`(Slip Opinion)
`
`
`
` OCTOBER TERM, 2019
`
`
`Syllabus
`
`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
`
`
`
` The syllabus constitutes no part of the opinion of the Court but has been
`
`
`
`
`
`
` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
` ALLEN ET AL. v. COOPER, GOVERNOR OF NORTH
`
`
` CAROLINA, ET AL.
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE FOURTH CIRCUIT
` No. 18–877. Argued November 5, 2019—Decided March 23, 2020
`
`
`In 1996, a marine salvage company named Intersal, Inc., discovered the
`
` shipwreck of the Queen Anne’s Revenge off the North Carolina coast.
`
`
` North Carolina, the shipwreck’s legal owner, contracted with Intersal
`
` to conduct recovery operations. Intersal, in turn, hired videographer
`
` Frederick Allen to document the efforts. Allen recorded videos and
`
`took photos of the recovery for more than a decade. He registered
`
`
`
` copyrights in all of his works. When North Carolina published some
`of Allen’s videos and photos online, Allen sued for copyright infringe-
`ment. North Carolina moved to dismiss the lawsuit on the ground of
`
`state sovereign immunity. Allen countered that the Copyright Remedy
`Clarification Act of 1990 (CRCA) removed the States’ sovereign im-
`
`
` munity in copyright infringement cases. The District Court agreed
` with Allen, finding in the CRCA’s text a clear congressional intent to
`
`
` abrogate state sovereign immunity and a proper constitutional basis
`
` for that abrogation. The court acknowledged that Florida Prepaid
`
` Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627,
` precluded Congress from using its Article I powers—including its au-
`
` thority over copyrights—to deprive States of sovereign immunity. But
`
` the court held that Congress could accomplish its objective under Sec-
`
` tion 5 of the Fourteenth Amendment. The Fourth Circuit reversed,
`
`reading Florida Prepaid to prevent recourse to both Article I and Sec-
`tion 5.
`Held: Congress lacked authority to abrogate the States’ immunity from
`
`copyright infringement suits in the CRCA. Pp. 4–17.
`(a) In general, a federal court may not hear a suit brought by any
`
`
` person against a nonconsenting State. But such suits are permitted if
`
` Congress has enacted “unequivocal statutory language” abrogating
`
`
`
`

`

`2
`
`
`ALLEN v. COOPER
`
`
`Syllabus
`
`
`the States’ immunity from suit, Seminole Tribe of Fla. v. Florida, 517
`
`U. S. 44, 56, and some constitutional provision allows Congress to have
`thus encroached on the States’ sovereignty. Congress used clear lan-
`guage to abrogate the States’ immunity from copyright infringement
`
`suits in the CRCA. Allen contends that Congress’s constitutional
`power to do so arises either from the Intellectual Property Clause, Art.
`I, §8, cl. 8, or from Section 5 of the Fourteenth Amendment, which au-
`
`thorizes Congress to “enforce” the commands of the Due Process
`
`Clause. Each contention is foreclosed by precedent. Pp. 4–6.
`
`
`(b) The Intellectual Property Clause enables Congress to grant both
`
`
`copyrights and patents. In Allen’s view, Congress’s authority to abro-
`gate sovereign immunity from copyright suits naturally follows, in or-
`
`der to “secur[e]” a copyright holder’s “exclusive Right” as against a
`State’s intrusion. But that theory was rejected in Florida Prepaid.
`
`That case considered the constitutionality of the Patent Remedy Act,
`
`which, like the CRCA, attempted to put “States on the same footing
`
`
`as private parties” in patent infringement lawsuits. 527 U. S., at 647,
`648. Florida Prepaid acknowledged that Congress’s goal of providing
`
`
`uniform remedies in infringement cases was a “proper Article I con-
`
`
`cern,” but held that Seminole Tribe precluded Congress from using its
`
`Article I powers “to circumvent” the limits sovereign immunity
`
`“place[s] upon federal jurisdiction,” 517 U. S., at 73. For the same rea-
`son, Article I cannot support the CRCA. Allen reads Central Va. Com-
`
`
`
`munity College v. Katz, 546 U. S. 356 to have replaced Seminole Tribe’s
`
`
`general rule with a clause-by-clause approach to evaluating whether a
`particular constitutional provision allows the abrogation of sovereign
`immunity. But Katz rested on the unique history of the Bankruptcy
`
`
`Clause. 546 U. S., at 369, n. 9. And even if the limits of Katz’s holding
`were not so clear, Florida Prepaid, together with stare decisis, would
`
`doom Allen’s argument. Overruling Florida Prepaid would require a
`
`“special justification,” over and above the belief “that the precedent
`
`was wrongly decided,” Halliburton Co. v. Erica P. John Fund, Inc., 573
`
`
`U. S. 258, 266, which Allen does not offer. Pp. 6–10.
`
`(c) Section 5 of the Fourteenth Amendment allows Congress to ab-
`rogate the States’ immunity as part of its power “to enforce” the
`
`
`Amendment’s substantive prohibitions. City of Boerne v. Flores, 521
`U. S. 507, 519. For Congress’s action to fall within its Section 5 au-
`thority, “[t]here must be a congruence and proportionality between the
`
`injury to be prevented or remedied and the means adopted to that
`
`end.” Id., at 520. This test requires courts to consider the nature and
`
`extent of state conduct violating the Fourteenth Amendment and to
`
`examine the scope of Congress’s response to that injury. Florida Pre-
`
`paid again serves as the critical precedent. There, the Court defined
`
`
`
`

