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“ ‘[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.’ ”— Chief Justice REHNQUIST “ ‘The Constitution gives to Congress the role of weighing conflicting evidence in the legislative process.’ ”—Justice SOUTER
United States v. Morrison
529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000)
Section 13981(c) of the Violence Against Women Act of 1994 authorized victims of gender- motivated violence to sue persons committing such violence in federal court. Congress enacted the Act under both the Commerce Clause and Section 5 of the Fourteenth Amendment. Unhappy with the failure of state university officials adequately to discipline two student athletes for an alleged sexual assault on her, a former student, Christy Brzonkala, sued her alleged attackers and university officials, as the Act authorized her to do.
■ C HIEF J USTICE REHNQUIST delivered the opinion of the Court.
In these cases we consider the constitutionality of 42 U.S.C. § 13981, which provides a federal civil remedy for the victims of gender-motivated violence. The United States Court of Appeals for the Fourth Circuit, sitting en banc, struck down § 13981 because it concluded that Congress lacked constitutional authority to enact the section’s civil remedy. Believing that these cases are controlled by our decisions in United States v. Lopez (1995), United States v. Harris (1883), and the In re Civil Rights Cases (1883), we affirm....
Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds. With this presumption of constitutionality in mind, we turn to the question whether § 13981 falls within Congress’ power under Article I, § 8, of the Constitution. Brzonkala and the United States rely upon the third clause of the section, which gives Congress power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
As we discussed at length in Lopez , our interpretation of the Commerce Clause has changed as our Nation has developed. We need not repeat that detailed review of the Commerce Clause’s history here; it suffices to say that, in the years since NLRB v. Jones & Laughlin Steel Corp. (1937), Congress has had considerably greater latitude in regulating conduct and transactions under the Commerce Clause than our previous case law permitted.
Lopez emphasized, however, that even under our modern, expansive interpretation of the Commerce Clause, Congress’ regulatory authority is not without effective bounds....
As we observed in Lopez , modern Commerce Clause jurisprudence has “identified three broad categories of activity that Congress may regulate under its commerce power.” “First, Congress may regulate the use of the channels of interstate commerce.” “Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.” “Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce,... i.e. , those activities that substantially affect interstate commerce.” Id. (citing Jones & Laughlin Steel ).
Petitioners do not contend that these cases fall within either of the first two of these categories of Commerce Clause regulation. They seek to sustain § 13981 as a regulation of activity that substantially affects interstate commerce. Given § 13981’s focus on gender-motivated violence wherever it occurs (rather than violence directed at the instrumentalities of interstate
commerce, interstate markets, or things or persons in interstate commerce), we agree that this is the proper inquiry.
Since Lopez most recently canvassed and clarified our case law governing this third category of Commerce Clause regulation, it provides the proper framework for conducting the required analysis of § 13981. In Lopez , we held that the Gun–Free School Zones Act of 1990... exceeded Congress’ authority under the Commerce Clause... [because that act] was “a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.”...
Both petitioners and Justice Souter’s dissent downplay the role that the economic nature of the regulated activity plays in our Commerce Clause analysis. But a fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case.... Lopez’s review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity’s substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor.
The second consideration that we found important in analyzing [the Gun–Free School Zones Act] was that the statute contained “no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.” Id. Such a jurisdictional element may establish that the enactment is in pursuance of Congress’ regulation of interstate commerce....
Finally, our decision in Lopez rested in part on the fact that the link between gun possession and a substantial effect on interstate commerce was attenuated. The United States argued that the possession of guns may lead to violent crime, and that violent crime “can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe.” The Government also argued that the presence of guns at schools poses a threat to the educational process, which in turn threatens to produce a less efficient and productive work force, which will negatively affect national productivity and thus interstate commerce. Ibid.
