UNITED STATES v. MORRISON et al.

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598 OCTOBER TERM, 1999
Syllabus
UNITED STATES v. MORRISON et al.
certiorari to the united states court of appeals for
the fourth circuit
No. 99–5. Argued January 11, 2000—Decided May 15, 2000*
Petitioner Brzonkala filed suit, alleging, inter alia, that she was raped
by respondents while the three were students at Virginia Polytechnic
Institute, and that this attack violated 42 U. S. C. § 13981, which pro-
vides a federal civil remedy for the victims of gender-motivated
violence. Respondents moved to dismiss on the grounds that the com-
plaint failed to state a claim and that § 13981’s civil remedy is unconsti-
tutional. Petitioner United States intervened to defend the section’s
constitutionality. In dismissing the complaint, the District Court held
that it stated a claim against respondents, but that Congress lacked
authority to enact § 13981 under either the Commerce Clause or § 5 of
the Fourteenth Amendment, which Congress had explicitly identified
as the sources of federal authority for § 13981. The en banc Fourth
Circuit affirmed.
Held: Section 13981 cannot be sustained under the Commerce Clause or
§ 5 of the Fourteenth Amendment. Pp. 607–627.
(a) The Commerce Clause does not provide Congress with author-
ity to enact § 13981’s federal civil remedy. A congressional enactment
will be invalidated only upon a plain showing that Congress has ex-
ceeded its constitutional bounds. See United States v. Lopez, 514 U. S.
549, 568, 577–578. Petitioners assert that § 13981 can be sustained
under Congress’ commerce power as a regulation of activity that sub-
stantially affects interstate commerce. The proper framework for ana-
lyzing such a claim is provided by the principles the Court set out
in Lopez. First, in Lopez, the noneconomic, criminal nature of pos-
sessing a firearm in a school zone was central to the Court’s conclusion
that Congress lacks authority to regulate such possession. Similarly,
gender-motivated crimes of violence are not, in any sense, economic
activity. Second, like the statute at issue in Lopez, § 13981 contains no
jurisdictional element establishing that the federal cause of action is in
pursuance of Congress’ regulation of interstate commerce. Although
Lopez makes clear that such a jurisdictional element would lend support
to the argument that § 13981 is sufficiently tied to interstate commerce
*Together with No. 99–29, Brzonkala v. Morrison et al., also on certio-
rari to the same court.

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to come within Congress’ authority, Congress elected to cast § 13981’s
remedy over a wider, and more purely intrastate, body of violent crime.
Third, although § 13981, unlike the Lopez statute, is supported by
numerous findings regarding the serious impact of gender-motivated
violence on victims and their families, these findings are substan-
tially weakened by the fact that they rely on reasoning that this Court
has rejected, namely, a but-for causal chain from the initial occurrence
of violent crime to every attenuated effect upon interstate commerce.
If accepted, this reasoning would allow Congress to regulate any crime
whose nationwide, aggregated impact has substantial effects on em-
ployment, production, transit, or consumption. Moreover, such rea-
soning will not limit Congress to regulating violence, but may be applied
equally as well to family law and other areas of state regulation since
the aggregate effect of marriage, divorce, and childrearing on the na-
tional economy is undoubtedly significant. The Constitution requires
a distinction between what is truly national and what is truly local, and
there is no better example of the police power, which the Found-
ers undeniably left reposed in the States and denied the central Gov-
ernment, than the suppression of violent crime and vindication of its
victims. Congress therefore may not regulate noneconomic, violent
criminal conduct based solely on the conduct’s aggregate effect on inter-
state commerce. Pp. 607–619.
(b) Section 5 of the Fourteenth Amendment, which permits Con-
gress to enforce by appropriate legislation the constitutional guarantee
that no State shall deprive any person of life, liberty, or property with-
out 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 perva-
sive 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 man-
ner in which Congress may attack discriminatory conduct. Foremost
among them is the principle that the Amendment prohibits only state
action, not private conduct. This was the conclusion reached in United
States v. Harris, 106 U. S. 629, and the Civil Rights Cases, 109 U. S. 3,
which were both decided shortly after the Amendment’s adoption.
The force of the doctrine of stare decisis behind these decisions stems
not only from the length of time they have been on the books, but also
from the insight attributable to the Members of the Court at that time,
who all had intimate knowledge and familiarity with the events sur-
rounding the Amendment’s adoption. Neither United States v. Guest,
383 U. S. 745, nor District of Columbia v. Carter, 409 U. S. 418, casts
any doubt on the enduring vitality of the Civil Rights Cases and Harris.

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Assuming that there has been gender-based disparate treatment by
state authorities in these cases, it would not be enough to save § 13981’s
civil remedy, which is directed not at a State or state actor but at in-
dividuals who have committed criminal acts motivated by gender bias.
Section 13981 visits no consequence on any Virginia public official in-
volved in investigating or prosecuting Brzonkala’s assault, and it is
thus unlike any of the § 5 remedies this Court has previously upheld.
See, e. g., South Carolina v. Katzenbach, 383 U. S. 301. Section 13981
is also different from previously upheld remedies in that it applies uni-
formly throughout the Nation, even though Congress’ findings indicate
that the problem addressed does not exist in all, or even most, States.
In contrast, the § 5 remedy in Katzenbach was directed only to those
States in which Congress found that there had been discrimination.
Pp. 619–627.
169 F. 3d 820, affirmed.
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-
nor, Scalia, Kennedy, and Thomas, JJ., joined. Thomas, J., filed a
concurring opinion, post, p. 627. Souter, J., filed a dissenting opinion,
in which Stevens, Ginsburg, and Breyer, JJ., joined, post, p. 628.
Breyer, J., filed a dissenting opinion, in which Stevens, J., joined, and in
which Souter and Ginsburg, JJ., joined as to Part I–A, post, p. 655.
Solicitor General Waxman argued the cause for the
United States in No. 99–5. With him on the briefs were
Acting Assistant Attorney General Ogden, Deputy Solicitor
General Underwood, Barbara McDowell, Mark B. Stern,
Alisa B. Klein, and Anne Murphy. Julie Goldsheid argued
the cause for petitioner in No. 99–29. With her on the briefs
were Martha F. Davis, Eileen N. Wagner, Carter G. Phillips,
Richard D. Bernstein, Katherine L. Adams, Jacqueline Ger-
son Cooper, and Paul A. Hemmersbaugh.
Michael E. Rosman argued the cause for respondents in
both cases. With him on the brief for respondent Morrison
were Hans F. Bader and W. David Paxton. Joseph Graham
Painter, Jr., filed a brief for respondent Crawford.†
†Briefs of amici curiae urging reversal were filed for the State of
Arizona et al. by Janet Napolitano, Attorney General of Arizona, Eliot
Spitzer, Attorney General of New York, Preeta D. Bansal, Solicitor Gen-
eral, Jennifer K. Brown, Assistant Attorney General, and Paula S. Bick-
ett, and by the Attorneys General for their respective jurisdictions as fol-

