|||SUPREME COURT OF THE UNITED STATES
|||Nos. 99-5 and 99-29
|||May 15, 2000
|||UNITED STATES, PETITIONER
ANTONIO J. MORRISON ET AL.
CHRISTY BRZONKALA, PETITIONER
ANTONIO J. MORRISON ET AL.
|||SYLLABUS BY THE COURT
|||OCTOBER TERM, 1999
|||UNITED STATES v. MORRISON
|||SUPREME COURT OF THE UNITED STATES
|||UNITED STATES v. MORRISON et al.
|||Certiorari To The United States Court Of Appeals For The Fourth Circuit
|||Argued January 11, 2000
|||Decided May 15, 2000*fn1
|||Petitioner Brzonkala filed suit, alleging, inter alia, that she was raped
by respondents while the three were students at the Virginia Polytechnic
Institute, and that this attack violated 42 U. S. C. §13981, which provides
a federal civil remedy for the victims of gender-motivated violence. Respondents
moved to dismiss on the grounds that the complaint failed to state a claim
and that §13981's civil remedy is unconstitutional. Petitioner United States
intervened to defend the section's constitutionality. In dismissing the
complaint, the District Court held that it stated a claim against respondents,
but that Congress lacked authority to enact §13981 under either §8 of the
Commerce Clause or §5 of the Fourteenth Amendment, which Congress had explicitly
identified as the sources of federal authority for §13981. The en banc Fourth
|||Held: Section 13981 cannot be sustained under the Commerce Clause or §5
of the Fourteenth Amendment. Pp. 7-28.
|||(a) The Commerce Clause does not provide Congress with authority to enact
§13981's federal civil remedy. A congressional enactment will be invalidated
only upon a plain showing that Congress has exceeded its constitutional
bounds. See United States v. Lopez, 514 U. S. 549, 568, 577-578. Petitioners
assert that §13981 can be sustained under Congress' commerce power as a
regulation of activity that substantially affects interstate commerce. The
proper framework for analyzing such a claim is provided by the principles
the Court set out in Lopez. First, in Lopez, the non-economic, criminal
nature of possessing a firearm in a school zone was central to the Court's
conclusion that Congress lacks authority to regulate such possession. Similarly,
gender-motivated crimes of violence are not, in any sense, economic activity.
Second, like the statute at issue in Lopez, §13981 contains no jurisdictional
element establishing that the federal cause of action is in pursuance of
Congress' regulation of interstate commerce. Although Lopez makes clear
that such a jurisdictional element would lend support to the argument that
§13981 is sufficiently tied to interstate commerce to come within Congress'
authority, Congress elected to cast §13981's remedy over a wider, and more
purely intrastate, body of violent crime. Third, although §13981, unlike
the Lopez statute, is supported by numerous findings regarding the serious
impact of gender-motivated violence on victims and their families, these
findings are substantially weakened by the fact that they rely on reasoning
that this Court has rejected, namely a but-for causal chain from the initial
occurrence of violent crime to every attenuated effect upon interstate commerce.
If accepted, this reasoning would allow Congress to regulate any crime whose
nationwide, aggregated impact has substantial effects on employment, production,
transit, or consumption. Moreover, such reasoning will not limit Congress
to regulating violence, but may be applied equally as well to family law
and other areas of state regulation since the aggregate effect of marriage,
divorce, and childrearing on the national economy is undoubtedly significant.
The Constitution requires a distinction between what is truly national and
what is truly local, and there is no better example of the police power,
which the Founders undeniably left reposed in the States and denied the
central government, than the suppression of violent crime and vindication
of its victims. Congress therefore may not regulate non-economic, violent
criminal conduct based solely on the conduct's aggregate effect on interstate
commerce. Pp. 7-19.
|||(b) Section 5 of the Fourteenth Amendment, which permits Congress to enforce
by appropriate legislation the constitutional guarantee that no State shall
deprive any person of life, liberty, or property, without due process or
deny any person equal protection of the laws, City of Boerne v. Flores,
521 U. S. 507, 517, also does not give Congress the authority to enact §13981.
Petitioners' assertion that there is pervasive bias in various state justice
systems against victims of gender-motivated violence is supported by a voluminous
congressional record. However, the Fourteenth Amendment places limitations
on the manner in which Congress may attack discriminatory conduct. Foremost
among them is the principle that the Amendment prohibits only state action,
not private conduct. This was the conclusion reached in United States v.
Harris, 106 U. S. 629, and the Civil Rights Cases, 109 U. S. 3, which were
both decided shortly after the Amendment's adoption. The force of the doctrine
of stare decisis behind these decisions stems not only from the length of
time they have been on the books, but also from the insight attributable
to the Members of the Court at that time, who all had intimate knowledge
and familiarity with the events surrounding the Amendment's adoption. Neither
United States v. Guest, 383 U. S. 745, nor District of Columbia v. Carter,
409 U. S. 418, casts any doubt on the enduring vitality of the Civil Rights
Cases and Harris. Assuming that there has been gender-based disparate treatment
by state authorities in this case, it would not be enough to save §13981's
civil remedy, which is directed not at a State or state actor but at individuals
who have committed criminal acts motivated by gender bias. Section 13981
visits no consequence on any Virginia public official involved in investigating
or prosecuting Brzonkala's assault, and it is thus unlike any of the §5
remedies this Court has previously upheld. See e.g., South Carolina v. Katzenbach,
383 U. S. 301. Section 13981 is also different from previously upheld remedies
in that it applies uniformly throughout the Nation, even though Congress'
findings indicate that the problem addressed does not exist in all, or even
most, States. In contrast, the §5 remedy in Katzenbach was directed only
to those States in which Congress found that there had been discrimination.
|||169 F. 3d 820, affirmed.
|||Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor,
Scalia, Kennedy, and Thomas, JJ., joined. Thomas, J., filed a concurring
opinion. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg,
and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which
Stevens, J., joined, and in which Souter and Ginsburg, JJ., joined as to
|||Court Below: 169 F. 3d 820
|||The opinion of the court was delivered by: Chief Justice Rehnquist
|||Opinion of the Court
|||UNITED STATES v. MORRISON
|||on writs of certiorari to the united states court of appeals for the fourth
|||In these cases we consider the constitutionality of 42 U. S. C. §13981,
which provides a federal civil remedy for the victims of gender-motivated
violence. The United States Court of Appeals for the Fourth Circuit, sitting
en banc, struck down §13981 because it concluded that Congress lacked constitutional
authority to enact the section's civil remedy. Believing that these cases
are controlled by our decisions in United States v. Lopez, 514 U. S. 549
(1995), United States v. Harris, 106 U. S. 629 (1883), and the Civil Rights
Cases, 109 U. S. 3 (1883), we affirm.
|||Petitioner Christy Brzonkala enrolled at Virginia Polytechnic Institute
(Virginia Tech) in the fall of 1994. In September of that year, Brzonkala
met respondents Antonio Morrison and James Crawford, who were both students
at Virginia Tech and members of its varsity football team. Brzonkala alleges
that, within 30 minutes of meeting Morrison and Crawford, they assaulted
and repeatedly raped her. After the attack, Morrison allegedly told Brzonkala,
"You better not have any ... diseases." Complaint ¶ ;22. In the
months following the rape, Morrison also allegedly announced in the dormitory's
dining room that he "like[d] to get girls drunk and ... ." Id.,
¶ ;31. The omitted portions, quoted verbatim in the briefs on file with
this Court, consist of boasting, debased remarks about what Morrison would
do to women, vulgar remarks that cannot fail to shock and offend.
|||Brzonkala alleges that this attack caused her to become severely emotionally
disturbed and depressed. She sought assistance from a university psychiatrist,
who prescribed antidepressant medication. Shortly after the rape Brzonkala
stopped attending classes and withdrew from the university.
|||In early 1995, Brzonkala filed a complaint against respondents under Virginia
Tech's Sexual Assault Policy. During the school-conducted hearing on her
complaint, Morrison admitted having sexual contact with her despite the
fact that she had twice told him "no." After the hearing, Virginia
Tech's Judicial Committee found insufficient evidence to punish Crawford,
but found Morrison guilty of sexual assault and sentenced him to immediate
suspension for two semesters.
|||Virginia Tech's dean of students upheld the judicial committee's sentence.
However, in July 1995, Virginia Tech informed Brzonkala that Morrison intended
to initiate a court challenge to his conviction under the Sexual Assault
Policy. University officials told her that a second hearing would be necessary
to remedy the school's error in prosecuting her complaint under that policy,
which had not been widely circulated to students. The university therefore
conducted a second hearing under its Abusive Conduct Policy, which was in
force prior to the dissemination of the Sexual Assault Policy. Following
this second hearing the Judicial Committee again found Morrison guilty and
sentenced him to an identical 2-semester suspension. This time, however,
the description of Morrison's offense was, without explanation, changed
from "sexual assault" to "using abusive language."
|||Morrison appealed his second conviction through the university's administrative
system. On August 21, 1995, Virginia Tech's senior vice president and provost
set aside Morrison's punishment. She concluded that it was " `excessive
when compared with other cases where there has been a finding of violation
of the Abusive Conduct Policy,' " 132 F. 3d 950, 955 (CA4 1997). Virginia
Tech did not inform Brzonkala of this decision. After learning from a newspaper
that Morrison would be returning to Virginia Tech for the fall 1995 semester,
she dropped out of the university.
|||In December 1995, Brzonkala sued Morrison, Crawford, and Virginia Tech
in the United States District Court for the Western District of Virginia.
Her complaint alleged that Morrison's and Crawford's attack violated §13981
and that Virginia Tech's handling of her complaint violated Title IX of
the Education Amendments of 1972, 86 Stat. 373-375, 20 U. S. C. §§1681-1688.
Morrison and Crawford moved to dismiss this complaint on the grounds that
it failed to state a claim and that §13981's civil remedy is unconstitutional.
The United States, petitioner in No. 99-5, intervened to defend §13981's
|||The District Court dismissed Brzonkala's Title IX claims against Virginia
Tech for failure to state a claim upon which relief can be granted. See
Brzonkala v. Virginia Polytechnic and State Univ., 935 F. Supp. 772 (WD
Va. 1996). It then held that Brzonkala's complaint stated a claim against
Morrison and Crawford under §13981, but dismissed the complaint because
it concluded that Congress lacked authority to enact the section under either
the Commerce Clause or §5 of the Fourteenth Amendment. Brzonkala v. Virginia
Polytechnic and State Univ., 935 F. Supp. 779 (WD Va. 1996).
|||A divided panel of the Court of Appeals reversed the District Court, reinstating
Brzonkala's §13981 claim and her Title IX hostile environment claim.*fn2
Brzonkala v. Virginia Polytechnic and State Univ., 132 F. 3d 949 (CA4 1997).
The full Court of Appeals vacated the panel's opinion and reheard the case
en banc. The en banc court then issued an opinion affirming the District
Court's conclusion that Brzonkala stated a claim under §13981 because her
complaint alleged a crime of violence and the allegations of Morrison's
crude and derogatory statements regarding his treatment of women sufficiently
indicated that his crime was motivated by gender animus.*fn3
Nevertheless, the court by a divided vote affirmed the District Court's
conclusion that Congress lacked constitutional authority to enact §13981's
civil remedy. Brzonkala v. Virginia Polytechnic and State Univ., 169 F.
3d 820 (CA4 1999). Because the Court of Appeals invalidated a federal statute
on constitutional grounds, we granted certiorari. 527 U. S. 1068 (1999).
|||Section 13981 was part of the Violence Against Women Act of 1994, §40302,
108 Stat. 1941-1942. It states that "[a]ll persons within the United
States shall have the right to be free from crimes of violence motivated
by gender." 42 U. S. C. §13981(b). To enforce that right, subsection
|||"A person (including a person who acts under color of any statute,
ordinance, regulation, custom, or usage of any State) who commits a crime
of violence motivated by gender and thus deprives another of the right declared
in subsection (b) of this section shall be liable to the party injured,
in an action for the recovery of compensatory and punitive damages, injunctive
and declaratory relief, and such other relief as a court may deem appropriate."
|||Section 13981 defines a "crim[e] of violence motivated by gender"
as "a crime of violence committed because of gender or on the basis
of gender, and due, at least in part, to an animus based on the victim's
gender." §13981(d)(1). It also provides that the term "crime of
violence" includes any
|||"(A) ... act or series of acts that would constitute a felony against
the person or that would constitute a felony against property if the conduct
presents a serious risk of physical injury to another, and that would come
within the meaning of State or Federal offenses described in section 16
of Title 18, whether or not those acts have actually resulted in criminal
charges, prosecution, or conviction and whether or not those acts were committed
in the special maritime, territorial, or prison jurisdiction of the United
|||"(B) includes an act or series of acts that would constitute a felony
described in subparagraph (A) but for the relationship between the person
who takes such action and the individual against whom such action is taken."
|||Further clarifying the broad scope of §13981's civil remedy, subsection
(e)(2) states that "[n]othing in this section requires a prior criminal
complaint, prosecution, or conviction to establish the elements of a cause
of action under subsection (c) of this section." And subsection (e)(3)
provides a §13981 litigant with a choice of forums: Federal and state courts
"shall have concurrent jurisdiction" over complaints brought under
|||Although the foregoing language of §13981 covers a wide swath of criminal
conduct, Congress placed some limitations on the section's federal civil
remedy. Subsection (e)(1) states that "[n]othing in this section entitles
a person to a cause of action under subsection (c) of this section for random
acts of violence unrelated to gender or for acts that cannot be demonstrated,
by a preponderance of the evidence, to be motivated by gender." Subsection
(e)(4) further states that §13981 shall not be construed "to confer
on the courts of the United States jurisdiction over any State law claim
seeking the establishment of a divorce, alimony, equitable distribution
of marital property, or child custody decree."
|||Every law enacted by Congress must be based on one or more of its powers
enumerated in the Constitution. "The powers of the legislature are
defined and limited; and that those limits may not be mistaken or forgotten,
the constitution is written." Marbury v. Madison, 1 Cranch 137, 176
(1803) (Marshall, C. J.). Congress explicitly identified the sources of
federal authority on which it relied in enacting §13981. It said that a
"federal civil rights cause of action" is established "[p]ursuant
to the affirmative power of Congress ... under section 5 of the Fourteenth
Amendment to the Constitution, as well as under section 8 of Article I of
the Constitution." 42 U. S. C. §13981(a). We address Congress' authority
to enact this remedy under each of these constitutional provisions in turn.
|||Due respect for the decisions of a coordinate branch of Government demands
that we invalidate a congressional enactment only upon a plain showing that
Congress has exceeded its constitutional bounds. See United States v. Lopez,
514 U. S., at 568, 577-578 (Kennedy, J., concurring); United States v. Harris,
106 U. S., at 635. With this presumption of constitutionality in mind, we
turn to the question whether §13981 falls within Congress' power under Article
I, §8, of the Constitution. Brzonkala and the United States rely upon the
third clause of the Article, which gives Congress power "[t]o regulate
Commerce with foreign Nations, and among the several States, and with the
|||As we discussed at length in Lopez, our interpretation of the Commerce
Clause has changed as our Nation has developed. See Lopez, 514 U. S., at
552-557; id., at 568-574 (Kennedy, J., concurring); id., at 584, 593-599
(Thomas, J., concurring). We need not repeat that detailed review of the
Commerce Clause's history here; it suffices to say that, in the years since
NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937), Congress has
had considerably greater latitude in regulating conduct and transactions
under the Commerce Clause than our previous case law permitted. See Lopez,
514 U. S., at 555-556; id., at 573-574 (Kennedy, J., concurring).
|||Lopez emphasized, however, that even under our modern, expansive interpretation
of the Commerce Clause, Congress' regulatory authority is not without effective
bounds. Id., at 557.
|||"[E]ven [our] modern-era precedents which have expanded congressional
power under the Commerce Clause confirm that this power is subject to outer
limits. In Jones & Laughlin Steel, the Court warned that the scope of
the interstate commerce power `must be considered in the light of our dual
system of government and may not be extended so as to embrace effects upon
interstate commerce so indirect and remote that to embrace them, in view
of our complex society, would effectually obliterate the distinction between
what is national and what is local and create a completely centralized government.'
