United States v. Morrison: Where the
Commerce Clause Meets Civil Rights and
Reasonable Minds Part Ways: A Point
and Counterpoint from a Constitutional
and Social Perspective
MARIANNE MOODY JENNINGS*
NIM RAZOOK*
I. INTRODUCTION
On May 15, 2000, the United States Supreme Court held that a portion
of the federal Violence Against Women Act1 (VAWA) was an unconstitutional exercise of congressional power. Specifically, the Court held2
that the VAWA’s civil action provision,3 which provided a victim of
gender-motivated violence4 a cause of action against the perpetrator for
* ©Jennings & Razook. All rights reserved. Marianne Moody Jennings, Professor of Legal and Ethical Studies, College of Business, Arizona State University.
Nim Razook, Associate Professor of Legal Studies, Price School of Business, University of Oklahoma. The authors are grateful for the assistance of Vincent Curley,
J.D. 2000, in the research for this article. Please do not cite without our permission.
1. See Federal Violence Against Women Act, 42 U.S.C. § 13981 (1994) (codified as amended in scattered sections of 42 U.S.C.).
2. See generally U.S. v. Morrison, 120 S. Ct. 1740 (2000).
3. The civil action provision of the VAWA reads as follows:
A person (including a person who acts under color of any stat ute, ordinance,
regulation, custom, or usage of any State) who commits a crime of violence m otivated by gender and thus deprives another of the right declared in subsection
(b) of this section shall be liable to the party injured, in an action for the reco very of compensatory and punitive damages, injunctive and declaratory relief, and
such other relief as a court may deem appropriate.
42 U.S.C. § 13981(c).
4. Under the VAWA, gender-motivated violence or “‘crime of violence motivated by gender’ means 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 .
. . .” 42 U.S.C. § 13981(d)(1). A crime of violence is:
an 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
23
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the recovery of compensatory and punitive damages, went beyond the
authority granted to Congress under the Commerce Clause.5 The decision
in U.S. v. Morrison arose from a case filed under the VAWA’s civil action provision by Christy Brzonkala against two young men who, Brzonkala claimed, raped her while they all were students at Virginia Polytechnic Institute.6 Intending for this provision to supplement rather than
displace applicable state laws,7 Congress adopted the VAWA based on
its authority to regulate interstate commerce.
In a five to four decision,8 the Court held that neither the activity regulated by the VAWA’s civil action provision nor the setting in which gender-motivated violence occurs implicates interstate commerce.9 Acknowledging Congress’ broad authority to regulate in this area, Chief
Justice Rehnquist, writing for the majority, stated that the VAWA’s civil
action meets none of the categories of activity that Congress may regulate under its commerce power.10 The Court and the parties involved
quickly noted that the VAWA provision did not fit into either of the first
two categories of activities that Congress may regulate under the Commerce Clause, “the channels of interstate commerce” and the “instrumen-
or Federal offenses described in section 16 of title 18. . . .
42 U.S.C. § 13981(d)(2)(A).
5. U.S. CONST. art. I, § 8, cl. 3: Congress shall have the Power “[t]o regulate
Commerce with foreign Nations, and among the several states. . . . ”
6. See Morrison, 120 S. Ct. at 1746. Brzonkala alleged in her complaint that
two fellow students at Virginia Polytechnic Institute, Antonio Morrison and James
Crawford, assaulted and repeatedly raped her, that their actions were motivated by
her gender and such actions violated section 13981(c). See id.
7. See 42 U.S.C. § 13981(e)(4) (1994) (“Neither section 1367 of title 28 nor
subsection (c) of this section shall be construed, by reason of a claim arising under
such subsection, to confer on the courts of the United States jurisdiction over any
State law claim seeking the establishment of a divorce, alimony, equitable distribution of marital property, or child custody decree.”). The reach of the VAWA’s civil
remedy into state domains and its effect on federalism is the focus of this article.
However, the authors agree that Congress, in adopting the VAWA, scrupulously
attempted not to be disruptive to existing state laws, but rather to supplement these
laws with a federal civil claim. Potential plaintiffs could pursue remedies afforded
by state or federal law, and the plaintiffs’ civil action was to have no effect on domestic matters governed by state law.
8. See Morrison, 120 S. Ct. at 1745. Chief Justice Rehnquist wrote the opinion
in which Justices O’Connor, Scalia, Kennedy and Thomas joined. See id. Justice
Thomas wrote a concurring opinion. See id. at 1759. Justice Souter wrote a dissenting opinion in which Justices Stevens, Ginsburg and Breyer joined. See id. Justice
Breyer also wrote a dissenting opinion. See id. at 1774.
9. See id. at 1754. Parts II and III of this Article will explore the majority’s
holding and rationale more thoroughly. See infra Parts II, III and accompanying
notes.
10. See Morrison, 120 S. Ct. at 1749-54.
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talities of interstate commerce.”11 Instead, the focus of the Court’s decision was the third category, which includes those activities that, when
aggregated, have a substantial effect on interstate commerce.12 Holding
that this third category of activity includes only “economic” activities,13
the Court concluded that violence against women is not, “in any sense of
the phrase, economic activity”14 and that requiring the activity or setting
of the congressional regulation to be “economic” is essential. Otherwise,
the majority stated, the Court could not “posit any activity by an individual that Congress is without the power to regulate.”15
Both Justices Souter and Breyer wrote dissenting opinions arguing that
the majority opinion is irreconcilable with existing Commerce Clause
jurisprudence. Stated briefly, the Justices argued that if Congress provides a rational basis for concluding that a certain activity affects interstate commerce, then the Court must defer to Congress’ decision.16 This
“rational basis” analysis, the dissenters state, grants Congress’ plenary
authority under the Commerce Clause, rendering this a political rather
than a legal issue.17
The sharp division in Morrison is not peculiar to the majority and dissenting Justices. This case is bound to divide judges, scholars and lawyers; provoke debate among politicians; and invite volumes of commentary.18 Hoping to foster this debate, we offer two distinctly different
11. Id. at 1749 (quoting U.S. v. Lopez, 514 U.S. 549, 558 (1995)).
12. See id. at 1750. The aggregate and substantial effect test arose in Wickard v.
Filburn, 317 U.S. 111 (1942) covered in some detail, see infra notes 20, 29-32, 73,
152 and 158, and accompanying text. See also infra tables 2 and 3.
13. Morrison, 120 S. Ct. at 1750.
14. Id. at 1751.
15. Id. (quoting U.S. v. Lopez, 514 U.S. 564 (1995)).
16. See id. at 1759-80. Parts II and III examine the dissenting views more thoroughly. See infra Parts II and III and accompanying notes.
17. Part IV explores the notion of “political federalism” in detail. See infra Part
IV and accompanying notes.
18. Indeed, the scholarly debate began well before the Supreme Court’s decision
in Morrison. See Joseph R. Biden, Jr., The Civil Rights Remedy of the Violence
Against Women Act: A Defense, 37 HARV. J. ON LEGIS. 1 (2000) (defending the
VAWA’s constitutionality); Sara E. Kropf, The Failure of United States v. Lopez:
Analyzing the Violence Against Women Act, 8 S. CAL. REV. L. & WOMEN’S STUD.
373 (1999) (defending the VAWA’s constitutionality); Kerrie E. Maloney, GenderMotivated Violence and the Commerce Clause: The Civil Rights Provision of the
Violence Against Women Act After Lopez, 96 COLUM. L. REV. 1876 (1996) (claiming that the VAWA’s civil rights provision accords with the Commerce Clause);
James M. McGoldrick, Katzenbach v. McClung: The Abandonment of Federalism in
the Name of Rational Basis, 14 BYU J. PUB. L. 1 (1999) (arguing that the Court
should prohibit with more rigorous criteria Congress’ authority to adopt laws like the
VAWA); Kelli C. McTaggart, The Violence Against Women Act: Recognizing a
Federal Civil Right to be Free from Violence, 86 GEO. L.J. 1123 (1998) (arguing that
the VAWA is constitutional under the Commerce Clause); Grant S. Nelson & Robert
J. Pushaw, Jr., Rethinking the Commerce Clause: Applying First Principles to Up-
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views of the decision. Unlike the typical scholarly fare, the authors serve
as advocates for their respective positions and rely more on the prose of
advocacy than is typical in law review works. We believe that this
point/counterpoint presentation offers both an engaging and comprehensive treatment of the key issues raised in Morrison.
Our coverage focuses exclusively on the Court’s treatment of the
Commerce Clause19 and is divided into three parts. In each part, Professor Razook will offer a point in opposition to the Court’s ruling in Morrison and Professor Jennings will counter.
Part II explores whether the majority opinion is reconcilable with extant Commerce Clause jurisprudence. Professor Razook argues that
Morrison has constructively, if not explicitly, overruled sixty years of
Commerce Clause jurisprudence. Professor Jennings’ answer asserts that
the ruling is doctrinally consistent with previous decisions.
Part III examines the majority’s reliance on “economic/non-economic”
activities and settings to differentiate between authorized and unconstitutional congressional actions under the Commerce Clause. Professor Razook labels this distinction unworkable and offers examples of the formidable decisions the Court must make under its new standard. Professor Jennings argues that this distinction is clear, predictable and likely
not to change dramatically the current scope of congressional power.
Finally, Part IV asks whether Congress’ Commerce Clause authority is
essentially a political or legal issue and therefore whether Congress or
the Supreme Court is the proper forum to make these decisions. Professor Razook maintains that Congress has been very sensitive to issues of
federalism and thus is the preferable site for these decisions. Professor
Jennings argues that the Supreme Court’s power of judicial review can-
hold Federal Commercial Regulations but Preserve State Control Over Social Issues, 85 IOWA L. REV. 1, 10 (1999) (arguing that the Supreme Court should strike
down the VAWA as unconstitutional); Megan Weinstein, The Violence Against
Women Act After U.S. v. Lopez: Defending the Act from Constitutional Challenge,
12 BERKELEY WOMEN’S L.J. 119 (1997) (defending the VAWA’s constitutionality);
Melanie L. Winskie, Can Federalism Save the Violence Against Women Act?, 31
GA. L. REV. 985 (1997) (asserting that the VAWA is consistent with principles of
federalism); Peter J. Liuzzo, Comment, Brzonkala v. Virginia Polytechnic and State
University: The Constitutionality of the Violence Against Women Act Recognizing
that Violence Targeted at Women Affects Interstate Commerce, 63 BROOK. L. REV.
367 (1997) (arguing that the VAWA is a proper exercise of power by Congress).
For additional relevant works, see infra notes 22, 41, and 105 and accompanying
text.
19. The Court ruled on the VAWA’s constitutionality under both the Commerce
Clause and under Section 5 of the Fourteenth Amendment. U.S. CONST. amend.
XIV, § 5 reads: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” The majority opinion ruled that the “state action” required to enforce a Section 5 case does not exist such that the VAWA can be
sustained on this basis. Morrison, 120 S. Ct. at 1754-59.
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not be interpreted to exclude any significant constitutional principle, especially one as important as Congress’ Commerce Clause authority.
II. POINT 1 NOTWITHSTANDING THE MAJORITY’S ASSERTIONS IN U.S. V.
MORRISON, THE COURT HAS CONSTRUCTIVELY OVERRULED SIXTY
YEARS OF WORKABLE LAW CONCERNING CONGRESS’ POWER TO
ADOPT RULES UNDER THE COMMERCE CLAUSE
Every semester, like clockwork, at least one of my students, obviously
a budding member of the Federalist Society, expresses concern about
Congress’ seemingly boundless authority to regulate under the Commerce Clause. The scene begins just as the class has finished its coverage of Wickard v. Filburn, 20 the sine qua non case for Commerce Clause
coverage.21 The exchange, somewhat cosmetically enhanced and shortened in the interest of decorum and brevity, goes something like this:
Student: So if Congress can pass laws restricting how much wheat a
small Ohio farmer can harvest, even though the farmer consumes rather
than sells his wheat, then what if Congress concludes that cultivating
tomatoes for family consumption is interstate commerce and adopts a
Homegrown Tomato Act?
Professor: If Congress offers a rational basis for relating home tomato
growing to interstate commerce, then the Court, while raising a collective eyebrow to Congress’ judgment, will likely yield to Congress’ decision.
Until recently, this exchange resembled our very brief coverage of
Congress’ authority under the Commerce Clause. Soon, however, we
will be nostalgic for those halcyon days of unfettered congressional power and the accompanying short and sweet pedagogical treatment of that
power. New rules have emerged to limit Congress’ power, divesting
Congress of its plenary control over interstate commerce. In Morrison,
the Supreme Court left no doubt about its desire to invigorate judicial
review of congressional actions under the Commerce Clause. By doing
so, the Court has created bad law, not only for professors worried about
their classroom presentations, but for Congress, the states and the people.
20. 317 U.S. 111 (1942).
21. See id. at 29-32 (holding that a small Ohio farmer who plants a few acres of
wheat primarily for his own consumption is engaging in interstate commerce, Wickard essentially granted Congress a plenary power to regulate those areas of commerce that it deems necessary). In Wickard, the Court held that the cumulative effect of allowing farmers like Filburn to plant and harvest as much wheat as they wish
would frustrate the purpose of the Agricultural Adjustment Act, passed by Congress
in 1938. See id.
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A. Lopez v. United States: Judicial Outlier or Compelling Precedent
Many commentators, including my colleague and co-author, will
praise Morrison and its return to a substantive jurisprudence under the
Commerce Clause.22 It is especially important, however, for those favoring this return to justify Chief Justice Rehnquist’s decision to fold his
majority opinion into extant Commerce Clause jurisprudence while
largely ignoring - even overruling - that same law.