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Opinion of the Court
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
lows: Bruce M. Botelho of Alaska, Mark Pryor of Arkansas, Bill Lockyer
of California, Ken Salazar of Colorado, Richard Blumenthal of Connecti-
cut, M. Jane Brady of Delaware, Thurbert E. Baker of Georgia, Earl I.
Anzai of Hawaii, James E. Ryan of Illinois, Thomas J. Miller of Iowa,
Carla J. Stovall of Kansas, Albert Benjamin “Ben” Chandler III of Ken-
tucky, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, J. Joseph
Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mike Hatch
of Minnesota, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of
Missouri, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of
Nevada, Philip T. McLaughlin of New Hampshire, Patricia A. Madrid
of New Mexico, Michael F. Easley of North Carolina, Heidi Heitkamp of
North Dakota, W. A. Drew Edmondson of Oklahoma, Hardy Myers of
Oregon, Jose A. Fuentes Agostini of Puerto Rico, Sheldon Whitehouse of
Rhode Island, Paul G. Summers of Tennessee, Jan Graham of Utah, Wil-
liam H. Sorrell of Vermont, Christine O. Gregoire of Washington, Darrell
V. McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin; for
the Association of Trial Lawyers of America by Jeffrey Robert White; for
AYUDA, Inc., et al. by Laura A. Foggan and Clifford M. Sloan; for the
Bar of the City of New York by Leon Friedman, Ronald J. Tabak, Louis
A. Craco, Jr., Greg Harris, and James F. Parver; for Equal Rights Ad-
vocates et al. by David S. Ettinger, Lisa R. Jaskol, and Mary-Christine
Sungaila; for International Law Scholars and Human Rights Experts by
Peter Weiss and Rhonda Copelon; for the Lawyers’ Committee for Civil
Rights Under Law et al. by Norman Redlich, Marc D. Stern, Daniel F.
Kolb, Barbara Arnwine, Thomas J. Henderson, Jeffrey Sinensky, Steven
Freeman, Melvin Shralow, Eliot Mincberg, and Nadine Taub; for Law
Professors by Bruce Ackerman, Vicki C. Jackson, and Judith Resnik; for
the National Network to End Domestic Violence et al. by Bruce D. Sokler;
and for Joseph R. Biden, Jr., pro se.
Briefs of amici curiae urging affirmance were filed for the State of
Alabama by Bill Pryor, Attorney General, John J. Park, Jr., Assistant
Attorney General, and Jeffrey S. Sutton; for the Institute for Justice et al.
by Richard A. Epstein, William H. Mellor, Clint Bolick, Scott G. Bullock,
Timothy Lynch, and Robert A. Levy; for the Claremont Institute Center
for Constitutional Jurisprudence by Edwin Meese III; for the Clarendon
Foundation by Jay S. Bybee and Ronald D. Maines; for the Eagle Forum
Education & Legal Defense Fund by Erik S. Jaffe and Phyllis Schlafly;
for the Independent Women’s Forum by Anita K. Blair, E. Duncan

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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 Poly-
technic Institute (Virginia Tech) in the fall of 1994. In Sep-
tember 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 Mor-
rison 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 an-
nounced 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
Getchell, Jr., J. William Boland, and Robert L. Hodges; for the National
Association of Criminal Defense Lawyers by Theodore M. Cooperstein and
Lisa Kemler; for the Pacific Legal Foundation by Anne M. Hayes and M.
Reed Hopper; for the Women’s Freedom Network by Robert L. King; and
for Rita Gluzman by Alan E. Untereiner.
Michael P. Farris filed a brief for the Center for the Original Intent of
the Constitution as amicus curiae.

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antidepressant medication. Shortly after the rape Brzon-
kala stopped attending classes and withdrew from the
university.
In early 1995, Brzonkala filed a complaint against respond-
ents 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, Vir-
ginia 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 com-
mittee’s sentence. However, in July 1995, Virginia Tech in-
formed 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 cir-
culated 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 Commit-
tee 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 “ ‘ex-
cessive when compared with other cases where there has
been a finding of violation of the Abusive Conduct Policy,’ ”
Brzonkala v. Virginia Polytechnic Institute and State
Univ., 132 F. 3d 950, 955 (CA4 1997). Virginia Tech did not
inform Brzonkala of this decision. After learning from a

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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 de-
fend § 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 Poly-
technic 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 author-
ity 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. Vir-
ginia 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 com-
plaint alleged a crime of violence and the allegations of
Morrison’s crude and derogatory statements regarding his
1 The panel affirmed the dismissal of Brzonkala’s Title IX disparate
treatment claim. See 132 F. 3d, at 961–962.

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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 Ap-
peals 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 de-
clared in subsection (b) of this section shall be liable to
the party injured, in an action for the recovery of com-
pensatory and punitive damages, injunctive and declara-
tory 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
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 environ-
ment 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 Poly-
technic and State Univ., 169 F. 3d 820, 827, n. 2 (CA4 1999). Our grant
of certiorari did not encompass Brzonkala’s Title IX claims, and we thus
do not consider them in this opinion.

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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 de-
scribed in section 16 of Title 18, whether or not those
acts have actually resulted in criminal charges, prosecu-
tion, 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 con-
stitute 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 rem-
edy, subsection (e)(2) states that “[n]othing in this section
requires a prior criminal complaint, prosecution, or convic-
tion to establish the elements of a cause of action under sub-
section (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 limita-
tions 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

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the establishment of a divorce, alimony, equitable distribu-
tion 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 constitu-
tion 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 Con-
gress . . . 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 Con-
gress’ 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 pre-
sumption of constitutionality in mind, we turn to the ques-
tion 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 section, which gives
Congress power “[t]o regulate Commerce with foreign Na-
tions, and among the several States, and with the Indian
Tribes.”
As we discussed at length in Lopez, our interpreta-
tion of the Commerce Clause has changed as our Nation
has developed. See 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

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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, Con-
gress’ 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 con-
sidered 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 na-
tional and what is local and create a completely central-
ized government.’ ” Id., at 556–557 (quoting Jones &
Laughlin Steel, supra, at 37).3
As we observed in Lopez, modern Commerce Clause juris-
prudence has “identified three broad categories of activity
that Congress may regulate under its commerce power.”
3 Justice Souter’s dissent takes us to task for allegedly abandon-
ing Jones & Laughlin Steel in favor of an inadequate “federalism of
some earlier time.” Post, at 641–643, 655. 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.

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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 intra-
state 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, Con-
gress’ 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 regu-
lation of activity that substantially affects interstate com-
merce. Given § 13981’s focus on gender-motivated violence
wherever it occurs (rather than violence directed at the in-
strumentalities 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 fire-
arm in a school zone, exceeded Congress’ authority under the
Commerce Clause. See 514 U. S., at 551. Several signifi-
cant considerations contributed to our decision.

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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 de-
fine 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 ex-
amples, 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 com-
mercial activity”), 560 (“Even Wickard, which is perhaps
the most far reaching example of Commerce Clause author-
ity 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 regu-
lation of economic activity”), 566 (“Admittedly, a determi-
nation whether an intrastate activity is commercial or non-
commercial 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 enu-
merated powers are interpreted as having judicially enforce-
able outer limits, congressional legislation under the Com-
merce 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

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elsewhere, substantially affect any sort of interstate com-
merce”); see also id., at 573–574 (Kennedy, J., concurring)
(stating that Lopez did not alter our “practical conception
of commercial regulation” and that Congress may “regulate
in the commercial sphere on the assumption that we have a
single market and a unified purpose to build a stable national
economy”), 577 (“Were the Federal Government to take over
the regulation of entire areas of traditional state concern,
areas having nothing to do with the regulation of commercial
activities, the boundaries between the spheres of federal
and state authority would blur”), 580 (“[U]nlike the earlier
cases to come before the Court here neither the actors nor
their conduct has a commercial character, and neither the
purposes nor the design of the statute has an evident com-
mercial nexus. The statute makes the simple possession
of a gun within 1,000 feet of the grounds of the school
a criminal offense. In a sense any conduct in this inter-
dependent world of ours has an ultimate commercial origin
or consequence, but we have not yet said the commerce
power may reach so far” (citation omitted)). Lopez’s review
of Commerce Clause case law demonstrates that in those
cases where we have sustained federal regulation of intra-
state 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 ex-
press jurisdictional element which might limit its reach to
a discrete set of firearm possessions that additionally have
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 637–643. However, the dissent cannot persuasively contradict
Lopez’s conclusion that, in every case where we have sustained federal
regulation under the aggregation principle in Wickard v. Filburn, 317
U. S. 111 (1942), the regulated activity was of an apparent commercial
character. See, e. g., Lopez, 514 U. S., at 559–560, 580.

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an explicit connection with or effect on interstate com-
merce.” Id., at 562. Such a jurisdictional element may es-
tablish that the enactment is in pursuance of Congress’ regu-
lation 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, supra, at 304; Perez, 402 U. S.,
at 156), the existence of such findings may “enable us to eval-
uate 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 ex-
pected 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 work force, which will nega-
tively affect national productivity and thus interstate com-
merce. Ibid.
We rejected these “costs of crime” and “national pro-
ductivity” arguments because they would permit Congress

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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 citi-
zens: 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 edu-
cation 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 individ-
ual 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 vio-
lence are not, in any sense of the phrase, economic activity.
While we need not adopt a categorical rule against aggre-
gating 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 activ-
ity 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
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

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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 con-
gressional 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)).
punish “interstate crimes of abuse including crimes committed against
spouses or intimate partners during interstate travel and crimes com-
mitted by spouses or intimate partners who cross State lines to continue
the abuse.” S. Rep. No. 103–138, p. 43 (1993). That criminal provision
has been codified at 18 U. S. C. § 2261(a)(1), which states:
“A person who travels across a State line or enters or leaves Indian coun-
try 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 sub-
section (b).”
The Courts of Appeals have uniformly upheld this criminal sanction as
an appropriate exercise of Congress’ Commerce Clause authority, reason-
ing that “[t]he provision properly falls within the first of Lopez’s categories
as it regulates the use of channels of interstate commerce—i. e., the use
of the interstate transportation routes through which persons and goods
move.” United States v. Lankford, 196 F. 3d 563, 571–572 (CA5 1999)
(collecting cases) (internal quotation marks omitted).

