529
Facts: Brzonkala was allegedly raped by the defendants. She sued the defendants in federal court
under 42 U.S.C. § 13981. The defendants
responded by claiming that the statute was unconstitutional. The district court agreed and dismissed the
complaint. Brzonkala appealed. The Fourth Circuit affirmed en banc, and
Brzonkala appealed to the U.S. Supreme Court.
Issue: Did Congress have constitutional authority to enact §
13981 under the Commerce Clause?
Rule: Congress has the power to regulate economic activities that are substantially related to interstate
commerce.
Analysis: The Court says that Lopez supplies the proper framework
to analyze whether the statute in question is within the proper reach of
Congress’s Commerce Clause power.
First, the Court claims that
the non-economic nature of the conduct in question in Lopez was important to the
decision to find the statute unconstitutional.
Next, the Court says that a statute is more likely to pass muster if the
conduct prohibited is explicitly limited to that which “substantially affects interstate
commerce”. The Court notes that the statute
in Lopez
lacked specific congressional findings supporting the connection between the statute
and interstate commerce. Finally, the
Court notes the “attenuated” nature of the connection between gun possession and
interstate commerce.
Applying this rubric to the
Violence Against Women Act, the Court finds that if this act can stand, Congress
would pretty much be allowed to regulate anything. It doesn’t apparently help that the legislative
record includes extensive findings relating violence against women and interstate
commerce.
Breyer says the economic/non-economic distinction
is too difficult to make and doesn’t get applied consistently anyway. Breyer also thinks the economic/non-economic
question should focus on the “effects” and not the “causes”.
The dissent says that the
mountain of facts gathered by Congress in support of the connection between
violence against women and interstate commerce distinguishes this case from Lopez.
Conclusion: The Court affirms the decision of the Court of
Appeals.
Majority opinion, parts I
and II
Chief Justice Rehnquist
delivered the opinion of the Court.
In these cases we consider the
constitutionality of 42 U. S. C. §13981, which provides a federal civil remedy
for the victims of gender-motivated violence. The United States Court of
Appeals for the Fourth Circuit, sitting en banc, struck down §13981 because it
concluded that Congress lacked constitutional authority to enact the section's
civil remedy. Believing that these cases are controlled by our decisions in
United States v. Lopez, 514 U. S. 549 (1995), United States v. Harris, 106 U.
S. 629 (1883), and the Civil Rights Cases, 109 U. S. 3 (1883), we affirm.
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 ... ." Id., ¶ ;31. The omitted portions, quoted
verbatim in the briefs on file with this Court, consist of boasting, debased
remarks about what Morrison would do to women, vulgar remarks that cannot fail
to shock and offend.
Brzonkala alleges that this attack caused
her to become severely emotionally disturbed and depressed. She sought
assistance from a university psychiatrist, who prescribed antidepressant
medication. Shortly after the rape Brzonkala stopped attending classes and
withdrew from the university.
In early 1995, Brzonkala filed a complaint
against respondents under Virginia Tech's Sexual Assault Policy. During the
school-conducted hearing on her complaint, Morrison admitted having sexual
contact with her despite the fact that she had twice told him "no."
After the hearing, Virginia Tech's Judicial Committee found insufficient
evidence to punish Crawford, but found Morrison guilty of sexual assault and
sentenced him to immediate suspension for two semesters.
Virginia Tech's dean of students upheld
the judicial committee's sentence. However, in July 1995, Virginia Tech
informed Brzonkala that Morrison intended to initiate a court challenge to his
conviction under the Sexual Assault Policy. University officials told her that
a second hearing would be necessary to remedy the school's error in prosecuting
her complaint under that policy, which had not been widely circulated to
students. The university therefore conducted a second hearing under its Abusive
Conduct Policy, which was in force prior to the dissemination of the Sexual
Assault Policy. Following this second hearing the Judicial Committee again
found Morrison guilty and sentenced him to an identical 2-semester suspension.