While this assertion rings of hyperbole, it seems also to be an accurate
account of the majority’s opinion in Morrison. In fact, the majority and
dissenting opinions agree on the applicable law. Both sides agree that
“Congress has the power to legislate with regard to activity that, in the
aggregate, has a substantial effect on interstate commerce.”23 However,
the majority argues that the civil action provision of the VAWA24 represents an unconstitutional exercise of congressional power while the minority asserts that the VAWA regulates activity that substantially affects
interstate commerce. With one exception, both sides cite the same precedents to defend their opinions. The one exceptional precedent, U.S. v.
22. Although their prescriptions regarding the scope of such review may differ,
many other commentators have expressed an uneasiness about Congress’ plenary
authority and have called for the Supreme Court to delimit Congress’ Commerce
Clause powers. See, e.g., RAOUL BERGER, FEDERALISM: THE FOUNDERS’ INTENT
(1987); ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION
OF THE LAW (1990); Jenna Bednar & William N. Eskridge, Jr., Steadying the Court’s
“Unsteady Path”: A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L.
REV. 1447 (1995); Steven G. Calabresi, “A Government of Limited and Enumerated
Powers”: In Defense of United States v. Lopez, 94 MICH. L. REV. 752 (1995); Richard A. Epstein, Constitutional Faith and the Commerce Clause, 71 NOTRE DAME L.
REV. 167 (1996); Barry Friedman, Valuing Federalism, 82 MINN. L. REV. 317
(1997); Stephen Gardbaum, Rethinking Constitutional Federalism, 74 TEX. L. REV.
795 (1996); Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz
and Principle?, 111 HARV. L. REV. 2181 (1998); Lewis B. Kaden, Politics, Money
and State Sovereignty: The Judicial Role, 79 COLUM. L. REV. 847 (1979); William
Marshall, American Political Culture and the Failures of Process Federalism, 22
HARV. J.L. & PUB. POL’Y 139 (1998); Deborah Jones Merritt, Three Faces of Federalism: Finding a Formula for the Future, 47 VAND. L. REV. 1563 (1994); H. Geoffrey Moulton, Jr., The Quixotic Search for a Judicially Enforceable Federalism, 83
MINN. L. REV. 849 (1999); William Van Alstyne, The Second Death of Federalism,
83 MICH. L. REV. 1709 (1985); John Yoo, The Judicial Safeguards of Federalism, 70
S. CAL. L. REV. 1311 (1997).
23. Morrison, 120 S. Ct. at 1759. Chief Justice Rehnquist cites both U.S. v.
Lopez, 514 U.S. 549, 560-61 (1995), and Wickard, 317 U.S. at 128, in Morrison.
See Morrison, 120 S. Ct. at 1749-50. Lopez reaffirmed the Wickard “aggregated
effects” holding. 514 U.S. at 561. Likewise, Justice Souter relied on the principles
of Wickard and subsequent decisions in Morrison: “Our cases, which remain at least
nominally undisturbed, stand for the following proposition[:] Congress has the
power to legislate with regard to activity that, in the aggregate, has a substantial
effect on interstate commerce.” Morrison, 120 S. Ct. at 1759.
24. See supra note 23 and accompanying text.
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Lopez,25 is the cornerstone of the majority’s decision in Morrison. Lopez
is the only case in modern Supreme Court jurisprudence, with one
ephemeral exception,26 to limit congressional authority under the Commerce Clause.
In Lopez, Chief Justice Rehnquist, the author of the majority opinion,
traces Commerce Clause jurisprudence from its inception, but focuses on
the last sixty years since NLRB v. Jones & Laughlin Steel Corp.27 In
Jones & Laughlin Steel, the Court abandoned its efforts to differentiate
those activities that directly affected interstate commerce from those that
did not, and acknowledged Congress’ power to regulate intrastate activities that “have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions . . . .”28 The culmination of this
reasoning came only four years later in Wickard v. Filburn,29 a seminal
case in Commerce Clause jurisprudence, a focal point of Chief Justice
Rehnquist’s majority decision in Lopez30 and, according to the Chief
Justice, “perhaps the most far reaching example of Commerce Clause
authority over intrastate commerce . . . .”31
In Wickard, the Court held that interstate commerce extends to a small
Ohio farmer’s production and consumption of wheat.32 In his majority
opinion in Lopez, Chief Justice Rehnquist included the following quote
from Wickard:
[E]ven if appellee’s activity be local and though it may not be regarded
as commerce, it may still, whatever its nature, be reached by Congress
if it exerts a substantial economic effect on interstate commerce, and
this [is] irrespective of whether such effect is what might at some earlier time have been defined as “direct” or “indirect.” 33
Chief Justice Rehnquist went on to cite Wickard’s most famous passage — that which essentially defined Congress’ power to regulate inter-
25. 514 U.S. 549 (1995).
26. See National League of Cities v. Usery, 426 U.S. 833 (1976) (holding that
states did not have to comply with the minimum wage provisions of the Fair Labor
Standards Act). Nine years later, however, in Garcia v. San Antonio Metro. Transit
Auth., 469 U.S. 528 (1985), the Court rejected Usery and resurrected the judicial
deference, rational basis test.
27. 301 U.S. 1 (1937).
28. Id. at 37; see also Lopez, 514 U.S. at 555.
29. 317 U.S. 111 (1942).
30. Rehnquist’s majority opinion in Lopez attempts to reconcile its decision to
hold the GFSZA unconstitutional while retaining the principles of Wickard. See
Lopez, 514 U.S. at 556-61.
31. Lopez, 514 U.S. at 560.
32. Wickard, 317 U.S. at 128-29.
33. Lopez, 514 U.S. at 556 (quoting Wickard v. Filburn, 317 U.S. 111, 125
(1942)).
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state commerce as plenary — when he acknowledged in Lopez that the
aggregated effect of the activity must have a substantial effect on interstate commerce.34 Quoting Lopez and Wickard: “although Filburn’s own
contribution to the demand for wheat may have been trivial by itself, that
was not ‘enough to remove him from the scope of federal regulation
where, as here, his contribution, taken together with that of many others
similarly situated, is far from trivial.’”35
Jones & Laughlin Steel and Wickard signaled a fundamental change in
the way the Supreme Court reviewed Congress’ power under the Commerce Clause. Instead of determining whether the activity Congress
sought to regulate affected interstate commerce directly or indirectly36 or
affected other aspects of interstate commerce,37 the Court chose a decidedly more deferential path in which its review would be limited to an
inquiry consistent with Wickard: if the aggregated effect of the regulated
activity — commercial or non-commercial — substantially affects interstate commerce, then Congress enjoys the power under the Commerce
Clause to regulate it. In sixty years of Commerce Clause jurisprudence,
involving cases in which Congress sought to regulate areas as diverse as
minimum wage,38 the environment,39 and civil rights,40 the Court deferred to congressional authority.
In Lopez, the Supreme Court raised uncertainty among courts and
34. Id. (quoting Wickard v. Filburn, 317 U.S. 111, 127-28 (1942)).
35. Id.
36. That period in which the Supreme Court attempted to differentiate between
areas that Congress could and could not regulate under the Commerce Clause was
notable for its uncertainty. For example, in A.L.A. Schechter Poultry Corp. v. United
States, 295 U.S. 495 (1935), the Court held that fixing the hours and wages for intrastate companies only indirectly affected interstate commerce and was therefore an
unauthorized extension of congressional authority. Id. at 551. Rehnquist noted the
uncertainty arising from this direct - indirect distinction in Lopez. See Lopez, 514
U.S. at 554-55.
37. See generally United States v. E.C. Knight, 156 U.S. 1 (1895) (holding that
activities such as production, manufacturing and mining do not implicate interstate
commerce). Like A.L.A. Schechter, this case, according to Rehnquist’s majority
opinion in Lopez, is an example of the tenuous and unworkable distinctions created
by the court to delimit congressional authority. Lopez, 514 U.S. at 554.
38. See generally Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528
(1985) (holding that Congress’ application of the minimum wage provisions of the
Fair Labor Standards Act to the City of San Antonio was a constitutional exercise of
Congress’ powers under the Commerce Clause).
39. See generally Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,
452 U.S. 264 (1981) (holding the Surface Mining Control and Reclamation Act of
1977 to be a proper exercise of congressional authority).
40. See generally Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241
(1964) (extending anti-discrimination provisions of the Civil Rights Act of 1964 to
regulate motels in Atlanta, Georgia); Katzenbach v. McClung, 379 U.S. 294 (1964)
(extending the same provisions to Ollie’s Barbeque in Birmingham, Alabama).
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commentators about Commerce Clause jurisprudence41 by holding that
the federal Gun-Free School Zones Act of 199042 (GFSZA) represented
an unconstitutional exercise of congressional power under the Commerce
Clause.43 Chief Justice Rehnquist’s majority opinion in Lopez varied
from the traditional and deferential treatment accorded congressional
authority to regulate interstate commerce. Stating that the GFSZA, a
criminal statute, “has nothing to do with ‘commerce’ or any sort of economic enterprise,”44 the majority held that the Court cannot sustain the
law “under our cases upholding regulations of activities that arise out of
or are connected with a commercial transaction, which viewed in the
aggregate, substantially affects interstate commerce.”45 The insistence by
the majority in Lopez that the congressional power under the Commerce
Clause applies only to activities that “arise out of or are connected with a
commercial transaction,” while certainly not semantically revolutionary,
established an additional doctrinal condition to congressional power.46
Remaining uncertain, at least until the Court’s decision in Morrison, was
how this condition might affect federal laws aimed at arguably noncommercial activities such as discrimination and land use restrictions.
In fact, Congress’ power to enact civil rights legislation raised questions similar to those raised in the VAWA, especially in light of Congress’ effort to cast the protective net of the public accommodations provisions of the Civil Rights Act of 196447 (CRA) as broadly as possible.48
41. Uncertainty has been the most important by-product of Lopez. On the one
hand, courts have, until recently been reluctant to limit congressional authority because of the case. See, e.g., United States v. Wall, 92 F.3d 1444, 1448-49 (6th Cir.
1996) (noting numerous cases in which courts chose not to use Lopez to limit congressional authority). Lower federal courts, on the other hand, have exhibited uncertainty about whether Lopez renders the VAWA unconstitutional. See Doe v. Doe,
929 F. Supp. 608, 617 (D. Conn. 1996) (holding the VAWA to be proper exercise of
Congress’ authority under the Commerce Clause). However, the Fourth Circuit
Court of Appeals held that Christy Brzonkala’s VAWA claim was unconstitutional
under the Commerce Clause. See Brzonkala v. Virginia Polytechnic Inst. & State
Univ., 169 F.3d 820, 889 (4th Cir. 1999). See generally Parker Douglas, The Violence Against Women Act and Contemporary Commerce Power: Principled Regulation and the Concerns of Federalism, 1999 UTAH L. REV. 703, 704-08 (discussing
the implications of Lopez).
42. 18 U.S.C. § 922(q)(1)(A) (1990).
43. See Lopez, 514 U.S. at 549.
44. Lopez, 514 U.S. at 561.
45. Id.
46. Id. at 561-62. Chief Justice Rehnquist insists that the condition requiring that
the activity be commercial or economic has implicitly accompanied the substantial
effects test, claiming that it is consistent with the facts of every case decided under
this test. See infra notes 120-144 and accompanying text.
47. See 42 U.S.C. § 2000a (1999). Section 2000a(a) reads: “[a]ll persons shall
be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race,
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Like the VAWA, CRA created and enforced civil rights through civil
actions and prohibited discrimination - a decidedly non-economic/noncommercial endeavor - by parties operating in interstate commerce. By
extending the application of the CRA to entities like Ollie’s Barbecue49
and Heart of Atlanta Motel, Inc.,50 the United States Supreme Court emphasized its allegiance to the principles first set out in Jones & Laughlin
Steel and Wickard. Discrimination may not be an economic or commercial activity; however, through the aggregated effects of discrimination
by public accommodations, such restaurants and hotels had a substantial
impact on interstate commerce, and Congress was within its constitutional authority to adopt such laws.51 Lopez’s suggestion that the governed
activity be commercial casts doubt on these civil rights decisions and the
ability of Congress to regulate areas of social, rather than commercial or
economic concerns.52
The majority in Lopez also left uncertain whether congressional findings that link a particular law to interstate commerce are relevant in the
Court’s decision about the law’s constitutionality. The Court stated that
it would consider such findings, but that “Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce.”53 The fact that congressional findings on
the GFSZA were virtually nonexistent might have been, in the view of
some commentators, instrumental in convincing the Court that posses-
color, religion, or national origin.” Id.
48. Congress drafted these provisions such that they would reach as far as is
constitutionally permissible. “Each of the following establishments which serves the
public is a place of public accommodation within the meaning of this subchapter if
its operations affect commerce . . . .” Id. at § 2000a(b).
49. See Katzenbach v. McClung, 379 U.S. 294 (1964). See infra notes 127-132
and accompanying text.
50. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964).
51. See infra Part III and accompanying notes. Part III examines in some detail
the economic or commercial nature of the activity Congress seeks to regulate and its
inclusion as a condition to congressional authority under the Commerce Clause.
52. In his dissent in Lopez, Justice Souter challenged the commercial - noncommercial distinction based on its uncertainty:
The distinction between what is patently commercial and what is not looks
much like the old distinction between what directly affects commerce and what
touches it only indirectly. And the act of c alibrating the level of deference by
drawing a line between what is patently commercial and what is less purely so
will probably resemble the process of deciding how much interference with co ntractual freedom was fatal. Thus, it seems fair to ask whether the step taken by
the Court today does anything but portend a return to the untenable jurispr udence from which the Court extricated itself almost 60 years ago.
Lopez, 514 U.S. at 608 (Souter, J., dissenting).
