Cite as: 517 U. S. 44 (1996)
Souter, J., dissenting
The Hans doctrine was erroneous, but it has not previously proven to be unworkable or to conflict with later doctrine or to suffer from the effects of facts developed since its decision (apart from those indicating its original errors). I would therefore treat Hans as it has always been treated in fact until today, as a doctrine of federal common law. For, as so understood, it has formed one of the strands of the federal relationship for over a century now, and the stability of that relationship is itself a value that stare decisis aims to respect.
In being ready to hold that the relationship may still be altered, not by the Court but by Congress, I would tread the course laid out elsewhere in our cases. The Court has repeatedly stated its assumption that insofar as the relative positions of States and Nation may be affected consistently with the Tenth Amendment,65 they would not be modified without deliberately expressed intent. See Gregory v. Ash-croft, 501 U. S., at 460-461. The plain-statement rule, which "assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision," United States v. Bass, 404 U. S., at 349, is particularly appropriate in light of our primary reliance on "[t]he effectiveness of the federal political process in preserving the States' interests," Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 552 (1985).66 Hence, we
65 The scope of the Tenth Amendment's limitations of congressional power remains a subject of debate. New York v. United States, 505 U. S. 144 (1992), holds that principles of federalism are "violated by a formal command from the National Government directing the State to enact a certain policy." United States v. Lopez, 514 U. S., at 583 (Kennedy, J., concurring). Some suggest that the prohibition extends further than barring the Federal Government from directing the creation of state law. The views I express today should not be understood to take a position on that disputed question.
66 See also The Federalist No. 46, at 319 (J. Madison) (explaining that the Federal Government "will partake sufficiently of the spirit [of the States], to be disinclined to invade the rights of the individual States, or the pre-
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