decided: March 5, 1979.
QUERN, DIRECTOR, DEPARTMENT OF PUBLIC AID OF ILLINOIS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Blackmun, Powell, and Stevens, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, in Parts I, II, and III of which Marshall, J., joined, post, p. 349. Marshall, J., filed an opinion concurring in the judgment, post, p. 366.
[ 440 U.S. Page 333]
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
This case is a sequel to Edelman v. Jordan, 415 U.S. 651 (1974), which we decided five Terms ago. In Edelman we held that retroactive welfare benefits awarded by a Federal District Court to plaintiffs, by reason of wrongful denial of benefits by state officials prior to the entry of the court's order determining the wrongfulness of their actions, violated the
[ 440 U.S. Page 334]
Eleventh Amendment.*fn1 The issue now before us is whether that same federal court may, consistent with the Eleventh Amendment, order those state officials to send a mere explanatory notice to members of the plaintiff class advising them that there are state administrative procedures available by which they may receive a determination of whether they are entitled to past welfare benefits. We granted certiorari to resolve an apparent conflict between the decision of the United States Court of Appeals for the Seventh Circuit in this case and that of the Court of Appeals for the Third Circuit in Fanty v. Commonwealth of Pennsylvania, Dept. of Public Welfare, 551 F.2d 2 (1977).*fn2 435 U.S. 904 (1978). We believe that the case as it now comes to us involves little, if any, unbroken ground in this area, and affirm the judgment of the Seventh Circuit.
Following our remand in Edelman, the United States District Court for the Northern District of Illinois, upon motion of the plaintiff, ordered the state officials to send to each
[ 440 U.S. Page 335]
member of the plaintiff class a notice informing the recipient: "[You] were denied public assistance to which you were entitled in the amount of $." Jordan v. Trainor, 405 F.Supp. 802, 809 (1975).*fn3 Enclosed with the required mailing was to be a "Notice of Appeal," which when signed and returned to the Illinois Department of Public Aid, requested a hearing on the denial of benefits. That notice stated: "The department illegally delayed in the processing of my AABD application, and, as a consequence, denied me benefits to which I was and am entitled." Id., at 810.
The Court of Appeals, en banc, found that this proposed form of notice would have been barred by the Eleventh Amendment, since it at least purported to decide that Illinois public funds should be used to satisfy the claims of plaintiff class members without the consent of the State by its appropriate officials. Jordan v. Trainor, 563 F.2d 873, 875 (1977).*fn4 The
[ 440 U.S. Page 336]
court reversed the District Court's order for this reason, but stated that on remand the District Court could order the state officials to send a "mere explanatory notice to applicants advising them that there is a state administrative procedure available if they desire to have the state determine whether or not they may be eligible for past benefits. A simple returnable notice of appeal form could also be provided." Ibid. In the court's view, such a notice would not violate the distinction set forth in Edelman between prospective relief, which is permitted by the Eleventh Amendment, and retrospective relief, which is not:
"The form of notice we envisage would not create a 'liability' against the state. Whether a liability might result would be a matter for state determination, not the federal court. No federal judgment against the state would be created. Such a notice could not be labeled equitable restitution or be considered an award of damages against the state. The defendant makes no issue out of any incidental administrative expense connected with the preparation or mailing of the notice. It has suggested in the record that the notice could be included in the regular monthly mailing. The necessary information comes from a computer. There is no indication that the administrative expense would be substantial." 563 F.2d, at 876.
Under the contemplated modified notice procedure, the court stated, members of the plaintiff class would be given no more than "they would have gathered by sitting in the courtroom or by reading and listening to news accounts had the case attracted any attention." Id., at 877-878.*fn5 Three judges dissented
[ 440 U.S. Page 337]
on the ground that the majority's revised notice form was barred by the Eleventh Amendment.