53. Lopez, 514 U.S. at 562.
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sion of a gun in a school zone bore little on interstate commerce.54 The
Court did suggest that such a finding might “enable” the justices “to
evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect
was visible to the naked eye.”55 The Court’s recognition of the importance of legislative findings is significant because of the massive data
used by Congress in support of the VAWA, linking violence against
women to interstate commerce.56
B. United States v. Morrison
Of course, Lopez inspired many commentaries, especially in relation
to its effect on the VAWA’s constitutionality. Most of these commentaries were cautiously optimistic that Lopez represented a precedential
outlier57 and that the VAWA could weather a constitutional challenge.58
Although it may be constitutionally suspect under Lopez’s commercial/non-commercial criteria, the VAWA appeared to meet the pre-Lopez
requirement that the aggregated effect of violence against women has a
substantial effect on interstate commerce.59 Coupled with voluminous
hearings establishing this connection60 and bipartisan support in both
54. See Biden, supra note 18, at 20 (claiming that congressional findings, in this
case as they relate to the VAWA, are entitled to judicial deference and that there
were no such findings in Lopez); see also Douglas, supra note 41, at 719-20 (suggesting that the lack of findings in Lopez contributed to the Court’s decision to hold
the GFSZA unconstitutional); Comment, Recent Cases: Constitutional Law - Commerce Clause - Fourth Circuit Rules That Violence Against Women Act Is an Unauthorized Exercise of Congressional Authority - Brzonkala v. Virginia Polytechnic
Inst. & State Univ., 113 HARV. L. REV. 816 (2000) (differentiating the VAWA from
the GFSZA based on extensive congressional findings supporting the former and
none supporting the latter).
55. Lopez, 514 U.S. at 562.
56. Justice Souter’s dissent in Morrison provides a fairly comprehensive coverage of the breadth of congressional findings preceding the passage of the VAWA.
See Morrison, 120 S. Ct. at 1760-61 nn.2-8.
57. See Douglas, supra note 41, at 706 (stating that “in the four years since the
Lopez decision, the [Supreme] Court has denied certiorari on every case implicating
the Commerce Clause”); see also Deborah Jones Merritt, Commerce!, 94 MICH. L.
REV. 674, 713-30 (1995) (suggesting that Lopez’s effect on Commerce Clause jurisprudence, based on subsequent cases, is modest).
58. See supra note 18 (noting, with two exceptions - McTaggert and Nelson &
Pushaw - those works arguing that Morrison would withstand the constitutional
challenge notwithstanding Lopez); see also Recent Cases, supra note 54.
59. The crux of this argument is that the pre-Lopez principle of judicial deference
to congressional decisions under the Commerce Clause clearly supports the VAWA.
Part IV develops this notion of political federalism more fully. See infra Part IV and
accompanying notes.
60. See Morrison, 120 S. Ct. at 1760-62 nn.2-8 (Souter, J., dissenting) (providing
a general idea of the scope of congressional findings supporting the passage of the
VAWA).
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houses of Congress,61 the VAWA appeared to overcome the constitutional shortcomings of the GFSZA and to invite judicial deference to
Congress in this area.
Chief Justice Rehnquist and the five-justice majority, however, held
that the VAWA, like the GFSZA, represented an impermissible extension by Congress of its authority under the Commerce Clause.62 Relying
primarily on the principles set out in Lopez, the majority opinion stated
that the VAWA’s constitutionality under the Commerce Clause depends
on reasoning that essentially implicates all activities as interstate insofar
as their aggregated impact substantially affects interstate commerce.63
Addressing Congress’ defense of the VAWA, the majority voiced its
reservations about this reasoning:
[This] reasoning . . . 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.64
According to the majority, this interpretation of interstate commerce
would also allow Congress to regulate other activities, even “family law
and other areas of traditional state regulation.”65 Quoting Lopez, Chief
Justice Rehnquist reiterated the Court’s ability to delineate Congress’
power under the Commerce Clause:
Simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so. 66
Rather, whether 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
61. See 1994 U.S.C.C.A.N. 1801; see also Victoria F. Nourse, Where Violence,
Relationship, and Equality Meet: The Violence Against Women Act’s Civil Rights
Remedy, 11 WIS. WOMEN’S L.J. 1 (1996) (providing a detailed history of the passage
of the VAWA and its civil rights provision).
62. See Morrison, 120 S. Ct. at 1751. Chief Justice Rehnquist had expressed
concerns about the VAWA’s civil action provision before Congress passed its final
version of the law. See 138 CONG. REC. S443-44 (Jan. 27, 1992). In a 1991 yearend report, the Chief Justice stated that the Act’s “new private right of action [is] so
sweeping, that the legislation could involve the federal courts in a whole host of
domestic relations disputes.” Id. at S444.
63. See Morrison, 120 S. Ct. at 1752-53.
64. Id.
65. Id. at 1753.
66. Id. at 1752 (quoting United States v. Lopez, 514 U.S. 549, 557 n.2 (1995)).
This language first appeared in Hodel v. Virginia Surface Mining & Reclamation
Ass’n., 452 U.S. 264, 311 (1991) (Rehnquist, C.J., concurring).
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be settled finally only by this Court. 67
Neither the extensive hearings and reports which linked violence
against women to interstate commerce68 nor the decisive and nonpartisan congressional support for the VAWA69 convinced the majority.
In fact, Chief Justice Rehnquist tersely handled the predictions by some
that Congress’ painstaking efforts to demonstrate the importance of national action in this area might tip the balance in favor of the VAWA.70
The majority opinion states that these hearings “are substantially weakened” by the but-for causal reasoning previously noted71 and that “the
existence of congressional findings is not sufficient, by itself, to sustain
the constitutionality of Commerce Clause legislation.”72
As in Lopez, the crux of the majority’s decision in Morrison was the
non-commercial or non-economic nature of the activity regulated in the
VAWA, namely, criminal violence against women:
Gender-motivated crimes of violence are not, in any sense of the
phrase, economic activity. While we need not adopt a categorical rule
against aggregating the effects of any non-economic activity in order to
decide these cases, thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that
activity is economic in nature. 73
The majority’s ostensibly benign requirement that the activity Congress seeks to regulate include some commercial/economic nexus certainly appears to conform with the clause’s language.74 How might any
reasonable person argue that interstate commerce includes noncommercial and non-economic activity? Even tomato growing for home
consumption, like wheat growing in Wickard,75 is commercial or eco-
67. Id. (quoting United States v. Lopez, 514 U.S. 549, 557 n.2 (1995)). This
quote first appeared in Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241,
273 n.2 (1964) (Blair, J., concurring).
68. See supra note 62 and accompanying text.
69. See id.
70. The primary impediment to Congress’ passage of the VAWA’s civil action
provision was its constitutionality and effect on federalism. For the legislative history of the VAWA, see supra note 62. For a sampling of accounts of the VAWA’s
slow passage through the legislative process, especially as this relates to issues of its
constitutionality, see Biden, supra note 18, at 11-15; Douglas, supra note 41, at 70813; Nourse, supra note 61, at 18-36.
71. Morrison, 120 S. Ct. at 1752.
72. Id.
73. Id. at 1751.
74. Congress’ power to regulate interstate “commerce” would certainly suggest
such an interpretation. However, over two hundred years of interpretation might
suggest otherwise. The ability of Congress to regulate non-commercial or noneconomic activities or settings and the Supreme Court’s willingness to allow such
regulation are the subjects of Part III. See infra Part III and accompanying notes.
75. See generally Wickard v. Filburn, 317 U.S. 111 (1942).
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nomic insofar as the aggregate effect of such activity affects the market
for tomatoes purchased from all other sources.76 The majority opinion in
Morrison states that this requirement is common in each of the modern
Commerce Clause cases since Jones & Laughlin Steel and is the essential
missing element in Lopez77 and Morrison.78 Gun possession in a school
zone and criminal violence against women are not only non-commercial
and non-economic activities, but are also activities that states, not the
federal government, have regulated. Instead of creating a new requirement delimiting congressional authority, the majority, according to Chief
Justice Rehnquist, is simply clarifying a requirement common to all
modern Commerce Clause case law and holding that both the GFSZA
and the VAWA violate this requirement.
C.
Morrison and Lopez Represent Significant Shifts in Commerce
Clause Jurisprudence
As convincing as the majority’s argument may seem, I believe Lopez
and Morrison are disingenuous departures from the rules of law, rely on
unworkable distinctions not entirely unlike those that haunted the Court
before Jones & Laughlin Steel, and represent a dangerous shift in the
balance of power from Congress to the Supreme Court. Parts III and IV
address the majority’s unworkable distinctions and the balance of power
shift, respectively. However, even the most adamant detractors will admit that the language of Commerce Clause jurisprudence - activity that,
when aggregated, has a substantial effect on interstate commerce - might
include gun possession in a school zone and violent acts against women.
That such interpretations might implicate even the most local activity as
within the regulatory authority of Congress is precisely the point.79 The
76. In his majority opinion in Lopez, Chief Justice Rehnquist emphasized this
point: “Even Wickard, which is perhaps the most far reaching example of Commerce
Clause authority over intrastate activity, involved economic activity in a way that the
possession of a gun in a school zone does not.” Lopez, 514 U.S. at 560.
77. The majority opinion states that the Court has “upheld a wide variety of
Congressional Acts regulating intrastate economic activity . . . ,” and that the “pattern is clear.” Lopez, 514 U.S. at 559-60. “Where economic activity substantially
affects interstate commerce, legislation regulating that activity will be sustained.”
Id. at 560.
The Lopez majority furnished a less precise explanation for its holdings in Katzenbach v. McClung, 379 U.S. 294 (1964) and Heart of Atlanta Motel Inc. v. United
States, 379 U.S. 241 (1964) in which the Court held that Congress may constitutionally regulate the non-economic activity of discrimination except to suggest that Congress may regulate non-economic activities that occur in economic settings. See id.
Part III examines the Court’s effort to reconcile Lopez and Morrison with these two
civil rights cases. See infra Part III and accompanying notes.
78. Morrison, 120 S. Ct. at 1749-55.
79. I will argue that it is irrelevant for the Supreme Court to identify that activity
or setting that is sufficiently “local” to be outside of Congress’ regulatory authority
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single most important unifying theme of Commerce Clause jurisprudence
during the last sixty years has been the Court’s willingness to defer these
decisions to Congress. If that institution establishes a rational link between the activity it wishes to govern and interstate commerce, then the
Court’s job is finished. Between Jones & Laughlin Steel and Lopez, every Supreme Court decision80 reviewing congressional power under the
Commerce Clause supported judicial deference.81
Until Morrison, commentators differed remarkably on the doctrinal
significance of Lopez. Drawing from its obvious departure from Commerce Clause jurisprudence, many viewed the case as relatively insignificant, attributing its holding to Congress’ failure to effectively identify
the intersection between the GFSZA and interstate commerce.82 Others
discounted the case even more, claiming that the Court had not tampered
with a single congressional act since Lopez.83 Finally, others believed
that Lopez signaled a new era of Commerce Clause jurisprudence in
which the Court might review congressional actions more rigorously.84
Morrison firmly establishes a new jurisprudence, but one that relies on
semantic distinctions that are both inconsistent with existing Commerce
Clause jurisprudence and evocative of pre-Jones & Laughlin Steel principles that even the Court acknowledged as unworkable.85 The explicit
and we should use the political processes to discourage Congress from reaching into
areas that states are more capable of regulating. See infra Part IV and accompanying
notes.
80. The one exception, noted earlier, was National League of Cities v. Usery,
426 U.S. 833 (1976), which was overruled by Garcia v. San Antonio Metropolitan
Transit Authority, 469 U.S. 528, (1985).
81. In his dissent in Morrison, Justice Souter noted this and that the majority
opinion left the principle of deference “nominally undisturbed.” Morrison, 120 S.
Ct. at 1759. Justice Souter states: “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
the soundness but simply for the rationality of concluding that a jurisdictional basis
exists in fact.” Id. at 1760.
82. See supra note 18 (citing authors who attribute the Court’s decision in Lopez,
at least partially, to the absence of findings supporting Congress’ decision to adopt
the GFSZA).
83. See supra note 41.
84. See Calabresi, supra note 22. For those prescribing a more rigorous review
of congressional decisions by the Supreme Court, see supra note 41.
85. In Lopez, Chief Justice Rehnquist suggested that the Court’s pre-Laughlin
efforts to restrict congressional authority were misguided:
Jones & Laughlin Steel, Darby [United States v. Darby, 312 U.S. 100 (1940)],
and Wickard ushered in a new era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause. In
part, this was a recognition of the great changes that had occurred in the way
business was carried on in this country. Enterprises that had once been local or
at most regional in nature had become national in scope. But the doctrinal
change also reflected a view that earlier Commerce Clause cases artificially h ad
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commercial/non-commercial and economic/non-economic distinctions
appeared first in Lopez, reappeared in Morrison, but have been, according to the Morrison majority, implicit constitutional conditions on congressional action for sixty years. In fact, the commercial/economic requirement was more invisible than implicit until the Rehnquist Court
decided to re-establish judicial authority and review with new standards.
Based on pre-Lopez principles, the majority could easily have decided in
favor of congressional authority in both cases. Rather, it chose both to
establish this tenuous distinction and to suggest that its holdings in Lopez
and Morrison square with Wickard, Jones & Laughlin Steel and other
cases that have defined recent Commerce Clause jurisprudence. Those
of us who support that jurisprudence might ask that the Court, at the very
least, admit that layering its commercial/economic activity standard onto
existing law essentially overrules Congress’ plenary Commerce Clause
authority. Part III develops this idea more thoroughly.
