91983 plaintiff need not exhaust
state remedies).
    Those same sponsors of 91983 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 92 of the 1871 Act,
Representative Shella barger, Chairman of the House Select Committee which
drafted the Act, and floor manager for the bill, explained:

E"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.'9"  Cong. Globe, 42d Cong.,
1st Sess., App. 69-70 (1871) (hereinafter Cong. Globe) (referring to Art.
IV, 92 of the Constitution as securing rights of persons).
F

This passage confirms Representative Shellabarger's view that all but three
provisions of the Constitution as first enacted allocate power rather than
securing 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. {1}  To those original provisions which secure rights
of persons with respect to States, and within the meaning of 91983, the
sponsors of 91983 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.9g., 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 91983.  Representative Hoar distinguished
between two objectives of the Constitution: to "provide .9.9. 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 Trumbull made the same distinction
between these categories of constitutional provisions.  Id., at 575.  The
sponsors of 91983 thus gave us a straightforward answer to the question of
which constitutional violations give rise to a 91983 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 91983 cause of action alleged
violations of rights-securing provisions of the Constitution, not
power-allocating provisions.  See, e.9g., Monroe v. Pape, supra, at 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. 91979 [91983]"); Lane v. Wilson, 307
U.9S. 268 (1939) (Fifteenth Amendment violation supports 91983 cause of
action).
    In our only previous case discussing a 91983 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 91983
cause of action.  Carter v. Greenhow, 114 U.9S. 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
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, 910 provides that "[n]o State shall
.9.9. pass any .9.9. 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."  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 91983, 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 91983, 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 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.9S., at Z (slip op.,
at 6).  Yet, the majority finds that the Commerce Clause was "intended to
benefit the putative plaintiff," Golden State, supra, at Z (slip op. at 5),
while Carter held that the Contracts Clause only provides incidental
benefits.
    In Lynch v. Household Finance Corp., 405 U.9S. 538 (1972), we rejected
an attempt to limit 91983 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 91983 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 91983, 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.

NB
D 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 Z.  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.9S. 47, 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.9S. 1, 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.9S. 611, 615-616 (1885). {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, 496 U.9S. Z (1990), in which the majority finds recent 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.  496 U.9S., at Z (slip op., at
10).  In discussing the nature of the constitutional violation, Mc Kesson
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 Z (slip op., at
19).  If the State refused to provide any remedy, then the taxpayer would
arguably have a 91983 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 91983 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 9-10.  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 Commission, 429 U.9S.,] at 321, n.93, where we found that the
plaintiffs were arguably within the `zone of interests' protected by the
Commerce Clause."  Ante, at 10.  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 91983.  To the contrary,
our zone of interest cases have rejected any requirement that there be a
"congressional purpose to benefit the would be plaintiff."  Clarke v.
Securities Industry Asson., 479 U.9S. 388, 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 403. {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.9S. 228, 239-240, n.918 (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 91983.  Thus, in INS v.
Chadha, 462 U.9S. 919, 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, 97, cls.92 and 3.  In a very 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 10 (quoting H.9P.
Hood & Sons, Inc. v. Du Mond, 336 U.9S., at 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.9S., at Z (slip op., at 6).
    I continue to draw the distinction made in my Golden State dissent, 493
U.9S., at Z, 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 91983.  If that were so, all violations of
federal law would give rise to a 91983 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 Golden State test.  The
majority does not purport to rest its decision upon such an all-inclusive
view of 91983, 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 91983 suits derived from Article I.  For
example, the Court's rationale creates a 91983 cause of action when a State
violates the constitutional doctrine of intergovernmental tax immunities,
Davis v. Michigan Dept. of Treasury, 489 U.9S. 803, 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.9S. 429 (1968), applies a duty upon imports in
violation of Art. I, 910, cl.92, see Hooven & Allison Co. v. Evatt, 324
U.9S. 652 (1945), invades the federal power over regulation of the entrance
and residence of aliens in violation of Art. I., 98, cl.94, see Hines v.
Davidowitz, 312 U.9S. 52, 66-67 (1941), or attempts to tax income upon a
federal obligation in derogation of Congress' Art. I, 98, cl.92, power to
"borrow Money on the credit of the United States," see Missouri ex rel.
Missouri Ins. Co. v. Gehner, 281 U.9S. 313 (1930).  There is no textual or
other support for holding that 91983 imposes such far reaching liabilities
upon the States.

CII
D 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 State.
Rather, the significance of the Court's decision, in this and future
Commerce Clause litigation, is that a 91983 claim may permit dormant
Commerce Clause plaintiffs to recover attorney's fees and expenses under 42
U.9S.9C. 91988.   In the Civil Rights Attorney's Fees Awards Act of 1976,
Pub. L. 94-559, 90 Stat. 2641, codified at 42 U.9S.9C. 91988, Congress
authorized the award of attorney's fees to prevailing parties in, inter
alia, 91983 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.994-1011, p.96
(1976).  Congress was reassured that 91988 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 91988.  By making such fee awards available,
the Court does not vindicate the purposes of 91983 or 91988, 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.9S.9C. 91341, 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 91983 to redress allegedly
unconstitutional state taxation.  Fair Assessment in Real Estate Assn.,
Inc. v. McNary, 454 U.9S. 100 (1981).  Relying upon the "overriding
interests of the state in an efficient, expeditious and nondisruptive
resolution of .9.9. tax disputes," Backus v. Chilivis, 236 Ga. 500, 505,
224 S.9E. 2d 370, 374 (1976), state courts have refused to permit
plaintiffs to proceed under 91983 where there exists a complete remedy
under state law.  Ibid.; Spencer v. South Carolina Tax Comm'n, 281 S.C.
492, 497, 316 S.9E. 2d 386, 388-389 (1984), aff'd by an equally divided
Court, 471 U.9S. 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 91983'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.
T
 
 
 
 
 

------------------------------------------------------------------------------
1
    9Shellabarger was discussing the power of Congress to enact 92 of the
1871 Act, and not the scope of 91, which we know as 42 U.9S.9C. 91983.
Reliance upon Shellabarger's statement is nevertheless appropriate.  The
proposed 92 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 91 and 92 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.

2
    9The 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
91983, 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. 9699
(1874).  See  Collins, "Economic Rights," Implied Constitutional Actions,
and the Scope of Section 1983, 77 Geo. L.9J. 1493, 15191520, 1549-1551
(1989).

3
    9In 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.9S. 373, 376-377 (1946), as stating that
"[c]onstitutional protection against burdens on commerce is for [their]
benefit .9.9.9."  Ante, at 10.  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.9S. 152, 160; Federation of Labor v. McAdory, 325 U.9S. 450,
463."  Morgan, supra, at 376-377 (emphasis added, footnote omitted).
H
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.  Ibid.
