Amicus Curiae Brief — Frederick L. Allen, et al., Petitioners v. Roy A. Cooper, III, Governor of North Carolina, et al.

Supreme Court briefAug 13, 2019

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No. 18-877

IN THE

Supreme Court of the United States

FREDERICK L. ALLEN and

NAUTILUS PRODUCTIONS, LLC,

Petitioners,

ROY A. COOPER, III,

as Governor of North Carolina, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF PUBLIC LAW SCHOLARS AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

CHRIS DOVE

LOCKE LORD, LLP

JP Morgan Chase Tower

600 Travis, Suite 2800

Houston, TX 77002

(713) 226-1314

cdove@lockelord.com

ERNEST A. YOUNG

Counsel of Record

3208 Fox Terrace Dr.

Apex, NC 27502

(919) 360-7718

young@law.duke.edu

Counsel for Amici Curiae

August 13, 2019

QUESTION PRESENTED

Whether Congress validly abrogated state sovereign

immunity via the Copyright Remedy Clarification Act,

Pub. L. No. 101-553, 104 Stat. 2749 (1990) (“CRCA”),

in providing remedies for authors of original

expression whose federal copyrights are infringed by

States.

TABLE OF CONTENTS

QUESTION PRESENTED .................................................. i

TABLE OF AUTHORITIES .............................................. iv

INTEREST OF AMICI CURIAE ......................................... 1

SUMMARY OF ARGUMENT ............................................. 2

ARGUMENT ................................................................... 3

I. This Court’s decision in Seminole Tribe should not

be extended. ........................................................... 3

A. Seminole’s holding did not rest on the

constitutional text. ..................................... 4

B. Seminole’s reasoning was inconsistent with

the founding generation’s treatment of

common law doctrines. ............................... 7

C. Seminole’s reasoning was inconsistent with

the founding generation’s view of state

sovereignty. ............................................... 14

D. This Court can resolve this case without

considering whether Seminole should be

overruled. .................................................. 17

II. Congress validly abrogated North Carolina’s

sovereign immunity in the CRCA....................... 18

A. North Carolina is subject to damages

liability in this case under this Court’s

holding in United States v. Georgia. ........ 19

B. Congress’s

prophylactic

statutory

abrogation of state sovereign immunity in

the CRCA should be upheld. .................... 23

iii

1. Congress need not explicitly invoke

Section 5 in order to abrogate state

immunities under the Fourteenth

Amendment. ........................................ 24

2. Congress need not show a pattern of past

violations at the time that it

legislates. ............................................. 27

Conclusion................................................................. 33

TABLE OF AUTHORITIES

Cases

Page(s)

Alden v. Maine,

527 U.S. 706 (1999) ................................................ 5

Atascadero State Hospital v. Scanlon,

473 U.S. 234 (1985) .................................... 8, 24, 26

Board of Trustees of the University of

Alabama v. Garrett,

531 U.S. 356 (2001) ........................................ 18, 20

Central Virginia Community College v. Katz,

546 U.S. 356 (2006) ................................. 2, 3, 22-23

Chavez v. Arte Publico Press,

204 F.3d 601 (5th Cir. 2000) ..................... 28, 31-32

Chisholm v. Georgia,

2 U.S. (2 Dall.) 419 (1793) ............................... 15-16

City of Boerne v. Flores, 521 U.S. 507

(1997) ......................................................... 26, 28-29

EEOC v. Wyoming,

460 U.S. 226 (1983) .............................................. 25

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976) ........................................ 14, 17

Florida Prepaid Postsecondary Education

Expense Board v. College Savings Bank,

527 U.S. 627 (1999) ....................... 21-22, 29, 31, 32

Franchise Tax Board of California v. Hyatt,

139 S. Ct. 1485 (2019) ................................... 8-9, 16

Fullilove v. Klutznick, 448 U.S. 448 (1980) .............. 25

Gregory v. Ashcroft,

501 U.S. 452 (1991) ........................................ 16, 26

Hale v. King,

642 F.3d 492 (5th Cir. 2011) ................................ 21

Hans v. Louisiana,

134 U.S. 1 (1890) .............................................. 6, 12

Katzenbach v. Morgan,

384 U.S. 641 (1966) .............................................. 14

Kimel v. Florida Board of Regents, 528 U.S.

62 (2000) .......................................................... 25-26

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ........................ 15, 30

Monaco v. Mississippi,

292 U.S. 313 (1934) ................................................ 6

National Association of Boards of Pharmacy

v. Board of Regents of the University

System of Georgia, No. 3:07-CV-084

(CDL) 2008 WL 1805439 (M.D. Ga. 2008) .......... 21

The Nereide, 13 U.S. (9 Cranch) 388 (1815) ............. 12

Olsen v. Nebraska ex rel. Western Reference

& Bond Ass’n,

313 U.S. 236 (1941) .............................................. 31

Pennsylvania v. Union Gas Co.,

491 U.S. 1 (1989) ........................................... 7-9, 26

Rice v. Santa Fe Elevator Corp.,

331 U.S. 218 (1947) .............................................. 16

Seminole Tribe of Florida v. Florida,

517 U.S. 44 (1996) .........................................passim

Sosa v. Alvarez-Machain,

542 U.S. 692 (2004) .............................................. 12

Tennessee v. Lane,

541 U.S. 509 (2004) .............................................. 20

Turner Broadcasting System, Inc. v. FCC,

520 U.S. 180 (1997) .............................................. 30

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995) .............................................. 14

United States v. Georgia,

546 U.S. 151 (2006) .......................................passim

United States v. Morrison,

529 U.S. 598 (2000) .............................................. 30

United States v. Raines,

362 U.S. 17 (1960) ................................................ 22

Van Ness v. Pacard,

27 U.S. (2 Pet.) 137 (1829) ..................................... 9

Woods v. Miller,

333 US. 13 (1948) ........................................... 25, 27

vii

Federal Constitution, Statutes and

Hearings

U.S. Const. art. III, § 2 ................................................ 4

amend. XI ............................................................ 4-5

amend. XIV ....................................................passim

42 U.S.C. § 12132 ...................................................... 19

42 U.S.C. § 12202 ...................................................... 19

H.R. Rep. 101-282(I) (Oct. 13, 1989) ......................... 26

Intellectual Property Protection Restoration

Act of 2003: Hearing on H.R. 2344 Before

the Subcomm. on Courts, the Internet,

and Intellectual Property, 108th Cong.

