OCTOBER TERM, 1999

															Syllabus

															UNITED STATES v. MORRISON ET AL.

															CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT No. 99-5. Argued January 11, 2000-Decided May 15,2000* Petitioner Brzonkala filed suit, alleging, inter alia, that she was raped by respondents while the three were students at
Virginia Polytechnic Institute, and that this attack violated 42 U.
S. C. § 13981, which provides a federal civil remedy for the
victims of gender-motivated violence. Respondents moved to dismiss
on the grounds that the complaint failed to state a claim and that
§ 13981's civil remedy is unconstitutional. Petitioner United
States intervened to defend the section's constitutionality. In
dismissing the complaint, the District Court held that it stated a
claim against respondents, but that Congress lacked authority to
enact § 13981 under either the Commerce Clause or § 5 of the
Fourteenth Amendment, which Congress had explicitly identified as
the sources of federal authority for § 13981. The en banc Fourth
Circuit affirmed. Held: Section 13981 cannot be sustained under the
Commerce Clause or § 5 of the Fourteenth Amendment. pp.
607-627.

															(a) The Commerce Clause does not provide Congress with authority
to enact § 13981's federal civil remedy. A congressional enactment
will be invalidated only upon a plain showing that Congress has
exceeded its constitutional bounds. See United States v. Lopez, 514 U.
S. 549 , 568, 577-578. Petitioners assert that § 13981 can be
sustained under Congress' commerce power as a regulation of
activity that substantially affects interstate commerce. The proper
framework for analyzing such a claim is provided by the principles
the Court set out in Lopez. First, in Lopez, the
noneconomic, criminal nature of possessing a firearm in a school
zone was central to the Court's conclusion that Congress lacks
authority to regulate such possession. Similarly, gender-motivated
crimes of violence are not, in any sense, economic activity.
Second, like the statute at issue in Lopez, § 13981 contains
no jurisdictional element establishing that the federal cause of
action is in pursuance of Congress' regulation of interstate
commerce. Although Lopez makes clear that such a
jurisdictional element would lend support to the argument that §
13981 is sufficiently tied to interstate commerce

															*Together with No. 99-29, Brzonkala v. Morrison et
al., also on certiorari to the same court. 599 to come within Congress' authority, Congress elected to cast §
13981's remedy over a wider, and more purely intrastate, body of
violent crime. Third, although § 13981, unlike the Lopez statute, is supported by numerous findings regarding the serious
impact of gender-motivated violence on victims and their families,
these findings are substantially weakened by the fact that they
rely on reasoning that this Court has rejected, namely, a but-for
causal chain from the initial occurrence of violent crime to every
attenuated effect upon interstate commerce. If accepted, this
reasoning would allow Congress to regulate any crime whose
nationwide, aggregated impact has substantial effects on
employment, production, transit, or consumption. Moreover, such
reasoning will not limit Congress to regulating violence, but may
be applied equally as well to family law and other areas of state
regulation since the aggregate effect of marriage, divorce, and
childrearing on the national economy is undoubtedly significant.
The Constitution requires a distinction between what is truly
national and what is truly local, and there is no better example of
the police power, which the Founders undeniably left reposed in the
States and denied the central Government, than the suppression of
violent crime and vindication of its victims. Congress therefore
may not regulate noneconomic, violent criminal conduct based solely
on the conduct's aggregate effect on interstate commerce. Pp.
607-619.

															(b) Section 5 of the Fourteenth Amendment, which permits
Congress to enforce by appropriate legislation the constitutional
guarantee that no State shall deprive any person of life, liberty,
or property without due process, or deny any person equal
protection of the laws, City of Boerne v. Flores, 521 U. S.
507 ,517, also does not give Congress the authority to enact §
13981. Petitioners' assertion that there is pervasive bias in
various state justice systems against victims of gendermotivated
violence is supported by a voluminous congressional record.
However, the Fourteenth Amendment places limitations on the manner
in which Congress may attack discriminatory conduct. Foremost among
them is the principle that the Amendment prohibits only state
action, not private conduct. This was the conclusion reached in United States v. Harris, 106 U. S. 629 , and the Civil Rights Cases, 109 U. S. 3 , which were
both decided shortly after the Amendment's adoption. The force of
the doctrine of stare decisis behind these decisions stems
not only from the length of time they have been on the books, but
also from the insight attributable to the Members of the Court at
that time, who all had intimate knowledge and familiarity with the
events surrounding the Amendment's adoption. Neither United
States v. Guest, 383 U. S. 745 , nor District of Columbia v. Carter, 409 U. S. 418 , casts any
doubt on the enduring vitality of the Civil Rights Cases and Harris. 600 Syllabus

															Assuming that there has been gender-based disparate treatment by
state authorities in these cases, it would not be enough to save §
13981's civil remedy, which is directed not at a State or state
actor but at individuals who have committed criminal acts motivated
by gender bias. Section 13981 visits no consequence on any Virginia
public official involved in investigating or prosecuting
Brzonkala's assault, and it is thus unlike any of the § 5 remedies
this Court has previously upheld. See, e. g., South Carolina v. Katzenbach, 383 U. S. 301 . Section
13981 is also different from previously upheld remedies in that it
applies uniformly throughout the Nation, even though Congress'
findings indicate that the problem addressed does not exist in all,
or even most, States. In contrast, the § 5 remedy in Katzenbach was directed only to those States in which
Congress found that there had been discrimination. Pp. 619-627. 169 F.3d
820 , affirmed.

															REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. THOMAS, J.,
filed a concurring opinion, post, p. 627. SOUTER, J., filed
a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ.,
joined, post, p. 628. BREYER, J., filed a dissenting
opinion, in which STEVENS, J., joined, and in which SOUTER and
GINSBURG, JJ., joined as to Part I-A, post, p. 655.

															Solicitor General Waxman argued the cause for the United States
in No. 99-5. With him on the briefs were Acting Assistant Attorney
General Ogden, Deputy Solicitor General Underwood, Barbara
McDowell, Mark B. Stern, Alisa B. Klein, and Anne Murphy. Julie
Goldsheid argued the cause for petitioner in No. 99-29. With her on
the briefs were Martha F. Davis, Eileen N. Wagner, Carter G.
Phillips, Richard D. Bernstein, Katherine L. Adams, Jacqueline
Gerson Cooper, and Paul A. Hemmersbaugh. Michael E. Rosman argued the cause for respondents in
both cases. With him on the brief for respondent Morrison were Hans F. Bader and W David Paxton. Joseph Graham Painter,
Jr., filed a brief for respondent Crawford. t

															tBriefs of amici curiae urging reversal were filed for
the State of Arizona et al. by Janet Napolitano, Attorney
General of Arizona, Eliot Spitzer, Attorney General of New
York, Preeta D. Bansal, Solicitor General, Jennifer K.
Brown, Assistant Attorney General, and Paula S. Bickett, and by the Attorneys General for their respective
jurisdictions as fol- 601 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

															In these cases we consider the constitutionality of 42 U. s. C.
§ 13981, which provides a federal civil remedy for the

															lows: Bruce M. Botelho of Alaska, Mark Pryor of Arkansas, Bill
Lockyer of California, Ken Salazar of Colorado, Richard Blumenthal
of Connecticut, M. Jane Brady of Delaware, Thurbert E. Baker of
Georgia, Earl I. Anzai of Hawaii, James E. Ryan of Illinois, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Albert
Benjamin "Ben" Chandler III of Kentucky, Richard P. Ieyoub of
Louisiana, Andrew Ketterer of Maine, J. Joseph Curran, Jr.,
of Maryland, Thomas F. Reilly of Massachusetts, Mike Hatch of
Minnesota, Mike Moore of Mississippi, Jeremiah W (Jay) Nixon of
Missouri, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of
Nevada, Philip T. McLaughlin of New Hampshire, Patricia A. Madrid
of New Mexico, Michael F. Easley of North Carolina, Heidi Heitkamp
of North Dakota, W A. Drew Edmondson of Oklahoma, Hardy Myers of
Oregon, Jose A. Fuentes Agostini of Puerto Rico, Sheldon Whitehouse
of Rhode Island, Paul G. Summers of Tennessee, Jan Graham of Utah,
William H. Sorrell of Vermont, Christine O. Gregoire of Washington,
Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of
Wisconsin; for the Association of Trial Lawyers of America by
Jeffrey Robert White; for AYUDA, Inc., et al. by Laura A. Foggan
and Clifford M. Sloan; for the Bar of the City of New York by Leon
Friedman, Ronald J. Tabak, Louis A. Craco, Jr., Greg Harris,
and James F. Parver; for Equal Rights Advocates et al. by David S.
Ettinger, Lisa R. Jaskol, and Mary-Christine Sungaila; for
International Law Scholars and Human Rights Experts by Peter Weiss
and Rhonda Copelon; for the Lawyers' Committee for Civil Rights
Under Law et al. by Norman Redlich, Marc D. Stern, Daniel F. Kolb,
Barbara Arnwine, Thomas J. Henderson, Jeffrey Sinensky,
Steven Freeman, Melvin Shralow, Eliot Mincberg, and Nadine Taub;
for Law Professors by Bruce Ackerman, Vicki C. Jackson, and Judith
Resnik; for the National Network to End Domestic Violence et al. by
Bruce D. Sokler; and for Joseph R. Biden, Jr., pro se.

															Briefs of amici curiae urging affirmance were filed for
the State of Alabama by Bill Pryor, Attorney General, John J. Park, Jr., Assistant Attorney General,
and Jeffrey s. Sutton; for the Institute for Justice
et al. by Richard A. Epstein, William H. Mellor, Clint Bolick,
Scott G. Bullock, Timothy Lynch, and Robert A.
Levy; for the Claremont Institute Center for Constitutional
Jurisprudence by Edwin Meese III; for the Clarendon
Foundation by Jay S. Bybee and Ronald D.
Maines; for the Eagle Forum Education & Legal Defense Fund
by Erik S. Jaffe and Phyllis Schlafiy; for the
Independent Women's Forum by Anita K. Blair, E. Duncan 602 victims of gender-motivated violence. The United States Court of
Appeals for the Fourth Circuit, sitting en bane, struck down §
13981 because it concluded that Congress lacked constitutional
authority to enact the section's civil remedy. Believing that these
cases are controlled by our decisions in United States v. Lopez, 514 U.
S. 549 (1995), United States v. Harris, 106 U. S. 629 (1883), and
the Civil Rights Cases, 109 U. S. 3 (1883), we
affirm.

															I

															Petitioner Christy Brzonkala enrolled at Virginia Polytechnic
Institute (Virginia Tech) in the fall of 1994. In September of that
year, Brzonkala met respondents Antonio Morrison and James
Crawford, who were both students at Virginia Tech and members of
its varsity football team. Brzonkala alleges that, within 30
minutes of meeting Morrison and Crawford, they assaulted and
repeatedly raped her. After the attack, Morrison allegedly told
Brzonkala, "You better not have any ... diseases." Complaint ~ 22.
In the months following the rape, Morrison also allegedly announced
in the dormitory's dining room that he "like[d] to get girls drunk
and .... " Id., ~ 31. The omitted portions, quoted verbatim
in the briefs on file with this Court, consist of boasting, debased
remarks about what Morrison would do to women, vulgar remarks that
cannot fail to shock and offend.

															Brzonkala alleges that this attack caused her to become severely
emotionally disturbed and depressed. She sought assistance from a
university psychiatrist, who prescribed Getchell, Jr., J. William Boland, and Robert L. Hodges; for the National Association of Criminal
Defense Lawyers by Theodore M. Cooperstein and Lisa
Kemler; for the Pacific Legal Foundation by Anne M.
Hayes and M. Reed Hopper; for the Women's Freedom
Network by Robert L. King; and for Rita Gluzman by Alan
E. Untereiner. Michael P. Farris filed a brief for the Center for the
Original Intent of the Constitution as amicus curiae. 603 antidepressant medication. Shortly after the rape Brzonkala
stopped attending classes and withdrew from the university.

															In early 1995, Brzonkala filed a complaint against respondents
under Virginia Tech's Sexual Assault Policy. During the
school-conducted hearing on her complaint, Morrison admitted having
sexual contact with her despite the fact that she had twice told
him "no." After the hearing, Virginia Tech's Judicial Committee
found insufficient evidence to punish Crawford, but found Morrison
guilty of sexual assault and sentenced him to immediate suspension
for two semesters.

															Virginia Tech's dean of students upheld the judicial committee's
sentence. However, in July 1995, Virginia Tech informed Brzonkala
that Morrison intended to initiate a court challenge to his
conviction under the Sexual Assault Policy. University officials
told her that a second hearing would be necessary to remedy the
school's error in prosecuting her complaint under that policy,
which had not been widely circulated to students. The university
therefore conducted a second hearing under its Abusive Conduct
Policy, which was in force prior to the dissemination of the Sexual
Assault Policy. Following this second hearing the Judicial
Committee again found Morrison guilty and sentenced him to an
identical 2-semester suspension. This time, however, the
description of Morrison's offense was, without explanation, changed
from "sexual assault" to "using abusive language."

															Morrison appealed his second conviction through the university's
administrative system. On August 21, 1995, Virginia Tech's senior
vice president and provost set aside Morrison's punishment. She
concluded that it was "'excessive when compared with other cases
where there has been a finding of violation of the Abusive Conduct
Policy,'" Brzonkala v. Virginia Polytechnic Institute and
State Univ., 132 F.3d
950 , 955 (CA4 1997). Virginia Tech did not inform
Brzonkala of this decision. After learning from a 604 newspaper that Morrison would be returning to Virginia Tech for
the fall 1995 semester, she dropped out of the university.

															In December 1995, Brzonkala sued Morrison, Crawford, and
Virginia Tech in the United States District Court for the Western
District of Virginia. Her complaint alleged that Morrison's and
Crawford's attack violated § 13981 and that Virginia Tech's
handling of her complaint violated Title IX of the Education
Amendments of 1972, 86 Stat. 373-375, 20 U. S. C. §§ 1681-1688.
Morrison and Crawford moved to dismiss this complaint on the
grounds that it failed to state a claim and that § 13981's civil
remedy is unconstitutional. The United States, petitioner in No.
99-5, intervened to defend § 13981's constitutionality.

															The District Court dismissed Brzonkala's Title IX claims against
Virginia Tech for failure to state a claim upon which relief can be
granted. See Brzonkala v. Virginia Polytechnic and State
Univ., 935 F. Supp. 772 (WD Va. 1996). It then held that
Brzonkala's complaint stated a claim against Morrison and Crawford
under § 13981, but dismissed the complaint because it concluded
that Congress lacked authority to enact the section under either
the Commerce Clause or § 5 of the Fourteenth Amendment. Brzonkala v. Virginia Polytechnic and State Univ., 935 F. Supp. 779 (WD Va. 1996).