`

`3
`
`
`
` Cite as: 589 U. S. ____ (2020)
`
` Syllabus
`
`the scope of unconstitutional patent infringement as intentional con-
`
` duct for which there is no adequate state remedy. 527 U. S., at 642–
`643, 645. Because Congress failed to identify a pattern of unconstitu-
`tional patent infringement when it enacted the Patent Remedy Act,
`
`the Court held that the Act swept too far. Given the identical scope of
`the CRCA and Patent Remedy Act, this case could be decided differ-
`ently only if the CRCA responded to materially stronger evidence of
`unconstitutional infringement. But as in Florida Prepaid, the legisla-
`tive record contains thin evidence of infringement. Because this record
`
`cannot support Congress’s choice to strip the States of their sovereign
`immunity in all copyright infringement cases, the CRCA fails the “con-
`
`gruence and proportionality” test. Pp. 10–16.
`895 F. 3d 337, affirmed.
`KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
`
`
`
`and ALITO, SOTOMAYOR, GORSUCH, and KAVANAUGH, JJ., joined, and in
`
`
`
`which THOMAS, J., joined except for the final paragraph in Part II–A and
`
`the final paragraph in Part II–B. THOMAS, J., filed an opinion concurring
`
`
`in part and concurring in the judgment. BREYER, J., filed an opinion con-
`curring in the judgment, in which GINSBURG, J., joined.
`
`
`
`
`
`
`
`

`

`
`
`
`
` Cite as: 589 U. S. ____ (2020)
`
`Opinion of the Court
`
`1
`
`
`
`
` NOTICE: This opinion is subject to formal revision before publication in the
`
` preliminary print of the United States Reports. Readers are requested to
`
`
`
` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
`
` ington, D. C. 20543, of any typographical or other formal errors, in order that
`
`
` corrections may be made before the preliminary print goes to press.
`
`
`
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 18–877
`_________________
`
` FREDERICK L. ALLEN, ET AL., PETITIONERS v. ROY
`A. COOPER, III, GOVERNOR OF NORTH
`CAROLINA, ET AL.
`
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`APPEALS FOR THE FOURTH CIRCUIT
`[March 23, 2020]
`
` JUSTICE KAGAN delivered the opinion of the Court.
`In two basically identical statutes passed in the early
`
`1990s, Congress sought to strip the States of their sovereign
`immunity from patent and copyright infringement suits.
`
`Not long after, this Court held in Florida Prepaid Postsec-
`ondary Ed. Expense Bd. v. College Savings Bank, 527 U. S.
`
`627 (1999), that the patent statute lacked a valid constitu-
`tional basis. Today, we take up the copyright statute. We
`
`find that our decision in Florida Prepaid compels the same
`conclusion.
`
`I
`In 1717, the pirate Edward Teach, better known as
`
`
`Blackbeard, captured a French slave ship in the West In-
`dies and renamed her Queen Anne’s Revenge. The vessel
`became his flagship. Carrying some 40 cannons and 300
`men, the Revenge took many prizes as she sailed around the
`Caribbean and up the North American coast. But her reign
`over those seas was short-lived. In 1718, the ship ran
`aground on a sandbar a mile off Beaufort, North Carolina.
`
`Blackbeard and most of his crew escaped without harm.
`
`
`
`
`