In Edelman we reaffirmed the rule that had evolved in our earlier cases that a suit in federal court by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment. 415 U.S., at 663; see Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573 (1946); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945); Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944). We rejected the notion that simply because the lower court's grant of retroactive benefits had been styled "equitable restitution" it was permissible under the Eleventh Amendment. But we also pointed out that under the landmark decision in Ex parte Young, 209 U.S. 123 (1908), a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law, even though such an injunction may have an ancillary effect on the state treasury. 415 U.S., at 667-668; see Milliken v. Bradley, 433 U.S. 267, 289 (1977); Scheuer v. Rhodes, 416 U.S. 232, 237 (1974). The distinction between that relief permissible under the doctrine of Ex parte Young and that found barred in Edelman was the difference between prospective relief on one hand and retrospective relief on the other.*fn6
[ 440 U.S. Page 338]
Petitioner state official devotes a significant part of his brief to an attack on the proposed notice which the District Court required the state officials to send. It is, however, the decision of the Court of Appeals, and not that of the District Court, which we review at the behest of petitioner. And just as petitioner insists on tilting at windmills by attacking the District Court's decision, respondent suggests that our decision in Edelman has been eviscerated by later decisions such as Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). Brief for Respondent 55 n. 37. See also Aldridge v. Turlington, No. TCA-78-830 (ND Fla., Nov. 17, 1978); but see Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470 (CA3 1978). As we have noted above, we held in Edelman that in "a [42 U. S. C.] § 1983 action . . . a federal court's remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief, Ex parte Young, supra, and may not include a retroactive award which requires the payment of funds from the state treasury, Ford Motor Co. v. Department of Treasury, supra." 415 U.S., at 677. We disagree with respondent's suggestion. This Court's holding in Monell was "limited to local government units which are not considered part of the State for Eleventh Amendment purposes," 436 U.S., at 690 n. 54, and our Eleventh Amendment decisions subsequent to Edelman and to Monell have cast no doubt on our holding in Edelman. See Alabama v. Pugh, 438 U.S. 781 (1978);
[ 440 U.S. Page 339]
the Eighth and Fourteenth Amendments similar to that made in Hutto. The Court said:
"There can be no doubt, however, that suit against the State and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such a suit. Edelman v. Jordan, 415 U.S. 651 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945); Worcester County Trust Co. v. Riley, 302 U.S. 292 (1937)." 438 U.S., at 782.*fn9
The decision in Pugh was consistent both with Monell, which was limited to "local government units," 436 U.S., at 690 n. 54, and with Fitzpatrick v. Bitzer, supra. In the latter case we found that "'threshold fact of congressional authorization,'" which had been lacking in Edelman, to be present in the express language of the congressional amendment making Title VII of the Civil Rights Act of 1964 applicable to state and local governments. 427 U.S., at 452, quoting Edelman v. Jordan, 415 U.S., at 672.
MR. JUSTICE BRENNAN in his opinion concurring in the judgment argues that our holding in Edelman that § 1983 does not abrogate the States' Eleventh Amendment immunity is "most likely incorrect." Post, at 354. To reach this conclusion
[ 440 U.S. Page 341]
he relies on "[assumptions]" drawn from the Fourteenth Amendment, post, at 355, on "occasional remarks" found in a legislative history that contains little debate on § 1 of the Civil Rights Act of 1871, 17 Stat. 13, the precursor to § 1983, post, at 358 n. 15,*fn10 on the reference to "bodies politic" in the Act of Feb. 25, 1871, 16 Stat. 431, the "Dictionary Act," post, at 355-357,*fn11 and, finally on the general language of § 1983 itself, post, at 356. But, unlike our Brother BRENNAN, we simply are unwilling to believe, on the basis of such slender "evidence," that Congress intended by the general language of § 1983 to override the traditional sovereign immunity of the States. We therefore conclude that neither the reasoning of Monell or of our Eleventh Amendment cases subsequent to Edelman, nor the additional legislative history or arguments set forth in MR. JUSTICE BRENNAN's opinion, justify a conclusion different from that which we reached in Edelman.*fn12
[ 440 U.S. Page 342]