															A divided panel of the Court of Appeals reversed the District
Court, reinstating Brzonkala's § 13981 claim and her Title IX
hostile environment claim. 1 Brzonkala v. Virginia
Polytechnic and State Univ., 132 F.3d
949 (CA4 1997). The full Court of Appeals vacated the
panel's opinion and reheard the case en banco The en banc court
then issued an opinion affirming the District Court's conclusion
that Brzonkala stated a claim under § 13981 because her complaint
alleged a crime of violence and the allegations of Morrison's crude
and derogatory statements regarding his

															1 The panel affirmed the dismissal of Brzonkala's Title IX
disparate treatment claim. See 132 F. 3d, at 961-962. 605 treatment of women sufficiently indicated that his crime was
motivated by gender animus.2 Nevertheless, the court by a divided
vote affirmed the District Court's conclusion that Congress lacked
constitutional authority to enact § 13981's civil remedy. Brzonkala v. Virginia Polytechnic and State Univ., 169 F.3d
820 (CA4 1999). Because the Court of Appeals invalidated
a federal statute on constitutional grounds, we granted certiorari.
527 U. S. 1068 (1999).

															Section 13981 was part of the Violence Against Women Act of
1994, § 40302,108 Stat. 1941-1942. It states that "[a]ll persons
within the United States shall have the right to be free from
crimes of violence motivated by gender." 42 U. S. C. § 13981(b). To
enforce that right, subsection (c) declares: "A person (including a person who acts under color of any
statute, ordinance, regulation, custom, or usage of any State) who
commits a crime of violence motivated by gender and thus deprives
another of the right declared in subsection (b) of this section
shall be liable to the party injured, in an action for the recovery
of compensatory and punitive damages, injunctive and declaratory
relief, and such other relief as a court may deem appropriate.
" Section 13981 defines a "crim[e] of violence motivated by
gender" as "a crime of violence committed because of gender or on
the basis of gender, and due, at least in part, to an

															2 The en banc Court of Appeals affirmed the District Court's
conclusion that Brzonkala failed to state a claim alleging
disparate treatment under Title IX, but vacated the District
Court's dismissal of her hostile environment claim and remanded
with instructions for the District Court to hold the claim in
abeyance pending this Court's decision in Davis v. Monroe
County Bd. of Ed., 526 U. S. 629 (1999). Brzonkala v. Virginia Polytechnic and State Univ., 169 F.3d
820 , 827, n. 2 (CA4 1999). Our grant of certiorari did
not encompass Brzonkala's Title IX claims, and we thus do not
consider them in this opinion. 606 animus based on the victim's gender." § 13981(d)(1). It also
provides that the term "crime of violence" includes any "(A) ... act or series of acts that would constitute a felony
against the person or that would constitute a felony against
property if the conduct presents a serious risk of physical injury
to another, and that would come within the meaning of State or
Federal offenses described in section 16 of Title 18, whether or
not those acts have actually resulted in criminal charges,
prosecution, or conviction and whether or not those acts were
committed in the special maritime, territorial, or prison
jurisdiction of the United States; and "(B) includes an act or series of acts that would constitute a
felony described in subparagraph (A) but for the relationship
between the person who takes such action and the individual against
whom such action is taken." § 13981(d)(2). Further clarifying the broad scope of § 13981's civil remedy,
subsection (e)(2) states that "[n]othing in this section requires a
prior criminal complaint, prosecution, or conviction to establish
the elements of a cause of action under subsection (c) of this
section." And subsection (e)(3) provides a § 13981 litigant with a
choice of forums: Federal and state courts "shall have concurrent
jurisdiction" over complaints brought under the section.

															Although the foregoing language of § 13981 covers a wide swath
of criminal conduct, Congress placed some limitations on the
section's federal civil remedy. Subsection (e)(l) states that
"[n]othing in this section entitles a person to a cause of action
under subsection (c) of this section for random acts of violence
unrelated to gender or for acts that cannot be demonstrated, by a
preponderance of the evidence, to be motivated by gender."
Subsection (e)(4) further states that § 13981 shall not be
construed "to confer on the courts of the United States
jurisdiction over any State law claim seeking 607 the establishment of a divorce, alimony, equitable distribution
of marital property, or child custody decree."

															Every law enacted by Congress must be based on one or more of
its powers enumerated in the Constitution. "The powers of the
legislature are defined and limited; and that those limits may not
be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176 (1803)
(Marshall, C. J.). Congress explicitly identified the sources of
federal authority on which it relied in enacting § 13981. It said
that a "Federal civil rights cause of action" is established
"[p]ursuant to the affirmative power of Congress ... under section
5 of the Fourteenth Amendment to the Constitution, as well as under
section 8 of Article I of the Constitution." 42 U. S. C. §
13981(a). We address Congress' authority to enact this remedy under
each of these constitutional provisions in turn.

															II

															Due respect for the decisions of a coordinate branch of
Government demands that we invalidate a congressional enactment
only upon a plain showing that Congress has exceeded its
constitutional bounds. See United States v. Lopez, 514 U. S., at 568, 577-578 (KENNEDY, J., concurring); United
States v. Harris, 106 U. S., at 635. With this
presumption of constitutionality in mind, we turn to the question
whether § 13981 falls within Congress' power under Article I, § 8,
of the Constitution. Brzonkala and the United States rely upon the
third clause of the section, which gives Congress power "[t]o
regulate Commerce with foreign N ations, and among the several
States, and with the Indian Tribes."

															As we discussed at length in Lopez, our interpretation of
the Commerce Clause has changed as our Nation has developed. See
514 U. S., at 552-557; id., at 568-574 (KENNEDY, J.,
concurring); id., at 584, 593-599 (THOMAS, J., concurring).
We need not repeat that detailed review of 608 the Commerce Clause's history here; it suffices to say that, in
the years since NLRB v. Jones & Laughlin Steel
Corp., 301 U. S.
1 (1937), Congress has had considerably greater latitude in
regulating conduct and transactions under the Commerce Clause than
our previous case law permitted. See Lopez, 514 U. S., at
555-556; id., at 573-574 (KENNEDY, J., concurring). Lopez emphasized, however, that even under our modern,
expansive interpretation of the Commerce Clause, Congress'
regulatory authority is not without effective bounds. Id., at 557. "[E]ven [our] modern-era precedents which have expanded
congressional power under the Commerce Clause confirm that this
power is subject to outer limits. In Jones & Laughlin
Steel, the Court warned that the scope of the interstate
commerce power 'must be considered in the light of our dual system
of government and may not be extended so as to embrace effects upon
interstate commerce so indirect and remote that to embrace them, in
view of our complex society, would effectually obliterate the
distinction between what is national and what is local and create a
completely centralized government.'" Id., at 556-557
(quoting Jones & Laughlin Steel, supra, at 37).3 As we observed in Lopez, modern Commerce Clause
jurisprudence has "identified three broad categories of activity
that Congress may regulate under its commerce power."

															3JU8TICE SOUTER'S dissent takes us to task for allegedly
abandoning Jones & Laughlin Steel in favor of an
inadequate "federalism of some earlier time." Post, at
641-643, 655. As the foregoing language from Jones & Laughlin Steel makes clear however, this Court has always
recognized a limit on the commerce power inherent in "our dual
system of government." 301 U. S., at 37. It is the dissent's
remarkable theory that the commerce power is without judicially
enforceable boundaries that disregards the Court's caution in Jones & Laughlin Steel against allowing that
power to "effectually obliterate the distinction between what is
national and what is local." Ibid. 609 514 U. S., at 558 (citing Hodel v. Virginia Surface
Mining & Reclamation Assn., Inc., 452 U. S. 264 , 276-277
(1981); Perez v. United States, 402 U. S. 146 , 150
(1971)). "First, Congress may regulate the use of the channels of
interstate commerce." 514 U. S., at 558 (citing Heart of Atlanta
Motel, Inc. v. United States, 379 U. S. 241 , 256
(1964); United States v. Darby, 312 U. S. 100 , 114
(1941)). "Second, Congress is empowered to regulate and protect the
instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from
intrastate activities." 514 U. S., at 558 (citing Shreveport
Rate Cases, 234
U. S. 342 (1914); Southern R. Co. v. United
States, 222 U. S.
20 (1911); Perez, supra, at 150). "Finally, Congress'
commerce authority includes the power to regulate those activities
having a substantial relation to interstate commerce, ... i. e., those activities that substantially affect interstate
commerce." 514 U. S., at 558-559 (citing Jones &
Laughlin Steel, supra, at 37).

															Petitioners do not contend that these cases fall within either
of the first two of these categories of Commerce Clause regulation.
They seek to sustain § 13981 as a regulation of activity that
substantially affects interstate commerce. Given § 13981's focus on
gender-motivated violence wherever it occurs (rather than violence
directed at the instrumentalities of interstate commerce,
interstate markets, or things or persons in interstate commerce),
we agree that this is the proper inquiry.

															Since Lopez most recently canvassed and clarified our
case law governing this third category of Commerce Clause
regulation, it provides the proper framework for conducting the
required analysis of § 13981. In Lopez, we held that the
Gun-Free School Zones Act of 1990, 18 U. S. C. § 922(q)(1)(A),
which made it a federal crime to knowingly possess a firearm in a
school zone, exceeded Congress' authority under the Commerce
Clause. See 514 U. S., at 551. Several significant considerations
contributed to our decision. 610 First, we observed that § 922(q) was "a criminal statute that by
its terms has nothing to do with 'commerce' or any sort of economic
enterprise, however broadly one might define those terms." Id., at 561. Reviewing our case law, we noted that "we have
upheld a wide variety of congressional Acts regulating intrastate
economic activity where we have concluded that the activity
substantially affected interstate commerce." Id., at 559.
Although we cited only a few examples, including Wickard v. Filburn, 317
U. S. 111 (1942); Hodel, supra; Perez, supra; Katzenbach v. McClung, 379 U. S. 294 (1964); and Heart of Atlanta
Motel, supra, we stated that the pattern of analysis is clear. Lopez, 514 U. S., at 559-560. "Where economic activity
substantially affects interstate commerce, legislation regulating
that activity will be sustained." Id., at 560.

															Both petitioners and JUSTICE SOUTER'S dissent downplay the role
that the economic nature of the regulated activity plays in our
Commerce Clause analysis. But a fair reading of Lopez shows
that the noneconomic, criminal nature of the conduct at issue was
central to our decision in that case. See, e. g., id., at 551 ("The Act [does not] regulat[e] a commercial
activity"), 560 ("Even Wickard, which is perhaps the most
far reaching example of Commerce Clause authority over intrastate
activity, involved economic activity in a way that the possession
of a gun in a school zone does not"), 561 ("Section 922(q) is not
an essential part of a larger regulation of economic activity"),
566 ("Admittedly, a determination whether an intrastate activity is
commercial or noncommercial may in some cases result in legal
uncertainty. But, so long as Congress' authority is limited to
those powers enumerated in the Constitution, and so long as those
enumerated powers are interpreted as having judicially enforceable
outer limits, congressional legislation under the Commerce Clause
always will engender 'legal uncertainty' "), 567 ("The possession
of a gun in a local school zone is in no sense an economic activity
that might, through repetition 611 elsewhere, substantially affect any sort of interstate
commerce"); see also id., at 573-574 (KENNEDY, J.,
concurring) (stating that Lopez did not alter our "practical
conception of commercial regulation" and that Congress may
"regulate in the commercial sphere on the assumption that we have a
single market and a unified purpose to build a stable national
economy"), 577 ("Were the Federal Government to take over the
regulation of entire areas of traditional state concern, areas
having nothing to do with the regulation of commercial activities,
the boundaries between the spheres of federal and state authority
would blur"), 580 ("[U]nlike the earlier cases to come before the
Court here neither the actors nor their conduct has a commercial
character, and neither the purposes nor the design of the statute
has an evident commercial nexus. The statute makes the simple
possession of a gun within 1,000 feet of the grounds of the school
a criminal offense. In a sense any conduct in this interdependent
world of ours has an ultimate commercial origin or consequence, but
we have not yet said the commerce power may reach so far" (citation
omitted)). Lopez's 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. See id., at 559-560.4

															The second consideration that we found important in analyzing §
922(q) was that the statute contained "no express jurisdictional
element which might limit its reach to a discrete set of firearm
possessions that additionally have

															4JU8TICE SOUTER'S dissent does not reconcile its analysis with
our holding in Lopez because it apparently would cast that
decision aside. See post, at 637-643. However, the dissent
cannot persuasively contradict Lopez's conclusion that, in
every case where we have sustained federal regulation under the
aggregation principle in Wickard v. Filburn, 317 U. S. 111 (1942), the
regulated activity was of an apparent commercial character. See, e. g., Lopez, 514 U. S., at 559-560, 580. 612 an explicit connection with or effect on interstate commerce." Id., at 562. Such a jurisdictional element may establish
that the enactment is in pursuance of Congress' regulation of
interstate commerce.

															Third, we noted that neither § 922(q) "'nor its legislative
history contain[s] express congressional findings regarding the
effects upon interstate commerce of gun possession in a school
zone.''' Ibid. (quoting Brief for United States, O. T. 1994,
No. 93-1260, pp. 5-6). While "Congress normally is not required to
make formal findings as to the substantial burdens that an activity
has on interstate commerce," 514 U. S., at 562 (citing McClung,
supra, at 304; Perez, 402 U. S., at 156), the existence
of such findings may "enable us to evaluate the legislative
judgment that the activity in question substantially affect[s]
interstate commerce, even though no such substantial effect [is]
visible to the naked eye." 514 U. S., at 563.

															Finally, our decision in Lopez rested in part on the fact
that the link between gun possession and a substantial effect on
interstate commerce was attenuated. Id., at 563-567. The
United States argued that the possession of guns may lead to
violent crime, and that violent crime "can be expected to affect
the functioning of the national economy in two ways. First, the
costs of violent crime are substantial, and, through the mechanism
of insurance, those costs are spread throughout the population.
Second, violent crime reduces the willingness of individuals to
travel to areas within the country that are perceived to be
unsafe." Id., at 563-564 (citation omitted). The Government
also argued that the presence of guns at schools poses a threat to
the educational process, which in turn threatens to produce a less
efficient and productive 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 613 to "regulate not only all violent crime, but all activities that
might lead to violent crime, regardless of how tenuously they
relate to interstate commerce." Id., at 564. We noted that,
under this but-for reasoning: "Congress could regulate any activity that it found was related
to the economic productivity of individual citizens: family law
(including marriage, divorce, and child custody), for example.
Under the[se] theories ... , it is difficult to perceive any
limitation on federal power, even in areas such as criminal law
enforcement or education where States historically have been
sovereign. Thus, if we were to accept the Government's arguments,
we are hard pressed to posit any activity by an individual that
Congress is without power to regulate." Ibid. With these principles underlying our Commerce Clause
jurisprudence as reference points, the proper resolution of the
present cases is clear. Gender-motivated crimes of violence are
not, in any sense of the phrase, economic activity. While we need
not adopt a categorical rule against aggregating the effects of any
noneconomic activity in order to decide these cases, thus far in
our Nation's history our cases have upheld Commerce Clause
regulation of intrastate activity only where that activity is
economic in nature. See, e. g., id., at 559-560, and
the cases cited therein.