`

`
`
`2
`
`
`ALLEN v. COOPER
`
`Opinion of the Court
`Not so the Revenge. She sank beneath the waters, where
`she lay undisturbed for nearly 300 years.
`
`
`In 1996, a marine salvage company named Intersal, Inc.,
`
`discovered the shipwreck. Under federal and state law, the
`
`
`wreck belongs to North Carolina. See 102 Stat. 433, 43
`U. S. C. §2105(c); N. C. Gen. Stat. Ann. §121–22 (2019).
`
`But the State contracted with Intersal to take charge of the
`
`recovery activities. Intersal in turn retained petitioner
`Frederick Allen, a local videographer, to document the op-
`eration. For over a decade, Allen created videos and photos
`of divers’ efforts to salvage the Revenge’s guns, anchors, and
`
`other remains. He registered copyrights in all those works.
`
`This suit arises from North Carolina’s publication of some
`of Allen’s videos and photos. Allen first protested in 2013
`that the State was infringing his copyrights by uploading
`
`his work to its website without permission. To address that
`
`allegation, North Carolina agreed to a settlement paying
`
`Allen $15,000 and laying out the parties’ respective rights
`to the materials. But Allen and the State soon found them-
`selves embroiled in another dispute. Allen complained that
`
`North Carolina had impermissibly posted five of his videos
`
`online and used one of his photos in a newsletter. When the
`
`State declined to admit wrongdoing, Allen filed this action
`in Federal District Court. It charges the State with copy-
`
`right infringement (call it a modern form of piracy) and
`seeks money damages.
`
`
`North Carolina moved to dismiss the suit on the ground
`of sovereign immunity. It invoked the general rule that fed-
`eral courts cannot hear suits brought by individuals against
`nonconsenting States. See State Defendants’ Memoran-
`dum in No. 15–627 (EDNC), Doc. 50, p. 7. But Allen re-
`sponded that an exception to the rule applied because Con-
`
`gress had abrogated the States’ sovereign immunity from
`suits like his. See Plaintiffs’ Response, Doc. 57, p. 7. The
`Copyright Remedy Clarification Act of 1990 (CRCA or Act)
`
`
`
`

`

`3
`
`
`Cite as: 589 U. S. ____ (2020)
`
`Opinion of the Court
`provides that a State “shall not be immune, under the Elev-
`enth Amendment [or] any other doctrine of sovereign im-
`munity, from suit in Federal court” for copyright infringe-
`ment. 17 U. S. C. §511(a). And the Act specifies that in
`
`such a suit a State will be liable, and subject to remedies,
`“in the same manner and to the same extent as” a private
`party. §501(a); see §511(b).1 That meant, Allen contended,
`
`that his suit against North Carolina could go forward.
`
`The District Court agreed. Quoting the CRCA’s text, the
`
`
`court first found that “Congress has stated clearly its intent
`to abrogate sovereign immunity for copyright claims
`
`against a state.” 244 F. Supp. 3d 525, 533 (EDNC 2017).
`
`And that abrogation, the court next held, had a proper con-
`stitutional basis. Florida Prepaid and other precedent, the
`
`District Court acknowledged, precluded Congress from
`using its Article I powers—including its authority over
`
`copyrights—to take away a State’s sovereign immunity.
`
`See 244 F. Supp. 3d, at 534. But in the court’s view, Florida
`
`Prepaid left open an alternative route to abrogation. Given
`
`the States’ “pattern” of “abus[ive]” copyright infringement,
`
`the court held, Congress could accomplish its object under
`
`Section 5 of the Fourteenth Amendment. 244 F. Supp. 3d,
`
`at 535.
`On interlocutory appeal, the Court of Appeals for the
`
`Fourth Circuit reversed. It read Florida Prepaid to prevent
`recourse to Section 5 no less than to Article I. A Section 5
`
`abrogation, the Fourth Circuit explained, must be “congru-
`ent and proportional” to the Fourteenth Amendment injury
`
`——————
`1The CRCA served as the model for the Patent and Plant Variety Pro-
`tection Clarification Act (Patent Remedy Act), passed two years later
`(and repudiated by this Court in Florida Prepaid, see supra, at 1). Using
`
`the same language, the latter statute provided that a State “shall not be
`
`immune, under the [E]leventh [A]mendment [or] any other doctrine of
`
`sovereign immunity, from suit in Federal court” for patent infringement.
`§2, 106 Stat. 4230. And so too, the statute specified that in such a suit,
`
`a State will be liable, and subject to remedies, “in the same manner and
`
`
`to the same extent as” a private party. Ibid.
`
`
`
`
`
`
`
`

