UNITED STATES v.
MORRISON et al.
certiorari
to the
No. 99-5. Argued
January 11, 2000--Decided May 15, 20001
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
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
(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
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 Part I-A.
99-5 v.
ANTONIO J. MORRISON et al.
CHRISTY BRZONKALA, PETITIONER
99-29 v.
ANTONIO J. MORRISON et al.
on
writs of certiorari to the
appeals for the fourth circuit
[May 15, 2000]
Chief Justice Rehnquist delivered
the opinion of the Court.
In these cases we consider the
constitutionality of 42
I
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 ... ."
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
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
A divided panel of the Court of Appeals
reversed the District Court, reinstating Brzonkala's
§13981 claim and her Title IX hostile environment claim.1 Brzonkala
v. Virginia Polytechnic and
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
"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 States; and
"(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." §13981(d)(2).
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 the section.
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.
II
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
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.
"[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.' "
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
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."
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 noneconomic, 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 uni-
fied purpose to build a stable national
economy"), 577 ("Were the Federal Government to take over the regulat-
ion 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 posses-
sion 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 re-
view 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-
560.4
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."
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.
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."
"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 noneconomic
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.5
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 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, at 385.
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.6 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.7 See Lopez,
supra, at 575-579 (Kennedy, J., concurring); Marbury,
1 Cranch, at 176-178.
We accordingly reject the argument that
Congress may regulate noneconomic, 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
III
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 §13981.
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
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." ' "
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."
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 Fourteenth Amendment.
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
"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."
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 public facilities").
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
"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., at 18.
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 maladministration 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 Postsecondary 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
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.
IV
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
Affirmed.
99-5 v.
ANTONIO J. MORRISON et al.
CHRISTY BRZONKALA, PETITIONER
99-29 v.
ANTONIO J. MORRISON et al.
on
writs of certiorari to the
appeals for the fourth circuit
[May 15, 2000]
Justice Thomas,
concurring.
The majority opinion correctly applies our
decision in
99-5 v.
ANTONIO J. MORRISON et al.
CHRISTY BRZONKALA, PETITIONER
99-29 v.
ANTONIO J. MORRISON et al.
on
writs of certiorari to the
appeals for the fourth circuit
[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.1
I
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
With respect to domestic violence,
Congress received evidence for the following findings:
"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 ed. 1988)).
"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 3132 (1992)).
"[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 1990)).
"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
"[B]attering
`is the single largest cause of injury to women in the
"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
"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 (1988)).
"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-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.
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 41.9 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."
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.10
II
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.
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.
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.12 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.
A
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.
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 115.
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,13 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/noneconomic 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.
B
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."
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.15 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,
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),16 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 Debates 438-439.17 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.18 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."
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."
The
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.19
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 power.
C
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 essential.20
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).21 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
III
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.
99-5 v.
ANTONIO J. MORRISON et al.
CHRISTY BRZONKALA, PETITIONER
99-29 v.
ANTONIO J. MORRISON et al.
on
writs of certiorari to the
appeals for the fourth circuit
[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.
I
The majority holds that the federal
commerce power does not extend to such "noneconomic"
activities as "noneconomic,
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.
A
Consider the problems. The "economic/noneconomic" distinction is not easy to apply. Does
the local street corner mugger engage in "economic" activity or
"noneconomic" activity when he mugs for
money? See Perez v.
The line becomes yet harder to draw given
the need for exceptions. The Court itself would permit Congress to aggregate,
hence regulate, "noneconomic" 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
More important, why should we give
critical constitutional importance to the economic, or noneconomic,
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 cause.
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"
it is).
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
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
B
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]
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
gender-motivated violence).
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.,
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.
II
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 sources).
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;
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,
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.
Footnote 1
Together with No. 99-29, Brzonkala
v. Morrison et al., also on certiorari to the same court.
Footnote 1
The panel affirmed the dismissal of Brzonkala's
Title IX disparate treatment claim. See 132 F. 3d, at 961-962.
Footnote 2
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
Footnote 3
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." Ibid.
Footnote 4
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.
Footnote 5
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
"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."
Footnote 6
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.' "
Footnote 7
Justice Souter's dissent theory that Gibbons
v.
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
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").
Footnote 8
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.,
Footnote 1
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.
Footnote 2
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
Footnote 3
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).
Footnote 4
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
Footnote 5
See, e.g., id., at 13-17 (testimony of
Lisa); id. at 40-42 (testimony of
Jennifer Tescher).
Footnote 6
See, e.g., S. Hearing 102-369, at
24-36, 71-87 (testimony of attorneys general of
Footnote 7
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).
Footnote 8
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 (1994).
Footnote 9
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").
Footnote 10
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
Footnote 11
The claim that powers not granted were withheld was the chief
Federalist argument against the necessity of a bill of rights. Bills of rights,
Footnote 12
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 commerce").
Footnote 13
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
Footnote 14
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
Footnote 15
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.
Footnote 16
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 (
Footnote 17
Statements to similar effect pervade the ratification debates. See, e.g., 2 id., at 166-170 (
Footnote 18
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,"
Footnote 19
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.
Footnote 20
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.
Footnote 21
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.