158
Souter, J., dissenting
Today's majority discounts this concern. Without citing a single source to the contrary, the Court dismisses the historical evidence regarding the Framers' vision of the relationship between national and state sovereignty, and reassures us that "the Nation survived for nearly two centuries without the question of the existence of [the abrogation] power ever being presented to this Court." Ante, at 71.53 But we
are concerned here not with the survival of the Nation but the opportunity of its citizens to enforce federal rights in a way that Congress provides. The absence of any general federal-question statute for nearly a century following ratification of Article III (with a brief exception in 1800) hardly counts against the importance of that jurisdiction either in the Framers' conception or in current reality; likewise, the fact that Congress has not often seen fit to use its power of abrogation (outside the Fourteenth Amendment context, at least) does not compel a conclusion that the power is not important to the federal scheme. In the end, is it plausible
the uncertainty that the Court will always permit enforcement of federal law by suits for prospective relief against state officers. Moreover, the majority's position ignores the importance of citizen suits to enforcement of federal law. See, e. g., Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 263 (1975) (acknowledging that, in many instances, "Congress has opted to rely heavily on private enforcement to implement public policy"); see also S. Rep. No. 94-1011, p. 2 (Civil Rights Attorney's Fees Awards Act of 1976, 42 U. S. C. § 1988) (recognizing that "[a]ll of these civil rights laws depend heavily upon private enforcement"); Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U. S. 711, 737 (1987) (Blackmun, J., dissenting) (noting importance of citizens' suits under federal environmental laws).
53 The Court's further assertion, that "Congress itself waited nearly a century before even conferring federal-question jurisdiction on the lower federal courts," ante, at 71, is simply incorrect. As I have noted, numerous early statutes conferred federal-question jurisdiction on the federal courts operating under the original Judiciary Act in particular kinds of cases, and the Judiciary Act of 1800 provided for general federal-question jurisdiction in the brief period before its repeal in 1801. See n. 12, supra.
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