90-91 (2003) .................................................... 26, 31

State Constitutions and Statutes

N.C. Gen. Stat. § 121-25(b) ....................................... 22

N.J. Const. art. XXII (1776) ........................................ 9

Other Authorities

Akhil Reed Amar, Of Sovereignty and

Federalism, 96 YALE L. J. 1425 (1987) ........... 14-16

William Baude, Sovereign Immunity and the

Constitutional Text, 103 VA. L. REV. 1

(2017) ........................................................ 8-9, 12-13

viii

A. Christopher Bryant & Timothy J.

Simeone, Remanding to Congress: The

Supreme Court’s New “On the Record”

Constitutional Review of Federal Statutes,

86 CORNELL L. REV. 329 (2001) ............................ 32

William A. Fletcher, The Diversity

Explanation of the Eleventh Amendment:

A Reply to Critics, 56 U CHI. L. REV. 1261

(1989) ...................................................................... 5

William A. Fletcher, A Historical

Interpretation of the Eleventh

Amendment: A Narrow Construction of an

Affirmative Grant of Jurisdiction Rather

than a Prohibition against Jurisdiction,

35 STAN. L. REV. 1033 (1982) .............................. 4-5

John J. Gibbons, The Eleventh Amendment

and State Sovereign Immunity: A

Reinterpretation, 83 COLUM. L. REV. 1889

(1983) ...................................................................... 5

Ford W. Hall, The Common Law: An Account

of Its Reception in the United States, 4

VAND. L. REV. 791 (1951) ....................................... 9

Vicki C. Jackson, The Supreme Court, the

Eleventh Amendment, and State

Sovereign Immunity, 98 YALE L. J. 1

(1988) ...................................................................... 5

Stewart Jay, Origins of Federal Common

Law: Part One, 133 U. PA. L. REV. 1003

(1985) .................................................................... 11

Stewart Jay, Origins of Federal Common

Law: Part Two, 133 U. PA. L. REV. 1231

(1985) .................................................................... 10

Harry W. Jones, The Common Law in the

United States: English Themes and

American Variations, in POLITICAL

SEPARATION AND LEGAL CONTINUITY

(Harry Jones ed. 1976) .................................... 10-11

James Madison, WRITINGS (Jack Rakove ed.

1999) (1800) .................................................... 11, 13

John F. Manning, The Eleventh Amendment

and the Reading of Precise Constitutional

Texts, 113 YALE L. J. 1663 (2004) ....................... 6-7

Lawrence C. Marshall, Fighting the Words of

the Eleventh Amendment, 102 HARV. L.

REV. 1342 (1989)..................................................... 5

George Mason, Objections to This

Constitution of Government, in 2 THE

RECORDS OF THE FEDERAL CONVENTION OF

1787 (Max Farrand ed. 1911) .............................. 10

Michael W. McConnell, Institutions and

Interpretation: A Critique of City of

Boerne v. Flores, 111 HARV. L. REV. 153

(1997) .................................................................... 14

PENNSYLVANIA AND THE FEDERAL

CONSTITUTION, 1787-1788 (John Bach

McMaster & Frederick D. Stone eds.,

1888) ................................................................ 14-15

THEODORE F.T. PLUCKNETT, A CONCISE

HISTORY OF THE COMMON LAW (5th ed.

1956) ..................................................................... 10

Michael B. Rappaport, Reconciling

Textualism and Federalism: The Proper

Textual Basis of the Supreme Court’s

Tenth and Eleventh Amendment

Decisions, 93 NW. U. L. REV. 819 (1999) ................ 7

Steven E. Sachs, Constitutional Backdrops,

80 GEO. WASH. L. REV. 1813 (2012) ......... 7-8, 12-13

David L. Shapiro, Continuity and Change in

Statutory Interpretation, 67 N.Y.U. L. REV.

921 (1992) ............................................................... 8

GORDON S. WOOD, THE CREATION OF THE

AMERICAN REPUBLIC, 1776-1787 (1969) ................. 9

Ernest A. Young, Alden v. Maine and the

Jurisprudence of Structure, 41 WM. &

MARY L. REV. 1601 (2000) ...................................... 7

Ernest A. Young, Is the Sky Falling on the

Federal Government? State Sovereign

Immunity, the Section Five Power, and

the Federal Balance, 81 TEXAS L. REV.

1551 (2003) ........................................................... 28

Ernest A. Young, Its Hour Come Round at

Last? State Sovereign Immunity and the

Great State Debt Crisis of the Early

Twenty-First Century, 35 HARV. J. L. &

PUB. POL’Y 593 (2012) .......................................... 23

Ernest A. Young, The Rehnquist Court’s Two

Federalisms, 83 TEXAS L. REV. 1 (2004) ................ 8

Ernest A. Young, Two Cheers for Process

Federalism, 46 VILL. L. REV. 1349 (2001)............ 25

INTEREST OF AMICI CURIAE

Amici are scholars of constitutional law, federal

jurisdiction, and civil rights law who have taught and

written about the Eleventh Amendment and state

sovereign immunity for many years. We present this

brief in an effort to make our scholarship and

experience useful to the Court.1

Samuel Bagenstos is the Frank G. Millard

Professor of Law at the University of Michigan, where

he teaches and writes about constitutional law and

civil rights. Professor Bagenstos successfully briefed

and argued United States v. Georgia, 546 U.S. 151

(2006) in this Court.

Neil S. Siegel is the David W. Ichel Professor of

Law and Professor of Political Science at Duke

University, where he teaches and writes about

constitutional law and federal jurisdiction.

Ernest Young is the Alston and Bird Professor of

Law at Duke University, where he teaches

Constitutional Law and Federal Courts. He has

written extensively on this Court’s sovereign

immunity jurisprudence, including how that

jurisprudence bears on federal intellectual property

laws.

All parties have consented to the filing of this brief.

Pursuant to Rule 37.6, Amici state that no counsel for any

party authored this brief in whole or in part, and no person

or entity, other than Amici or their counsel, has made any

monetary contribution to the preparation or submission of

this brief.

SUMMARY OF ARGUMENT

This brief suggests a path for resolving this

important case that is faithful to the Constitution’s

text and history, minimizes disruption to this Court’s

state sovereign immunity jurisprudence, and

maximizes the chance for consensus on the Court. The

key is this Court’s unanimous decision, authored by

Justice Antonin Scalia, in United States v. Georgia,

546 U.S. 151 (2006). Georgia held that federal statutes

abrogating state sovereign immunity are always valid

when invoked by a plaintiff who can establish not only

a statutory violation but also a constitutional one—

whether or not the statute would also be valid if

prophylactically applied to state conduct that is not

unconstitutional. This is the narrowest form of

abrogation under Section 5 of the Fourteenth

Amendment. It implements the special concern for

constitutional rights demonstrated by the Framers of

both the original Constitution and the Eleventh and

Fourteenth Amendments. And it follows the teaching

of unanimous Courts in both Georgia and Fitzpatrick

v. Bitzer, 427 U.S. 445 (1976), which recognized

Congress’s powers to enforce those rights through

damages remedies even against nonconsenting states.

In presenting this argument, amici do not wish to

undermine or disparage the arguments pressed by

Petitioners and other amici that Congress’s

enumerated power to protect copyrights entails a

waiver of state immunities in the plan of the

Convention. Amici agree that copyright is a strong

candidate for such a waiver under this Court’s

decision in Central Virginia Community College v.

Katz, 546 U.S. 356 (2006). But that argument has been

ably presented by Petitioners and others, and amici

believe they can more usefully assist the Court by

offering an alternative ground. Petitioners have

compellingly alleged that North Carolina’s conduct

violated both the Copyright Act and the Fourteenth

Amendment’s Due Process Clause. Under Georgia,

that is enough to decide this appeal.

