# Hutto v. Finney/Concurrence Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Brennan
* Concurrence/Dissent Powell
* Dissenting Opinion Rehnquist
MR. JUSTICE BRENNAN, concurring.
I join fully in the opinion of the Court and write separately only to answer points made by MR. JUSTICE POWELL.
I agree with the Court that there is no reason in this case to decide more than whether 42 U.S.C. § 1988 (1976 ed.), itself authorizes awards of attorney's fees against the States. MR. JUSTICE POWELL takes the view, however, that unless 42 U.S.C. § 1983 also authorizes damages awards against the States, the requirements of the Eleventh Amendment are not met. Citing Edelman v. Jordan, 415 U.S. 651 (1974), he concludes that § 1983 does not authorize damages awards against the State and accordingly, that § 1988 does not either. There are a number of difficulties with this syllogism, but the most striking is its reliance on Edelman v. Jordan, a case whose foundations would seem to have been seriously undermined [p701] by our later holdings in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), and Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978).
It cannot be gainsaid that this Court in Edelman rejected the argument that 42 U.S.C. § 1983 "was intended to create a waiver of a State's Eleventh Amendment immunity merely because an action could be brought under that section against state officers, rather than against the State itself." 415 U.S., at 676–677. When Edelman was decided, we had affirmed monetary awards against the States only when they had consented to suit or had waived their Eleventh Amendment immunity. See, e. g., Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275 (1959); Parden v. Terminal R. Co., 377 U.S. 184 (1964); Employees v. Missouri Public Health & Welfare Dept., 411 U.S. 279 (1973). In Edelman, we summarized the rule of our cases as follows: The "question of waiver or consent under the Eleventh Amendment was found in [our] cases to turn on whether Congress had intended to abrogate the immunity in question, and whether the State by its participation in [a regulated activity] authorized by Congress had in effect consented to the abrogation of [Eleventh Amendment] immunity." 415 U.S., at 672. At the very least, such consent could not be found unless Congress had authorized suits against "a class of defendants which literally includes States." Ibid. It was a short jump from that proposition, to the conclusion that § 1983—which was then thought to include only natural persons among those who could be party defendants, see Monroe v. Pape, 365 U.S. 167, 187–191 (1961)—was not in the class of statutes that might lead to a waiver of Eleventh Amendment immunity. This is best summed up by MR. JUSTICE REHNQUIST, the author of Edelman, in his opinion for the Court in Fitzpatrick v. Bitzer, supra:
   "We concluded that none of the statutes relied upon by plaintiffs in Edelman contained any authorization by [p702] Congress to join a State as defendant. The Civil Rights Act of 1871, 42 U.S.C. § 1983, had been held in Monroe v. Pape, 365 U.S. 167, 187–191 (1961), to exclude cities and other municipal corporations from its ambit; that being the case, it could not have been intended to include States as parties defendant." 427 U.S., at 452.
But time has not stood still. Two Terms ago, we decided Fitzpatrick v. Bitzer, which for the first time in the recent history of the Court asked us to decide "the question of the relationship between the Eleventh Amendment and the enforcement power granted to Congress under § 5 of the Fourteenth Amendment." Id., at 456. There we concluded that "the Eleventh Amendment, and the principle of state sovereignty which it embodies, . . . are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment." Ibid. (Citation omitted.) And we went on to hold:
   "Congress may, in determining what is 'appropriate legislation' for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts." Ibid.
Then, in Monell v. New York City Dept. of Social Services, supra, decided only weeks ago, we held that the Congress which passed the Civil Rights Act of 1871, now § 1983—a statute enacted pursuant to § 5 of the Fourteenth Amendment, see 436 U.S., at 665—"did intend municipalities and other local government units to be included among those persons to whom § 1983 applies." Id., at 690. This holding alone would appear to be enough to vitiate the vitality of Fitzpatrick's explanation of Edelman.
[p703] Moreover, central to the holding in Monell was the conclusion that the Act of Feb. 25, 1871, ch. 71, § 2, 16 Stat. 431, provided a definition of the word "person" used to describe the class of defendants in 1983 suits. 436 U.S., at 688. Although we did not in Monell have to consider whether 1983 as properly construed makes States liable in damages for their constitutional violations, the conclusion seems inescapable that, at the very least, § 1983 includes among possible defendants "a class . . . which literally includes States." Edelman v. Jordan, 415 U.S., at 672. This follows immediately from the language of the Act of Feb. 25, 1871:
   "[I]n all acts hereafter passed . . . the word 'person' may extend and be applied to bodies politic and corporate . . . unless the context shows that such words were intended to be used in a more limited sense . . . ."
The phrase "bodies politic and corporate" is now, and certainly would have been in 1871, a synonym for the word "State." See, e. g., United States v. Maurice, 26 F. Cas. 1211, 1216 (No. 15,747) (CC Va. 1823) (Marshall, C. J.) ("The United States is a government and, consequently, a body politic and corporate"). See also Pfizer Inc. v. Government of India, 434 U.S. 308 (1978).
Given our holding in Monell, the essential premise of our Edelman holding—that no statute involved in Edelman authorized suit against "a class of defendants which literally includes States," 415 U.S., at 672—would clearly appear to be no longer true. Moreover, given Fitzpatrick's holding that Congress has plenary power to make States liable in damages when it acts pursuant to § 5 of the Fourteenth Amendment, it is surely at least an open question whether § 1983 properly construed does not make the States liable for relief of all kinds, notwithstanding the Eleventh Amendment. Whether this is [p704] in fact so, must of course await consideration in an appropriate case.
* ↑ As Fitzpatrick noted, this issue had been before the Court in Ex parte Virginia, 100 U.S. 339 (1880).
* ↑ It can also be questioned whether, had Congress meant to exempt municipalities from liability under § 1983, it would necessarily follow that [p703] Congress also meant to exempt State. See Monell v. New York City Dept. of Social Services, 436 U.S. 658, 673–674, n. 30 (1978).
* ↑ As I understand MR. JUSTICE POWELL'S objection to the Court's opinion, it rests squarely on the proposition that a clear statement to make States liable for damages cannot be found in legislative history but only on the face of a statute. See post, at 705–706. In § 1983 and the Act of Feb. 25, 1871, we have a statute that on its face applies to state defendants, but now MR. JUSTICE POWELL tells us that this is not enough because there is still an absence of "congressional purpose in 1871 to abrogate the protections of the Eleventh Amendment." Post, at 709 n. 6. I suppose that this means either that no statute can meet the Eleventh Amendment clear-statement test or, alternatively, that MR. JUSTICE POWELL has some undisclosed rule as to when legislative history may be taken into account that works only to defeat state liability.