" Id., at 556-557 (quoting Jones & Laughlin Steel, supra, at 37).*fn4
|||As we observed in Lopez, modern Commerce Clause jurisprudence has "identified
three broad categories of activity that Congress may regulate under its
commerce power." 514 U. S., at 558 (citing Hodel v. Virginia Surface
Mining & Reclamation Assn., Inc., 452 U. S. 264, 276-277 (1981); Perez
v. United States, 402 U. S. 146, 150 (1971)). "First, Congress may
regulate the use of the channels of interstate commerce." 514 U. S.,
at 558 (citing Heart of Atlanta Motel, Inc. v. United States, 379 U. S.
241, 256 (1964); United States v. Darby, 312 U. S. 100, 114 (1941)). "Second,
Congress is empowered to regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even though the threat
may come only from intrastate activities." 514 U. S., at 558 (citing
Shreveport Rate Cases, 234 U. S. 342 (1914); Southern R. Co. v. United States,
222 U. S. 20 (1911); Perez, supra, at 150). "Finally, Congress' commerce
authority includes the power to regulate those activities having a substantial
relation to interstate commerce, ... i.e., those activities that substantially
affect interstate commerce." 514 U. S., at 558-559 (citing Jones &
Laughlin Steel, supra, at 37).
|||Petitioners do not contend that these cases fall within either of the
first two of these categories of Commerce Clause regulation. They seek to
sustain §13981 as a regulation of activity that substantially affects interstate
commerce. Given §13981's focus on gender-motivated violence wherever it
occurs (rather than violence directed at the instrumentalities of interstate
commerce, interstate markets, or things or persons in interstate commerce),
we agree that this is the proper inquiry.
|||Since Lopez most recently canvassed and clarified our case law governing
this third category of Commerce Clause regulation, it provides the proper
framework for conducting the required analysis of §13981. In Lopez, we held
that the Gun-Free School Zones Act of 1990, 18 U. S. C. §922(q)(1)(A), which
made it a federal crime to knowingly possess a firearm in a school zone,
exceeded Congress' authority under the Commerce Clause. See 514 U. S., at
551. Several significant considerations contributed to our decision.
|||First, we observed that §922(q) was "a criminal statute that by its
terms has nothing to do with `commerce' or any sort of economic enterprise,
however broadly one might define those terms." Id., at 561. Reviewing
our case law, we noted that "we have upheld a wide variety of congressional
Acts regulating intrastate economic activity where we have concluded that
the activity substantially affected interstate commerce." Id., at 559.
Although we cited only a few examples, including Wickard v. Filburn, 317
U. S. 111 (1942); Hodel, supra; Perez, supra; Katzenbach v. McClung, 379
U. S. 294 (1964); and Heart of Atlanta Motel, supra, we stated that the
pattern of analysis is clear. Lopez, 514 U. S., at 559-560. "Where
economic activity substantially affects interstate commerce, legislation
regulating that activity will be sustained." Id., at 560.
|||Both petitioners and Justice Souter's dissent downplay the role that the
economic nature of the regulated activity plays in our Commerce Clause analysis.
But a fair reading of Lopez shows that the non-economic, criminal nature
of the conduct at issue was central to our decision in that case. See, e.g.,
id., at 551 ("The Act [does not] regulat[e] a commercial activity"),
560 ("Even Wickard, which is perhaps the most far reaching example
of Commerce Clause authority over intrastate activity, involved economic
activity in a way that the possession of a gun in a school zone does not"),
561 ("Section 922(q) is not an essential part of a larger regulation
of economic activity"), 566 ("Admittedly, a determination whether
an intrastate activity is commercial or noncommercial may in some cases
result in legal uncertainty. But, so long as Congress' authority is limited
to those powers enumerated in the Constitution, and so long as those enumerated
powers are interpreted as having judicially enforceable outer limits, congressional
legislation under the Commerce Clause always will engender `legal uncertainty'
"), 567 ("The possession of a gun in a local school zone is in
no sense an economic activity that might, through repetition elsewhere,
substantially affect any sort of interstate commerce"); see also id.,
at 573-574 (Kennedy, J., concurring) (stating that Lopez did not alter our
"practical conception of commercial regulation" and that Congress
may "regulate in the commercial sphere on the assumption that we have
a single market and a unified purpose to build a stable national economy"),
577 ("Were the Federal Government to take over the regulation of entire
areas of traditional state concern, areas having nothing to do with the
regulation of commercial activities, the boundaries between the spheres
of federal and state authority would blur"), 580 ("[U]nlike the
earlier cases to come before the Court here neither the actors nor their
conduct has a commercial character, and neither the purposes nor the design
of the statute has an evident commercial nexus. The statute makes the simple
possession of a gun within 1,000 feet of the grounds of the school a criminal
offense. In a sense any conduct in this interdependent world of ours has
an ultimate commercial origin or consequence, but we have not yet said the
commerce power may reach so far" (citation omitted)). Lopez's review
of Commerce Clause case law demonstrates that in those cases where we have
sustained federal regulation of intrastate activity based upon the activity's
substantial effects on interstate commerce, the activity in question has
been some sort of economic endeavor. See id., at 559- 560.*fn5
|||The second consideration that we found important in analyzing §922(q)
was that the statute contained "no express jurisdictional element which
might limit its reach to a discrete set of firearm possessions that additionally
have an explicit connection with or effect on interstate commerce."
Id., at 562. Such a jurisdictional element may establish that the enactment
is in pursuance of Congress' regulation of interstate commerce.
|||Third, we noted that neither §922(q) " `nor its legislative history
contain[s] express congressional findings regarding the effects upon interstate
commerce of gun possession in a school zone.' " Ibid. (quoting Brief
for United States, O.T. 1994, No. 93-1260, pp. 5-6). While "Congress
normally is not required to make formal findings as to the substantial burdens
that an activity has on interstate commerce," 514 U. S., at 562 (citing
McClung, 379 U. S., at 304; Perez, 402 U. S., at 156), the existence of
such findings may "enable us to evaluate the legislative judgment that
the activity in question substantially affect[s] interstate commerce, even
though no such substantial effect [is] visible to the naked eye." 514
U. S., at 563.
|||Finally, our decision in Lopez rested in part on the fact that the link
between gun possession and a substantial effect on interstate commerce was
attenuated. Id., at 563-567. The United States argued that the possession
of guns may lead to violent crime, and that violent crime "can be expected
to affect the functioning of the national economy in two ways. First, the
costs of violent crime are substantial, and, through the mechanism of insurance,
those costs are spread throughout the population. Second, violent crime
reduces the willingness of individuals to travel to areas within the country
that are perceived to be unsafe." Id., at 563-564 (citation omitted).
The Government also argued that the presence of guns at schools poses a
threat to the educational process, which in turn threatens to produce a
less efficient and productive workforce, which will negatively affect national
productivity and thus interstate commerce. Ibid.
|||We rejected these "costs of crime" and "national productivity"
arguments because they would permit Congress to "regulate not only
all violent crime, but all activities that might lead to violent crime,
regardless of how tenuously they relate to interstate commerce." Id.,
at 564. We noted that, under this but-for reasoning:
|||"Congress could regulate any activity that it found was related to
the economic productivity of individual citizens: family law (including
marriage, divorce, and child custody), for example. Under the[se] theories
... , it is difficult to perceive any limitation on federal power, even
in areas such as criminal law enforcement or education where States historically
have been sovereign. Thus, if we were to accept the Government's arguments,
we are hard pressed to posit any activity by an individual that Congress
is without power to regulate." Ibid.
|||With these principles underlying our Commerce Clause jurisprudence as
reference points, the proper resolution of the present cases is clear. Gender-motivated
crimes of violence are not, in any sense of the phrase, economic activity.
While we need not adopt a categorical rule against aggregating the effects
of any non-economic activity in order to decide these cases, thus far in
our Nation's history our cases have upheld Commerce Clause regulation of
intrastate activity only where that activity is economic in nature. See,
e.g., id., at 559-560, and the cases cited therein.
|||Like the Gun-Free School Zones Act at issue in Lopez, §13981 contains
no jurisdictional element establishing that the federal cause of action
is in pursuance of Congress' power to regulate interstate commerce. Although
Lopez makes clear that such a jurisdictional element would lend support
to the argument that §13981 is sufficiently tied to interstate commerce,
Congress elected to cast §13981's remedy over a wider, and more purely intrastate,
body of violent crime.*fn6
|||In contrast with the lack of congressional findings that we faced in Lopez,
§13981 is supported by numerous findings regarding the serious impact that
gender-motivated violence has on victims and their families. See, e.g.,
H. R. Conf. Rep. No. 103-711, p. 385 (1994); S. Rep. No. 103- 138, p. 40
(1993); S. Rep. No. 101-545, p. 33 (1990). But the existence of congressional
findings is not sufficient, by itself, to sustain the constitutionality
of Commerce Clause legislation. As we stated in Lopez, " `[S]imply
because Congress may conclude that a particular activity substantially affects
interstate commerce does not necessarily make it so.' " 514 U. S.,
at 557, n. 2 (quoting Hodel, 452 U. S., at 311 (Rehnquist, J., concurring
in judgment)). Rather, " `[w]hether particular operations affect interstate
commerce sufficiently to come under the constitutional power of Congress
to regulate them is ultimately a judicial rather than a legislative question,
and can be settled finally only by this Court.' " 514 U. S., at 557,
n. 2 (quoting Heart of Atlanta Motel, 379 U. S., at 273 (Black, J., concurring)).
|||In these cases, Congress' findings are substantially weakened by the fact
that they rely so heavily on a method of reasoning that we have already
rejected as unworkable if we are to maintain the Constitution's enumeration
of powers. Congress found that gender-motivated violence affects interstate
|||"by deterring potential victims from traveling interstate, from engaging
in employment in interstate business, and from transacting with business,
and in places involved in interstate commerce; ... by diminishing national
productivity, increasing medical and other costs, and decreasing the supply
of and the demand for interstate products." H. R. Conf. Rep. No. 103-711,
|||Accord, S. Rep. No. 103-138, at 54. Given these findings and petitioners'
arguments, the concern that we expressed in Lopez that Congress might use
the Commerce Clause to completely obliterate the Constitution's distinction
between national and local authority seems well founded. See Lopez, supra,
at 564. The reasoning that petitioners advance seeks to follow the but-for
causal chain from the initial occurrence of violent crime (the suppression
of which has always been the prime object of the States' police power) to
every attenuated effect upon interstate commerce. If accepted, petitioners'
reasoning would allow Congress to regulate any crime as long as the nationwide,
aggregated impact of that crime has substantial effects on employment, production,
transit, or consumption. Indeed, if Congress may regulate gender-motivated
violence, it would be able to regulate murder or any other type of violence
since gender-motivated violence, as a subset of all violent crime, is certain
to have lesser economic impacts than the larger class of which it is a part.
|||Petitioners' reasoning, moreover, will not limit Congress to regulating
violence but may, as we suggested in Lopez, be applied equally as well to
family law and other areas of traditional state regulation since the aggregate
effect of marriage, divorce, and childrearing on the national econ omy is
undoubtedly significant. Congress may have recognized this specter when
it expressly precluded §13981 from being used in the family law context.*fn7
See 42 U. S. C. §13981(e)(4). Under our written Constitution, however, the
limitation of congressional authority is not solely a matter of legislative
grace.*fn8 See Lopez,
supra, at 575-579 (Kennedy, J., concurring); Marbury, 1 Cranch, at 176-178.
|||We accordingly reject the argument that Congress may regulate non-economic,
violent criminal conduct based solely on that conduct's aggregate effect
on interstate commerce. The Constitution requires a distinction between
what is truly national and what is truly local. Lopez, 514 U. S., at 568
(citing Jones & Laughlin Steel, 301 U. S., at 30). In recognizing this
fact we preserve one of the few principles that has been consistent since
the Clause was adopted. The regulation and punishment of intrastate violence
that is not directed at the instrumentalities, channels, or goods involved
in interstate commerce has always been the province of the States. See,
e.g., Cohens v. Virginia, 6 Wheat. 264, 426, 428 (1821) (Marshall, C. J.)
(stating that Congress "has no general right to punish murder committed
within any of the States," and that it is "clear ... that congress
cannot punish felonies generally"). Indeed, we can think of no better
example of the police power, which the Founders denied the National Government
and reposed in the States, than the suppression of violent crime and vindication
of its victims.*fn9 See,
e.g., Lopez, 514 U. S., at 566 ("The Constitution ... withhold[s] from
Congress a plenary police power"); id., at 584-585 (Thomas, J., concurring)
("[W]e always have rejected readings of the Commerce Clause and the
scope of federal power that would permit Congress to exercise a police power"),
596-597, and n. 6 (noting that the first Congresses did not enact nationwide
punishments for criminal conduct under the Commerce Clause).
|||Because we conclude that the Commerce Clause does not provide Congress
with authority to enact §13981, we address petitioners' alternative argument
that the section's civil remedy should be upheld as an exercise of Congress'
remedial power under §5 of the Fourteenth Amendment. As noted above, Congress
expressly invoked the Fourteenth Amendment as a source of authority to enact
|||The principles governing an analysis of congressional legislation under
§5 are well settled. Section 5 states that Congress may " `enforce,'
by `appropriate legislation' the constitutional guarantee that no State
shall deprive any person of `life, liberty or property, without due process
of law,' nor deny any person `equal protection of the laws.' " City
of Boerne v. Flores, 521 U. S. 507, 517 (1997). Section 5 is "a positive
grant of legislative power," Katzenbach v. Morgan, 384 U. S. 641, 651
(1966), that includes authority to "prohibit conduct which is not itself
unconstitutional and [to] intrud[e] into `legislative spheres of autonomy
previously reserved to the States.' " Flores, supra, at 518 (quoting
Fitzpatrick v. Bitzer, 427 U. S. 445, 455 (1976)); see also Kimel v. Florida
Bd. of Regents, 528 U. S. ___, ___ (2000) (slip op., at 16). However, "[a]s
broad as the congressional enforcement power is, it is not unlimited."
Oregon v. Mitchell, 400 U. S. 112, 128 (1970); see also Kimel, supra, at
___-___ (slip op., at 16-17). In fact, as we discuss in detail below, several
limitations inherent in §5's text and constitutional context have been recognized
since the Fourteenth Amendment was adopted.
|||Petitioners' §5 argument is founded on an assertion that there is pervasive
bias in various state justice systems against victims of gender-motivated
violence. This assertion is supported by a voluminous congressional record.
Specifically, Congress received evidence that many participants in state
justice systems are perpetuating an array of erroneous stereotypes and assumptions.
