This website will include readings and cases on various aspects of the judicial process and constitutional law
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We have noted that the Supreme Court is a uniquely American institution. Its power of judicial review over congressional legislation defies the Lockean system and the Madisonian model as well. The Court was not originally part of the checks and balances system which was between the President and Congress exclusively. After all the Court did not make law but only interpreted the Constitution.
How has the Supreme Court, if you will, gotten away with assuming the power to review legislative actions, particularly those of Congress? Alexander Hamilton did state in Federalist 78 that the independent Supreme Court would interpret and apply the Constitution and would have the power of judicial review to declare unconstitutional laws null and void. The idea of judicial review was deeply embedded in colonial experience and English common law jurisprudence. Judicial review did not threaten the political process because at least theoretically it did not extend to political questions, those questions that the Constitution delegated exclusively to Congress or the President.
In the following article John P. Roche concludes that the Supreme Court has maintained its power through the skillful use of judicial self-restraint to avoid potentially political damage.
John P. Roche
Every society, sociological research suggests, has its set of myths which incorporate and symbolize its political, economic, and social aspirations. Thus, as medieval society had the Quest for the Holy Grail and the cult of numerology, we, in our enlightened epoch, have as significant manifestations of our collective hopes the dream of impartial decision-making and the cult of "behavioral science." While in my view these latter two are but different facets of the same fundamental drive, namely, the age-old effort to exorcise human variables from human action, our concern here is with the first of them, the pervasive tendency in the American political and constitutional tradition directed toward taking the politics out of politics, and substituting some set of Platonic guardians for fallible politicians.
While this dream of objectivizing political Truth is in no sense a unique American phenomenon, it is surely true to say that in no other democratic nation has the effort been carried so far and with such persistence. Everywhere one turns in the United States, he finds institutionalized attempts to narrow the political sector and to substitute allegedly "independent" and "impartial" bodies for elected decision-makers. The so-called "independent regulatory commissions" are a classic example of this tendency in the area of administration, but unquestionably the greatest hopes for injecting pure Truth-serum into the body politic have been traditionally reserved for the federal judiciary, and particularly for the Supreme Court. The rationale for this viewpoint is simple: "The people must be protected from themselves, and no institution is better fitted for the role of chaperone than the federal judiciary, dedicated as it is to the supremacy of the rule of law."
Patently central to this function of social chaperonage is the right of the judiciary to review legislative and executive actions and nullify those measures which derogate from eternal principles of truth and justice as incarnated in the Constitution. Some authorities, enraged at what the Supreme Court has found the Constitution to mean, have essayed to demonstrate that the framers did not intend the Court to exercise this function, to have, as they put it, "the last word." I find no merit in this contention; indeed, it seems to me undeniable not only that the authors of the Constitution intended to create a federal government, but also that they assumed sub silentio that the Supreme Court would have the power to review both national and state legislation.
However, since the intention of the framers is essentially irrelevant except to antiquarians and polemicists, it is unnecessary to examine further the matter of origins. The fact is that the United States Supreme Court, and the inferior federal courts under the oversight of the high Court, have enormous policy-making functions. Unlike their British and French counterparts, federal judges are not merely technicians who live in the shadow of a supreme legislature, but are fully equipped to intervene in the process of political decision making. In theory, they are limited by the Constitution and the jurisdiction it confers, but, in practice, it would be a clumsy judge indeed who could not, by a little skillful exegesis, adapt the Constitution to a necessary end. This statement is in no sense intended as a condemnation; on the contrary, it has been this perpetual reinvigoration by reinterpretation, in which the legislature and the executive as well as the courts play a part, that has given the Constitution its survival power. Applying a Constitution which contains at key points inspired ambiguity, the courts have been able to pour the new wine in the old bottle. Note that the point at issue is not the legitimacy or wisdom of judicial legislation; it is simply the enormous scope that this prerogative gives to judges to substitute their views for those of past generations, or, more controversially, for those of a contemporary Congress and President.