COUNTERPOINT 1
I come to praise United States v. Morrison, not to whine about it.86
The Court has not constructively overruled sixty years of workable law
on the Commerce Clause. The Court has actually overruled sixty years
of law professors’ assumptions about the Commerce Clause. We had
been so arrogant in our assumptions about “it is all commerce,” that we
failed to think through the potential usurpations of power by the federal
government or the commercial nature inherent in the Commerce Clause.
Actually and constructively, there has not been an overruling as much as
there has been a long overdue halt to the judicially sanctioned stampede
by the federal legislative branch over the Commerce Clause. My esteemed colleague perceives a complete reversal of precedent.87 The
constrained the authority of Congress to regulate interstate commerce.
Lopez, 514 U.S. at 556.
86. The author paraphrases Shakespeare, thus throwing down not just the jurisprudential gauntlet, but the literary one as well. See WILLIAM SHAKESPEARE, JULIUS
CAESAR, act 3, sc. 2.
87. It is not so much an overruling as an overworking. Or, perhaps it is more of
a refinement of the unworkable. No sense hanging onto the unworkable. The term
“unworkable” as used here carries no labor or Commerce Clause connotation.
Through Lopez, 514 U.S. 549 (1995), and Morrison, 120 S. Ct. 1740 (2000), the
Court simply faces for the first two times the inevitable and unconstitutional expansion that Wickard et. al. would spawn. The realization of diminishing state rights
and increasing federalism and their offense to both the Framers and their Constitution came to at least five members of the Court. Morrison was the beginning of a
flood for which the Constitution and Court served as the protective dyke. If Congress was permitted this expansion of Commerce Clause power, there would be no
further limitations and Congress, as noted, could step into the many traditional, ex-
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Court’s decision is not as dramatic as Professor Razook represents nor
does it create the confusion advocated by my colleague.88
Rather, Morrison deserves praise for its return to constructionist jurisprudence as well as its recognition of constitutional language, history and
purpose. There are several key points to the Rehnquist majority opinion
that respond to the Razook challenge to explain how one can reverse a
doctrine even while embracing it.89
A. Principle One of the Rehnquist Opinion: Congress Must Have Authority to Enact Legislation
“The powers of the legislature are defined and limited; and that those
limits may not be mistaken, or forgotten, the constitution is written.” 90
As the Founding Fathers envisioned, the institution responsible for reminders on congressional authority and the limitations thereon is the
judicial branch.91 This separation of powers concept has been difficult
for Congress, presidents, first-year law students, and my colleague to
understand.92 The Morrison case is hardly the first time the Court has
questioned and limited congressional authority since the days of Franklin
Delano Roosevelt.93 United States v. Lopez94 was the beginning of the
clusive and clearly local provinces of state jurisdiction such as family law. See infra
note 110 and accompanying text.
88. Truly, Professor Razook’s musings lead one to believe that the scales of justice have been the victim of a mugging. To paraphrase Eliza Dolittle the flowers
will still bloom without the VAWA and a Commerce Clause that knows no limits.
89. See, e.g., the upholding of the Establishment Clause while ignoring religious
freedom, i.e., the exercise part of the First Amendment. The United States Supreme
Court’s work on this issue in the latest term was Santa Fe Indep. Sch. Dist. v. Doe,
120 S. Ct. 2266 (2000), and apparently the Founding Fathers intended to outlaw God
in conjunction with the gridiron as the Court declared voluntary prayer at a Texas
high school football game was unconstitutional.
90. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).
91. Congress can assert and state its authority, but the Court gives the final stamp
of approval, badge of authority, imprimatur . . . the author will stop, metaphorically,
and otherwise. As the Court noted in A.L.A. Schechter Poultry Corp. v. United
States, 295 U.S. 495 (1935), the justification for the distinction between intrastate
and interstate activities was understandable, the justification for this formal distinction was rooted in the fear that otherwise “there would be virtually no limit to the
federal power and for all practical purposes we should have a completely centralized
government.” Id. at 548.
92. See MICHEAL NOVAK, BUSINESS AS A CALLING 90-95 (1996) for a discussion
of checks and balances and the inherent power grabs that accompany human nature.
Novack perhaps summed it up well when he noted that the motto of our country is
“In God We Trust;” everybody else gets checks and balances.
93. It is fascinating to read Souter’s veiled reference to the infamous Courtpacking plan that FDR pulled when the Court kept striking down his new deal legislation. As if referring to a morally dark period in history, Souter mentions the Courtpacking plan in the form of a reminder without really saying what happened as if
such a period in history is too painful to describe, “[w]hy is the majority tempted to
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Court’s refinement of the Commerce Clause.95
B. Principle Two of the Rehnquist Opinion: Commerce Clause Precedent Does Suggest Limitations
Chief Justice Rehnquist begins with a discussion of the three broad
categories96 for congressional regulation under the Commerce Clause so
that he may appropriately narrow the focus of the Court’s analysis:97
1. Congress may regulate the channels of commerce;98
2. Congress is empowered to regulate instrumentalities of interstate
commerce, even though the issue or threat lies with intrastate activities;99
3. Congress may regulate activities with a substantial effect on interstate commerce.100
Since no party argued that type one or two cases applied the Court eas-
reject the lesson so painfully learned in 1937?” Morrison, 120 S. Ct. 1740, 1767
(2000).
94. 514 U.S. 549 (1995). However, Chief Justice Rehnquist noted in Lopez that
the Commerce Clause limitations have always been clear in the Court’s decisions:
In Jones & Laughlin Steel, the Court warned that the scope of the interstate
commerce power “must be considered in the light of our dual system of gover nment 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 soc iety, would effectually obliterate the distinction between what is national and
what is local and create a completely centralized government.”
Lopez, 514 U.S. 549, 557 (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S.
1, 37 (1937)).
95. It was not until Lopez that the Court was faced with a non-business issue
Commerce Clause case. See supra notes 22-35 and accompanying text. My colleague points to loan-sharking as an example of a friendly, neighborhood activity.
Loan-sharking is a friendly neighborhood activity, but affects the lending market, is
a commercial, albeit entrepreneurial and, generally, small, business activity. And
most borrowers under loan-sharking schemes do end up in interstate commerce, i.e.,
fleeing their neighborhoods or floating in interstate bodies of water. See, e.g., The
Sopranos (HBO cable television broadcast). For more compelling Commerce
Clause authority than HBO, see Perez v. United States, 402 U.S. 146 (1971).
96. The three categories are noted here in a very elementary sense, for my colleague tends to cross these philosophical and precedential streams in his segment on
the political nature of judicial constitutional review.
97. Some might attribute the stunning expansion of congressional authority following Hammer v. Dagenhart, 247 U.S. 251 (1918), which invalidated the regulation of activity with only “indirect” effect on interstate commerce, to the Court’s fear
of national humiliation, see Souter’s sly reference supra note 93, but the expansion
did have its grounding in logic and was all part of a complex and evolved precedent.
See infra notes 115-19 and accompanying text.
98. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1964);
see also United States v. Darby, 312 U.S. 100, 113 (1941).
99. See Southern R.R. Co. v. United States, 222 U.S. 20, 26-27 (1911).
100. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937).
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ily dismissed these theories on congressional jurisdiction.101 The petitioner’s request was to validate the VAWA with a finding that Congress
was regulating an activity with a substantial affect on interstate commerce.102
With this narrowing of the scope of the judicial inquiry, the majority
cites Lopez103 as its precedent. The distinguishing factor in Lopez is that
the GFSZA104 enacted by Congress was a criminal statute with no ties to
an economic enterprise.105 It is with this area of the decision that Justice
Souter and my colleague lose sight of precedent. Both Justice Souter and
Nim rely on Heart of Atlanta Motel, Inc.106 to conclude that “[w]here
economic activity substantially affects interstate commerce, legislation
regulating that activity will be sustained.”107 However, a “fair reading” of
Lopez clearly establishes that the “non-economic, criminal nature of the
conduct at issue was central to [the] decision . . . .”108
The Morrison Court thus draws a line on the Commerce Clause authority based on the constitutional limitations necessary to resolve the
“blurring” of congressional authority, and rejects a “but-for” analysis of
congressional authority on interstate commerce as too broad for the intended constitutional limitations.109 Noting that under such but-for reasoning:
Congress could regulate any activity that it found was related to the
economic productivity of individual citizens: family law (including
marriage, divorce, and child custody) for example. Under the[se] theo-
101. Again, however, one cannot lump together the theories, bringing in examples
from categories one and two to justify political action in type three cases.
102. See Morrison, 120 S. Ct. at 1749. Further, the Court, via Chief Justice
Rehnquist, has no quibble with this approach. All agree that the correct constitutional issue focuses on type three cases. The defining of “substantial effect” has
created the grief. See id. at 1751.
103. 514 U.S. 549 (1995).
104. 18 U.S.C. § 922(q)(1)(A) (1988).
105. See Lopez, 514 U.S. at 561. Many thought that Lopez might have withstood
judicial scrutiny had Congress made findings of fact regarding the economic impact
of guns in schools. See, e.g., Nicole Huberfield, The Commerce Clause Post-Lopez:
It’s Not Dead Yet, 28 SETON HALL L. REV. 182 (1997); Antony Barone Kolenc,
Commerce Clause Challenges After United States v. Lopez, 50 FLA. L. REV. 867
(1998); Harry Litman & Mark D. Greenberg, Federal Power and Federalism: A
Theory of Commerce-Clause Based Regulation of Traditionally State Crimes, 47
CASE W. RES. L. REV. 921 (1997). In fact, some have proposed that the adequacy of
the congressional findings should control as the basis for Commerce Clause authority in type three cases. See also supra notes 18, 41, and 52.
106. 379 U.S. 241 (1964).
107. Lopez, 514 U.S. at 560.
108. Morrison, 120 S. Ct. at 1750. The Court noted in Lopez that, “[e]ven Wickard, which is perhaps the most far reaching example of Commerce Clause authority
over intrastate activity, involved economic activity in a way that the possession of a
gun in a school zone does not.” Lopez, 514 U.S. at 560.
109. See Morrison, 120 S. Ct. at 1751.
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ries . . . it is difficult to perceive any limitation on federal power, even
in areas such as criminal law enforcement or education where states
historically have been sovereign. Thus, if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an
individual that Congress is without power to regulate. 110
Chief Justice Rehnquist notes that without rejection of but-for reasoning, there is an unworkable result in terms of maintaining the Constitution’s enumeration of powers.111 Further, Chief Justice Rehnquist makes
clear that simply because there is a congressional conclusion of substantial effect on interstate commerce does not make it so.112 Chief Justice
Rehnquist observes that the Court gives great deference to Congress and
its findings but to not review such findings when it is the very basis for
constitutional authority is to abdicate the responsibility of checks and
balances.113 Chief Justice Rehnquist does not substitute judicial factfinding for congressional fact-finding, he only questions the conclusions
reached from those facts, not whether the facts themselves have merit or
are substantiated.114
In other words, the congressional findings for Commerce Clause jurisdiction cannot be data alone. The findings in the VAWA bring nearly a
smirk to the Rehnquist phraseology in his response to the alleged economic ills:
Congress found that gender-motivated violence affects interstate commerce ‘by deterring potential victims from traveling interstate, from
engaging in employment in interstate 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.’115
In response to the tenuous congressional commentary, Chief Justice
Rehnquist notes that “[g]iven these findings and petitioners’ arguments,
110. Id.
111. See id. at 1752. Chief Justice Rehnquist stated, “[u]nder our written Consti-
tution, however, the limitation of congressional authority is not solely a matter of
legislative grace.” Id. at 1753. “[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.” Heart of Atlanta Motel, Inc., 379 U.S at 273.
112. Morrison, 120 S. Ct. at 1752. “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.’” Id. at 1753 (quoting United States v. Lopez, 514 U.S. 549, 557, n.2
(1995)).
113. See id. at 1752.
114. See id.
115. See id. (citing H.R. Conf. Rep. No. 103-711, at 385, U.S. Code Cong. &
Admin. News 1994, pp. 1803, 1853).
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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.”116
The majority opinion’s tone reflects some irritation with the Justice
Souter’s indignation and impetuousness.117 The but-for reasoning Chief
Justice Rehnquist notes causes Justice Souter to ignore the central principle of the constitutional system in the name of a tenuous and aggregated
connection of criminal conduct to commerce.118 The tenuous connection
was attempted via hearings that aggregated the effects of non-economic
activity in order to establish the national (interstate) economic impact.119
III. POINT 2 THE COURT’S ECONOMIC/NON-ECONOMIC
(COMMERCIAL/NON-COMMERCIAL) DISTINCTION IS BOTH AN
UNWORKABLE DISTINCTION AND AN INVITATION TO RETURN TO AD
HOC AND UNCERTAIN COMMERCE CLAUSE JURISPRUDENCE
The basis for holding both the GFSZA and the VAWA unconstitutional in Lopez and Morrison respectively is the decidedly non-commercial
and non-economic nature of the activities Congress sought to regulate in
these acts. Possessing guns in school zones and committing violent acts
against women, the Court states, neither regulate economic activities or
settings, nor impinge upon regulatory areas left traditionally to the
states120 and therefore are not among the enumerated powers of Con-
116. Id.
117. See generally id.
118. See Morrison, 120 S. Ct. at 1752. In a phrase, “That’s a stretch.” The char-
acterization of the Congressional findings and the Court majority’s take on them is
summed up as follows: “We were [C]ommerce-[C]lause complacent. It isn’t all
commerce and there are states’ rights.” Thus, the “overruling,” “abandoning,” and
“utter disregard” of Commerce Clause precedent are figments of commercial and
civil rights doomsayers’ imaginations. What we have in reality is a relatively simple
clarification. There was a neatly carved-out niche in Commerce Clause jurisprudence not directly addressed by the Court until Lopez and now completely clarified
with Morrison would clearly open the floodgates in federal grabs for powers in all
areas that are, constitutionally within the sovereign powers of the states. Mixed metaphors aside, Morrison is as historic as Marbury v. Madison. See supra note 90. The
issues of its uncertainty and workability are discussed under Point 2. See infra notes
120-175.