But whatever this Court does, it should not extend

the reach of its decision in Seminole Tribe of Florida

v. Florida, 517 U.S. 44 (1996). Seminole’s holding—

that Congress generally may not abrogate state

immunity when acting pursuant to its Article I

powers—was unfaithful to the text of Article III or the

Eleventh Amendment, and it overlooked crucial

elements of the relevant history. This case does not

require consideration whether Seminole should be

overruled, because the CRCA satisfies both Katz’s

conditions for waiver and the criteria for abrogation

under Section 5. But this Court should not extend

Seminole by applying it to an important federal

statute, narrowing Katz’s waiver doctrine, or

restricting the scope of permissible abrogation under

Section 5.

ARGUMENT

I. This Court’s decision in Seminole Tribe

should not be extended.

In Seminole Tribe v. Florida, this Court held

that Congress generally cannot abrogate the sovereign

immunity of the states when it acts pursuant to its

Article I powers. 517 U.S. at 72-73. Amici believe that

this holding rested on an incorrect reading of the

relevant text and history. Whether or not the costs of

that decision overcome the presumption of stare

decisis, however, is a difficult question that this Court

need not consider in order to resolve this case. We

canvass Seminole’s missteps in order to underscore

the importance of not extending its holding.

A. Seminole’s holding did not rest on the

constitutional text.

Article III extends the federal courts’

jurisdiction to “all cases, in Law and Equity, arising

under this Constitution, the laws of the United States,

and Treaties made, or which shall be made, under

their Authority.” U.S. Const. art. III, § 2. This

language generally authorizes federal courts to hear

federal statutory claims. Article III says nothing about

sovereign immunity; it neither creates it nor overrides

it, if it can be derived from some other source. The only

textual source for a constitutional doctrine of state

sovereign immunity is the Eleventh Amendment.

The Eleventh Amendment provides that “[t]he

Judicial power of the United States shall not be

construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.” U.S. Const. amend. XI.

Most scholars have read this language to prohibit

federal courts from hearing suits against states only

when jurisdiction rests on diversity of citizenship;

effectively, the amendment repeals the Citizen-State

Diversity Clauses of Article III when the state is an

unwilling defendant.2 And this Court has

2 See, e.g., William A. Fletcher, A Historical Interpretation

of the Eleventh Amendment: A Narrow Construction of an

unanimously agreed with that reading. The Seminole

majority acknowledged that “the text of the

Amendment would appear to restrict only the Article

III diversity jurisdiction,” 517 U.S. at 54, and the

dissenters affirmed that “[t]he history and structure of

the Eleventh Amendment convincingly show that it

reaches only to suits subject to federal jurisdiction

exclusively under the Citizen–State Diversity

Clauses,” id. at 110 (Souter, J., dissenting). Writing

for the majority in Alden v. Maine, 527 U.S. 706

(1999), Justice Kennedy candidly acknowledged that

the phrase “Eleventh Amendment immunity” is

“something of a misnomer, for the sovereign immunity

of the States neither derives from, nor is limited by,

the terms of the Eleventh Amendment,” id. at 713.

Affirmative Grant of Jurisdiction Rather than a Prohibition

against Jurisdiction, 35 STAN. L. REV. 1033 (1982); John J.

Gibbons, The Eleventh Amendment and State Sovereign

Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889

(1983); Vicki C. Jackson, The Supreme Court, the Eleventh

Amendment, and State Sovereign Immunity, 98 YALE L. J.

1 (1988). The most significant scholarly disagreement

about the text concerns whether it bars all cases in which

diversity is present, or only those in which diversity is the

sole basis of jurisdiction. Compare Lawrence C. Marshall,

Fighting the Words of the Eleventh Amendment, 102 HARV.

L. REV. 1342 (1989) (arguing that the “plain meaning”

forbids jurisdiction over even federal question cases if the

plaintiff is an out-of-stater), with William A. Fletcher, The

Diversity Explanation of the Eleventh Amendment: A Reply

to Critics, 56 U CHI. L. REV. 1261 (1989) (defending the

diversity reading). That difference is irrelevant to this case

because Petitioners are citizens of North Carolina.

The state sovereign immunity doctrine has existed

apart from the constitutional text at least since Hans

v. Louisiana, 134 U.S. 1 (1890). In Monaco v.

Mississippi, 292 U.S. 313 (1934), for instance, this

Court said that “[m]anifestly, we cannot rest with a

mere literal application of the words of § 2 of Article

III, or assume that the letter of the Eleventh

Amendment exhausts the restrictions upon suits

against nonconsenting States. Behind the words of the

constitutional provisions are postulates which limit

and control,” id. at 321. But until Seminole Tribe,

those penumbral “postulates” had never been allowed

to do what only a constitutional principle can do:

trump the clear mandate of a duly-enacted federal

statute that explicitly overrode state sovereign

immunity.

Seminole’s

reach

beyond

the

Eleventh

Amendment’s text is particularly troubling given that

text’s highly specific nature. As John Manning has

documented, “the Eleventh Amendment appears to

have offered a carefully circumscribed answer to the

larger question of how much sovereign immunity

states should possess against the exercise of Article III

jurisdiction.”3 Because the amendment process is

designed to allow electoral minorities to force

compromise, Dean Manning points out, interpreters

“must be sensitive to the possibility that the

Amendment’s precise enumeration of exceptions to the

grant of Article III power carries a negative

John F. Manning, The Eleventh Amendment and the

Reading of Precise Constitutional Texts, 113 YALE L. J.

1663, 1748 (2004).

implication, the product of an apparent decision to go

so far and no farther in defining the desired exceptions

to federal jurisdiction.”4 Hence, courts “must not

readjust the Amendment’s precise terms to capture

their apparent background purpose.”5 State sovereign

immunity, in other words, should have constitutional

weight only in those cases falling within the Eleventh

Amendment’s text.6

B. Seminole’s reasoning was inconsistent

with the founding generation’s treatment

of common law doctrines.

If the constitutional principle of state sovereign

immunity cannot rest on the Eleventh Amendment,

then it must come from somewhere else. The most

plausible “somewhere else” is the common law. Justice

Scalia argued in Union Gas that “the doctrine of

sovereign immunity . . . was part of the understood

4 Id. at 1750.

5 Id.

One scholar has suggested that broad notions of state

sovereign immunity can rest on the meaning of “state” as it

appears throughout the constitutional text. See Michael B.

Rappaport, Reconciling Textualism and Federalism: The

Proper Textual Basis of the Supreme Court’s Tenth and

Eleventh Amendment Decisions, 93 NW. U. L. REV. 819, 821

(1999). But the text doesn’t do any actual work in this

interpretation, see Ernest A. Young, Alden v. Maine and the

Jurisprudence of Structure, 41 WM. & MARY L. REV. 1601,

1624-26 (2000), and it is far from clear that immunity was

part of the “linguistic” meaning of “state” in the late

eighteenth century, see Steven E. Sachs, Constitutional

Backdrops, 80 GEO. WASH. L. REV. 1813, 1872 (2012).

background against which the Constitution was

adopted, and which its jurisdictional provisions did

not mean to sweep away.” Pennsylvania v. Union Gas

Co., 491 U.S. 1, 31-32 (1989) (Scalia, J., concurring in

part and dissenting in part). This argument has been

taken up more recently by Professors William Baude

and Steven Sachs, who see state sovereign immunity

as a “constitutional backdrop”—a survival of the

English common law that the Constitution did not

abrogate and that Congress lacks power to change.7

Because these scholars offer the most conceptually

clear defense of an extra-textual principle of state

immunity, we consider their view in some detail.

