William J. Brennan

“ In § 1983 and the Act of Feb. 25, 1871, we have a statute that on its face applies to state defendants, but now MR. JUSTICE POWELL tells us that this is not enough because there is still an absence of "congressional purpose in 1871 to abrogate the protections of the Eleventh Amendment." Post, at 709 n. 6. I suppose that this means either that no statute can meet the Eleventh Amendment clear-statement test or, alternatively, that MR. JUSTICE POWELL has some undisclosed rule as to when legislative history may be taken into account that works only to defeat state liability. ”

“ In Edelman, we summarized the rule of our cases as follows: The "question of waiver or consent under the Eleventh Amendment was found in [our] cases to turn on whether Congress had intended to abrogate the immunity in question, and whether the State by its participation in [a regulated activity] authorized by Congress had in effect consented to the abrogation of [Eleventh Amendment] immunity." 415 U.S., at 672. At the very least, such consent could not be found unless Congress had authorized suits against "a class of defendants which literally includes States." ”

“ Given our holding in Monell, the essential premise of our Edelman holding—that no statute involved in Edelman authorized suit against "a class of defendants which literally includes States," 415 U.S., at 672—would clearly appear to be no longer true. Moreover, given Fitzpatrick's holding that Congress has plenary power to make States liable in damages when it acts pursuant to § 5 of the Fourteenth Amendment, it is 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. ”