Thus it is naive to assert that the Supreme Court is limited by the Constitution, and we must turn elsewhere for the sources of judicial restraint. The great power exercised by the Court has carried with it great risks, so it is not surprising that American political history has been sprinkled with demands that the judiciary be emasculated. The really startling thing is that, with the notable exception of the McCardle incident in 1869, the Supreme Court has emerged intact from each of these encounters. Despite the plenary power that Congress, under Article III of the Constitution, can exercise over the appellate jurisdiction of the high Court, the national legislature has never taken sustained and effective action against its House of Lords. It is beyond the purview of this analysis to examine the reasons for Congressional inaction; suffice it here to say that the most significant form of judicial limitation has remained self-limitation. This is not to suggest that such a development as statutory codification has not cut down the area of interpretive discretion, for it obviously has. It is rather to maintain that when the justices have held back from assaults on legislative or executive actions, they have done so on the basis of self-established rationalizations....
The remainder of this paper is therefore concerned with two aspects of this auto-limitation: first, the techniques by which it is put into practice; and, second, the conditions under which it is exercised....
Techniques of Judicial Self-Restraint
The major techniques of judicial self-restraint appear to fall under the two familiar rubrics: procedural and substantive. Under the former fall the various techniques by which the Court can avoid coming to grips with substantive issues, while under the latter would fall those methods by which the Court, in a substantive holding, finds that the matter at issue in the litigation is not properly one for judicial settlement. Let us examine these two categories in some detail.
Procedural Self-Restraint
Since the passage of the Judiciary Act of 1925, the Supreme Court has had almost complete control over its business. United States Supreme Court Rule 38, which governs the certiorari policy, states, (§ 5) that discretionary review will be granted only "where there are special and important reasons therefor." Professor Fowler Harper has suggested in a series of detailed and persuasive articles on the application of this discretion [University of Pennsylvania Law Review, vols. 99–101; 103] that the Court has used it in such a fashion as to duck certain significant but controversial problems. While one must be extremely careful about generalizing in this area, since the reasons for denying certiorari are many and complex, Harper’s evidence does suggest that the Court in the period since 1949 has refused to review cases involving important civil liberties problems which on their merits appeared to warrant adjudication. As he states at one point: "It is disconcerting when the Court will review a controversy over a patent on a pin ball machine while one man is deprived of his citizenship and another of his liberty without Supreme Court review of a plausible challenge to the validity of government action."...
Furthermore, the Supreme Court can issue certiorari on its own terms. Thus in Dennis v. United States, appealing the Smith Act convictions of the American communist leadership, the Court accepted the evidential findings of the Second Circuit as final and limited its review to two narrow constitutional issues. This, in effect, burked the basic problem: whether the evidence was sufficient to demonstrate that the Communist Party, U.S.A., was in fact clear and present danger to the security of the nation, or whether the communists were merely shouting "Fire!" in an empty theater.
Other related procedural techniques are applicable in some situations. Simple delay can be employed, perhaps in the spirit of the Croatian proverb that "delay is the handmaiden of justice."...However, the technique of procedural self-restraint is founded on the essentially simple gadget of refusing jurisdiction, or of procrastinating the acceptance of jurisdiction, and need not concern us further here.
Substantive Self-Restraint
Once a case has come before the Court on its merits, the justices are forced to give some explanation for whatever action they may take. Here self-restraint can take many forms, notably, the doctrine of political questions, the operation of judicial parsimony, and—particularly with respect to the actions of administrative officers of agencies—the theory of judicial inexpertise.
The doctrine of political questions is too familiar to require much elaboration here. Suffice it to say that if the Court feels that a question before it, e.g., the legitimacy of a state government, the validity of a legislative apportionment, or the correctness of executive action in the field of foreign relations, is one that is not properly amenable to judicial settlement, it will refer the plaintiff to the "political" organs of government for any possible relief. The extent to which this doctrine is applied seems to be a direct coefficient of judicial egotism, for the definition of a political question can be expanded or contracted in accordian-like fashion to meet the exigencies of the times. A juridical definition of the term is impossible, for at root the logic that supports it is circular: political questions are matters not soluble by the judicial process; matters not soluble by the judicial process are political questions. As an early dictionary explained, violins are small cellos, and cellos are large violins.