This time, however, the description of Morrison's offense was, without
explanation, changed from "sexual assault" to "using abusive
language."
Morrison appealed his second conviction
through the university's administrative system. On August 21, 1995, Virginia
Tech's senior vice president and provost set aside Morrison's punishment. She
concluded that it was " `excessive when compared with other cases where
there has been a finding of violation of the Abusive Conduct Policy,' "
132 F. 3d 950, 955 (CA4 1997). Virginia Tech did not inform Brzonkala of this
decision. After learning from a newspaper that Morrison would be returning to
Virginia Tech for the fall 1995 semester, she dropped out of the university.
In December 1995, Brzonkala sued Morrison,
Crawford, and Virginia Tech in the United States District Court for the Western
District of Virginia. Her complaint alleged that Morrison's and Crawford's
attack violated §13981 and that Virginia Tech's handling of her complaint
violated Title IX of the Education Amendments of 1972, 86 Stat. 373-375, 20 U.
S. C. §§1681-1688. Morrison and Crawford moved to dismiss this complaint on the
grounds that it failed to state a claim and that §13981's civil remedy is
unconstitutional. The United States, petitioner in No. 99-5, intervened to
defend §13981's constitutionality.
The District Court dismissed Brzonkala's
Title IX claims against Virginia Tech for failure to state a claim upon which
relief can be granted. See Brzonkala v. Virginia Polytechnic and State Univ.,
935 F. Supp. 772 (WD Va. 1996). It then held that Brzonkala's complaint stated
a claim against Morrison and Crawford under §13981, but dismissed the complaint
because it concluded that Congress lacked authority to enact the section under
either the Commerce Clause or §5 of the Fourteenth Amendment. Brzonkala v.
Virginia Polytechnic and State Univ., 935 F. Supp. 779 (WD Va. 1996).
A divided panel of the Court of Appeals
reversed the District Court, reinstating Brzonkala's §13981 claim and her Title
IX hostile environment claim.1 Brzonkala v. Virginia Polytechnic and State
Univ., 132 F. 3d 949 (CA4 1997). The full Court of Appeals vacated the panel's
opinion and reheard the case en banc. The en banc court then issued an opinion
affirming the District Court's conclusion that Brzonkala stated a claim under
§13981 because her complaint alleged a crime of violence and the allegations of
Morrison's crude and derogatory statements regarding his treatment of women
sufficiently indicated that his crime was motivated by gender animus.2
Nevertheless, the court by a divided vote affirmed the District Court's
conclusion that Congress lacked constitutional authority to enact §13981's
civil remedy. Brzonkala v. Virginia Polytechnic and State Univ., 169 F. 3d 820
(CA4 1999). Because the Court of Appeals invalidated a federal statute on
constitutional grounds, we granted certiorari. 527 U. S. 1068 (1999).
Section 13981 was part of the Violence
Against Women Act of 1994, §40302, 108 Stat. 1941-1942. It states that
"[a]ll persons within the United States shall have the right to be free
from crimes of violence motivated by gender." 42 U. S. C. §13981(b). To
enforce that right, subsection (c) declares:
"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 United States v. Lopez, 514 U. S., at 568, 577-578
(Kennedy, J., concurring); United States v. Harris, 106 U. S., at 635. With
this presumption of constitutionality in mind, we turn to the question whether
§13981 falls within Congress' power under Article I, §8, of the
Constitution. Brzonkala and the
United States rely upon the third clause of the Article, which gives Congress
power "[t]o regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes."
As we discussed at length in Lopez, our
interpretation of the Commerce Clause has changed as our Nation has developed.
See Lopez, 514 U. S., at 552-557; id., at 568-574 (Kennedy, J., concurring);
id., at 584, 593-599 (Thomas, J., concurring). We need not repeat that detailed
review of the Commerce Clause's history here; it suffices to say that, in the
years since NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937),
Congress has had considerably greater latitude in regulating conduct and
transactions under the Commerce Clause than our previous case law permitted.
