660
Stevens, J., dissenting
Even if state courts elected to hear patent infringement cases against state entities, the entire category of such cases would raise questions of impartiality. This concern underlies both the constitutional authorization of diversity jurisdiction and the statutory provisions for removal of certain cases from state to federal courts, 28 U. S. C. § 1441 et seq. The same concern justified John Marshall's narrow construction of the Eleventh Amendment in Cohens v. Virginia, 6 Wheat. 264 (1821). As he there noted, when there is a conflict between a State's interest and a federal right, it "would be hazarding too much to assert, that the judicatures of the States will be exempt from the prejudices by which the legislatures and people are influenced, and will constitute perfectly impartial tribunals." Id., at 386.
Finally, this Court has never mandated that Congress must find " 'widespread and persisting deprivation of constitutional rights,' " ante, at 645, in order to employ its § 5 authority. It is not surprising, therefore, that Congress did not compile an extensive legislative record analyzing the due process (or lack thereof) that each State might afford for a patent infringement suit retooled as an action in tort. In 1992, Congress had no reason to believe it needed to do such a thing; indeed, it should not have to do so today.
III
In my view, Congress had sufficient evidence of due process violations, whether actual or potential, to meet the requirement we expressed in City of Boerne that Congress can act under § 5 only to "remedy or prevent unconstitutional actions." See 521 U. S., at 519. The Court's opinion today threatens to read Congress' power to pass prophylactic legislation out of § 5 altogether; its holding is unsupported by City of Boerne and in fact conflicts with our reasoning in that case.
In City of Boerne we affirmed the well-settled principle that the broad sweep of Congress' enforcement power en-
Page: Index Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 NextLast modified: October 4, 2007