Congress concluded that these discriminatory stereotypes often result in
insufficient investigation and prosecution of gender-motivated crime, inappropriate
focus on the behavior and credibility of the victims of that crime, and
unacceptably lenient punishments for those who are actually convicted of
gender-motivated violence. See H. R. Conf. Rep. No. 103-711, at 385-386;
S. Rep. No. 103-138, at 38, 41-55; S. Rep. No. 102-197, at 33-35, 41, 43-47.
Petitioners contend that this bias denies victims of gender-motivated violence
the equal protection of the laws and that Congress therefore acted appropriately
in enacting a private civil remedy against the perpetrators of gender-motivated
violence to both remedy the States' bias and deter future instances of discrimination
in the state courts.
|||As our cases have established, state-sponsored gender discrimination violates
equal protection unless it " `serves "important governmental objectives
and ... the discriminatory means employed" are "substantially
related to the achievement of those objectives." ' " United States
v. Virginia, 518 U. S. 515, 533 (1996) (quoting Mississippi Univ. for Women
v. Hogan, 458 U. S. 718, 724 (1982), in turn quoting Wengler v. Druggists
Mut. Ins. Co., 446 U. S. 142, 150 (1980)). See also Craig v. Boren, 429
U. S. 190, 198-199 (1976). However, the language and purpose of the Fourteenth
Amendment place certain limitations on the manner in which Congress may
attack discriminatory conduct. These limitations are necessary to prevent
the Fourteenth Amendment from obliterating the Framers' carefully crafted
balance of power between the States and the National Government. See Flores,
supra, at 520-524 (reviewing the history of the Fourteenth Amendment's enactment
and discussing the contemporary belief that the Amendment "does not
concentrate power in the general government for any purpose of police government
within the States") (quoting T. Cooley, Constitutional Limitations
294, n. 1 (2d ed. 1871)). Foremost among these limitations is the time-honored
principle that the Fourteenth Amendment, by its very terms, prohibits only
state action. "[T]he principle has become firmly embedded in our constitutional
law that the action inhibited by the first section of the Fourteenth Amendment
is only such action as may fairly be said to be that of the States. That
Amendment erects no shield against merely private conduct, however discriminatory
or wrongful." Shelley v. Kraemer, 334 U. S. 1, 13, and n. 12 (1948).
|||Shortly after the Fourteenth Amendment was adopted, we decided two cases
interpreting the Amendment's provisions, United States v. Harris, 106 U.
S. 629 (1883), and the Civil Rights Cases, 109 U. S. 3 (1883). In Harris,
the Court considered a challenge to §2 of the Civil Rights Act of 1871.
That section sought to punish "private persons" for "conspiring
to deprive any one of the equal protection of the laws enacted by the State."
106 U. S., at 639. We concluded that this law exceeded Congress' §5 power
because the law was "directed exclusively against the action of private
persons, without reference to the laws of the State, or their administration
by her officers." Id., at 640. In so doing, we reemphasized our statement
from Virginia v. Rives, 100 U. S. 313, 318 (1880), that " `these provisions
of the fourteenth amendment have reference to State action exclusively,
and not to any action of private individuals.' " Harris, supra, at
639 (misquotation in Harris).
|||We reached a similar conclusion in the Civil Rights Cases. In those consolidated
cases, we held that the public accommodation provisions of the Civil Rights
Act of 1875, which applied to purely private conduct, were beyond the scope
of the §5 enforcement power. 109 U. S., at 11 ("Individual invasion
of individual rights is not the subject-matter of the [Fourteenth] [A]mendment").
See also, e.g., Romer v. Evans, 517 U. S. 620, 628 (1996) ("[I]t was
settled early that the Fourteenth Amendment did not give Congress a general
power to prohibit discrimination in public accommodations"); Lugar
v. Edmondson Oil Co., 457 U. S. 922, 936 (1982) ("Careful adherence
to the `state action' requirement preserves an area of individual freedom
by limiting the reach of federal law and federal judicial power");
Blum v. Yaretsky, 457 U. S. 991, 1002 (1982); Moose Lodge No. 107 v. Irvis,
407 U. S. 163, 172 (1972); Adickes v. S. H. Kress & Co., 398 U. S. 144,
147 n. 2 (1970); United States v. Cruikshank, 92 U. S. 542, 554 (1876) ("The
fourteenth amendment prohibits a state from depriving any person of life,
liberty, or property, without due process of law; but this adds nothing
to the rights of one citizen as against another. It simply furnishes an
additional guaranty against any encroachment by the States upon the fundamental
rights which belong to every citizen as a member of society").
|||The force of the doctrine of stare decisis behind these decisions stems
not only from the length of time they have been on the books, but also from
the insight attributable to the Members of the Court at that time. Every
Member had been appointed by President Lincoln, Grant, Hayes, Garfield,
or Arthur -- and each of their judicial appointees obviously had intimate
knowledge and familiarity with the events surrounding the adoption of the
|||Petitioners contend that two more recent decisions have in effect overruled
this longstanding limitation on Congress' §5 authority. They rely on United
States v. Guest, 383 U. S. 745 (1966), for the proposition that the rule
laid down in the Civil Rights Cases is no longer good law. In Guest, the
Court reversed the construction of an indictment under 18 U. S. C. §241,
saying in the course of its opinion that "we deal here with issues
of statutory construction, not with issues of constitutional power."
383 U. S., at 749. Three Members of the Court, in a separate opinion by
Justice Brennan, expressed the view that the Civil Rights Cases were wrongly
decided, and that Congress could under §5 prohibit actions by private individuals.
383 U. S., at 774 (opinion concurring in part and dissenting in part). Three
other Members of the Court, who joined the opinion of the Court, joined
a separate opinion by Justice Clark which in two or three sentences stated
the conclusion that Congress could "punis[h] all conspiracies -- with
or without state action -- that interfere with Fourteenth Amendment rights."
Id., at 762 (concurring opinion). Justice Harlan, in another separate opinion,
commented with respect to the statement by these Justices:
|||"The action of three of the Justices who joined the Court's opinion
in nonetheless cursorily pronouncing themselves on the far-reaching constitutional
questions deliberately not reached in Part II seems to me, to say the very
least, extraordinary." Id., at 762, n. 1 (opinion concurring in part
and dissenting in part).
|||Though these three Justices saw fit to opine on matters not before the
Court in Guest, the Court had no occasion to revisit the Civil Rights Cases
and Harris, having determined "the indictment [charging private individuals
with conspiring to deprive blacks of equal access to state facilities] in
fact contain[ed] an express allegation of state involvement." 383 U.
S., at 756. The Court concluded that the implicit allegation of "active
connivance by agents of the State" eliminated any need to decide "the
threshold level that state action must attain in order to create rights
under the Equal Protection Clause." Ibid. All of this Justice Clark
explicitly acknowledged. See id., at 762 (concurring opinion) ("The
Court's interpretation of the indictment clearly avoids the question whether
Congress, by appropriate legislation, has the power to punish private conspiracies
that interfere with Fourteenth Amendment rights, such as the right to utilize
|||To accept petitioners' argument, moreover, one must add to the three Justices
joining Justice Brennan's reasoned explanation for his belief that the Civil
Rights Cases were wrongly decided, the three Justices joining Justice Clark's
opinion who gave no explanation whatever for their similar view. This is
simply not the way that reasoned constitutional adjudication proceeds. We
accordingly have no hesitation in saying that it would take more than the
naked dicta contained in Justice Clark's opinion, when added to Justice
Brennan's opinion, to cast any doubt upon the enduring vitality of the Civil
Rights Cases and Harris.
|||Petitioners also rely on District of Columbia v. Carter, 409 U. S. 418
(1973). Carter was a case addressing the question whether the District of
Columbia was a "State" within the meaning of Rev. Stat. §1979,
42 U. S. C. §1983 -- a section which by its terms requires state action
before it may be employed. A footnote in that opinion recites the same litany
respecting Guest that petitioners rely on. This litany is of course entirely
dicta, and in any event cannot rise above its source. We believe that the
description of the §5 power contained in the Civil Rights Cases is correct:
|||"But where a subject has not submitted to the general legislative
power of Congress, but is only submitted thereto for the purpose of rendering
effective some prohibition against particular [s]tate legislation or [s]tate
action in reference to that subject, the power given is limited by its object,
any legislation by Congress in the matter must necessarily be corrective
in its character, adapted to counteract and redress the operation of such
prohibited state laws or proceedings of [s]tate officers." 109 U. S.,
|||Petitioners alternatively argue that, unlike the situation in the Civil
Rights Cases, here there has been gender-based disparate treatment by state
authorities, whereas in those cases there was no indication of such state
action. There is abundant evidence, however, to show that the Congresses
that enacted the Civil Rights Acts of 1871 and 1875 had a purpose similar
to that of Congress in enacting §13981: There were state laws on the books
bespeaking equality of treatment, but in the administration of these laws
there was discrimination against newly freed slaves. The statement of Representative
Garfield in the House and that of Senator Sumner in the Senate are representative:
|||"[T]he chief complaint is not that the laws of the State are unequal,
but that even where the laws are just and equal on their face, yet, by a
systematic mal-administration of them, or a neglect or refusal to enforce
their provisions, a portion of the people are denied equal protection under
them." Cong. Globe, 42d Cong., 1st Sess., App. 153 (1871) (statement
of Rep. Garfield).
|||"The Legislature of South Carolina has passed a law giving precisely
the rights contained in your `supplementary civil rights bill.' But such
a law remains a dead letter on her statute-books, because the State courts,
comprised largely of those whom the Senator wishes to obtain amnesty for,
refuse to enforce it." Cong. Globe, 42d Cong., 2d Sess., 430 (1872)
(statement of Sen. Sumner).
|||See also, e.g., Cong. Globe, 42d Cong., 1st Sess., at 653 (statement of
Sen. Osborn); id., at 457 (statement of Rep. Coburn); id., at App. 78 (statement
of Rep. Perry); 2 Cong. Rec. 457 (1874) (statement of Rep. Butler); 3 Cong.
Rec. 945 (1875) (statement of Rep. Lynch).
|||But even if that distinction were valid, we do not believe it would save
§13981's civil remedy. For the remedy is simply not "corrective in
its character, adapted to counteract and redress the operation of such prohibited
[s]tate laws or proceedings of [s]tate officers." Civil Rights Cases,
109 U. S., at 18. Or, as we have phrased it in more recent cases, prophylactic
legislation under §5 must have a " `congruence and proportionality
between the injury to be prevented or remedied and the means adopted to
that end." Florida Prepaid Post-secondary Ed. Expense Bd. v. College
Savings Bank, 527 U. S. 627, 639 (1999); Flores, 521 U. S., at 526. Section
13981 is not aimed at proscribing discrimination by officials which the
Fourteenth Amendment might not itself proscribe; it is directed not at any
State or state actor, but at individuals who have committed criminal acts
motivated by gender bias.
|||In the present cases, for example, §13981 visits no consequence whatever
on any Virginia public official involved in investigating or prosecuting
Brzonkala's assault. The section is, therefore, unlike any of the §5 remedies
that we have previously upheld. For example, in Katzenbach v. Morgan, 384
U. S. 641 (1966), Congress prohibited New York from imposing literacy tests
as a prerequisite for voting because it found that such a requirement disenfranchised
thousands of Puerto Rican immigrants who had been educated in the Spanish
language of their home territory. That law, which we upheld, was directed
at New York officials who administered the State's election law and prohibited
them from using a provision of that law. In South Carolina v. Katzenbach,
383 U. S. 301 (1966), Congress imposed voting rights requirements on States
that, Congress found, had a history of discriminating against blacks in
voting. The remedy was also directed at state officials in those States.
Similarly, in Ex parte Virginia, 100 U. S. 339 (1880), Congress criminally
punished state officials who intentionally discriminated in jury selection;
again, the remedy was directed to the culpable state official.
|||Section 13981 is also different from these previously upheld remedies
in that it applies uniformly throughout the Nation. Congress' findings indicate
that the problem of discrimination against the victims of gender-motivated
crimes does not exist in all States, or even most States. By contrast, the
§5 remedy upheld in Katzenbach v. Morgan, supra, was directed only to the
State where the evil found by Congress existed, and in South Carolina v.
Katzenbach, supra, the remedy was directed only to those States in which
Congress found that there had been discrimination.
|||For these reasons, we conclude that Congress' power under §5 does not
extend to the enactment of §13981.
|||Petitioner Brzonkala's complaint alleges that she was the victim of a
brutal assault. But Congress' effort in §13981 to provide a federal civil
remedy can be sustained neither under the Commerce Clause nor under §5 of
the Fourteenth Amendment. If the allegations here are true, no civilized
system of justice could fail to provide her a remedy for the conduct of
respondent Morrison. But under our federal system that remedy must be provided
by the Commonwealth of Virginia, and not by the United States. The judgment
of the Court of Appeals is
|||Thomas, J., concurring
|||UNITED STATES v. MORRISON
|||SUPREME COURT OF THE UNITED STATES
|||Nos. 99-5 and 99-29
|||UNITED STATES, PETITIONER v. ANTONIO J. MORRISON et al.
|||CHRISTY BRZONKALA, PETITIONER v. ANTONIO J. MORRISON et al.
|||on writs of certiorari to the united states court of appeals for the fourth
|||[May 15, 2000]
|||Justice Thomas, concurring.
|||The majority opinion correctly applies our decision in United States v.
Lopez, 514 U. S. 549 (1995), and I join it in full. I write separately only
to express my view that the very notion of a "substantial effects"
test under the Commerce Clause is inconsistent with the original understanding
of Congress' powers and with this Court's early Commerce Clause cases. By
continuing to apply this rootless and malleable standard, however circumscribed,
the Court has encouraged the Federal Government to persist in its view that
the Commerce Clause has virtually no limits. Until this Court replaces its
existing Commerce Clause jurisprudence with a standard more consistent with
the original understanding, we will continue to see Congress appropriating
state police powers under the guise of regulating commerce.
|||Souter, J., dissenting
|||UNITED STATES v. MORRISON
|||SUPREME COURT OF THE UNITED STATES
|||Nos. 99-5 and 99-29
|||UNITED STATES, PETITIONER v. ANTONIO J. MORRISON et al.
|||CHRISTY BRZONKALA, PETITIONER v. ANTONIO J. MORRISON et al.
|||on writs of certiorari to the united states court of appeals for the fourth
|||[May 15, 2000]
|||Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice
Breyer join, dissenting.
|||The Court says both that it leaves Commerce Clause precedent undisturbed
and that the Civil Rights Remedy of the Violence Against Women Act of 1994,
42 U. S. C. §13981, exceeds Congress's power under that Clause. I find the
claims irreconcilable and respectfully dissent.*fn10
|||Our cases, which remain at least nominally undisturbed, stand for the
following propositions. Congress has the power to legislate with regard
to activity that, in the aggregate, has a substantial effect on interstate
commerce. See Wickard v. Filburn, 317 U. S. 111, 124-128 (1942); Hodel v.
Virginia Surface Mining & Reclamation Assn., 452 U. S. 264, 277 (1981).