Nor do examples help much in definition. While it is certainly true that the Court cannot mandamus a legislature to apportion a state in equitable fashion, it seems equally true that the Court is without the authority to force state legislators to implement unsegregated public education. Yet in the former instance the Court genuflected to the "political" organs and took no action, while in the latter it struck down segregation as violative of the Constitution.
Judicial parsimony is another major technique of substantive self-restraint. In what is essentially a legal application of Occam’s razor, the court has held that it will not apply any more principles to the settlement of a case than are absolutely necessary, e.g., it will not discuss the constitutionality of a law if it can settle the instant case by statutory construction. Furthermore, if an action is found to rest on erroneous statutory construction, the review terminates at that point: the Court will not go on to discuss whether the statute, properly construed, would be constitutional. A variant form of this doctrine, and a most important one, employs the "case of controversy" approach, to wit, the Court, admitting the importance of the issue, inquires as to whether the litigant actually has standing to bring the matter up....
A classic use of parsimony to escape from a dangerous situation occurred in connection with the evacuation of the Nisei from the West Coast in 1942. Gordon Hirabayashi, in an attempt to test the validity of the regulations clamped on the American-Japanese by the military, violated the curfew and refused to report to an evacuation center. He was convicted on both counts by the district court and sentenced to three months for each offense, the sentences to run concurrently. When the case came before the Supreme Court, the justices sustained his conviction for violating the curfew, but refused to examine the validity of the evacuation order on the ground that it would not make any difference to Hirabayashi anyway; he was in for ninety days no matter what the Court did with evacuation.
A third method of utilizing substantive self-restraint is particularly useful in connection with the activities of executive departments or regulatory agencies, both state and federal. I have entitled it the doctrine of judicial inexpertise, for it is founded on the unwillingness of the Court to revise the findings of experts. The earmarks of this form of restraint are great deference to the holdings of the expert agency usually coupled with such a statement as "It is not for the federal courts to supplant the [Texas Railroad] Commission’s judgment even in the face of convincing proof that a different result would have been better." In this tradition, the Court has refused to question some exercises of discretion by the National Labor Relations Board, the Federal Trade Commission, and other federal and state agencies. But the emphasis on some gives the point away; in other cases, apparently on all fours with those in which it pleads its technical inexpertise, the Court feels free to assess evidence de novo and reach independent judgment on the technical issues involved....
In short, with respect to expert agencies, the Court is equipped with both offensive and defensive gambits. It if chooses to intervene, one set of precedents is brought out, while if it decides to hold back, another set of equal validity is invoked. Perhaps the best summary of this point was made by Justice Harlan in 1910, when he stated bluntly that "the Courts have rarely, if ever, felt themselves so restrained by technical rules that they could not find some remedy, consistent with the law, for acts...that violated natural justice or were hostile to the fundamental principles devised for the protection of the essential rights of property."
This does not pretend to be an exhaustive analysis of the techniques of judicial self-restraint; on the contrary, others will probably find many which are not given adequate discussion here. The remainder of this paper, however, is devoted to the second area of concern: the conditions under which the Court refrains from acting.
The Conditions of Judicial Self-Restraint
The conditions which lead the Supreme Court to exercise auto-limitation are many and varied. In the great bulk of cases, this restraint is an outgrowth of sound and quasi-automatic legal maxims which defy teleological interpretation. It would take a master of the conspiracy theory of history to assign meaning, for example, to the great majority of certiorari denials; the simple fact is that these cases do not merit review. However, in a small proportion of cases, purpose does appear to enter the picture, sometimes with a vengeance. It is perhaps unjust to the Court to center our attention on this small proportion, but it should be said in extenuation that these cases often involve extremely significant political and social issues. In the broad picture, the refusal to grant certiorari in 1943 to the Minneapolis Trotskyites convicted under the Smith Act is far more meaningful than the similar refusal to grant five hundred petitions to prison "lawyers" who have suddenly discovered the writ of habeas corpus. Likewise, the holding that the legality of Congressional apportionment is a "political question" vitally affects the operation of the whole democratic process.
