(dissenting). We dissent because we believe that the state is a "person” within the meaning of § 1983. Viewed in the light of its legislative history and its remedial purpose, § 1983 is the appropriate mechanism for securing federal *653constitutional rights which the state allegedly has violated.
Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
In a § 1983 case, there are two essential elements. First, the act complained of must have been done by a person acting under color of state law, and, second, this act must have deprived the plaintiff of rights, privileges, or immunities secured by the constitution or laws of the United States.
The use of the word "person” in § 1983 is a term of art. Whether the word "person” was meant by the 42nd Congress to include a state has been the source of conflicting opinions in the United States Supreme Court, the federal and state courts, and among the commentators.1
As the lead opinion correctly states, the United States Supreme Court in Quern v Jordan, 440 US *654332; 99 S Ct 1139; 59 L Ed 2d 358 (1979), never explicitly addressed the issue whether the term "person” in § 1983 included states. The focus of the majority in Quern was whether Congress, in enacting § 1983, intended to abrogate the immunity of the states from suit in federal court. In the opinion, the majority was primarily concerned with the scope of the states’ Eleventh Amendment immunity from suits which would impose a liability which must be paid from public funds in the state treasury.
However, Justice Brennan argued in his opinion, concurring in the judgment in Quern that § 1983 was enacted for the purpose of enforcing the provisions of the Fourteenth Amendment.2 "That Amendment,” Justice Brennan stated, "exemplifies the 'vast transformation’ worked on the structure of federalism in this Nation by the Civil War.” Quern, 354.
The prohibitions of the Fourteenth Amendment " 'are directed to the States .... They have reference to actions of the political body denominated a State, by whatever instruments or in whatever modes that action may be taken.’ ” Id., 355. Justice Brennan, after reviewing the history of the Fourteenth Amendment, the language and legislative history of § 1983, and the language of the Dictionary Act, which defined "person” by referring to "bodies politic,” concluded that the term "person” in § 1983 encompassed states. We agree. We find Justice Brennan’s interpretation of the intent of *655the 42nd Congress to include the states as "persons” in § 1983 actions to be persuasive. It serves no purpose to further review that history here.
Section 1983 suits are routinely decided in the courts of this state when the defendant is a "person” and is other than the State of Michigan.3 Under the Supremacy Clause of the United States Constitution,4 we are duty-bound to enforce the provisions of the United States Constitution as well as valid federal laws. The defendants argue that not only is a state not a person within the meaning of § 1983, but that the state has immunity from being sued directly under the doctrine of sovereign immunity.
Under the doctrine of sovereign immunity, the state, as sovereign, cannot be sued unless the sovereign has consented to suit.
The doctrine is based on English law and rests on the theory that "the king can do no wrong.”5 But the jurisprudence of medieval England has little relevance to America in the twentieth century. The rule of sovereign immunity is a comm on - law rule and is not of constitutional dimension. *656The rule has been repeatedly invoked in Michigan6 to hold the state immune from all suits except to the extent that it consented to be sued in its courts.
The courts of this state have frequently applied the doctrine of sovereign immunity without distinguishing between constitutional and nonconstitutional courses of action. Yet this distinction is of crucial import in this case. The plaintiffs here alleged conduct by the state which infringed rights which are fundamental under the United States Constitution.7 Yet the lead opinion would hold that the plaintiffs have no remedy for these alleged acts and that therefore the state and its officials are answerable to no one for the alleged damage caused by their conduct.
We find this result deeply disturbing. Certainly this Court has the obligation to protect the fundamental constitutional rights of its citizens and § 1983 provides the mechanism by which citizens can gain redress against the government for alleged unconstitutional conduct by the state. As one commentator observed: "It is a magnificent historical irony that America, a republic whose independence was declared in a document indicting the sovereign for treasonous acts, should adopt without serious examination the doctrine of sovereign immunity.”8 It is even more ironic that under state law, citizens who allege nonconstitutional tortious injuries may sue governmental agencies, both state and local, for their conduct,9 yet there is no rem*657edy for plaintiffs in this case. Neither sovereign immunity nor statutory immunity should bar relief when the state allegedly has violated the constitutional rights of its citizens.
