350
Scalia, J., concurring
to the contract, A. See 1 W. Story, A Treatise on the Law of Contracts 549-550 (4th ed. 1856). This appears to have been the law at the time § 1983 was enacted. See Brief for Council of State Governments et al. as Amici Curiae 10-11, and n. 6 (citing sources). If so, the ability of persons in respondents' situation to compel a State to make good on its promise to the Federal Government was not a "righ[t] . . . secured by the . . . laws" under § 1983. While it is of course true that newly enacted laws are automatically embraced within § 1983, it does not follow that the question of what rights those new laws (or, for that matter, old laws) secure is to be determined according to modern notions rather than according to the understanding of § 1983 when it was enacted. Allowing third-party beneficiaries of commitments to the Federal Government to sue is certainly a vast expansion.
It must be acknowledged that Wright and Wilder permitted beneficiaries of federal-state contracts to sue under § 1983, but the argument set forth above was not raised. I am not prepared without further consideration to reject the possibility that third-party-beneficiary suits simply do not lie. I join the Court's opinion because, in ruling against respondents under the Wright/Wilder test, it leaves that possibility open.
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