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In these cases, Congress’ findings are substantially weak-
ened 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 inter-
state commerce
“by deterring potential victims from traveling inter-
state, from engaging in employment in interstate busi-
ness, and from transacting with business, and in places
involved in interstate commerce; . . . by diminishing na-
tional productivity, increasing medical and other costs,
and decreasing the supply of and the demand for inter-
state 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 attenu-
ated effect upon interstate commerce. If accepted, petition-
ers’ 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 eco-
nomic 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

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marriage, divorce, and childrearing on the national economy
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 legisla-
tive grace.7 See Lopez, supra, at 575–579 (Kennedy, J.,
concurring); Marbury, 1 Cranch, at 176–178.
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 Poul-
try Corp. v. United States, 295 U. S. 495 (1935):
“There is a view of causation that would obliterate the distinction between
what is national and what is local in the activities of commerce. Motion at
the outer rim is communicated perceptibly, though minutely, to recording
instruments at the center. A society such as ours ‘is an elastic medium
which transmits all tremors throughout its territory; the only question is
of their size.’ ” Id., at 554 (quoting United States v. A. L. A. Schechter
Poultry Corp., 76 F. 2d 617, 624 (CA2 1935) (L. Hand, J., concurring)).
7 Justice Souter’s theory that Gibbons v. Ogden, 9 Wheat. 1 (1824),
Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528
(1985), and the Seventeenth Amendment provide the answer to these
cases, see post, at 645–652, is remarkable because it undermines this cen-
tral principle of our constitutional system. As we have repeatedly noted,
the Framers crafted the federal system of Government so that the people’s
rights would be secured by the division of power. See, e. g., Arizona v.
Evans, 514 U. S. 1, 30 (1995) (Ginsburg, J., dissenting); Gregory v. Ash-
croft, 501 U. S. 452, 458–459 (1991) (cataloging the benefits of the federal
design); Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985)
(“The ‘constitutionally mandated balance of power’ between the States
and the Federal Government was adopted by the Framers to ensure the
protection of ‘our fundamental liberties’ ”) (quoting Garcia, supra, at 572
(Powell, J., dissenting)). Departing from their parliamentary past, the
Framers adopted a written Constitution that further divided authority at
the federal level so that the Constitution’s provisions would not be defined
solely by the political branches nor the scope of legislative power limited
only by public opinion and the Legislature’s self-restraint. See, e. g., Mar-
bury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C. J.) (“The powers
of the legislature are defined and limited; and that those limits may not
be mistaken, or forgotten, the constitution is written”). It is thus a “ ‘per-

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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
manent and indispensable feature of our constitutional system’ ” that “ ‘the
federal judiciary is supreme in the exposition of the law of the Constitu-
tion.’ ” Miller v. Johnson, 515 U. S. 900, 922–923 (1995) (quoting Cooper
v. Aaron, 358 U. S. 1, 18 (1958)).
No doubt the political branches have a role in interpreting and apply-
ing the Constitution, but ever since Marbury this Court has remained
the ultimate expositor of the constitutional text. As we emphasized in
United States v. Nixon, 418 U. S. 683 (1974): “In the performance of as-
signed constitutional duties each branch of the Government must initially
interpret the Constitution, and the interpretation of its powers by any
branch is due great respect from the others. . . . Many decisions of this
Court, however, have unequivocally reaffirmed the holding of Marbury
that ‘[i]t is emphatically the province and duty of the judicial department
to say what the law is.’ ” Id., at 703 (citation omitted).
Contrary to Justice Souter’s suggestion, see post, at 647–652, 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 re-
lied 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 com-
merce 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”).

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truly national and what is truly local. Lopez, 514 U. S., at
568 (citing Jones & Laughlin Steel, 301 U. S., at 30). In rec-
ognizing this fact we preserve one of the few principles that
has been consistent since the Clause was adopted. The reg-
ulation and punishment of intrastate violence that is not di-
rected 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 read-
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 en-
croachment on state authority. See post, at 645–646, 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 pow-
ers not granted to the Federal Government are reserved, the Constitution
cannot realistically be interpreted as granting the Federal Government an
unlimited license to regulate. See, e. g., New York v. United States, 505
U. S. 144, 156–157 (1992). And, as discussed above, the Constitution’s sep-
aration of federal power and the creation of the Judicial Branch indicate
that disputes regarding the extent of congressional power are largely sub-
ject to judicial review. See n. 7, supra. Moreover, the principle that
“ ‘[t]he Constitution created a Federal Government of limited powers,’ ”
while reserving a generalized police power to the States, is deeply in-
grained in our constitutional history. New York, supra, at 155 (quoting
Gregory v. Ashcroft, supra, at 457); see also Lopez, 514 U. S., at 584–599
(Thomas, J., concurring) (discussing the history of the debates surrounding
the adoption of the Commerce Clause and our subsequent interpretation
of the Clause); Maryland v. Wirtz, 392 U. S. 183, 196 (1968).

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ings 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).
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 rem-
edy should be upheld as an exercise of Congress’ remedial
power under § 5 of the Fourteenth Amendment. As noted
above, Congress expressly invoked the Fourteenth Amend-
ment as a source of authority to enact § 13981.
The principles governing an analysis of congressional leg-
islation under § 5 are well settled. Section 5 states that
Congress may “ ‘enforce’ by ‘appropriate legislation’ the con-
stitutional guarantee that no State shall deprive any person
of ‘life, liberty, or property, without due process of law,’
nor deny any person ‘equal protection of the laws.’ ” City
of Boerne v. Flores, 521 U. S. 507, 517 (1997). Section 5 is
“a positive grant of legislative power,” Katzenbach v. Mor-
gan, 384 U. S. 641, 651 (1966), that includes authority to
“prohibi[t] conduct which is not itself unconstitutional and
[to] intrud[e] into ‘legislative spheres of autonomy previ-
ously reserved to the States.’ ” Flores, supra, at 518 (quot-
ing Fitzpatrick v. Bitzer, 427 U. S. 445, 455 (1976)); see also
Kimel v. Florida Bd. of Regents, 528 U. S. 62, 81 (2000).
However, “[a]s broad as the congressional enforcement
power is, it is not unlimited.” Oregon v. Mitchell, 400 U. S.
112, 128 (1970); see also Kimel, supra, at 81. In fact, as we
discuss in detail below, several limitations inherent in § 5’s
text and constitutional context have been recognized since
the Fourteenth Amendment was adopted.
Petitioners’ § 5 argument is founded on an assertion that
there is pervasive bias in various state justice systems
against victims of gender-motivated violence. This asser-

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tion is supported by a voluminous congressional record.
Specifically, Congress received evidence that many par-
ticipants in state justice systems are perpetuating an array
of erroneous stereotypes and assumptions. Congress con-
cluded 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 le-
nient 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 discrimi-
natory means employed” are “substantially related to the
achievement of those objectives.” ’ ” United States v. Vir-
ginia, 518 U. S. 515, 533 (1996) (quoting Mississippi Univ.
for Women v. Hogan, 458 U. S. 718, 724 (1982), in turn quot-
ing Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142, 150
(1980)). See also Craig v. Boren, 429 U. S. 190, 198–199
(1976). However, the language and purpose of the Four-
teenth Amendment place certain limitations on the man-
ner in which Congress may attack discriminatory conduct.
These limitations are necessary to prevent the Fourteenth
Amendment from obliterating the Framers’ carefully crafted
balance of power between the States and the National
Government. See Flores, supra, at 520–524 (reviewing the
history of the Fourteenth Amendment’s enactment and dis-
cussing the contemporary belief that the Amendment “ ‘does