119. See supra notes 20-85 and accompanying text.
120. See Lopez, 514 U.S. at 557. The traditionally state-governed nature of the
activities Congress seeks to regulate was a sub-text of the Court’s opinions in both
Lopez and Morrison. In Lopez, Rehnquist expressed concern about obliterating “‘the
distinction between what is national and what is local . . . .’” Lopez, 514 U.S. at 557
(quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)). The majority also noted that the GFSZA is the type of criminal law that states, rather than
Congress would traditionally adopt. See id. at 561 n.3. Similarly, in Morrison,
Rehnquist noted that the VAWA’s civil action provision “will not limit Congress to
regulating violence but may. . . be applied equally as well to family law and other
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gress. Allowing Congress to adopt such laws encourages a slippery
slope jurisprudence in which Congress, if it desires, can regulate all activities.121
This is an appropriate interpretation of the law since Jones & Laughlin
Steel. In fact, Part IV will demonstrate that Congress is a better arbiter of
what is interstate commerce than the Supreme Court.122 In Part III, however, I will argue that the Court’s use of these distinctions trades legal
clarity for uncertainty in Commerce Clause jurisprudence.123
A. What Is Commercial or Economic?
The Court seems uncertain about whether the regulated activity must
be commercial or economic. By using the terms economic, commerce,
commercial, economic enterprise and commercial activity interchangeably in Lopez and Morrison, the majority suggests that all who are affected by its decision can fathom its meaning. In fact, those terms are closely related terms.124 However, they are also amenable to different interpretations and will invite the scrutiny of a variety of stakeholders who may
or may not share the Court’s definition. Rather than retaining the relative stability of sixty years of jurisprudence, the Morrison and Lopez
majorities have chosen to parse these terms.125 A five-member majority
of the Court may be able to fashion a workable definition for what is
economic and what is not. It remains to be seen, however, whether this
areas of traditional state regulation since the aggregate effect of marriage, divorce,
and childrearing on the national economy is undoubtedly significant.” Morrison,
120 S. Ct. at 1753.
121. In Lopez, Rehnquist responded to Justice Breyer’s dissenting statement that
schools are commercial activities or settings by stating that Breyer’s “rationale lacks
any real limits.” Lopez, 514 U.S. at 565. According to Rehnquist arguing that possession of a gun in a school zone affects interstate commerce “would pile inference
upon inference in a manner that would bid fair to convert congressional authority
under the Commerce Clause to a general police power of the sort retained by the
States.” Id. at 567. Rehnquist reiterated this point in Morrison. See Morrison, 120
S. Ct. at 1753.
122. See infra notes 176-230 and accompanying text.
123. See infra notes 124-175 and accompanying text.
124. For example, Rehnquist uses the terms “commerce,” “economic enterprise”
and “commercial transaction” in the same paragraph in stating that the GFSZA does
not implicate interstate commerce. See Lopez, 514 U.S. at 561. He then cites commercial/noncommercial, as the operative distinction, but readily admits that this
“may in some cases result in legal uncertainty.” Id. at 566. Later, Rehnquist states
that “[t]he possession of a gun in a local school zone is in no sense an economic
activity that might, through repetition elsewhere, substantially affect any sort of
interstate commerce.” Id. at 567 (emphasis added). In Morrison, Rehnquist often
quotes Lopez and uses these terms interchangeably. See id. at 1740. However, he
relies primarily on the term economic, stating that “[g]ender-motivated crimes of
violence are not, in any sense of the phrase, economic activity.” Id. at 1751.
125. See Morrison, 120 S. Ct. at 1750-51; see also Lopez, 514 U.S. at 561-67.
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new jurisprudence will be any clearer or provide any more direction than
the Court’s definition of the term “obscenity.”126
Consider how the Court can accomplish this task and retain the principles of cases such as Jones & Laughlin Steel, Wickard, Heart of Atlanta
Motel, Inc., and Katzenbach v. McClung.127 In the wake of Lopez and
Morrison, the Court seems to have established the following principle.
For Congress to have the constitutional authority to regulate those areas
that, when aggregated, have a substantial effect on interstate commerce,
either the regulated activity or the setting in which it occurs must be
“economic.”128 Figure One illustrates the Court’s new jurisprudence and
provides tentative examples of those cases falling into each category.
RAZOOK FIGURE ONE
EXAMPLES OF CONGRESSIONAL AUTHORITY
NON-AUTHORITY AFTER U.S. V. MORRISON
(UNDER THE AGGREGATED, SUBSTANTIAL EFFECTS TEST)
A. Economic Activity in an Economic Setting e.g. Price Fixing by
Multi-nationals
C. Non-economic Activity in an
Economic Setting e.g. Race Discrimination by a Hotel
B. Economic Activity in a Noneconomic Setting e.g. Loan
Sharking on the Corner Street
D. Non-economic Activity in a
Non-economic Setting e.g. the
VAWA and Morrison?
The Supreme Court is a formidable body, and the Rehnquist majority
must feel up to the task of delineating economic activities and economic
settings. However, one of Chief Justice Rehnquist’s proffered examples
in Lopez, local loan sharking,129 provides only modest direction. Accord-
126. Justice Stewart attempted to define obscenity by stating, “I shall not today
attempt further to define the kinds of material I understand to be embraced within
that shorthand description; and perhaps I could never succeed in intelligibly doing
so. But I know it when I see it. . . .” Jacobellis v. Ohio, 378 U.S. 184, 197 (1964)
(Stewart, J., concurring).
127. 379 U.S 294 (1964).
128. See Lopez, 514 U.S. at 567; see also Morrison, 120 S. Ct. at 1751. This is
the only reasonable inference one can draw from the majority opinions in Lopez and
Morrison, which hope to maintain the principles of Jones & Laughlin Steel, Wickard, Heart of Atlanta Motel, Inc., and Katzenbach, and to overlay on these principles
the economic/non-economic distinction. The activities at issue in Jones & Laughlin
Steel and Wickard, unfair labor practices and wheat growing, are economic activities. Discrimination, the activities at issue in Heart of Atlanta Motel, Inc., and Katzenbach, is not an economic activity, but ostensibly this activity occurred in economic settings: motels and restaurants. See infra notes 141-155 and accompanying
text.
129. See Lopez, 514 U.S. at 559. See Perez v. United States, 402 U.S. 146 (1971),
in which defendant, Perez, claimed that the Federal Consumer Credit Protection
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ing to the majority, loan sharking is an example of an economic activity130 which may or may not be carried on in a non-economic setting (a
local street corner).131 Or one might view loan sharking as a noneconomic activity (thuggery) carried on in an economic setting, in this
case the greater arena of organized crime.132 In any case, loan sharking,
according to the majority opinions in Lopez and Morrison, falls neatly
within the realm of interstate commerce, thus Congress may regulate this
activity.133
Although it seems fairly simple in actuality this economic/noneconomic distinction is remarkably complex. For example, consider
whether elementary and secondary schools represent economic activity.
Consistent with the majority opinions in Lopez and Morrison, the Court
would likely hold that these schools, public and private, neither undertake economic activity nor present economic settings; therefore, Congress’ effort to proscribe gun possession within a certain distance from
an elementary or secondary school falls outside its enumerated powers.134 Clouding the Court’s reasoning, however, is the common-usage
definition for the term economic and cases such as Heart of Atlanta Motel, Inc.135 and Katzenbach.136 Webster’s Unabridged Dictionary defines
economic to be “of the management of the income expenditures, etc., of
a household, private business, community, or government”137 The primary objective of elementary or secondary education is the management
of the income and expenditures of a government entity, public schools.
This is true whether it is public or private, vocational or pre-collegiate,
cosmetology, science, arts or equestrian school. According to the Lopez
Court’s reasoning, Heart of Atlanta Motel, Inc. and Katzenbach correctly
hold that non-economic activity, racial discrimination, is within the regulatory scope of Congress’ Civil Rights Act because the discrimination
occurred within economic settings, in these cases public accommodations such as hotels and restaurants.138 Hotels and restaurants, according
Act’s provision prohibiting “loan sharking” exceeded Congress’ authority under the
Commerce Clause.
130. Loan sharking is defined as loaning money at usurious rates and using creative means to enforce such loans.
131. In Lopez, Rehnquist cites Perez as an example of an economic activity that
substantially affects interstate commerce. See Lopez, 514 U.S. at 559-60.
132. See Perez, 402 U.S. at 154-56. The Perez court relies heavily on the link
between local loan sharking activities and the pervasive and sinister operations of
organized crime, which is both an interstate and international operation. See id.
133. See Lopez, 514 U.S. at 559; see also Morrison, 120 S. Ct. at 1749.
134. See generally Lopez, 514 U.S. 549 (1995).
135. See generally Heart of Atlanta Motel, Inc., 379 U.S. 241 (1964).
136. See generally Katzenbach, 379 U.S. 294 (1964).
137. WEBSTER’S UNABRIDGED DICTIONARY 574 (2d ed. 1983).
138. See Lopez, 514 U.S. at 559-61. This is an inference based on the language of
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to the Court, carry on economic activities in economic settings.139 The
Court concludes, however, that non-economic activity carried on in economic settings such as hotels and restaurants is within the regulatory
scope of the Commerce Clause but non-economic activity (possession of
a gun) in other economic settings, such as private or public schools, is
not. Although economic nature of schools may be questionable, the
Court’s new Commerce Clause jurisprudence must not only draw these
interpretative lines but must do so in a defensible and coherent manner.
National environmental laws that prohibit certain uses of wetlands by
landowners provide another important test for the Court’s new jurisprudence.140 While the regulated, aggregated activities by landowners to use
their wetlands or plant their crops implicate interstate commerce, and
thus are within Congress’ power to govern, the Court’s economic/noneconomic distinction suggests that the Court is prepared to retrench congressional authority in this area. Does “private” wetlands use represent
an economic activity? Does it occur in an economic setting? Lopez and
Morrison not only raise these questions, but also provide little direction
about answers.141
Lopez. The majority opinion states that “restaurants utilizing substantial interstate
supplies” and “inns and hotels catering to interstate guests” are engaged in interstate
activities. Id. at 559 (internal citation omitted). Congress’ effort to apply the antidiscrimination provisions of the Civil Rights Act of 1964 to these firms is a proper
exercise under the Commerce Clause, apparently because the non-economic activity
of discrimination is occurring in restaurants and motels which are economic settings.
See id. at 559-61.
139. See id.
140. See 33 U.S.C. § 1344 (1992) (requiring a permit to dredge or fill some wetlands). These laws have been controversial, primarily because of the uncertainty
created by the scope and effect of their application. See Randall S. Guttery et al.,
Federal Wetlands Regulation: Restrictions on the Nationwide Permit Program and
the Implications for Residential Property Owners, 37 AM. BUS. L.J. 299 (2000)
(finding a negative effect associated with property having a wetlands designation);
Linda J. Oswald, Property Rights Legislation and the Police Power, 37 AM. BUS.
L.J. 527 (2000) (evaluating property rights legislation in light of its effect on land
use restrictions and the police power).
141. See Lopez, 514 U.S. at 549; Morrison, 120 S. Ct. at 1740. Lopez, however,
did inspire commentary about its effects on land use restrictions involving wetlands.
See Jonathan H. Adler, Wetlands, Waterfowl, and the Menace of Mr. Wilson: Commerce Clause Jurisprudence and the Limits of Federal Wetland Regulation, 29
ENVTL. L. 1 (1999) (noting the potential Commerce Clause issues surrounding wetlands restrictions); David A. Linehan, Endangered Regulation: Why the Commerce
Clause May No Longer Be Suitable Habitat for Endangered Species and Wetland
Regulation, 2 TEX. REV. L. & POL. 365 (1997); Nelson & Pushaw, supra note 18, at
146 (arguing that wetland regulation will likely not be affected by Lopez because
most wetland use is for commercial purposes); Flint B. Ogle, The Ongoing Struggle
Between Private Property Rights and Wetlands Regulation: Recent Developments
and Proposed Solutions, 64 U. COLO. L. REV. 573 (1993) (noting the potential constitutional issues associated with national wetlands laws); Lori J. Warner, The Potential Impact of United States v. Lopez on Environmental Regulation, 7 DUKE ENV. L.
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According to these two cases, reasonable minds simply cannot disagree on one point. Congress has no authority to regulate non-economic
activities occurring in non-economic settings. Violent crimes against
women, according to the Court, fall into this category because neither the
act of violence nor the setting in which it is committed is “economic.”142
Or is it? Many economists would say yes, based on their broad conception of economic behavior. Nobel Laureate, Gary Becker, has made a
career of applying economics principles to “non-economic” subjects,
including family life143 and crime.144 His works demonstrate that the behavioral principles of economics reach into every aspect of life, including the domestic area. Accordingly, the Rehnquist Court might be relying on a distinctly weak, linguistic beast to pull a heavy and burdensome
doctrinal wagon.
B. Unworkable Distinctions
This seems especially so in the case of Morrison and the VAWA.
Thus far, the Court has stated that four years of congressional findings
linking violence against women to interstate commerce, bipartisan support for the VAWA145 and the advocacy of forty-one state Attorney Generals who admitted state laws failed to adequately protect women victimized by violence provide insufficient reason for congressional action.146
Both Morrison and Lopez also embrace decisions like Perez,147 Katzenbach148 and Heart of Atlanta Motel, Inc.149 in which the Court holds that
Congress may regulate actions of a local loan shark, restaurants and motels.150 The Court insists that Congress can regulate loan sharking, either
because it is an economic activity or because it is part of a greater evil,
organized crime, which clearly implicates interstate commerce,151 and
discrimination if it happens in economic settings like restaurants or motels.152 However, the Court holds, neither gun possession nor violent acts
& POL. FORUM 321 (1996) (assessing the impact of Lopez on national wetlands
regulation).
