Cite as: 527 U. S. 666 (1999)
Breyer, J., dissenting
(a) Dual sovereignty undercuts the doctrine's traditional "logical and practical" justification, namely (in the words of Justice Holmes), that "there can be no legal right as against the authority that makes the law on which the right depends." Kawananakoa v. Polyblank, 205 U. S. 349, 353 (1907). When a State is sued for violating federal law, the "authority" that would assert the immunity, the State, is not the "authority" that made the (federal) law. This point remains true even if the Court treats sovereign immunity as a principle of natural law. Alden v. Maine, post, at 762-764 (Souter, J., dissenting).
(b) Dual sovereignty, by granting Congress the power to create substantive rights that bind States (despite their sovereignty) must grant Congress the subsidiary power to create related private remedies that bind States (despite their sovereignty).
(c) Dual sovereignty means that Congress may need that lesser power lest States (if they are not subject to federal remedies) ignore the substantive federal law that binds them, thereby disabling the National Government and weakening the very Union that the Constitution creates. Cf. McCulloch v. Maryland, 4 Wheat. 316, 407-408 (1819); Cohens v. Virginia, 6 Wheat. 264, 386-387 (1821). (4) By interpreting the Constitution as rendering immutable this one common-law doctrine (sovereign immunity), Seminole Tribe threatens the Nation's ability to enact economic legislation needed for the future in much the way that Lochner v. New York, 198 U. S. 45 (1905), threatened the Nation's ability to enact social legislation over 90 years ago.
I shall elaborate upon this last-mentioned point. The similarity to Lochner lies in the risk that Seminole Tribe and the Court's subsequent cases will deprive Congress of necessary legislative flexibility. Their rules will make it more difficult for Congress to create, for example, a decentralized system of individual private remedies, say a private remedial system needed to protect intellectual property, including
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