In view of the holding on this issue, we do not reach the remaining issues raised in these cases. While we do not address the other issues, we do find that an allegation of an intentional tort is not barred by the governmental immunity statute because such an activity does not constitute a governmental function. Lockaby v Wayne Co, 406 Mich 65, 77; 276 NW2d 1 (1979).
In sum, because the common-law doctrine of sovereign immunity is inapplicable to bar suits against a state for alleged infringement of fundamental constitutional rights, we would reverse the decision of the Court of Appeals in Will, and affirm the decision of the Court of Appeals in Smith.
We are in dissent in Will, but Justice Boyle with Justice Cavanagh concurring would, in ac*658cord with the Court of Appeals, remand in Smith to the Court of Claims for further proceedings. We join in remand. We would not, however, limit the remand in Smith to a determination of whether the alleged constitutional violation occurred by "virtue of a governmental custom or policy” or whether a "damage remedy is proper,” and do not agree that those limitations should be imposed on a remedy for constitutional violation. We nevertheless join in remand in Smith for further proceedings to determine, as stated in Justice Boyle’s opinion, "whether a violation of the Michigan Constitution occurred by virtue of a governmental custom or policy, and, if such a violation occurred, whether it is one for which a damage remedy is proper.”
Levin, J., concurred with Archer, J. Griffin, J., took no part in the decision of these cases.See, e.g., Della Grotta v Rhode Island, 781 F2d 343 (CA 1, 1986) (a state is a "person” within § 1983 such that, where it has voluntarily waived its Eleventh Amendment immunity to suit in federal court, it may be held liable in the same respect as municipalities and local units of government); Stanton v Godfrey, 415 NE2d 103 (Ind App, 1981) (the Department of Public Welfare is a person under § 1983 and is a proper defendant); Weisbord v Michigan State Univ, 495 F Supp 1347 (WD Mich, 1980) (a state university, its board of trustees, and president were "persons” within the meaning of this section); and Uberoi v Univ of Colorado, 713 P2d 894 (Colo, 1986) (a state university is a "person” under § 1983).
The Fourteenth Amendment of the United States Constitution provides in pertinent part:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Dudley v Genesee Co Sheriff, 50 Mich App 678; 213 NW2d 805 (1973).
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [US Const, art VI, §2.]
State sovereign immunity has been the subject of a vast commentary. See Borchard, Governmental responsibility in tort, 36 Yale L J 1, 17 (1926); Jaffe, Suits against governments and officers: Sovereign immunity, 77 Harv L R 1 (1963); Note, State remedies for federally created rights, 47 Minn L R 815 (1963); Wolcher, Sovereign immunity and the Supremacy Clause: Damages against states in their own courts for constitutional violations, 69 Cal L R 189 (1981).
While it is true that suit against state officials is possible in some circumstances, it would be particularly difficult in these cases.
Because of the issues the plaintiffs have raised, these cases would not be barred by the result of Daniels v Williams, 474 US 327; 106 S Ct 662; 88 L Ed 2d 662 (1986).
Note, Rethinking sovereign immunity after Bivens, 57 NYU L R 597, 607 (1982).
Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 591; 363 NW2d 641 (1984):
*6571) All governmental agencies (state and local) are statutorily liable for injuries arising out of the failure to keep highways in reasonable repair (MCL 691.1402; MSA 3.996[102]), negligent operation of a government-owned motor vehicle by an officer, agent, or employee (MCL 691.1405; MSA 3.996[105]), and dangerous or defective conditions in public buildings under the agency’s control (MCL 691.1406; MSA 3.996[106]).
2) All governmental agencies (state and local) have tort liability for injuries arising out of the performance of a proprietary function. "Proprietary function” is defined as any activity conducted primarily for pecuniary profit, excluding activities normally supported by taxes or fees (see MCL 691.1413; MSA 3.996[113]).
3) . . . An agency’s ultra vires activities are . . . not entitled to immunity.
4) All governmental agencies (state and local) are vicariously liable for the negligent operation of government-owned motor vehicles by their officers, employees, and agents (MCL 691.1405; MSA 3.996[105]). Vicarious liability for all other torts may be imposed on a governmental agency only when its officer, employee, or agent, acting during the course of his employment and within the scope of his authority, commits a tort while engaged in an activity which is non-governmental or proprietary, or which falls within a statutory exception.