There is no question that both the supporters and opponents of the Civil Rights Act of 1871 believed that the Act ceded to the Federal Government many important powers that previously had been considered to be within the exclusive province of the individual States.*fn13 Many of the remarks from the legislative history of the Act quoted in MR. JUSTICE BRENNAN's opinion amply demonstrate this point. Post, at 359-365. See also Monroe v. Pape, 365 U.S. 167, 173-176 (1961). But neither logic, the circumstances surrounding the adoption of the Fourteenth Amendment, nor the legislative history of the 1871 Act compels, or even warrants, a leap from this proposition to the conclusion that Congress intended by the general language of the Act to overturn the constitutionally guaranteed immunity of the several States.*fn14 In Tenney v. Brandhove, 341 U.S. 367 (1951), the Court rejected a similar
[ 440 U.S. Page 343]
attempt to interpret the word "person" in § 1983 as a withdrawal of the historic immunity of state legislators. The Court's words bear repeating here:
"Did Congress by the general language of its 1871 statute mean to overturn the tradition of legislative freedom achieved in England by Civil War and carefully preserved in the formation of State and National Governments here? Did it mean to subject legislators to civil liability for acts done within the sphere of legislative activity? . . . The limits of §§ 1 and 2 of the 1871 statute -- now §§ 43 and 47 (3) of Title 8 -- were not spelled out in debate. We cannot believe that Congress -- itself a staunch advocate of legislative freedom -- would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us." 341 U.S., at 376.
Given the importance of the States' traditional sovereign immunity, if in fact the Members of the 42d Congress believed that § 1 of the 1871 Act overrode that immunity, surely there would have been lengthy debate on this point and it would have been paraded out by the opponents of the Act along with the other evils that they thought would result from the Act. Instead, § 1 passed with only limited debate and not one Member of Congress mentioned the Eleventh Amendment or the direct financial consequences to the States of enacting § 1. We can only conclude that this silence on the matter is itself a significant indication of the legislative intent of § 1.
Our cases consistently have required a clearer showing of congressional purpose to abrogate Eleventh Amendment immunity than our Brother BRENNAN is able to marshal. In Employees v. Missouri Public Health Dept., 411 U.S. 279 (1973), the Court concluded that Congress did not lift the sovereign immunity of the States by enacting the Fair Labor Standards Act of 1938, 29 U. S. C. §§ 201-219, because of
[ 440 U.S. Page 344]
the absence of any indication "by clear language that the constitutional immunity was swept away. It is not easy to infer that Congress in legislating pursuant to the Commerce Clause, which has grown to vast proportions in its applications, desired silently to deprive the States of an immunity they have long enjoyed under another part of the Constitution." 411 U.S., at 285.*fn15 In Fitzpatrick v. Bitzer the Court found present in Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., the "threshold fact of congressional authorization" to sue the State as employer, because the statute made explicit reference to the availability of a private action against state and local governments in the event the Equal Employment Opportunity Commission or the Attorney General failed to bring suit or effect a conciliation agreement. 427 U.S., at 448 n. 1, 449 n. 2, 452; see Equal Opportunity Employment Act of 1972, 86 Stat. 105, 42 U. S. C. § 2000e-5 (f)(1); H. R. Rep. No. 92-238, pp. 17-19 (1971); S. Rep. No. 92-415, pp. 9-11 (1971); S. Conf. Rep. No. 92-681, pp. 17-18 (1972); H. R. Conf. Rep. No. 92-899, pp. 17-18 (1972). Finally, in Hutto v. Finney, decided just last Term, the Court held that in enacting the Civil Rights Attorney's Fees Awards Act of 1976, 42 U. S. C. § 1988, Congress intended to override the Eleventh Amendment immunity of the States and authorize fee awards payable by the States when their officials are sued in their official capacities. 437 U.S., at 693-694. Although the statutory language in Hutto did not separately impose liability on States in so many words,*fn16 the statute had
[ 440 U.S. Page 345]
"a history focusing directly on the question of state liability; Congress considered and firmly rejected the suggestion that States should be immune from fee awards." Id., at 698 n. 31. Also, the Court noted that the statute would have been rendered meaningless with respect to States if the Act did not impose liability for attorney's fees on the States. Ibid.; see Employees v. Missouri Public Health Dept., supra, at 285-286. By contrast, § 1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it have a history which focuses directly on the question of state liability and which shows that Congress considered and firmly decided to abrogate the Eleventh Amendment immunity of the States. Nor does our reaffirmance of Edelman render § 1983 meaningless insofar as States are concerned. See Ex parte Young, 209 U.S. 123 (1908).*fn17
[ 440 U.S. Page 346]