The fact of such a substantial effect is not an issue for the courts in
the first instance, ibid., but for the Congress, whose institutional capacity
for gathering evidence and taking testimony far exceeds ours. By passing
legislation, Congress indicates its conclusion, whether explicitly or not,
that facts support its exercise of the commerce power. The business of the
courts is to review the congressional assessment, not for soundness but
simply for the rationality of concluding that a jurisdictional basis exists
in fact. See ibid. Any explicit findings that Congress chooses to make,
though not dispositive of the question of rationality, may advance judicial
review by identifying factual authority on which Congress relied. Applying
those propositions in these cases can lead to only one conclusion.
|||One obvious difference from United States v. Lopez, 514 U. S. 549 (1995),
is the mountain of data assembled by Congress, here showing the effects
of violence against women on interstate commerce.*fn11
Passage of the Act in 1994 was preceded by four years of hearings,*fn12
which included testimony from physicians and law professors; *fn13
from survivors of rape and domestic violence; *fn14
and from representatives of state law enforcement and private business.*fn15
The record includes reports on gender bias from task forces in 21 States,*fn16
and we have the benefit of specific factual findings in the eight separate
Reports issued by Congress and its committees over the long course leading
Compare Hodel, 452 U. S., at 278-279 (noting "extended hearings,"
"vast amounts of testimony and documentary evidence," and "years
of the most thorough legislative consideration").
|||With respect to domestic violence, Congress received evidence for the
|||"Three out of four American women will be victims of violent crimes
sometime during their life." H. R. Rep. No. 103-395 p. 25 (1993) (citing
U. S. Dept. of Justice, Report to the Nation on Crime and Justice 29 (2d
|||"Violence is the leading cause of injuries to women ages 15 to 44
... ." S. Rep. No. 103-138, p. 38 (1993) (citing Surgeon General Antonia
Novello, From the Surgeon General, U. S. Public Health Services, 267 JAMA
|||"[A]s many as 50 percent of homeless women and children are fleeing
domestic violence." S. Rep. No. 101-545, p. 37 (1990) (citing E. Schneider,
Legal Reform Efforts for Battered Women: Past, Present, and Future (July
|||"Since 1974, the assault rate against women has outstripped the rate
for men by at least twice for some age groups and far more for others."
S. Rep. No. 101-545, at 30 (citing Bureau of Justice Statistics, Criminal
Victimization in the United States (1974) (Table 5)).
|||"[B]attering `is the single largest cause of injury to women in the
United States.' " S. Rep. No. 101-545, at 37 (quoting Van Hightower
& McManus, Limits of State Constitutional Guarantees: Lessons from Efforts
to Implement Domestic Violence Policies, 49 Pub. Admin. Rev. 269 (May/June
|||"An estimated 4 million American women are battered each year by
their husbands or partners." H. R. Rep. No. 103-395, at 26 (citing
Council on Scientific Affairs, American Medical Assn., Violence Against
Women: Relevance for Medical Practitioners, 267 JAMA 3184, 3185 (1992).
|||"Over 1 million women in the United States seek medical assistance
each year for injuries sustained [from] their husbands or other partners."
S. Rep. No. 101-545, at 37 (citing Stark & Flitcraft, Medical Therapy
as Repression: The Case of the Battered Woman, Health & Medicine (Summer/Fall
|||"Between 2,000 and 4,000 women die every year from [domestic] abuse."
S. Rep. No. 101-545, at 36 (citing Schneider, supra).
|||"[A]rrest rates may be as low as 1 for every 100 domestic assaults."
S. Rep. No. 101-545, at 38 (citing Dutton, Profiling of Wife Assaulters:
Preliminary Evidence for Trimodal Analysis, 3 Violence and Victims 5-30
|||"Partial estimates show that violent crime against women costs this
country at least 3 billion -- not million, but billion -- dollars a year."
S. Rep. No. 101-545, at 33 (citing Schneider, supra, at 4).
|||"[E]stimates suggest that we spend $5 to $10 billion a year on health
care, criminal justice, and other social costs of domestic violence."
S. Rep. No. 103-138, at 41 (citing Biden, Domestic Violence: A Crime, Not
a Quarrel, Trial 56 (June 1993)).
|||The evidence as to rape was similarly extensive, supporting these conclusions:
|||"[The incidence of] rape rose four times as fast as the total national
crime rate over the past 10 years." S. Rep. No. 101-545, at 30 (citing
Federal Bureau of Investigation Uniform Crime Reports (1988)).
|||"According to one study, close to half a million girls now in high
school will be raped before they graduate." S. Rep. No. 101-545, at
31 (citing R. Warshaw, I Never Called it Rape 117 (1988)).
|||"[One hundred twenty&nbhyph;five thousand] college women can
expect to be raped during this -- or any -- year." S. Rep. No. 101-545,
at 43 (citing testimony of Dr. Mary Koss before the Senate Judiciary Committee,
Aug. 29, 1990).
|||"[T]hree-quarters of women never go to the movies alone after dark
because of the fear of rape and nearly 50 percent do not use public transit
alone after dark for the same reason." S. Rep. No. 102-197, p. 38 (1991)
(citing M. Gordon & S. Riger, The Female Fear 15 (1989)).
|||"[Forty-one] percent of judges surveyed believed that juries give
sexual assault victims less credibility than other crime victims."
S. Rep. No. 102-197, at 47 (citing Colorado Supreme Court Task Force on
Gender Bias in the Courts, Gender Justice in the Colorado Courts 91 (1990)).
|||"Less than 1 percent of all [rape] victims have collected damages."
S. Rep. No. 102-197, at 44 (citing report by Jury Verdict Research, Inc.).
|||" `[A]n individual who commits rape has only about 4 chances in 100
of being arrested, prosecuted, and found guilty of any offense.' "
S. Rep. No. 101-545, at 33, n. 30 (quoting H. Feild & L. Bienen, Jurors
and Rape: A Study in Psychology and Law 95 (1980)).
|||"Almost one-quarter of convicted rapists never go to prison and another
quarter received sentences in local jails where the average sentence is
11 months." S. Rep. No. 103-138, at 38 (citing Majority Staff Report
of Senate Committee on the Judiciary, The Response to Rape: Detours on the
Road to Equal Justice, 103d Cong., 1st Sess., 2 (Comm. Print 1993)).
|||"[A]lmost 50 percent of rape victims lose their jobs or are forced
to quit because of the crime's severity." S. Rep. No. 102-197, at 53
(citing Ellis, Atkeson, & Calhoun, An Assessment of Long-Term Reaction
to Rape, 90 J. Abnormal Psych., No. 3, p. 264 (1981).
|||Based on the data thus partially summarized, Congress found that
|||"crimes of violence motivated by gender have a substantial adverse
effect on interstate commerce, by deterring potential victims from traveling
interstate, from engaging in employment in interstate business, and from
transacting with business, and in places involved, in interstate commerce
...[,] by diminishing national productivity, increasing medical and other
costs, and decreasing the supply of and the demand for interstate products
... ." H. R. Conf. Rep. No. 103-711, p. 385 (1994).
|||Congress thereby explicitly stated the predicate for the exercise of its
Commerce Clause power. Is its conclusion irrational in view of the data
amassed? True, the methodology of particular studies may be challenged,
and some of the figures arrived at may be disputed. But the sufficiency
of the evidence before Congress to provide a rational basis for the finding
cannot seriously be questioned. Cf. Turner Broadcasting System, Inc. v.
FCC, 520 U. S. 180, 199 (1997) ("The Constitution gives to Congress
the role of weighing conflicting evidence in the legislative process").
|||Indeed, the legislative record here is far more voluminous than the record
compiled by Congress and found sufficient in two prior cases upholding Title
II of the Civil Rights Act of 1964 against Commerce Clause challenges. In
Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964), and
Katzenbach v. McClung, 379 U. S. 294 (1964), the Court referred to evidence
showing the consequences of racial discrimination by motels and restaurants
on interstate commerce. Congress had relied on compelling anecdotal reports
that individual instances of segregation cost thousands to millions of dollars.
See Civil Rights -- Public Accommodations, Hearings on S. 1732 before the
Senate Committee on Commerce, 88th Cong., 1st Sess., App. V, pp. 1383-1387
(1963). Congress also had evidence that the average black family spent substantially
less than the average white family in the same income range on public accommodations,
and that discrimination accounted for much of the difference. H. R. Rep.
No. 88-914, pt. 2, pp. 9-10, and Table II (1963) (Additional Views on H.
R. 7152 of Hon. William M. McCulloch, Hon. John V. Lindsay, Hon. William
T. Cahill, Hon. Garner E. Shriver, Hon. Clark MacGregor, Hon. Charles McC.
Mathias, Hon. James E. Bromwell).
|||While Congress did not, to my knowledge, calculate aggregate dollar values
for the nationwide effects of racial discrimination in 1964, in 1994 it
did rely on evidence of the harms caused by domestic violence and sexual
assault, citing annual costs of $3 billion in 1990, see S. Rep. 101-545,
and $5 to $10 billion in 1993, see S. Rep. No. 103-138, at 41.*fn18
Equally important, though, gender-based violence in the 1990's was shown
to operate in a manner similar to racial discrimination in the 1960's in
reducing the mobility of employees and their production and consumption
of goods shipped in interstate commerce. Like racial discrimination, "[g]ender-based
violence bars its most likely targets -- women -- from full partic[ipation]
in the national economy." Id., at 54.
|||If the analogy to the Civil Rights Act of 1964 is not plain enough, one
can always look back a bit further. In Wickard, we upheld the application
of the Agricultural Adjustment Act to the planting and consumption of homegrown
wheat. The effect on interstate commerce in that case followed from the
possibility that wheat grown at home for personal consumption could either
be drawn into the market by rising prices, or relieve its grower of any
need to purchase wheat in the market. See 317 U. S., at 127-129. The Commerce
Clause predicate was simply the effect of the production of wheat for home
consumption on supply and demand in interstate commerce. Supply and demand
for goods in interstate commerce will also be affected by the deaths of
2,000 to 4,000 women annually at the hands of domestic abusers, see S. Rep.
No. 101-545, at 36, and by the reduction in the work force by the 100,000
or more rape victims who lose their jobs each year or are forced to quit,
see id., at 56, H. R. Rep. No. 103-395, at 25-26. Violence against women
may be found to affect interstate commerce and affect it substantially.*fn19
|||The Act would have passed muster at any time between Wickard in 1942 and
Lopez in 1995, a period in which the law enjoyed a stable understanding
that congressional power under the Commerce Clause, complemented by the
authority of the Necessary and Proper Clause, Art. I. §8 cl. 18, extended
to all activity that, when aggregated, has a substantial effect on interstate
commerce. As already noted, this understanding was secure even against the
turmoil at the passage of the Civil Rights Act of 1964, in the aftermath
of which the Court not only reaffirmed the cumulative effects and rational
basis features of the substantial effects test, see Heart of Atlanta, supra,
at 258; McClung, supra, at 301-305, but declined to limit the commerce power
through a formal distinction between legislation focused on "commerce"
and statutes addressing "moral and social wrong[s]," Heart of
Atlanta, supra, at 257.
|||The fact that the Act does not pass muster before the Court today is therefore
proof, to a degree that Lopez was not, that the Court's nominal adherence
to the substantial effects test is merely that. Although a new jurisprudence
has not emerged with any distinctness, it is clear that some congressional
conclusions about obviously substantial, cumulative effects on commerce
are being assigned lesser values than the once-stable doctrine would assign
them. These devaluations are accomplished not by any express repudiation
of the substantial effects test or its application through the aggregation
of individual conduct, but by supplanting rational basis scrutiny with a
new criterion of review.
|||Thus the elusive heart of the majority's analysis in these cases is its
statement that Congress's findings of fact are "weakened" by the
presence of a disfavored "method of reasoning." Ante, at 14. This
seems to suggest that the "substantial effects" analysis is not
a factual enquiry, for Congress in the first instance with subsequent judicial
review looking only to the rationality of the congressional conclusion,
but one of a rather different sort, dependent upon a uniquely judicial competence.
|||This new characterization of substantial effects has no support in our
cases (the self-fulfilling prophecies of Lopez aside), least of all those
the majority cites. Perhaps this explains why the majority is not content
to rest on its cited precedent but claims a textual justification for moving
toward its new system of congressional deference subject to selective discounts.
Thus it purports to rely on the sensible and traditional understanding that
the listing in the Constitution of some powers implies the exclusion of
others unmentioned. See Gibbons v. Ogden, 9 Wheat. 1, 195 (1824); ante,
at 10; The Federalist No. 45, p. 313 (J. Cooke ed. 1961) (J. Madison).*fn20
The majority stresses that Art. I, §8, enumerates the powers of Congress,
including the commerce power, an enumeration implying the exclusion of powers
not enumerated. It follows, for the majority, not only that there must be
some limits to "commerce," but that some particular subjects arguably
within the commerce power can be identified in advance as excluded, on the
basis of characteristics other than their commercial effects. Such exclusions
come into sight when the activity regulated is not itself commercial or
when the States have traditionally addressed it in the exercise of the general
police power, conferred under the state constitutions but never extended
to Congress under the Constitution of the Nation, see Lopez, 514 U. S.,
at 566. Ante, at 16.
|||The premise that the enumeration of powers implies that other powers are
withheld is sound; the conclusion that some particular categories of subject
matter are therefore presumptively beyond the reach of the commerce power
is, however, a non sequitur. From the fact that Art. I, §8, cl. 3 grants
an authority limited to regulating commerce, it follows only that Congress
may claim no authority under that section to address any subject that does
not affect commerce. It does not at all follow that an activity affecting
commerce nonetheless falls outside the commerce power, depending on the
specific character of the activity, or the authority of a State to regulate
it along with Congress.*fn21
My disagreement with the majority is not, however, confined to logic, for
history has shown that categorical exclusions have proven as unworkable
in practice as they are unsupportable in theory.
|||Obviously, it would not be inconsistent with the text of the Commerce
Clause itself to declare "noncommercial" primary activity beyond
or presumptively beyond the scope of the commerce power. That variant of
categorical approach is not, however, the sole textually permissible way
of defining the scope of the Commerce Clause, and any such neat limitation
would at least be suspect in the light of the final sentence of Article
I, §8, authorizing Congress to make "all Laws ... necessary and proper"
to give effect to its enumerated powers such as commerce. See United States
v. Darby, 312 U. S. 100, 118 (1941) ("The power of Congress ... extends
to those activities intrastate which so affect interstate commerce or the
exercise of the power of Congress over it as to make regulation of them
appropriate means to the attainment of a legitimate end, the exercise of
the granted power of Congress to regulate interstate commerce"). Accordingly,
for significant periods of our history, the Court has defined the commerce
power as plenary, unsusceptible to categorical exclusions, and this was
the view expressed throughout the latter part of the 20th century in the
substantial effects test. These two conceptions of the commerce power, plenary
and categorically limited, are in fact old rivals, and today's revival of
their competition summons up familiar history, a brief reprise of which
may be helpful in posing what I take to be the key question going to the
legitimacy of the majority's decision to breathe new life into the approach
of categorical limitation.
|||Chief Justice Marshall's seminal opinion in Gibbons v. Ogden, supra, at
193-194, construed the commerce power from the start with "a breadth
never yet exceeded," Wickard v. Filburn, 317 U. S., at 120. In particular,
it is worth noting, the Court in Wickard did not regard its holding as exceeding
the scope of Chief Justice Marshall's view of interstate commerce; Wickard
applied an aggregate effects test to ostensibly domestic, noncommercial
farming consistently with Chief Justice Marshall's indication that the commerce
power may be understood by its exclusion of subjects, among others, "which
do not affect other States," Gibbons, 9 Wheat., at 195. This plenary
view of the power has either prevailed or been acknowledged by this Court
at every stage of our jurisprudence. See, e.g., id., at 197; Nashville,
C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 99-100 (1888); Lottery
Case, 188 U. S. 321, 353 (1903); Minnesota Rate Cases, 230 U. S. 352, 398
(1913); United States v. California, 297 U. S. 175, 185 (1936); United States
v. Darby, 312 U. S. 100, 115 (1941); Heart of Atlanta Motel, Inc. v. United
States, 379 U. S., at 255; Hodel v. Indiana, 452 U. S., at 324. And it was
this understanding, free of categorical qualifications, that prevailed in
the period after 1937 through Lopez, as summed up by Justice Harlan: "
`Of course, the mere fact that Congress has said when particular activity
shall be deemed to affect commerce does not preclude further examination
by this Court. But where we find that the legislators ... have a rational
basis for finding a chosen regulatory scheme necessary to the protection
of commerce, our investigation is at an end.' " Maryland v. Wirtz,
392 U. S. 183, 190 (1968) (quoting Katzenbach v. McClung, 379 U. S., at
|||Justice Harlan spoke with the benefit of hindsight, for he had seen the
result of rejecting the plenary view, and today's attempt to distinguish
between primary activities affecting commerce in terms of the relatively
commercial or noncommercial character of the primary conduct proscribed
comes with the pedigree of near-tragedy that I outlined in United States
v. Lopez, supra, at 603 (dissenting opinion). In the half century following
the modern activation of the commerce power with passage of the Interstate
Commerce Act in 1887, this Court from time to time created categorical enclaves
beyond congressional reach by declaring such activities as "mining,"
"production," "manufacturing," and union membership
to be outside the definition of "commerce" and by limiting application
of the effects test to "direct" rather than "indirect"
commercial consequences. See, e.g., United States v. E. C. Knight Co., 156
U. S. 1 (1895) (narrowly construing the Sherman Antitrust Act in light of
the distinction between "commerce" and "manufacture");
In re Heff, 197 U. S. 488, 505-506 (1905) (stating that Congress could not
regulate the intrastate sale of liquor); The Employers' Liability Cases,
207 U. S. 463, 495-496 (1908) (invalidating law governing tort liability
for common carriers operating in interstate commerce because the effects
on commerce were indirect); Adair v. United States, 208 U. S. 161 (1908)
(holding that labor union membership fell outside "commerce");
Hammer v. Dagenhart, 247 U. S. 251 (1918) (invalidating law prohibiting
interstate shipment of goods manufactured with child labor as a regulation
of "manufacture"); A. L. A. Schechter Poultry Corp. v. United
States, 295 U. S. 495, 545-548 (1935) (invalidating regulation of activities
that only "indirectly" affected commerce); Railroad Retirement
Bd. v. Alton R. Co., 295 U. S. 330, 368-369 (1935) (invalidating pension
law for railroad workers on the grounds that conditions of employment were
only indirectly linked to commerce); Carter v. Carter Coal Co., 298 U. S.