															Like the Gun-Free School Zones Act at issue in Lopez, §
13981 contains no jurisdictional element establishing that the
federal cause of action is in pursuance of Congress' power to
regulate interstate commerce. Although Lopez makes clear
that such a jurisdictional element would lend support to the
argument that § 13981 is sufficiently tied to interstate commerce,
Congress elected to cast § 13981's remedy over a wider, and more
purely intrastate, body of violent crime.5

															5 Title 42 U. S. C. § 13981 is not the sole provision of the
Violence Against Women Act of 1994 to provide a federal remedy for
gender-motivated crime. Section 40221(a) of the Act creates a
federal criminal remedy to 614 In contrast with the lack of congressional findings that we
faced in Lopez, § 13981 is supported by numerous
findings regarding the serious impact that gender-motivated
violence has on victims and their families. See, e. g., H. R. Conf. Rep. No. 103-711, p. 385 (1994); S. Rep. No.
103-138, p. 40 (1993); S. Rep. No. 101-545, p. 33 (1990). But the
existence of congressional findings is not sufficient, by itself,
to sustain the constitutionality of Commerce Clause legislation. As
we stated in Lopez, "'[S]imply because Congress may conclude
that a particular activity substantially affects interstate
commerce does not necessarily make it so.''' 514 U. S., at 557, n.
2 (quoting Hodel, 452 U. S., at 311 (REHNQUIST, J.,
concurring in judgment)). Rather," '[w]hether particular operations
affect interstate commerce sufficiently to come under the
constitutional power of Congress to regulate them is ultimately a
judicial rather than a legislative question, and can be settled
finally only by this Court.''' 514 U. S., at 557, n. 2 (quoting Heart of Atlanta Motel, 379 U. S., at 273 (Black, J.,
concurring)).

															punish "interstate crimes of abuse including crimes committed
against spouses or intimate partners during interstate travel and
crimes committed by spouses or intimate partners who cross State
lines to continue the abuse." S. Rep. No. 103-138, p.43 (1993).
That criminal provision has been codified at 18 U. S. C. §
2261(a)(I), which states:

															"A person who travels across a State line or enters or leaves
Indian country with the intent to injure, harass, or intimidate
that person's spouse or intimate partner, and who, in the course of
or as a result of such travel, intentionally commits a crime of
violence and thereby causes bodily injury to such spouse or
intimate partner, shall be punished as provided in subsection
(b)."

															The Courts of Appeals have uniformly upheld this criminal
sanction as an appropriate exercise of Congress' Commerce Clause
authority, reasoning that "[t]he provision properly falls within
the first of Lopez's categories as it regulates the use of
channels of interstate commerce-i. e., the use of the interstate
transportation routes through which persons and goods move." United States v. Lankford, 196
F.3d 563 , 571-572 (CA5 1999) (collecting cases)
(internal quotation marks omitted). 615 In these cases, Congress' findings are substantially weakened by
the fact that they rely so heavily on a method of reasoning that we
have already rejected as unworkable if we are to maintain the
Constitution's enumeration of powers. Congress found that
gender-motivated violence affects interstate commerce "by deterring potential victims from traveling interstate, from
engaging in employment in interstate business, and from transacting
with business, and in places involved in interstate commerce; ...
by diminishing national productivity, increasing medical and other
costs, and decreasing the supply of and the demand for interstate
products." H. R. Conf. Rep. No. 103-711, at 385. Accord, S. Rep. No. 103-138, at 54. Given these findings and
petitioners' arguments, the concern that we expressed in Lopez that Congress might use the Commerce Clause to
completely obliterate the Constitution's distinction between
national and local authority seems well founded. See Lopez, supra, at 564. The reasoning that petitioners advance seeks to
follow the but-for causal chain from the initial occurrence of
violent crime (the suppression of which has always been the prime
object of the States' police power) to every attenuated effect upon
interstate commerce. If accepted, petitioners' reasoning would
allow Congress to regulate any crime as long as the nationwide,
aggregated impact of that crime has substantial effects on
employment, production, transit, or consumption. Indeed, if
Congress may regulate gendermotivated violence, it would be able to
regulate murder or any other type of violence since
gender-motivated violence, as a subset of all violent crime, is
certain to have lesser economic impacts than the larger class of
which it is a part.

															Petitioners' reasoning, moreover, will not limit Congress to
regulating violence but may, as we suggested in Lopez, be
applied equally as well to family law and other areas of
traditional state regulation since the aggregate effect of 616 marriage, divorce, and childrearing on the national economy is
undoubtedly significant. Congress may have recognized this specter
when it expressly precluded § 13981 from being used in the family
law context.6 See 42 U. S. C. § 13981(e)(4). Under our written
Constitution, however, the limitation of congressional authority is
not solely a matter of legislative grace.7 See Lopez, supra, at 575-579 (KENNEDY, J., concurring); Marbury, 1 Cranch, at
176-178.

															6We are not the first to recognize that the but-for causal chain
must have its limits in the Commerce Clause area. In Lopez, 514 U. S., at 567, we quoted Justice Cardozo's concurring opinion
in A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935):

															"There is a view of causation that would obliterate the
distinction between what is national and what is local in the
activities of commerce. Motion at the outer rim is communicated
perceptibly, though minutely, to recording instruments at the
center. A society such as ours 'is an elastic medium which
transmits all tremors throughout its territory; the only question
is of their size.'" Id., at 554 (quoting United
States v. A. L. A. Schechter Poultry Corp., 76 F.2d 617,
624 (CA2 1935) (L. Hand, J., concurring)).

															7 JUSTICE SOUTER'S theory that Gibbons v. Ogden, 9
Wheat. 1 (1824), Garcia v. San Antonio Metropolitan
Transit Authority, 469 U. S. 528 (1985), and
the Seventeenth Amendment provide the answer to these cases, see post, at 645-652, is remarkable because it undermines this
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. 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, supra, at 572 (Powell, J.,
dissenting)). Departing from their parliamentary past, the Framers
adopted a written Constitution that further divided authority at
the federal level so that the Constitution's provisions would not
be defined solely by the political branches nor the scope of
legislative power limited only by public opinion and the
Legislature's self-restraint. See, e. g., 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"). It is thus a "'per- 617 We accordingly reject the argument that Congress may regulate
noneconomic, violent criminal conduct based solely on that
conduct's aggregate effect on interstate commerce. The Constitution
requires a distinction between what is

															manent and indispensable feature of our constitutional system' "
that" 'the federal judiciary is supreme in the exposition of the
law of the Constitution.''' Miller v. Johnson, 515 U. S. 900 ,
922-923 (1995) (quoting Cooper 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, 418 U. S. 683 (1974): "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.''' Id., at 703 (citation omitted).

															Contrary to JUSTICE SOUTER'S suggestion, see post, at
647-652, and n. 14, Gibbons did not exempt the commerce
power from this cardinal rule of constitutional law. His assertion
that, from Gibbons on, public opinion has been the only
restraint on the congressional exercise of the commerce power is
true only insofar as it contends that political accountability is
and has been the only limit on Congress' exercise of the commerce
power within that power's outer bounds. As the language
surrounding that relied upon by JUSTICE SOUTER makes clear, Gibbons did not remove from this Court the authority to
define that boundary. See Gibbons, supra, at 194-195 ("It is
not intended to say that these words comprehend that commerce,
which is completely internal, which is carried on between man and
man in a State, or between different parts of the same State, and
which does not extend to or affect other States .... Comprehensive
as the word 'among' is, it may very properly be restricted to that
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 enumeration presupposes something not enumerated;
and that something, if we regard the language or the subject of the
sentence, must be the exclusively internal commerce of a
State"). 618 truly national and what is truly local. Lopez, 514 U. S.,
at 568 (citing Jones & Laughlin Steel, 301 U. S.,
at 30). In recognizing this fact we preserve one of the few
principles that has been consistent since the Clause was adopted.
The regulation and punishment of intrastate violence that is not
directed at the instrumentalities, channels, or goods involved in
interstate commerce has always been the province of the States.
See, e. g., Cohens v. Virginia, 6 Wheat. 264, 426,
428 (1821) (Marshall, C. J.) (stating that Congress "has no general
right to punish murder committed within any of the States," and
that it is "clear ... that congress cannot punish felonies
generally"). Indeed, we can think of no better example of the
police power, which the Founders denied the National Government and
reposed in the States, than the suppression of violent crime and
vindication of its victims.8 See, e. g., Lopez, 514 U. S., at 566 ("The Constitution ... withhold[s]
from Congress a plenary police power"); id., at 584-585
(THOMAS, J., concurring) ("[W]e always have rejected
read-

															8 JUSTICE SOUTER disputes our assertion that the Constitution
reserves the general police power to the States, noting that the
Founders failed to adopt several proposals for additional
guarantees against federal encroachment on state authority. See post, at 645-646, and n. 14. This argument is belied by the
entire structure of the Constitution. With its careful enumeration
of federal powers and explicit statement that all powers not
granted to the Federal Government are reserved, the Constitution
cannot realistically be interpreted as granting the Federal
Government an unlimited license to regulate. See, e. g., New
York v. United States, 505 U. S. 144, 156-157 (1992).
And, as discussed above, the Constitution's separation of federal
power and the creation of the Judicial Branch indicate that
disputes regarding the extent of congressional power are largely
subject to judicial review. See n. 7, supra. Moreover, the
principle that "'[t]he Constitution created a Federal Government of
limited powers,'" while reserving a generalized police power to the
States, is deeply ingrained in our constitutional history. New
York, supra, at 155 (quoting Gregory v. Ashcroft,
supra, at 457); see also Lopez, 514 U. S., at 584-599
(THOMAS, J., concurring) (discussing the history of the debates
surrounding the adoption of the Commerce Clause and our subsequent
interpretation of the Clause); Maryland v. Wirtz, 392 U. S. 183 ,
196 (1968). 619 ings of the Commerce Clause and the scope of federal power that
would permit Congress to exercise a police power"), 596-597, and n.
6 (noting that the first Congresses did not enact nationwide
punishments for criminal conduct under the Commerce Clause).

															III

															Because we conclude that the Commerce Clause does not provide
Congress with authority to enact § 13981, we address petitioners'
alternative argument that the section's civil remedy should be
upheld as an exercise of Congress' remedial power under § 5 of the
Fourteenth Amendment. As noted above, Congress expressly invoked
the Fourteenth Amendment as a source of authority to enact §
13981.

															The principles governing an analysis of congressional
legislation under § 5 are well settled. Section 5 states that
Congress may" 'enforce' by 'appropriate legislation' the
constitutional guarantee that no State shall deprive any person of
'life, liberty, or property, without due process of law,' nor deny
any person 'equal protection of the laws.'" City of
Boerne v. Flores, 521 U. S. 507 , 517
(1997). Section 5 is "a positive grant of legislative power," Katzenbach v. Morgan, 384 U. S. 641 , 651
(1966), that includes authority to "prohibi[t] conduct which is not
itself unconstitutional and [to] intrud[e] into 'legislative
spheres of autonomy previously reserved to the States.'" Flores,
supra, at 518 (quoting Fitzpatrick v. Bitzer, 427 U. S. 445 ,
455 (1976)); see also Kimel v. Florida Bd. of
Regents, 528 U. S.
62 , 81 (2000). However, "[a]s broad as the congressional
enforcement power is, it is not unlimited." Oregon v. Mitchell, 400
U. S. 112 , 128 (1970); see also Kimel, supra, at 81. In
fact, as we discuss in detail below, several limitations inherent
in § 5's text and constitutional context have been recognized since
the Fourteenth Amendment was adopted.

															Petitioners' § 5 argument is founded on an assertion that there
is pervasive bias in various state justice systems against victims
of gender-motivated violence. This asser- 620 tion 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 gendermotivated 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. 103711, at 385-386; S. Rep. No. 103-138, at 38,
41-55; S. Rep. No. 102-197, at 33-35, 41, 43-47. Petitioners
contend that this bias denies victims of gender-motivated violence
the equal protection of the laws and that Congress therefore acted
appropriately in enacting a private civil remedy against the
perpetrators of gender-motivated violence to both remedy the
States' bias and deter future instances of discrimination in the
state courts.

															As our cases have established, state-sponsored gender
discrimination violates equal protection unless it "'serves
"important governmental objectives and ... the discriminatory means
employed" are "substantially related to the achievement of those
objectives."'" United States v. Virginia, 518 U. S. 515 , 533 (1996)
(quoting Mississippi Univ. for Women v. Hogan, 458 U. S. 718 ,
724 (1982), in turn quoting Wengler v. Druggists Mut.
Ins. Co., 446 U.
S. 142 , 150 (1980)). See also Craig v. Boren, 429 U. S. 190 ,
198-199 (1976). However, the language and purpose of the 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. See Flores, supra, at 520-524
(reviewing the history of the Fourteenth Amendment's enactment and
discussing the contemporary belief that the Amendment" 'does 621 not concentrate power in the general government for any purpose
of police government within the States''') (quoting T. Cooley,
Constitutional Limitations 294, n. 1 (2d ed. 1871)). Foremost among
these limitations is the time-honored principle that the Fourteenth
Amendment, by its very terms, prohibits only state action. "[T]he
principle has become firmly embedded in our constitutional law that
the action inhibited by the first section of the Fourteenth
Amendment is only such action as may fairly be said to be that of
the States. That Amendment erects no shield against merely private
conduct, however discriminatory or wrongful." Shelley v. Kraemer, 334 U.
S. 1 , 13, and n. 12 (1948).