What we must therefore seek are the conditions under which the Court holds back in this designated category of cases. Furthermore, it is important to realize that there are positive consequences of negative action; as Charles Warren has implied, the post–Civil War Court’s emphasis on self-restraint was a judicial concomitant of the resurgence of states’ rights. Thus self-restraint may, as in wartime, be an outgrowth of judicial caution, or it may be part of a purposeful pattern of abdicating national power to the states.
Ever since the first political scientist discovered Mr. Dooley, the changes have been run on the aphorism that the Supreme Court "follows the election returns," and I see no particular point in ringing my variation on this theme through again. Therefore, referring those who would like a more detailed explanation to earlier analyses, the discussion here will be confined to the bare bones of my hypothesis.
The power of the Supreme Court to invade the decision-making arena, I submit, is a consequence of that fragmentation of political power which is normal in the United States. No cohesive majority, such as normally exists in Britain, would permit a politically irresponsible judiciary to usurp decision-making functions, but, for complex social and institutional reasons, there are few issues in the United States on which cohesive majorities exist. The guerrilla warfare which usually rages between Congress and the President, as well as the internal civil wars which are endemic in both the legislature and the administration, give the judiciary considerable room for maneuver. If, for example, the Court strikes down a controversial decision of the Federal Power Commission, it will be supported by a substantial bloc of congressmen; if it supports the FPC’s decision, it will also receive considerable congressional support. But the important point is that either way it decides the case, there is no possibility that Congress will exact any vengeance on the Court for its action. A disciplined majority would be necessary to clip the judicial wings, and such a majority does not exist on this issue.
On the other hand, when monolithic majorities do exist on issues, the Court is likely to resort to judicial self-restraint. A good case here is the current tidal wave of anti-communist legislation and administrative action, the latter particularly with regard to aliens, which the Court has treated most gingerly. About the only issues on which there can be found cohesive majorities are those relating to national defense, and the Court has, as Clinton Rossiter demonstrated in an incisive analysis [The Supreme Court and the Commander-in-Chief, Ithaca, 1951], traditionally avoided problems arising in this area irrespective of their constitutional merits. Like the slave who accompanied a Roman consul on his triumph whispering "You too are mortal," the shade of Thad Stevens haunts the Supreme Court chamber to remind the justices what an angry Congress can do.
To state the proposition in this brief compass is to oversimplify it considerably. I have, for instance, ignored the crucial question of how the Court knows when a majority does exist, and I recognize that certain aspects of judicial behavior cannot be jammed into my hypothesis without creating essentially spurious epicycles. However, I am not trying to establish a monistic theory of judicial action; group action, like that of individuals, is motivated by many factors, some often contradictory, and my objective is to elucidate what seems to be one tradition of judicial motivation. In short, judicial self-restraint and judicial power seem to be opposite sides of the same coin: it has been by judicious application of the former that the latter has been maintained. A tradition beginning with Marshall’s coup in Marbury v. Madison and running through Mississippi v. Johnson and Ex Parte Vallandigham to Dennis v. United States suggests that the Court’s power has been maintained by a wise refusal to employ it in unequal combat.
Limiting Congressional Authority to Regulate Violence Against Women
The Supreme Court once again confronted the question of the scope of Congress's commerce power, as well as congressional enforcement power under section V of the 14th amendment, when it reviewed the constitutionality of the Violence Against Women Act of 1994 in United States v. Morrison (2000). A vast majority of the states supported the law which reflected strong political support throughout the nation. Would a majority of only five Supreme Court Justices follow the Lopez precedent and overturn the law on the ground that Congress did not have the constitutional authorty to enact it?
