Justice KENNEDY, with whom The Chief Justice joins, dissenting.
In Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 114, 110 S.Ct. 444, ----, 107 L.Ed.2d 420 (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 its economic regulation and taxation. With respect, I dissent.
* 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 447, and n. 7. Second, our cases contain scattered references to a "right" to engage in interstate commerce. Ante, at 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 448. 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.
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 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, 533, 69 S.Ct. 657, 663, 93 L.Ed. 865 (1949) (citation omitted).