															Shortly after the Fourteenth Amendment was adopted, we decided
two cases interpreting the Amendment's provisions, United
States v. Harris, 106 U. S. 629 (1883), and
the Civil Rights Cases, 109 U. S. 3 (1883). In Harris, the Court considered a challenge to § 2 of the Civil
Rights Act of 1871. That section sought to punish "private persons"
for "conspiring to deprive anyone of the equal protection of the
laws enacted by the State." 106 U. S., at 639. 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." Id., at 640. In so doing, we reemphasized our
statement from Virginia v. Rives, 100 U. S. 313 , 318
(1880), that "'these provisions of the fourteenth amendment have
reference to State action exclusively, and not to any action of
private individuals.'" Harris, supra, at 639 (misquotation
in Harris). We reached a similar conclusion in the Civil Rights
Cases. In those consolidated cases, we held that the public
accommodation provisions of the Civil Rights Act of 1875, which
applied to purely private conduct, were beyond the scope of the § 5
enforcement power. 109 U. S., at 11 ("Individual invasion of
individual rights is not the subject-matter of the [Fourteenth]
[A]mendment"). See also, e. g., Romer v. 622 Evans, 517
U. S. 620 , 628 (1996) ("[I]t was settled early that the
Fourteenth Amendment did not give Congress a general power to
prohibit discrimination in public accommodations"); Lugar v. Edmondson Oil Co., 457 U. S. 922 , 936 (1982)
("Careful adherence to the 'state action' requirement preserves an
area of individual freedom by limiting the reach of federal law and
federal judicial power"); Blum v. Yaretsky, 457 U. S. 991 , 1002
(1982); Moose Lodge No. 107 v. Irvis, 407 U. S. 163,
172 (1972); Adickes v. S. H. Kress & Co., 398 U. S. 144 ,
147, n. 2 (1970); United States v. Cruikshank, 92 U. S. 542 , 554
(1876) ("The fourteenth amendment prohibits a state from depriving
any person of life, liberty, or property, without due process of
law; but this adds nothing to the rights of one citizen as against
another. It simply furnishes an additional guaranty against any
encroachment by the States upon the fundamental rights which belong
to every citizen as a member of society").

															The force of the doctrine of stare decisis behind these
decisions stems not only from the length of time they have been on
the books, but also from the insight attributable to the Members of
the Court at that time. Every Member had been appointed by
President Lincoln, Grant, Hayes, Garfield, or Arthur-and each of
their judicial appointees obviously had intimate knowledge and
familiarity with the events surrounding the adoption of the
Fourteenth Amendment.

															Petitioners contend that two more recent decisions have in
effect overruled this longstanding limitation on Congress' § 5
authority. They rely on United States v. Guest, 383 U. S. 745 (1966), for the proposition that the rule laid down in the Civil
Rights Cases is no longer good law. In Guest, the Court
reversed the construction of an indictment under 18 U. S. C. § 241,
saying in the course of its opinion that "we deal here with issues
of statutory construction, not with issues of constitutional
power." 383 U. S., at 749. Three Members of the Court, in a
separate opinion by Justice Brennan, expressed the view that the Civil Rights Cases 623 were wrongly decided, and that Congress could under § 5 prohibit
actions by private individuals. 383 U. S., at 774 (opinion
concurring in part and dissenting in part). Three other Members of
the Court, who joined the opinion of the Court, joined a separate
opinion by Justice Clark which in two or three sentences stated the
conclusion that Congress could "punis[h] all conspiracies-with or
without state action-that interfere with Fourteenth Amendment
rights." Id., at 762 (concurring opinion). Justice Harlan,
in another separate opinion, commented with respect to the
statement by these Justices: "The action of three of the Justices who joined the Court's
opinion in nonetheless cursorily pronouncing themselves on the
far-reaching constitutional questions deliberately not reached in
Part II seems to me, to say the very least, extraordinary." Id., at 762, n. 1 (opinion concurring in part and dissenting
in part). Though these three Justices saw fit to opine on matters not
before the Court in Guest, the Court had no occasion to
revisit the Civil Rights Cases and Harris, having
determined "the indictment [charging private individuals with
conspiring to deprive blacks of equal access to state facilities]
in fact contain[ed] an express allegation of state involvement."
383 U. S., at 756. The Court concluded that the implicit allegation
of "active connivance by agents of the State" eliminated any need
to decide "the threshold level that state action must attain in
order to create rights under the Equal Protection Clause." Ibid. All of this Justice Clark explicitly acknowledged. See id., at 762 (concurring opinion) ("The Court's
interpretation of the indictment clearly avoids the question
whether Congress, by appropriate legislation, has the power to
punish private conspiracies that interfere with Fourteenth
Amendment rights, such as the right to utilize public
facilities"). 624 To accept petitioners' argument, moreover, one must add to the
three Justices joining Justice Brennan's reasoned explanation for
his belief that the Civil Rights Cases were wrongly decided,
the three Justices joining Justice Clark's opinion who gave no
explanation whatever for their similar view. This is simply not the
way that reasoned constitutional adjudication proceeds. We
accordingly have no hesitation in saying that it would take more
than the naked dicta contained in Justice Clark's opinion, when
added to Justice Brennan's opinion, to cast any doubt upon the
enduring vitality of the Civil Rights Cases and Harris. Petitioners also rely on District of Columbia v. Carter, 409 U.
S. 418 (1973). Carter was a case addressing the question
whether the District of Columbia was a "State" within the meaning
of Rev. Stat. § 1979, 42 U. S. C. § 1983-a section which by its
terms requires state action before it may be employed. A footnote
in that opinion recites the same litany respecting Guest that petitioners rely on. This litany is of course entirely dicta,
and in any event cannot rise above its source. We believe that the
description of the § 5 power contained in the Civil Rights
Cases is correct: "But where a subject is not submitted to the general legislative
power of Congress, but is only submitted thereto for the purpose of
rendering effective some prohibition against particular [s]tate
legislation or [s]tate action in reference to that subject, the
power given is limited by its object, and any legislation by
Congress in the matter must necessarily be corrective in its
character, adapted to counteract and redress the operation of such
prohibited state laws or proceedings of [s]tate officers." 109 U.
S., at 18. Petitioners alternatively argue that, unlike the situation in
the Civil Rights Cases, here there has been gender-based
disparate treatment by state authorities, whereas in those cases
there was no indication of such state action. There is 625 abundant evidence, however, to show that the Congresses that
enacted the Civil Rights Acts of 1871 and 1875 had a purpose
similar to that of Congress in enacting § 13981:

															There were state laws on the books bespeaking equality of
treatment, but in the administration of these laws there was
discrimination against newly freed slaves. The statement of
Representative Garfield in the House and that of Senator Sumner in
the Senate are representative: "[T]he chief complaint is not that the laws of the State are
unequal, but that even where the laws are just and equal on their
face, yet, by a systematic maladministration of them, or a neglect
or refusal to enforce their provisions, a portion of the people are
denied equal protection under them." Congo Globe, 42d Cong., 1st
Sess., App. 153 (1871) (statement of Rep. Garfield). "The Legislature of South Carolina has passed a law giving
precisely the rights contained in your 'supplementary civil rights
bill.' But such a law remains a dead letter on her statute-books,
because the State courts, comprised largely of those whom the
Senator wishes to obtain amnesty for, refuse to enforce it." Congo
Globe, 42d Cong., 2d Sess., 430 (1872) (statement of Sen.
Sumner). See also, e. g., Congo Globe, 42d Cong., 1st
Sess., at 653 (statement of Sen. Osborn); id., at 457
(statement of Rep. Coburn); id., at App. 78 (statement of
Rep. Perry); 2 Congo Rec. 457 (1874) (statement of Rep. Butler); 3
Congo Rec. 945 (1875) (statement of Rep. Lynch).

															But even if that distinction were valid, we do not believe it
would save § 13981's civil remedy. For the remedy is 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, supra, at 18. Or, as we have
phrased it in more recent cases, prophylactic legislation under § 5
must have a "'congru- 626 ence and proportionality between the injury to be prevented or
remedied and the means adopted to that end." Florida Prepaid
Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627 ,
639 (1999); Flores, 521 U. S., at 526. Section 13981 is not
aimed at proscribing discrimination by officials which the
Fourteenth Amendment might not itself proscribe; it is directed not
at any State or state actor, but at individuals who have committed
criminal acts motivated by gender bias.

															In the present cases, for example, § 13981 visits no 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, 384 U. S. 641 (1966),
Congress prohibited New York from imposing literacy tests as a
prerequisite for voting because it found that such a requirement
disenfranchised thousands of Puerto Rican immigrants who had been
educated in the Spanish language of their home territory. That law,
which we upheld, was directed at New York officials who
administered the State's election law and prohibited them from
using a provision of that law. In South Carolina v. Katzenbach, 383 U. S. 301 (1966),
Congress imposed voting rights 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, 100 U. S. 339 (1880),
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, supra, 627 was directed only to the State where the evil found by Congress
existed, and in South Carolina v. Katzenbach, supra, 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. The
judgment of the Court of Appeals is

															Affirmed.

															JUSTICE THOMAS, concurring.

															The majority opinion correctly applies our decision in United
States v. Lopez, 514 U. S. 549 (1995), and
I join it in full. I write separately only to express my view that
the very notion of a "substantial effects" test under the Commerce
Clause is inconsistent with the original 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
understanding, we will continue to see Congress appropriating state
police powers under the guise of regulating commerce. 628 JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.

															The Court says both that it leaves Commerce Clause precedent
undisturbed and that the Civil Rights Remedy of the Violence
Against Women Act of 1994, 42 U. S. C. § 13981, exceeds Congress's
power under that Clause. I find the claims irreconcilable and
respectfully dissent.1

															I

															Our cases, which remain at least nominally undisturbed, stand
for the following propositions. Congress has the power to legislate
with regard to activity that, in the aggregate, has a substantial
effect on interstate commerce. See Wickard v. Filburn, 317
U. S. 111 , 124-128 (1942); Hodel v. Virginia Surface
Mining & Reclamation Assn., Inc., 452 U. S. 264, 277
(1981). The fact of such a substantial effect is not an issue for
the courts in the first instance, ibid., but for the
Congress, whose institutional capacity for gathering evidence and
taking testimony far exceeds ours. By passing legislation, Congress
indicates its conclusion, whether explicitly or not, that facts
support its exercise of the commerce power. The business of the
courts is to review the congressional assessment, not for soundness
but simply for the rationality of concluding that a jurisdictional
basis exists in fact. See ibid. Any explicit findings that
Congress chooses to make, though not dispositive of the question of
rationality, may advance judicial review by identifying factual
authority on which Congress relied. Applying those propositions in
these cases can lead to only one conclusion.

															One obvious difference from United States v. Lopez,
514 U. S. 549 (1995), is the mountain of data assembled by
Con-

															1 Finding the law a valid exercise of Commerce Clause power, I
have no occasion to reach the question whether it might also be
sustained as an exercise of Congress's power to enforce the
Fourteenth Amendment. 629 gress, here showing the effects of violence against women on
interstate commerce.2 Passage of the Act in 1994 was preceded by
four years of hearings,3 which included testimony from physicians
and law professors; 4 from survivors

															2 It is true that these data relate to the effects of violence
against women generally, while the civil rights remedy limits its
scope to "crimes of violence motivated by gender"-presumably a
somewhat narrower subset of acts. See 42 U. S. C. § 13981(b). But
the meaning of "motivated by gender" has not been elucidated by
lower courts, much less by this one, so the degree to which the
findings rely on acts not redressable by the civil rights remedy is
unclear. As will appear, however, much of the data seems to
indicate behavior with just such motivation. In any event, adopting
a cramped reading of the statutory text, and thereby increasing the
constitutional difficulties, would directly contradict one of the
most basic canons of statutory interpretation. See NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 , 30 (1937).
Having identified the problem of violence against women, Congress
may address what it sees as the most threatening manifestation;
"reform may take one step at a time." Williamson v. Lee
Optical of Okla., Inc., 348 U. S. 483 , 489
(1955).

															3 See, e. g., Domestic Violence: Terrorism in the
Home, Hearing before the Subcommittee on Children, Family, Drugs
and Alcoholism of the Senate Committee on Labor and Human
Resources, 101st Cong., 2d Sess. (1990); Women and Violence,
Hearing before the Senate Committee on the Judiciary, 101st Cong.,
2d Sess. (1990); Violence Against Women: Victims of the System,
Hearing on S. 15 before the Senate Committee on the Judiciary, 102d
Cong., 1st Sess. (1991) (S. Hearing 102-369); Violence Against
Women, Hearing before the Subcommittee on Crime and Criminal
Justice of the House Committee on the Judiciary, 102d Cong., 2d
Sess. (1992); Hearing on Domestic Violence, Hearing before the
Senate Committee on the Judiciary, 103d Cong., 1st Sess. (1993);
Violent Crimes Against Women, Hearing before the Senate Committee
on the Judiciary, 103d Cong., 1st Sess. (1993); Violence Against
Women: Fighting the Fear, Hearing before the Senate Committee on
the Judiciary, 103d Cong., 1st Sess. (1993) (S. Hearing 103-878);
Crimes of Violence Motivated by Gender, Hearing before the
Subcommittee on Civil and Constitutional Rights of the House
Committee on the Judiciary, 103d Cong., 1st Sess. (1993); Domestic
Violence: Not Just a Family Matter, Hearing before the Subcommittee
on Crime and Criminal Justice of the House Committee on the
Judiciary, 103d Cong., 2d Sess. (1994).

															4 See, e. g., S. Hearing 103-596, at 1-4
(testimony of Northeastern Univ.

															Law School Professor Clare Dalton); S. Hearing 102-369, at
103-105 (testimony of Univ. of Chicago Professor Cass Sunstein); S.
Hearing 103-878, 630 of rape and domestic violence; 5 and from representatives of
state law enforcement and private business.6 The record includes
reports on gender bias from task forces in 21 States,7 and we have
the benefit of specific factual findings

															at 7-11 (testimony of American Medical Assn. president-elect
Robert McMee).

															5See, e. g., id., at 13-17 (testimony of Lisa); id., at 40-42 (testimony of Jennifer Tescher).

															6 See, e. g., S. Hearing 102-369, at 24-36, 71-87
(testimony of attorneys general of Iowa and Illinois); id., at 235-245 (testimony of National Federation of Business and
Professional Women); S. Hearing No. 103596, at 15-17 (statement of
James Hardeman, Manager, Counseling Dept., Polaroid Corp.).