`

`4
`
`
`ALLEN v. COOPER
`
`Opinion of the Court
` it seeks to remedy. 895 F. 3d 337, 350 (2018). Florida Pre-
`
`paid had applied that principle to reject Congress’s at-
`tempt, in the Patent Remedy Act, to abolish the States’ im-
`munity from patent infringement suits. See 527 U. S., at
`
`630. In the Fourth Circuit’s view, nothing distinguished
`the CRCA. That abrogation, the court reasoned, was
`“equally broad” and rested on a “similar legislative record”
`
`of constitutional harm. 895 F. 3d, at 352. So Section 5
`
`could not save the law.
`Because the Court of Appeals held a federal statute inva-
`
`lid, this Court granted certiorari. 587 U. S. ___ (2019). We
`
`
`now affirm.
`
`
`
`
`II
`
`In our constitutional scheme, a federal court generally
`may not hear a suit brought by any person against a non-
`
`consenting State. That bar is nowhere explicitly set out in
`
`the Constitution. The text of the Eleventh Amendment (the
`single most relevant provision) applies only if the plaintiff
`is not a citizen of the defendant State.2 But this Court has
`long understood that Amendment to “stand not so much for
`what it says” as for the broader “presupposition of our con-
`stitutional structure which it confirms.” Blatchford v. Na-
`tive Village of Noatak, 501 U. S. 775, 779 (1991). That
`premise, the Court has explained, has several parts. First,
`
`“each State is a sovereign entity in our federal system.”
`
`Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54 (1996).
`
`Next, “[i]t is inherent in the nature of sovereignty not to be
`
`amenable to [a] suit” absent consent. Id., at 54, n. 13 (quot-
`
`ing The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A.
`Hamilton)). And last, that fundamental aspect of sover-
`eignty constrains federal “judicial authority.” Blatchford,
`
`——————
` 2The Eleventh Amendment reads: “The Judicial Power of the United
`
`States shall not be construed to extend to any suit in law or equity, com-
`menced or prosecuted against one of the United States by Citizens of an-
`other State, or by Citizens or Subjects of any Foreign State.”
`
`
`
`
`
`
`
`

`

`
`
`
`
` Cite as: 589 U. S. ____ (2020)
`
`Opinion of the Court
`
`5
`
`
`
`
`
`501 U. S., at 779.
`
`But not entirely. This Court has permitted a federal
`court to entertain a suit against a nonconsenting State on
`two conditions. First, Congress must have enacted “un-
`equivocal statutory language” abrogating the States’ im-
`
`
`munity from the suit. Seminole Tribe, 517 U. S., at 56 (in-
`
`ternal quotation marks omitted); see Dellmuth v. Muth, 491
`U. S. 223, 228 (1989) (requiring Congress to “mak[e] its in-
`tention unmistakably clear”). And second, some constitu-
`tional provision must allow Congress to have thus en-
`
`croached on the States’ sovereignty. Not even the most
`crystalline abrogation can take effect unless it is “a valid
`
`exercise of constitutional authority.” Kimel v. Florida Bd.
`
`of Regents, 528 U. S. 62, 78 (2000).
`
`No one here disputes that Congress used clear enough
`
`language to abrogate the States’ immunity from copyright
`infringement suits. As described above, the CRCA provides
`that States “shall not be immune” from those actions in fed-
`eral court. §511(a); see supra, at 2–3. And the Act specifies
`that a State stands in the identical position as a private
`
`defendant—exposed to liability and remedies “in the same
`
`manner and to the same extent.” §501(a); see §511(b). So
`there is no doubt what Congress meant to accomplish. In-
`deed, this Court held in Florida Prepaid that the essentially
`verbatim provisions of the Patent Remedy Act “could not
`
`have [made] any clearer” Congress’s intent to remove the
`States’ immunity. 527 U. S., at 635.
`
`The contested question is whether Congress had author-
`ity to take that step. Allen maintains that it did, under ei-
`ther of two constitutional provisions. He first points to the
`clause in Article I empowering Congress to provide copy-
`right protection. If that fails, he invokes Section 5 of the
`Fourteenth Amendment, which authorizes Congress to “en-
`force” the commands of the Due Process Clause. Neither
`contention can succeed. The slate on which we write today
`is anything but clean. Florida Prepaid, along with other
`
`
`
`