We rejected these “costs of crime” and “national productivity” arguments because they would permit Congress to “regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce.” We noted that, under this but-for reasoning:
Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the[se] theories... , it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate. Ibid. With these principles underlying our Commerce clause jurisprudence as reference points, the proper resolution of the present cases is clear. Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature. See, e.g., id. and the cases cited therein....
In contrast with the lack of congressional findings that we faced in Lopez , § 13981 is supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and their families. See, e.g. , H.R. Conf. Rep. No. 103–711, p. 385 (1994)... But the
Petitioners’ § 5 argument is founded on an assertion that there is pervasive bias in various state justice systems against victims of gender-motivated violence. This assertion is supported by a voluminous congressional record. Specifically, Congress received evidence that many participants in state justice systems are perpetuating an array of erroneous stereotypes and assumptions. Congress concluded that these discriminatory stereotypes often result in insufficient investigation and prosecution of gender-motivated crime, inappropriate focus on the behavior and credibility of the victims of that crime, and unacceptably lenient punishments for those who are actually convicted of gender-motivated violence. See H.R. Conf. Rep. No. 103–711, at 385–386.... Petitioners contend that this bias denies victims of gender-motivated violence the equal protection of the laws and that Congress therefore acted appropriately in enacting a private civil remedy against the perpetrators of gender-motivated violence to both remedy the States’ bias and deter future instances of discrimination in the state courts.
As our cases have established, state-sponsored gender discrimination violates equal protection unless it serves “important governmental objectives and... the discriminatory means employed” are “substantially related to the achievement of those objectives. United States v. Virginia (1996) (quoting Mississippi Univ. for Women v. Hogan (1982)).... However, the language and purpose of the Fourteenth Amendment place certain limitations on the manner in which Congress may attack discriminatory conduct. These limitations are necessary to prevent the Fourteenth Amendment from obliterating the Framers’ carefully crafted balance of power between the States and the National Government. Foremost among these limitations is the time- honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action. “[T]he principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.” Shelley v. Kraemer (1948).
Shortly after the Fourteenth Amendment was adopted, we decided two cases interpreting the Amendment’s provisions, United States v. Harris (1883), and the Civil Rights Cases (1883). In Harris , the Court considered a challenge to § 2 of the Civil Rights Act of 1871. That section sought to punish “private persons” for “conspiring to deprive any one of the equal protection of the laws enacted by the State.” We concluded that this law exceeded Congress’ § 5 power because the law was “directed exclusively against the action of private persons, without reference to the laws of the State, or their administration by her officers.”...
We reached a similar conclusion in the Civil Rights Cases. In those consolidated cases, we held that the public accommodation provisions of the Civil Rights Act of 1875, which applied to purely private conduct, were beyond the scope of the § 5 enforcement power....
The force of the doctrine of stare decisis behind these decisions stems not only from the length of time they have been on the books, but also from the insight attributable to the Members of the Court at that time. Every Member had been appointed by President Lincoln, Grant, Hayes, Garfield, or Arthur—and each of their judicial appointees obviously had intimate knowledge and familiarity with the events surrounding the adoption of the Fourteenth Amendment....
Petitioners alternatively argue that, unlike the situation in the Civil Rights Cases , here there has been gender-based disparate treatment by state authorities, whereas in those cases there was no indication of such state action. There is abundant evidence, however, to show that that Congresses that enacted the Civil Rights Acts of 1871 and 1875 had a purpose similar to that of Congress in enacting the § 13981: There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves. The statement of Representative Garfield in the House and that of Senator Summer in the Senate are representative:
[T]he chief complaint is not that the laws of the State are unequal, but that even where the laws are just and equal on their face, yet, by a systematic maladministration of the,
or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them. Cong. Globe, 42d Cong., 1st Sess., App. 153 (1871) (statement of Rep. Garfield).... But even if that distinction were valid, we do not believe it would save § 13981’s civil remedy. For the remedy is simply not “corrective in its character, adapted to counteract and redress the operation of such prohibited [s]tate laws or proceedings of [s]tate officers.” Civil Rights Cases. Or, as we have phrased it in more recent cases, prophylactic legislation under § 5 must have a “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”... City of Boerne v. Flores (1997). Section 13981 is not aimed at proscribing discrimination by officials which the Fourteenth Amendment might not itself proscribe; it is directed not at any State or state actor, but at individuals who have committed criminal acts motivated by gender bias.
