Cite as: 518 U. S. 668 (1996)
Scalia, J., dissenting
certain: the contract was put out for bid, or it was not. Umbehr's new First Amendment, by contrast, requires a sensitive "balancing" in each case; and the factual question whether political affiliation or disfavored speech was the reason for the award or loss of the contract will usually be litigable. In short, experience under the government-contracting laws has little predictive value.
The Court additionally asserts that the line cannot be drawn between employment and independent contracting, because " 'the applicability of a provision of the Constitution has never depended on the vagaries of state or federal law.' " Umbehr, ante, at 680 (quoting Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 299 (1989) (O'Connor, J., concurring in part and dissenting in part)); see also Umbehr, ante, at 678-680 (citing other cases). That is not so. State law frequently plays a dispositive role in the issue whether a constitutional provision is applicable. In fact, before we invented the First Amendment right not to be fired for political views, most litigation in this very field of government employment revolved around the Fourteenth Amendment's Due Process Clause and asked whether the firing had deprived the plaintiff of a "property" interest without due process. And what is a property interest entitled to Fourteenth Amendment protection? "[P]roperty interests," we said, "are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.... IfitisthelawofTexas that a teacher in the respondent's position has no contractual or other claim to job tenure, the respondent's [federal constitutional] claim would be defeated." Perry v. Sindermann, 408 U. S. 593, 602, n. 7 (1972) (internal quotation marks and citation omitted). See also Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 280-281 (1977) (whether a government entity possesses Eleventh Amendment immunity "depends,
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