We turn, then, to the question which has caused disagreement between the Courts of Appeals: does the modified notice contemplated by the Seventh Circuit constitute permissible
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prospective relief or a "retroactive award which requires the payment of funds from the state treasury"? We think this relief falls on the Ex parte Young side of the Eleventh Amendment line rather than on the Edelman side.*fn18 Petitioner makes no issue of the incidental administrative expense connected with preparing and mailing the notice.*fn19 Instead, he argues that giving the proposed notice will lead inexorably to the payment of state funds for retroactive benefits and therefore it, in effect, amounts to a monetary award. But the chain of causation which petitioner seeks to establish is by no means unbroken; it contains numerous missing links, which can be supplied, if at all, only by the State and members of the plaintiff class and not by a federal court. The notice approved by the Court of Appeals simply apprises plaintiff class members of the existence of whatever administrative
[ 440 U.S. Page 348]
procedures may already be available under state law by which they may receive a determination of eligibility for past benefits. The notice of appeal, we are told, is virtually identical to the notice sent by the Department of Public Aid in every case of a denial or reduction of benefits. The mere sending of that notice does not trigger the state administrative machinery. Whether a recipient of notice decides to take advantage of those available state procedures is left completely to the discretion of that particular class member; the federal court plays no role in that decision. And whether or not the class member will receive retroactive benefits rests entirely with the State, its agencies, courts, and legislature, not with the federal court.*fn20
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The notice approved by the Court of Appeals, unlike that ordered by the District Court, is more properly viewed as ancillary to the prospective relief already ordered by the court. See Milliken v. Bradley, 433 U.S., at 290. The notice in effect simply informs class members that their federal suit is at an end, that the federal court can provide them with no further relief, and that there are existing state administrative procedures which they may wish to pursue. Petitioner raises no objection to the expense of preparing or sending it. The class members are "given no more . . . than what they would have gathered by sitting in the courtroom." Jordan v. Trainor, 563 F.2d, at 877-878. The judgment of the Court of Appeals is therefore
563 F.2d 873, affirmed.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins as to Parts I, II, and III, concurring in the judgment.
For the reasons set forth in my dissent in Edelman v. Jordan, 415 U.S. 651, 687 (1974), I concur in the judgment of the Court.*fn1
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It is deeply disturbing, however, that the Court should engage in today's gratuitous departure from customary judicial practice and reach out to decide an issue unnecessary to its holding. The Court today correctly rules that the explanatory notice approved by the Court of Appeals below is "properly viewed as ancillary to . . . prospective relief." Ante, at 349. This is sufficient to sustain the Court's holding that such notice is not barred by the Eleventh Amendment. But the Court goes on to conclude, in what is patently dicta, that a State is not a "person" for purposes of 42 U. S. C. § 1983, Rev. Stat. § 1979.*fn2
This conclusion is significant because, only three Terms ago, Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), held that "Congress may, in determining what is 'appropriate legislation' for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts." Id., at 456. If a State were a "person" for purposes of § 1983, therefore, its immunity under the Eleventh
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Amendment would be abrogated by the statute.*fn3 Edelman v. Jordan, supra, had held that § 1983 did not override state immunity, for the reason, as the Court later stated in Fitzpatrick, that "[the] Civil Rights Act of 1871, 42 U. S. C. § 1983, had been held in Monroe v. Pape, 365 U.S. 167, 187-191 (1961), to exclude cities and other municipal corporations from its ambit; that being the case, it could not have been intended to include States as parties defendant." 427 U.S., at 452.*fn4 The premise of this reasoning was undercut last Term, however, when Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), upon re-examination of the legislative history of § 1983, held that a municipality was indeed a "person" for purposes of that statute.*fn5 As I stated in my concurrence in Hutto v. Finney, 437 U.S. 678, 703 (1978), Monell made it "surely at least an open question whether § 1983 properly construed does not make the States liable for relief of all kinds, notwithstanding the Eleventh Amendment."