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not concentrate power in the general government for any
purpose of police government within the States’ ”) (quoting
T. Cooley, Constitutional Limitations 294, n. 1 (2d ed. 1871)).
Foremost among these limitations is the time-honored princi-
ple that the Fourteenth Amendment, by its very terms, pro-
hibits only state action. “[T]he principle has become firmly
embedded in our constitutional law that the action inhibited
by the first section of the Fourteenth Amendment is only
such action as may fairly be said to be that of the States.
That Amendment erects no shield against merely private
conduct, however discriminatory or wrongful.” Shelley v.
Kraemer, 334 U. S. 1, 13, and n. 12 (1948).
Shortly after the Fourteenth Amendment was adopted, we
decided two cases interpreting the Amendment’s provisions,
United States v. Harris, 106 U. S. 629 (1883), and the Civil
Rights Cases, 109 U. S. 3 (1883). In Harris, the Court con-
sidered a challenge to § 2 of the Civil Rights Act of 1871.
That section sought to punish “private persons” for “con-
spiring to deprive any one of the equal protection of the
laws enacted by the State.” 106 U. S., at 639. We con-
cluded that this law exceeded Congress’ § 5 power because
the law was “directed exclusively against the action of pri-
vate persons, without reference to the laws of the State, or
their administration by her officers.” Id., at 640. In so
doing, we reemphasized our statement from Virginia v.
Rives, 100 U. S. 313, 318 (1880), that “ ‘these provisions of
the fourteenth amendment have reference to State action
exclusively, and not to any action of private individuals.’ ”
Harris, supra, at 639 (misquotation in Harris).
We reached a similar conclusion in the Civil Rights Cases.
In those consolidated cases, we held that the public accom-
modation 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.

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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 pre-
serves 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, with-
out due process of law; but this adds nothing to the rights
of one citizen as against another. It simply furnishes an ad-
ditional 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 sur-
rounding 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
U. S. C. § 241, saying in the course of its opinion that “we
deal here with issues of statutory construction, not with
issues of constitutional power.” 383 U. S., at 749. Three
Members of the Court, in a separate opinion by Justice
Brennan, expressed the view that the Civil Rights Cases

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were wrongly decided, and that Congress could under § 5
prohibit actions by private individuals. 383 U. S., at 774
(opinion concurring in part and dissenting in part). Three
other Members of the Court, who joined the opinion of the
Court, joined a separate opinion by Justice Clark which in
two or three sentences stated the conclusion that Congress
could “punis[h] all conspiracies—with or without state ac-
tion—that interfere with Fourteenth Amendment rights.”
Id., at 762 (concurring opinion). Justice Harlan, in another
separate opinion, commented with respect to the statement
by these Justices:
“The action of three of the Justices who joined the
Court’s opinion in nonetheless cursorily pronouncing
themselves on the far-reaching constitutional questions
deliberately not reached in Part II seems to me, to say
the very least, extraordinary.” Id., at 762, n. 1 (opinion
concurring in part and dissenting in part).
Though these three Justices saw fit to opine on matters
not before the Court in Guest, the Court had no occasion
to revisit the Civil Rights Cases and Harris, having deter-
mined “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 involve-
ment.” 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 appro-
priate legislation, has the power to punish private con-
spiracies that interfere with Fourteenth Amendment rights,
such as the right to utilize public facilities”).

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624 UNITED STATES v. MORRISON
Opinion of the Court
To accept petitioners’ argument, moreover, one must add
to the three Justices joining Justice Brennan’s reasoned ex-
planation 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 constitu-
tional adjudication proceeds. We accordingly have no hesi-
tation 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 endur-
ing vitality of the Civil Rights Cases and Harris.
Petitioners also rely on District of Columbia v. Carter,
409 U. S. 418 (1973). Carter was a case addressing the ques-
tion whether the District of Columbia was a “State” within
the meaning of Rev. Stat. § 1979, 42 U. S. C. § 1983—a section
which by its terms requires state action before it may be
employed. A footnote in that opinion recites the same
litany respecting Guest that petitioners rely on. This litany
is of course entirely dicta, and in any event cannot rise above
its source. We believe that the description of the § 5 power
contained in the Civil Rights Cases is correct:
“But where a subject is not submitted to the general
legislative power of Congress, but is only submitted
thereto for the purpose of rendering effective some pro-
hibition against particular [s]tate legislation or [s]tate
action in reference to that subject, the power given is
limited by its object, and any legislation by Congress in
the matter must necessarily be corrective in its charac-
ter, adapted to counteract and redress the operation of
such prohibited state laws or proceedings of [s]tate offi-
cers.” 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

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625 Cite as: 529 U. S. 598 (2000)
Opinion of the Court
abundant evidence, however, to show that the Congresses
that enacted the Civil Rights Acts of 1871 and 1875 had a
purpose similar to that of Congress in enacting § 13981:
There were state laws on the books bespeaking equality of
treatment, but in the administration of these laws there was
discrimination against newly freed slaves. The statement
of Representative Garfield in the House and that of Senator
Sumner in the Senate are representative:
“[T]he chief complaint is not that the laws of the State
are unequal, but that even where the laws are just
and equal on their face, yet, by a systematic mal-
administration of them, or a neglect or refusal to en-
force 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 ‘supple-
mentary 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 (state-
ment 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 sim-
ply not “corrective in its character, adapted to counter-
act and redress the operation of such prohibited [s]tate
laws or proceedings of [s]tate officers.” Civil Rights Cases,
supra, at 18. Or, as we have phrased it in more recent cases,
prophylactic legislation under § 5 must have a “ ‘congru-

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626 UNITED STATES v. MORRISON
Opinion of the Court
ence 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 con-
sequence whatever on any Virginia public official involved in
investigating or prosecuting Brzonkala’s assault. The sec-
tion is, therefore, unlike any of the § 5 remedies that we have
previously upheld. For example, in Katzenbach v. Morgan,
384 U. S. 641 (1966), Congress prohibited New York from
imposing literacy tests as a prerequisite for voting because
it found that such a requirement disenfranchised thousands
of Puerto Rican immigrants who had been educated in the
Spanish language of their home territory. That law, which
we upheld, was directed at New York officials who adminis-
tered the State’s election law and prohibited them from using
a provision of that law. In South Carolina v. Katzenbach,
383 U. S. 301 (1966), Congress imposed voting rights re-
quirements on States that, Congress found, had a history
of discriminating against blacks in voting. The remedy was
also directed at state officials in those States. Similarly, in
Ex parte Virginia, 100 U. S. 339 (1880), Congress criminally
punished state officials who intentionally discriminated in
jury selection; again, the remedy was directed to the culpa-
ble state official.
Section 13981 is also different from these previously up-
held remedies in that it applies uniformly throughout the
Nation. Congress’ findings indicate that the problem of dis-
crimination against the victims of gender-motivated crimes
does not exist in all States, or even most States. By con-
trast, the § 5 remedy upheld in Katzenbach v. Morgan, supra,

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627 Cite as: 529 U. S. 598 (2000)
Thomas, J., concurring
was directed only to the State where the evil found by Con-
gress existed, and in South Carolina v. Katzenbach, supra,
the remedy was directed only to those States in which Con-
gress 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 Commonwealth
of Virginia, and not by the United States. The judgment of
the Court of Appeals is
Affirmed.
Justice Thomas, concurring.
The majority opinion correctly applies our decision in
United States v. Lopez, 514 U. S. 549 (1995), and I join it
in full. I write separately only to express my view that
the very notion of a “substantial effects” test under the
Commerce Clause is inconsistent with the original under-
standing of Congress’ powers and with this Court’s early
Commerce Clause cases. By continuing to apply this root-
less and malleable standard, however circumscribed, the
Court has encouraged the Federal Government to persist in
its view that the Commerce Clause has virtually no limits.
Until this Court replaces its existing Commerce Clause
jurisprudence with a standard more consistent with the
original understanding, we will continue to see Congress
appropriating state police powers under the guise of regu-
lating commerce.

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628 UNITED STATES v. MORRISON
Souter, J., dissenting
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 aggre-
gate, 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., Inc., 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 pass-
ing legislation, Congress indicates its conclusion, whether
explicitly or not, that facts support its exercise of the com-
merce 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 Con-
gress chooses to make, though not dispositive of the ques-
tion of rationality, may advance judicial review by identi-
fying factual authority on which Congress relied. Applying
those propositions in these cases can lead to only one
conclusion.
One obvious difference from United States v. Lopez, 514
U. S. 549 (1995), is the mountain of data assembled by Con-
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.