															7 See Judicial Council of California Advisory Committee on
Gender Bias in the Courts, Achieving Equal Justice for Women and
Men in the California Courts (July 1996) (edited version of 1990
report); Colorado Supreme Court Task Force on Gender Bias in the
Courts, Gender and Justice in the Colorado Courts (1990);
Connecticut Task Force on Gender, Justice and the Courts, Report to
the Chief Justice (Sept. 1991); Report of the Florida Supreme Court
Gender Bias Study Commission (Mar. 1990); Supreme Court of Georgia,
Commission on Gender Bias in the Judicial System, Gender and
Justice in the Courts (1991), reprinted in 8 Ga. St. U. L. Rev. 539
(1992); Report of the Illinois Task Force on Gender Bias in the
Courts (1990); Equality in the Courts Task Force, State of Iowa,
Final Report (Feb. 1993); Kentucky Task Force on Gender Fairness in
the Courts, Equal Justice for Women and Men (Jan. 1992); Louisiana
Task Force on Women in the Courts, Final Report (1992); Maryland
Special Joint Comm., Gender Bias in the Courts (May 1989);
Massachusetts Supreme Judicial Court, Gender Bias Study of the
Court System in Massachusetts (1989); Michigan Supreme Court Task
Force on Gender Issues in the Courts, Final Report (Dec. 1989);
Minnesota Supreme Court Task Force for Gender Fairness in the
Courts, Final Report (1989), reprinted in 15 Wm. Mitchell L. Rev.
825 (1989); Nevada Supreme Court Gender Bias Task Force, Justice
for Women (1988); New Jersey Supreme Court Task Force on Women in
the Courts, Report of the First Year (June 1984); Report of the New
York Task Force on Women in the Courts (Mar. 1986); Final Report of
the Rhode Island Supreme Court Committee on Women in the Courts
(June 1987); Utah Task Force on Gender and Justice, Report to the
Utah Judicial Council (Mar. 1990); Vermont Supreme Court and
Vermont Bar Assn., Gender and Justice: Report of the Vermont Task
Force on Gender Bias in the Legal System (Jan. 1991); Washington
State Task Force on Gender and Justice 631 in the eight separate Reports issued by Congress and its
committees over the long course leading to enactment.8 Cf. Hodel, 452 U. S., at 278-279 (noting "extended hearings,"
"vast amounts of testimony and documentary evidence," and "years of
the most thorough legislative consideration").

															With respect to domestic violence, Congress received evidence
for the following findings: "Three out of four American women will be victims of violent
crimes sometime during their life." H. R. Rep. No. 103-395, p. 25
(1993) (citing U. S. Dept. of Justice, Report to the Nation on
Crime and Justice 29 (2d ed. 1988)). "Violence is the leading cause of injuries to women ages 15 to
44 .... " S. Rep. No. 103-138, p. 38 (1993) (citing Surgeon General
Antonia Novello, From the Surgeon General, U. S. Public Health
Services, 267 JAMA 3132 (1992)). "[A]s many as 50 percent of homeless women and children are
fleeing domestic violence." S. Rep. No. 101545, p. 37 (1990)
(citing E. Schneider, Legal Reform Efforts for Battered Women:
Past, Present, and Future (July 1990)). "Since 1974, the assault rate against women has outstripped the
rate for men by at least twice for some age groups and far more for
others." S. Rep. No. 101- in the Courts, Final Report (1989); Wisconsin Equal Justice Task
Force, Final Report (Jan. 1991).

															8 See S. Rep. No. 101-545 (1990); Majority Staff of Senate
Committee on the Judiciary, Violence Against Women: The Increase of
Rape in America, 102d Cong., 1st Sess. (Comm. Print 1991); S. Rep.
No. 102-197 (1991); Majority Staff of Senate Committee on the
Judiciary, Violence Against Women: A Week in the Life of America,
102d Cong., 2d Sess. (Comm. Print 1992); S. Rep. No. 103-138
(1993); Majority Staff of Senate Committee on the Judiciary, The
Response to Rape: Detours on the Road to Equal Justice, 103d Cong.,
1st Sess. (Comm. Print 1993); H. R. Rep. No. 103-395 (1993); H. R.
Com. Rep. No. 103-711 (1994). 632 545, at 30 (citing Bureau of Justice Statistics, Criminal
Victimization in the United States (1974) (Table 5)).

															"[BJattering 'is the single largest cause of injury to women in
the United States.'" S. Rep. No. 101-545, at 37 (quoting Van
Hightower & McManus, Limits of State Constitutional Guarantees:
Lessons from Efforts to Implement Domestic Violence Policies, 49
Pub. Admin. Rev. 269 (May/June 1989).

															"An estimated 4 million American women are battered each year by
their husbands or partners." H. R. Rep. No. 103-395, at 26 (citing
Council on Scientific Affairs, American Medical Assn., Violence
Against Women: Relevance for Medical Practitioners, 267 JAMA 3184,
3185 (1992).

															"Over 1 million women in the United States seek medical
assistance each year for injuries sustained [from] their husbands
or other partners." S. Rep. No. 101545, at 37 (citing Stark &
Flitcraft, Medical Therapy as Repression: The Case of the Battered
Woman, Health & Medicine (Summer/Fall 1982).

															"Between 2,000 and 4,000 women die every year from [domestic]
abuse." S. Rep. No. 101-545, at 36 (citing Schneider, supra). "[A]rrest rates may be as low as 1 for every 100 domestic
assaults." S. Rep. No. 101-545, at 38 (citing Dutton, Profiling of
Wife Assaulters: Preliminary Evidence for Trimodal Analysis, 3
Violence and Victims 5-30 (1988)).

															"Partial estimates show that violent crime against women costs
this country at least 3 billion-not million, but billion-dollars a
year." S. Rep. No. 101-545, at 33 (citing Schneider, supra, at 4).

															"[E]stimates suggest that we spend $5 to $10 billion a year on
health care, criminal justice, and other social costs of domestic
violence." S. Rep. No. 103-138, at 633 41 (citing Biden, Domestic Violence: A Crime, Not a Quarrel,
Trial 56 (June 1993)). The evidence as to rape was similarly extensive, supporting
these conclusions: "[The incidence of] rape rose four times as fast as the total
national crime rate over the past 10 years." S. Rep. No. 101-545,
at 30 (citing Federal Bureau of Investigation Uniform Crime Reports
(1988)). "According to one study, close to half a million girls now in
high school will be raped before they graduate." S. Rep. No.
101-545, at 31 (citing R. Warshaw, I Never Called it Rape 117
(1988)). "[One hundred twenty-five thousand] college women can expect to
be raped during this-or any-year." S. Rep. No. 101-545, at 43
(citing testimony of Dr. Mary Koss before the Senate Judiciary
Committee, Aug. 29, 1990). "[T]hree-quarters of women never go to the movies alone after
dark because of the fear of rape and nearly 50 percent do not use
public transit alone after dark for the same reason." S. Rep. No.
102-197, p. 38 (1991) (citing M. Gordon & S. Riger, The Female
Fear 15 (1989)). "[Forty-one] percent of judges surveyed believed that juries
give sexual assault victims less credibility than other crime
victims." S. Rep. No. 102-197, at 47 (citing Colorado Supreme Court
Task Force on Gender Bias in the Courts, Gender & Justice in
the Colorado Courts 91 (1990)). "Less than 1 percent of all [rape] victims have collected
damages." S. Rep. No. 102-197, at 44 (citing report by Jury Verdict
Research, Inc.). "'[A]n individual who commits rape has only about 4 chances in
100 of being arrested, prosecuted, and found guilty of any
offense.'" S. Rep. No. 101-545, at 33, n. 30 634 (quoting H. Feild & L. Bienen, Jurors and Rape: A Study in
Psychology and Law 95 (1980)).

															"Almost one-quarter of convicted rapists never go to prison and
another quarter received sentences in local jails where the average
sentence is 11 months." S. Rep. No. 103-138, at 38 (citing Majority
Staff Report of Senate Committee on the Judiciary, The Response to
Rape:

															Detours on the Road to Equal Justice, 103d Cong., 1st Sess., 2
(Comm. Print 1993)).

															"[A]lmost 50 percent of rape victims lose their jobs or are
forced to quit because of the crime's severity." S. Rep. No.
102-197, at 53 (citing Ellis, Atkeson, & Calhoun, An Assessment
of Long-Term Reaction to Rape, 90 J. Abnormal Psych., No.3, p. 264
(1981).

															Based on the data thus partially summarized, Congress found
that "crimes of violence motivated by gender have a substantial
adverse effect on interstate commerce, by deterring potential
victims from traveling interstate, from engaging in employment in
interstate business, and from transacting with business, and in
places involved, in interstate commerce ... [,] by diminishing
national productivity, increasing medical and other costs, and
decreasing the supply of and the demand for interstate products
.... " H. R. Conf. Rep. No. 103-711, p.385 (1994). Congress thereby explicitly stated the predicate for the
exercise of its Commerce Clause power. Is its conclusion irrational
in view of the data amassed? True, the methodology of particular
studies may be challenged, and some of the figures arrived at may
be disputed. But the sufficiency of the evidence before Congress to
provide a rational basis for the finding cannot seriously be
questioned. Cf. Turner Broadcasting System, Inc. v. FCC, 520 U. S.
180 , 199 (1997) 635 ("The Constitution gives to Congress the role of weighing
conflicting evidence in the legislative process").

															Indeed, the legislative record here is far more voluminous than
the record compiled by Congress and found sufficient in two prior
cases upholding Title II of the Civil Rights Act of 1964 against
Commerce Clause challenges. In Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964), and Katzenbach v. McClung, 379 U. S. 294 (1964), the
Court referred to evidence showing the consequences of racial
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. See
Civil Rights-Public Accommodations, Hearings on S. 1732 before the
Senate Committee on Commerce, 88th Cong., 1st Sess., App. V, pp.
1383-1387 (1963). Congress also had evidence that the average black
family spent substantially less than the average white family in
the same income range on public accommodations, and that
discrimination accounted for much of the difference. H. R. Rep. No.
88-914, pt. 2, pp.9-10, and Table II (1963) (Additional Views on H.
R. 7152 of Hon. William M. McCulloch, Hon. John V. Lindsay, Hon.
William T. Cahill, Hon. Garner E. Shriver, Hon. Clark MacGregor,
Hon. Charles McC. Mathias, Hon. James E. Bromwell).

															While Congress did not, to my knowledge, calculate 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, see S. Rep. 101-545, at 33, and $5 to $10 billion
in 1993, see S. Rep. No. 103-138, at 41.9 Equally important,
though, gender-based violence in the 1990's was shown to operate in
a manner similar to racial

															9 In other cases, we have accepted dramatically smaller figures.
See, e. g., Hodel v. Indiana, 452 U. S. 314 , 325, n. 11
(1981) (stating that corn production with a value of $5.16 million
"surely is not an insignificant amount of commerce"). 636 discrimination in the 1960's 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 targetswomen-from full
partic[ipation] in the national economy." Id., at 54.

															If the analogy to the Civil Rights Act of 1964 is not plain
enough, one can always look back a bit further. In Wickard, we upheld the application of the Agricultural Adjustment Act to the
planting and consumption of homegrown wheat. The effect on
interstate commerce in that case followed from the possibility that
wheat grown at home for personal consumption could either be drawn
into the market by rising prices, or relieve its grower of any need
to purchase wheat in the market. See 317 U. S., at 127-129. The
Commerce Clause predicate was simply the effect of the production
of wheat for home consumption on supply and demand in 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, see S. Rep. No. 101-545, at 36, and
by the reduction in the work force by the 100,000 or more rape
victims who lose their jobs each year or are forced to quit, see id., at 56; H. R. Rep. No. 103-395, at 25-26. Violence
against women may be found to affect interstate commerce and affect
it substantially. 10

															10 It should go without saying that my view of the limit of the
congressional commerce power carries no implication about the
wisdom of exercising it to the limit. I and other Members of this
Court appearing before Congress have repeatedly argued against the
federalization of traditional state crimes and the extension of
federal remedies to problems for which the States have historically
taken responsibility and may deal with today if they have the will
to do so. See Hearings before a Subcommittee of the House Committee
on Appropriations, 104th Cong., 1st Sess., pt. 7, pp. 13-14 (1995)
(testimony of JUSTICE KENNEDY); Hearings on H. R. 4603 before a
Subcommittee of the Senate Committee on Appropriations, 103d Cong.,
2d Sess., 100-107 (1994) (testimony of JUSTICES 637 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, see Heart of Atlanta, supra, at 258; McClung, supra, at 301-305, but declined to limit
the commerce power through a formal distinction between legislation
focused on "commerce" and statutes addressing "moral and social
wrong[s]," Heart of Atlanta, supra, at 257.

															The fact that the Act does not pass muster before the Court
today is therefore proof, to a degree that Lopez was not,
that the Court's nominal adherence to the substantial effects test
is merely that. Although a new jurisprudence has not emerged with
any distinctness, it is clear that some congressional conclusions
about obviously substantial, 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.

															KENNEDY and SOUTER). The Judicial Conference of the United
States originally opposed the Act, though after the original bill
was amended to include the gender-based animus requirement, the
objection was withdrawn for reasons that are not apparent. See
Crimes of Violence Motivated by Gender, Hearing before the
Subcommittee on Civil and Constitutional Rights of the House
Committee on the Judiciary, 103d Cong., 1st Sess., 70-71
(1993). 638 Thus the elusive heart of the majority's analysis in these cases
is its statement that Congress's findings of fact are "weakened" by
the presence of a disfavored "method of reasoning." Ante, at
615. This seems to suggest that the "substantial effects" analysis
is not a factual enquiry, for Congress in the first instance with
subsequent judicial review looking only to the rationality of the
congressional conclusion, but one of a rather different sort,
dependent upon a uniquely judicial competence.

															This new characterization of substantial effects has no support
in our cases (the self-fulfilling prophecies of Lopez aside), least of all those the majority cites. Perhaps this
explains why the majority is not content to rest on its cited
precedent but claims a textual justification for moving toward its
new system of congressional deference subject to selective
discounts. Thus it purports to rely on the sensible and traditional
understanding that the listing in the Constitution of some powers
implies the exclusion of others unmentioned. See Gibbons v. Ogden, 9 Wheat. 1, 195 (1824); ante, at 610; The
Federalist No. 45, p. 313 (J. Cooke ed. 1961) (J. Madison).l1 The
majority stresses that Art. I, § 8, enu-

															11 The claim that powers not granted were withheld was the chief
Federalist argument against the necessity of a bill of rights.
Bills of rights, Hamilton claimed, "have no application to
constitutions professedly founded upon the power of the people, and
executed by their immediate representatives and servants. Here, in
strictness, the people surrender nothing, and as they retain every
thing, they have no need of particular reservations." The
Federalist No. 84, at 578. James Wilson went further in the
Pennsylvania ratifying convention, asserting that an enumeration of
rights was positively dangerous because it suggested, conversely,
that every right not reserved was surrendered. See 2 J. Elliot,
Debates in the Several State Conventions on the Adoption of the
Federal Constitution 436-437 (2d ed. 1863) (hereinafter Elliot's
Debates). The Federalists did not, of course, prevail on this
point; most States voted for the Constitution only after proposing
amendments and the First Congress speedily adopted a Bill of
Rights. See Garcia v. San Antonio Metropolitan Transit
Authority, 469 U.
S. 528 , 569 (1985) (Powell, J., dissenting). While that
document protected a range of specific individual 639 merates the powers of Congress, including the commerce power, an
enumeration implying the exclusion of powers not enumerated. It
follows, for the majority, not only that there must be some limits
to "commerce," but that some particular subjects arguably within
the commerce power can be 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, see Lopez, 514 U. S., at 566. Ante, at 615-616.