The Court's dicta today would close that open question on the basis of Alabama v. Pugh, 438 U.S. 781 (1978). In that case the State of Alabama had been named as a party defendant in a suit alleging unconstitutional conditions of confinement.
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The question presented was "[whether] the mandatory injunction issued against the State of Alabama and the Alabama Board of Corrections violates the State's Eleventh Amendment immunity or exceeds the jurisdiction granted federal courts by 42 U. S. C. § 1983." Id., at 782-783, n. 2. The Court held that the State should not have been named as a party defendant.
Pugh, however, does not stand for the proposition that a State is not a "person" for purposes of § 1983. Not only does the Court's opinion in that case fail even to mention § 1983, it frames the issue addressed as whether Alabama had "consented to the filing of such a suit." 438 U.S., at 782. Since Alabama's consent would have been irrelevant if Congress had intended States to be encompassed within the reach of § 1983, the Court apparently decided the first half of the question presented -- "[whether] the mandatory injunction issued against the State of Alabama . . . violates the State's Eleventh Amendment immunity" -- without considering or deciding the second half -- whether the mandatory injunction "exceeds the jurisdiction granted federal courts by 42 U. S. C. § 1983."*fn6
This parsing of Pugh is strengthened by a consideration of the circumstances surrounding that decision. Pugh, a short per curiam, was issued on the last day of the Term without the assistance of briefs on the merits or argument. Alabama's petition for certiorari and respondents' brief in opposition were filed on February 6, 1978, and April 6, 1978, respectively, months before Monell was announced. They were thus necessarily without the benefit of Monell 's major re-evaluation of
[ 440 U.S. Page 353]
the legislative history of § 1983.*fn7 Respondents did not even raise the possibility that Alabama might be a "person" for purposes of § 1983.*fn8 Since the issue is not, as the Court now
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phrases it, whether the Members of this Court were then aware of Monell, ante, at 340 n. 9, but rather whether they had before them briefs and arguments detailing the implications of Monell for the question of whether a State is a "person" for purposes of § 1983, it is not anomalous that the Court's opinion in Pugh failed to address or consider this issue.
The Court's reliance on Pugh is particularly significant because the question whether a State is a "person" for purposes of § 1983 is neither briefed nor argued by the parties in the instant case. Indeed, petitioner states flatly that "the en banc decision of the Seventh Circuit does not rest upon a conclusion that the term 'person' for purposes of § 1983 includes sovereign states, as opposed to state officials, within its ambit. That issue is not the issue before this Court on Petitioner's Writ for Certiorari." Reply Brief for Petitioner 14. Respondent concurs, stating that "it is unnecessary in this case to confront directly the far-reaching question of whether Congress intended in § 1983 to provide for relief directly against States, as it did against municipalities." Brief for Respondent 55 n. 37.
Thus, the Court today decides a question of major significance without ever having had the assistance of a considered presentation of the issue, either in briefs or in arguments. The result is pure judicial fiat.