See Lopez, 514 U. S., at 555-556; id., at 573-574 (Kennedy, J., concurring).
Lopez emphasized, however, that even under
our modern, expansive interpretation of the Commerce Clause, Congress'
regulatory authority is not without effective bounds. Id., at 557.
"[E]ven [our] modern-era precedents
which have expanded congressional power under the Commerce Clause confirm that
this power is subject to outer limits. In Jones & Laughlin Steel, the Court
warned that the scope of the interstate commerce power `must be considered in
the light of our dual system of government and may not be extended so as to
embrace effects upon interstate commerce so indirect and remote that to embrace
them, in view of our complex society, would effectually obliterate the
distinction between what is national and what is local and create a completely
centralized government.' " Id., at 556-557 (quoting Jones & Laughlin
Steel, supra, at 37).3
As we observed in Lopez, modern Commerce
Clause jurisprudence has "identified three broad categories of activity
that Congress may regulate under its commerce power." 514 U. S., at 558
(citing Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.
S. 264, 276-277 (1981); Perez v. United States, 402 U. S. 146, 150 (1971)).
"First, Congress may regulate the use of the channels of interstate
commerce." 514 U. S., at 558 (citing Heart of Atlanta Motel, Inc. v.
United States, 379 U. S. 241, 256 (1964); United States v. Darby, 312 U. S.
100, 114 (1941)). "Second, Congress is empowered to regulate and protect
the instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from intrastate
activities." 514 U. S., at 558 (citing Shreveport Rate Cases, 234 U. S.
342 (1914); Southern R. Co. v. United States, 222 U. S. 20 (1911); Perez, supra,
at 150). "Finally, Congress' commerce authority includes the power to
regulate those activities having a substantial relation to interstate commerce,
... i.e., those activities that substantially affect interstate commerce."
514 U. S., at 558-559 (citing Jones & Laughlin Steel, supra, at 37).
Petitioners do not contend that these
cases fall within either of the first two of these categories of Commerce
Clause regulation. They seek to sustain §13981 as a regulation of activity that
substantially affects interstate commerce. Given §13981's focus on
gender-motivated violence wherever it occurs (rather than violence directed at
the instrumentalities of interstate commerce, interstate markets, or things or
persons in interstate commerce), we agree that this is the proper inquiry.
Since Lopez most recently canvassed and
clarified our case law governing this third category of Commerce Clause
regulation, it provides the proper framework for conducting the required
analysis of §13981. In Lopez, we held that the Gun-Free School Zones Act of
1990, 18 U. S. C. §922(q)(1)(A), which made it a federal crime to knowingly
possess a firearm in a school zone, exceeded Congress' authority under the
Commerce Clause. See 514 U. S., at 551. Several significant considerations
contributed to our decision.
First, we observed that §922(q) was
"a criminal statute that by its terms has nothing to do with `commerce' or
any sort of economic enterprise, however broadly one might define those
terms." Id., at 561. Reviewing our case law, we noted that "we have
upheld a wide variety of congressional Acts regulating intrastate economic
activity where we have concluded that the activity substantially affected
interstate commerce." Id., at 559. Although we cited only a few examples,
including Wickard v. Filburn, 317 U. S. 111 (1942); Hodel, supra; Perez, supra;
Katzenbach v. McClung, 379 U. S. 294 (1964); and Heart of Atlanta Motel, supra,
we stated that the pattern of analysis is clear. Lopez, 514 U. S., at 559-560.
"Where economic activity substantially affects interstate commerce,
legislation regulating that activity will be sustained." Id., at 560.
Both petitioners and Justice Souter's
dissent downplay the role that the economic nature of the regulated activity
plays in our Commerce Clause analysis. But a fair reading of Lopez shows that
the 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." Id., at 562. Such a jurisdictional element may
establish that the enactment is in pursuance of Congress' regulation of
interstate commerce.