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629 Cite as: 529 U. S. 598 (2000)
Souter, J., dissenting
gress, here showing the effects of violence against women
on interstate commerce.2 Passage of the Act in 1994 was
preceded by four years of hearings,3 which included testi-
mony from physicians and law professors; 4 from survivors
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 vio-
lence 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 increas-
ing 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 prob-
lem of violence against women, Congress may address what it sees as the
most threatening manifestation; “reform may take one step at a time.”
Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 489 (1955).
3 See, e. g., Domestic Violence: Terrorism in the Home, Hearing before
the Subcommittee on Children, Family, Drugs and Alcoholism of the Sen-
ate Committee on Labor and Human Resources, 101st Cong., 2d Sess.
(1990); 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 Judi-
ciary, 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); Violent Crimes Against Women,
Hearing before the Senate Committee on the Judiciary, 103d Cong., 1st
Sess. (1993); 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 Vio-
lence: 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).
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 (testi-
mony of Univ. of Chicago Professor Cass Sunstein); S. Hearing 103–878,

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630 UNITED STATES v. MORRISON
Souter, J., dissenting
of rape and domestic violence; 5 and from representatives
of state law enforcement and private business.6 The record
includes reports on gender bias from task forces in 21
States,7 and we have the benefit of specific factual findings
at 7–11 (testimony of American Medical Assn. president-elect Robert
McAfee).
5 See, e. g., id., at 13–17 (testimony of Lisa); id., at 40–42 (testimony of
Jennifer Tescher).
6 See, e. g., S. Hearing 102–369, at 24–36, 71–87 (testimony of attor-
neys general of Iowa and Illinois); id., at 235–245 (testimony of National
Federation of Business and Professional Women); S. Hearing No. 103–
596, at 15–17 (statement of James Hardeman, Manager, Counseling Dept.,
Polaroid Corp.).
7 See Judicial Council of California Advisory Committee on Gender Bias
in the Courts, Achieving Equal Justice for Women and Men in the Califor-
nia 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, Gen-
der 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

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631 Cite as: 529 U. S. 598 (2000)
Souter, J., dissenting
in the eight separate Reports issued by Congress and its
committees over the long course leading to enactment.8 Cf.
Hodel, 452 U. S., at 278–279 (noting “extended hearings,”
“vast amounts of testimony and documentary evidence,” and
“years of the most thorough legislative consideration”).
With respect to domestic violence, Congress received
evidence for the 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 chil-
dren 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 out-
stripped the rate for men by at least twice for some
age groups and far more for others.” S. Rep. No. 101–
in the Courts, Final Report (1989); Wisconsin Equal Justice Task Force,
Final Report (Jan. 1991).
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); Ma-
jority 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).

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632 UNITED STATES v. MORRISON
Souter, J., dissenting
545, at 30 (citing Bureau of Justice Statistics, Criminal
Victimization in the United States (1974) (Table 5)).
“[B]attering ‘is the single largest cause of injury to
women in the United States.’ ” S. Rep. No. 101–545,
at 37 (quoting Van Hightower & McManus, Limits of
State Constitutional Guarantees: Lessons from Efforts
to Implement Domestic Violence Policies, 49 Pub.
Admin. Rev. 269 (May/June 1989).
“An estimated 4 million American women are bat-
tered each year by their husbands or partners.” H. R.
Rep. No. 103–395, at 26 (citing Council on Scientific
Affairs, American Medical Assn., Violence Against
Women: Relevance for Medical Practitioners, 267 JAMA
3184, 3185 (1992).
“Over 1 million women in the United States seek med-
ical assistance each year for injuries sustained [from]
their husbands or other partners.” S. Rep. No. 101–
545, at 37 (citing Stark & Flitcraft, Medical Therapy as
Repression: The Case of the Battered Woman, Health
& Medicine (Summer/Fall 1982).
“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 Evi-
dence 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

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633 Cite as: 529 U. S. 598 (2000)
Souter, J., dissenting
41 (citing Biden, Domestic Violence: A Crime, Not a
Quarrel, Trial 56 (June 1993)).
The evidence as to rape was similarly extensive, sup-
porting 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 mov-
ies 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 col-
lected 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

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634 UNITED STATES v. MORRISON
Souter, J., dissenting
(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 Sen-
ate 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, & Cal-
houn, 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 sub-
stantial adverse effect on interstate commerce, by de-
terring 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 method-
ology 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)

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635 Cite as: 529 U. S. 598 (2000)
Souter, J., dissenting
(“The Constitution gives to Congress the role of weighing
conflicting evidence in the legislative process”).
Indeed, the legislative record here is far more voluminous
than the record compiled by Congress and found sufficient in
two prior cases upholding Title II of the Civil Rights Act
of 1964 against Commerce Clause challenges. In Heart of
Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964),
and Katzenbach v. McClung, 379 U. S. 294 (1964), the Court
referred to evidence showing the consequences of racial dis-
crimination by motels and restaurants on interstate com-
merce. Congress had relied on compelling anecdotal re-
ports that individual instances of segregation cost thousands
to millions of dollars. See Civil Rights—Public Accommo-
dations, Hearings on S. 1732 before the Senate Committee
on Commerce, 88th Cong., 1st Sess., App. V, pp. 1383–1387
(1963). Congress also had evidence that the average black
family spent substantially less than the average white family
in the same income range on public accommodations, and
that discrimination accounted for much of the difference.
H. R. Rep. No. 88–914, pt. 2, pp. 9–10, and Table II (1963)
(Additional Views on H. R. 7152 of Hon. William M. Mc-
Culloch, Hon. John V. Lindsay, Hon. William T. Cahill, Hon.
Garner E. Shriver, Hon. Clark MacGregor, Hon. Charles
McC. Mathias, Hon. James E. Bromwell).
While Congress did not, to my knowledge, calculate ag-
gregate 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, at 33,
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
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”).

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636 UNITED STATES v. MORRISON
Souter, J., dissenting
discrimination in the 1960’s in reducing the mobility of
employees and their production and consumption of goods
shipped in interstate commerce. Like racial discrimina-
tion, “[g]ender-based violence bars its most likely targets—
women—from full partic[ipation] in the national economy.”
Id., at 54.
If the analogy to the Civil Rights Act of 1964 is not plain
enough, one can always look back a bit further. In Wickard,
we upheld the application of the Agricultural Adjustment
Act to the planting and consumption of homegrown wheat.
The effect on interstate commerce in that case followed from
the possibility that wheat grown at home for personal con-
sumption 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 inter-
state 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
10 It should go without saying that my view of the limit of the con-
gressional 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 tra-
ditional 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 Sub-
committee 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 Appro-
priations, 103d Cong., 2d Sess., 100–107 (1994) (testimony of Justices

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637 Cite as: 529 U. S. 598 (2000)
Souter, J., dissenting
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. I, § 8, cl. 18, ex-
tended to all activity that, when aggregated, has a substan-
tial effect on interstate commerce. As already noted, this
understanding was secure even against the turmoil at the
passage of the Civil Rights Act of 1964, in the aftermath of
which the Court not only reaffirmed the cumulative effects
and rational basis features of the substantial effects test,
see Heart of Atlanta, supra, at 258; McClung, supra, at
301–305, but declined to limit the commerce power through
a formal distinction between legislation focused on “com-
merce” and statutes addressing “moral and social wrong[s],”
Heart of Atlanta, supra, at 257.
The fact that the Act does not pass muster before the
Court today is therefore proof, to a degree that Lopez was
not, that the Court’s nominal adherence to the substantial
effects test is merely that. Although a new jurisprudence
has not emerged with any distinctness, it is clear that some
congressional conclusions about obviously substantial, cumu-
lative effects on commerce are being assigned lesser values
than the once-stable doctrine would assign them. These de-
valuations 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.
Kennedy and Souter). The Judicial Conference of the United States
originally opposed the Act, though after the original bill was amended
to include the gender-based animus requirement, the objection was with-
drawn for reasons that are not apparent. See Crimes of Violence Moti-
vated by Gender, Hearing before the Subcommittee on Civil and Con-
stitutional Rights of the House Committee on the Judiciary, 103d Cong.,
1st Sess., 70–71 (1993).