`

`6
`
`
`ALLEN v. COOPER
`
`Opinion of the Court
`precedent, forecloses each of Allen’s arguments.
`A
`Congress has power under Article I “[t]o promote the Pro-
`
`gress of Science and useful Arts, by securing for limited
`Times to Authors and Inventors the exclusive Right to
`
`their respective Writings and Discoveries.” §8, cl. 8. That
`provision—call it the Intellectual Property Clause—enables
`Congress to grant both copyrights and patents. And the
`monopoly rights so given impose a corresponding duty (i.e.,
`not to infringe) on States no less than private parties. See
`
`Goldstein v. California, 412 U. S. 546, 560 (1973).
`
`In Allen’s view, Congress’s authority to abrogate sover-
`
`eign immunity from copyright suits naturally follows.
`Abrogation is the single best—or maybe, he says, the only—
`way for Congress to “secur[e]” a copyright holder’s “exclu-
`sive Right[s]” as against a State’s intrusion. See Brief for
`Petitioners 20 (quoting Art. I, §8, cl. 8). So, Allen contends,
`
`the authority to take that step must fall within the Article
`I grant of power to protect intellectual property.
`The problem for Allen is that this Court has already re-
`
`jected his theory. The Intellectual Property Clause, as just
`noted, covers copyrights and patents alike. So it was the
`first place the Florida Prepaid Court looked when deciding
`whether the Patent Remedy Act validly stripped the States
`
`In doing so, we
`of immunity from infringement suits.
`acknowledged the reason for Congress to put “States on the
`same footing as private parties” in patent litigation. 527
`U. S., at 647. It was, just as Allen says here, to ensure “uni-
`form, surefire protection” of intellectual property. Reply
`
`Brief 10. That was a “proper Article I concern,” we allowed.
`527 U. S., at 648. But still, we said, Congress could not use
`its Article I power over patents to remove the States’ im-
`
`
`munity. We based that conclusion on Seminole Tribe v.
`
`Florida, decided three years earlier. There, the Court had
`
`
`held that “Article I cannot be used to circumvent” the limits
`
`
`
`