Third, we noted that neither §922(q)
" `nor its legislative history contain[s] express congressional findings
regarding the effects upon interstate commerce of gun possession in a school
zone.' " Ibid. (quoting Brief for United States, O.T. 1994, No. 93-1260,
pp. 5-6). While "Congress normally is not required to make formal findings
as to the substantial burdens that an activity has on interstate
commerce," 514 U. S., at 562 (citing McClung, 379 U. S., at 304; Perez,
402 U. S., at 156), the existence of such findings may "enable us to evaluate
the legislative judgment that the activity in question substantially affect[s]
interstate commerce, even though no such substantial effect [is] visible to the
naked eye." 514 U. S., at 563.
Finally, our decision in Lopez rested in
part on the fact that the link between gun possession and a substantial effect
on interstate commerce was attenuated. Id., at 563-567. The United States
argued that the possession of guns may lead to violent crime, and that violent
crime "can be expected to affect the functioning of the national economy
in two ways. First, the costs of violent crime are substantial, and, through
the mechanism of insurance, those costs are spread throughout the population.
Second, violent crime reduces the willingness of individuals to travel to areas
within the country that are perceived to be unsafe." Id., at 563-564
(citation omitted). The Government also argued that the presence of guns at
schools poses a threat to the educational process, which in turn threatens to
produce a less efficient and productive workforce, which will negatively affect
national productivity and thus interstate commerce. Ibid.
We rejected these "costs of
crime" and "national productivity" arguments because they would
permit Congress to "regulate not only all violent crime, but all
activities that might lead to violent crime, regardless of how tenuously they
relate to interstate commerce." Id., at 564. We noted that, under this
but-for reasoning:
"Congress could regulate any activity
that it found was related to the economic productivity of individual citizens:
family law (including marriage, divorce, and child custody), for example. Under
the[se] theories ... , it is difficult to perceive any limitation on federal
power, even in areas such as criminal law enforcement or education where States
historically have been sovereign. Thus, if we were to accept the Government's
arguments, we are hard pressed to posit any activity by an individual that
Congress is without power to regulate." Ibid.
With these principles underlying our
Commerce Clause jurisprudence as reference points, the proper resolution of the
present cases is clear. Gender-motivated crimes of violence are not, in any
sense of the phrase, economic activity. While we need not adopt a categorical
rule against aggregating the effects of any 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 U. S., at 568 (citing Jones & Laughlin Steel, 301 U. S., at 30).
In recognizing this fact we preserve one of the few principles that has been
consistent since the Clause was adopted. The regulation and punishment of
intrastate violence that is not directed at the instrumentalities, channels, or
goods involved in interstate commerce has always been the province of the
States. See, e.g., Cohens v. Virginia, 6 Wheat. 264, 426, 428 (1821) (Marshall,
C. J.) (stating that Congress "has no general right to punish murder
committed within any of the States," and that it is "clear ... that
congress cannot punish felonies generally"). Indeed, we can think of no
better example of the police power, which the Founders denied the National
Government and reposed in the States, than the suppression of violent crime and
vindication of its victims.8 See, e.g., Lopez, 514 U. S., at 566 ("The
Constitution ... withhold[s] from Congress a plenary police power"); id.,
at 584-585 (Thomas, J., concurring) ("[W]e always have rejected readings
of the Commerce Clause and the scope of federal power that would permit
Congress to exercise a police power"), 596-597, and n. 6 (noting that the
first Congresses did not enact nationwide punishments for criminal conduct
under the Commerce Clause).
Breyer’s dissent, part I
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. United
States, 402 U. S. 146 (1971) (aggregating local "loan sharking"
instances); United States v. Lopez, 514 U. S. 549, 559 (1995) (loan sharking is
economic because it consists of "intrastate extortionate credit
transactions"); ante, at 9. Would evidence that desire for economic
domination underlies many brutal crimes against women save the present statute?