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638 UNITED STATES v. MORRISON
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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 615. This seems to suggest that the
“substantial effects” analysis is not a factual enquiry, for
Congress in the first instance with subsequent judicial re-
view looking only to the rationality of the congressional con-
clusion, 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 Con-
stitution of some powers implies the exclusion of others
unmentioned. See Gibbons v. Ogden, 9 Wheat. 1, 195 (1824);
ante, at 610; The Federalist No. 45, p. 313 (J. Cooke ed. 1961)
(J. Madison).11 The majority stresses that Art. I, § 8, enu-
11 The claim that powers not granted were withheld was the chief Fed-
eralist argument against the necessity of a bill of rights. Bills of rights,
Hamilton claimed, “have no application to constitutions professedly
founded upon the power of the people, and executed by their immediate
representatives and servants. Here, in strictness, the people surrender
nothing, and as they retain every thing, they have no need of particular
reservations.” The Federalist No. 84, at 578. James Wilson went fur-
ther in the Pennsylvania ratifying convention, asserting that an enu-
meration of rights was positively dangerous because it suggested, con-
versely, that every right not reserved was surrendered. See 2 J. Elliot,
Debates in the Several State Conventions on the Adoption of the Federal
Constitution 436–437 (2d ed. 1863) (hereinafter Elliot’s Debates). The
Federalists did not, of course, prevail on this point; most States voted
for the Constitution only after proposing amendments and the First Con-
gress speedily adopted a Bill of Rights. See Garcia v. San Antonio
Metropolitan Transit Authority, 469 U. S. 528, 569 (1985) (Powell, J.,
dissenting). While that document protected a range of specific individual

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639 Cite as: 529 U. S. 598 (2000)
Souter, J., dissenting
merates the powers of Congress, including the commerce
power, an enumeration implying the exclusion of powers not
enumerated. It follows, for the majority, not only that there
must be some limits to “commerce,” but that some particular
subjects arguably within the commerce power can be identi-
fied in advance as excluded, on the basis of characteristics
other than their commercial effects. Such exclusions come
into sight when the activity regulated is not itself com-
mercial or when the States have traditionally addressed it in
the exercise of the general police power, conferred under the
state constitutions but never extended to Congress under
the Constitution of the Nation, see Lopez, 514 U. S., at 566.
Ante, at 615–616.
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 fol-
lows 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 dis-
rights against federal infringement, it did not, with the possible exception
of the Second Amendment, offer any similarly specific protections to areas
of state sovereignty.
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

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640 UNITED STATES v. MORRISON
Souter, J., dissenting
agreement 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” pri-
mary activity beyond or presumptively beyond the scope
of the commerce power. That variant of categorical ap-
proach 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 Art. 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 com-
merce”). Accordingly, for significant periods of our history,
the Court has defined the commerce power as plenary, unsus-
ceptible to categorical exclusions, and this was the view ex-
pressed 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 sum-
mons 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.
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”).

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Chief Justice Marshall’s seminal opinion in Gibbons v.
Ogden, 9 Wheat., at 193–194, construed the commerce power
from the start with “a breadth never yet exceeded,” Wickard
v. Filburn, 317 U. S., at 120. In particular, it is worth
noting, the Court in Wickard did not regard its holding as
exceeding the scope of Chief Justice Marshall’s view of
interstate commerce; Wickard applied an aggregate effects
test to ostensibly domestic, noncommercial farming con-
sistently with Chief Justice Marshall’s indication that the
commerce power may be understood by its exclusion of
subjects, among others, “which do not affect other States,”
Gibbons, 9 Wheat., at 195. This plenary view of the power
has either prevailed or been acknowledged by this Court at
every stage of our jurisprudence. See, e. g., id., at 197;
Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 99–100
(1888); Lottery Case, 188 U. S. 321, 353 (1903); Minnesota
Rate Cases, 230 U. S. 352, 398 (1913); United States v. Cali-
fornia, 297 U. S. 175, 185 (1936); United States v. Darby,
supra, at 115; Heart of Atlanta Motel, Inc. v. United States,
379 U. S., at 255; Hodel v. Indiana, 452 U. S., at 324. And it
was this understanding, free of categorical qualifications,
that prevailed in the period after 1937 through Lopez, as
summed up by Justice Harlan: “ ‘Of course, the mere fact that
Congress has said when particular activity shall be deemed
to affect commerce does not preclude further examination by
this Court. But where we find that the legislators . . . have
a rational basis for finding a chosen regulatory scheme neces-
sary to the protection of commerce, our investigation is at an
end.’ ” Maryland v. Wirtz, 392 U. S. 183, 190 (1968) (quoting
Katzenbach v. McClung, 379 U. S., at 303–304).
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 non-
commercial character of the primary conduct proscribed
comes with the pedigree of near tragedy that I outlined in

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642 UNITED STATES v. MORRISON
Souter, J., dissenting
United States v. Lopez, 514 U. S., 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 activ-
ities 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 con-
struing 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’ Lia-
bility 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) (hold-
ing 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 con-
ditions of employment were only indirectly linked to com-
merce); 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.,

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Souter, J., dissenting
301 U. S. 1 (1937), which brought the earlier and nearly dis-
astrous 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 non-
commercial conduct is at odds with Wickard, which re-
pudiated 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, 312 U. S., at 115.
Why is the majority tempted to reject the lesson so pain-
fully learned in 1937? An answer emerges from contrast-
ing Wickard with one of the predecessor cases it superseded.
It was obvious in Wickard that growing wheat for consump-
tion 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
13 Contrary to the Court’s suggestion, ante, at 611, n. 4, Wickard v. Fil-
burn, 317 U. S. 111 (1942), applied the substantial effects test to domestic
agricultural production for domestic consumption, an activity that cannot
fairly be described as commercial, despite its commercial consequences in
affecting or being affected by the demand for agricultural products in the
commercial market. The Wickard Court admitted that Filburn’s activity
“may not be regarded as commerce” but insisted that “it may still, what-
ever its nature, be reached by Congress if it exerts a substantial economic
effect on interstate commerce . . . .” Id., at 125. The characterization of
home wheat production as “commerce” or not is, however, ultimately be-
side the point. For if substantial effects on commerce are proper subjects
of concern under the Commerce Clause, what difference should it make
whether the causes of those effects are themselves commercial? Cf., e. g.,
National Organization for Women, Inc. v. Scheidler, 510 U. S. 249, 258
(1994) (“An enterprise surely can have a detrimental influence on inter-
state or foreign commerce without having its own profit-seeking mo-
tives”). The Court’s answer is that it makes a difference to federalism,
and the legitimacy of the Court’s new judicially derived federalism is the
crux of our disagreement. See infra, at 644–646.

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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 regu-
lation 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 in-
terference 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 ob-
ject. 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 formal-
isms 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 Wick-
ard, 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 in-

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dividual States see fit. The legitimacy of the Court’s cur-
rent 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 relation-
ship 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 con-
duct traditionally subject to state prohibition under domestic
criminal law, a fact said to have some heightened signifi-
cance when the violent conduct in question is not itself aimed
directly at interstate commerce or its instrumentalities.
Ante, at 609. 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 Con-
stitution that the two governments, national and state, are
each to exercise its powers so as not to interfere with the
free and full exercise of the powers of the other.” Id., at
195 (internal quotation marks omitted). The Court held it
to be “clear that the Federal Government, when acting
within a delegated power, may override countervailing state
interests, whether these be described as ‘governmental’ or
‘proprietary’ in character.” Ibid. While Wirtz was later
overruled by National League of Cities v. Usery, 426 U. S.