															The premise that the enumeration of powers implies that other
powers are withheld is sound; the conclusion that some particular
categories of subject matter are therefore presumptively beyond the
reach of the commerce power is, however, a non sequitur. From the
fact that Art. I, § 8, cl. 3, grants an authority limited to
regulating commerce, it 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.12 My
dis-

															rights against federal infringement, it did not, with the
possible exception of the Second Amendment, offer any similarly
specific protections to areas of state sovereignty.

															12 To the contrary, we have always recognized that while the
federal commerce power may overlap the reserved state police power,
in such cases federal authority is supreme. See, e. g., Lake
Shore & Michigan Southern R. Co. v. Ohio, 173 U. S. 285 ,
297-298 (1899) ("When Congress acts with reference to a matter
confided to it by the Constitution, then its statutes displace all
conflicting local regulations touching that matter, although such
regulations may have been established in pursuance of a power not
surrendered by the States to the General Government"); United
States v. California, 297 U. S. 175 , 185 (1936)
("[W]e look to the activities 640 agreement with the majority is not, however, confined to logic,
for history has shown that categorical exclusions have proven as
unworkable in practice as they are unsupportable in theory.

															A

															Obviously, it would not be inconsistent with the text of the
Commerce Clause itself to declare "noncommercial" 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, 312
U. S. 100 , 118 (1941) ("The power of Congress ... extends to
those activities intrastate which so affect interstate commerce or
the exercise of the power of Congress over it as to make regulation
of them appropriate means to the attainment of a legitimate end,
the exercise of the granted power of Congress to regulate
interstate 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 to day'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.

															in which the states have traditionally engaged as marking the
boundary of the restriction upon the federal taxing power. But
there is no such limitation upon the plenary power to regulate
commerce"). 641 Chief Justice Marshall's seminal opinion in Gibbons v. Ogden, 9 Wheat., at 193-194, construed the commerce power
from the start with "a breadth never yet exceeded," Wickard v. Filburn, 317 U. S., at 120. In particular, it is worth
noting, the Court in Wickard did not regard its holding as
exceeding the scope of Chief Justice Marshall's view of interstate
commerce; Wickard applied an aggregate effects test to
ostensibly domestic, noncommercial farming 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," Gibbons, 9 Wheat., at 195. This
plenary view of the power has either prevailed or been acknowledged
by this Court at every stage of our jurisprudence. See, e. g., id., at 197; Nashville, C. & St. L. R.
Co. v. Alabama, 128 U. S. 96 , 99-100 (1888); Lottery Case, 188 U. S. 321 , 353
(1903); Minnesota Rate Cases, 230 U. S. 352 , 398
(1913); United States v. California, 297 U. S. 175 , 185
(1936); United States v. Darby, supra, at 115; Heart of Atlanta Motel, Inc. v. United States, 379 U.
S., at 255; Hodel v. Indiana, 452 U. S., at 324. And
it was this understanding, free of categorical qualifications, that
prevailed in the period after 1937 through Lopez, as summed
up by Justice Harlan: "'Of course, the mere fact that Congress has
said when particular activity shall be deemed to affect commerce
does not preclude further examination by this Court. But where we
find that the legislators ... have a rational basis for finding a
chosen regulatory scheme necessary to the protection of commerce,
our investigation is at an end.'" Maryland v. Wirtz, 392 U. S. 183 ,
190 (1968) (quoting Katzenbach v. McClung, 379 U. S.,
at 303-304).

															Justice Harlan spoke with the benefit of hindsight, for he had
seen the result of rejecting the plenary view, and today's attempt
to distinguish between primary activities affecting commerce in
terms of the relatively commercial or noncommercial character of
the primary conduct proscribed comes with the pedigree of near
tragedy that I outlined in 642 United States v. Lopez, 514 U. S., at 603
(dissenting opinion). In the half century following the modern
activation of the commerce power with passage of the Interstate
Commerce Act in 1887, this Court from time to time created
categorical enclaves beyond congressional reach by declaring such
activities as "mining," "production," "manufacturing," and union
membership to be outside the definition of "commerce" and by
limiting application of the effects test to "direct" rather than
"indirect" commercial consequences. See, e. g., United
States v. E. C. Knight Co., 156 U. S. 1 (1895)
(narrowly construing the Sherman Antitrust Act in light of the
distinction between "commerce" and "manufacture"); In re Heff,
197 U. S. 488, 505-506 (1905) (stating that Congress could not
regulate the intrastate sale of liquor); The Employers'
Liability Cases, 207 U. S. 463 , 495-496
(1908) (invalidating law governing tort liability for common
carriers operating in interstate commerce because the effects on
commerce were indirect); Adair v. United States, 208 U. S. 161 (1908) (holding that labor union membership fell outside
"commerce"); Hammer v. Dagenhart, 247 U. S. 251 (1918)
(invalidating law prohibiting interstate shipment of goods
manufactured with child labor as a regulation of "manufacture"); A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 ,
545548 (1935) (invalidating regulation of activities that only
"indirectly" affected commerce); Railroad Retirement Bd. v. Alton R. Co., 295 U. S. 330 , 368-369
(1935) (invalidating pension law for railroad workers on the
grounds that conditions of employment were only indirectly linked
to commerce); Carter v. Carter Coal Co., 298 U. S. 238 , 303-304
(1936) (holding that regulation of unfair labor practices in mining
regulated "production," not "commerce").

															Since adherence to these formalistically contrived confines of
commerce power in large measure provoked the judicial crisis of
1937, one might reasonably have doubted that Members of this Court
would ever again toy with a return to the days before NLRB v. Jones & Laughlin Steel Corp., 643 301 U. S. 1 (1937), which brought the earlier and nearly disastrous experiment
to an end. And yet to day's decision can only be seen as a step
toward recapturing the prior mistakes. Its revival of a distinction
between commercial and noncommercial conduct is at odds with Wickard, which repudiated that analysis, and the enquiry
into commercial purpose, first intimated by the Lopez concurrence, see Lopez, supra, at 580 (opinion of KENNEDY,
J.), is cousin to the intent-based analysis employed in Hammer,
supra, at 271272, but rejected for Commerce Clause purposes in Heart of Atlanta, supra, at 257, and Darby, 312 U.
S., at 115.

															Why is the majority tempted to reject the lesson so painfully
learned in 19377 An answer emerges from contrasting Wickard with one of the predecessor cases it superseded. It was obvious in Wickard that growing wheat for consumption right on the farm
was not "commerce" in the common vocabulary, 13 but that did not
matter constitutionally so long as the aggregated activity of
domestic wheat growing affected commerce substantially. Just a few
years before

															13 Contrary to the Court's suggestion, ante, at 611, n.
4, Wickard v. Filburn, 317 U. S. 111 (1942),
applied the substantial effects test to domestic agricultural
production for domestic consumption, an activity that cannot fairly
be described as commercial, despite its commercial consequences in
affecting or being affected by the demand for agricultural products
in the commercial market. The Wickard Court admitted that
Filburn's activity "may not be regarded as commerce" but insisted
that "it may still, whatever its nature, be reached by Congress if
it exerts a substantial economic effect on interstate commerce ....
" Id., at 125. The characterization of home wheat production
as "commerce" or not is, however, ultimately beside the point. For
if substantial effects on commerce are proper subjects of concern
under the Commerce Clause, what difference should it make whether
the causes of those effects are themselves commercial? Cf., e. g., National Organization for Women, Inc. v. Scheidler, 510 U. S. 249 , 258 (1994)
("An enterprise surely can have a detrimental influence on
interstate or foreign commerce without having its own
profit-seeking motives"). The Court's answer is that it makes a
difference to federalism, and the legitimacy of the Court's new
judicially derived federalism is the crux of our disagreement. See infra, at 644-646. 644 Wickard, however, it had certainly been no less obvious
that "mining" practices could substantially affect commerce, even
though Carter Coal Co., supra, had held mining regulation
beyond the national commerce power. When we try to fathom the
difference between the two cases, it is clear that they did not go
in different directions because the Carter Coal Court could
not understand a causal connection that the Wickard Court
could grasp; the difference, rather, turned on the fact that the
Court in Carter Coal had a reason for trying to maintain its
categorical, formalistic distinction, while that reason had been
abandoned by the time Wickard was decided. The reason was
laissez-faire economics, the point of which was to keep government
interference to a minimum. See Lopez, supra, at 605-606
(SOUTER, J., dissenting). The Court in Carter Coal was still
trying to create a laissez-faire world out of the 20thcentury
economy, and formalistic commercial distinctions were thought to be
useful instruments in achieving that object. The Court in Wickard knew it could not do any such thing and in the
aftermath of the New Deal had long since stopped attempting the
impossible. Without the animating economic theory, there was no
point in contriving formalisms in a war with Chief Justice
Marshall's conception of the commerce power.

															If we now ask why the formalistic economic/noneconomic
distinction might matter today, after its rejection in Wickard, the answer is not that the majority fails to see
causal connections in an integrated economic world. The answer is
that in the minds of the majority there is a new animating theory
that makes categorical formalism seem useful again. Just as the old
formalism had value in the service of an economic conception, the
new one is useful in serving a conception of federalism. It is the
instrument by which assertions of national power are to be limited
in favor of preserving a supposedly discernible, proper sphere of
state autonomy to legislate or refrain from legislating as the
in- 645 dividual States see fit. The legitimacy of the Court's current
emphasis on the noncommercial nature of regulated activity, then,
does not turn on any logic serving the text of the Commerce Clause
or on the realism of the majority's view of the national economy.
The essential issue is rather the strength of the majority's claim
to have a constitutional warrant for its current conception of a
federal relationship enforceable by this Court through limits on
otherwise plenary commerce power. This conception is the subject of
the majority's second categorical discount applied today to the
facts bearing on the substantial effects test.

															B

															The Court finds it relevant that the statute addresses 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. Ante, at 609.
Again, history seems to be recycling, for the theory of traditional
state concern as grounding a limiting principle has been rejected
previously, and more than once. It was disapproved in Darby, 312 U. S., at 123-124, and held insufficient standing alone to
limit the commerce power in Hodel, 452 U. S., at 276-277. In
the particular context of the Fair Labor Standards Act it was
rejected in Maryland v. Wirtz, 392 U. S. 183 (1968),
with the recognition that "[t]here is no general doctrine implied
in the Federal 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." Id., at 195 (internal quotation marks omitted). The Court held it to be
"clear that the Federal Government, when acting within a delegated
power, may override countervailing state interests, whether these
be described as 'governmental' or 'proprietary' in character." Ibid. While Wirtz was later overruled by National
League of Cities v. Usery, 426 U. S. 646 833 (1976), that case was itself repudiated in Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985),
which held that the concept of "traditional governmental function"
(as an element of the immunity doctrine under Hodel) was
incoherent, there being no explanation that would make sense of the
multifarious decisions placing some functions on one side of the
line, some on the other. 469 U. S., at 546-547. The effort to carve
out inviolable state spheres within the spectrum of activities
substantially affecting commerce was, of course, just as
irreconcilable with Gibbons's explanation of the national
commerce power as being as "absolut[e] as it would be in a single
government," 9 Wheat., at 197.14

															14 The Constitution of 1787 did, in fact, forbid some exercises
of the commerce power. Article I, § 9, cl. 6, barred Congress from
giving 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 647 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.15 Whereas to day'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),16 Madison himself must have sensed the potential
scope of some of the powers granted (such as the authority to
regulate commerce), for he

															power even though falling within the limits defined by the
substantial effects test is to deny our constitutional history.

															15 That the national economy and the national legislative power
expand in tandem is not a recent discovery. This Court accepted the
prospect well over 100 years ago, noting that the commerce powers
"are not confined to the instrumentalities of commerce, or the
postal service known or in use when the Constitution was adopted,
but they keep pace with the progress of the country, and adapt
themselves to the new developments of time and circumstances." Pensacola Telegraph Co. v. Western Union Telegraph
Co., 96 U. S. 1 ,
9 (1878). See also, e. g., Farmers Loan & Trust
Co. v. Minnesota, 280 U. S. 204 , 211-212
(1930) ("Primitive conditions have passed; business is now
transacted on a national scale").

															16 As mentioned in n. 11, supra, many state conventions
voted in favor of the Constitution only after proposing amendments.
See 1 Elliot's Debates 322-323 (Massachusetts), 325 (South
Carolina), 325-327 (New Hampshire), 327 (Virginia), 327-331 (New
York), 331-332 (North Carolina), 334337 (Rhode Island). 648 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." The Federalist No. 46, p. 319
(J. Cooke ed. 1961). James Wilson likewise noted that "it was a
favorite object in the Convention" to secure the sovereignty of the
States, and that it had been achieved through the structure of the
Federal Government. 2 Elliot's Debates 438-439.17 The Framers of
the Bill of Rights, in turn, may well have sensed that Madison and
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 individualliberties.18 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:

															17 Statements to similar effect pervade the ratification
debates. See, e. g., 2 id., at 166-170
(Massachusetts, remarks of Samuel Stillman); 2 id., at
251-253 (New York, remarks of Alexander Hamilton); 4 id., at
95-98 (North Carolina, remarks of James Iredell).

															18 The majority's special solicitude for "areas of traditional
state regulation," ante, at 615, is thus founded not on the
text of the Constitution but on what has been termed the "spirit of the Tenth Amendment," Garcia v. San
Antonio Metropolitan Transit Authority, 469 U. S., at 585
(O'CONNOR, J., dissenting) (emphasis in original). Susceptibility
to what Justice Holmes more bluntly called "some invisible
radiation from the general terms of the Tenth Amendment," Missouri v. Holland, 252 U. S. 416 , 434
(1920), has increased in recent years, in disregard of his
admonition that "[w]e must consider what this country has become in
deciding what that Amendment has reserved," ibid. 649 "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, 9 Wheat., at 197. Politics as the moderator of the congressional employment of the
commerce power was the theme many years later in Wickard, for after the Court acknowledged the breadth of the Gibbons formulation it invoked Chief Justice Marshall yet again in adding
that "[h]e made emphatic the embracing and penetrating nature of
this power by warning that effective restraints on its exercise
must proceed from political rather than judicial processes." Wickard, 317 U. S., at 120 (citation omitted). Hence,
"conflicts of economic interest ... are wisely left under our
system to resolution by Congress under its more flexible and
responsible legislative process. Such conflicts rarely lend
themselves to judicial determination. And with the wisdom,
workability, or fairness, of the plan of regulation we have nothing
to do." Id., at 129 (footnote omitted).