142. See Morrison, 120 S. Ct. at 1750.
143. See GARY S. BECKER, A TREATISE ON THE FAMILY (1991).
144. See ESSAYS IN THE ECONOMICS OF CRIME AND PUNISHMENT (Gary S. Becker
& William M. Landes eds., 1974).
145. See supra note 61 and accompanying text.
146. Senator Joseph Biden, the bill’s author, notes both the sensitivity of Congress
to the issues of federalism arising from the VAWA and the strong support for the bill
by the states’ Attorneys General. See Biden, supra note 18, at n.30.
147. 402 U.S. 146 (1971).
148. 379 U.S. 294 (1964).
149. 379 U.S. 241 (1964).
150. See generally Morrison, 120 S. Ct. 1740; Lopez, 514 U.S. 549.
151. See supra notes 74-78 and accompanying text.
152. See e.g., McClung, 379 U.S. 294; Heart of Atlanta Motel, Inc., 379 U.S. 241.
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against women are economic activities and neither local schools nor universities are economic settings.153 Do the Court’s distinctions here elucidate or obfuscate congressional authority under the Commerce Clause?
The point here is that the Court, claiming little expertise in this area,
must decide on a case-by-case basis whether an activity or setting is sufficiently economic to merit congressional regulation and trades this new
jurisprudence for its more stable and predictable predecessor. Even
though the Court maintains that it is capable of adjudicating the economic nature of activities or settings, it must admit that its assumption of this
obligation is an implicit invitation to all concerned to challenge congressional actions on this basis. While the Jones & Laughlin Steel and Wickard formulation of commerce, granting Congress essentially a plenary
power to make these decisions, is unpalatable to some, even detractors
would admit that this principle is clear. This new judicial federalism will
be ad hoc and dangerously unsettling as it applies to our oldest and most
important constitutional question.154
The key question, therefore, is this: which institution, Congress or the
Supreme Court, is best suited to handle these questions? Part IV argues
that issues of federalism under the Commerce Clause are basically political rather than legal issues and that rational congressional decisions to
link its regulation to interstate commerce ought to be dispositive.155
COUNTERPOINT 2
The Morrison and Lopez decisions are not nearly as irreconcilable as
my worthy adversary alleges. The following table depicts a side-by-side
analysis of two topics of constitutional and unconstitutional federal regulation: child labor and women as victims of violence. Recall that the
Court permitted congressional regulation of child labor,156 but with Morrison, struck down federal regulation of violence against women.157
TABLE ONE
A COMPARISON OF CONGRESSIONAL JURISDICTION
153. See e.g., Lopez, 514 U.S. 549; Morrison, 120 S. Ct. 1740.
154. See H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 VA.
L. REV. 633 (1993).
155. See notes 175-214 and accompanying text.
156. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (upholding
the National Labor Relations Act); see also United States v. Darby, 312 U.S. 100
(1941) (upholding the Fair Labor Standards Act).
157. See Morrison, 120 S. Ct. 1740.
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FACTORS158
A. CHILD LABOR
1. AWFUL AND HORRIBLE
WOMEN AND VIOLENCE
1. AWFUL AND HORRIBLE
2. PERVASIVE
2. PERVASIVE
3. INSUFFICIENT STATE
ACTION
3. INSUFFICIENT STATE
ACTION
4. BUSINESSES WERE
ENGAGING IN THE ACTIVITY
4. MEN ARE ENGAGING IN
THE ACTIVITY
While men may be at work and be violent or women may experience
violence at work, the business is not the actor – the violence is third party
violence.159
Part B of Table One compares the constitutional Civil Rights Act with
the unconstitutional GFSZA.
B. CIVIL RIGHTS
1. DISPARATE TREATMENT
IS AWFUL
GUNS IN SCHOOLS
1. VIOLENCE IS AWFUL
2. UNSAFE AND VIOLENT
2. UNSAFE AND VIOLENT
3. INSUFFICIENT STATE
ACTION
3. INSUFFICIENT STATE
ACTION
4. BUSINESSES WERE
ENGAGING IN THE
BEHAVIOR
4. HIGH SCHOOL
STUDENTS ARE ENGAGING
IN THE BEHAVIOR
Consider a list of the areas Congress has been permitted unfettered au-
158. The chart compares Morrison with Hammer v. Dagenhart, 247 U.S. 251
(1918), which was ultimately overruled by subsequent decisions.
159. All aspects of life, including violence, have economic effects, but it was the
economic theory the founders put into the Commerce Clause; it was the distinction
between state and federal powers. Economic theory allows for no distinction and
yields all aspects of life federalism. See infra notes 160-175.
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thority to regulate: union activities,160 workplace safety (OSHA),161 employment discrimination,162 securities sales and transactions,163 copyrights,164 and antitrust.165 There are clear business connections. While
McClung166 and Heart of Atlanta Motel, Inc.167 may have been civil
rights cases, they involved businesses and their racial prohibitions and
activities that clearly impacted the ability of black Americans to travel in
interstate commerce without such federal uniformity.168 Even Wickard,169
which represents the broadest interpretation of congressional authority
under the Commerce Clause, can be analyzed by the following factor list
noted in Table Two.
1.
2.
3.
4.
TABLE TWO
THE FACTORS OF WICKARD V. FILBURN
LOCAL FARMERS
INDIVIDUALS, BUT STILL IN BUSINESS
LOCAL COMMERCE AFFECTS PRICES IN NATIONAL
MARKET
NATIONAL ECONOMIC INTEREST IN FARM
PRODUCTS/PRICING
Combining Wickard with the decisions in Lopez and Morrison, we are
able to develop a clear matrix on the Commerce Clause as depicted by
Response to Razook Figure One and the specific examples listed in Razook Figure Two.
JENNINGS FIGURE R-ONE
160. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (involving
employees and the businesses employing them).
161. See supra note 36 and accompanying text (involving safety conditions at
places of employment).
162. See supra note 156 and accompanying text (involving discrimination by employers).
163. See infra note 173 and accompanying text (involving sales of stocks, bonds,
etc. by businesses.
164. See supra note 21 (involving commercial protection of economic and commercial property).
165. See supra note 128 (involving limitations on commercial activities).
166. Katzenbach v. McClung, 379 U.S. 294 (1964).
167. 379 U.S. 241 (1964).
168. Justice Souter notes on McClung and Heart of Atlanta Motel, Inc., that the
regulation was of “‘non-economic’ activity taking place at economic establishments.” Morrison, 120 S. Ct. at 1774.
169. 317 U.S. 111 (1942).
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RESPONSE TO RAZOOK FIGURE ONE
EXAMPLES OF CONGRESSIONAL
AUTHORITY/NON-AUTHORITY AFTER
MORRISON AND LOPEZ
Congress may
regulate C
Congress
May
Regulate
Regulated conduct is
economic (commercial
character) A
Congress
May Not
Regulate C
Regulated conduct is
non-economic (noncommercial character) B
Regulated conduct is performed by an
economic entity
(commercial
character to actor)
Regulated conduct is not performed by an
economic entity
(noncommercial
character)
Congress may
regulate C
A
Examples are labor, antitrust, safety, employment and
discrimination, (NLRB v. Jones Laughlin).
B
Examples are criminal conduct such as in Lopez (guns);
Morrison (rape; domestic violence).
C
See Discussion of Jennings’ Response to Razook’s Figure One.
While Razook and Justice Souter allege that there is a certain slovenliness about this distinction with the hurling about of the terms “commercial” and “economic,” Table Three serves to clarify the issue with the
Court’s precedent via the refinement of the actor/act distinction.
TABLE THREE
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APPLICATION OF THE
ECONOMIC/NON-ECONOMIC ACTOR/ACTIVITY
TEST APPLIED TO SPECIFIC REGULATIONS
Gun Possession
Gun possessor (actor)—non-commercial
Act of gun possession—non-commercial
Congress may not
regulate
Violence against Women
Abuser (actor)—non-commercial
Act of abusing—non-commercial
Farm Regulation
Farmer (actor)—commercial
Act of selling—commercial
Title VII Civil Rights Discrimination
Hotel/Restaurant owner (actor)—commercial
Act of discrimination—non-commercial
Labor/Union/OSHA
Actors are business—commercial
Unions engaged in business—commercial
Lending (loan sharking)
Actors are loan shark—commercial
Act of lending—commercial
Congress may not
regulate
Congress may regulate
Congress may regulate
Congress may regulate
Congress may regulate
My worthy adversary reacts unnecessarily indignantly to the Court’s
imprecision in its use of the terms economic, commerce, commercial,
economic enterprise and commercial activity. As the above tables
demonstrate, the terms are not used interchangeably. Indeed, my colleague is confused. The standard for congressional Commerce Clause
jurisdiction evolves around the question of whether the actor or the activity or both are involved in economic activity.
Further, economic activity and economic costs are not one and the
same. Professor Razook points to the work of Nobel Laureate Gary
Becker to support his proposition that it is all economic. Gary Becker’s
wide-ranging economic analysis of family relationships, working mothers and lines at restaurants does indeed establish that there are costs associated with these choices, but the fact that there are costs is neither
equivalent to commercial character nor justification for federal intervention. For example, there are costs associated with a mother staying home
with her children versus a mother working and leaving her children with
others, but the act of being at home is non-commercial and the gains or
losses are, by Becker’s own analysis, non-quantifiable and cannot be
recouped or paid.
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We are then brought to the coup de’ grace issue raised by Professor
Razook which is the question of how federal environmental regulation,
particularly that of privately-owned wetlands and endangered species on
private lands, can be justified under the Commerce Clause.170 Glancing
back to Figure R-One, one now realizes the relatively simple test the
Court has applied consistently: that either the actor or the act must be
commercial in character for federal regulation to apply. It is just that
pre-Morrison171 and Lopez,172 there were no non-economic cases.
Land ownership, its sale and its purchase are part of the stream of
commerce as the Court has noted in McClain v. Real Estate Board of
New Orleans, Inc.173 a case involving banks, lenders and title insurance.
Congress is not regulating wetlands use; it is regulating the economic,
and often commercial, activity of land use and development. The slap of
a wife is a wholly different activity from the development of wetlands.
While I make no judgment on which is the greater evil, the former one
has quantifiable gains, losses and valuation, and involves the stream of
commerce or even the location of commerce. The latter is a noncommercial act that has economic costs. Even private land use, more
relevantly how it is used or not used, is a form of economic activity.174
Rather than using the terms interchangeably, the Court clarifies what
my colleague points out as both an inconsistency and a flaw. Gary
Becker’s contribution to his field is his ability to demonstrate that all
aspects of life have economic consequences. However, the mere presence of costs does not mean that the Commerce Clause entitles Congress
170. Professor Razook conveniently ignores both the channels and instrumentalities of the interstate commerce component of the Commerce Clause. See lumping
together theories discussion, supra notes 11 and 16. For example, the antitrust laws
apply to real estate commissions on local property on local sales because purchase of
property does facilitate interstate mobility. See McClain v. Real Estate Board of
New Orleans, Inc., 444 U.S. 232 (1980) (remanding the case for findings regarding
being “in interstate commerce” as well as “affect[ing] interstate commerce”).
171. See Morrison, 120 S. Ct. 1740.
172. See Lopez, 514 U.S. 549.
173. See McClain, 444 U.S. 232.
174. The decision to develop land involves economic and commercial transactions. The decision not to develop or restrict its development also has costs. Further, my colleague crosses the streams. The federal regulation of the environment is
akin to the federal regulation of interstate highways. It is meaningless to control use
in Wyoming (in our dreams speeding will be controlled there) and allow Nebraskans
free reign. So it is with wetlands, flora, fauna, FICA and FUTA. Without a national
program, the goals are not met.
The flaw in the VAWA hearings and findings was the inability of Congress to
show that states were not addressing the problem. Cases were not going unprosecuted and no state was without protective civil and criminal legislation. The justification, in the name of a national scheme of regulation was not present. Note: the author makes this point despite its relevance with regard to the type three Commerce
Clause case all agreed Morrison to be.
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to regulate either those aspects of life or the consequences. Congress
must first demonstrate that the actor or activity is indeed commercial in
nature.
Professor Razook, along with many others, has difficulty seeing the
non-economic nature of the GFSZA and the VAWA. While education is
vital in everything from contracts to transportation, and clearly has economic costs and consequences, especially when not delivered properly,
its charges are not engaged in commercial activity. Hence, Congress can
regulate the strawberries in school cafeterias, but not what children do of
their own volition. However, the GFSZA did not regulate the school, it
regulated the students and their non-educational, non-commercial, and
non-economic activity of gun toting to school.
The Chief Justice provides as much Commerce Clause latitude as possible, affording complete deference to Wickard v. Filburn175 without undermining the framers’ intent or the states’ authority in the areas of
common law crimes and family matters. The simple three-prong test
requires either that the actor be involved in commercial activity, that the
enterprise be involved in commercial activity, or that the regulated activity itself be commercial in nature.
Given the technological innovations and evolutions leading us into this
century, many can breathe a sigh of relief for the Court’s clear distinction
between economic activity and private actions. The politicizing of
Commerce Clause jurisdiction to cover social ills might prove to be an
over-whelming task in an interconnected society. The role of political
purpose in attempted regulation of private actions is covered under Point
Three as follows.
IV. POINT 3 POLITICS, RATHER THAN LAW, SHOULD REMAIN THE
GUIDING PRINCIPLES IN DETERMINING THE SCOPE OF
CONGRESSIONAL POWER UNDER THE COMMERCE CLAUSE
While Parts II and III argued that the Court’s new standard for reviewing congressional authority is doctrinally deficient, Part IV develops this
idea further. Specifically, this part claims that federalism is an eminently
political issue and that congressional discretion and the accompanying
political environment of Congress are measurably preferable authorities
on issues of federalism than the Supreme Court.