In the present cases, for example, § 13981 visits no consequence whatever on any Virginia public official involved in investigating or prosecuting Brzonkala’s assault. The section is, therefore, unlike any of the § 5 remedies that we have previously upheld. For example, in Katzenbach v. Morgan (1966), Congress prohibited New York from imposing literacy tests as a prerequisite for voting because it found that such a requirement disenfranchised thousands of Puerto Rican immigrants who had been educated in the Spanish language of their home territory. That law, which we upheld, was directed at New York officials who administered the State’s election law and prohibited them from using a provision of that law. In South Carolina v. Katzenbach (1966), Congress imposed voting rights requirements on States that, Congress found, had a history of discriminating against blacks in voting. The remedy was also directed at state officials in those States. Similarly, in Ex parte Virginia (1879), Congress criminally punished state officials who intentionally discriminated in jury selection; again, the remedy was directed to the culpable state official.
Section 13981 is also different from these previously upheld remedies in that it applies uniformly throughout the Nation. Congress’ findings indicate that the problem of discrimination against the victims of gender-motivated crimes does not exist in all States, or even most States. By contrast, the § 5 remedy upheld in Katzenbach v. Morgan was directed only to the State where the evil found by Congress existed, and in South Carolina v. Katzenbach , the remedy was directed only to those States in which Congress found that there had been discrimination.
For these reasons, we conclude that Congress’ power under § 5 does not extend to the enactment of § 13981.
IV Petitioner Brzonkala’s complaint alleges that she was the victim of a brutal assault. But Congress’ effort in § 13981 to provide a federal civil remedy can be sustained neither under the Commerce Clause nor under § 5 of the Fourteenth Amendment. If the allegations here are true, no civilized system of justice could fail to provide her a remedy for the conduct of respondent Morrison. But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States....
■ JUSTICE T HOMAS , concurring.
The majority opinion correctly applies our decision in Lopez , and I join it in full. I write separately only to express my view that the very notion of a “substantial effects” test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases. By continuing to apply this rootless and malleable standard, however circumscribed, the Court has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits. Until this Court replaces its existing Commerce Clause jurisprudence with a standard more consistent with the original
against Commerce Clause challenges. In Heart of Atlanta and Katzenbach v. McClung , the Court referred to evidence showing the consequences of racial discrimination by motels and restaurants on interstate commerce. Congress had relied on compelling anecdotal reports that individual instances of segregation cost thousands to millions of dollars.... Congress also had evidence that the average black family spent substantially less than the average white family in the same income range on public accommodations, and that discrimination accounted for much of the difference....
While Congress did not, to my knowledge, calculate aggregate dollar values for the nationwide effects of racial discrimination in 1964, in 1994 it did rely on evidence of the harms caused by domestic violence and sexual assault, citing annual costs of $3 billion in 1990... and $5 to $10 billion in 1993.... Equally important, though, gender-based violence in the 1990s was shown to operate in a manner similar to racial discrimination in the 1960s in reducing the mobility of employees and their production and consumption of goods shipped in interstate commerce. Like racial discrimination, “[g]ender-based violence bars its most likely targets— women—from full partic[ipation] in the national economy.”