238, 303-304 (1936) (holding that regulation of unfair labor practices in
mining regulated "production," not "commerce").
|||Since adherence to these formalistically contrived confines of commerce
power in large measure provoked the judicial crisis of 1937, one might reasonably
have doubted that Members of this Court would ever again toy with a return
to the days before NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1
(1937), which brought the earlier and nearly disastrous experiment to an
end. And yet today's decision can only be seen as a step toward recapturing
the prior mistakes. Its revival of a distinction between commercial and
noncommercial conduct is at odds with Wickard, which repudiated that analysis,
and the enquiry into commercial purpose, first intimated by the Lopez concurrence,
see Lopez, supra, at 580 (opinion of Kennedy, J.), is cousin to the intent-based
analysis employed in Hammer, supra, at 271-272 but rejected for Commerce
Clause purposes in Heart of Atlanta, supra, at 257 and Darby, supra, at
|||Why is the majority tempted to reject the lesson so painfully learned
in 1937? An answer emerges from contrasting Wickard with one of the predecessor
cases it superseded. It was obvious in Wickard that growing wheat for consumption
right on the farm was not "commerce" in the common vocabulary,*fn22
but that did not matter constitutionally so long as the aggregated activity
of domestic wheat growing affected commerce substantially. Just a few years
before Wickard, however, it had certainly been no less obvious that "mining"
practices could substantially affect commerce, even though Carter Coal Co.,
supra, had held mining regulation beyond the national commerce power. When
we try to fathom the difference between the two cases, it is clear that
they did not go in different directions because the Carter Coal Court could
not understand a causal connection that the Wickard Court could grasp; the
difference, rather, turned on the fact that the Court in Carter Coal had
a reason for trying to maintain its categorical, formalistic distinction,
while that reason had been abandoned by the time Wickard was decided. The
reason was laissez-faire economics, the point of which was to keep government
interference to a minimum. See Lopez, supra, at 605-606 (Souter, J., dissenting).
The Court in Carter Coal was still trying to create a laissez-faire world
out of the 20th-century economy, and formalistic commercial distinctions
were thought to be useful instruments in achieving that object. The Court
in Wickard knew it could not do any such thing and in the aftermath of the
New Deal had long since stopped attempting the impossible. Without the animating
economic theory, there was no point in contriving formalisms in a war with
Chief Justice Marshall's conception of the commerce power.
|||If we now ask why the formalistic economic/non-economic distinction might
matter today, after its rejection in Wickard, the answer is not that the
majority fails to see causal connections in an integrated economic world.
The answer is that in the minds of the majority there is a new animating
theory that makes categorical formalism seem useful again. Just as the old
formalism had value in the service of an economic conception, the new one
is useful in serving a conception of federalism. It is the instrument by
which assertions of national power are to be limited in favor of preserving
a supposedly discernible, proper sphere of state autonomy to legislate or
refrain from legislating as the individual States see fit. The legitimacy
of the Court's current emphasis on the noncommercial nature of regulated
activity, then, does not turn on any logic serving the text of the Commerce
Clause or on the realism of the majority's view of the national economy.
The essential issue is rather the strength of the majority's claim to have
a constitutional warrant for its current conception of a federal relationship
enforceable by this Court through limits on otherwise plenary commerce power.
This conception is the subject of the majority's second categorical discount
applied today to the facts bearing on the substantial effects test.
|||The Court finds it relevant that the statute addresses conduct traditionally
subject to state prohibition under domestic criminal law, a fact said to
have some heightened significance when the violent conduct in question is
not itself aimed directly at interstate commerce or its instrumentalities.
Ante, at 9. Again, history seems to be recycling, for the theory of traditional
state concern as grounding a limiting principle has been rejected previously,
and more than once. It was disapproved in Darby, 312 U. S., at 123-124,
and held insufficient standing alone to limit the commerce power in Hodel,
452 U. S., at 276-277. In the particular context of the Fair Labor Standards
Act it was rejected in Maryland v. Wirtz, 392 U. S. 183 (1968), with the
recognition that "[t]here is no general doctrine implied in the Federal
Constitution that the two governments, national and state, are each to exercise
its powers so as not to interfere with the free and full exercise of the
powers of the other." Id., at 195 (internal quotation marks omitted).
The Court held it to be "clear that the Federal Government, when acting
within delegated power, may override countervailing state interests, whether
these be described as `governmental' or `proprietary' in character."
Ibid. While Wirtz was later overruled by National League of Cities v. Usery,
426 U. S. 833 (1976), that case was itself repudiated in Garcia v. San Antonio
Metropolitan Transit Authority, 469 U. S. 528 (1985), which held that the
concept of "traditional governmental function" (as an element
of the immunity doctrine under Hodel) was incoherent, there being no explanation
that would make sense of the multifarious decisions placing some functions
on one side of the line, some on the other. 469 U. S., at 546-547. The effort
to carve out inviolable state spheres within the spectrum of activities
substantially affecting commerce was, of course, just as irreconcilable
with Gibbons's explanation of the national commerce power as being as "absolut[e]
as it would be in a single government," 9 Wheat., at 197.*fn23
|||The objection to reviving traditional state spheres of action as a consideration
in commerce analysis, however, not only rests on the portent of incoherence,
but is compounded by a further defect just as fundamental. The defect, in
essence, is the majority's rejection of the Founders' considered judgment
that politics, not judicial review, should mediate between state and national
interests as the strength and legislative jurisdiction of the National Government
inevitably increased through the expected growth of the national economy.*fn24
Whereas today's majority takes a leaf from the book of the old judicial
economists in saying that the Court should somehow draw the line to keep
the federal relationship in a proper balance, Madison, Wilson, and Marshall
understood the Constitution very differently.
|||Although Madison had emphasized the conception of a National Government
of discrete powers (a conception that a number of the ratifying conventions
thought was too indeterminate to protect civil liberties),*fn25
Madison himself must have sensed the potential scope of some of the powers
granted (such as the authority to regulate commerce), for he took care in
The Federalist No. 46 to hedge his argument for limited power by explaining
the importance of national politics in protecting the States' interests.
The National Government "will partake sufficiently of the spirit [of
the States], to be disinclined to invade the rights of the individual States,
or the prerogatives of their governments." The Federalist No. 46, at
319. James Wilson likewise noted that "it was a favorite object in
the Convention" to secure the sovereignty of the States, and that it
had been achieved through the structure of the Federal Government. 2 Elliot's
The Framers of the Bill of Rights, in turn, may well have sensed that Madison
and Wilson were right about politics as the determinant of the federal balance
within the broad limits of a power like commerce, for they formulated the
Tenth Amendment without any provision comparable to the specific guarantees
proposed for individual liberties.*fn27
In any case, this Court recognized the political component of federalism
in the seminal Gibbons opinion. After declaring the plenary character of
congressional power within the sphere of activity affecting commerce, the
Chief Justice spoke for the Court in explaining that there was only one
restraint on its valid exercise:
|||"The wisdom and the discretion of Congress, their identity with the
people, and the influence which their constituents possess at elections,
are, in this, as in many other instances, as that, for example, of declaring
war, the sole restraints on which they have relied, to secure them from
its abuse. They are the restraints on which the people must often rely solely,
in all representative governments." Gibbons, supra, at 197.
|||Politics as the moderator of the congressional employment of the commerce
power was the theme many years later in Wickard, for after the Court acknowledged
the breadth of the Gibbons formulation it invoked Chief Justice Marshall
yet again in adding that "[h]e made emphatic the embracing and penetrating
nature of this power by warning that effective restraints on its exercise
must proceed from political rather than judicial processes." Wickard,
317 U. S., at 120 (citation omitted). Hence, "conflicts of economic
interest ... are wisely left under our system to resolution by Congress
under its more flexible and responsible legislative process. Such conflicts
rarely lend themselves to judicial determination. And with the wisdom, workability,
or fairness, of the plan of regulation we have nothing to do." Id.,
at 129 (footnote omitted).
|||As with "conflicts of economic interest," so with supposed conflicts
of sovereign political interests implicated by the Commerce Clause: the
Constitution remits them to politics. The point can be put no more clearly
than the Court put it the last time it repudiated the notion that some state
activities categorically defied the commerce power as understood in accordance
with generally accepted concepts. After confirming Madison's and Wilson's
views with a recitation of the sources of state influence in the structure
of the National Constitution, Garcia, 469 U. S., at 550-552, the Court disposed
of the possibility of identifying "principled constitutional limitations
on the scope of Congress' Commerce Clause powers over the States merely
by relying on a priori definitions of state sovereignty," id., at 548.
It concluded that
|||"the Framers chose to rely on a federal system in which special restraints
on federal power over the States inhered principally in the workings of
the National Government itself, rather than in discrete limitations on the
objects of federal authority. State sovereign interests, then, are more
properly protected by procedural safeguards inherent in the structure of
the federal system than by judicially created limitations on federal power."
Id., at 552.
|||The Garcia Court's rejection of "judicially created limitations"
in favor of the intended reliance on national politics was all the more
powerful owing to the Court's explicit recognition that in the centuries
since the framing the relative powers of the two sovereign systems have
markedly changed. Nationwide economic integration is the norm, the national
political power has been augmented by its vast revenues, and the power of
the States has been drawn down by the Seventeenth Amendment, eliminating
selection of senators by state legislature in favor of direct election.
|||The Garcia majority recognized that economic growth and the burgeoning
of federal revenue have not amended the Constitution, which contains no
circuit breaker to preclude the political consequences of these developments.
Nor is there any justification for attempts to nullify the natural political
impact of the particular amendment that was adopted. The significance for
state political power of ending state legislative selection of senators
was no secret in 1913, and the amendment was approved despite public comment
on that very issue. Representative Franklin Bartlett, after quoting Madison's
Federalist No. 62, as well as remarks by George Mason and John Dickinson
during the Constitutional Convention, concluded, "It follows, therefore,
that the framers of the Constitution, were they present in this House to-day,
would inevitably regard this resolution as a most direct blow at the doctrine
of State's rights and at the integrity of the State sovereignties; for if
you once deprive a State as a collective organism of all share in the General
Government, you annihilate its federative importance." 26 Cong. Rec.
7774 (1894). Massachusetts Senator George Hoar likewise defended indirect
election of the Senate as "a great security for the rights of the States."
S. Doc. No. 232, 59th Cong., 1st Sess., 21 (1906). And Elihu Root warned
that if the selection of senators should be taken from state legislatures,
"the tide that now sets toward the Federal Government will swell in
volume and power." 46 Cong. Rec. 2243 (1911). "The time will come,"
he continued, "when the Government of the United States will be driven
to the exercise of more arbitrary and unconsidered power, will be driven
to greater concentration, will be driven to extend its functions into the
internal affairs of the States." Ibid. These warnings did not kill
the proposal; the Amendment was ratified, and today it is only the ratification,
not the predictions, which this Court can legitimately heed.*fn28
|||Amendments that alter the balance of power between the National and State
Governments, like the Fourteenth, or that change the way the States are
represented within the Federal Government, like the Seventeenth, are not
rips in the fabric of the Framers' Constitution, inviting judicial repairs.
The Seventeenth Amendment may indeed have lessened the enthusiasm of the
Senate to represent the States as discrete sovereignties, but the Amendment
did not convert the judiciary into an alternate shield against the commerce
|||The Court's choice to invoke considerations of traditional state regulation
in these cases is especially odd in light of a distinction recognized in
the now-repudiated opinion for the Court in Usery. In explaining that there
was no inconsistency between declaring the States immune to the commerce
power exercised in the Fair Labor Standards Act, but subject to it under
the Economic Stabilization Act of 1970, as decided in Fry v. United States,
421 U. S. 542 (1975), the Court spoke of the latter statute as dealing with
a serious threat affecting all the political components of the federal system,
"which only collective action by the National Government might forestall."
Usery, 426 U. S., at 853. Today's majority, however, finds no significance
whatever in the state support for the Act based upon the States' acknowledged
failure to deal adequately with gender-based violence in state courts, and
the belief of their own law enforcement agencies that national action is
|||The National Association of Attorneys General supported the Act unanimously,
see Violence Against Women: Victims of the System, Hearing on S. 15 before
the Senate Committee on the Judiciary, 102d Cong., 1st Sess., 37-38 (1991),
and Attorneys General from 38 States urged Congress to enact the Civil Rights
Remedy, representing that "the current system for dealing with violence
against women is inadequate," see Crimes of Violence Motivated by Gender,
Hearing before the Subcommittee on Civil and Constitutional Rights of the
House Committee on the Judiciary, 103d Cong., 1st Sess., 34-36 (1993). It
was against this record of failure at the state level that the Act was passed
to provide the choice of a federal forum in place of the state-court systems
found inadequate to stop gender-biased violence. See Women and Violence,
Hearing before the Senate Committee on the Judiciary, 101st Cong., 2d Sess.,
2 (1990) (statement of Sen. Biden) (noting importance of federal forum).*fn30
The Act accordingly offers a federal civil rights remedy aimed exactly at
violence against women, as an alternative to the generic state tort causes
of action found to be poor tools of action by the state task forces. See
S. Rep. No. 101-545, at 45 (noting difficulty of fitting gender-motivated
crimes into common-law categories). As the 1993 Senate Report put it, "The
Violence Against Women Act is intended to respond both to the underlying
attitude that this violence is somehow less serious than other crime and
to the resulting failure of our criminal justice system to address such
violence. Its goals are both symbolic and practical ... ." S. Rep.