															As with "conflicts of economic interest," so with supposed
conflicts of sovereign political interests implicated by the
Commerce Clause: the Constitution remits them to politics. The
point can be put no more clearly than the Court put it the last
time it repudiated the notion that some state activities
categorically defied the commerce power as understood in accordance
with generally accepted concepts. After confirming Madison's and
Wilson's views with a recitation of the sources of state influence
in the structure of the National Constitution, Garcia, 469
U. S., at 550-552, the Court disposed of the possibility of
identifying "principled constitutional limitations on the scope of
Congress' Commerce Clause powers over the States merely 650 by relying on a priori definitions of state sovereignty," id., at 548. It concluded that "the Framers chose to rely on a federal system in which special
restraints on federal power over the States inhered principally in
the workings of the National Government itself, rather than in
discrete limitations on the objects of federal authority. State
sovereign interests, then, are more properly protected by
procedural safeguards inherent in the structure of the federal
system than by judicially created limitations on federal power." Id., at 552. The Garcia Court's rejection of "judicially created
limitations" in favor of the intended reliance on national politics
was all the more powerful owing to the Court's explicit recognition
that in the centuries since the framing the relative powers of the
two sovereign systems have markedly changed. Nationwide economic
integration is the norm, the national political power has been
augmented by its vast revenues, and the power of the States has
been drawn down by the Seventeenth Amendment, eliminating selection
of senators by state legislature in favor of direct election.

															The Garcia majority recognized that economic growth and
the burgeoning of federal revenue have not amended the
Constitution, which contains no circuit breaker to preclude the
political consequences of these developments. Nor is there any
justification for attempts to nullify the natural political impact
of the particular amendment that was adopted. The significance for
state political power of ending state legislative selection of
senators was no secret in 1913, and the amendment was approved
despite public comment on that very issue. Representative Franklin
Bartlett, after quoting Madison's Federalist No. 62, as well as
remarks by George Mason and John Dickinson during the
Constitutional Convention, concluded, "It follows, therefore, that
the 651 framers of the Constitution, were they present in this House
to-day, would inevitably regard this resolution as a most direct
blow at the doctrine of State's rights and at the integrity of the
State sovereignties; for if you once deprive a State as a
collective organism of all share in the General Government, you
annihilate its federative importance." 26 Congo Rec. 7774 (1894).
Massachusetts Senator George Hoar likewise defended indirect
election of the Senate as "a great security for the rights of the
States." S. Doc. No. 232, 59th Cong., 1st Sess., 21 (1906). And
Elihu Root warned that if the selection of senators should be taken
from state legislatures, "the tide that now sets toward the Federal
Government will swell in volume and power." 46 Congo Rec. 2243
(1911). "The time will come," he continued, "when the Government of
the United States will be driven to the exercise of more arbitrary
and unconsidered power, will be driven to greater concentration,
will be driven to extend its functions into the internal affairs of
the States." Ibid. See generally Rossum, The Irony of
Constitutional Democracy: Federalism, the Supreme Court, and the
Seventeenth Amendment, 36 San Diego L. Rev. 671, 712-714 (1999)
(noting federalism-based objections to the Seventeenth Amendment).
These warnings did not kill the proposal; the Amendment was
ratified, and today it is only the ratification, not the
predictions, which this Court can legitimately heed.19

															19 The majority tries to deflect the objection that it blocks an
intended political process by explaining that the Framers intended
politics to set the federal balance only within the sphere of
permissible commerce legislation, whereas we are looking to
politics to define that sphere (in derogation even of Marbury v. Madison, 1 Cranch 137 (1803)), ante, at 616. But we all accept the view that politics is
the arbiter of state interests only within the realm of legitimate
congressional action under the commerce power. Neither Madison nor
Wilson nor Marshall, nor the Jones & Laughlin,
Darby, Wickard, or Garcia Courts, suggested that
politics defines the commerce power. Nor do we, even though we
recognize that the conditions of the contemporary world result in a
vastly greater sphere 652 Amendments that alter the balance of power between the National
and State Governments, like the Fourteenth, or that change the way
the States are represented within the Federal Government, like the
Seventeenth, are not rips in the fabric of the Framers'
Constitution, inviting judicial repairs. The Seventeenth Amendment
may indeed have lessened the enthusiasm of the Senate to represent
the States as discrete sovereignties, but the Amendment did not
convert the judiciary into an alternate shield against the commerce
power.

															C

															The Court's choice to invoke considerations of traditional state
regulation in these cases is especially odd in light of a
distinction recognized in the now-repudiated opinion for the Court
in Usery. In explaining that there was no 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, 421 U. S. 542 (1975), the
Court spoke of the latter statute as dealing with a serious threat
affecting all the political components of the fed-

															of influence for politics than the Framers would have
envisioned. Politics has legitimate authority, for all of us on
both sides of the disagreement, only within the legitimate compass
of the commerce power. The majority claims merely to be engaging in
the judicial task of patrolling the outer boundaries of that
congressional authority. See ante, at 616-617, n. 7. That
assertion cannot be reconciled with our statements of the
substantial effects test, which have not drawn the categorical
distinctions the majority favors. See, e. g., Wickard, 317 U. S., at 125; United States v. Darby, 312 U. S. 100, 118-119 (1941). The majority's attempt
to circumscribe the commerce power by defining it in terms of
categorical exceptions can only be seen as a revival of similar
efforts that led to near tragedy for the Court and incoherence for
the law. If history's lessons are accepted as guides for Commerce
Clause interpretation today, as we do accept them, then the subject
matter of the Act falls within the commerce power and the choice to
legislate nationally on that subject, or to except it from
nationallegislation because the States have traditionally dealt
with it, should be a political choice and only a political
choice. 653 eral system, "which only collective action by the National
Government might forestall." Usery, 426 U. S., at 853.
Today's majority, however, finds no significance whatever in the
state support for the Act based upon the States' acknowledged
failure to deal adequately with gender-based violence in state
courts, and the belief of their own law enforcement agencies that
national action is essential.2°

															The National Association of Attorneys General supported the Act
unanimously, see Violence Against Women: Victims of the System,
Hearing on S. 15 before the Senate Committee on the Judiciary, 102d
Cong., 1st Sess., 37-38 (1991), and Attorneys General from 38
States urged Congress to enact the Civil Rights Remedy,
representing that "the current system for dealing with violence
against women is inadequate," see Crimes of Violence Motivated by
Gender, Hearing before the Subcommittee on Civil and Constitutional
Rights of the House Committee on the Judiciary, 103d Cong., 1st
Sess., 34-36 (1993). It was against this record of failure at the
state level that the Act was passed to provide the choice of a
federal forum in place of the state-court systems found inadequate
to stop gender-biased violence. See Women and Violence, Hearing
before the Senate Committee on the Judiciary, 101st Cong., 2d
Sess., 2 (1990) (statement of Sen. Biden) (noting importance of
federal forum).21 The Act accordingly offers a federal civil rights
remedy aimed exactly

															20 See n. 7, supra. The point here is not that I take the
position that the States are incapable of dealing adequately with
domestic violence if their political leaders have the will to do
so; it is simply that the Congress had evidence from which it could
find a national statute necessary, so that its passage obviously
survives Commerce Clause scrutiny.

															21 The majority's concerns about accountability strike me as
entirely misplaced. Individuals, such as the defendants in this
action, haled into federal court and sued under the United States
Code, are quite aware of which of our dual sovereignties is
attempting to regulate their behavior. Had Congress chosen, in the
exercise of its powers under § 5 of the Fourteenth Amendment, to
proceed instead by regulating the States, rather than private
individuals, this accountability would be far less plain. 654 at violence against women, as an alternative to the generic
state tort causes of action found to be poor tools of action by the
state task forces. See S. Rep. No. 101-545, at 45 (noting
difficulty of fitting gender-motivated crimes into commonlaw
categories). As the 1993 Senate Report put it, "The Violence
Against Women Act is intended to respond both to the underlying
attitude that this violence is somehow less serious than other
crime and to the resulting failure of our criminal justice system
to address such violence. Its goals are both symbolic and practical
.... " S. Rep. No. 103-138, at 38.

															The collective opinion of state officials that the Act was
needed continues virtually unchanged, and when the Civil Rights
Remedy was challenged in court, the States came to its defense.
Thirty-six of them and the Commonwealth of Puerto Rico have filed
an amicus brief in support of petitioners in these cases,
and only one State has taken 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 one
more reason for doubt. Although we sense the presence of Carter
Coal, Schechter, and Usery once again, the majority
embraces them only at arm's-length. Where such decisions once stood
for rules, today's opinion points to considerations by which
substantial effects are discounted. Cases standing for the
sufficiency of substantial effects are not overruled; cases
overruled since 1937 are not quite revived. The Court's thinking
betokens less clearly 655 a return to the conceptual straitjackets of Schechter and Carter Coal and Usery than to something like the
unsteady state of obscenity law between Redrup v. New
York, 386 U. S. 767 (1967) (per curiam), and Miller v. California, 413 U. S. 15 (1973), a
period in which the failure to provide a workable definition left
this Court to review each case ad hoc. See id., at 22, n. 3; Interstate Circuit, Inc. v. Dallas, 390 U. S. 676 , 706-708
(1968) (Harlan, J., dissenting). As our predecessors learned then,
the practice of such ad hoc review cannot preserve the distinction
between the judicial and the legislative, and this Court, in any
event, lacks the institutional capacity to maintain such a regime
for very long. This one will end when the majority realizes that
the conception of the commerce power for which it entertains hopes
would inevitably fail the test expressed in Justice Holmes's
statement that "[t]he first call of a theory of law is that it
should fit the facts." O. Holmes, The Common Law 167 (Howe ed.
1963). The facts that cannot be ignored today are the facts of
integrated national commerce and a political relationship between
States and Nation much affected by their respective treasuries and
constitutional modifications adopted by the people. The federalism
of some earlier time is no more adequate to account for those facts
today than the theory of laissez-faire was able to govern the
national economy 70 years ago.

															JUSTICE BREYER, with whom JUSTICE STEVENS joins, and with whom
JUSTICE SOUTER and JUSTICE GINSBURG join as to Part I-A,
dissenting.

															No one denies the importance of the Constitution's federalist
principles. Its state/federal division of authority protects
liberty-both by restricting the burdens that government can impose
from a distance and by facilitating citizen participation in
government that is closer to home. The question is how the
judiciary can best implement that 656 original federalist understanding where the Commerce Clause is
at issue.

															I

															The majority holds that the federal commerce power does not
extend to such "noneconomic" activities as "noneconomic, violent
criminal conduct" that significantly affects interstate commerce
only if we "aggregate" the interstate "effect[s]" of individual
instances. Ante, at 617. JUSTICE SOUTER explains why
history, precedent, and legal logic militate against the majority's
approach. I agree and join his opinion. I add that the majority's
holding illustrates the difficulty of finding a workable judicial
Commerce Clause touchstone-a set of comprehensible interpretive
rules that courts might use to impose some meaningful limit, but
not too great a limit, upon the scope of the legislative authority
that the Commerce Clause delegates to Congress.

															A

															Consider the problems. The "economic/noneconomic" distinction is
not easy to apply. Does the local street corner mugger engage in
"economic" activity or "noneconomic" activity when he mugs for
money? See Perez v. United States, 402 U. S. 146 (1971)
(aggregating local "loan sharking" instances); United States v. Lopez, 514
U. S. 549 , 559 (1995) (loan sharking is economic because it
consists of "intrastate extortionate credit transactions"); ante, at 610. Would evidence that desire for economic
domination underlies many brutal crimes against women save the
present statute? See United States General Accounting Office,
Health, Education, and Human Services Division, Domestic Violence:
Prevalence and Implications for Employment Among Welfare Recipients
7-8 (Nov. 1998); Brief for Equal Rights Advocates et al. as Amicus Curiae 10-12. The line becomes yet harder to draw given the need for
exceptions. The Court itself would permit Congress to aggregate,
hence regulate, "noneconomic" activity taking place 657 at economic establishments. See Heart of Atlanta Motel,
Inc. v. United States, 379 U. S. 241 (1964)
(upholding civil rights laws forbidding discrimination at local
motels); Katzenbach v. McClung, 379 U. S. 294 (1964)
(same for restaurants); Lopez, supra, at 559 (recognizing
congressional power to aggregate, hence forbid, noneconomically
motivated discrimination at public accommodations); ante, at
610 (same). And it would permit Congress to regulate where that
regulation is "an essential part of a larger regulation of economic
activity, in which the regulatory scheme could be undercut unless
the intrastate activity were regulated." Lopez, supra, at
561; cf. Controlled Substances Act, 21 U. S. C. § 801 et
seq. (regulating drugs produced for home consumption). Given
the former exception, can Congress simply rewrite the present law
and limit its application to restaurants, hotels, perhaps
universities, and other places of public accommodation? Given the
latter exception, can Congress save the present law by including
it, or much of it, in a broader "Safe Transport" or "Workplace
Safety" act?

															More important, why should we give critical constitutional
importance to the economic, or noneconomic, nature of an
interstate-commerce-affecting cause? If chemical emanations
through indirect environmental change cause identical, severe
commercial harm outside a State, why should it matter whether local
factories or home fireplaces release them? The Constitution itself
refers only to Congress' power to "regulate Commerce ... among the
several States," and to make laws "necessary and proper" to
implement that power. Art. I, § 8, cls. 3, 18. The language says
nothing about either the local nature, or the economic nature, of
an interstatecommerce-affecting cause.

															This Court has long held that only the interstate commercial
effects, not the local nature of the cause, are constitutionally
relevant. See NLRB v. Jones & Laughlin Steel
Corp., 301 U. S.
1 , 38-39 (1937) (focusing upon interstate effects); Wickard v. Filburn, 317 U. S. 111 , 125 (1942)
(aggregating 658 interstate effects of wheat grown for home consumption); Heart of Atlanta Motel, supra, at 258 (" '[I]f it is
interstate commerce that feels the pinch, it does not matter how
local the operation which applies the squeeze'" (quoting United
States v. Women's Sportswear Mfrs. Assn., 336 U. S. 460 , 464
(1949))). Nothing in the Constitution's language, or that of
earlier cases prior to Lopez, explains why the Court should
ignore one highly relevant characteristic of an
interstatecommerce-affecting cause (how "local" it is), while
placing critical constitutional weight upon a different, less
obviously relevant, feature (how "economic" it is).