The law stated that "[a]ll persons within the United States shall have the right to be free from crimes of violence motivated by gender." The enforcement section declared: "A person … who commits a crime of violence motivated by gender … shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate…." The law defined a "crim[e] of violence motivated by gender" as "a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender."
Unlike the gun control legislation the Court voided in Lopez Congress made extensive findings to connect violence against women with interstate commerce.
These congressional findings are called legislative facts. They are empirical in nature and Congress uses them to make policy. Empirical findings support but do
not dictate policy.
In the following case note how the dissent stresses the importance of the extensive congressional findings that connected violence against women with interstate commerce. These findings, the dissenters held, supported congressional authority under the commerce clause to enact the legislation.
United States v. Morrison (2000)
Chief Justice Rehnquist delivered the opinion of the Court.
In these cases we consider the constitutionality of 42 U. S. C. §13981 [of the Violence Against Women Act of 1994], which provides a federal civil remedy for the victims of gender-motivated violence. The United States Court of Appeals for the Fourth Circuit, sitting en banc, struck down §13981 because it concluded that Congress lacked constitutional authority to enact the section's civil remedy. Believing that these cases are controlled by our decisions in United States v. Lopez,
we affirm.
I
Petitioner Christy Brzonkala enrolled at Virginia Polytechnic Institute (Virginia Tech) in the fall of 1994. In September of that year, Brzonkala met respondents Antonio Morrison and James Crawford, who were both students at Virginia Tech and members of its varsity football team. Brzonkala alleges that, within 30 minutes of meeting Morrison and Crawford, they assaulted and repeatedly raped her. After the attack, Morrison allegedly told Brzonkala, "You better not have any ... diseases." In the months following the rape, Morrison also allegedly announced in the dormitory's dining room that he "like[d] to get girls drunk and ... ." The omitted portions, quoted verbatim in the briefs on file with this Court, consist of boasting, debased remarks about what Morrison would do to women, vulgar remarks that cannot fail to shock and offend
Brzonkala alleges that this attack caused her to become severely emotionally disturbed and depressed. She sought assistance from a university psychiatrist, who prescribed antidepressant medication. Shortly after the rape Brzonkala stopped attending classes and withdrew from the university.
In early 1995, Brzonkala filed a complaint against respondents under Virginia Tech's Sexual Assault Policy. During the school-conducted hearing on her complaint, Morrison admitted having sexual contact with her despite the fact that she had twice told him "no." After the hearing, Virginia Tech's Judicial Committee found insufficient evidence to punish Crawford, but found Morrison guilty of sexual assault and sentenced him to immediate suspension for two semesters.
Virginia Tech's dean of students upheld the judicial committee's sentence. However, in July 1995, Virginia Tech informed Brzonkala that Morrison intended to initiate a court challenge to his conviction under the Sexual Assault Policy. University officials told her that a second hearing would be necessary to remedy the school's error in prosecuting her complaint under that policy, which had not been widely circulated to students. The university therefore conducted a second hearing under its Abusive Conduct Policy, which was in force prior to the dissemination of the Sexual Assault Policy. Following this second hearing the Judicial Committee again found Morrison guilty and sentenced him to an identical 2-semester suspension. This time, however, the description of Morrison's offense was, without explanation, changed from "sexual assault" to "using abusive language."
Morrison appealed his second conviction through the university's administrative system. On August 21, 1995, Virginia Tech's senior vice president and provost set aside Morrison's punishment. She concluded that it was " `excessive when compared with other cases where there has been a finding of violation of the Abusive Conduct Policy,' " Virginia Tech did not inform Brzonkala of this decision. After learning from a newspaper that Morrison would be returning to Virginia Tech for the fall 1995 semester, she dropped out of the university.
In December 1995, Brzonkala sued Morrison, Crawford, and Virginia Tech in the United States District Court for the Western District of Virginia. Her complaint alleged that Morrison's and Crawford's attack violated §13981 and that Virginia Tech's handling of her complaint violated Title IX of the Education Amendments of 1972, 86 Stat. 373-375, 20 U. S. C. §§1681-1688. Morrison and Crawford moved to dismiss this complaint on the grounds that it failed to state a claim and that §13981's civil remedy is unconstitutional. The United States, petitioner in No. 99-5, intervened to defend §13981's constitutionality.