If the analogy to the Civil Rights Act of 1964 is not plain enough, one can always look back a bit further. In Wickard , we upheld the application of the Agricultural Adjustment Act to the planting and consumption of homegrown wheat. The effect on interstate commerce in that case followed from the possibility that wheat grown at home for personal consumption could either be drawn into the market by rising prices, or relieve its grower of any need to purchase wheat in the market. The Commerce Clause predicate was simply the effect of the production of wheat for home consumption on supply and demand in interstate commerce. Supply and demand for goods in interstate commerce will also be affected by the deaths of 2,000 to 4,000 women annually at the hands of domestic abusers,... and by the reduction in the work force by the 100,000 or more rape victims who lose their jobs each year or are forced to quit.... Violence against women may be found to affect interstate commerce and affect it substantially.
II The Act would have passed muster at any time between Wickard in 1942 and Lopez in 1995, a period in which the law enjoyed a stable understanding that congressional power under the Commerce Clause, complemented by the authority of the Necessary and Proper Clause, Art. I, § 8, cl. 18, extended to all activity that, when aggregated, has a substantial effect on interstate commerce. As already noted, this understanding was secure even against the turmoil at the passage of the Civil Rights Act of 1964, in the aftermath of which the Court not only reaffirmed the cumulative effects and rational basis features of the substantial effects test... but declined to limit the commerce power through a formal distinction between legislation focused on “commerce” and statutes addressing “moral and social wrong[s],” Heart of Atlanta.
The fact that the Act does not pass muster before the Court today is therefore proof, to a degree that Lopez was not, that the Court’s nominal adherence to the substantial effects test is merely that. Although a new jurisprudence has not emerged with any distinctness, it is clear that some congressional conclusions about obviously substantial, cumulative effects on commerce are being assigned lesser values than the once-stable doctrine would assign them. These devaluations are accomplished not by any express repudiation of the substantial effects test or its application through the aggregation of individual conduct, but by supplanting rational basis scrutiny with a new criterion of review.
This new characterization of substantial effects has no support in our cases (... Lopez aside), least of all those the majority cites. Perhaps this explains why the majority is not content to rest on its cited precedent but claims a textual justification for moving toward its new system of congressional deference subject to selective discounts. Thus it purports to rely on the sensible and traditional understanding that the listing in the Constitution of some power implies the exclusion of others unmentioned.... The majority stresses that Art. I, § 8 enumerates the powers of
Congress, including the commerce power, an enumeration implying the exclusion of powers not enumerated. It follows, for the majority, not only that there must be some limits to “commerce,” but that some particular subjects arguably within the commerce power can be identified in advance as excluded, on the basis of characteristics other than their commercial effects. Such exclusions come into sight when the activity regulated is not itself commercial or when the States have traditionally addressed it in the exercise of the general police power, conferred under the state constitutions but never extended to Congress under the Constitution of the Nation.
The premise that the enumeration of powers implies that other powers are withheld is sound; the conclusion that some particular categories of subject matter are therefore presumptively beyond the reach of the commerce power is, however, a non sequitur. From the fact that Art. I, § 8, cl. 3 grants an authority limited to regulating commerce, it follows only that Congress may claim no authority under that section to address any subject that does not affect commerce. It does not at all follow that an activity affecting commerce nonetheless falls outside the commerce power, depending on the specific character of the activity, or the authority of a State to regulate it along with Congress. My disagreement with the majority is not, however, confined to logic, for history has shown that categorical exclusions have proven as unworkable in practice as they are unsupportable in theory.
A Obviously, it would not be inconsistent with the text of the Commerce Clause itself to declare “noncommercial” primary activity beyond or presumptively beyond the scope of the commerce power. That variant of categorical approach is not, however, the sole textually permissible way of defining the scope of the Commerce Clause, and any such neat limitation would at least be suspect in the light of the final sentence of Art. I, § 8, authorizing Congress to make “all Laws... necessary and proper” to give effect to its enumerated powers such as commerce. See United States v. Darby (1941) (“The power of Congress... extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce”). Accordingly, for significant periods of our history, the Court has defined the commerce power as plenary, unsusceptible to categorical exclusions, and this was the view expressed throughout the latter part of the 20th century in the substantial effects test. These two conceptions of the commerce power, plenary and categorically limited, are in fact old rivals, and today’s revival of their competition summons up familiar history, a brief reprise of which may be helpful in posing what I take to be the key question going to the legitimacy of the majority’s decision to breathe new life into the approach of categorical limitation.