Amici agree that the common law forms a legal

“backdrop” to the Constitution that generally

continues in effect unless and until it is modified by

positive law. Strong “clear statement” rules, of the sort

that restrain all abrogation of state immunity, see

Atascadero State Hospital v. Scanlon, 473 U.S. 234,

242 (1985), make sense on this ground.8 Likewise, it

makes sense to hold that no state has power to alter

another state’s preexisting immunities. See Franchise

See William Baude, Sovereign Immunity and the

Constitutional Text, 103 VA. L. REV. 1, 8-9 (2017); Sachs,

supra, at 1868-75.

See, e.g., David L. Shapiro, Continuity and Change in

Statutory Interpretation, 67 N.Y.U. L. REV. 921, 936-37

(1992) (defending the canon disfavoring broad

constructions of statutes in derogation of the common law);

Ernest A. Young, The Rehnquist Court’s Two Federalisms,

83 TEXAS L. REV. 1, 123-27 (2004) (arguing that “clear

statement” rules offer strong protection for state

autonomy).

Tax Board of California v. Hyatt, 139 S. Ct. 1485

(2019). But Seminole’s further step—which makes

these common law rules impervious even to a clear

statutory override—is insupportable. Neither Justice

Scalia in Union Gas nor Professors Baude and Sachs

have addressed the care with which the founding

generation considered precisely how—and to what

extent—the American legal systems should absorb

common law norms.

It was the states, not the national government, that

generally “received” the common law.9 Each state did

so through a positive act—usually state constitutional

provisions, but sometimes state statutes or state court

decisions.10 Moreover, as Justice Story noted, early

Americans “brought with them and adopted only that

portion [of the English common law] which was

applicable to their situation.” Van Ness v. Pacard, 27

U.S. (2 Pet.) 137, 144 (1829). These reception

measures generally made clear that common law

principles thus adopted remained subject to legislative

alteration.11

9 See, e.g., Ford W. Hall, The Common Law: An Account of

Its Reception in the United States, 4 VAND. L. REV. 791

(1951).

10 See id. at 798-800.

11 See, e.g., N.J. Const. art. XXII (1776) (“[T]he common law

of England . . . shall remain in force, until [it] shall be

altered by a future law.”); Seminole, 517 U.S. at 162

(Souter, J., dissenting) (collecting early provisions); Hall,

supra, 4 VAND. L. REV. at 798-89; GORDON S. WOOD, THE

CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 299300 (1969).

In this, of course, the common law received by the

states was just like the common law of the mother

country, whose doctrine of parliamentary sovereignty

made every common law principle subject to legislative

alteration.12 But subordination of common law

principles to legislation proved central to the debate

about receiving the common law into federal law.

Some critics of the proposed Constitution, like George

Mason, complained that it failed to secure “the

enjoyment of the benefit of the common law.”13

Federalists replied that to do so would effectively

destroy the notion of limited and enumerated powers,

as the common law extended to all subjects.14 Even

worse, Federalists contended, “a constitutional

reception of the common law would leave it

‘immutable,’ incapable of legislative revision.”15

Instead, they constitutionalized particular common

law rights, like trial by jury or the writ of habeas

corpus, while eschewing a general reception.16

See, e.g., THEODORE F.T. PLUCKNETT, A CONCISE

HISTORY OF THE COMMON LAW 336-37 (5th ed. 1956).

George Mason, Objections to This Constitution of

Government, in 2 THE RECORDS OF THE FEDERAL

CONVENTION OF 1787, at 637 (Max Farrand ed. 1911). See

Stewart Jay, Origins of Federal Common Law: Part Two,

133 U. PA. L. REV. 1231, 1256-57 (1985).

14 See Jay, Part Two, supra, at 1259 (quoting Madison to

the effect that a general reception of the common law

“would have broken in upon the legal Code of every State”).

15 Id. at 1258-59 (quoting Edmund Randolph).

See Harry W. Jones, The Common Law in the United

States: English Themes and American Variations, in

Later, the debate over federal reception of the

common law resurfaced in relation to claims by the

Adams administration that a general body of federal

common law supported the validity of the Alien and

Sedition Acts.17 James Madison’s critique of that

argument rejected any general notion of federal

common law—in particular, because if such a common

law were part of the Constitution, it would be immune

from legislative alteration:

[T]he consequence of admitting the common

law as the law of the United States, on the

authority of the individual States, is as

obvious as it would be fatal. As this law relates

to every subject of legislation, and would be

paramount to the Constitutions and laws of

the States, the admission of it would

overwhelm the residuary sovereignty of the

States, and by one constructive operation new

model the whole political fabric of the

country.18

Each of these episodes—the state reception statutes,

the constitutional ratification debates, and the Alien

POLITICAL SEPARATION AND LEGAL CONTINUITY 123-24

(Harry Jones ed. 1976).

17 See Stewart Jay, Origins of Federal Common Law: Part

One, 133 U. PA. L. REV. 1003, 1077-83 (1985).

18 Report on the Alien and Sedition Acts, in James Madison,

WRITINGS 608, 640 (Jack Rakove ed. 1999) (1800); see also

id. at 639 (“If . . . the common law is established by the

Constitution, it follows that no part of the law can be

altered by the legislature.”); Jay, Part One, supra, at 109091.

and Sedition Act controversy—make clear that

incorporation of common law principles into American

law did not simply go without saying. Early Americans

were careful to receive only so much of the common

law as was useful in their particular states’

circumstances, to receive it almost entirely as state

law rather than federal law, and to ensure that

common law principles would be susceptible to

legislative override.19

Without addressing this history, Professors Sachs

and Baude assert that the Constitution denied

Congress power to alter the common law principle of

sovereign immunity. They ground this limitation in

the Necessary and Proper Clause, suggesting that

“abrogating sovereign immunity is one of the ‘great

and important’ or ‘great substantive and independent’

19 In Seminole, the majority opinion sought to ground state

sovereign immunity in “the jurisprudence in all civilized

nations,” rather than in the common law of England. 514

U.S. at 69. The jurisprudence on which Seminole relied

made no such distinction, although it used both terms. See

Hans, 134 U.S. at 15 (emphasizing that a suit against a

states by its own citizen was “not known . . . at the common

law”). In any event, where the Constitution does

incorporate a broader international jurisprudence—in the

Admiralty Clause, for example—that jurisprudence has

always been subject to legislative alteration. See, e.g., The

Nereide, 13 U.S. (9 Cranch) 388, 423 (1815) (Marshall, C.J.)