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646 UNITED STATES v. MORRISON
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833 (1976), that case was itself repudiated in Garcia v. San
Antonio Metropolitan Transit Authority, 469 U. S. 528
(1985), which held that the concept of “traditional govern-
mental function” (as an element of the immunity doctrine
under Hodel) was incoherent, there being no explanation
that would make sense of the multifarious decisions placing
some functions on one side of the line, some on the other.
469 U. S., at 546–547. The effort to carve out inviolable
state spheres within the spectrum of activities substantially
affecting commerce was, of course, just as irreconcilable with
Gibbons’s explanation of the national commerce power as
being as “absolut[e] as it would be in a single government,”
9 Wheat., at 197. 14
14 The Constitution of 1787 did, in fact, forbid some exercises of the
commerce power. Article I, § 9, cl. 6, barred Congress from giving pref-
erence 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 Gouver-
neur Morris’s response that “[t]he internal police . . . ought to be in-
fringed 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) (here-
inafter Farrand). The Convention similarly rejected Sherman’s attempt
to include in Article V a proviso that “no state shall . . . be affected in its
internal police.” 5 Elliot’s Debates 551–552. Finally, Rufus King sug-
gested an explicit bill of rights for the States, a device that might indeed
have set aside the areas the Court now declares off-limits. 1 Farrand 493
(“As the fundamental rights of individuals are secured by express pro-
visions in the State Constitutions; why may not a like security be provided
for the Rights of States in the National Constitution”). That proposal,
too, came to naught. In short, to suppose that enumerated powers must
have limits is sensible; to maintain that there exist judicially identifiable
areas of state regulation immune to the plenary congressional commerce

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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 com-
pounded by a further defect just as fundamental. The de-
fect, in essence, is the majority’s rejection of the Found-
ers’ considered judgment that politics, not judicial review,
should mediate between state and national interests as the
strength and legislative jurisdiction of the National Gov-
ernment 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, Madison, Wilson,
and Marshall understood the Constitution very differently.
Although Madison had emphasized the conception of a
National Government of discrete powers (a conception that
a number of the ratifying conventions thought was too in-
determinate 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
power even though falling within the limits defined by the substantial
effects test is to deny our constitutional history.
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 con-
fined to the instrumentalities of commerce, or the postal service known or
in use when the Constitution was adopted, but they keep pace with the
progress of the country, and adapt themselves to the new developments
of time and circumstances.” Pensacola Telegraph Co. v. Western Union
Telegraph Co., 96 U. S. 1, 9 (1878). See also, e. g., Farmers Loan & Trust
Co. v. Minnesota, 280 U. S. 204, 211–212 (1930) (“Primitive conditions have
passed; business is now transacted on a national scale”).
16 As mentioned in n. 11, supra, many state conventions voted in favor
of the Constitution only after proposing amendments. See 1 Elliot’s De-
bates 322–323 (Massachusetts), 325 (South Carolina), 325–327 (New Hamp-
shire), 327 (Virginia), 327–331 (New York), 331–332 (North Carolina), 334–
337 (Rhode Island).

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took care in The Federalist No. 46 to hedge his argument for
limited power by explaining the importance of national poli-
tics in protecting the States’ interests. The National Gov-
ernment “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, p. 319 (J. Cooke ed. 1961). 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 Wil-
son were right about politics as the determinant of the fed-
eral balance within the broad limits of a power like com-
merce, 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 congres-
sional power within the sphere of activity affecting com-
merce, the Chief Justice spoke for the Court in explaining
that there was only one restraint on its valid exercise:
17 Statements to similar effect pervade the ratification debates. See,
e. g., 2 id., at 166–170 (Massachusetts, remarks of Samuel Stillman); 2 id.,
at 251–253 (New York, remarks of Alexander Hamilton); 4 id., at 95–98
(North Carolina, remarks of James Iredell).
18 The majority’s special solicitude for “areas of traditional state regu-
lation,” ante, at 615, is thus founded not on the text of the Constitution
but on what has been termed the “spirit of the Tenth Amendment,”
Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S., at 585
(O’Connor, J., dissenting) (emphasis in original). Susceptibility to what
Justice Holmes more bluntly called “some invisible radiation from the
general terms of the Tenth Amendment,” Missouri v. Holland, 252 U. S.
416, 434 (1920), has increased in recent years, in disregard of his admoni-
tion that “[w]e must consider what this country has become in deciding
what that Amendment has reserved,” ibid.

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“The wisdom and the discretion of Congress, their iden-
tity with the people, and the influence which their con-
stituents 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, 9 Wheat., 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 effec-
tive 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 determi-
nation. And with the wisdom, workability, or fairness, of
the plan of regulation we have nothing to do.” Id., at 129
(footnote omitted).
As with “conflicts of economic interest,” so with sup-
posed 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 identi-
fying “principled constitutional limitations on the scope of
Congress’ Commerce Clause powers over the States merely

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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 in-
hered principally in the workings of the National Gov-
ernment itself, rather than in discrete limitations on the
objects of federal authority. State sovereign interests,
then, are more properly protected by procedural safe-
guards inherent in the structure of the federal system
than by judicially created limitations on federal power.”
Id., at 552.
The Garcia Court’s rejection of “judicially created limi-
tations” in favor of the intended reliance on national poli-
tics was all the more powerful owing to the Court’s explicit
recognition that in the centuries since the framing the rela-
tive powers of the two sovereign systems have markedly
changed. Nationwide economic integration is the norm,
the national political power has been augmented by its vast
revenues, and the power of the States has been drawn down
by the Seventeenth Amendment, eliminating selection of
senators by state legislature in favor of direct election.
The Garcia majority recognized that economic growth
and the burgeoning of federal revenue have not amended
the Constitution, which contains no circuit breaker to pre-
clude 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 Constitu-
tional Convention, concluded, “It follows, therefore, that the

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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 integ-
rity of the State sovereignties; for if you once deprive a State
as a collective organism of all share in the General Govern-
ment, you annihilate its federative importance.” 26 Cong.
Rec. 7774 (1894). Massachusetts Senator George Hoar like-
wise defended indirect election of the Senate as “a great se-
curity 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 leg-
islatures, “the tide that now sets toward the Federal Gov-
ernment 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.
See generally Rossum, The Irony of Constitutional Democ-
racy: Federalism, the Supreme Court, and the Seventeenth
Amendment, 36 San Diego L. Rev. 671, 712–714 (1999) (not-
ing federalism-based objections to the Seventeenth Amend-
ment). 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
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 leg-
islation, whereas we are looking to politics to define that sphere (in der-
ogation even of Marbury v. Madison, 1 Cranch 137 (1803)), ante, at 616.
But we all accept the view that politics is the arbiter of state interests
only within the realm of legitimate congressional action under the com-
merce power. Neither Madison nor Wilson nor Marshall, nor the Jones &
Laughlin, Darby, Wickard, or Garcia Courts, suggested that politics de-
fines the commerce power. Nor do we, even though we recognize that
the conditions of the contemporary world result in a vastly greater sphere

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652 UNITED STATES v. MORRISON
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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 in-
consistency 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 se-
rious threat affecting all the political components of the fed-
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 616–617, 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; United States v. Darby, 312
U. S. 100, 118–119 (1941). 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 na-
tional legislation because the States have traditionally dealt with it, should
be a political choice and only a political choice.

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Souter, J., dissenting
eral 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 en-
forcement 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 sys-
tem 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
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.
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 Four-
teenth Amendment, to proceed instead by regulating the States, rather
than private individuals, this accountability would be far less plain.

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654 UNITED STATES v. MORRISON
Souter, J., dissenting
at violence against women, as an alternative to the generic
state tort causes of action found to be poor tools of action by
the state task forces. See S. Rep. No. 101–545, at 45 (noting
difficulty of fitting gender-motivated crimes into common-
law categories). As the 1993 Senate Report put it, “The
Violence Against Women Act is intended to respond both to
the underlying attitude that this violence is somehow less
serious than other crime and to the resulting failure of our
criminal justice system to address such violence. Its goals
are both symbolic and practical . . . .” S. Rep. No. 103–138,
at 38.
The collective opinion of state officials that the Act was
needed continues virtually unchanged, and when the Civil
Rights Remedy was challenged in court, the States came
to its defense. Thirty-six of them and the Commonwealth
of Puerto Rico have filed an amicus brief in support of
petitioners in these cases, and only one State has taken re-
spondents’ side. It is, then, not the least irony of these cases
that the States will be forced to enjoy the new federalism
whether they want it or not. For with the Court’s decision
today, Antonio Morrison, like Carter Coal’s James Carter
before him, has “won the states’ rights plea against the
states themselves.” R. Jackson, The Struggle for Judicial
Supremacy 160 (1941).
III
All of this convinces me that today’s ebb of the com-
merce 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 dis-
counted. 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