This fiat is particularly disturbing because it is most likely incorrect. Section 1983 was originally enacted as § 1 of the Civil Rights Act of 1871. The Act was enacted for the purpose of enforcing the provisions of the Fourteenth Amendment.*fn9 That Amendment exemplifies the "vast transformation" worked on the structure of federalism in this Nation by the Civil War. Mitchum v. Foster, 407 U.S. 225, 242 (1972).
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The prohibitions of that Amendment "are directed to the States . . . . They have reference to actions of the political body denominated a State, by whatever instruments or in whatever modes that action may be taken." Ex parte Virginia, 100 U.S. 339, 346-347 (1880).*fn10 The fifth section of the Amendment provides Congress with the power to enforce these prohibitions "by appropriate legislation." "Congress, by virtue of the fifth section . . . , may enforce the prohibitions whenever they are disregarded by either the Legislative, the Executive, or the Judicial Department of the State. The mode of enforcement is left to its discretion." Virginia v. Rives, 100 U.S. 313, 318 (1880).
The prohibitions of the Fourteenth Amendment and Congress' power of enforcement are thus directed at the States themselves, not merely at state officers. It is logical to assume, therefore, that § 1983, in effectuating the provisions of the Amendment by "[interposing] the federal courts between the States and the people, as guardians of the people's federal rights," Mitchum v. Foster, supra, at 242, is also addressed to the States themselves. Certainly Congress made this intent plain enough on the face of the statute.
Section 1 of the Civil Rights Act of 1871 created a federal cause of action against "any person" who, "under color of any law, statute, ordinance, regulation, custom, or usage of any State," deprived another of "any rights, privileges, or immunities secured by the Constitution of the United States." On
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February 25, 1871, less than two months before the enactment of the Civil Rights Act, Congress provided that "in all acts hereafter passed . . . the word 'person' may extend and be applied to bodies politic and corporate . . . unless the context shows that such words were intended to be used in a more limited sense."*fn11 § 2, 16 Stat. 431. Monell, held that "[since] there is nothing in the 'context' of the Civil Rights Act calling for a restricted interpretation of the word 'person,' the language of that section should prima facie be construed to include 'bodies politic' among the entities that could be sued." 436 U.S., at 689-690, n. 53. Even the Court's opinion today does not dispute the fact that in 1871 the phrase "bodies politic and corporate" would certainly have referred to the States.*fn12 See Heim v. McCall, 239 U.S. 175, 188 (1915); McPherson v. Blacker, 146 U.S. 1, 24 (1892); Poindexter
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v. Greenhow, 114 U.S. 270, 288 (1885); Cotton v. United States, 11 How. 229, 231 (1851); Chisholm v. Georgia, 2 Dall. 419, 447 (Iredell, J.), 468 (Cushing, J.) (1793); Utah State Building Comm'n v. Great American Indemnity Co., 105 Utah 11, 16, 140 P. 2d 763, 766 (1943); Board of Comm'rs of Hamilton County v. Noyes, 3 Am. L. Rec. 745, 748 (Super. Ct. Cincinnati 1874); 1 J. Wilson, Works 305 (1804); cf. Keith v. Clark, 97 U.S. 454, 460-461 (1878); Munn v. Illinois, 94 U.S. 113, 124 (1877); Georgia v. Stanton, 6 Wall. 50, 76-77 (1868); Butler v. Pennsylvania, 10 How. 402, 416-417 (1851); Penhallow v. Doane's Administrators, 3 Dall. 54, 92-93 (1795) (Iredell, J.); Mass. Const., Preamble. Indeed, during the very debates surrounding the enactment of the Civil Rights Act, States were referred to as bodies politic and corporate. See, e. g., Cong. Globe, 42d Cong., 1st Sess., 661-662 (1871) (hereinafter Globe) (Sen. Vickers) ("What is a State? Is it not a body politic and corporate?"); cf. id., at 696 (Sen. Edmunds). Thus the expressed intent of Congress, manifested virtually simultaneously with the enactment of the Civil Rights Act of 1871, was that the States themselves, as bodies corporate and politic, should be embraced by the term "person" in § 1 of that Act.