(observing that “the Court is bound by the law of nations”

until “an act be passed” by Congress). In Sosa v. AlvarezMachain, 542 U.S. 692, 714-28 (2004), for example, this

Court treated the extent to which the “law of nations”

would be cognizable by American courts as pervasively

subject to congressional choice.

powers that falls outside of the implied powers of

Article I.”20 Yet each scholar presents this claim as an

invitation to further inquiry—not as a historical

demonstration.21

But striking down an act of Congress requires

more. The Framers’ insistence on legislative control

over the common law, as well as their concern that

adopting the common law might perpetuate

monarchical principles inappropriate for a republic,22

undermine any argument that abrogation is an

“improper” power. Moreover, as we discuss in the next

section, that argument is also inconsistent with the

Framers’ theory of state sovereignty.

A final problem is that Congress’s power to enforce

the Fourteenth Amendment through “appropriate”

legislation, U.S. Const. amend. XIV, § 5, is generally

equated with its “necessary and proper” authority

Baude, supra, 103 VA. L. REV. at 15; see also Sachs,

supra, 80 GEO. WASH. L. REV. at 1874-75.

21 See Baude, supra, at 15 (characterizing this rationale as

“plausible”); Sachs, supra, at 1874 (stating that it “might

be” true).

22 See, e.g., Madison, Alien and Sedition Acts, supra, at 639

(worrying that “an indefinite admission of the common law

. . . might draw after it the various prerogatives making

part of the unwritten law of England”); see also Letter from

James Madison to George Washington (Oct. 18, 1787), in

WRITINGS, supra, at 140, 141 (noting with approval that

“every State has made great inroads & with great propriety

on this monarchical code”) (emphasis in original).

under Article I.23 Adopting the scholars’ theory that

abrogation is inherently “improper”—which this Court

has never done—would thus call into question this

Court’s unanimous and unbroken line of cases holding

that Congress may abrogate state sovereign immunity

when enforcing the Reconstruction Amendments. See,

e.g., Fitzpatrick, 427 U.S. at 456 (“We think 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.”).

C. Seminole’s reasoning was inconsistent

with the founding generation’s view of

state sovereignty.

The doctrine of sovereign immunity applies

straightforwardly in a legal system with one unitary

sovereign. But as Justice Kennedy observed, “[t]he

Framers split the atom of sovereignty.” U.S. Term

Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995)

(Kennedy, J., concurring). In the Federalists’ political

theory, ultimate sovereignty “resides in the PEOPLE,

as the fountain of government.”24 Accordingly, the

23 See, e.g., Katzenbach v. Morgan, 384 U.S. 641, 650 (1966);

Michael W. McConnell, Institutions and Interpretation: A

Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153,

178 & n. 153 (1997).

1 PENNSYLVANIA AND THE FEDERAL CONSTITUTION,

1787-1788, at 302 (John Bach McMaster & Frederick D.

Stone eds., 1888) (quoting James Wilson); see generally

Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE

L. J. 1425, 1435-37 (1987).

sovereign People “can distribute one portion of power

to the more contracted circle called State

governments; they can furnish another portion to the

government of the United States.”25 Each sovereign’s

prerogatives were limited by this allocation. Hence,

Chief Justice Marshall described the nation and the

states as “each sovereign, with respect to the objects

committed to it, and neither sovereign with respect to

the objects committed to the other.” McCulloch v.

Maryland, 17 U.S. (4 Wheat.) 316, 410 (1819).26

From this perspective, the Eleventh Amendment’s

repudiation of Chisholm makes sense. Chisholm

involved a claim for payment of a debt grounded in

state law.27 2 U.S. (2 Dall.) at 430. Under the

Federalists’ political theory, Georgia was sovereign as

to that law, and the Chisholm majority never

satisfactorily explained why a state should not be

treated as sovereign with respect to a claim under its

own law.28 But as Justice Iredell’s dissent pointed out,

the right answer might be different in a federal case

“relat[ing] to the execution of the . . . authorities of the

general Government (which it must be admitted are

full and discretionary, within the restrictions of the

Constitution itself).” 2 U.S. (2 Dall.) at 432. In that

25 1 PENNSYLVANIA, supra, at 302 (quoting Wilson).

26 See also Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 435

(1793) (Iredell, J., dissenting) (“The United States are

sovereign as to all the powers of Government actually

surrendered; Each State in the Union is sovereign as to all

the powers reserved.”).

27 See Amar, supra, at 1472.

28 See id. at 1469-73.

sort of case, “sovereignty has . . . been . . . delegated to

the United States . . . wherein the separate

sovereignties of the States are blended in one common

mass of supremacy.” Id. at 435. Both the Federalists’

political theory and Justice Iredell’s application of it

in Chisholm thus support Professor Akhil Amar’s

conclusion that “[w]here governments are acting

within the bounds of their delegated ‘sovereign’ power,

they may partake of sovereign immunity; where not,

not.”29

Respect for federalism, in this analysis, suggests

that Congress may lack power to subject states to

damages suits under state law. It also suggests that

courts should not displace traditional state law

immunities, including sovereign immunity, without a

clear statement of Congress’s intent. See Gregory v.

Ashcroft, 501 U.S. 452 (1991) (presumption against

altering traditional federal balance); Rice v. Santa Fe

Elevator Corp., 331 U.S. 218 (1947) (recognizing

interpretive presumption against displacement of

state law). And other aspects of the Framers’ federal

plan—including the sovereign equality of states, see

Hyatt, 139 S. Ct. at 1493-94—explain why one state

may not displace another state’s immunity. But when

Congress speaks clearly, and acts within its

enumerated powers, it exercises the People’s sovereign

power. The Copyright Act plainly falls within

Congress’s sphere, and so the Framers’ conception of

sovereignty requires state immunity to yield.

29 Amar, supra, at 1490-91, n. 261.

D. This Court can resolve this case without

considering whether Seminole should be

overruled.

Because Seminole’s holding was inconsistent with

the constitutional text and the founding generation’s

views about sovereignty and the common law, it

should not be extended to bar individual remedies

under another important federal statute. Overruling

that decision, however, would raise difficult and

unnecessary questions of stare decisis. Seminole has

stood for nearly a quarter century, and an extensive

jurisprudence has grown up around it. Amici believe

that this case can be a vehicle for refining Seminole’s

impact without repudiating its central holding.

While the Court’s decisions under Seminole have

remained bitterly divided, this Court has

unanimously embraced the proposition that Congress

may abrogate state sovereign immunity pursuant to

Section 5 of the Fourteenth Amendment. See

Fitzpatrick, 427 U.S. at 455; United States v. Georgia,

546 U.S. 151 (2006). In Georgia, in particular, this

Court unanimously held that an abrogation statute is

valid as applied to particular cases in which the

plaintiff can establish an actual constitutional

violation. That principle resolves this case. And by

insisting on a constitutional as well as a statutory

violation, Georgia effectively redresses the most

serious violations of national sovereignty while

retaining significant safeguards against unwarranted

impositions on state governments.