`

`7
`
`
`
`
`
`
`
` Cite as: 589 U. S. ____ (2020)
`
`Opinion of the Court
`sovereign immunity “place[s] upon federal jurisdiction.”
`517 U. S., at 73. That proscription ended the matter. Be-
`cause Congress could not “abrogate state sovereign immun-
`ity [under] Article I,” Florida Prepaid explained, the Intel-
`lectual Property Clause could not support the Patent
`Remedy Act. 527 U. S., at 636. And to extend the point to
`
`this case: if not the Patent Remedy Act, not its copyright
`
`equivalent either, and for the same reason. Here too, the
`power to “secur[e]” an intellectual property owner’s “exclu-
`
`sive Right” under Article I stops when it runs into sovereign
`
`immunity. §8, cl. 8.
`
`Allen claims, however, that a later case offers an exit
`ramp from Florida Prepaid. In Central Va. Community
`College v. Katz, 546 U. S. 356, 359 (2006), we held that Ar-
`ticle I’s Bankruptcy Clause enables Congress to subject
`nonconsenting States to bankruptcy proceedings (there, to
`recover a preferential transfer). We thus exempted the
`
`Bankruptcy Clause from Seminole Tribe’s general rule that
`Article I cannot justify haling a State into federal court. In
`
`bankruptcy, we decided, sovereign immunity has no place.
`
`But if that is true, Allen asks, why not say the same thing
`
`here? Allen reads Katz as “adopt[ing] a clause-by-clause
`approach to evaluating whether a particular clause of Arti-
`
`cle I” allows the abrogation of sovereign immunity. Brief
`for Petitioners 20. And he claims that the Intellectual Prop-
`erty Clause “supplies singular warrant” for Congress to
`take that step. Ibid. That is so, Allen reiterates, because
`“Congress could not ‘secur[e]’ authors’ ‘exclusive Right’ to
`their works if [it] were powerless” to make States pay for
`
`infringing conduct. Ibid.
`
`But everything in Katz is about and limited to the Bank-
`
`ruptcy Clause; the opinion reflects what might be called
`
`bankruptcy exceptionalism. In part, Katz rested on the
`“singular nature” of bankruptcy jurisdiction. 546 U. S., at
`
`369, n. 9. That jurisdiction is, and was at the Founding,
`
`“principally in rem”—meaning that it is “premised on the
`
`
`
`
`
`

`

`8
`
`
`ALLEN v. COOPER
`
`Opinion of the Court
`
`debtor and his estate, and not on the creditors” (including a
`
`
` State). Id., at 369–370 (internal quotation marks omitted).
`For that reason, we thought, “it does not implicate States’
`sovereignty to nearly the same degree as other kinds of ju-
`risdiction.” Id., at 362. In remaining part, Katz focused on
`
`the Bankruptcy Clause’s “unique history.” Id., at 369, n. 9.
`
`The Clause emerged from a felt need to curb the States’ au-
`thority. The States, we explained, “had wildly divergent
`schemes” for discharging debt, and often “refus[ed] to re-
`spect one another’s discharge orders.” Id., at 365, 377.
`
`“[T]he Framers’ primary goal” in adopting the Clause was
`
`to address that problem—to stop “competing sovereigns[]”
`from interfering with a debtor’s discharge. Id., at 373. And
`in that project, the Framers intended federal courts to play
`a leading role. The nation’s first Bankruptcy Act, for exam-
`ple, empowered those courts to order that States release
`
`people they were holding in debtors’ prisons. See id., at 374.
`
`So through and through, we thought, the Bankruptcy
`Clause embraced the idea that federal courts could impose
`on state sovereignty. In that, it was sui generis—again,
`
`“unique”—among Article I’s grants of authority. Id., at 369,
`n. 9.
`Indeed, Katz’s view of the Bankruptcy Clause had a yet
`
`more striking aspect, which further separates it from any
`other. The Court might have concluded from its analysis
`that the Clause allows Congress to abrogate the States’ sov-
`ereign immunity (as Allen argues the Intellectual Property
`Clause does). But it did not; it instead went further. Rely-
`ing on the above account of the Framers’ intentions, the
`Court found that the Bankruptcy Clause itself did the abro-
`
`gating. Id., at 379 (“[T]he relevant ‘abrogation’ is the one
`effected in the plan of the [Constitutional] Convention”). Or
`stated another way, we decided that no congressional abro-
`gation was needed because the States had already “agreed
`in the plan of the Convention not to assert any sovereign
`immunity defense” in bankruptcy proceedings. Id., at 377.
`
`
`
`
`
`
`
`
`
`