The District Court dismissed Brzonkala's Title IX claims against Virginia Tech for failure to state a claim upon which relief can be granted. See Brzonkala v. Virginia Polytechnic and State Univ., 935 F. Supp. 772 (WD Va. 1996). It then held that Brzonkala's complaint stated a claim against Morrison and Crawford under §13981, but dismissed the complaint because it concluded that Congress lacked authority to enact the section under either the Commerce Clause or §5 of the Fourteenth Amendment. Brzonkala v. Virginia Polytechnic and State Univ., 935 F. Supp. 779 (WD Va. 1996).
A divided panel of the Court of Appeals reversed the District Court, reinstating Brzonkala's §13981 claim and her Title IX hostile environment claim. Brzonkala v. Virginia Polytechnic and State Univ., 132 F. 3d 949 (CA4 1997). The full Court of Appeals vacated the panel's opinion and reheard the case en banc. The en banc court then issued an opinion affirming the District Court's conclusion that Brzonkala stated a claim under §13981 because her complaint alleged a crime of violence and the allegations of Morrison's crude and derogatory statements regarding his treatment of women sufficiently indicated that his crime was motivated by gender animus. Nevertheless, the court by a divided vote affirmed the District Court's conclusion that Congress lacked constitutional authority to enact §13981's civil remedy. Brzonkala v. Virginia Polytechnic and State Univ., 169 F. 3d 820 (CA4 1999). Because the Court of Appeals invalidated a federal statute on constitutional grounds, we granted certiorari. 527 U. S. 1068
(1999).
Section 13981 was part of the Violence Against Women Act of 1994. It states that "[a]ll persons within the United States shall have the right to be free from crimes of violence motivated by gender." …
Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. "The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C. J.). Congress explicitly identified the sources of federal authority on which it relied in enacting §13981. It said that a "federal civil rights cause of action" is established "[p]ursuant to the affirmative power of Congress ... under section 5 of the Fourteenth Amendment to the Constitution, as well as under [the Commerce Clause,] section 8 of Article I of the Constitution." We address Congress' authority to enact this remedy under each of these constitutional provisions in turn.
II
Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds…. With this presumption of constitutionality in mind, we turn to the question whether §13981 falls within Congress' power under Article I, §8, [the Commerce Clause] of the Constitution. Brzonkala and the United States rely upon the third clause of the Article, which gives Congress power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
As we discussed at length in Lopez, our interpretation of the Commerce Clause has changed as our Nation has developed …. We need not repeat that detailed review of the Commerce Clause's history here; it suffices to say that, in the years since NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937), Congress has had considerably greater latitude in regulating conduct and transactions under the Commerce Clause than our previous case law permitted. …
[Using the] principles underlying our Commerce Clause jurisprudence as reference points, the proper resolution of the present cases is clear. Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature. …
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. … But the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. As we stated in Lopez, " `[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.' " …
Congress found that gender-motivated violence affects interstate commerce
by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved in interstate commerce; ... by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products.
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. The reasoning that petitioners advance seeks to follow the but-for causal chain from the initial occurrence of violent crime (the suppression of which has always been the prime object of the States' police power) to every attenuated effect upon interstate commerce. If accepted, petitioners' reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence since gender-motivated violence, as a subset of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part.
Petitioners' reasoning, moreover, will not limit Congress to regulating violence but may, as we suggested in Lopez, be applied equally as well to family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant. …
We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local….
Because we conclude that the Commerce Clause does not provide Congress with authority to enact §13981, we address petitioners' alternative argument that the section's civil remedy should be upheld as an exercise of Congress' remedial power under §5 of the Fourteenth Amendment. As noted above, Congress expressly invoked the Fourteenth Amendment as a source of authority to enact §13981. …
…[T]he language and purpose of the Fourteenth Amendment place certain limitations on the manner in which Congress may attack discriminatory conduct. These limitations are necessary to prevent the Fourteenth Amendment from obliterating the Framers' carefully crafted balance of power between the States and the National Government. …Foremost among these limitations is the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action. "[T]he principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." Shelley v. Kraemer, 334 U. S. 1, 13, and n. 12 (1948)….