The Fourth Circuit’s opinion below also narrowed

the scope of Section 5 abrogation by imposing an

additional and unwarranted clear statement

requirement and by demanding a pattern of past

constitutional violations as a predicate for

congressional legislation. These new doctrines make

prophylactic abrogation under Section 5 extremely

difficult. If this Court chooses to address prophylactic

abrogation, it should reject these doctrinal

innovations.

II. Congress validly abrogated North Carolina’s

sovereign immunity in the CRCA.

This Court has unanimously agreed that Congress

may abrogate state sovereign immunity when it acts

pursuant to Section 5 of the Fourteenth Amendment.

Such abrogation can happen in two ways: First,

abrogation statutes may have a prophylactic effect,

subjecting states to liability in all cases where they

violate the terms of the statute, so long as that

statute’s terms are “congruent and proportional to the

targeted violation” of the Constitution. Board of

Trustees of the University of Alabama v. Garrett, 531

U.S. 356, 374 (2001). Second, even abrogation statutes

that do not meet this standard may be enforced when

the plaintiff can establish not only a statutory

violation but an actual constitutional violation as well.

Georgia, 546 U.S. at 158-59. The latter route provides

the most expeditious way to resolve the present case.

But the CRCA also meets this Court’s “congruence and

proportionality” standard for prophylactic legislation,

properly construed.

A. North Carolina is subject to damages

liability in this case under this Court’s

holding in United States v. Georgia.

In United States v. Georgia, a disabled inmate of

the Georgia state prison system challenged his

conditions of confinement by suing the state

Department of Corrections and several individual

officers under Title II of the Americans with

Disabilities Act and the Eighth Amendment. See 546

U.S. at 154-55.30 The District Court dismissed the

claims against the individual officers as unduly vague

and all claims against the state defendants as barred

by sovereign immunity. The Eleventh Circuit affirmed

as to state immunity, but reversed as to the officers,

holding that the plaintiff should be allowed to develop

his claims under the Eighth Amendment. Id. at 15556. This Court granted certiorari on the immunity

issue only and reversed in a unanimous opinion by

Justice Scalia. Id. at 157-59.

Justice Scalia explained this result by drawing a

sharp distinction between two different sorts of

abrogation theories:

While the Members of this Court have

disagreed regarding the scope of Congress’s

“prophylactic” enforcement powers under § 5

30 Title II of the ADA provides that “no qualified individual

with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of

the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C.

§ 12132. Congress explicitly abrogated the states’

immunity. See id. § 12202.

of the Fourteenth Amendment . . . no one

doubts that § 5 grants Congress the power to

“enforce . . . the provisions” of the Amendment

by creating private remedies against the

States for actual violations of those provisions.

. . . This enforcement power includes the power

to abrogate state sovereign immunity by

authorizing private suits for damages against

the States.

546 U.S. at 158-59. The Court characterized all of its

previous Section 5 abrogation cases as involving

prophylactic theories, under which the plaintiffs had

alleged only a violation of the statute. Id. at 157-58. It

is not clear whether the plaintiff’s ADA Title II claim

could have prevailed on such a theory. This Court had

upheld prophylactic abrogation under Title II only “as

it applies to the class of cases implicating the

accessibility of judicial services,” Tennessee v. Lane,

541 U.S. 509, 531 (2004), and it had struck down the

ADA’s abrogation with respect to the general

employment discrimination provisions of Title I, see

Garrett, 531 U.S. at 368. Nonetheless, because the

plaintiff in Georgia had alleged a violation of not only

Title II but also the Constitution itself, he was entitled

to go forward. “[I]nsofar as Title II creates a private

cause of action for damages against the States for

conduct that actually violates the Fourteenth

Amendment,” this Court explained, “Title II validly

abrogates state sovereign immunity.” 546 U.S. at 159.

This Court has not elaborated on this as-applied

form of abrogation since Georgia. But the courts of

appeals have read Georgia to uphold abrogation

legislation, like the CRCA, whenever the plaintiff can

establish an actual constitutional violation: “If the

State’s conduct violated both [the statute] and the

Fourteenth Amendment, [the statute] validly

abrogates state sovereign immunity.” Hale v. King,

642 F.3d 492, 498 (5th Cir. 2011). On the other hand,

“[i]f the State's conduct violated [the statute] but did

not violate the Fourteenth Amendment, the court

must then determine ‘whether Congress's purported

abrogation of sovereign immunity as to that class of

conduct is nevertheless valid’” as prophylactic

legislation under the congruence and proportionality

test. Id. (quoting Georgia, 546 U.S. at 159). The upshot

is that “if a plaintiff alleges a statutory violation that

is also an actual constitutional violation, the court

need not examine whether that statute could validly

prohibit facially constitutional conduct under the City

of Boerne test.” National Association of Boards of

Pharmacy v. Board of Regents of the University System

of Georgia, No. 3:07-CV-084 (CDL) 2008 WL 1805439,

at *7 (M.D. Ga. 2008), aff’d in part, vacated in part on

other grounds, 633 F.3d 1297 (11th Cir. 2011).

The straightforward “as-applied” test from Georgia

handily decides the present appeal. Petitioners have

alleged not only that North Carolina violated the

violated the Constitution by depriving them of their

property without due process of law. No one disputes

that the copyrights in question count as “property”

within the meaning of the Due Process Clause. And

although this Court noted in Florida Prepaid

Postsecondary Education Expense Board v. College

Savings Bank, 527 U.S. 627 (1999), that not all

intellectual property infringements amount to

constitutional violations, Petitioners’ claims here are

not vulnerable to the same difficulties. First,

Petitioners have alleged that the infringement was

intentional rather than merely negligent. See Brief for

Petitioner at 8-9. Compare Florida Prepaid, 527 U.S.

at 645 (noting that “a state actor’s negligent act that

causes unintended injury to a person's property does

not ‘deprive’ that person of property within the

meaning of the Due Process Clause”). And second,

Petitioners have alleged that state law affords them

no remedy. Compare id. at 643 (emphasizing that “a

deprivation of property without due process” occurs

“only where the State provides no remedy, or only

inadequate remedies, to injured patent owners for its

infringement of their patent”). Indeed, on the

extraordinary facts presented here, the state

legislature went so far as to specifically bar any

remedy for the alleged infringement. See Brief for

Petitioners at 13 (discussing “Blackbeard’s Law,” H.B.

184, N.C. Gen. Stat. § 121-25(b)).

This Court should stop there. The CRCA is

constitutional as applied to this case, and this Court

need not consider whether it sweeps too broadly in

other circumstances. See, e.g., United States v. Raines,

362 U.S. 17, 24-25 (1960) (refusing to consider

whether Congress had legislated beyond its Fifteenth

Amendment authority because “if the complaint here

called for an application of the statute clearly

constitutional under the Fifteenth Amendment, that

should have been an end to the question of

constitutionality”). This Court can wait for another

day to decide whether the CRCA is also valid

prophylactic legislation, as well as whether the

the Convention” under Central Virginia Community

College v. Katz, 546 U.S. 356 (2006).