The legislative history of the Civil Rights Act of 1871 reinforces this conclusion. The Act was originally reported to the House as H. R. 320 by Representative Shellabarger. At that time Representative Shellabarger stated that the bill was meant to be remedial "in aid of the preservation of human liberty and human rights," and thus to be "liberally and beneficently construed."*fn13 Globe App. 68. The bill
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was meant to give "[full] force and effect . . . to section five" of the Fourteenth Amendment, Globe 322 (Rep. Stoughton),*fn14 see id., at 800 (Rep. Perry); Monell, 436 U.S., at 685 n. 45, and therefore, like the prohibitions of that Amendment, to be addressed against the States themselves.*fn15 See, e. g.,
[ 440 U.S. Page 359]
Globe 481-482 (Rep. Wilson); 696 (Sen. Edmunds).*fn16 It was, as Representative Kerr who opposed the bill instantly recognized, "against the rights of the States of this Union."
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Globe App. 46. Representative Shellabarger, in introducing the bill, made this explicit, stressing the need for "necessary affirmative legislation to enforce the personal rights which the
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Constitution guaranties, as between persons in the State and the State itself." Id., at 70. See, e. g., id., at 80 (Rep. Perry); Globe 375 (Rep. Lowe); 481-482 (Rep. Wilson); 568 (Sen. Edmunds). Representative Bingham elaborated the point:
"The powers of the States have been limited and the powers of Congress extended by the last three amendments of the Constitution. These last amendments -- thirteen, fourteen, and fifteen -- do, in my judgment, vest in Congress a power to protect the rights of citizens against States, and individuals in States, never before granted.
"Why not in advance provide against the denial of rights by States, whether the denial be acts of omission or commission, as well as against the unlawful acts of combinations and conspiracies against the rights of the people?
"The States never had the right, though they had the power, to inflict wrongs upon free citizens by a denial of
[ 440 U.S. Page 362]
the full protection of the laws; because all State officials are by the Constitution required to be bound by oath or affirmation to support the Constitution. As I have already said, the States did deny to citizens the equal protection of the laws, they did deny the rights of citizens under the Constitution, and except to the extent of the express limitations upon the States, as I have shown, the citizen had no remedy. . . . They took property without compensation, and he had no remedy. They restricted the freedom of the press, and he had no remedy. They restricted the freedom of speech, and he had no remedy. They restricted the rights of conscience, and he had no remedy. They bought and sold men who had no remedy. Who dare say, now that the Constitution has been amended, that the nation cannot by law provide against all such abuses and denials of right as these in States and by States, or combination of persons?" Globe App. 83, 85 (emphasis added).*fn17
H. R. 320 was necessary, as Senator Edmunds stated, to protect citizens "in the rights that the Constitution gave
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them . . . against any assault by any State or under any State or through the neglect of any State . . . . ," Globe 697, and by a "State," Edmunds meant "a corporation . . . an organized thing . . . manifested, represented entirely, and fully in respect to every one of its functions, by that department of its government on which the execution of those functions is respectively devolved." Id., at 696. See id., at 607-608 (Sen. Pool).
It was common ground, therefore, that, as Representative Wilson argued, the prohibitions of the Fourteenth Amendment were directed against the State, meaning "the government of the State . . . the legislative, the judicial, and the executive"; that the fifth section of the Amendment had given Congress the power to enforce it by "appropriate legislation," meaning "legislation adequate to meet the difficulties to be encountered, to suppress the wrongs existing, to furnish remedies and inflict penalties adequate to the suppression of all infractions of the rights of the citizens"; and that H. R. 320 was such legislation. Globe 481-483. Those who opposed the bill were fully aware of the major implications of such a statute. Representative Blair, for example, rested his opposition on the fact that the bill, including § 1, was aimed at the States in their "corporate and legislative capacity":
"The inhibitions in the [Thirteenth, Fourteenth, and Fifteenth] amendments against the United States and the States are against them in their corporate and legislative capacities, for the thing or acts prohibited can alone be performed by them in their corporate or legislative capacities.