See United States General Accounting Office, Health, Education, and Human
Services Division, Domestic Violence: Prevalence and Implications for
Employment Among Welfare Recipients 7-8 (Nov. 1998); Brief for Equal Rights
Advocates, et al. as Amicus Curiae 10-12.
The line becomes yet harder to draw given
the need for exceptions. The Court itself would permit Congress to aggregate,
hence regulate, "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 U. S. C. §801 et seq. (regulating
drugs produced for home consumption). Given the former exception, can Congress
simply rewrite the present law and limit its application to restaurants,
hotels, perhaps universities, and other places of public accommodation? Given
the latter exception, can Congress save the present law by including it, or
much of it, in a broader "Safe Transport" or "Workplace
Safety" act?
More important, why should we give
critical constitutional importance to the economic, or 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 U. S. C. §228. Although this
possibility does not give the Federal Government the power to regulate
everything, it means that any substantive limitation will apply randomly in
terms of the interests the majority seeks to protect. How much would be gained,
for example, were Congress to reenact the present law in the form of "An Act
Forbidding Violence Against Women Perpetrated at Public Accommodations or by
Those Who Have Moved in, or through the Use of Items that Have Moved in,
Interstate Commerce"? Complex Commerce Clause rules creating fine
distinctions that achieve only random results do little to further the
important federalist interests that called them into being. That is why modern
(pre-Lopez) case law rejected them. See Wickard, supra, at 120; United States
v. Darby, 312 U. S. 100, 116-117 (1941); Jones & Laughlin Steel Corp.,
supra, at 37.
The majority, aware of these difficulties,
is nonetheless concerned with what it sees as an important contrary
consideration. To determine the lawfulness of statutes simply by asking whether
Congress could reasonably have found that aggregated local instances
significantly affect interstate commerce will allow Congress to regulate almost
anything. Virtually all local activity, when instances are aggregated, can have
"substantial effects on employment, production, transit, or consumption."
Hence Congress could "regulate any crime," and perhaps
"marriage, divorce, and childrearing" as well, obliterating the
"Constitution's distinction between national and local authority."
Ante, at 15; Lopez, 514 U. S., at 558; cf. A. L. A. Schechter Poultry Corp. v.
United States, 295 U. S. 495, 548 (1935) (need for distinction between
"direct" and "indirect" effects lest there "be
virtually no limit to the federal power"); Hammer v. Dagenhart, 247 U. S.
251, 276 (1918) (similar observation).
This consideration, however, while
serious, does not reflect a jurisprudential defect, so much as it reflects a
practical reality. We live in a Nation knit together by two centuries of
scientific, technological, commercial, and environmental change. Those changes,
taken together, mean that virtually every kind of activity, no matter how
local, genuinely can affect commerce, or its conditions, outside the State--at
least when considered in the aggregate. Heart of Atlanta Motel, 379 U. S., at
251. And that fact makes it close to impossible for courts to develop
meaningful subject-matter categories that would exclude some kinds of local
activities from ordinary Commerce Clause "aggregation" rules without,
at the same time, depriving Congress of the power to regulate activities that
have a genuine and important effect upon interstate commerce.
Since judges cannot change the world, the
"defect" means that, within the bounds of the rational, Congress, not
the courts, must remain primarily responsible for striking the appropriate
state/federal balance. Garcia v. San Antonio Metropolitan Transit Authority,
469 U. S. 528, 552 (1985); ante, at 19-24 (Souter, J., dissenting); Kimel v.
Florida Bd. of Regents, 528 U. S. , (2000) (slip op., at 2) (Stevens, J., dissenting)
(Framers designed important structural safeguards to ensure that, when Congress
legislates, "the normal operation of the legislative process itself would
adequately defend state interests from undue infringement"); see also
Kramer, Putting the Politics Back into the Political Safeguards of Federalism,
100 Colum. L. Rev. 215 (2000) (focusing on role of political process and
political parties in protecting state interests). Congress is institutionally
motivated to do so. Its Members represent state and local district interests.