A. Political Federalism is an Important Part of our Constitutional History
This concept is neither novel nor revolutionary.
175. 317 U.S. 111 (1942).
Chief Justice
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Rehnquist based his “first principles”176 in Lopez on Madison’s famous
quote: “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the
State governments are numerous and indefinite.”177 This assertion, according to Chief Justice Rehnquist, is the starting point for the Court’s
reassertion of a substantive review of congressional authority. In his
dissent in Morrison, Justice Souter proffered another quote by Madison
that suggests that politics, not law, will be the chief means of constraining congressional power. “The National Government ‘will partake sufficiently of the spirit [of the States], to be disinclined to invade the rights
of the individual States, or the prerogatives of their governments.’”178
Both Congress and the Supreme Court are political bodies, and Congress,
with its plenary power, has done an admirable job of preserving federalism.
As emphasized in Part II, Congress’ plenary authority has been the
cornerstone of Commerce Clause jurisprudence for sixty years. Fewer
than twenty years ago, the Court resoundingly reaffirmed Congress’
power in Hodel v. Virginia Surface Mining and Reclamation Ass’n, Inc.,
stating that, “[j]udicial review in this area is influenced above all by the
fact that the Commerce Clause is a grant of plenary authority to Congress. . . . This power is ‘complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed
in the constitution.’”179
While this passage suggests that there may be constitutional limitations to congressional authority, the Hodel Court stated plainly that these
limitations are quite modest: “[t]hus, when Congress has determined that
an activity affects interstate commerce, the courts need inquire only
whether the finding is rational.”180
The underlying reason for the Court’s deference to congressional decision making in this area was simple: the old regime of judicial review
based on whether an activity affected interstate commerce directly or
indirectly181 or implicated interstate commerce in other articulated
ways182 did not work. Leaving the decision about the scope of its power
176. Lopez, 514 U.S. at 552.
177. Id. (quoting THE FEDERALIST NO. 45, at 292-93 (James Madison)).
178. Morrison, 120 S. Ct. at 1770 (Souter, J. dissenting) (quoting THE
FEDERALIST NO. 46, at 319 (James Madison)).
179. Hodel, 452 U.S. at 276 (citations omitted).
180. Id. at 277.
181. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 548
(1935) (holding that federal wage and hour requirements affected interstate commerce only indirectly and were therefore unconstitutional).
182. See generally United States v. E.C. Knight, 156 U.S. 1 (1895) (holding that
activities such as production, manufacturing and mining do not implicate interstate
commerce and are therefore beyond Congress’ constitutional authority to regulate).
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to Congress represented a workable principle governed primarily by the
forces of politics rather than by unworkable legal abstractions. Chief
Justice Rehnquist, concurring in the Hodel opinion,183 expressed concern
about the majority’s grant to Congress of a plenary power, but apparently
embraced Congress’ broad authority under the Commerce Clause. He
stated that “[c]ongress must show that the activity it seeks to regulate has
a substantial effect on interstate commerce. It is my uncertainty as to
whether the Court intends to broaden, by some of its language, this test
that leads me to concur only in the judgments.”184
Chief Justice Rehnquist has suggested often that he is concerned about
the Court’s grant to Congress of such broad authority,185 but offers within his majority opinions in Lopez and Morrison only a modest view of
the doctrinal limits the Court intends to visit upon congressional authority. Lacking from these opinions is even a hint of information about federalism’s political dimension and the important role this dimension plays
in defining congressional authority under the Commerce Clause.186 Establishing doctrinal limits to this authority without acknowledging that
the jurisprudence displaced by these two cases rendered this a political
rather than a legal question ignores the value of politics in defining the
scope of congressional power and suggests that the Court’s new jurisprudence is doctrinally pure, not influenced by ideology and politics. These
are the fatal flaws in the majority’s decisions.
The remarkable consequence of pre-Lopez and Morrison law is the fidelity to the principles of our federal system, notwithstanding Congress’
plenary authority to identify matters worthy of national regulation and to
adopt laws governing those areas. In fact, the implicit theme of the new
183. See Hodel, 452 U.S. at 313.
184. Id.
185. When the Court, in Garcia v. San Antonio Metro. Transit Auth., 469 U.S.
528 (1985), overruled National League of Cities v. Usery, 426 U.S. 823 (1976)
(holding that the Commerce Clause does not grant Congress the power to extend
provisions of the Fair Labor Standards Act to the states) it was evident that Chief
Justice Renquist viewed the Court’s reaffirmation of Congress’ plenary authority
with disdain and believed that the restricting principles of Usery were appropriate.
“I do not think it incumbent on those of us in dissent to spell out further the fine
points of a principle that will, I am confident, in time again command the support of
a majority of this Court.” Garcia, 469 U.S. at 580.
186. In fact, Justice Thomas, in his concurring opinion in Lopez, appears to be the
only member of the majority who forthrightly notes the plenary power associated
with the Court’s “substantial effects” test and the accompanying political rather than
legal standard arising from such test. See Lopez, 514 U.S. at 584 (Thomas, J., concurring). His prescription - to reconsider and ultimately to rewrite the standard appears, at least, to be an honest attempt to face the issues raised by Wickard, Perez,
Heart of Atlanta Motel, Inc. and McClung squarely and departs, in my view, from
Chief Justice Rehnquist’s effort to artificially retain these precedents but to ignore
their essential principles: Congress’ plenary power and the resulting politicization of
federalism.
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substantive jurisprudence is that the unrelenting growth of national power has been at the expense of unwilling states. In his work defending
political federalism, Larry Kramer states that historically Congress has
been very hesitant about displacing state law and that, compared with
other federal systems in developed nations, our states have retained a
large measure of regulatory authority.
[T]he most striking fact about government in the United States is how
much authority is still exercised at the state and local level . . . almost
all private law (tort, contract, property) is state law, as is most of the
law respecting crime, education, voting, domestic relations, commercial transactions, corporations, insurance, health care, trusts and estates,
land use, occupational licensing and regulation, and more.187
Kramer bases his defense of political federalism on both his own interpretation of constitutional and congressional history188 and that of
Herbert Wechsler, whose often-cited work in the Columbia Law Review
provided a brief, but coherent argument favoring politics over law in
determining congressional authority.189 Wechsler’s article appeared in
1954, some thirteen years after Wickard v. Filburn and the Supreme
Court’s realization that substantive judicial review of congressional authority was not working.190 Kramer embraces many of Wechsler’s ideas,
187. Larry D. Kramer, Putting the Politics Back Into the Political Safeguards of
Federalism, 100 COLUM. L. REV. 215, 220 (2000).
188. See id. at 228-66. Kramer’s analysis offers no future guarantees that Congress and the political processes will retain their fidelity to federalism, but offers
convincing evidence that “political federalism” is measurably more consistent with
the founders’ intent than a rigorous judicial review of congressional actions. See id.
In his dissenting opinion in Morrison, Justice Breyer agrees with this and cites Kramer. Morrison, 120 S. Ct. at 1777. Breyer also notes the “practical reality” of granting Congress a plenary authority to regulate under the Commerce Clause.
[V]irtually 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. And that fact makes it close to impossible for courts to develop
meaningful subject-matter categories that would exclude some kinds of local a ctivities from ordinary Commerce Clause “aggregation” rules without, at the same
time, depriving Congress of the power to regulate activities that have a genuine
and important effect upon interstate commerce.
Since judges cannot change the world, … within the bounds of the rational,
Congress, not the courts, must remain primarily responsible for striking the appropriate state/federal balance.
Id. at 1776 (citation omitted).
189. See generally Herbert Wechsler, The Political Safeguards of Federalism:
The Role of the States in the Composition and Selection of the National Government,
54 COLUM. L. REV. 543 (1954).
190. While others agreed with the Supreme Court’s decisions to grant Congress
plenary authority, they offered only modest historical defenses for their opinions.
See Kramer, supra note 187, at 216 n.2 (noting Wechsler’s contemporaries who
favored the Supreme Court’s direction).
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reaffirms the vitality of state regulatory authority despite Congress’ plenary powers and acknowledges what we already know:
[S]tates do most of the actual governing in this country, and the important objects of daily life are still chiefly matters of state and local,
not federal, cognizance. The central and continuing role of state governance is thus a fact that needs to be explained - particularly if, as
Wechsler’s critics would have it, the states are fated to be swallowed
by the federal leviathan absent determined judicial protection. 191
While Wechsler’s thesis is that our constitutional means of electing
federal representatives will preserve our federal system by discouraging
improper encroachment by Congress into state domains,192 Kramer argues that a “complex system of informal political institutions,” especially
political parties, safeguard federalism.193 Those who favor a return of
judicial review of Congress, Kramer asserts, overlook the vitality of the
states’ regulatory regimes, misconstrue the Framers’ intent194 and disregard the Supreme Court’s own handling of this matter. On the latter
point, Kramer demonstrates that in its history, the court has been primarily concerned with limiting the states’ ability to encroach upon national
power rather than preserving the states’ regulatory domains by delimiting
Congress’ power.195 A resurrected judicial review of congressional authority is, therefore, ahistoric.196
191.
192.
193.
194.
Id. at 227-28.
See Wechsler, supra note 189, at 546-57.
Kramer, supra note 187, at 219.
Kramer’s treatment of political federalism begins with his provocative subsection, “The Myth of Judicial Review,” in which he states his opposition to John
Yoo’s assertion that “the political safeguards argument is an ahistoric one.” Id. at
234 (citing Yoo, supra note 22, at 1357). Kramer then argues that the founders
could not have conceived of federalism as a legal issue because they gave the concept so little attention during their meetings. “Given their understanding of judicial
review, no one in the Founding generation would have imagined that courts could or
should play a prominent role in defining the limits of federal power. And no one
did.” Id. at 235.
Finally, Kramer traced the post-convention history of political federalism based on
republican politics.
When Anti-Federalists insisted that Congress would disregard its limits and destroy state government, Federalists invariably responded that any effort to do so
would run smack into opposition from the people. Let Congress try to misuse its
powers, they say over and over again, and federal lawmakers would fin d themselves facing formidable resistance from local leaders - leaders who could, and
would, drum up outrage and opposition among the people, establish committees
of correspondence with like minded leaders in other states, and force federal
lawmakers to back down through protest and remonstrance or by actively ca mpaigning to oust unsatisfactory representatives.
Id. at 257.
195. Id. at 242-44.
196. To underscore his argument that the founders assumed that politics rather
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If history is an insufficient defense for the Court’s new jurisprudence,
then perhaps the Court can justify its holdings in Lopez and Morrison
based on its ability - indeed its duty - to be the final arbiter of such a vital
issue. Implicit in the majority’s opinions is the assertion that federalism
is too central an institution to be left purely to political domains and that
the Court must reclaim its role in establishing and applying a principled,
legal standard to congressional authority under the Commerce Clause.
Of course, such a role by the Court presupposes that it is capable of creating such a standard, and there is a growing body of both theoretical and
empirical evidence to suggest otherwise.197 Frank Cross traces this evidence in a recent essay and concludes that courts, including the Supreme
Court, too often allow federalism to be subsumed by the underlying issue
that provoked it and make decisions based more on ideological than on
principled and substantive grounds.198
Cross’s argument focuses squarely on the propriety of the Court’s new
jurisprudence. It challenges the re-legalization of federalism based on
strong evidence that federal courts, including the Supreme Court,
demonstrate little fidelity to federalism as a “principled constraint on
than law would regulate Congress’ power, Kramer squarely addressed James Madison, whom Chief Justice Rehnquist and Jennings cite as the source of their “first
principles” (See U.S. v. Lopez, 514 U.S. 549, 552 (1995)) and his most important
historic source in defense of the Court’s renewed power of judicial review. Kramer
asserts that Madison was comfortable with the political safeguards in defense of
state sovereignty.
The State Governments will have the advantage of the federal Government,
whether we compare them in respect to the immediate dependence of the one or
the other, to the weight of personal influence which each side will possess; to
the powers respectively vested in them; to the predilection and probable support
of the people; to the disposition and faculty of resisting and frustr ating the
measures of each other.
Id. at 259 (citing THE FEDERALIST NO. 45 (James Madison)).
197. See LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE (1998);
Frank B. Cross, Realism About Federalism, 74 N.Y.U.L. REV. 1304, 1308-12 (1999)
(tracing these works); See generally Sue Davis, Rehnquist and State Courts: Federalism Revisited, 45 W. POL. Q. 773 (1992) (reviewing Burger court decisions); Frank
B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 YALE L.J. 2155 (1998)
(investigating CCA’s review of administrative agency decisions); Tracey E. George,
Developing a Positive Theory of Decisionmaking on U.S. Courts of Appeals, 58
OHIO ST. L.J. 1635 (1998); David B. Spence & Paula Murray, The Law, Economics,
and Politics of Federal Preemption Jurisprudence: A Quantitative Analysis, 87 CAL.
L. REV. 1125 (1999) (studying federal court fidelity to federalism in environmental
not-in-my-backyard cases); Emerson H. Tiller & Frank B. Cross, A Modest Proposal
for Improving American Justice, 99 COLUM. L. REV. 215, 218-24 (1999) (reviewing
this literature).