															Most importantly, the Court's complex rules seem unlikely to
help secure the very object that they seek, namely, the protection
of "areas of traditional state regulation" from federal intrusion. Ante, at 615. The Court's rules, even if broadly
interpreted, are underinclusive. The local pickpocket is no less a
traditional subject of state regulation than is the local
gender-motivated assault. Regardless, the Court reaffirms, as it
should, Congress' well-established and frequently exercised power
to enact laws that satisfy a commerce-related jurisdictional
prerequisite-for example, that some item relevant to the federally
regulated activity has at some time crossed a state line. Ante, at 609, 611-612, 613, and n. 5; Lopez, supra, at 558; Heart of Atlanta Motel, supra, at 256 (" '[T]he
authority of Congress to keep the channels of interstate commerce
free from immoral and injurious uses has been frequently sustained,
and is no longer open to question'" (quoting Caminetti v. United States, 242 U. S. 470 , 491
(1917))); see also United States v. Bass, 404 U. S. 336 , 347-350
(1971) (saving ambiguous felon-inpossession statute by requiring
gun to have crossed state line); Scarborough v. United
States, 431 U. S.
563 , 575 (1977) (interpreting same statute to require only that
gun passed "in interstate commerce" "at some time," without
questioning constitutionality); cf., e. g., 18 U. S.
C. § 2261(a)(1) (making it a federal crime for a person to cross
state lines to commit 659 a crime of violence against a spouse or intimate partner); §
1951(a) (federal crime to commit robbery, extortion, physical
violence or threat thereof, where "article or commodity in
commerce" is affected, obstructed, or delayed); § 2315 (making
unlawful the knowing receipt or possession of certain stolen items
that have "crossed a State ... boundary"); § 922(g)(1) (prohibiting
felons from shipping, transporting, receiving, or possessing
firearms "in interstate ... commerce").

															And in a world where most everyday products or their component
parts cross interstate boundaries, Congress will frequently find it
possible to redraft a statute using language that ties the
regulation to the interstate movement of some relevant object,
thereby regulating local criminal activity or, for that matter,
family affairs. See, e. g., Child Support Recovery
Act of 1992, 18 U. S. C. § 228. Although this possibility does not
give the Federal Government the power to regulate everything, it
means that any substantive limitation will apply randomly in terms
of the interests the majority seeks to protect. How much would be
gained, for example, were Congress to reenact the present law in
the form of "An Act Forbidding Violence Against Women Perpetrated
at Public Accommodations or by Those Who Have Moved in, or through
the Use of Items that Have Moved in, Interstate Commerce"? Complex
Commerce Clause rules creating fine distinctions that achieve only
random results do little to further the important federalist
interests that called them into being. That is why modern (pre-Lopez) case law rejected them. See Wickard,
supra, at 120; United States v. Darby, 312 U. S. 100 , 116-117
(1941); Jones & Laughlin Steel Corp., supra, at
37.

															The majority, aware of these difficulties, is nonetheless
concerned with what it sees as an important contrary consideration.
To determine the lawfulness of statutes simply by asking whether
Congress could reasonably have found that aggregated local
instances significantly affect interstate commerce will allow
Congress to regulate almost anything. 660 Virtually all local activity, when instances are aggregated, can
have "substantial effects on employment, production, transit, or
consumption." Hence Congress could "regulate any crime," and
perhaps "marriage, divorce, and childrearing" as well, obliterating
the "Constitution's distinction between national and local
authority." Ante, at 615, 616; Lopez, 514 U. S., at
558; cf. A. L. A. Schechter Poultry Corp. v. United
States, 295 U. S.
495 , 548 (1935) (need for distinction between "direct" and
"indirect" effects lest there "be virtually no limit to the federal
power"); Hammer v. Dagenhart, 247 U. S. 251 , 276 (1918)
(similar observation).

															This consideration, however, while serious, does not reflect a
jurisprudential defect, so much as it reflects a practical reality.
We live in a Nation knit together by two centuries of scientific,
technological, commercial, and environmental change. Those changes,
taken together, mean that virtually every kind of activity, no
matter how local, genuinely can affect commerce, or its conditions,
outside the State-at least when considered in the aggregate. Heart of Atlanta Motel, 379 U. S., at 251. And that fact
makes it close to impossible for courts to develop meaningful
subject-matter categories that would exclude some kinds of local
activities from ordinary Commerce Clause "aggregation" rules
without, at the same time, depriving Congress of the power to
regulate activities that have a genuine and important effect upon
interstate commerce.

															Since judges cannot change the world, the "defect" means that,
within the bounds of the rational, Congress, not the courts, must
remain primarily responsible for striking the appropriate
state/federal balance. Garcia v. San Antonio Metropolitan
Transit Authority, 469 U. S. 528 , 552
(1985); ante, at 645-649 (SOUTER, J., dissenting); Kimel v. Florida Bd. of Regents, 528 U. S. 62 , 93-94 (2000)
(STEVENS, J., dissenting) (Framers designed important structural
safeguards to ensure that, when Congress legislates, "the normal
operation of the legislative process itself would adequately
defend 661 state interests from undue infringement"); see also Kramer,
Putting the Politics Back into the Political Safeguards of
Federalism, 100 Colum. L. Rev. 215 (2000) (focusing on role of
political process and political parties in protecting state
interests). Congress is institutionally motivated to do so. Its
Members represent state and local district interests. They consider
the views of state and local officials when they legislate, and
they have even developed formal procedures to ensure that such
consideration takes place. See, e. g., Unfunded
Mandates Reform Act of 1995, Pub. L. 104-4, 109 Stat. 48 (codified
in scattered sections of 2 U. S. C.). Moreover, Congress
often can better reflect state concerns for autonomy in the details
of sophisticated statutory schemes than can the Judiciary, which
cannot easily gather the relevant facts and which must apply more
general legal rules and categories. See, e. g., 42 U.
S. C. § 7543(b) (Clean Air Act); 33 U. S. C. § 1251 et seq. (Clean Water Act); see also New York v. United
States, 505 U. S.
144 , 167-168 (1992) (collecting other examples of "cooperative
federalism"). Not surprisingly, the bulk of American law is still
state law, and overwhelmingly so.

															B

															I would also note that Congress, when it enacted the statute,
followed procedures that help to protect the federalism values at
stake. It provided adequate notice to the States of its intent to
legislate in an "are[a] of traditional state regulation." Ante, at 615. And in response, attorneys general in the
overwhelming majority of States (38) supported
congressionallegislation, telling Congress that "[o]ur experience
as Attorneys General strengthens our belief that the problem of
violence against women is a national one, requiring federal
attention, federal leadership, and federal funds." Crimes of
Violence Motivated by Gender, Hearing before the Subcommittee on
Civil and Constitutional Rights of the House Committee on the
Judiciary, 103d Cong., 1st Sess., 34-36 (1993); see also Violence
Against Women: Victims of 662 the System, Hearing on S. 15 before the Senate Committee on the
Judiciary, 102d Cong., 1st Sess., 37-38 (1991) (unanimous
resolution of the National Association of Attorneys General); but
cf. Crimes of Violence Motivated by Gender, supra, at 77-84
(Conference of Chief Justices opposing legislation).

															Moreover, as JUSTICE SOUTER has pointed out, Congress compiled a
"mountain of data" explicitly documenting the interstate commercial
effects of gender-motivated crimes of violence. Ante, at
628-635, 653-654 (dissenting opinion). After considering
alternatives, it focused the federal law upon documented
deficiencies in state legal systems. And it tailored the law to
prevent its use in certain areas of traditional state concern, such
as divorce, alimony, or child custody. 42 U. S. C. § 13981(e)(4).
Consequently, the law before us seems to represent an instance, not
of state/federal conflict, but of state/federal efforts to
cooperate in order to help solve a mutually acknowledged national
problem. Cf. §§ 300w-l0, 3796gg, 3796hh, 10409, 13931 (providing
federal moneys to encourage state and local initiatives to combat
gender-motivated violence).

															I call attention to the legislative process leading up to
enactment of this statute because, as the majority recognizes, ante, at 614, it far surpasses that which led to the
enactment of the statute we considered in Lopez. And even
were I to accept Lopez as an accurate statement of the law,
which I do not, that distinction provides a possible basis for
upholding the law here. This Court on occasion has pointed to the
importance of procedural limitations in keeping the power of
Congress in check. See Garcia, supra, at 554 ("Any
substantive restraint on the exercise of Commerce Clause powers
must find its justification in the procedural nature of this basic
limitation, and it must be tailored to compensate for possible
failings in the national political process rather than to dictate a
'sacred province of state autonomy' " (quoting EEOC v. Wyoming, 460
U. S. 226 , 236 (1983))); see 663 also Gregory v. Ashcroft, 501 U. S. 452 , 460-461
(1991) (insisting upon a "plain statement" of congressional intent
when Congress legislates "in areas traditionally regulated by the
States"); cf. Hampton v. Mow Sun Wong, 426 U. S. 88 , 103105,
114-117 (1976); Fullilove v. Klutznick, 448 U. S. 448 , 548-554
(1980) (STEVENS, J., dissenting).

															Commentators also have suggested that the thoroughness of
legislative procedures-e. g., whether Congress took a "hard
look"-might sometimes make a determinative difference in a Commerce
Clause case, say, when Congress legislates in an area of
traditional state regulation. See, e. g., Jackson,
Federalism and the Uses and Limits of Law: Printz and
Principle?, 111 Harv. L. Rev. 2180, 2231-2245 (1998); Gardbaum,
Rethinking Constitutional Federalism, 74 Texas L. Rev. 795,
812-828, 830-832 (1996); Lessig, Translating Federalism: United
States v. Lopez, 1995 S. Ct. Rev. 125, 194-214 (1995);
see also Treaty Establishing the European Community Art. 5;
Bermann, Taking Subsidiarity Seriously:

															Federalism in the European Community and the United States, 94
Colum. L. Rev. 331, 378-403 (1994) (arguing for similar limitation
in respect to somewhat analogous principle of subsidiarity for
European Community); Gardbaum, supra, at 833-837 (applying
subsidiarity principles to American federalism). Of course, any
judicial insistence that Congress follow particular procedures
might itself intrude upon congressional prerogatives and embody
difficult definitional problems. But the intrusion, problems, and
consequences all would seem less serious than those embodied in the
majority's approach. See supra, at 656-659.

															I continue to agree with JUSTICE SOUTER that the Court's
traditional "rational basis" approach is sufficient. Ante, at 628 (dissenting opinion); see also Lopez, 514 U. S., at
603-615 (SOUTER, J., dissenting); id., at 615-631 (BREYER,
J., dissenting). But I recognize that the law in this area is
unstable and that time and experience may demonstrate both the
unworkability of the majority's rules and the superiority 664 of Congress' own procedural approach-in which case the law may
evolve toward a rule that, in certain difficult Commerce Clause
cases, takes account of the thoroughness with which Congress has
considered the federalism issue.

															For these reasons, as well as those set forth by JUSTICE SOUTER,
this statute falls well within Congress' Commerce Clause authority,
and I dissent from the Court's contrary conclusion.

															II

															Given my conclusion on the Commerce Clause question, I need not
consider Congress' authority under § 5 of the Fourteenth Amendment.
Nonetheless, I doubt the Court's reasoning rejecting that source of
authority. The Court points out that in United States v. Harris, 106 U.
S. 629 (1883), and the Civil Rights Cases, 109 U. S. 3 (1883), the
Court held that § 5 does not authorize Congress to use the
Fourteenth Amendment as a source of power to remedy the conduct of private persons. Ante, at 621-622. That is certainly so. The
Federal Government's argument, however, is that Congress used § 5
to remedy the actions of state actors, namely, those States
which, through discriminatory design or the discriminatory conduct
of their officials, failed to provide adequate (or any) state
remedies for women injured by gender-motivated violence-a failure
that the States, and Congress, documented in depth. See ante, at 630-631, n. 7, 653-654 (SOUTER, J., dissenting)
(collecting sources).

															Neither Harris nor the Civil Rights Cases considered this kind of claim. The Court in Harris specifically said that it treated the federal laws in question as
"directed exclusively against the action of private persons,
without reference to the laws of the State or their administration
by her officers." 106 U. S., at 640 (emphasis added); see also Civil Rights Cases, supra, at 14 (observing that the statute
did "not profess to be corrective of any constitutional wrong
committed by the States" and that it established "rules for the
conduct 665 of individuals in society towards each other, ... without
referring in any manner to any supposed action of the State or its
authorities").

															The Court responds directly to the relevant "state actor" claim
by finding that the present law lacks" 'congruence and
proportionality' " to the state discrimination that it purports to
remedy. Ante, at 625-626; see City of Boerne v. Flores, 521 U.
S. 507 , 526 (1997). That is because the law, unlike federal
laws prohibiting literacy tests for voting, imposing voting rights
requirements, or punishing state officials who intentionally
discriminated in jury selection, Katzenbach v. Morgan, 384 U.
S. 641 (1966); South Carolina v. Katzenbach, 383 U. S. 301 (1966); Ex parte Virginia, 100 U. S. 339 (1880), is
not "directed ... at any State or state actor." Ante, at
626.

															But why can Congress not provide a remedy against private
actors? Those private actors, of course, did not themselves violate
the Constitution. But this Court has held that Congress at least
sometimes can enact remedial "[l]egislation ... [that] prohibits
conduct which is not itself unconstitutional." Flores,
supra, at 518; see also Katzenbach v. Morgan,
supra, at 651; South Carolina v. Katzenbach,
supra, at 308. The statutory remedy does not in any sense
purport to "determine what constitutes a constitutional violation." Flores, supra, at 519. It intrudes little upon either States
or private parties. It may lead state actors to improve their own
remedial systems, primarily through example. It restricts private
actors only by imposing liability for private conduct that is, in
the main, already forbidden by state law. Why is the remedy
"disproportionate"? And given the relation between remedy and
violation-the creation of a federal remedy to substitute for
constitutionally inadequate state remedies-where is the lack of
"congruence"?

															The majority adds that Congress found that the problem of
inadequacy of state remedies "does not exist in all States, 666 or even most States." Ante, at 626. But Congress had
before it the task force reports of at least 21 States documenting
constitutional violations. And it made its own findings about
pervasive gender-based stereotypes hampering many state legal
systems, sometimes unconstitutionally so. See, e. g., S. Rep. No. 103-138, pp. 38, 41-42, 44-47 (1993); S. Rep. No.
102-197, pp. 39, 44-49 (1991); H. R. Conf. Rep. No. 103-711, p. 385
(1994). The record nowhere reveals a congressional finding that the
problem "does not exist" elsewhere. Why can Congress not take the
evidence before it as evidence of a national problem? This Court
has not previously held that Congress must document the existence
of a problem in every State prior to proposing a national solution.
And the deference this Court gives to Congress' chosen remedy under
§ 5, Flores, supra, at 536, suggests that any such
requirement would be inappropriate.

															Despite my doubts about the majority's § 5 reasoning, I need
not, and do not, answer the § 5 question, which I would leave for
more thorough analysis if necessary on another occasion. Rather, in
my view, the Commerce Clause provides an adequate basis for the
statute before us. And I would uphold its constitutionality as the
"necessary and proper" exercise of legislative power granted to
Congress by that Clause.