Georgia’s reasoning strikes a sensible balance

between Congress’s concern for statutory enforcement

and the legitimate values of governmental autonomy

and solvency that sovereign immunity protects. A

plaintiff’s ability to establish not only a statutory

violation but a constitutional one as well is not a

perfect proxy for the severity of the violation, but it

does provide a decent filter. And certainly Georgia

provides no basis for broad abrogations in the areas of

contract or tort law that might threaten the states’

financial viability—the key historical concern of

sovereign immunity law.31 Georgia is not only the

narrowest available ground for decision here, but also

the one that sensibly balances the legitimate concerns

on each side of the immunity debate.

B. Congress’s

prophylactic

statutory

abrogation of state sovereign immunity in

the CRCA should be upheld.

This Court may also resolve this case as an

instance of prophylactic abrogation designed to

prevent or remedy deprivations of federal intellectual

property rights without due process of law. In this

case, the Fourth Circuit made two innovations that

31 See Ernest A. Young, Its Hour Come Round at Last? State

Sovereign Immunity and the Great State Debt Crisis of the

Early Twenty-First Century, 35 HARV. J. L. & PUB. POL’Y

593 (2012) (arguing that the core purpose of state sovereign

immunity is to ward off existential threats to state solvency

like the Revolutionary war debts in Chisholm or the

Reconstruction bonds in Hans).

undermined this Court’s Section 5 abrogation

jurisprudence. First, the court of appeals required that

Congress must not only speak clearly with respect to

its intent to abrogate the states’ immunity, but also

that it must explicitly specify the correct

constitutional power when doing so. Second, the

Fourth Circuit required that Congress must have

considered a sufficiently extensive “pattern” of past

constitutional violations, whether or not such

violations exist outside the legislative record or have

developed since Congress acted. Both these holdings

were error, and both undermine the viability of

Section 5 abrogation.

1. Congress need not explicitly invoke

Section 5 in order to abrogate state

immunities under the Fourteenth

Amendment.

In the present case, the Fourth Circuit said flatly

that “[n]either the text of the [CRCA] nor its

legislative history indicates any invocation of

authority conferred by § 5 of the Fourteenth

Amendment. And without such an invocation, the Act

cannot effect a valid abrogation under § 5.” 895 F.3d

at 351. This holding added an additional hoop for

Congress to jump through when overriding state

sovereign immunity. This Court has already required

that

“Congress

may

abrogate

the

States’

constitutionally secured immunity from suit in federal

court only by making its intention unmistakably clear

in the language of the statute.” Atascadero, 473 U.S.

at 242. The Fourth Circuit transformed this stringent

requirement into a double clear statement rule:

Congress must now not only make its intent to

abrogate the States’ immunity unmistakably clear

(which all admit Congress did in the CRCA), but it

must also clearly specify the particular enumerated

power upon which it relies to do so. Even if one

generally favors clear statement rules,32 this double

one goes too far.

The Court plainly rejected this sort of reasoning in

EEOC v. Wyoming, 460 U.S. 226 (1983):

It is in the nature of our review of

congressional legislation defended on the

basis of Congress's powers under § 5 of the

Fourteenth Amendment that we be able to

discern some legislative purpose or factual

predicate that supports the exercise of that

power. That does not mean, however, that

Congress need anywhere recite the words

“section 5” or “Fourteenth Amendment” or

“equal protection,” for “[t]he constitutionality

of action taken by Congress does not depend

on recitals of the power which it undertakes to

exercise.”

Id. (citing Fullilove v. Klutznick, 448 U.S. 448, 476–

478 (1980) (plurality opinion), and quoting Woods v.

Miller, 333 US. 13, 144 (1948)). Likewise, this Court

demanded no such “clear statement” of reliance on the

Section Five power in Kimel v. Florida Board of

Regents, 528 U.S. 62 (2000); rather, it determined

simply that Congress had clearly stated its intent to

subject the States to damages liability under the Age

Discrimination in Employment Act, see id. at 73-78,

See, e.g., Ernest A. Young, Two Cheers for Process

Federalism, 46 VILL. L. REV. 1349, 1364-66 (2001).

and then went on to assess whether that statute could

pass City of Boerne’s “congruence and proportionality”

test, see id. at 80-91. This Court applied no double

clear statement rule of the sort fashioned by the

Fourth Circuit.33

In the CRCA’s case, it is easy to understand why

Congress did not invoke Section Five of the

Fourteenth Amendment: Under the law as it stood

when the CRCA was enacted, Congress did not have

to rely on that power. Prior to this Court’s decision in

Atascadero, 473 U.S. at 242, the Copyright Act had

generally been understood to render states liable for

CRCA in 1990 to provide the explicit statement that

Atascadero demanded. See H.R. Rep. 101-282(I) (Oct.

13, 1989). But this Court had held the year before that

Congress may abrogate the States’ immunity

pursuant to its ordinary Article I powers. See

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989). It

thus did not matter whether abrogation rested on the

Commerce Clause, the Copyright Clause, or the

Reconstruction Amendments until Seminole in 1996,

33 This Court did say that Congress should explicitly invoke

its Section Five powers in Gregory v. Ashcroft, 501 U.S. 452,

469-70 (1991). But the Court’s task in Gregory was to

construe the reach of Congress’s statute—an enterprise

that this Court viewed in Wyoming as quite different from

“adjudg[ing] its constitutional validity.” 460 U.S. at 243

n.18.

34 See Intellectual Property Protection Restoration Act of

2003: Hearing on H.R. 2344 Before the Subcomm. on

Courts, the Internet, and Intellectual Property, 108th

Cong. 90-91 (2003) (testimony of Paul Bender).

well after the CRCA had become law. To hold that

Congress must revisit this issue a third time in order

to specify under which enumerated power it seeks to

abrogate is to play Lucy with Charlie Brown’s football.

The Fourth Circuit’s holding will affect the validity

of any statute that might be defended under the

Section Five power. It will encourage courts to

speculate whether other powers must also be

specifically invoked in order to ground a federal

statute.

It invites the question whether, when

Congress does invoke Section Five of the Fourteenth

Amendment, it may nonetheless miscarry by not

properly stating the particular constitutional theory

that may sustain the legislation. And Congress may

respond by simply inserting legislative history

invoking a blunderbuss-shot of constitutional

authorities for courts to sort out later. Instead, this

Court should return to the settled rule that “the

constitutionality of action taken by Congress does not

depend on recitals of the power which it undertakes to

exercise.” Woods, 333 U.S. at 144.

2. Congress need not show a pattern of

past violations at the time that it

legislates.

The Fourth Circuit did not consider whether the

terms of the CRCA were congruent and proportional

to the Due Process Clause’s protections for property.