"As the States have the power to violate them and not individuals, we must presume that the legislation provided for is against the States in their corporate and legislative capacity or character and those acting under their laws, and not against the individuals, as such, of the
[ 440 U.S. Page 364]
States. I am sustained in this view of the case by the tenth section of the first article of the Constitution of the United States. In it are a number of inhibitions against the States, which it is evident are against them in their corporate and legislative capacity; and to which I respectfully call the attention of the gentlemen who favor this bill." Globe App. 208.*fn18
See id., at 209. This conclusion produced an anguished outcry from those committed to unrevised notions of state sovereignty. Representative Arthur, for example, complained that § 1
"reaches out and draws within the despotic circle of central power all the domestic, internal, and local institutions and offices of the States, and then asserts over them an arbitrary and paramount control as of the rights, privileges, and immunities secured and protected, in a peculiar sense, by the United States in the citizens thereof. Having done this, having swallowed up the States and their institutions, tribunals, and functions, it leaves them the shadow of what they once were." Globe 365.
The answer to such arguments was, of course, that the Civil War had irrevocably and profoundly altered the balance of power between Federal and State Governments:
"If any one thinks it is going too far to give the United States this national supervisory power to protect the fundamental rights of citizens of the United States, I do not agree with him. It is not wise to permit our devotion to the reserved rights of the States to be carried so far as to deprive the citizen of his privileges and immunities.
"We must remember that it was State rights, perverted I admit from their true significance, that arrayed themselves
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against the nation and threatened its existence. We must remember that it was for the very purpose of placing in the General Government a check upon this arrogance of some of the States that the fourteenth amendment was adopted by the people. We must remember that, if the legislation we propose does trench upon what have been, before the fourteenth amendment, considered the rights of the States, it is in behalf and for the protection of immunities and privileges clearly given by the Constitution; and that Federal laws and Federal rights must be protected whether domestic laws or their administration are interfered with or not, because the Constitution and the laws made in pursuance thereof are the supreme law of the land. We are not making a constitution, we are enacting a law, and its virtue can be tested without peril by the experiment." Id., at 502 (Sen. Frelinghuysen).
In the reconstructed union, national rights would be guaranteed federal protection even from the States themselves.
The plain words of § 1983, its legislative history and historical context, all evidence that Congress intended States to be embraced within its remedial cause of action. The Court today pronounces its conclusion in dicta by avoiding such evidence. It chooses to hear, in the eloquent and pointed legislative history of § 1983, only "silence." Such silence is in fact deafening to those who have ears to listen. But without reason to reach the question, without briefs, without argument, relying on a precedent that was equally ill-informed and in any event not controlling, the Court resolutely opines that a State is not a "person" for purposes of § 1983. The 42d Congress, of course, can no longer pronounce its meaning with unavoidable clarity. Fitzpatrick, however, cedes to the
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present Congress the power to rectify this erroneous misinterpretation. It need only make its intention plain.
MR. JUSTICE MARSHALL, concurring in the judgment.
I concur in the judgment of the Court, for the reasons expressed in my dissenting opinion in Edelman v. Jordan, 415 U.S. 651, 688 (1974), and my concurring opinion in Employees v. Missouri Public Health Dept., 411 U.S. 279, 287 (1973). Moreover, I agree that an affirmance here follows logically from the Court's decision in Edelman, because the explanatory notice approved by the Court of Appeals clearly is ancillary to prospective relief. But given that basis for deciding the present case, it is entirely unnecessary for the Court to address the question whether a State is a "person" within the meaning of § 1983. Accordingly, I join Parts I, II, and III of my Brother BRENNAN's opinion.
* Theodore L. Sendak, Attorney General, William G. Mundy, Deputy Attorney General, and Donald P. Bogard filed a brief for the State of Indiana as amicus curiae urging reversal.