198. See Cross, supra note 197, at 1304.
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power of the national government.”199 Rather, efforts by scholars and
judges to create workable, legal restraints on congressional authority
largely fail.200 The evidence shows that courts are influenced by many of
the same institutional and political forces that color congressional decisions.201 Cross addresses those advocates of the Court’s new jurisprudence who claim that Congress’ only interest is expanding national power and prestige at the expense of the states. “This claim is certainly plausible, yet it illustrates a glaring flaw in the argument for judicial involvement. The argument for judicial protection for federalism implies
cynical, self-interested explanations for legislative behavior but then
ignores such explanations for judicial behavior.”202
Cross does not conclude that courts are strictly cynical in their treatment of this issue,203 but makes a strong case against the prescriptions for
judicial review offered by commentators that focus on the “process and
justifications employed by the national Congress for its actions.”204 He
also argues that virtually any judicial standard of review will likely be
flexible enough to allow judges to “pursue their political preferences” 205
at the expense of a coherent and principled legal standard.206 While he
does address briefly the Supreme Court’s ruling in Lopez,207 Cross does
not review critically the Court’s economic/non-economic distinction for
evaluating congressional authority under the Commerce Clause.208 His
concerns, however, about the interpretive “wiggle room” that courts
might realize from these types of doctrinal distinctions are apt nonetheless. As Part III suggested, the Supreme Court’s economic activity or
199. Id.
200. See id. at 1326-35.
201. Among the forces influencing judicial behavior are the judges’ sensitivities
to the other branches of government. Cross argues that federal judges depend on
other branches because of the appointment and approval process and because other
branches, especially Congress, influence their salaries, pensions and other benefits.
See id. at 1313-19.
202. Id. at 1315 (criticizing Yoo, supra note 22).
203. See id. at 1313.
204. Cross, supra note 197, at 1327.
205. Id.
206. The primary targets of Cross’s argument are Vicki Jackson and Stephen
Gardbaum, who, in separate articles, propose standards for judicial review of congressional actions under the Commerce Clause that focus on Congress’ justifications
for and the processes accompanying such action. Likening the authors’ standards to
the much maligned and now defunct standards of economic, substantive due process
(as reviewed in Lochner v. New York, 198 U.S. 45 (1905)), Cross asserts that such
standards are unworkable and offer too much discretion to the courts. See id. at
1327-34 (criticizing Jackson, supra note 22 and Gardbaum, supra note 22).
207. See id. at 1322.
208. Twenty-twenty hindsight suggests that Cross likely downplayed the language
of Lopez based on his prediction that the case “seems unlikely to have much impact
on the exercise of federal power.” Id.
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economic setting requirements invite various interpretations from stakeholders and are, using Cross’ language, “sufficiently malleable as to enable an ideological judge to reach whatever policy result she might desire.”209
Cross, Kramer, Wechsler and others actually identify the key issue in
the debate over the Court’s authority to reassert judicial review of congressional power. Which of the two institutions, Congress or the Supreme Court, should have the final say in whether a duly adopted national law sufficiently implicates interstate commerce as to accord with our
Constitution? No one has any illusions about the complex political
machinations that surround Congress’ decisions to pass laws, nor should
anyone be surprised that decisions to regulate an area under Congress’
Article I authority is fraught with politics. However, the Supreme Court
is not free of the ideological forces and the complex political machinations that influence Congress. Rather, its decisions are often ideological
rather than principled, doctrinally fuzzy rather than pure and, most importantly, final. While our polity might embrace the court as the final
word on most constitutional provisions, over sixty years of Supreme
Court jurisprudence has demonstrated that the court is a woefully inadequate final arbiter of congressional authority. In fact, logic would suggest that nine justices influenced by ideological goals and removed from
the rigors of electoral review are less apt to demonstrate a principled
fidelity to federalism than Congress whose members are constantly under
the scrutiny of the electorate.
There exists no better example of Congress’ superior fidelity to federalism than the VAWA. Preceding Congress’ adoption of that law were
four years of congressional hearings, including the collection of extensive evidence linking violence against women to interstate commerce, 210
findings demonstrating that states were doing an insufficient job of dealing with this problem,211 significant interaction between Congress and
the states concerning the worthiness of congressional intervention into
this area,212 multiple drafts of the VAWA ultimately resulting in a law
that supplemented rather than displaced state law,213 and strong support
for the bill in both the House and the Senate.214 One might have interpreted such a demonstrable fidelity to federalism as Congress’ response
209.
210.
211.
212.
213.
Id. at 1327.
See supra notes 69-70 and accompanying text.
See id.
See id.
See Biden, supra note 18, at 27-28 (addressing the numerous drafts undertaken to make the VAWA more palatable to those who claimed it usurped a state
function); Nourse, supra note 61, at 18-35 (tracing the VAWA’s congressional history in light of concerns for federal-state relations).
214. See supra notes 54 and 62 and accompanying text.
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to the Lopez decision; however, the VAWA was adopted before the Supreme Court’s decision in Lopez.215 Perhaps Kramer and Wechsler provide a better explanation for the congressional activity that preceded the
VAWA’s passage. Our national representatives gain by demonstrating a
sensitivity to and protection of principles of federalism and lose if they
demonstrate otherwise.
Sixty stable years of Commerce Clause jurisprudence confirms that
those who believe that the VAWA, GFSZA or any other acronymidentified national laws violate notions of federalism by unduly trampling on state domains should aim their prescriptions concerning the
scope of congressional power at Congress, not the Supreme Court.
While we all have a stake in assuring that our national representatives do
right by federalism, we must also admit that the Supreme Court’s efforts
to inject itself into these decisions will insure neither a more workable
jurisprudence nor the preservation of our federal state.
COUNTERPOINT III
The unspoken difficulty with Morrison and the VAWA is that the
worthiness of the cause has been permitted to cloud the jurisprudential
wisdom of upholding such a federal law. A good portion of Justice
Souter’s somewhat indignant defense is devoted to a recap of the congressional evidence on violence against women. Chief Justice Rehnquist
never addresses that issue because he focuses on the constitutional and
economic/commercial limitations of the Commerce Clause.
While Professor Razook and those of the political school make much
of The Federalist viewpoint on the political aspects, they do so at the
expense of the clear definitions those same papers provide. It is abundantly clear from The Federalist and the language of the Constitution
itself that there was a real fear of the usurpation of states’ rights by the
federal government and at the heart of that fear was the Commerce
Clause, and its specific and limiting language.
Indeed, those of the political school ignore the history upon which
Hamilton’s writings and the Constitution were based. It was the founders’ fear of a political concentration that led to the creation of three
branches. It was the creation of the three branches that troubled New
Yorkers and others contemplating the ratification of the Constitution for
their fear was a loss of control to the Judicial Branch.216 The papers
215. The VAWA became law on September 13, 1994. See Nourse, supra note 61,
at 36. Oral arguments for Lopez were on November 8, 1994; the Court’s decision
was on April 26, 1995. See Lopez, 514 U.S. at 549.
216 That, as Nim and Cross, supra note 197 argue, judges can be political does
not translate into the founders’ intent for them to behave as such. There are jurisprudential constraints. Indeed, Morrison is an example of such constraint being
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abound with references to the risk of not having an independent and apolitical Judicial Branch. In Federalist No. 47, Madison wrote:
One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political
maxim, that the legislative, executive and judiciary departments ought
to be separate and distinct. In the structure of the federal government,
no regard, it is said, seems to have been paid to this essential precaution
in favor of liberty. The several departments of power are distributed
and blended in such a manner as at once to destroy all symmetry and
beauty of form; and to expose some of the essential parts of the edifice
to the danger of being crushed by the disproportionate weight of other
parts.
No political truth is certainly of greater intrinsic value, or is stamped
with the authority of more enlightened patrons of liberty, than that on
which the objection is founded. The accumulation of all powers legislative, executive, and judiciary, in the same hands, whether of one, a
few, or many, and whether hereditary, self appointed, or elective, may
justly be pronounced the very definition of tyranny.
From these facts, by which Montesquieu was guided, it may clearly be
inferred, that, in saying “There can be no liberty where the legislative
and executive powers are united in the same person, or body of magistrates,” or “if the power of judging be not separated from the legislative
and executive powers,” he did not mean that these departments ought to
have no partial agency in, or no control over, the acts of each other. 217
By making the Court subject to political whims, the judicial branch is
reduced to an arm of the factions that are often formed and perhaps reach
majority status but which create law in defiance of the rights and parameters established in the Constitution.218
The suggestion of the political school ignores, for example, the clear
Hamilton discussion of commerce in the Federalist No. 11219 and ignores
the precedent in Gibbons v. Ogden.220 The Commerce Clause is not exempt from the tenets of constitutional interpretation.221 Chief Justice
Rehnquist addresses the notion of the political hypothesis in the majority
exercised.
217. THE FEDERALIST NO .47 at 336-38 (James Madison).
218. Madison noted in THE FEDERALIST NO. 10 that one of the beauties of the
Constitution was its structure designed for “curing the mischief of faction.” THE
FEDERALIST NO. 10, in, The Daily Advertiser, Nov. 22, 1787. Common impulse or
passion, according to Madison, must be controlled and, “No man is allowed to be a
judge in his own case; because his interest would certainly bias his judgment, and
not improbably, corrupt his integrity.” Id.
219. The focus is entirely on trade, a clear delineation of commercial activities.
220. 6 L.Ed. 23 (1824); see also supra, notes 5 and 38.
221. The political school carves out an odd exception for checks and balances solely for the Commerce Clause.
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opinion, but does so only in a footnote, what is surely to become the infamous “footnote 7” of both the Commerce Clause and Chief Justice
Rehnquist:222
Justice Souter’s dissent theory that Gibbons v. Ogden,223 Garcia v. San
Antonio Metropolitan Transit Authority,224 and the Seventeenth
Amendment provide the answer to these cases is remarkable because it
undermines this central principle of our constitutional system. As we
have repeatedly noted, the Framers crafted the federal system of government so that the people’s rights would be secured by the division of
power.225 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.226 It is thus a ‘permanent and indispensable feature of our constitutional system’ that ‘the
federal judiciary is supreme in the exposition of the law of the Constitution.’227 No doubt the political branches have a role in interpreting
and applying the Constitution, but ever since Marbury, this Court has
remained the ultimate expositor of the constitutional text. As we emphasized in United States v. Nixon,228 in the performance of assigned
constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any
branch is due great respect from the others . . . . Many decisions of this
Court, however, have unequivocally reaffirmed the holding of Marbury
. . . that ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’229
Contrary to Justice Souter’s suggestion, 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 re222. One senses some irritation with Justice Souter in the footnote, hence Souter’s
points are addressed in a footnote as opposed to the text of the opinion. Chief Justice Rehnquist’s less-than-obvious slight is that Souter’s points are not worthy of
main text despite Souter’s obvious irritation with Rehnquist’s disregard of the humiliation of the court-packing plan. See supra note 8.
223. 9 Wheat. 1 (1842).
224. 469 U.S. 528 (1985).
225. See, e.g., Arizona v. Evans, 514 U.S. 1, 30 (1995) (Ginsburg, J., dissenting);
Gregory v. Ashcroft, 501 U.S. 452, 458-459 (1991) (cataloging the benefits of the
federal design); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985)
(“The constitutionally mandated balance of power” between the states and the Federal Government was adopted by the Framers to ensure the protection of ‘our fundamental liberties’) (quoting Garcia v. San Antonio Metropolitan Transit Authority,
469 U.S. 528 (1985) (Powell, J., dissenting)).
226. See, e.g., Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C.J.)
(“The powers of the legislature are defined and limited; and that those limits may not
be mistaken or forgotten, the constitution is written”).
227. Miller v. Johnson, 515 U.S. 900, 922-23 (1995) (quoting Cooper v. Aaron,
358 U.S. 1, 18 (1958)).
228. 418 U.S. 683 (1974).
229. Id. at 703.
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straint on the congressional exercise of commerce power is true only
insofar as it contends that political accountability is and has been the
only limit on Congress’ exercise of the commerce power within that
power’s outer bounds. As the language surrounding that relied upon by
Justice Souter makes clear, Gibbons did not remove from this Court the
authority to define that boundary.230
Rehnquist’s footnote seven is a chastisement for the direction of both
constitutional law and the Commerce Clause. There is a certain frustration in footnote seven that reflects the conflict between what the Constitution is and does, and what it is not and does not do, despite our strong
desires for resolution of social issues.
The VAWA not only represents an egregious invasion of states’ rights
by the federal government, but an opening for federal action in all manner of family and private activities. While there is much made of political attribution of views (even on the part of Justice Souter’s dissent),
Morrison is not a case of politics. It represents the judicial branch performing its assigned checks and balances responsibility in curbing a
Congress that has clearly over extended its reach, regardless of the nobility of the underlying cause. That the usurpation comes clothed in the
armor of sympathy for an irrefutable cause does not change its fundamental character of encroachment.
The consequences of applying politics rather than law as the judicial
standard for Commerce Clause jurisdiction is an undermining not just of
the intent of the founders with regard to that clause. Such is an attempt
to undermine the inherent separation of powers created to quell factions
and curb the too-often irrational masses when they serve as judge and
jury or more relevantly, legislator and judge.
230. 120 S. Ct. at 1754-55. It is long-winded and smacks of irritation but footnote
seven is Rehnquist’s way of saying that Gibbons was not political, the Commerce
Clause’s interpretation is not subject to political branch leanings and that Justice
Souter is just plain wrong. See Gibbons, 9 Wheat at 194-95, stating that
[i]t 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, and
which does not extend to or affect other States . . . . Comprehensive as the word
‘among’ is, it may very properly be restricted to that commerce which concerns
more States than one. The phrase is not one which would probably have been
selected to indicate the completely interior traffic of a State, because it is not an
apt phrase for that purpose; and the enumeration of the particular classes of
commerce to which the power was to be extended, would not have been made,
had the intention been to extend the power to every description. The enumer ation presupposes something not enumerated; and that something, if we regard the
language or the subject of the sentence, must be the exclusively internal co mmerce of a State.’
Id.