No. 103-138, at 38.
|||The collective opinion of state officials that the Act was needed continues
virtually unchanged, and when the Civil Rights Remedy was challenged in
court, the States came to its defense. Thirty-six of them and the Commonwealth
of Puerto Rico have filed an amicus brief in support of petitioners in these
cases, and only one State has taken respondents' side. It is, then, not
the least irony of these cases that the States will be forced to enjoy the
new federalism whether they want it or not. For with the Court's decision
today, Antonio Morrison, like Carter Coal's James Carter before him, has
"won the states' rights plea against the states themselves." R.
Jackson, The Struggle for Judicial Supremacy 160 (1941).
|||All of this convinces me that today's ebb of the commerce power rests
on error, and at the same time leads me to doubt that the majority's view
will prove to be enduring law. There is yet one more reason for doubt. Although
we sense the presence of Carter Coal, Schechter, and Usery once again, the
majority embraces them only at arm's-length. Where such decisions once stood
for rules, today's opinion points to considerations by which substantial
effects are discounted. Cases standing for the sufficiency of substantial
effects are not overruled; cases overruled since 1937 are not quite revived.
The Court's thinking betokens less clearly a return to the conceptual straitjackets
of Schechter and Carter Coal and Usery than to something like the unsteady
state of obscenity law between Redrup v. New York, 386 U. S. 767 (1967)
(per curiam), and Miller v. California, 413 U. S. 15 (1973), a period in
which the failure to provide a workable definition left this Court to review
each case ad hoc. See id., at 22, n. 3; Interstate Circuit, Inc. v. Dallas,
390 U. S. 676, 706-708 (1968) (Harlan, J., dissenting). As our predecessors
learned then, the practice of such ad hoc review cannot preserve the distinction
between the judicial and the legislative, and this Court, in any event,
lacks the institutional capacity to maintain such a regime for very long.
This one will end when the majority realizes that the conception of the
commerce power for which it entertains hopes would inevitably fail the test
expressed in Justice Holmes's statement that "[t]he first call of a
theory of law is that it should fit the facts." O. Holmes, The Common
Law 167 (Howe ed. 1963). The facts that cannot be ignored today are the
facts of integrated national commerce and a political relationship between
States and Nation much affected by their respective treasuries and constitutional
modifications adopted by the people. The federalism of some earlier time
is no more adequate to account for those facts today than the theory of
laissez-faire was able to govern the national economy 70 years ago.
|||Breyer, J., dissenting
|||UNITED STATES v. MORRISON
|||SUPREME COURT OF THE UNITED STATES
|||Nos. 99-5 and 99-29
|||UNITED STATES, PETITIONER v. ANTONIO J. MORRISON et al.
|||CHRISTY BRZONKALA, PETITIONER v. ANTONIO J. MORRISON et al.
|||on writs of certiorari to the united states court of appeals for the fourth
|||[May 15, 2000]
|||Justice Breyer, with whom Justice Stevens joins, and with whom Justice
Souter and Justice Ginsburg join as to Part I-A, dissenting.
|||No one denies the importance of the Constitution's federalist principles.
Its state/federal division of authority protects liberty -- both by restricting
the burdens that government can impose from a distance and by facilitating
citizen participation in government that is closer to home. The question
is how the judiciary can best implement that original federalist understanding
where the Commerce Clause is at issue.
|||The majority holds that the federal commerce power does not extend to
such "non-economic" activities as "non-economic, violent
criminal conduct" that significantly affects interstate commerce only
if we "aggregate" the interstate "effect[s]" of individual
instances. Ante, at 17-18. Justice Souter explains why history, precedent,
and legal logic militate against the majority's approach. I agree and join
his opinion. I add that the majority's holding illustrates the difficulty
of finding a workable judicial Commerce Clause touchstone -- a set of comprehensible
interpretive rules that courts might use to impose some meaningful limit,
but not too great a limit, upon the scope of the legislative authority that
the Commerce Clause delegates to Congress.
|||Consider the problems. The "economic/non-economic" distinction
is not easy to apply. Does the local street corner mugger engage in "economic"
activity or "non-economic" activity when he mugs for money? See
Perez v. United States, 402 U. S. 146 (1971) (aggregating local "loan
sharking" instances); United States v. Lopez, 514 U. S. 549, 559 (1995)
(loan sharking is economic because it consists of "intrastate extortionate
credit transactions"); ante, at 9. Would evidence that desire for economic
domination underlies many brutal crimes against women save the present statute?
See United States General Accounting Office, Health, Education, and Human
Services Division, Domestic Violence: Prevalence and Implications for Employment
Among Welfare Recipients 7-8 (Nov. 1998); Brief for Equal Rights Advocates,
et al. as Amicus Curiae 10-12.
|||The line becomes yet harder to draw given the need for exceptions. The
Court itself would permit Congress to aggregate, hence regulate, "non-economic"
activity taking place at economic establishments. See Heart of Atlanta Motel,
Inc. v. United States, 379 U. S. 241 (1964) (upholding civil rights laws
forbidding discrimination at local motels); Katzenbach v. McClung, 379 U.
S. 294 (1964) (same for restaurants); Lopez, supra, at 559 (recognizing
congressional power to aggregate, hence forbid, noneconomically motivated
discrimination at public accommodations); ante, at 9-10 (same). And it would
permit Congress to regulate where that regulation is "an essential
part of a larger regulation of economic activity, in which the regulatory
scheme could be undercut unless the intrastate activity were regulated."
Lopez, supra, at 561; cf. Controlled Substances Act, 21 U. S. C. §801 et
seq. (regulating drugs produced for home consumption). Given the former
exception, can Congress simply rewrite the present law and limit its application
to restaurants, hotels, perhaps universities, and other places of public
accommodation? Given the latter exception, can Congress save the present
law by including it, or much of it, in a broader "Safe Transport"
or "Workplace Safety" act?
|||More important, why should we give critical constitutional importance
to the economic, or non-economic, nature of an interstate-commerce-affecting
cause? If chemical emanations through indirect environmental change cause
identical, severe commercial harm outside a State, why should it matter
whether local factories or home fireplaces release them? The Constitution
itself refers only to Congress' power to "regulate Commerce . . . among
the several States," and to make laws "necessary and proper"
to implement that power. Art. I, §8, cls. 3, 18. The language says nothing
about either the local nature, or the economic nature, of an interstate-commerce-affecting
|||This Court has long held that only the interstate commercial effects,
not the local nature of the cause, are constitutionally relevant. See NLRB
v. Jones & Laughlin Steel Corp., 301 U. S. 1, 38-39 (1937) (focusing
upon interstate effects); Wickard v. Filburn, 317 U. S. 111, 125 (1942)
(aggregating interstate effects of wheat grown for home consumption); Heart
of Atlanta Motel, supra, at 258 (" `[I]f it is interstate commerce
that feels the pinch, it does not matter how local the operation which applies
the squeeze' " (quoting United States v. Women's Sportswear Mfrs. Assn.,
336 U. S. 460, 464 (1949))). Nothing in the Constitution's language, or
that of earlier cases prior to Lopez, explains why the Court should ignore
one highly relevant characteristic of an interstate-commerce-affecting cause
(how "local" it is), while placing critical constitutional weight
upon a different, less obviously relevant, feature (how "economic"
|||Most important, the Court's complex rules seem unlikely to help secure
the very object that they seek, namely, the protection of "areas of
traditional state regulation" from federal intrusion. Ante, at 15.
The Court's rules, even if broadly interpreted, are underinclusive. The
local pickpocket is no less a traditional subject of state regulation than
is the local gender-motivated assault. Regardless, the Court reaffirms,
as it should, Congress' well-established and frequently exercised power
to enact laws that satisfy a commerce-related jurisdictional prerequisite
-- for example, that some item relevant to the federally regulated activity
has at some time crossed a state line. Ante, at 8-9, 11, 13, and n. 5; Lopez,
supra, at 558; Heart of Atlanta Motel, supra, at 256 (" `[T]he authority
of Congress to keep the channels of interstate commerce free from immoral
and injurious uses has been frequently sustained, and is no longer open
to question' " (quoting Caminetti v. United States, 242 U. S. 470,
491 (1917))); see also United States v. Bass, 404 U. S. 336, 347-350 (1971)
(saving ambiguous felon-in-possession statute by requiring gun to have crossed
state line); Scarborough v. United States, 431 U. S. 563, 575 (1977) (interpreting
same statute to require only that gun passed "in interstate commerce"
"at some time," without questioning constitutionality); cf., e.g.,
18 U. S. C. §2261(a)(1) (making it a federal crime for a person to cross
state lines to commit a crime of violence against a spouse or intimate partner);
§1951(a) (federal crime to commit robbery, extortion, physical violence
or threat thereof, where "article or commodity in commerce" is
affected, obstructed or delayed); §2315 (making unlawful the knowing receipt
or possession of certain stolen items that have "crossed a State ...
boundary"); §922(g)(1) (prohibiting felons from shipping, transporting,
receiving, or possessing firearms "in interstate ... commerce").
|||And in a world where most everyday products or their component parts cross
interstate boundaries, Congress will frequently find it possible to redraft
a statute using language that ties the regulation to the interstate movement
of some relevant object, thereby regulating local criminal activity or,
for that matter, family affairs. See, e.g., Child Support Recovery Act of
1992, 18 U. S. C. §228. Although this possibility does not give the Federal
Government the power to regulate everything, it means that any substantive
limitation will apply randomly in terms of the interests the majority seeks
to protect. How much would be gained, for example, were Congress to re-enact
the present law in the form of "An Act Forbidding Violence Against
Women Perpetrated at Public Accommodations or by Those Who Have Moved in,
or through the Use of Items that Have Moved in, Interstate Commerce"?
Complex Commerce Clause rules creating fine distinctions that achieve only
random results do little to further the important federalist interests that
called them into being. That is why modern (pre-Lopez) case law rejected
them. See Wickard, supra, at 120; United States v. Darby, 312 U. S. 100,
116-117 (1941); Jones & Laughlin Steel Corp., supra, at 37.
|||The majority, aware of these difficulties, is nonetheless concerned with
what it sees as an important contrary consideration. To determine the lawfulness
of statutes simply by asking whether Congress could reasonably have found
that aggregated local instances significantly affect interstate commerce
will allow Congress to regulate almost anything. Virtually all local activity,
when instances are aggregated, can have "substantial effects on employment,
production, transit, or consumption." Hence Congress could "regulate
any crime," and perhaps "marriage, divorce, and childrearing"
as well, obliterating the "Constitution's distinction between national
and local authority." Ante, at 15; Lopez, 514 U. S., at 558; cf. A.
L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 548 (1935)
(need for distinction between "direct" and "indirect"
effects lest there "be virtually no limit to the federal power");
Hammer v. Dagenhart, 247 U. S. 251, 276 (1918) (similar observation).
|||This consideration, however, while serious, does not reflect a jurisprudential
defect, so much as it reflects a practical reality. We live in a Nation
knit together by two centuries of scientific, technological, commercial,
and environmental change. Those changes, taken together, mean that virtually
every kind of activity, no matter how local, genuinely can affect commerce,
or its conditions, outside the State -- at least when considered in the
aggregate. Heart of Atlanta Motel, 379 U. S., at 251. And that fact makes
it close to impossible for courts to develop meaningful subject-matter categories
that would exclude some kinds of local activities from ordinary Commerce
Clause "aggregation" rules without, at the same time, depriving
Congress of the power to regulate activities that have a genuine and important
effect upon interstate commerce.
|||Since judges cannot change the world, the "defect" means that,
within the bounds of the rational, Congress, not the courts, must remain
primarily responsible for striking the appropriate state/federal balance.
Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 552
(1985); ante, at 19-24 (Souter, J., dissenting); Kimel v. Florida Bd. of
Regents, 528 U. S. , (2000) (slip op., at 2) (Stevens, J., dissenting) (Framers
designed important structural safeguards to ensure that, when Congress legislates,
"the normal operation of the legislative process itself would adequately
defend state interests from undue infringement"); see also Kramer,
Putting the Politics Back into the Political Safeguards of Federalism, 100
Colum. L. Rev. 215 (2000) (focusing on role of political process and political
parties in protecting state interests). Congress is institutionally motivated
to do so. Its Members represent state and local district interests. They
consider the views of state and local officials when they legislate, and
they have even developed formal procedures to ensure that such consideration
takes place. See, e.g., Unfunded Mandates Reform Act of 1995, Pub. L. 104-4,
109 Stat. 48 (codified in scattered sections of 2 U. S. C.). Moreover, Congress
often can better reflect state concerns for autonomy in the details of sophisticated
statutory schemes than can the judiciary, which cannot easily gather the
relevant facts and which must apply more general legal rules and categories.
See, e.g., 42 U. S. C. §7543(b) (Clean Air Act); 33 U. S. C. §1251 et seq.
(Clean Water Act); see also New York v. United States, 505 U. S. 144, 167-168
(1992) (collecting other examples of "cooperative federalism").
Not surprisingly, the bulk of American law is still state law, and overwhelmingly
|||I would also note that Congress, when it enacted the statute, followed
procedures that help to protect the federalism values at stake. It provided
adequate notice to the States of its intent to legislate in an "are[a]
of traditional state regulation." Ante, at 15. And in response, attorneys
general in the overwhelming majority of States (38) supported congressional
legislation, telling Congress that "[o]ur experience as Attorneys General
strengthens our belief that the problem of violence against women is a national
one, requiring federal attention, federal leadership, and federal funds."
Id., at 34-36; see also Violence Against Women: Victims of the System, Hearing
on S. 15 before the Senate Committee on the Judiciary, 102d Cong., 1st Sess.,
37-38 (1991) (unanimous resolution of the National Association of Attorneys
General); but cf. Crimes of Violence Motivated by Gender, Hearing before
the Subcommittee on Civil and Constitutional Rights of the House Committee
on the Judiciary, 103d Cong., 1st Sess., 77-84 (1993) (Conference of Chief
Justices opposing legislation).
|||Moreover, as Justice Souter has pointed out, Congress compiled a "mountain
of data" explicitly documenting the interstate commercial effects of
gender-motivated crimes of violence. Ante, at 2-8, 27-28 (dissenting opinion).