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Breyer, J., dissenting
a return to the conceptual straitjackets of Schechter and
Carter Coal and Usery than to something like the unsteady
state of obscenity law between Redrup v. New York, 386
U. S. 767 (1967) (per curiam), and Miller v. California,
413 U. S. 15 (1973), a period in which the failure to provide
a workable definition left this Court to review each case
ad hoc. See id., at 22, n. 3; Interstate Circuit, Inc. v. Dallas,
390 U. S. 676, 706–708 (1968) (Harlan, J., dissenting). As our
predecessors learned then, the practice of such ad hoc re-
view cannot preserve the distinction between the judicial
and the legislative, and this Court, in any event, lacks the
institutional capacity to maintain such a regime for very
long. This one will end when the majority realizes that the
conception of the commerce power for which it entertains
hopes would inevitably fail the test expressed in Justice
Holmes’s statement that “[t]he first call of a theory of law is
that it should fit the facts.” O. Holmes, The Common Law
167 (Howe ed. 1963). The facts that cannot be ignored today
are the facts of integrated national commerce and a politi-
cal relationship between States and Nation much affected
by their respective treasuries and constitutional modifica-
tions adopted by the people. The federalism of some earlier
time is no more adequate to account for those facts today
than the theory of laissez-faire was able to govern the na-
tional economy 70 years ago.
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 fed-
eralist principles. Its state/federal division of authority
protects liberty—both by restricting the burdens that gov-
ernment 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

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656 UNITED STATES v. MORRISON
Breyer, J., dissenting
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 “non-
economic, violent criminal conduct” that significantly affects
interstate commerce only if we “aggregate” the interstate
“effect[s]” of individual instances. Ante, at 617. Justice
Souter explains why history, precedent, and legal logic mili-
tate against the majority’s approach. I agree and join his
opinion. I add that the majority’s holding illustrates the dif-
ficulty of finding a workable judicial Commerce Clause touch-
stone—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” dis-
tinction is not easy to apply. Does the local street corner
mugger engage in “economic” activity or “noneconomic” ac-
tivity when he mugs for money? See Perez v. United States,
402 U. S. 146 (1971) (aggregating local “loan sharking” in-
stances); United States v. Lopez, 514 U. S. 549, 559 (1995)
(loan sharking is economic because it consists of “intrastate
extortionate credit transactions”); ante, at 610. Would evi-
dence 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: Preva-
lence and Implications for Employment Among Welfare Re-
cipients 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 ag-
gregate, hence regulate, “noneconomic” activity taking place

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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); Katz-
enbach v. McClung, 379 U. S. 294 (1964) (same for restau-
rants); Lopez, supra, at 559 (recognizing congressional power
to aggregate, hence forbid, noneconomically motivated dis-
crimination at public accommodations); ante, at 610 (same).
And it would permit Congress to regulate where that regu-
lation is “an essential part of a larger regulation of eco-
nomic 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 Con-
gress 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 emana-
tions through indirect environmental change cause identical,
severe commercial harm outside a State, why should it mat-
ter 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 commer-
cial effects, not the local nature of the cause, are constitution-
ally 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

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658 UNITED STATES v. MORRISON
Breyer, J., dissenting
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 importantly, 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 615. The Court’s rules, even
if broadly interpreted, are underinclusive. The local pick-
pocket 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 609, 611–612,
613, 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 inju-
rious 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 question-
ing 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

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Breyer, J., dissenting
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 (mak-
ing unlawful the knowing receipt or possession of certain
stolen items that have “crossed a State . . . boundary”);
§ 922(g)(1) (prohibiting felons from shipping, transporting, re-
ceiving, 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 possi-
bility 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, Inter-
state Commerce”? Complex Commerce Clause rules creat-
ing 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 re-
jected 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 con-
sideration. 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.

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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 child-
rearing” as well, obliterating the “Constitution’s distinction
between national and local authority.” Ante, at 615, 616;
Lopez, 514 U. S., at 558; cf. A. L. A. Schechter Poultry Corp.
v. United States, 295 U. S. 495, 548 (1935) (need for distinc-
tion between “direct” and “indirect” effects lest there “be
virtually no limit to the federal power”); Hammer v. Dagen-
hart, 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 ordi-
nary 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 645–649 (Souter, J., dissenting); Kimel v. Florida
Bd. of Regents, 528 U. S. 62, 93–94 (2000) (Stevens, J., dis-
senting) (Framers designed important structural safeguards
to ensure that, when Congress legislates, “the normal opera-
tion of the legislative process itself would adequately defend

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Breyer, J., dissenting
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., Un-
funded Mandates Reform Act of 1995, Pub. L. 104–4, 109
Stat. 48 (codified in scattered sections of 2 U. S. C.). More-
over, 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 rele-
vant 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) (col-
lecting 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 stat-
ute, 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 regu-
lation.” Ante, at 615. And in response, attorneys general
in the overwhelming majority of States (38) supported con-
gressional legislation, telling Congress that “[o]ur experience
as Attorneys General strengthens our belief that the prob-
lem of violence against women is a national one, requiring
federal attention, federal leadership, and federal funds.”
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); see also Violence Against Women: Victims of

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the System, Hearing on S. 15 before the Senate Committee
on the Judiciary, 102d Cong., 1st Sess., 37–38 (1991) (unani-
mous resolution of the National Association of Attorneys
General); but cf. Crimes of Violence Motivated by Gender,
supra, at 77–84 (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 628–635, 653–654 (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 tradi-
tional state concern, such as divorce, alimony, or child cus-
tody. 42 U. S. C. § 13981(e)(4). Consequently, the law be-
fore 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 fed-
eral moneys to encourage state and local initiatives to com-
bat gender-motivated violence).
I call attention to the legislative process leading up to
enactment of this statute because, as the majority recog-
nizes, ante, at 614, 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 com-
pensate 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

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Breyer, J., dissenting
also Gregory v. Ashcroft, 501 U. S. 452, 460–461 (1991) (in-
sisting 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 differ-
ence in a Commerce Clause case, say, when Congress legis-
lates 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 Con-
gress 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 656–659.
I continue to agree with Justice Souter that the Court’s
traditional “rational basis” approach is sufficient. Ante, at
628 (dissenting opinion); see also Lopez, 514 U. S., at 603–615
(Souter, J., dissenting); id., at 615–631 (Breyer, J., dis-
senting). But I recognize that the law in this area is un-
stable and that time and experience may demonstrate both
the unworkability of the majority’s rules and the superiority

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of Congress’ own procedural approach—in which case the
law may evolve toward a rule that, in certain difficult Com-
merce 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’ 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 621–622. That is
certainly so. The Federal Government’s argument, how-
ever, 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
630–631, n. 7, 653–654 (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, supra, at 14 (observing that the statute did “not pro-
fess to be corrective of any constitutional wrong committed
by the States” and that it established “rules for the conduct

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665 Cite as: 529 U. S. 598 (2000)
Breyer, J., dissenting
of individuals in society towards each other, . . . without re-
ferring 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 625–626; 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 626.
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, supra, at 518; see also Katzen-
bach v. Morgan, supra, at 651; South Carolina v. Katzen-
bach, supra, at 308. The statutory remedy does not in any
sense purport to “determine what constitutes a constitu-
tional violation.” Flores, supra, at 519. It intrudes little
upon either States or private parties. It may lead state
actors to improve their own remedial systems, primarily
through example. It restricts private actors only by im-
posing liability for private conduct that is, in the main, al-
ready forbidden by state law. Why is the remedy “dispro-
portionate”? And given the relation between remedy and
violation—the creation of a federal remedy to substitute for
constitutionally inadequate state remedies—where is the
lack of “congruence”?
The majority adds that Congress found that the problem
of inadequacy of state remedies “does not exist in all States,

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666 UNITED STATES v. MORRISON
Breyer, J., dissenting
or even most States.” Ante, at 626. But Congress had be-
fore it the task force reports of at least 21 States docu-
menting constitutional violations. And it made its own
findings about pervasive gender-based stereotypes ham-
pering many state legal systems, sometimes unconstitution-
ally so. See, e. g., S. Rep. No. 103–138, pp. 38, 41–42, 44–47
(1993); S. Rep. No. 102–197, pp. 39, 44–49 (1991); H. R. Conf.
Rep. No. 103–711, p. 385 (1994). The record nowhere reveals
a congressional finding that the problem “does not exist”
elsewhere. Why can Congress not take the evidence before
it as evidence of a national problem? This Court has not
previously held that Congress must document the existence
of a problem in every State prior to proposing a national
solution. And the deference this Court gives to Congress’
chosen remedy under § 5, Flores, supra, at 536, suggests that
any such requirement would be inappropriate.
Despite my doubts about the majority’s § 5 reasoning,
I need not, and do not, answer the § 5 question, which I
would leave for more thorough analysis if necessary on an-
other 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.