…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. …
…[W}e 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 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.
Our cases, which remain at least nominally undisturbed, stand for the following propositions. Congress has the power to legislate with regard to activity that, in the aggregate, has a substantial effect on interstate commerce. See Wickard v. Filburn,
317 U. S. 111, 124-128 (1942). The fact of such a substantial effect is not an issue for the courts in the first instance, but for the Congress, whose institutional capacity for gathering evidence and taking testimony far exceeds ours. By passing legislation, Congress indicates its conclusion, whether explicitly or not, that facts support its exercise of the commerce power. The business of the courts is to review the congressional assessment, not for soundness but simply for the rationality of concluding that a jurisdictional basis exists in fact. Any explicit findings that Congress chooses to make, though not dispositive of the question of rationality, may advance judicial review by identifying factual authority on which Congress relied. Applying those propositions in these cases can lead to only one conclusion.
One obvious difference from United States v. Lopez, 514 U. S. 549 (1995), is the mountain of data assembled by Congress, here showing the effects of violence against women on interstate commerce. Passage of the Act in 1994 was preceded by four years of hearings, which included testimony from physicians and law professors; from survivors of rape and domestic violence; and from representatives of state law enforcement and private business.
The record includes reports on gender bias from task forces in 21 States, and we have the benefit of specific factual findings in the eight separate Reports issued by Congress and its committees over the long course leading to enactment….
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, extended to all activity that, when aggregated, has a substantial effect on interstate commerce….
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. …
III
As our predecessors learned then, the practice of such ad hoc review [as the majority has practiced in this case] cannot preserve the distinction between the judicial and the legislative, and this Court, in any event, lacks the institutional capacity to maintain such a regime for very long. This one will end when the majority realizes that the conception of the commerce power for which it entertains hopes would inevitably fail the test expressed in Justice Holmes's statement that "[t]he first call of a theory of law is that it should fit the facts." O. Holmes, The Common Law 167 (Howe ed. 1963). The facts that cannot be ignored today are the facts of integrated national commerce and a political relationship between States and Nation much affected by their respective treasuries and constitutional modifications adopted by the people. The federalism of some earlier time is no more adequate to account for those facts today than the theory of laissez-faire was able to govern the national economy 70 years ago.
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536 , 47 S.Ct. 446; Nixon v. Condon, 286 U.S. 73 , 52 S.Ct. 484, 88 A.L. R. 458; on restraints upon the dissemination of information, see Near v. Minnesota, 283 U.S. 697 , 713-714, 718-720, 722, 51 S.Ct. 625, 630, 632, 633; Grosjean v. American Press Co., 297 U.S. 233 , 56 S.Ct. 444; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 283 U.S. 359, 369 , 51 S.Ct. 532, 535, 73 A.L.R. 1484; Fiske v. Kansas, 274 U.S. 380 , 47 S.Ct. 655; Whitney v. California, 274 U.S. 357 , 373-378, 47 S.Ct. 641, 647, 649; Herndon v. Lowry, 301 U.S. 242 , 57 S.Ct. 732; and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673 , 45 S.Ct. 625; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365 , 57 S.Ct. 255, 260.
Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571, 39 A.L.R. 468, or national, Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625, 29 A.L.R. 1446; Bartels v. Iowa, 262 U.S. 404 , 43 S.Ct. 628; Farrington v. Tokushige, 273 U.S. 284 , 47 S.Ct. 406, or racial minorities. Nixon v. Herndon, supra; Nixon v. Condon, supra; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina State Highway Department v. Barnwell Bros., 303 U.S. 177 , 58 S.Ct. 510, decided February 14, 1938, note 2, and cases cited.