`

`9
`
`
`
` Cite as: 589 U. S. ____ (2020)
`
`Opinion of the Court
`We therefore discarded our usual rule—which Allen accepts
`
`as applying here—that Congress must speak, and indeed
`
`speak unequivocally, to abrogate sovereign immunity.
`Compare id., at 378–379 (“[O]ur decision today” does not
`“rest[] on any statement Congress ha[s] made on the sub-
`ject of state sovereign immunity”), with supra, at 5 (our or-
`dinary rule). Our decision, in short, viewed bankruptcy as
`
`
`on a different plane, governed by principles all its own.
`Nothing in that understanding invites the kind of general,
`“clause-by-clause” reexamination of Article I that Allen pro-
`poses. See supra, at 7. To the contrary, it points to a good-
`for-one-clause-only holding.
`
`And even if Katz’s confines were not so clear, Florida Pre-
`
`paid, together with stare decisis, would still doom Allen’s
`
`argument. As Allen recognizes, if the Intellectual Property
`
`Clause permits the CRCA’s abrogation, it also would permit
`
`the Patent Remedy Act’s. See Tr. of Oral Arg. 9 (predicting
`that if his position prevailed, “ultimately, the Patent Rem-
`edy Act would be revisited and properly upheld as a valid
`
`exercise of Congress’s Article I power”). Again, there is no
`
`difference between copyrights and patents under the
`Clause, nor any material difference between the two stat-
`utes’ provisions. See supra, at 3, and n. 1, 6. So we would
`
`have to overrule Florida Prepaid if we were to decide this
`case Allen’s way. But stare decisis, this Court has under-
`
`stood, is a “foundation stone of the rule of law.” Michigan
`
`v. Bay Mills Indian Community, 572 U. S. 782, 798 (2014).
`
`To reverse a decision, we demand a “special justification,”
`over and above the belief “that the precedent was wrongly
`decided.” Halliburton Co. v. Erica P. John Fund, Inc., 573
`
`
`U. S. 258, 266 (2014). Allen offers us nothing special at all;
`he contends only that if the Court were to use a clause-by-
`
`clause approach, it would discover that Florida Prepaid was
`wrong (because, he says again, the decision misjudged Con-
`
`gress’s authority under the Intellectual Property Clause).
`
`See Brief for Petitioners 37; supra, at 6–7. And with that
`
`
`
`
`
`
`
`

`

`10
`
`
`ALLEN v. COOPER
`
`Opinion of the Court
`charge of error alone, Allen cannot overcome stare decisis.
`B
`
`Section 5 of the Fourteenth Amendment, unlike almost
`all of Article I, can authorize Congress to strip the States of
`immunity. The Fourteenth Amendment “fundamentally al-
`tered the balance of state and federal power” that the orig-
`
`inal Constitution and the Eleventh Amendment struck.
`Seminole Tribe, 517 U. S., at 59. Its first section imposes
`prohibitions on the States, including (as relevant here) that
`none may “deprive any person of life, liberty, or property,
`without due process of law.” Section 5 then gives Congress
`the “power to enforce, by appropriate legislation,” those lim-
`itations on the States’ authority. That power, the Court has
`long held, may enable Congress to abrogate the States’ im-
`munity and thus subject them to suit in federal court. See
`Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976).
`
`For an abrogation statute to be “appropriate” under Sec-
`tion 5, it must be tailored to “remedy or prevent” conduct
`infringing the Fourteenth Amendment’s substantive prohi-
`bitions. City of Boerne v. Flores, 521 U. S. 507, 519 (1997).
`Congress can permit suits against States for actual viola-
`tions of the rights guaranteed in Section 1. See Fitzpatrick,
`427 U. S., at 456. And to deter those violations, it can allow
`suits against States for “a somewhat broader swath of con-
`duct,” including acts constitutional in themselves. Kimel,
`528 U. S., at 81. But Congress cannot use its “power to en-
`
`force” the Fourteenth Amendment to alter what that
`Amendment bars. See id., at 88 (prohibiting Congress from
`“substantively redefin[ing]” the Fourteenth Amendment’s
`requirements). That means a congressional abrogation is
`valid under Section 5 only if it sufficiently connects to con-
`duct courts have held Section 1 to proscribe.
`
`
`To decide whether a law passes muster, this Court has
`framed a type of means-end test. For Congress’s action to
`
`fall within its Section 5 authority, we have said, “[t]here
`
`
`
`
`
`
`
`
`