After considering alternatives, it focused the federal law upon documented
deficiencies in state legal systems. And it tailored the law to prevent
its use in certain areas of traditional state concern, such as divorce,
alimony, or child custody. 42 U. S. C. §13981(e)(4). Consequently, the law
before us seems to represent an instance, not of state/federal conflict,
but of state/federal efforts to cooperate in order to help solve a mutually
acknowledged national problem. Cf. §§300w-10, 3796gg, 3796hh, 10409, 13931
(providing federal moneys to encourage state and local initiatives to combat
|||I call attention to the legislative process leading up to enactment of
this statute because, as the majority recognizes, ante, at 14, it far surpasses
that which led to the enactment of the statute we considered in Lopez. And
even were I to accept Lopez as an accurate statement of the law, which I
do not, that distinction provides a possible basis for upholding the law
here. This Court on occasion has pointed to the importance of procedural
limitations in keeping the power of Congress in check. See Garcia, supra,
at 554 ("Any substantive restraint on the exercise of Commerce Clause
powers must find its justification in the procedural nature of this basic
limitation, and it must be tailored to compensate for possible failings
in the national political process rather than to dictate a `sacred province
of state autonomy' " (quoting EEOC v. Wyoming, 460 U. S. 226, 236 (1983)));
see also Gregory v. Ashcroft, 501 U. S. 452, 460-461 (1991) (insisting upon
a "plain statement" of congressional intent when Congress legislates
"in areas traditionally regulated by the States"); cf. Hampton
v. Mow Sun Wong, 426 U. S. 88, 103-105, 114-117 (1976); Fullilove v. Klutznick,
448 U. S. 448, 548-554 (1980) (Stevens, J., dissenting).
|||Commentators also have suggested that the thoroughness of legislative
procedures -- e.g., whether Congress took a "hard look" -- might
sometimes make a determinative difference in a Commerce Clause case, say
when Congress legislates in an area of traditional state regulation. See,
e.g., Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?,
111 Harv. L. Rev. 2180, 2231-2245 (1998); Gardbaum, Rethinking Constitutional
Federalism, 74 Texas L. Rev. 795, 812-828, 830-832 (1996); Lessig, Translating
Federalism: United States v. Lopez, 1995 S. Ct. Rev. 125, 194-214 (1995);
see also Treaty Establishing the European Community Art. 5; Bermann, Taking
Subsidiarity Seriously: Federalism in the European Community and the United
States, 94 Colum. L. Rev. 331, 378-403 (1994) (arguing for similar limitation
in respect to somewhat analogous principle of subsidiarity for European
Community); Gardbaum, supra, at 833-837 (applying subsidiarity principles
to American federalism). Of course, any judicial insistence that Congress
follow particular procedures might itself intrude upon congressional prerogatives
and embody difficult definitional problems. But the intrusion, problems,
and consequences all would seem less serious than those embodied in the
majority's approach. See supra, at 2-7.
|||I continue to agree with Justice Souter that the Court's traditional "rational
basis" approach is sufficient. Ante, at 1-2 (dissenting opinion); see
also Lopez, 514 U. S., at 603-615 (Souter, J., dissenting); id., at 615-631
(Breyer, J., dissenting). But I recognize that the law in this area is unstable
and that time and experience may demonstrate both the unworkability of the
majority's rules and the superiority of Congress' own procedural approach
-- in which case the law may evolve towards a rule that, in certain difficult
Commerce Clause cases, takes account of the thoroughness with which Congress
has considered the federalism issue.
|||For these reasons, as well as those set forth by Justice Souter, this
statute falls well within Congress's Commerce Clause authority, and I dissent
from the Court's contrary conclusion.
|||Given my conclusion on the Commerce Clause question, I need not consider
Congress' authority under §5 of the Fourteenth Amendment. Nonetheless, I
doubt the Court's reasoning rejecting that source of authority. The Court
points out that in United States v. Harris, 106 U. S. 629 (1883), and the
Civil Rights Cases, 109 U. S. 3 (1883), the Court held that §5 does not
authorize Congress to use the Fourteenth Amendment as a source of power
to remedy the conduct of private persons. Ante, at 21-23. That is certainly
so. The Federal Government's argument, however, is that Congress used §5
to remedy the actions of state actors, namely, those States which, through
discriminatory design or the discriminatory conduct of their officials,
failed to provide adequate (or any) state remedies for women injured by
gender-motivated violence -- a failure that the States, and Congress, documented
in depth. See ante, at 3-4, n. 7, 27-28 (Souter, J., dissenting) (collecting
|||Neither Harris nor the Civil Rights Cases considered this kind of claim.
The Court in Harris specifically said that it treated the federal laws in
question as "directed exclusively against the action of private persons,
without reference to the laws of the State, or their administration by her
officers." 106 U. S., at 640 (emphasis added); see also Civil Rights
Cases, 109 U. S., at 14 (observing that the statute did "not profess
to be corrective of any constitutional wrong committed by the States"
and that it established "rules for the conduct of individuals in society
towards each other, ... without referring in any manner to any supposed
action of the State or its authorities").
|||The Court responds directly to the relevant "state actor" claim
by finding that the present law lacks " `congruence and proportionality'
" to the state discrimination that it purports to remedy. Ante, at
26; see City of Boerne v. Flores, 521 U. S. 507, 526 (1997). That is because
the law, unlike federal laws prohibiting literacy tests for voting, imposing
voting rights requirements, or punishing state officials who intentionally
discriminated in jury selection, Katzenbach v. Morgan, 384 U. S. 641 (1966);
South Carolina v. Katzenbach, 383 U. S. 301 (1966); Ex parte Virginia, 100
U. S. 339 (1880), is not "directed ... at any State or state actor."
Ante, at 26.
|||But why can Congress not provide a remedy against private actors? Those
private actors, of course, did not themselves violate the Constitution.
But this Court has held that Congress at least sometimes can enact remedial
"[l]egislation . . . [that] prohibits conduct which is not itself unconstitutional."
Flores, 521 U. S., at 518; see also Katzenbach v. Morgan, supra, at 651;
South Carolina v. Katzenbach, supra, at 308. The statutory remedy does not
in any sense purport to "determine what constitutes a constitutional
violation." Flores, supra, at 519. It intrudes little upon either States
or private parties. It may lead state actors to improve their own remedial
systems, primarily through example. It restricts private actors only by
imposing liability for private conduct that is, in the main, already forbidden
by state law. Why is the remedy "disproportionate"? And given
the relation between remedy and violation -- the creation of a federal remedy
to substitute for constitutionally inadequate state remedies -- where is
the lack of "congruence"?
|||The majority adds that Congress found that the problem of inadequacy of
state remedies "does not exist in all States, or even most States."
Ante, at 27. But Congress had before it the task force reports of at least
21 States documenting constitutional violations. And it made its own findings
about pervasive gender-based stereotypes hampering many state legal systems,
sometimes unconstitutionally so. See, e.g., S. Rep. No. 103-138, pp. 38,
41-42, 44-47 (1993); S. Rep. No. 102-197, pp. 39, 44-49 (1991); H. R. Conf.
Rep. No. 103-711, p. 385 (1994). The record nowhere reveals a congressional
finding that the problem "does not exist" elsewhere. Why can Congress
not take the evidence before it as evidence of a national problem? This
Court has not previously held that Congress must document the existence
of a problem in every State prior to proposing a national solution. And
the deference this Court gives to Congress' chosen remedy under §5, Flores,
supra, at 536, suggests that any such requirement would be inappropriate.
|||Despite my doubts about the majority's §5 reasoning, I need not, and do
not, answer the §5 question, which I would leave for more thorough analysis
if necessary on another occasion. Rather, in my view, the Commerce Clause
provides an adequate basis for the statute before us. And I would uphold
its constitutionality as the "necessary and proper" exercise of
legislative power granted to Congress by that Clause.
|||*fn1 Together with No. 99-29, Brzonkala v. Morrison et al., also on certiorari
to the same court.
|||*fn2 The panel affirmed
the dismissal of Brzonkala's Title IX disparate treatment claim. See 132
F. 3d, at 961-962.
|||*fn3 The en banc Court
of Appeals affirmed the District Court's conclusion that Brzonkala failed
to state a claim alleging disparate treatment under Title IX, but vacated
the District Court's dismissal of her hostile environment claim and remanded
with instructions for the District Court to hold the claim in abeyance pending
this Court's decision in Davis v. Monroe County Bd. of Ed., 526 U. S. 629
(1999). Brzonkala v. Virginia Polytechnic and State Univ., 169 F. 3d 820,
827, n. 2 (CA4 1999). Our grant of certiorari did not encompass Brzonkala's
Title IX claims, and we thus do not consider them in this opinion.
|||*fn4 Justice Souter's
dissent takes us to task for allegedly abandoning Jones & Laughlin Steel
in favor of an inadequate "federalism of some earlier time." Post,
at 15-17, 29. As the foregoing language from Jones & Laughlin Steel
makes clear however, this Court has always recognized a limit on the commerce
power inherent in "our dual system of government." 301 U. S.,
at 37. It is the dissent's remarkable theory that the commerce power is
without judicially enforceable boundaries that disregards the Court's caution
in Jones & Laughlin Steel against allowing that power to "effectually
obliterate the distinction between what is national and what is local."
|||*fn5 Justice Souter's
dissent does not reconcile its analysis with our holding in Lopez because
it apparently would cast that decision aside. See post, at 10-16. However,
the dissent cannot persuasively contradict Lopez's conclusion that, in every
case where we have sustained federal regulation under Wickard's aggregation
principle, the regulated activity was of an apparent commercial character.
See, e.g., Lopez, 514 U. S., at 559-560, 580.
|||*fn6 Title 42 U. S.
C. §13981 is not the sole provision of the Violence Against Women Act of
1994 to provide a federal remedy for gender-motivated crime. Section 40221(a)
of the Act creates a federal criminal remedy to punish "interstate
crimes of abuse including crimes committed against spouses or intimate partners
during interstate travel and crimes committed by spouses or intimate partners
who cross State lines to continue the abuse." S. Rep. No. 103-138,
p. 43 (1993). That criminal provision has been codified at 18 U. S. C. §2261(a)(1),
which states: "A person who travels across a State line or enters or
leaves Indian country with the intent to injure, harass, or intimidate that
person's spouse or intimate partner, and who, in the course of or as a result
of such travel, intentionally commits a crime of violence and thereby causes
bodily injury to such spouse or intimate partner, shall be punished as provided
in subsection (b)." The Courts of Appeals have uniformly upheld this
criminal sanction as an appropriate exercise of Congress' Commerce Clause
authority, reasoning that "[t]he provision properly falls within the
first of Lopez's categories as it regulates the use of channels of interstate
commerce -- i.e., the use of the interstate transportation routes through
which persons and goods move." United States v. Lankford, 196 F. 3d
563, 571-572 (CA5 1999) (collecting cases) (internal quotation marks omitted).
|||*fn7 We are not the
first to recognize that the but-for causal chain must have its limits in
the Commerce Clause area. In Lopez, 514 U. S., at 567, we quoted Justice
Cardozo's concurring opinion in A. L. A. Schechter Poultry Corp. v. United
States, 295 U. S. 495 (1935): "There is a view of causation that would
obliterate the distinction between what is national and what is local in
the activities of commerce. Motion at the outer rim is communicated perceptibly,
though minutely, to recording instruments at the center. A society such
as ours `is an elastic medium which transmits all tremors throughout its
territory; the only question is of their size.' " Id., at 554 (quoting
United States v. A. L. A. Schechter Poultry Corp., 76 F. 2d 617, 624 (CA2
1935) (L. Hand, J., concurring)).
|||*fn8 Justice Souter's
dissent theory that Gibbons v. Ogden, 9 Wheat. 1 (1824), Garcia v. San Antonio
Metropolitan Transit Authority, 469 U. S. 528 (1985), and the Seventeenth
Amendment provide the answer to these cases, see post, at 19-26, is remarkable
because it undermines this central principle of our constitutional system.
As we have repeatedly noted, the Framers crafted the federal system of government
so that the people's rights would be secured by the division of power. See,
e.g., Arizona v. Evans, 514 U. S. 1, 30 (1995) (Ginsburg, J., dissenting);
Gregory v. Ashcroft, 501 U. S. 452, 458-459 (1991) (cataloging the benefits
of the federal design); Atascadero State Hospital v. Scanlon, 473 U. S.
234, 242 (1985) ("The `constitutionally mandated balance of power'
between the States and the Federal Government was adopted by the Framers
to ensure the protection of `our fundamental liberties' ") (quoting
Garcia, supra, at 572 (Powell, J., dissenting)). Departing from their parliamentary
past, the Framers adopted a written Constitution that further divided authority
at the federal level so that the Constitution's provisions would not be
defined solely by the political branches nor the scope of legislative power
limited only by public opinion and the legislature's self-restraint. See,
e.g., Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C. J.) ("The
powers of the legislature are defined and limited; and that those limits
may not be mistaken or forgotten, the constitution is written"). It
is thus a " `permanent and indispensable feature of our constitutional
system' " that " `the federal judiciary is supreme in the exposition
of the law of the Constitution.' " Miller v. Johnson, 515 U. S. 900,
922-923 (1995) (quoting Cooper v. Aaron, 358 U. S. 1, 18 (1958)). No doubt
the political branches have a role in interpreting and applying the Constitution,
but ever since Marbury this Court has remained the ultimate expositor of
the constitutional text. As we emphasized in United States v. Nixon, 418
U. S. 683 (1974), "[I]n the performance of assigned constitutional
duties each branch of the Government must initially interpret the Constitution,
and the interpretation of its powers by any branch is due great respect
from the others... . Many decisions of this Court, however, have unequivocally
reaffirmed the holding of Marbury ... that `[i]t is emphatically the province
and duty of the judicial department to say what the law is.' " Id.,
at 703 (citation omitted). Contrary to Justice Souter's suggestion, see
post, at 19-21, and n. 14, Gibbons did not exempt the commerce power from
this cardinal rule of constitutional law. His assertion that, from Gibbons
on, public opinion has been the only restraint on the congressional exercise
of the commerce power is true only insofar as it contends that political
accountability is and has been the only limit on Congress' exercise of the
commerce power within that power's outer bounds. As the language surrounding
that relied upon by Justice Souter makes clear, Gibbons did not remove from
this Court the authority to define that boundary. See Gibbons, supra, at
194-195 ("It is not intended to say that these words comprehend that
commerce, which is completely internal, which is carried on between man
and man in a State, or between different parts of the same State, and which
does not extend to or affect other States... . Comprehensive as the word
`among' is, it may very properly be restricted to that commerce which concerns
more States than one. The phrase is not one which would probably have been
selected to indicate the completely interior traffic of a State, because
it is not an apt phrase for that purpose; and the enumeration of the particular
classes of commerce to which the power was to be extended, would not have
been made, had the intention been to extend the power to every description.
The enumeration presupposes something not enumerated; and that something,
if we regard the language or the subject of the sentence, must be the exclusively
internal commerce of a State").
|||*fn9 Justice Souter
disputes our assertion that the Constitution reserves the general police
power to the States, noting that the Founders failed to adopt several proposals
for additional guarantees against federal encroachment on state authority.
See post, at 19-22, and n. 14. This argument is belied by the entire structure
of the Constitution. With its careful enumeration of federal powers and
explicit statement that all powers not granted to the Federal Government
are reserved, the Constitution cannot realistically be interpreted as granting
the Federal Government an unlimited license to regulate. See, e.g., New
York v. United States, 505 U. S. 144, 156-157 (1992). And, as discussed
above, the Constitution's separation of federal power and the creation of
the Judicial Branch indicate that disputes regarding the extent of congressional
power are largely subject to judicial review. See n. 7, supra. Moreover,
the principle that " `[t]he Constitution created a Federal Government
of limited powers,' " while reserving a generalized police power to
the States is deeply ingrained in our constitutional history. New York,
supra, at 155 (quoting Gregory v. Ashcroft, supra, at 457; see also Lopez,
514 U. S., at 584-599 (Thomas, J., concurring) (discussing the history of
the debates surrounding the adoption of the Commerce Clause and our subsequent
interpretation of the Clause); Maryland v. Wirtz, 392 U. S. 183, 196 (1968).
|||*fn10 Finding the
law a valid exercise of Commerce Clause power, I have no occasion to reach
the question whether it might also be sustained as an exercise of Congress's
power to enforce the Fourteenth Amendment.
|||*fn11 It is true
that these data relate to the effects of violence against women generally,
while the civil rights remedy limits its scope to "crimes of violence
motivated by gender" -- presumably a somewhat narrower subset of acts.
See 42 U. S. C. §13981(b). But the meaning of "motivated by gender"
has not been elucidated by lower courts, much less by this one, so the degree
to which the findings rely on acts not redressable by the civil rights remedy
is unclear. As will appear, however, much of the data seems to indicate
behavior with just such motivation. In any event, adopting a cramped reading
of the statutory text, and thereby increasing the constitutional difficulties,
would directly contradict one of the most basic canons of statutory interpretation.
See NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 30 (1937). Having
identified the problem of violence against women, Congress may address what
it sees as the most threatening manifestation; "reform may take one
step at a time." Williamson v. Lee Optical of Okla., Inc., 348 U. S.
483, 489 (1955).
|||*fn12 See, e.g.,
Domestic Violence: Terrorism in the Home, Hearing before the Subcommittee
on Children, Family, Drugs and Alcoholism of the Senate Committee on Labor
and Human Resources, 101st Cong., 2d Sess. (1990) (S. Hearing 101-897);
Women and Violence, Hearing before the Senate Committee on the Judiciary,
101st Cong., 2d Sess. (1990); Violence Against Women: Victims of the System,
Hearing on S. 15 before the Senate Committee on the Judiciary, 102d Cong.,
1st Sess. (1991) (S. Hearing 102-369); Violence Against Women, Hearing before
the Subcommittee on Crime and Criminal Justice of the House Committee on
the Judiciary, 102d Cong., 2d Sess. (1992); Hearing on Domestic Violence,
Hearing before the Senate Committee on the Judiciary, 103d Cong., 1st Sess.
(1993) (S. Hearing 103-596); Violent Crimes Against Women, Hearing before
the Senate Committee on the Judiciary, 103d Cong., 1st Sess. (1993) (S.
Hearing 103-726); Violence Against Women: Fighting the Fear, Hearing before
the Senate Committee on the Judiciary, 103d Cong., 1st Sess. (1993) (S.
Hearing 103-878); Crimes of Violence Motivated by Gender, Hearing before
the Subcommittee on Civil and Constitutional Rights of the House Committee
on the Judiciary, 103d Cong., 1st Sess. (1993); Domestic Violence: Not Just
a Family Matter, Hearing before the Subcommittee on Crime and Criminal Justice
of the House Committee on the Judiciary, 103d Cong., 2d Sess. (1994).
|||*fn13 See, e.g.,
S. Hearing 103-596, at 1-4 (testimony of Northeastern Univ. Law School Professor
Clare Dalton); S. Hearing 102-369, at 103-105 (testimony of Univ. of Chicago
Professor Cass Sunstein); S. Hearing 103-878, at 7-11 (testimony of American
Medical Assn. president-elect Robert McAfee).
|||*fn14 See, e.g.,
id., at 13-17 (testimony of Lisa); id. at 40-42 (testimony of Jennifer Tescher).
|||*fn15 See, e.g.,
S. Hearing 102-369, at 24-36, 71-87 (testimony of attorneys general of Iowa
and Illinois); id., at 235-245 (testimony of National Federation of Business
and Professional Women); S. Hearing No. 103-596, at 15-17 (statement of
James Hardeman, Manager, Counseling Dept., Polaroid Corp.).
|||*fn16 See Judicial
Council of California Advisory Committee on Gender Bias in the Courts, Achieving
Equal Justice for Women and Men in the California Courts (July 1996) (edited
version of 1990 report); Colorado Supreme Court Task Force on Gender Bias
in the Courts, Gender and Justice in the Colorado Courts (1990); Connecticut
Task Force on Gender, Justice and the Courts, Report to the Chief Justice
(Sept. 1991); Report of the Florida Supreme Court Gender Bias Study Commission
(Mar. 1990); Supreme Court of Georgia, Commission on Gender Bias in the
Judicial System, Gender and Justice in the Courts (1991), reprinted in 8
Ga. St. U. L. Rev. 539 (1992); Report of the Illinois Task Force on Gender
Bias in the Courts (1990); Equality in the Courts Task Force, State of Iowa,
Final Report (Feb. 1993); Kentucky Task Force on Gender Fairness in the
Courts, Equal Justice for Women and Men (Jan. 1992); Louisiana Task Force
on Women in the Courts, Final Report (1992); Maryland Special Joint Comm.,
Gender Bias in the Courts (May 1989); Massachusetts Supreme Judicial Court,
Gender Bias Study of the Court System in Massachusetts (1989); Michigan
Supreme Court Task Force on Gender Issues in the Courts, Final Report (Dec.
1989); Minnesota Supreme Court Task Force for Gender Fairness in the Courts,
Final Report (1989), reprinted in 15 Wm. Mitchell L. Rev. 825 (1989); Nevada
Supreme Court Gender Bias Task Force, Justice For Women (1988); New Jersey
Supreme Court Task Force on Women in the Courts, Report of the First Year
(June 1984); Report of the New York Task Force on Women in the Courts (Mar.
1986); Final Report of the Rhode Island Supreme Court Committee on Women
in the Courts (June 1987); Utah Task Force on Gender and Justice, Report
to the Utah Judicial Council (Mar. 1990); Vermont Supreme Court and Vermont
Bar Assn., Gender and Justice: Report of the Vermont Task Force on Gender
Bias in the Legal System (Jan. 1991); Washington State Task Force on Gender
and Justice in the Courts, Final Report (1989); Wisconsin Equal Justice
Task Force, Final Report (Jan. 1991).
|||*fn17 See S. Rep.
No. 101-545 (1990); Majority Staff of Senate Committee on the Judiciary,
Violence Against Women: The Increase of Rape in America, 102d Cong., 1st
Sess. (Comm. Print 1991); S. Rep. No. 102-197 (1991); Majority Staff of
Senate Committee on the Judiciary, Violence Against Women: A Week in the
Life of America, 102d Cong., 2d Sess. (Comm. Print 1992); S. Rep. No. 103-138
(1993); Majority Staff of Senate Committee on the Judiciary, The Response
to Rape: Detours on the Road to Equal Justice, 103d Cong., 1st Sess. (Comm.
Print 1993); H. R. Rep. No. 103-395 (1993); H. R. Conf. Rep. No. 103-711
|||*fn18 In other cases,
we have accepted dramatically smaller figures. See, e.g., Hodel v. Indiana,
452 U. S. 314, 325, n. 11 (1981) (stating that corn production with a value
of $5.16 million "surely is not an insignificant amount of commerce").
|||*fn19 It should go
without saying that my view of the limit of the congressional commerce power
carries no implication about the wisdom of exercising it to the limit. I
and other Members of this Court appearing before Congress have repeatedly
argued against the federalization of traditional state crimes and the extension
of federal remedies to problems for which the States have historically taken
responsibility and may deal with today if they have the will to do so. See
Hearings before a Subcommittee of the House Committee on Appropriations,
104th Cong., 1st Sess., pt. 7, pp. 13-14 (1995) (testimony of Justice Kennedy);
Hearings on H. R. 4603 before a Subcommittee of the Senate Committee on
Appropriations, 103d Cong., 2d Sess., 100-107 (1994) (testimony of Justices
Kennedy and Souter). The Judicial Conference of the United States originally
opposed the Act, though after the original bill was amended to include the
gender-based animus requirement, the objection was withdrawn for reasons
that are not apparent. See Crimes of Violence Motivated by Gender, Hearing
before the Subcommittee on Civil and Constitutional Rights of the House
Committee on the Judiciary, 103d Cong., 1st Sess., 70-71 (1993).
|||*fn20 The claim that
powers not granted were withheld was the chief Federalist argument against
the necessity of a bill of rights. Bills of rights, Hamilton claimed, "have
no application to constitutions professedly founded upon the power of the
people, and executed by their immediate representatives and servants. Here,
in strictness, the people surrender nothing, and as they retain every thing,
they have no need of particular reservations." The Federalist No. 84,
at 578. James Wilson went further in the Pennsylvania ratifying convention,
asserting that an enumeration of rights was positively dangerous because
it suggested, conversely, that every right not reserved was surrendered.
See 2 J. Elliot, Debates in the Several State Conventions on the Adoption
of the Federal Constitution 436-437 (2d ed. 1863) (hereinafter Elliot's
Debates). The Federalists did not, of course, prevail on this point; most
States voted for the Constitution only after proposing amendments and the
First Congress speedily adopted a Bill of Rights. See Garcia v. San Antonio
Metropolitan Transit Authority, 469 U. S. 528, 569 (1985) (Powell, J., dissenting).
While that document protected a range of specific individual rights against
federal infringement, it did not, with the possible exception of the Second
Amendment, offer any similarly specific protections to areas of state sovereignty.
|||*fn21 To the contrary,
we have always recognized that while the federal commerce power may overlap
the reserved state police power, in such cases federal authority is supreme.
See, e.g., Lake Shore & Michigan Southern R. Co. v. Ohio, 173 U. S.
285, 297-298 (1899) ("When Congress acts with reference to a matter
confided to it by the Constitution, then its statutes displace all conflicting
local regulations touching that matter, although such regulations may have
been established in pursuance of a power not surrendered by the States to
the General Government"); United States v. California, 297 U. S. 175,
185 (1936) ("[W]e look to the activities in which the states have traditionally
engaged as marking the boundary of the restriction upon the federal taxing
power. But there is no such limitation upon the plenary power to regulate
|||*fn22 Contrary to
the Court's suggestion, ante, at 11, n. 4, Wickard applied the substantial
effects test to domestic agricultural production for domestic consumption,
an activity that cannot fairly be described as commercial, despite its commercial
consequences in affecting or being affected by the demand for agricultural
products in the commercial market. The Wickard Court admitted that Filburn's
activity "may not be regarded as commerce" but insisted that "it
may still, whatever its nature, be reached by Congress if it exerts a substantial
economic effect on interstate commerce ... ." 317 U. S., at 125. The
characterization of home wheat production as "commerce" or not
is, however, ultimately beside the point. For if substantial effects on
commerce are proper subjects of concern under the Commerce Clause, what
difference should it make whether the causes of those effects are themselves
commercial? Cf., e.g., National Organization for Women, Inc. v. Scheidler,
510 U. S. 249, 258 (1994) ("An enterprise surely can have a detrimental
influence on interstate or foreign commerce without having its own profit-seeking
motives"). The Court's answer is that it makes a difference to federalism,
and the legitimacy of the Court's new judicially derived federalism is the
crux of our disagreement. See infra, at 18-19.
|||*fn23 The Constitution
of 1787 did, in fact, forbid some exercises of the commerce power. Article
I, §9, cl. 6, barred Congress from giving preference to the ports of one
State over those of another. More strikingly, the Framers protected the
slave trade from federal interference, see Art. I, §9, cl. 1, and confirmed
the power of a State to guarantee the chattel status of slaves who fled
to another State, see Art. IV, §2, cl. 3. These reservations demonstrate
the plenary nature of the federal power; the exceptions prove the rule.
Apart from them, proposals to carve islands of state authority out of the
stream of commerce power were entirely unsuccessful. Roger Sherman's proposed
definition of federal legislative power as excluding "matters of internal
police" met Gouverneur Morris's response that "[t]he internal
police ... ought to be infringed in many cases" and was voted down
eight to two. 2 Records of the Federal Convention of 1787, pp. 25-26 (M.
Farrand ed. 1911) (hereinafter Farrand). The Convention similarly rejected
Sherman's attempt to include in Article V a proviso that "no state
shall ... be affected in its internal police." 5 Elliot's Debates 551-552.
Finally, Rufus King suggested an explicit bill of rights for the States,
a device that might indeed have set aside the areas the Court now declares
off-limits. 1 Farrand 493 ("As the fundamental rights of individuals
are secured by express provisions in the State Constitutions; why may not
a like security be provided for the Rights of States in the National Constitution").
That proposal, too, came to naught. In short, to suppose that enumerated
powers must have limits is sensible; to maintain that there exist judicially
identifiable areas of state regulation immune to the plenary congressional
commerce power even though falling within the limits defined by the substantial
effects test is to deny our constitutional history.
|||*fn24 That the national
economy and the national legislative power expand in tandem is not a recent
discovery. This Court accepted the prospect well over 100 years ago, noting
that the commerce powers "are not confined to the instrumentalities
of commerce, or the postal service known or in use when the Constitution
was adopted, but they keep pace with the progress of the country, and adapt
themselves to the new developments of time and circumstances." Pensacola
Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1, 9 (1878). See
also, e.g., Farmers Loan & Trust Co. v. Minnesota, 280 U. S. 204, 211-212
(1930) ("Primitive conditions have passed; business is now transacted
on a national scale").
|||*fn25 As mentioned
n. 11, supra, many state conventions voted in favor of the Constitution
only after proposing amendments. See 1 Elliot's Debates 322-323 (Massachusetts),
325 (South Carolina), 325-327 (New Hampshire), 327 (Virginia), 327-331 (New
York), 331-332 (North Carolina), 334-337 (Rhode Island).
to similar effect pervade the ratification debates. See, e.g., 2 id., at
166-170 (Massachusetts, remarks of Samuel Stillman); id., at 251-253 (New
York, remarks of Alexander Hamilton); 4 id., at 95-98 (North Carolina, remarks
of James Iredell).
|||*fn27 The majority's
special solicitude for "areas of traditional state regulation,"
ante, at 15, is thus founded not on the text of the Constitution but on
what has been termed the "spirit of the Tenth Amendment," Garcia
v. San Antonio Metropolitan Transit Authority, 469 U. S., at 585 (O'Connor,
J., dissenting) (emphasis in original). Susceptibility to what Justice Holmes
more bluntly called "some invisible radiation from the general terms
of the Tenth Amendment," Missouri v. Holland, 252 U. S. 416, 434 (1920),
has increased in recent years, in disregard of his admonition that "[w]e
must consider what this country has become in deciding what that Amendment
has reserved." Ibid.
|||*fn28 The majority
tries to deflect the objection that it blocks an intended political process
by explaining that the Framers intended politics to set the federal balance
only within the sphere of permissible commerce legislation, whereas we are
looking to politics to define that sphere (in derogation even of Marbury
v. Madison, 1 Cranch 137 (1803)), ante, at 16-17. But we all accept the
view that politics is the arbiter of state interests only within the realm
of legitimate congressional action under the commerce power. Neither Madison
nor Wilson nor Marshall, nor the Jones & Laughlin, Darby, Wickard, or
Garcia Courts, suggested that politics defines the commerce power. Nor do
we, even though we recognize that the conditions of the contemporary world
result in a vastly greater sphere of influence for politics than the Framers
would have envisioned. Politics has legitimate authority, for all of us
on both sides of the disagreement, only within the legitimate compass of
the commerce power. The majority claims merely to be engaging in the judicial
task of patrolling the outer boundaries of that congressional authority.
See ante, at 16, n. 7. That assertion cannot be reconciled with our statements
of the substantial effects test, which have not drawn the categorical distinctions
the majority favors. See, e.g., Wickard, 317 U. S., at 125; Darby, 312 U.
S., at 118-119. The majority's attempt to circumscribe the commerce power
by defining it in terms of categorical exceptions can only be seen as a
revival of similar efforts that led to near tragedy for the Court and incoherence
for the law. If history's lessons are accepted as guides for Commerce Clause
interpretation today, as we do accept them, then the subject matter of the
Act falls within the commerce power and the choice to legislate nationally
on that subject, or to except it from national legislation because the States
have traditionally dealt with it, should be a political choice and only
a political choice.
|||*fn29 See n. 7, supra.
The point here is not that I take the position that the States are incapable
of dealing adequately with domestic violence if their political leaders
have the will to do so; it is simply that the Congress had evidence from
which it could find a national statute necessary, so that its passage obviously
survives Commerce Clause scrutiny.
|||*fn30 The majority's
concerns about accountability strike me as entirely misplaced. Individuals,
such as the defendants in this action, haled into federal court and sued
under the United States Code, are quite aware of which of our dual sovereignties
is attempting to regulate their behavior. Had Congress chosen, in the exercise
of its powers under §5 of the Fourteenth Amendment, to proceed instead by
regulating the States, rather than private individuals, this accountability
would be far less plain.
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