Chief Justice Marshall’s seminal opinion in Gibbons v. Ogden (1824) construed the commerce power from the start with “a breadth never yet exceeded.”... In particular, it is worth noting, the Court in Wickard did not regard its holding as exceeding the scope of Chief Justice Marshall’s view of interstate commerce; Wickard applied an aggregate effects test to ostensibly domestic, noncommercial farming consistently with Chief Justice Marshall’s indication that the commerce power may be understood by its exclusion of subjects, among others, “which do not affect other States.” This plenary view of the power has either prevailed or been acknowledged by this Court at every stage of our jurisprudence.... And it was this understanding, free of categorical qualifications, that prevailed in the period after 1937 through Lopez , as summed up by Justice Harlan: “ ‘Of course, the mere fact that Congress has said when particular activity shall be deemed to affect commerce does not preclude further examination by this Court. But where we find that the legislators... have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.’ ” Maryland v. Wirtz (1968)...
Justice Harlan spoke with the benefit of hindsight, for he had seen the result of rejecting the plenary view, and today’s attempt to distinguish between primary activities affecting commerce
B
The Court finds it relevant that the statute addresses conduct traditionally subject to state prohibition under domestic criminal law, a fact said to have some heightened significance when the violent conduct in question is not itself aimed directly at interstate commerce or its instrumentalities. Again, history seems to be recycling, for the theory of traditional state concern as grounding a limiting principle has been rejected previously, and more than once.... In the particular context of the Fair Labor Standards Act it was rejected in Wirtz , with the recognition that “[t]here is no general doctrine implied in the Federal Constitution that the two governments, national and state, are each to exercise its powers so as not to interfere with the free and full exercise of the powers of the other.” The Court held it to be “clear that the Federal Government, when acting within a delegated power, may override countervailing state interests, whether these be described as ‘governmental’ or ‘proprietary’ in character.” While Wirtz was later overruled by National League of Cities v. Usery (1976), that case was itself repudiated in Garcia v. San Antonio Metropolitan Transit Authority (1985), which held that the concept of “traditional governmental function”... was incoherent, there being no explanation that would make sense of the multifarious decisions placing some functions on one side of the line, some on the other. The effort to carve out inviolable state spheres within the spectrum of activities substantially affecting commerce was, of course, just as irreconcilable with Gibbons’s explanation of the national commerce power as being as “absolut[e] as it would be in a single government.”
The Constitution of 1787 did, in fact, forbid some exercises of the commerce power. Article I, § 9, cl. 6, barred Congress from giving preference to the ports of one State over those of another. More strikingly, the Framers protected the slave trade from federal interference, see Art. I, § 9, cl. 1, and confirmed the power of a State to guarantee the chattel status of slaves who fled to another State, see Art. IV, § 2, cl. 3. These reservations demonstrate the plenary nature of the federal power; the exceptions prove the rule. Apart from them, proposals to carve islands of state authority out of the stream of commerce power were entirely unsuccessful. Roger Sherman’s proposed definition of federal legislative power as excluding “matters of internal police” met Gouverneur Morris’s response that “[t]he internal police... ought to be infringed in many cases” and was voted down eight to two. 2 Records of the Federal Convention of 1787, pp. 25–26 (M. Farrand ed. 1911) (hereinafter Farrand). The Convention similarly rejected Sherman’s attempt to include in Article V a proviso that “no state shall... be affected in its internal police.” 5 Elliot’s Debates 551–552. Finally, Rufus King suggested an explicit bill of rights for the States, a device that might indeed have set aside the areas the Court now declares off-limits. 1 Farrand 493 (“As the fundamental rights of individuals are secured by express provisions in the State Constitutions; why may not a like security be provided for the Rights of States in the National Constitution”). That proposal, too, came to naught. In short, to suppose that enumerated powers must have limits is sensible; to maintain that there exist judicially identifiable areas of state regulation immune to the plenary congressional commerce power even though falling within the limits defined by the substantial effects test is to deny our constitutional history.
