Cite as: 527 U. S. 666 (1999)
Breyer, J., dissenting
in this case did not violate the Constitution. My conclusion rests on two premises that the Court rejects.
First, in my opinion "the activity of doing business, or the activity of making a profit," ante, at 675, is a form of property. The asset that often appears on a company's balance sheet as "good will" is the substantial equivalent of that "activity." It is the same kind of "property" that Congress described in § 7 of the Sherman Act, 26 Stat. 210, and in § 4 of the Clayton Act, 38 Stat. 731. A State's deliberate destruction of a going business is surely a deprivation of property within the meaning of the Due Process Clause.
Second, the validity of a congressional decision to abrogate sovereign immunity in a category of cases does not depend on the strength of the claim asserted in a particular case within that category. Instead, the decision depends on whether Congress had a reasonable basis for concluding that abrogation was necessary to prevent violations that would otherwise occur. Given the presumption of validity that supports all federal statutes, I believe the Court must shoulder the burden of demonstrating why the judgment of the Congress of the United States should not command our respect. It has not done so.
For these reasons, as well as those expressed by Justice Breyer, I respectfully dissent.
Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.
The Court holds that Congress, in the exercise of its commerce power, cannot require a State to waive its immunity from suit in federal court even where the State engages in activity from which it might readily withdraw, such as federally regulated commercial activity. This Court has previously held to the contrary. Parden v. Terminal R. Co. of Ala. Docks Dept., 377 U. S. 184 (1964). I would not abandon that precedent.
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