They consider the views of state and local officials when they legislate, and
they have even developed formal procedures to ensure that such consideration
takes place. See, e.g., Unfunded Mandates Reform Act of 1995, Pub. L. 104-4,
109 Stat. 48 (codified in scattered sections of 2 U. S. C.). Moreover, Congress
often can better reflect state concerns for autonomy in the details of
sophisticated statutory schemes than can the judiciary, which cannot easily
gather the relevant facts and which must apply more general legal rules and
categories. See, e.g., 42 U. S. C. §7543(b) (Clean Air Act); 33 U. S. C. §1251
et seq. (Clean Water Act); see also New York v. United States, 505 U. S. 144,
167-168 (1992) (collecting other examples of "cooperative
federalism"). Not surprisingly, the bulk of American law is still state
law, and overwhelmingly so.
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]ur
experience as Attorneys General strengthens our belief that the problem of
violence against women is a national one, requiring federal attention, federal
leadership, and federal funds." Id., at 34-36; see also Violence
Against Women: Victims of the
System, Hearing on S. 15 before the Senate Committee on the Judiciary, 102d
Cong., 1st Sess., 37-38 (1991) (unanimous resolution of the National
Association of Attorneys General); but cf. Crimes of Violence Motivated by
Gender, Hearing before the Subcommittee on Civil and Constitutional Rights of
the House Committee on the Judiciary, 103d Cong., 1st Sess., 77-84 (1993)
(Conference of Chief Justices opposing legislation).
Moreover, as Justice Souter has pointed
out, Congress compiled a "mountain of data" explicitly documenting
the interstate commercial effects of gender-motivated crimes of violence. Ante,
at 2-8, 27-28 (dissenting opinion). After considering alternatives, it focused
the federal law upon documented deficiencies in state legal systems. And it
tailored the law to prevent its use in certain areas of traditional state
concern, such as divorce, alimony, or child custody. 42 U. S. C. §13981(e)(4).
Consequently, the law before us seems to represent an instance, not of
state/federal conflict, but of state/federal efforts to cooperate in order to
help solve a mutually acknowledged national problem. Cf. §§300w-10, 3796gg,
3796hh, 10409, 13931 (providing federal moneys to encourage state and local
initiatives to combat 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., Jackson, Federalism and the Uses and Limits of
Law: Printz and Principle?, 111 Harv. L. Rev. 2180, 2231-2245 (1998); Gardbaum,
Rethinking Constitutional Federalism, 74 Texas L. Rev. 795, 812-828, 830-832
(1996); Lessig, Translating Federalism: United States v. Lopez, 1995 S. Ct.
Rev. 125, 194-214 (1995); see also Treaty Establishing the European Community
Art. 5; Bermann, Taking Subsidiarity Seriously: Federalism in the European
Community and the United States, 94 Colum. L. Rev. 331, 378-403 (1994) (arguing
for similar limitation in respect to somewhat analogous principle of
subsidiarity for European Community); Gardbaum, supra, at 833-837 (applying
subsidiarity principles to American federalism). Of course, any judicial
insistence that Congress follow particular procedures might itself intrude upon
congressional prerogatives and embody difficult definitional problems. But the
intrusion, problems, and consequences all would seem less serious than those
embodied in the majority's approach. See supra, at 2-7.
I continue to agree with Justice Souter
that the Court's traditional "rational basis" approach is sufficient.
Ante, at 1-2 (dissenting opinion); see also Lopez, 514 U. S., at 603-615
(Souter, J., dissenting); id., at 615-631 (Breyer, J., dissenting). But I
recognize that the law in this area is unstable and that time and experience
may demonstrate both the unworkability of the majority's rules and the
superiority of Congress' own procedural approach--in which case the law may
evolve towards a rule that, in certain difficult Commerce Clause cases, takes
account of the thoroughness with which Congress has considered the federalism
issue.
For these reasons, as well as those set
forth by Justice Souter, this statute falls well within Congress's Commerce
Clause authority, and I dissent from the Court's contrary conclusion.