The objection to reviving traditional state spheres of action as a consideration in commerce analysis, however, not only rests on the portent of incoherence, but is compounded by a further defect just as fundamental. The defect, in essence, is the majority’s rejection of the Founders’ considered judgment that politics, not judicial review, should mediate between state and national interests as the strength and legislative jurisdiction of the National Government inevitably increased through the expected growth of the national economy. Whereas today’s majority takes a leaf from the book of the old judicial economists in saying that the Court should somehow draw the line to keep the federal relationship in a proper balance, Madison, Wilson, and Marshall understood the Constitution very differently.
Although Madison had emphasized the conception of a National Government of discrete powers (a conception that a number of the ratifying conventions thought was too indeterminate
to protect civil liberties), Madison himself must have sensed the potential scope of some of the powers granted (such as the authority to regulate commerce), for he took care in The Federalist No. 46 to hedge his argument for limited power by explaining the importance of national politics in protecting the States’ interests. The National Government “will partake sufficiently of the spirit [of the States], to be disinclined to invade the rights of the individual States, or the prerogatives of their governments.” James Wilson likewise noted that “it was a favorite object in the Convention” to secure the sovereignty of the States, and that it had been achieved through the structure of the Federal Government. 2 Elliot’s Debates 438–439. The Framers of the Bill of Rights, in turn, may well have sensed that Madison and Wilson were right about politics as the determinant of the federal balance within the broad limits of a power like commerce, for they formulated the Tenth Amendment without any provision comparable to the specific guarantees proposed for individual liberties. In any case, this Court recognized the political component of federalism in the seminal Gibbons opinion. After declaring the plenary character of congressional power within the sphere of activity affecting commerce, the Chief Justice spoke for the Court in explaining that there was only one restraint on its valid exercise:
The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments. Gibbons.... C The Court’s choice to invoke considerations of traditional state regulation is especially odd in light of a distinction recognized in the now-repudiated opinion for the Court in Usery. In explaining that there was no inconsistency between declaring the States immune to the commerce power exercised in the Fair Labor Standards Act, but subject to it under the Economic Stabilization Act of 1970, as decided in Fry v. United States (1975), the Court spoke of the latter statute as dealing with a serious threat affecting all the political components of the federal system, “which only collective action by the National Government might forestall.” Usery. Today’s majority, however, finds no significance whatever in the state support for the [Violence Against Women] Act based upon the States’ acknowledged failure to deal adequately with gender-based violence in state courts, and the belief of their own law enforcement agencies that national action is essential.
The National Association of Attorneys General supported the Act unanimously,... and Attorneys General from 38 States urged Congress to enact the Civil Rights Remedy, representing that “the current system for dealing with violence against women is inadequate.”... It was against this record of failure at the state level that the Act was passed to provide the choice of a federal forum in place of the state-court systems found inadequate to stop gender-biased violence....
The collective opinion of state officials that the Act was needed continues virtually unchanged, and when the Civil Rights Remedy was challenged in court, the States came to its defense. Thirty-six of them and the Commonwealth of Puerto Rico have filed an amicus brief in support of petitioners in these cases, and only one State has taken respondents’ side. It is, then, not the least irony of these cases that the States will be forced to enjoy the new federalism whether they want it or not. For with the Court’s decision today, Antonio Morrison, like Carter Coal’s James Carter before him, has “won the states’ rights plea against the states themselves.” R. Jackson, The Struggle for Judicial Supremacy 160 (1941).
III All of this convinces me that today’s ebb of the commerce power rests on error, and at the same time leads me to doubt that the majority’s view will prove to be enduring law. There is yet