Rather, like several other circuits, the Fourth Circuit

erected an additional hurdle for Section Five

legislation by ruling that Congress may not legislate

under that power if the legislative record does not

show a pattern of past constitutional violations by the

States.35 Finding that “the record before Congress

contained at most a dozen incidents of copyright

infringement by States that could be said to have

violated the Fourteenth Amendment,” the court of

appeals concluded that “[t]his evidence plainly falls

short of establishing the ‘widespread and persisting

deprivation of constitutional rights’ that is required to

warrant prophylactic legislation under § 5.” 895 F.3d

at 353 (quoting City of Boerne v. Flores, 521 U.S. 507,

526 (1997)). To make matters worse, the Fourth

Circuit disregarded evidence relied upon by the

district court that such violations have radically

increased in the years since Congress enacted the

CRCA. See id. at 353-54. Amici agree with Petitioners

that, because there is a very large record of

unconstitutional state deprivations of copyright

interests, the CRCA handily vaults any “pattern”

hurdle. See Brief for Petitioners at 46-53. But Section

Five imposes no such requirement,36 and this case

affords this Court a valuable opportunity to clarify

that point.

No other enumerated power of Congress is thought

to entail such a requirement. If Congress wishes to

prohibit a particular activity under the Commerce

Clause, it need not show that anyone is already

engaging in such activity or that the activity would

35 See also Chavez v. Arte Publico Press, 204 F.3d 601, 605-

06 (5th Cir. 2000).

See, e.g., Ernest A. Young, Is the Sky Falling on the

Federal Government? State Sovereign Immunity, the

Section Five Power, and the Federal Balance, 81 TEXAS L.

REV. 1551, 1578-81 (2003).

harm the interstate economy. If Congress wished to

set safety standards for driverless cars, for example, it

might be prudent to wait until some such cars had

been introduced, but nothing in the Constitution

would foreclose it from regulating wholly

prospectively.

So, too, with the Section 5 power. In Boerne, this

Court made clear that Section 5 confers authority to

“remedy or prevent unconstitutional actions.” 521 U.S.

at 519 (emphasis added). If Congress wished to

prevent states from adopting new genetic screening

technologies in hiring state employees, it could do so

under the Section 5 power even if no state had yet

adopted those technologies; the only question would be

whether use of the technology by a state would

actually violate the Fourteenth Amendment. To hold

otherwise would force this Court to consider a host of

unanswerable questions, such as exactly how many

past violations are necessary to “activate” the Section

Five power, or whether state violations occurring after

Congress enacts a statute count towards validating

that statute under Section 5.

To be sure, a legislative record remains relevant for

some purposes. This Court emphasized the lack of a

legislative record showing instances of state violations

of patent rights in Florida Prepaid, 527 U.S. at 64041, and in some cases upholding Section 5 legislation

it has noted the presence of such a record, see, e.g.,

Lane, 541 U.S. at 524-29. Especially where Congress

acts prophylactically under Section 5, prohibiting

some subset of constitutionally-permissible conduct in

order to get at constitutionally forbidden conduct, a

record of past state conduct can help a court assess the

relative proportions of those two classes of conduct.

But as this Court has noted in its Commerce Clause

cases, legislative findings and testimony can be

helpful in determining whether a statute meets

constitutional requirements, but they are not

requirements in their own right. See United States v.

Morrison, 529 U.S. 598, 612, 614 (2000).

Moreover, Georgia made clear that where Congress

need not rely on its ability to act prophylactically—in

that case, where actually unconstitutional conduct is

at issue—there is no requirement that Congress show

such conduct to be frequent in order to prohibit it. See

546 U.S. at 158-59 (upholding abrogation in cases of

actual constitutional violations without considering

whether past violations had occurred). If past

constitutional violations were an independent

prerequisite for valid Section Five legislation, then the

plaintiff in Georgia could not have succeeded simply

by providing that his own constitutional rights had

been violated.

At least since McCulloch v. Maryland, this Court

has eschewed the sort of “necessity” requirement

adopted by the Fourth Circuit here. Rather, this Court

has “accord[ed] substantial deference to the predictive

judgments of Congress” in determining what problems

warrant legislative solutions and how those solutions

should be framed. Turner Broadcasting System, Inc. v.

FCC, 520 U.S. 180, 195 (1997). Courts generally

evaluate only whether the substance of federal

legislation falls within the scope of an enumerated

power—not whether events in the world have

rendered that legislation necessary. A court’s view

that legislation responds to no pressing current

circumstance is only a hair’s breadth away from a view

that the law is simply bad policy—and neither is a

sound basis for declaring the law unconstitutional.

See, e.g., Olsen v. Nebraska ex rel. Western Reference

& Bond Ass’n, 313 U.S. 236, 246 (1941) (“We are not

concerned . . . with the wisdom, need, or

appropriateness of the legislation.”). In any event,

Congress could surely conclude that some

unconstitutional conduct is so egregious—a

resurgence of lynching, for example—that it should

legislate to prevent it in advance even if the conduct

has not yet materialized.

Finally, even if Section 5 legislation depends on

establishing a pattern of state violations, this Court

should reject the Fourth Circuit’s holding that afterenactment violations do not count. See 895 F.3d at

353. The District Court, in upholding the CRCA’s

abrogation provision, had relied on extensive evidence

of state copyright infringements that occurred after

the CRCA’s enactment. This stands to reason. The

CRCA clarified what had been the prior

understanding that the Copyright Act abrogated state

sovereign immunity.37 But it is hardly surprising that

state violations proliferated after Florida Prepaid held

in the analogous patent context that states could

violate federal intellectual property rights without

fear of monetary sanction. See Brief for Petitioners at

44-45. Critically, the Fifth Circuit extended that

ruling to copyrights just a year later. See Chavez, 204

F.3d at 607-08. One should expect state copyright

37 See Testimony of Paul Bender, Hearing on H.R. 2344,

supra.

violations to multiply further if this Court affirms the

Fourth Circuit. But it makes little sense to disable

Congress from deterring such violations until the

problem has festered for a sufficient period of time.

The question is whether the law is constitutional now,

not when enacted.

As we have already suggested, the benefit of a

record of violations is to assist the Court in

determining whether Section 5 legislation is

congruent and proportional—that is, whether most

statutory violations are likely to also be constitutional

ones. But it should make no difference whether that

evidence is generated by Congress itself through

hearings at the time of enactment, or whether it is

submitted by the parties to litigation seeking to

enforce the law in question. Congress is not an

administrative agency whose work product is to stand

or fall based on whether it considered the right kinds

of evidence before acting.38 Rather, this Court reviews

legislation simply to determine whether its substance

falls within the bounds of a constitutionallyenumerated power.

The post-CRCA record of state copyright

infringements, ably collected in Petitioners’ brief,

documents Congress’s foresight in moving to abrogate

state sovereign immunity for such violations in 1990.

Cf. A. Christopher Bryant & Timothy J. Simeone,

Remanding to Congress: The Supreme Court’s New “On the

Record” Constitutional Review of Federal Statutes, 86

CORNELL L. REV. 329 (2001). To be clear, amici believe that

such “on the record” review would be inappropriate, but do

not read cases like Florida Prepaid to require it.

That Congress was ahead of events in this instance

surely does not render the act unconstitutional. This

Court

should

either

uphold

the

CRCA’s

constitutionality or remand to the court of appeals for

reconsideration in light of the post-enactment

evidence of state infringements.

Conclusion

The decision of the United States Court of Appeals

for the Fourth Circuit should be reversed.

Respectfully submitted,