`

`
`
` 11
`
`
`
`
`
`
`
`
` Cite as: 589 U. S. ____ (2020)
`
`Opinion of the Court
`must be a congruence and proportionality between the in-
`jury to be prevented or remedied and the means adopted to
`
`
`that end.” Boerne, 521 U. S., at 520. On the one hand,
`courts are to consider the constitutional problem Congress
`faced—both the nature and the extent of state conduct vio-
`lating the Fourteenth Amendment. That assessment usu-
`ally (though not inevitably) focuses on the legislative rec-
`ord, which shows the evidence Congress had before it of a
`
`constitutional wrong. See Florida Prepaid, 527 U. S., at
`646. On the other hand, courts are to examine the scope of
`
`
`the response Congress chose to address that injury. Here,
`
`a critical question is how far, and for what reasons, Con-
`gress has gone beyond redressing actual constitutional vio-
`lations. Hard problems often require forceful responses
`and, as noted above, Section 5 allows Congress to “enact[]
`
`reasonably prophylactic legislation” to deter constitutional
`harm. Kimel, 528 U. S., at 88; Boerne, 521 U. S., at 536
`
`(Congress’s conclusions on that score are “entitled to much
`deference”); supra, at 10. But “[s]trong measures appropri-
`ate to address one harm may be an unwarranted response
`to another, lesser one.” Boerne, 521 U. S., at 530. Always,
`what Congress has done must be in keeping with the Four-
`teenth Amendment rules it has the power to “enforce.”
`
`All this raises the question: When does the Fourteenth
`Amendment care about copyright infringement? Some-
`times, no doubt. Copyrights are a form of property. See Fox
`Film Corp. v. Doyal, 286 U. S. 123, 128 (1932). And the
`
`Fourteenth Amendment bars the States from “depriv[ing]”
`
`a person of property “without due process of law.” But even
`if sometimes, by no means always. Under our precedent, a
`merely negligent act does not “deprive” a person of prop-
`
`erty. See Daniels v. Williams, 474 U. S. 327, 328 (1986). So
`
`an infringement must be intentional, or at least reckless, to
`
`come within the reach of the Due Process Clause. See id.,
`
`at 334, n. 3 (reserving whether reckless conduct suffices).
`And more: A State cannot violate that Clause unless it fails
`
`
`
`
`
`

`

`12
`
`
`ALLEN v. COOPER
`
`Opinion of the Court
`to offer an adequate remedy for an infringement, because
`such a remedy itself satisfies the demand of “due process.”
`See Hudson v. Palmer, 468 U. S. 517, 533 (1984). That
`
`means within the broader world of state copyright infringe-
`ment is a smaller one where the Due Process Clause comes
`into play.
`
`Because the same is true of patent infringement, Florida
`
`Prepaid again serves as the critical precedent. That deci-
`
`sion defined the scope of unconstitutional infringement in
`line with the caselaw cited above—as intentional conduct
`
`for which there is no adequate state remedy. See 527 U. S.,
`at 642–643, 645. It then searched for evidence of that sort
`of infringement in the legislative record of the Patent Rem-
`edy Act. And it determined that the statute’s abrogation of
`immunity—again, the equivalent of the CRCA’s—was out
`of all proportion to what it found. That analysis is the start-
`ing point of our inquiry here. And indeed, it must be the
`ending point too unless the evidence of unconstitutional in-
`fringement is materially different for copyrights than pa-
`tents. Consider once more, then, Florida Prepaid, now not
`on Article I but on Section 5.
`
`
`In enacting the Patent Remedy Act, Florida Prepaid
`found, Congress did not identify a pattern of unconstitu-
`tional patent infringement. To begin with, we explained,
`there was only thin evidence of States infringing patents at
`all—putting aside whether those actions violated due pro-
`cess. The House Report, recognizing that “many states
`comply with patent law,” offered just two examples of pa-
`
`tent infringement suits against the States. Id., at 640
`
`(quoting H. R. Rep. No. 101–960, pt. 1, p. 38 (1990)). The
`appellate court below, boasting some greater research
`prowess, discovered another seven in the century-plus be-
`
`tween 1880 and 1990. See 527 U. S., at 640. Even the bill’s
`
`House sponsor conceded the lack of “any evidence” of “wide-
`spread violation of patent laws.” Id., at 641 (quoting state-
`
`
`ment of Rep. Kastenmeier). What was more, there was no
`
`
`
`
`
`
`
`

`

`
`
` 13
`
`
`
`
`
` Cite as: 589 U