Cite as: 527 U. S. 706 (1999)
Souter, J., dissenting
problem with arguing from historical practice in this case is that past practice, even if unbroken, provides no basis for demanding preservation when the conditions on which the practice depended have changed in a constitutionally relevant way.
It was at one time, though perhaps not from the framing, believed that "Congress' authority to regulate the States under the Commerce Clause" was limited by "certain under-bonds that specified on their face that the attached coupons should be receivable at and after maturity for all taxes, debts, dues, and demands due the State. Id., at 278. In 1882, however, Virginia passed a law requiring its tax collectors to accept nothing but gold, silver, or currency in payment of taxes. Id., at 275. After the bonds reached maturity, Poindexter used them to pay state property taxes; Greenhow, the local tax collector, ignored the payment and took possession of an office desk in Poindexter's possession to sell it for unpaid taxes. Poindexter brought a common law action in detinue against the tax collector in state court for recovery of the desk, arguing that the later Virginia statute barring use of the coupons violated the Contracts Clause. Greenhow defended, inter alia, on the theory that the suit was "substantially an action against the State of Virginia, to which it has not assented." Id., at 285. The Court rejected this claim by applying to the State of Virginia reasoning akin to, though broader than, that later adopted in Ex parte Young, 209 U. S. 123 (1908). We held that, where state legislative action is unconstitutional, it "is not the word or deed of the State, but is the mere wrong and trespass of those individual persons who falsely speak and act in its name," 114 U. S., at 290. Because the original bonds were binding contracts, the obligation of which Virginia could not constitutionally impair, "[t]he true and real Commonwealth which contracted the obligation is incapable in law of doing anything in derogation of it." Id., at 293. It therefore could not be argued that the tax collector was acting on behalf of the State, because "[t]he State of Virginia has done none of these things with which this defence charges her. The defendant in error is not her officer, her agent, or her representative, in the matter complained of, for he has acted not only without her authority, but contrary to her express commands." Ibid. Although the tax collector had done nothing more than collect taxes under duly enacted state law, he was held to be liable to suit. Thus in the only case to have come before this Court specifically involving a claim of state sovereign immunity of constitutional magnitude in a State's own court, jurisdiction was upheld.
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